Steelworkers, Local No. 3029

National Labor Relations Board - Board Decisions

Jul 21, 1980

250 N.L.R.B. 813 (N.L.R.B. 1980)

STEEL. WORKERS IO()CAI NO 02)(
United Steelworkers of America, Local No. 3029,
AFL-CIO (Gardner-Denver Company) and
Robert Byer. Case 27-CB-1291
July 21, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENEI.I O, AND
TRUESI)AIE
On February 29, 1980, Administrative Law
Judge Gordon J. Myatt issued the attached Deci-
sion in this proceeding. Thereafter, Respondent and
the General Counsel filed exceptions and support-
ing briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, only to the extent consistent herewith.
We agree with the Administrative Law Judge
that Respondent did not violate Section 8(b)(1)(A)
of the Act by failing to take to arbitration a griev-
ance involving the discharge of Robert Byer. How-
ever, for the reasons explained herein, we find
merit in the General Counsel's exception to the
Administrative Law Judge's failure to find that Re-
spondent violated Section 8(b)(1)(A) of the Act by
telling Byer it had no reason to process his griev-
ance because he had filed an unfair labor practice
charge against it.
Byer was discharged by the Employer on May
5, 1978, for having left work, without notice, on
May 3. Although it felt Byer's case to be a weak
one, Respondent pursued a grievance concerning
the discharge through three steps of the contrac-
tual grievance procedure, and on July 28, 1978, it
requested arbitration of the grievance as a final
tactic to pressure the Employer. However, on
August 2, 1978, unsure of what measures Respond-
ent was taking to achieve his reinstatement, Byer
filed a charge against Respondent alleging it had
unlawfully failed to represent him adequately. In
late August or early September, still unsure of
what Respondent was doing in his case, Byer at-
tended a union meeting at which approximately 25
I 'he General Counsel has excepted to certain credibility findings
made by the Administrative La.. Judge It is the Board', established
policy not to oxecrrule art administratle law. judge's resolulilions Mxith re-
spect to credibility unless the clear preponderance of all of the relexvanl
evidence convinces us that the resolutlion are incorrect Suandurd Dry'
Wall Productr. 1ic., 91 NLRB 544 11950). enfd 18X F2d h302 (3d Cir
1951) We have carefully examined the record and find no hasis for re-
versing his findings
250 NLRB No. 114
members were present and asked Paul Wilson, Re-
spondent's president, when Respondent was going
to do something more about going to arbitration
for him. Wilson responded, "Why should we do
anything? Because you had the audacity to file
charges against us in the first place." Wilson then
said that he would let Byer know what action Re-
spondent intended to take in his case.
The Administrative Law Judge found that Wil-
son's statement that Respondent had no reason to
process Byer's grievance because Byer had filed a
charge was a rhetorical question which was vitiat-
ed by his subsequent statement that he would let
Byer know what Respondent intended to do. Fur-
ther, the Administrative Law Judge concluded that
both of Wilson's statements should be viewed in
light of all the circumstances, including Respond-
ent's prior determined effort to achieve Byer's rein-
statement, as well as its subsequent, final request
for Byer's reinstatement in November 1978. Thus,
because he found that Respondent had responsibili-
ty and adequately pursued Byer's grievance, he
failed to find that Wilson's first statement violated
the Act.
Contrary to the Administrative Law Judge, we
find that Wilson's statement violated the Act. On
its face, the statement indicated clear hostility to-
wards Byer for having filed a charge and was a
threat to refuse to continue to represent him. Nei-
ther Respondent's prior adequate representation of
him, nor Wilson's indefinite statement that he
would let him know what Respondent was going
to do, could reasonably be expected to have reas-
sured Byer that Respondent would continue ade-
quately to represent him in spite of its apparent
current hostility. The tendency of Wilson's state-
ment to coerce thus cannot be ignored, especially
in light of the fact that Respondent took no imme-
diate additional steps to further Byer's case.2 Fur-
thermore, the Administrative Law Judge's analysis
of the adequacy of Respondent's prior and subse-
quent representation of Byer is irrelevant in deter-
mining the tendency of the statement to have a co-
ercive effect on other employees present at the
meeting, who cannot be assumed to have known of
the totality of Respondent's conduct.
