United Steelworkers of America, AFL-CIO-CLC, District No. 38 (American Bridge Division of United States Steel Corporation)

National Labor Relations Board - Board Decisions

May 14, 1982

261 N.L.R.B. 950 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Steelworkers of America, AFL-CIO-CLC,
District No. 38 (American Bridge Division of
United States Steel Corporation) and Harry A.
Sivley, Jr. Case 21-CB-7544
May 14, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS FANNING AND HUNTER
On December 18, 1981, Administrative Law
Judge Michael D. Stevenson issued the attached
Decision in this proceeding. Thereafter, the Gener-
al Counsel filed exceptions and a supporting brief,
and the Respondent filed an answering brief to the
General Counsel's exceptions.
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 2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby
is, dismissed in its entirety.
The General Counsel has excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear prepolnderance of all of the relevant
evidence convinces us that the resolutions are incorrect Standard Dry
Wall Products, Inc., 91 NL RB 544 (1950), enifd. 18 F. 2d 362 (3d Cir
1951). We have carefully examined the record and fitnd no basis fior re-
versing his findings.
We note that the Administrative I.aw Judge inadvertently referred to
September 21, 1980, rather than January 21, 1980, as the date that Charg-
ing Party Harry A Sivley, Jr, claimed he was given to decide whether
he would accept a position as bundler This inadvertent error does not
affect our agreement with the Administrative L aw Judge's cosnclusisons
2 We agree with the Administrative Law Judge's conclusion that the
Respondent did not violate Sec 8(b)( )(A) of the Act by refusing to
prxcess the grievance of Charging Party Sivley to arbitration In so
doing, however, we find it unnecessary to rely on the Administrative
Law Judge's lengthy discussion and analysis of the merits iof Sivley's
grievance at sec. ll1B, pars. 12 15, of his Decision as such analysis is not
essential to the resolution of the issue before the Board in this case See,
e.g., Glass Bottle Blowers Association of the United States and Canada,
AFL CIO, Local No. 106 (Owens-Illinois, Inc.), 240 NIRB 324 (1979),
which the Administrative Law Judge himself correctly cited
DECISION
STATEMENTI OF THE CASE
MICHAF.I D. STEVENSON, Administrative Law Judge:
This case was heard before me at Los Angeles, Califor-
nia, on September 15 and 16, 1981,1 pursuant to a com-
plaint issued by the Regional Director for Region 21 on
December 24, which is based on a charge filed by Harry
A. Sivley, Jr. (herein called the Charging Party or some-
times Sivley), on November 10. The complaint alleges
that United Steelworkers of America, AFL-CIO-CLC,
District No. 38 (herein called Respondent), has engaged
in certain violations of Section 8(b)(1)(A) of the National
Labor Relations Act, as amended (herein called the Act).
Issue
The issue presented is whether Respondent's failure to
process Sivley's grievance to arbitration was based on
racial factors, personal animosity, or preference for an-
other employee who would have been adversely affected
by Sivley winning his grievance.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel and Respondent.
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINI)INGS OF FACT
I. THEi IMPI.OYER'S BUSINESS
Respondent admits that the Employer, American
Bridge Division of United States Steel Corporation, is a
Delaware corporation engaged in the business of fabri-
cating structural steel and that, until on or about March
15, the Employer had a facility located in City of Com-
merce, California. It further admits that during the past
year, in the course and conduct of the Employer's busi-
ness, the Employer sold and shipped goods and products
valued in excess of $50,000 to customers outside the
State of California. Accordingly, Respondent admits, and
I find, that the Employer is an employer engaged in
commerce and in a business affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
ii. IHE IABOR ORGANIZATION INVOlVEkD
Respondent admits, and I find, that it is a labor organi-
zation within the meaning of Section 2(5) of the Act.
111. THE AlI.IEGED UNFAIR l.ABOR PRACTICES
A. The Facts
Prior to April 1979, the Employer had operated its
plant in Commerce, near Los Angeles, for several years.
Respondent was the certified bargaining representative
of the Employer's production and maintenance employ-
' All dates herein refer to 1980 unless otherwise indicated
261 NLRB No. 137
950
STEELWORKERS, DISTRICT 38
ees numbering in 1979 about 600 employees. The most
recent collective-bargaining agreement between the par-
ties was effective between August 1, 1977, and July 31.
