United Food & Commercial Workers

National Labor Relations Board - Board Decisions

Jun 15, 1998

325 N.L.R.B. 908 (N.L.R.B. 1998)

908
325 NLRB No. 167
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
1 Certain errors in the transcript have been noted and corrected.
2 At the outset of the hearing, I rejected Respondent Employer’s
motion to defer this dispute to arbitration. The complaint alleges a
violation of Sec. 8(a)(4), which is intertwined with the other allega-
tions in that pleading. The Board will not defer alleged violations
of Sec. 8(a)(4) to arbitration in order that it may protect the integrity
of the statutory rights granted employees under the Act. Wabeek
Country Club, 301 NLRB 694 fn. 1, 699 (1991).
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
United Food and Commercial Workers, Local 1776,
AFL–CIO and Elizabeth Ann Murphy
United Industrial, Service, Transportation, Profes-
sional and Government Workers of North
America, of the Seafarers International Union
of North America, Atlantic, Gulf, Lakes and
Inland Waters District, AFL–CIO and Eliza-
beth Ann Murphy. Cases 4–CA–25215 and 4–
CB–7752
June 15, 1998
DECISION AND ORDER
BY MEMBERS FOX, HURTGEN, AND BRAME
On February 3, 1998, Administrative Law Judge Mi-
chael O. Miller issued the attached bench decision. The
General Counsel filed exceptions and a supporting
brief, in which the Charging Party joined. Each of the
Respondents filed a brief in response.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Bruce G. Conley, Esq., for the General Counsel.
Laurence M. Goodman, Esq. and Deborah R. Willig, Esq.
(Willig, Williams & Davidson), for the Respondent Em-
ployer.
Stanford Dubin, Esq., for the Respondent Union.
Frank Finch III, Esq., for the Charging Party.
BENCH DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was tried in Philadelphia, Pennsylvania, on January 14
and 15, 1998, based on a charge filed by Elizabeth Ann Mur-
phy, an individual, on August 23, 1996, as thereafter amend-
ed, and a complaint which issued on March 31, 1997, as
amended at hearing. The amended complaint alleges that
United Food and Commercial Workers, Local 1776, AFL–
CIO (Respondent Employer) violated Section 8(a)(1), (3),
and (4), and United Industrial, Service, Transportation, Pro-
fessional and Government Workers of North America, of the
Seafarers International Union of North America, Atlantic,
Gulf, Lakes and Inland Waters District, AFL–CIO (Respond-
ent Union) violated Section 8(b)(1)(A) by conditioning pay
raises for Murphy on her retirement, threatening to revoke
pay raises unless she retired, and revoking those raises on
her failure to do so because of her union and other protected
activities and because she had filed charges and given testi-
mony under the Act. The answers timely filed by both Re-
spondents denied the commission of any unfair labor prac-
tices. All parties were afforded the opportunity, after all evi-
dence had been received, to present oral arguments as to the
factual and legal arguments raised by the complaint.
Based on my review of the evidence, observations of the
witnesses and their demeanor, and consideration of the par-
ties’ oral arguments, I issued a bench decision at the close
of the hearing. In that decision, which I certify to have been
accurately reproduced at pages 293 through 301 of the tran-
script, attached as ‘‘Appendix A,’’1 I found that Respondent
Employer had not violated Section 8(a)(1), (3), or (4),2 and
that Respondent Union had not violated Section 8(b)(1)(A)
by agreeing to provisions which granted Murphy wage in-
creases that were different from those granted to other em-
ployees and were conditioned on her retirement approxi-
mately 2 years from the date of the agreement. I also found
that Respondent Employer had not violated the Act by advis-
ing Murphy that if she did not retire her wage increases
would be revoked or by revoking those increases when she
did not retire.
CONCLUSION OF LAW
Based on the entire record, I find that Respondent Em-
ployer is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act and that Re-
spondent Union is a labor organization within the meaning
of Section 2(5) of the Act. I further find that the Respond-
ents have not violated the Act in any manner alleged in the
complaint as amended.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The complaint is dismissed.
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909FOOD & COMMERCIAL WORKERS LOCAL 1776
APPENDIX A
BENCH DECISION
293
JUDGE MILLER: On the Record. This is a bench decision
in the above-captioned case. Based on the testimony I’ve
heard over the last day and a half, my observation of the wit-
nesses and their demeanor, and the oral arguments presented
by all counsel, I find the following.
Complaint alleges and both Respondents admit the facts
which establish and I find Respondent Employer is an Em-
ployer engaged in commerce within the meaning of Section
2(2),(6), and (7) of the Act, and Respondent Union is a labor
organization within the meaning of Section 2(5) of the Act.