Accordingly, we find that Respondent violated
Section 8(b)(1)(A) of the Act by its president's
statement to Byer that Respondent had no reason
to represent him because he had filed a charge
against it.
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1)ID(EISI()NS ()O NA I ()NAL. I.ABO()R RFL.AIONS O()ARI)
The Remedy
Having found that Respondent Local No. 3029
has engaged in an unfair labor practice, we shall
order that it cease and desist therefrom, and take
certain affirmative action designed to effectuate the
policies of the Act.
CONcLUSIONS OF LAW
1. The Employer, Gardner-Denver Company, is
engaged in commerce within the meaning of Sec-
tion 2(6) of the Act.
2. Respondent United Steelworkers of America,
Local No. 3029, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By refusing to take a grievance on behalf of
Robert Byer through the arbitration process, Re-
spondent did not violate Section 8(b)(1)(A) of the
Act.
4. By stating that it had no reason to represent
Robert Byer because he had filed an unfair labor
practice charge, Respondent violated Section
8(b)(1)(A) of the Act.
5. The foregoing unfair labor practice is an
unfair labor practice affecting commerce within the
meaning of Section 2(6) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
la*ions Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, United Steel-
workers of America, Local No. 3029, AFL-CIO,
Denver, Colorado, its officers, agents, and repre-
sentatives, shall:
I. Cease and desist from:
(a) Threatening to refuse to represent employees
of the Employer because they have filed unfair
labor practice charges against it.
(b) In any like or related manner restraining or
coercing employees in the exercise of their rights
protected by Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Post at its office and meeting places frequent-
ed by its members and employees it represents at
the Employer's Denver, Colorado, facility copies
of the attached notice marked "Appendix. " a:'
Copies of said notice, on forms provided by the
Regional Director for Region 27, after being duly
:' In the e'enl that this Order is entlorced h i a Judgment of a Uniled
States (Court of Appeall, the ords ill Ihe notlice readillg "PI'sted It)
Order of the National L abor Relations Board" shall read "l'oted Pursu-
ant to a Judgmenllt of the United Stalte C(ourt iot Appeal, I lfirciing an
Order of the National La bor Relatioln ltoard
signed by Respondent's authorized representative,
shall be posted by it immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to members are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 27.
in writing, within 20 days from the date of this
Order, what steps the Respondent has taken to
comply herewith.
APPENDIX
No-ricE To EMPI.OYEF.IS ANt) MEMBLERS
POSTED BY ORDER OF THE
NATIONAL LABOR REI.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE Wllt. NOT threaten to refuse to repre-
sent employees because they have filed unfair
labor practice charges against us.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
their rights protected by Section 7 of the Act.
UNITED STEEI.WORKERS OF AMER-
ICA, LOCAIl No. 3029, AFL-CIO
DECISION
SIAIIIMNI'iN i OF IHI CASE
GORD)ON J. MYAT.-, Administrative Law Judge: Upon
a charge filed on January 16, 1979, by Robert Byer
(hereinafter called Byer or the Charging Party) against
the United Steelworkers of America, Local No. 3029,
AFL-CIO (hereinafter called Respondent or the Union),
the Regional Director for Region 27 issued a complaint
and notice of hearing on April 30, 1979. The complaint
alleged, inter alia, that the Union refused to proceed to
arbitration on a grievance of Byer and subsequently
withdrew the grievance. Further, that the president of
the Union informed members that the Union would not
take Byer's grievance to arbitration because he filed
charges against the Union with the National Labor Rela-
tions Board. It is alleged that by these acts the Union
committed unfair labor practices \within the meaning of
Section 8(b)(1)(A) of the National l abor Relations Act,
as amended, 29 U.S.C. §151, ct seq. (hereinafter called
the Act.) The Union filed an answer in which it admitted
certain allegations of the complaint, denied others, and
specifically denied committing any unfair labor practices.