(G.C. Exh. 2.) In addition to the collective-bargaining
agreement, the Employer and Respondent were parties
to a memorandum of understandings and special provi-
sions applicable to the Los Angeles plant, which is a
local memorandum to the national agreement. (G.C.
Exh. 3.) Section 8 of that document makes reference to
section X of a 1962 agreement between the parties, as
amended by an agreement of July 11, 1963. (G.C. Exh.
4.)
On or about April 24, 1979, the Employer announced
that it would close its Los Angeles (Commerce) facility,
gradually laying off employees as operations wound
down. By January, the unit had diminished to approxi-
mately 100 employees. The plant actually closed on or
about March 15, when the final group of employees was
released.
One of the employees affected by the plant closure
was Charging Party Harry A. Sivley, a member of the
unit referred to above. Hired in April 1956, Sivley was
working as a general inspector in January. Since 1964,
Sivley was president of Local 2058, chartered by Re-
spondent to represent the employees at the Employer's
City of Commerce facility. In addition to being president
of the Local, Sivley was, between 1970 and 1980, a
member of the plant's general grievance committee, and
for part of the time was chairman of that committee. In
his role as grievance committeeman, Sivley was responsi-
ble for representing grievants and presenting Respond-
ent's position up through the third step of the four-step
grievance procedure. For the fourth step and for subse-
quent arbitration, where applicable, Respondent's repre-
sentative since January 1968 was Chris Gellepis, whose
formal title was staff representative. Gellepis, on behalf
of Respondent, had sole authority to decide which cases,
denied through the fourth step, should be taken to arbi-
tration.
A witness at the hearing, Gellepis credibly testified
that most cases denied at the fourth step are not taken to
arbitration. Frequently, however, he will file notice of
Respondent's intent to take a case to arbitration. Then,
after his full review on the merits, the case will be with-
drawn. This procedure is necessary because of time con-
straints, 30 calendar days, between denial of a grievance
at the fourth step and the requirement for filing the ap-
propriate notice of intent to take a case to arbitration.
Since Gellepis services 13-14 plants, he is not always
able to make an informed decision before the time limit
expires.
Another witness at the hearing was Robert Petris, the
immediate superior of Gellepis. For 5 years director of
District 38, Petris described himself as a personal friend
of Sivley. Under Respondent's established procedures,
any grievant dissatisfied with Gellepis' decision, either in
refusing to take a case to arbitration or in withdrawing a
case from arbitration before decision, had a right to
appeal to Petris, who had the power to overrule Gelle-
pis. According to Petris, there are no written guidelines
as such as to when a case should be taken to arbitration.
However, in deciding this question for individual cases,
Gellepis should become familiar with the position of the
parties as developed in the first four steps of the griev-
ance procedure. Then he should research the precedents
established by prior arbitration hearings, being careful
not to take a nonmeritorious case to arbitration, thereby
setting a bad precedent. In terms of expense, it costs Re-
spondent about $600 to take an average case to arbitra-
tion, not including the transcript and lost time for wit-
nesses.
The particular facts giving rise to the instant case
began on or about January 5, a Saturday. Sivley was one
of two employees then working as a general inspector, a
classification 15 job. The other employee so employed
was Benny Perez, recording secretary for the Local.
Sometime on the day in question, Robert Caulfield, plant
superintendent, called Billy Pollard, superintendent of
the Company's employee relations for the past 11 years.
Caulfield told Pollard that the work in the plant had de-
clined so that only one general inspector was required.
Since both Sivley and Perez had preferential or supersen-
iority under the agreement based on their status as offi-
cers of the Local, 2 Caulfield requested advice on how to
handle the matter. Since Pollard had not faced the issue
before either, he consulted with his supervisors at com-
pany headquarters in Pittsburgh, Pennsylvania. He sug-
gested to them that, since both Sivley and Perez had su-
perseniority, the Company should rely on natural, i.e.,
plant, seniority. After consultation in Pittsburgh, Pol-
lard's supervisors called him back and agreed with his
suggestion. Perez was senior to Sivley in the plant by
several years. Pollard notified Caulfield, who notified
Sivley that he was being demoted from general inspector
to bundler, a classification 5 job.3 Caulfield told Sivley
Sec 1I 1 ("Seniorit Status of Griesance Committeemen and Locjal
Union Officers") reads as follows:
When management decides that the work force in any seniority
unit in any plant is to be reduced, the member of the plant grievance
committee, if any, in that unit shall. be retained at work and such
hours per week as may be scheduled in the department in swhich he
is employed, provided he can perform the work of the job to which
he must be demoted The extent of this provision is to retain in
actis e employment the plant grievance committeemen for the pur-
pose of continuity in the administration of the labor contract in the
interest of the employees so long as a work force is at work, provide
that no grievance committeeman shall be retained in employment
unless work which he can perform is available to him in the plant
area which he represents on the grievance committee.
