Teamsters, Local Union No. 279

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1392 (N.L.R.B. 1975)

1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters, Local Union No. 279, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America
(S.F. Kennedy New Products , Inc.) and Kenneth
Lee Noblet. Case 14-CB-2898
June 30, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND KENNEDY
On February 24, 1975, Administrative Law Judge
Paul E. Weil issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge.'
We are in agreement with the Administrative Law
Judge that Respondent did not violate Section
8(b)(1)(A) of the Act. Austin's threat to delay
processing Noblet's grievance because he filed an
unfair labor practice charge would ordinarily be
considered coercive and a violation of Section
8(b)(1)(A) of the Act. In this case, however, its
coercive effect was dispelled almost immediately by
the business agent's request that the Employer
process the grievance along with those of other
employees. Accordingly, we shall dismiss the com-
plaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, hereinafter called Respondent, the General
Counsel of the National Labor Relations Board by the
Acting Regional Director for Region 14 issued a complaint
on December 18, alleging that Respondent had engaged in,
and was engaging in, unfair labor practices affecting
commerce within the meaning of Section 8(b)(1)(A) and
Section 2(6) and (7) of the National Labor Relations Act,
as amended, hereinafter called the Act. Copies of the
charge, complaint and notice of hearing were duly served
on the parties to this proceeding. The complaint alleges in
substance that on or about November 26, Respondent
failed and refused to process a grievance of Noblet because
he filed an unfair labor practice charge against Respon-
dent. On January 2, 1975, the complaint was amended by
adding an additional allegation that on or about November
26 a business representative of Respondent told Noblet
that, he would not process Noblet's grievance because
Noblet had filed a charge against the Union with the Labor
Board. Respondent duly answered both the complaint and
the amendment thereto denying the allegations of unfair
labor practice but admitting other allegations.
On the issues thus joined, the matter came on for hearing
before me at Taylorville, Illinois , on January 20, 1975. All
parties were present and the Respondent and General
Counsel were represented by counsel. All parties had an
opportunity to call and examine witnesses and to adduce
relevant material evidence, to argue at the close of the
hearing, and to file briefs. At the close of the hearing
Respondent and General Counsel argued on the record.
The General Counsel and Respondent filed briefs.
On the entire record in this matter and in consideration
of the oral arguments and briefs, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
S. F. Kennedy New Products , Inc., hereinafter called
the Employer , is a Delaware corporation engaged, in the
State of Illinois , in the manufacture , sale and distribution
of grain bins, aeration and drying equipment and related
component parts . The Employer annually sells and
distributes products valued in excess of $50,000 which are
shipped from its Illinois facility to points located outside
the State of Illinois and is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
1 The Administrative Law Judge inadvertently recommended that "the
charge be dismissed in its entirety." We hereby correct that inadvertence by
our order that the "complaint" be dismissed in its entirety
DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Administrative Law Judge: On a charge
filed November 251 by Kenneth Lee Noblet, hereinafter
called Noblet, and duly served on Teamsters Local Union
No. 279, affiliated with International Brotherhood of
II. THE STATUS OF RESPONDENT AS A LABOR
ORGANIZATION
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
The Charging Party and four other employees were
discharged on October 24, 1974, and all filed grievances the
same day with the Union, their collective-bargaining
representative. The Charging Party understood that the
1 All dates hereinafter are in the year 1974 unless otherwise specified.
218 NLRB No. 213
TEAMSTERS, LOCAL UNION NO. 279 1393
contract provided that grievances must be disposed of
within 30 days. On November 14 he telephoned, collect,
the business agent of the Union, Charles Austin and asked
what was happening with his grievance. Austin informed
the Charging Party that the Company was dragging its feet
in answering the grievance but that he was taking care of
the matter and would communicate with the Charging
Party.
On November 21 the Charging Party, still having heard
nothing, again called Austin collect. On this occasion
Austin informed Noblet that he would receive a registered
letter in the mail stating that a grievance meeting had been
arranged for November 26, 1974. Noblet again complained
that he understood that grievances had to be taken care of
within 30 days. On November 25 Noblet filed the instant
charge with the Regional Director of Region 14 in St.
Louis.
The following day, November 26, the Charging Party
went to the grievance meeting. His grievance was the first
of the five to be discussed. The Union, through Mr. Austin,
announced that the Union's position was as spelled out in
the Charging Party's grievance and asked for the Employ-
er's position. The Employer demurred stating that they had
not had time to formulate a position and asking for an
extension of time to do so. At this point a representative of
the Employer who had stepped out of the room, reentered
with a copy of the charge which had been served upon the
Employer. He handed it to Austin and asked whether the
grievance was going to be handled by the Union or the
Labor Board. Austin read the charge. This was the first
that he had seen it . He asked the Employer representatives
to leave the room and asked Noblet why he had filed a
charge. Noblet, according to his testimony, answered
"Well I had to go to somebody for help. I wasn't getting
any from you." Austin's reply, which is the central issue in
this case and forms the gravamen of the alleged violation,
is a matter of sharp conflict in the testimony. Noblet
testified that Austin called him a foul name and said that
he was going to set aside Noblet's grievance until the
charges with the Labor Board were settled and after the
Employer returned to the room told the Employer's
representatives that he did not want any more action taken
until charges with the Labor Board were settled.