814
STEE. WORKERS I()CAI NO 3029
A hearing was held in this matter on August 2. 1979,
in Denver, Colorado. All parties \tere represented by
counsel and afforded full opportunity to examine and
cross-examine witnesses, and to present material and rele-
vant evidence on the issues involved herein. Briefs were
submitted by counsel and have been duly considered.
Upon the entire record in this case, including my ob-
servation of the witnesses and their demeanor while testi-
fying, I make the following:
FINI)IN(;s O F ACT
I. JURISI)ICTION
The Employer, Gardner-Denver Co., is a Delaware
corporation maintaining its principal office and place of
business in Denver, Colorado. Gardner-Denver is en-
gaged in the manufacture and sale of drills and drilling
equipment. In the course of its business operations, Gard-
ner-Denver annually sells and ships goods and materials
valued in excess of $50,000 directly to points and places
located outside the State of Colorado. The pleadings
admit, and I find, that Gardner-Denver is an employer
within the meaning of Section 2(2) engaged in commerce
and in an industry affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
It. THE lABOR ORGANIZATION INVOLVED
United Steelworkers of America, Local No. 3029,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.'
IIL. THE AlI. FGED UNFAIR l.ABOR PRACTICES
Byer began his employment with Gardner-Denver in
July 1960. In May 1978,2 he was classified as a machine
operator working on gear cutting machines. The events
which provided the genesis for this proceeding occurred
during the first week in May. Since the reliability of the
testimony of the witnesses is critical to a great degree to
the resolution of this case, it is necessary to set forth in
some detail the manner in which testimony was devel-
oped in order to evaluate its trustworthiness.
It is undisputed that on May 3 Byer left the plant
without permission and the following day was suspend-
ed, subject to discharge. When questioned on direct ex-
amination about the basis for his termination by the Em-
ployer, Byer testified as follows:
Q. And what were the circumstances of your
leaving the employ of Gardner-Denver? How did
you happen to leave Gardner-Denver?
A. I took a couple of days off. And the next time
I came in, they told me I didn't have a job.
On cross-examination, however, Byer provided a more
detailed description of the events which led to his dis-
charge. Under questioning by the Union's counsel, he ad-
mitted the following:
I The pleadings admit that the Union. at all times material herein, has
been the exclusive represeniatisc of a unit of emplosees at Gardner-
Denver for Ihe purpolses iof collectise bargailing Further, that iyer was
a member of the bargaining unit
Unless otherwsise indicated. all date, hereafter refer io the year 1978
Q. (By Mr. Coyle) Mr. Byer, you said that you
took a couple of days off: is that correct?
A. That's correct.
Q. Would you explain to His Honor, please, the
circumstances under which you took these days off
Did you report for work that day"
A. Yes, I did.
Q. Did you punch a timecard?
A. Yes, I did.
Q. And then what happened?
A. Well, we had a discussion between the day
man and myself, which at that time he was running
three machines, and he was supposed to run two
machines, and he was running three. And I asked
him why he was doing it. And he said the foreman
told him to do it. And I got angry because we just
won a grievance prior to that that we was just sup-
posed to run two machines, and he's running three.
I got angry, shut my toolbox up, and went home.
Q. So you walked off the job?
A. Right.
Q. Without permission from supervision?
A. Right.
Byer testified on direct examination that on May 10 or
II (he stated he was uncertain about dates), he called the
plant and spoke with Spotanski, the general foreman of
the second shift. He asked Spotanski if he still had a job
and was told that he did not.3 Byer testified that he then
asked Spotanski if he should come in and get his toolbox.
According to Byer, Spotanski said he should not and
stated, "I don't think you'll have any trouble at all get-
ting your job back, because you just missed this time and
didn't call in." Byer further testified that Spotanski said
he would get in touch with him, but failed to do so.