I find the following to be the relevant facts herein. Eliza-
beth Ann Murphy (hereinafter called ‘‘Murphy’’) has been a
clerical employee of Respondent Employer and a member of
294
the clerical bargaining unit represented by Respondent Union
since 1967. There was no question but that Murphy has over
the years engaged in excessive—excuse me—extensive pro-
tected activity.
She was the charging party in a 1984 Board case filed in
1981 finding that the Employer had discriminatorily threat-
ened, warned, forced her to undergo a psychiatric exam, and
discharged for the apprisal of her leadership activities in sup-
port of a 1981 strike. In a word, in that case, she had been
treated shabbily. That matter was not finally resolved until
1993, although she was reinstated in 1986 or 1987.
She was also, of course, the party involved in the back pay
proceeding arising out of that case which was extensively
litigated for years thereafter. In the second Board decision in
the back pay case, she was entitled to more than $100,000
in back pay and other losses.
Since her successful prosecution of those charges and her
return to work, she has filed numerous NLRB charges and
charges with other agencies against both her Employer, and
in some cases, against her collective bargaining representa-
tive for whom she was also the Union steward. Until this
present set of charges, however, her prior charges had all
been dismissed and the dismissals upheld by the General
Counsel in Washington.
295
After her return to work for Respondent Employer, Mur-
phy was the highest paid employee in what was basically an
entry level job. Because of her wage rate and in order to not
increase the rate for that particular job, the Employer and the
Union agreed in three successive collective bargaining agree-
ments that rather than receive wage increases paid to other
employees, she would receive equivalent amounts in annual
bonuses paid to her each year
This gave her the advantage of receiving the money in a
lump sum up front at the beginning of each contract year.
It was, however, to her disadvantage in that the pension to
which she would otherwise be entitled was based on a per-
centage of her high four years of salaries not including such
bonuses. The bonus arrangement was agreed to in collective
bargaining and has never been found by the Board as dis-
criminatory or in breach of Respondent Union’s obligations
to her under their duty of fair representation.
I note that she was reinstated to the same job, essentially
the same job she held before her discharge. I also note that
although the contract in each term provided that she would
receive bonuses rather than wage increases, it did not refer
to her by name but by category of pay level. And in fact,
in some cases, particularly in the last few years, she did re-
ceive some of the wage increases.
In 1996, at or just before the beginning of
296
negotiations, Ms. Murphy approached her Employer, particu-
larly Mr. Wooden, and ask that she receive wage increases
rather than bonuses specifically because this would increase
her retirement benefits, and she planned to retire in two
years. She was told to put that request in writing, and she
did so. She was also told quite appropriately that this was
a matter for collective bargaining.
She wrote on her request expressing again her plan to re-
tire in about two years. During collective bargaining I find
with Murphy present as one of the Union’s bargaining com-
mittee, the Employer proposed that all of the employees get
a $25 per week raise each of the three years except for Mrs.
Murphy. I find that for Mrs. Murphy it proposed in lieu of
the bonuses which had been the practice to give her wage
increases in each of the first two years with the understand-
ing that she would be retiring on December 31, 1997. This
was agreed to and ratified.
I find it was a valid contract. And so finding, I credit Ms.
Schwartz and Mr. Wooden whose recollections of the events
I find to be superior to those of Mrs. Murphy. I note that
Ms. Coffin only testified that she did not recall such discus-
sions. She did not deny that such discussions occurred, and
in fact, Ms. Coffin signed the memorandum of understanding
after reading it which embodied these terms.
297
I find insufficient evidence on this record to discredit the
notes of either Ms. Schwartz or Mr. Scadaro concerning the
negotiations.
When the date of the anticipated retirement approached,
Respondent Employer was advised—excuse me—Respondent
Employer advised Murphy that if she did not retire, the wage
increases given in 1996 and 1997 would be revoked. They
were, in fact, revoked when she did not retire. She has con-
tinued to work at the weekly salary she had been paid before
those wage increases in the 1996 contract. This would be a
very different case, I find, if they had insisted upon her re-
tirement and not allowed her to continue to work.
I’ve analyzed this case under the Wright Line [251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 393 (1983)] mode of analysis. I find that there is
Union and other protected activity, however, much of it is
remote in time. Some of it is more recent. There was cer-
tainly extensive animus reflected in the original case, but I
note that the individuals involved in that case who displayed
that animus were not involved in any way in the actions in-
volved in this case or allegedly—this case.