Steven Basham, one of the Employer representatives
called as a witness by the General Counsel, testified that on
his return to the room Austin said that he would like to
hold Noblet's grievance in abeyance until he had checked
further and could see what he should do.
Austin testified that he did not tell Noblet that he would
not process his grievance and that he told the Employer
representatives that he would like for them to agree to hold
the grievance in abeyance until he had an opportunity to
talk with the representative from the Labor Board.
James Hord, as assistant business agent who was present,
testified that there was a heated exchange but that Austin
did not tell Noblet that he would not process Noblet's
grievance because Noblet had filed a charge against the
Union with the Labor Board, and that Austin did not tell
the Employer representatives that he would not process
Noblet's grievance.
Dukes, the other Employer representative, testified that
after he returned to the room Austin asked that the
Company hold Noblet's grievance in abeyance until he
checked further to find out the procedure.
All of the witnesses agreed that after the other grievances
had been discussed, with the Company in each case taking
the position that they were not at that time prepared to
answer the grievance, Austin asked the Company repre-
sentatives to prepare their position on all of the grievances,
including Noblet's, by a certain date and they would
resume the discussion.
About December 18 Noblet received a registered letter
from the Union stating that his grievance had been referred
for arbitration. At the time of the hearing an arbitrator had
been selected and the parties were waiting to hear from the
arbitrator with regard to a hearing date.
DISCUSSION AND CONCLUSIONS
It is clear that at no time has the Union faltered in its
presentation of Noblet 's grievance . It has followed precise-
ly the same course as those filed by his fellow workers.
There is no issue here of the violation of Section 8(b)(2) in
the Union's failing to process the grievance . The only
possible violation is to be found in the testimony of Noblet
that Austin told him that he would not process the
grievance until the Labor Board case had been resolved. It
is clear that there was a heated exchange between Austin
and Noblet in the absence of the Employer representatives.
Neither Austin nor Hord , his assistant , testified as to what
Austin did say to Noblet but both testified that he did not
say he would not process the grievance . I find that, as
Noblet testified , Austin said that he would hold Noblet's
grievance in abeyance until the Labor Board had settled it.
Thereafter, however, in the Employer's presence Austin
asked the Employer to withhold action on the grievance
until he had consulted either with the Labor Board or with
counsel and ended the meeting by asking the Employer to
furnish its answer to Noblet 's grievance along with the
others . I agree with Attorney Cavanagh that Austin could
not have been expected to know precisely what to do about
the grievance when he was informed of the filing of the
charge , and used good judgment in advising the Employer
that he wanted to check with his counsel or with the Labor
Board . The General Counsel on the other hand argues that
under the rule cited by the Board in Service Employees
International Union, Local 50, AFL-CIO (Aetna Window
Cleaning Co.), 204 NLRB 696 (1973 ), the statement by
Austin to Noblet that he would not proceed on his
grievance until the unfair labor practice charge was
decided violated Section 8 (b)(1)(A) of the Act.
In the Aetna case the Union was held to have violated
8(b)(1)(A) by telling an employee that the Union's lawyer
had advised it not to hold a steward 's election until the
employee dropped his charges with the National Labor
Relations Board and continued in this refusal for almost a
month. I find a distinction between the facts of the cited
case and the instant case . In the instant case Austin's
immediate reaction was that he would hold up the action
on the grievance until the Labor Board matter was settled
and within a few minutes Austin announced to the
Employer that he would hold the grievance in abeyance
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until he had had an opportunity to consult with the Labor
Board. By the end of the meeting he had requested the
Employer to come forward with its answer and within a
month the matter had proceeded to the selection of an
arbitrator. No demand was made that Noblet withdraw the
charge and, to the extent that Noblet was coerced or
restrained, by the end of the meeting he had good reason to
realize that the Union was going to proceed with his
grievance . Accordingly, I find no violation in the instant
set of facts. If what Austin said is construed as violative I
believe it is of such minimal coercive effect that no order is
warranted. If the General Counsel is seeking a remedial
order to Austin that he may not hold up grievances
because charges are filed with the Labor Board it would
seem to be unnecessary, for Austin obviously had no
intention of doing so by the time he cooled off, in a few
minutes. If the remedial order sought by the General
Counsel is that Austin should not lose his temper and
speak unwisely, under the provocation displayed in this
case I fear that such an order would be useless. I
recommend that the charge be dismissed in its entirety.