Byer admitted on direct examination that he did not
contact the union grievance committeeman until approxi-
mately 10 days after he was terminated by Gardner-
Denver. He stated he contacted Leonard Miller, area
grievance committeeman, and asked if Miller was going
to do anything about his "coming back." According to
Byer, Miller said, "That he had already filed a grievance
[on Byer's behalf] because of a lady that got her job back
and had done the same thing I did." Byer testified that
Miller stated he would let him know when the grievance
was going to go to step I of the grievance procedure.4
:' The record discloses that Byer was suspended subject to discharge
on May 4 and was in fact terminated shortly thereafter
' The collective-bargaining agreement was introduced into evidence as
Resp Exh I Art. 23 sets forth the provisions for the adjustment of
grievances. Sec 6 of that article outlines the procedure applicable to
Byer's circumstances and provided, in pertinent part, as followHs
(A) No employee will be discharged, suspended, or given a written
warning notice except for just cause
(B) Before an employee is discharged, he will he suspended for fise
(5) working days pending final determination oif discipline. and the
Company will promptly notify the Chairperson of Ihe (irievance
Committee or his/her designated representati'e. in vriling, of such
actilon At the request of the Unilon, a hearing will be held sv ilhl
three (i) workinig days after such notice Ilo the Union. before the
Pliant Superintendent or his representatis e and the Chairperson of
the Giriesance Committee ir his/her representatlle prior to Ihe
close of he fin.e (5) das 'u.penlsiol period. the Company vill notifs
('onltinu'd
I)FCISIONS OF NATIONAL LABOR RELATIONS H()ARD
Again on cross-examination, Byer's testimony reflected
a degree of difference from the version presented on his
direct examination. When asked about his conversation
with Miller, Byer testified as follows:
Q. And at that particular time what did he say to
you?
A. He said he was going to write a grievance be-
cause the same thing happened to a scab that hap-
pened to me, and they got the scab back the next
day.
Q. Did he say they had written a grievance?
A. He was in the process of writing it, yes.
Q. And did he tell you when this incident oc-
curred to this woman?
A. I can't recall that at all, if he did or not, sir.
Q. And did you later learn that the grievance
was filed?
A. Yes.
Q. Was it filed a day or two after you talked
with Mr. Miller?
A. I think about two weeks.
Q. You learned that it was filed two weeks later?
A. Um-hum.
Q. Were you told it was filed the day you talked
to him?
A. No.
Edward O'Rell, vice president of the Union and chair-
man of the grievance committee, testified that he had re-
ceived a notice of separation from the Employer on May
5, regarding Byer, showing his suspension on May 4
with a recommendation of termination. According to
O'Rell, it was customary for the Employer to provide
him with a copy of this type of personnel action in order
for him to set up a hearing with the plant superintendent
pursuant to the collective-bargaining agreement. O'Rell
testified that he arranged a meeting with Roger Geer,
plant superintendent, and then contacted the personnel
office of the Employer in order to get Byer's telephone
number. He stated that he was also aware that the per-
sonnel office itself was attempting to contact Byer in an
effort to arrange for a hearing. O'Rell further testified
that despite efforts on the part of the Union and the per-
sonnel office, Byer could not be contacted within the ex-
piration of the 5 days required in the contract. Accord-
ingly, O'Rell went to Geer and secured another week's
extension to allow the Union time to continue its efforts
to contact Byer. The Union was still unable to make
contact with Byer and, at the expiration of the week,
O'Rell got Geer to agree to a further extension of an-
other week. He stated that when the Union failed to
the Union in writing of its' [sic] final determination of the discipline;
and the Union may. within three (3) working days after receipt of
such nolice, file a grievance in wriling slarting with Step 3 of the
grievallce procedure
(D) Failure lo requestl a hearing or to file a grievance silhin the
time limit, set forth in (ti) of thi. Section v:ill automatically
make the disciplinar)y ition tlakel k alid provided, howescer such
inle limnils may, he xilended by mituall agrecniell ,of the Conmpanl
and Ihe U!nion
make contact with Byer after the third week's extension,
Geer called him on the phone and asked how long they
were going to continue this as the time limits had run
out. O'Rell testified that there was nothing further that
he could do in attempting to get in touch with Byer and
the Union dropped the matter at that point.