This provision shall apply also to employees who hold any of the
following offices in the local union or unions in which the employees
of the plant are members: President; Vice President, Recording Sec-
retary; Financial Secretary and Treasurer
' Sivley testified that he was given this notice during a heated dis-
agreement between himself and Caufield over another matter involving
union business. The other matter is irrelevant except to the extent it
could indicate arbitrary action by the Employer, not a party to this pro-
ceeding. Caulfield never testified. However, I credit Pollard as to his
prior conversation with Caulfield and therefore find no need to decide
whether Caulfield conveyed to Sivley notice of the latter's demotion in
the context described by Sivley.
However. I must discredit a portion of Sivley's testimony regarding a
subsequent conversation with Caulfield: contrary to Sivley's testimony, I
find that he argued only that he had seniority rights over Perez to keep
his present position, but I do not credit Sivley's testimony that at this
time he raised the issue of reversion rights to a job higher than bundler
When Sivley filed his grievance on January 8, there was no mention of
reversion rights, nor is there evidence that he mentioned his theory at the
Continued
951
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to report for duty as a bundler on January 7, the follow-
ing Monday, and that if he had any further questions he
could call Pollard.
Sivley left work that day and, according to his testi-
mony, that evening he had a conversation with his wife,
who was employed as office secretary and bookkeeper
for the Local. Mrs. Sivley did not testify, but her hus-
band testified that she asked him to begin reviewing fi-
nancial records of the Union and preparing certain re-
ports of the Union which were required to be filed with
the Federal Government due to the plant closure. Sivley
allegedly agreed to this request and, ultimately, worked
on union business for the next 2 weeks. Part of the work
he performed was the responsibility of Ted Moreno, fi-
nancial secretary for the Local. Sivley stated that he was
asked by Moreno to do this work because he, Sivley,
was better at it than Moreno and because Moreno had
other matters to attend to.4
On Monday, January 7, Sivley did not report for work
as a bundler. Instead, he called the plant guard and re-
ported that he would be out on union business. Sivley
did not tell the guard when he would be returning to
work nor say anything about the bundler job. According
to Sivley, based on custom and practice, it was not re-
quired for the union official to state when he would be
returning to the job.'
Sometime in the late morning on January 7, Sivley
called Pollard and asked for an explanation of his demo-
tion. Sivley explained that under the local seniority
agreement (G.C. Exh. 4) he would be unable to serve as
grievance committeeman if he left the plant. Pollard ex-
plained that Sivley was not leaving the plant, but was
only being demoted to bundler. Sivley ended the conver-
sation by saying, "Okay, I will hear from you."
On January 8, Sivley, accompanied by Fred Martin, a
member of the Local and, like Sivley, a grievance com-
mitteeman, held a meeting with Caulfield and Pollard.
There is a conflict as to what was said. All agree that
initially each side generally reiterated its position: Sivley
argued that he should be retained as general inspector,
and Pollard and Caulfield contended that he was re-
quired to take the bundler job or go on layoff. The wit-
nesses are in conflict as to the later conversation. I re-
first-step grievance hearing on January 8 or at the second-step grievance
hearing on January 21. This theory was never advanced until the third-
step hearing on February 14.
4 Moreno testified at the hearing, but no one raised this matter with
him. Contrary to Sivley's testimony, I have substantial doubts that his ah-
sence from his employment for 2 weeks was unrelated to his demotion I
note that Sivley had time while being paid by the Union to work on
union business to call Pollard on January 7 to discuss his demotion: he
also had time on January 8 to meet with Pollard and have a first-step
grievance hearing. I find that Sivley was absent from the plant between
January 7 and January 20 primarily as strategy to avoid taking the job as
bundler. During the 2-week period, Sivley was paid by the Union at his
inspector rate of pay.
5 Again, I do not believe Sivley on this point. The Union had several
officers and committeemen. It is impossible to believe that any or all of
them could call on a morning they were required to report for work,
state without more that they would not be in due to union business, and
never inform management when they would be returning. In Sivley's
case, he was scheduled to report to a new position, where, according to
Pollard's credible testimony, an incumbent bundler would have had to be
bumped to make way for Sivley. These additional facts make it even
more improbable that Sivley called in on January 7 solely to report that
he would be off from work on union business.
solve the credibility issue as follows: I find that Sivley
stated that he would refuse to accept the bundler job.