For the purposes of this discussion, I’m willing to assume
that the persons with whom Ms. Murphy dealt, her superiors,
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910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
may have been relieved to learn that she planned to retire.
That, as I have found in prior cases,
298
particularly Jordan Marsh Stores Corp., 317 NLRB 460, 476
(1995), is not a basis for finding animus or finding conduct
violation. I cannot find anything in this record that reveals
the sort of animus which might establish a willingness or a
proclivity to violate the Act with respect to her or force her
to retire or otherwise discriminate against her.
Was she isolated in her work? Yes. Was that the result of
a Union activity? I cannot find that. It is not proven that this
action was taken or that she was isolated because of her
Union activities. The record established she lacked the skills
to do the work in Morristown, and the Employer kept her
in a job at a higher rate of pay than the job otherwise called
for at a site that the Employer had reason to continue in op-
eration.
I note that neither the isolation nor the bonus arrangement
was argued or found to be a denial in—of the back pay case,
and has never been found to be a violation to this day. Did
the Employer do an end runaround Ms. Murphy in having
Coffin sign the memorandum of understanding? No evidence
establishes that it did. It was logical to have Coffin sign that
memorandum of understanding because she was at the facil-
ity where Schwartz was when she prepared it, and that un-
derstanding was shown to Ms. Murphy shortly thereafter.
Their failure to include Ms. Murphy on the telephone
299
list, that’s questionable, but not necessarily animus. There’s
no probative evidence of discrimination regarding the tele-
phone, the denial of a telephone at her desk alluded to by
General Counsel in his closing arguments. There is no evi-
dence that any of that is discriminatory. I also find no; ani-
mus in the dispute over the silver anniversary pay raise. I
find that Ms. Murphy was simply wrong in her belief that
she was entitled to it, and Mr. Wooden’s responses to her
did not reflect any animus. Rather, her letter to him reflects
a hostility on her part.
Could the Employer have interpreted her request dif-
ferently to mean something other than a December 31, 1997
retirement? Probably. Was it unreasonable for them to inter-
pret it that way? No. Frankly, I’d be a little bit more com-
fortable if the raise had been continued through the begin-
ning of March which is another interpretation that could have
been given to her request, but I don’t find the failure to do
so to be evidence of animus or discriminatory.
The insistence upon maintaining the essence of paragraph
4 of the memorandum of understanding of merely eliminat-
ing her name from the contract seems to be consistent with
the prior agreements. There raises some questions in mind.
It is a little bit suspicious, but the memorandum of under-
standing was consistent with what I find to have been agreed
to at the bargaining table and not
300
subject to being revised at the stage that the parties had al-
ready agreed to the terms of the contract.
I find no discrimination in refusing to strike that paragraph
even if that was what she really wanted. In fact, I think that
would have left her hanging in limbo with either no bonus
and no raise, or with a raise to which the parties never in-
tended to agree. Therefore, I find there is no animus such as
would support a finding of violation in this case. More sig-
nificantly, I find that there was no adverse action taken
against Ms. Murphy, even though I’m sure she believes that
there was.
She asked for a change in how she’s going to be com-
pensated to accommodate her plans to retire. The Employer
proposed a reasonable accommodation because of those stat-
ed intentions, and her bargaining representative agreed to it.
This action was taken—excuse me. The action taken to re-
voke the wage increase was not retaliatory when she decided
not to retire, but was consistent with the terms of the con-
tract. To the—I find a meeting of the minds between the
Union and the Employer on that contract. The employees
may have misunderstood or perhaps changed their minds, but
they’re not in a position to question that or raise the question
of meeting of the minds. The parties here are the Employer
and the Union.
Finding neither animus nor adverse action, I find no
301
violation of Section 8(a)(3) and (1) of the Act in the revoca-
tion of the wage increase or statements that were intended
to do so. It was not unlawful to take the action, therefore,
it was not unlawful to tell her that they were going to take
the action.
I find no breach in the duty of fair representation in nego-
tiating this agreement on the behalf of the entire unit. The
actions of the Union in negotiating that agreement I find,
based on a reasonable interpretation of her wishes. I also find
that I cannot make any findings concerning any other statutes
that’s outside my authority.
Accordingly, I recommend dismissal of all of the allega-
tions of the Complaint as amended. In due course, I will cer-
tify the record and this decision to the Board with such
changes and corrections I deem necessary. A written decision
and order encompassing that and regarding this spoken deci-
sion will issue at that time, and it’s from that time that the
time of filing exceptions will run. That concludes my bench
decision. Thank you.
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