The grievance report reveals that a grievance was
filed on behalf of Byer by Miller on June 7. (G.C. Exh.
2.) The statement of grievance alleged that the employer
was "discriminating between male and female employees
and union and nonunion employees." It recited that Byer
had been suspended for leaving the premises without
permission from the foreman and, when he requested a
hearing through the general foreman, he was told that
the general foreman did not have anything to do with it.
The Union indicated that a grievance hearing had been
held on behalf of a nonunion female employee involved
in similar conduct and requested the same treatment for
Byer. Further, the Union requested that Byer be brought
back to work "with full seniority and all moneys lost at
average earnings." On June 30, Geer denied the griev-
ance. Geer took the position that Byer left the plant and
did not call in for 3 days and, when he did call in, he
informed management that he would not be in to work
because of personal business. Geer stated that Byer made
no attempt to contact either the Union or the Company
for a hearing on his suspension and, when he asked Spo-
tanski when a hearing could be held, he was informed
that he would have to make such a request of the super-
intendent. According to Geer's response, in denying the
grievance, Byer "made no serious effort to retain his
job."
On July 18 a group from the union grievance commit-
tee met with management officials on the Byer matter in
the third step of the grievance procedure. The union
group was headed by James Mooney, then the staff rep-
resentative serving the Local. 5 In addition to the union
representatives, Byer was present for this meeting.
Mooney testified that it was during the third-step meet-
ing that he learned of the circumstances surrounding
Byer's leaving the plant on May 3, and his failure to con-
tact the grievance committeeman to request a hearing
after his suspension and subsequent discharge. According
to Mooney, the union representatives recessed and cau-
cused during the meeting. Mooney stated that he told
Byer, in the presence of the other union representatives,
that he felt that the Union's position was weak and that,
under the circumstances the best they could hope to
achieve was to get Byer's job back without loss of se-
niority, but without any backpay. He stated that during
this discussion Byer agreed that he would accept the re-
instatement under those terms. When the parties resumed
the meeting, the Employer rejected the Union's proposal
and denied the grievance.
On July 27, Mooney met with the all-plant grievance
committee of the Union at the union office. He testified
that the Local followed the practice of reviewing all
third-step grievances which had not been resolved favor-
ably to determine whether to request arbitration within
' It gas cutstonllry for the Secrs cilng sta ff reprcsetnlat i e to head the
uniloll grieancLC ctnlltmltee at the third-slep nIeetilngs
X816
STIF.ItV()RKERS, I()CAI. NO() ()2')
the time limit specified by the contract. According to
Mooney, he received a call from Byer while this meeting
was in progress. He stated that he told Byer again that
his grievance was weak and the committee was presently
discussing it, but had not come to a decision. He further
testified that he advised Byer that he should make appli-
cation with Gardner-Denver as a new employee because
the Company was currently hiring. He stated that if
Byer were hired as a new employee, the Union could
argue about his seniority later. Mooney's testimony re-
garding Byer's response indicated that he felt the advice
would be heeded.
On July 28, Mooney and the members of the grievance
committee again met with the Employer's officials on the
Byer grievance. The union representative again sought to
resolve the grievance by having the Company reinstate
Byer to his former position without loss of seniority, but
without backpay. The Employer refused and the Union
formally requested arbitration on the matter. In practice
this meant that a panel of names would be requested
from the Federal Mediation and Conciliation Service.
The Union and the Employer would then strike from
this list names of those unacceptable to them and agree
upon an arbitrator to handle the matter.
Mooney further testified that Byer called him again
several days later. He stated he told Byer that the Union
had appealed the grievance to arbitration, but did not
intend to go to actual arbitration because it could not
win the case. He asked Byer if he had made application
for rehire as a new employee, and stated that the Union
would continue "to use the procedure and pressure of ar-
bitration"to attempt to get the Company to put him back
to work. According to Mooney, Byer indicated he had
not filed an application for rehire as a new employee.
Mooney testified that although the Union requested ar-
bitration in many instances where there was an unfavor-
able disposition in a third-step grievance proceeding, it
did so as a tactic to keep a grievance alive in order to
continue to work out a more favorable solution. Accord-
ing to Mooney, this tactic was employed even when the
Union had no intention of following a grievance through
to actual arbitration. As staff representative, Mooney was
vested with the authority to make the decision whether
to proceed to arbitration on a given grievance. Once
such a decision was made, however, the grievant in-
volved was never informed personally by the union rep-
resentatives. Rather, the decision would be announced
by way of a report at the next regularly scheduled union
meeting.
James McEwan, currently personnel manager but su-
pervisor of industrial relations at the time of the Byer
grievance, testified that the Union argued on Byer's
behalf at both the second- and-third step meetings and
requested arbitration after the unfavorable disposition at
the third step. He stated it was not unusual for the Union
to appeal to arbitration from an unfavorable third-step
disposition when it never intended to proceed to that
forum.
Byer, on the other hand, gave a different version of
the statements made during and after the third-step meet-
ing. He testified that during the recess Mooney told him,
"I had no sweat, he was going to take it all the way, the
Union was going to do everything they could for me."
According to Byer, Mooney patted him on the leg and
said, "If we have to go to arbitration, I'll get your job
back." On direct examination Byer denied that in late
July or early August Mooney told him the Union was
not going to arbitration because the grievance was weak.
He admitted calling Mooney on July 27, but denied that
there was any conversation regarding the merits of his
case. Byer did acknowledge on cross-examination, how-
ever, that Mooney told him the Union did not have a
good case. He also recalled that Mooney suggested he
apply for a job with Gardner-Denver as a new employ-
ee, but says he did not do this until approximately 3
weeks later.
Byer testified that he waited to hear from the union
representatives as to whether they intended to proceed
to arbitration in his case, but he never received any com-
munication from them. He stated he then filed a charge
against the Union with the Regional Office of the Board.
Although he recalled he did not file a charge until a
month after the third-step meeting, he was uncertain as
to when he filed the charge. It was established that the
first charge against the Union was filed by Byer on
August 2, approximately I or 2 days after his last con-
versation with Mooney. 6 Byer further testified that in
late August or early September he attended a union
meeting of the Local. According to Byer, approximately
25 members were in attendance. He stated that he direct-
ed a question from the floor to Paul Wilson, president of
the Union. Byer testified that he asked Wilson when he
was going to hear from the Union about his arbitration,
and if they were going to call him or were ever going to
do anything for him. According to Byer, Wilson replied,
"Why should we do anything? Because you had the au-
dacity to file charges against us in the first place." Byer
further testified that Wilson then told him that he would
let him know what action the Union intended to take in
his case.
Mooney retired as staff representative of the Union on
November 1 and was succeeded by Leonard Sheridan.'
McEwan testified that on November 18 he met with
Sheridan to discuss pending grievances in order to
decide whether the Union or the Employer would with-
draw a given case. He stated that Sheridan made another
attempt to persuade the Employer to reinstate Byer and
he refused. Since the Union and the Employer had never
taken steps to select an arbitrator from the panel supplied
in Byer's case, Sheridan then officially withdrew the
Byer grievance.
' This charge 'as ,uhbsequentl) ,ithdrawn hN ByHer He gave the fol-
loing explanation for the withdrawal:
I wa, told to either drop i--or Ihe L ahor Board wa% going to drop
it, hecause Ihe) a, [,it ass.,ured mn caste wa going to go to arhilra-
tion
The charge achialilng the intiant proceeding '.a, filed oir Januailr\ Ifi
](79
' Sheridan ":a , one of Ihe U111on reprccrtn tatli;,, at Ihe thilrd-ltep nleet-
tillg 11 Bser' grie'ancc
817
DFCISIONS OF NATIONAL LABO()R RELAIONS H()ARD
Concluding Findings
The General Counsel argues that the Union did not
pursue Byer's grievance through arbitration because he
filed an unfair labor practice charge alleging that the
Union failed to fairly represent him. In support of this
contention, the General Counsel points to the rhetorical
question asked by Wilson, the union president, at the
union meeting where Byer asked what the union repre-
sentatives intended to do about the arbitration of his
grievance. From this single comment, the General Coun-
sel concludes that the Union did not proceed through ar-
bitration on behalf of Byer because of unlawful reasons.
The principles of law controlling the issue presented
by this case have been well settled by the case law. A
union enjoying the status of exclusive collective-bargain-
ing representative has a reciprocal duty to represent em-
ployees fairly, in good faith, and without discrimination
against them based on arbitrary, irrelevant, or invidious
distinctions. Vaca v. Sipes, 386 U.S. 171 (1966); Local
Union No. 12, United Rubber, Cork, Linoleum & Plastic
Workers, AFL-CIO [Goodyear Tire & Rubber Co. of East
Gadsen, Ala.] v. N.L.R.B., 368 F.2d 12 (5th Cir. 1966),
cert. denied 389 U.S. 837; Miranda Fuel Company, Inc.,
140 NLRB 181 (1962). This duty is violated when a
union arbitrarily ignores a meritorious grievance or proc-
esses it in a perfunctory manner. However, it has been
recognized that in the interest of effectively administer-
ing a contract's grievance-arbitration machinery, a union
must be allowed a wide range of discretion in screening
out, settling, or abandoning short of arbitration, griev-
ances which it in good faith believes does not justify pro-
ceeding through that costly and time-consuming final
step. Local 575, Packinghouse Division, Amalgamated
Meat Cutters and Butcher Workmen (UPWA), AFL-CIO
(Omaha Packing Company), 206 NLRB 576 (1973); cf
Ford Motor Co.v. Huffman, 345 U.S. 330, 337-338 (1953).
An employee does not have an absolute right to have his
grievance taken to arbitration, and no inference of unfair
representation may be drawn merely from a bargaining
agent's refusal to press a grievance case through the ulti-
mate stage of the contract's grievance procedures. There
must be a showing that a union's conduct toward the
grievant was arbitrary, discriminatory, or taken in bad
faith. Vaca v. Sipes, supra at 190.
In my judgment, application of these principles to the
facts of the instant case warrant a finding that the Gener-
al Counsel has failed to establish a case of failure of fair
representation. The record shows that Byer made no dili-
gent effort to contact the union representatives to initiate
a grievance over his suspension and subsequent dis-
charge. Indeed, the union officials, after having been no-
tified under the procedures of the contract of the disci-
plinary action taken against Byer, sought to contact him
and secured several extensions of the time limit pre-
scribed by the agreement in order to preserve his right
to grieve the action. When Byer finally sought union as-
sistance, a grievance was filed on his behalf and actively
pursued by the Union.
Although Byer denied he was ever told during the
recess at the third-step meeting that because of the weak-
ness of his case the Union would attempt to get him rein-
stated with seniority but without backpay, I do not
credit him in this regard. Nor do I credit his denial that
Mooney informed him on July 27 and again on July 31
that his case was weak and on the latter date the Union
had made a decision not to proceed through arbitration
on his behalf. The manner in which Byer testified about
certain events leads me to conclude that where his testi-
mony is in conflict with others it is not to be accepted as
worthy of belief. For example, when questioned on
direct examination about the underlying events which
gave rise to the disciplinary action, Byer stated that he
"took a couple of days off and when he returned to
work he was fired." On cross-examination, however, it
was developed that Byer walked off the job without per-
mission because he was incensed over the fact that the
day shift operator was operating three machines. The
record further reveals that he did not contact manage-
ment until 3 days after this incident and then informed
them that he was going to take additional days off for
personal reasons. While the basis for the disciplinary
action is of no concern here, the manner in which Byer
failed to give a full and accurate account of the events
when questioned by General Counsel indicates a propen-
sity on his part to withhold testimony that he perceived
to be damaging to his case. Similarly, when questioned
by the General Counsel concerning his contact with
Miller, the area grievance committeeman, Byer stated he
contacted Miller "about 10 days after his discharge" and
that Miller stated he had already filed a grievance on
Byer's behalf. Yet on cross-examination, Byer altered this
testimony to indicate that Miller said he was in the proc-
ess of writing a grievance on Byer's behalf. In my judg-
ment, these are examples which indicate that Byer was
willing to dissemble his testimony in order to present it
in the light most favorable to him and most damaging to
the Union. For these reasons, I find that where Byer's
testimony is contradicted by the testimony of witnesses
deemed more reliable, it is to be rejected.
It was during the third-step meeting that Mooney first
learned of facts underlying the disciplinary action and
decided the case on Byer's behalf was weak. In spite of
this, Mooney sought to persuade management to rein-
state Byer with full seniority but without backpay. The
General Counsel argues that the grievance was solely
over the issue of whether Byer was the victim of dis-
criminatory treatment in that he was not accorded a
hearing under the terms of the contract while a nonunion
female employee in similar circumstances was granted a
hearing and reinstated. However, it is apparent that both
the company and union representatives treated the third-
step meeting as a full hearing on the merits of the griev-
ance, even though the Employer ultimately rejected the
Union's demand on the ground that Byer's request was
untimely under the collective-bargaining agreement.
They fully explored the factual situation underlying the
grievance, thereby causing Mooney to determine that
Byer's case was weak and to attempt to persuade the
Employer to reinstate Byer with full seniority, but with-
out backpay. Furthermore, it is clear that the union rep-
resentatives continued to advocate this position with the
Employer, even up to the time the staff representative fi-
818
STEELWORKE RS. L()CAL NO 302q
nally made a decision on November 17 to drop the re-
quest for arbitration.
The strongest factor tending to support the General
Counsel's claim of unfair representation is the statement
made by the union president in late August or early Sep-
tember at the membership meeting. It is unrefuted in the
record that when Byer asked whether or not the Union
was going to proceed through arbitration on his case,
Wilson, the union president, asked why should the Union
do anything for him, since he had the audacity to file
charges with the Board. But even this rhetorical question
was vitiated by Wilson's subsequent statement to Byer
that he would let him know what the Union intended to
do. The comments of Wilson cannot be considered in a
vacuum but, rather, must be examined in the light of all
of the circumstances which preceded it as well as the ef-
forts of the Union on Byer's behalf subsequent to the
union meeting. Viewed in its totality, it is more than ap-
parent that the Union engaged in a determined effort to
persuade the Employer to compromise and restore Byer
to his former position. Furthermore, it is clear that it was
only after these efforts failed that the Union employed
the tactic of requesting arbitration to keep Byer's griev-
ance alive while it attempted to negotiate a favorable res-
olution. The mere fact that having exhausted all of these
avenues, the Union then made a conscious decision not
to undertake the cost of arbitration because of the weak-
ness of Byer's case does not in any way indicate that it
had failed to fairly represent the employee. Nor is there
any indication in the record that this decision on the part
of the Union was based on arbitrary or discriminatory
reasons, or made in bad faith.
In light of the above, it is my considered judgment
that the General Counsel has failed to establish by a pre-
ponderance of the credible evidence in this case that the
Union has violated the Act by failing to represent Byer
in a fair and honest manner. Accordingly, it will be rec-
ommended that the complaint herein be dismissed in its
entirety.
CONCLUSIONS OF LAW'
1. United Steelworkers of America, Local No. 3029,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
2. In refusing to take a grievance on behalf of Robert
Byer through the arbitration process, the Union did not
violate Section 8(b)(1)(A) of the Act.
[Recommended Order for dismissal omitted from pub-
lication.]
X81q