Despite Sivley's and Martin's testimony that there was
an "understanding" or "agreement" to allow Sivley time
to think it over, I find there was no such agreement. 6 If
there had been, the parties would have had to discuss
Sivley's status during the interim period. No such discus-
sion occurred and there is no evidence that Pollard and
Caulfield knew that Sivley was off from work on union
business as of January 7. Moreover, since an incumbent
bundler would have to be bumped to make way for
Sivley, this issue would have to be discussed and re-
solved. No such evidence was presented. Not only was
there no agreement reached, but, also, Sivley could not
reasonably have believed that such an agreement was
reached.
What did happen was that, subsequent to the meeting,
Sivley filed a formal grievance, for which the prior
meeting constituted a first-step meeting. The grievance
reads as follows:
Management is in violation of local seniority agree-
ment, Section 10, Exhibit A and B, Sub-section G,
Marginal Para 122, 123 and 125-A, by denying
Grievant gainfull [sic] employment within the plant,
in his job classification(s). Reinstate Grievant and
make whole for all monies lost plus any and all
fringe benefits that will accrue during the term of
this violation.
/s/ Harry A. Sivley, Jr. 40887
Employee's signature
/s/ Fred Martin
Committeeman's signature
/s/ Robert Caulfield
Foreman's signature [G.C. Exh. 5.]
Meanwhile, in light of Sivley's refusal to take the
bundler job, Pollard returned to his office and processed
a layoff form through the accounting department. Com-
pany records (personnel summary) indicate that as of
January 8 Sivley was on layoff. (Resp. Exh. 4.) The
entry on company business records further contradicts
Sivley's claim that he was given until September 21 to
decide whether to accept the bundler job and corrobo-
rates Pollard's testimony that no such agreement was
reached.
On January 14, Sivley first discussed his grievance
with Gellepis by telephone. After Sivley explained his
theory, Gellepis responded, "Well, maybe you had better
s Martin was not completely a disinterested witness. Prior to January 5
he was demoted from his job along with Moreno. Sivley went to Pollard
and convinced him that Martin and Moreno should have new jobs as
bundlers rather than as lower rated helpers. Martin was clearly in sympa-
thy with Sivley's position and supported him through the grievance pro-
cedure. While I do not find that he intentionally misstated facts in his
testimony, I find that his testimony of an understanding with Pollard of
time for Sivley to decide on the bundler job was not based on objective
facts, but rather was the result of wishful thinking and deliberately vague
and unclear statements by Sivley. Since both Sivley and Martin were ex-
perienced union grievance negotiators, they knew what was necessary to
reach a hard agreement with the Company. No such agreement was
present here.
952
STEELWORKERS, DISTRICT 38
take the bundler's job." Meanwhile, Sivley continued to
work on union business until January 18. On or about
that date, he received a letter from the International
Union, removing him and all other officers of the Local
from office due to the pending plant closure. Gellepis
was appointed administrator of the Local with exclusive
power to sign checks and make other decisions regarding
activities of the Local, including within his discretion the
power to reappoint officers. This action by Respondent
was based on the pending plant closure and was unrelat-
ed to Sivley's grievance. It did not indicate any miscon-
duct of Sivley.
On the following Monday, January 21, Sivley reported
to the plant, showed his identification card to the guard,
asked for and received a timecard, and reported to the
foreman of the bundler department. Sivley began to
work as a bundler for a brief period of time until ob-
served by Caulfield, who immediately called Pollard.
Caulfield asked whether Sivley had received permission
to return to work as he was in the plant working. Pol-
lard told Caulfield that Sivley had been laid off as of
January 8 and that he should be brought to Pollard's
office. Sivley went there and was told by Pollard that
the Company considered him to be on layoff, but that, as
long as he was there, Pollard would agree to a second-
step grievance hearing 1 day earlier than originally
agreed to by the parties on January 8. Again the parties
restated their positions and at the conclusion of the meet-
ing the Company again denied the grievance. (G.C. Exh.
5.) Thereafter, both sides submitted their respective sum-
maries of the second-step meeting. The union record pre-
pared and signed by Sivley stated in part:
On January 8, 1980, Management notified the griev-
ant . . . that he was being reassigned to bundler,
and that he could either accept the position or leave
the plant. The grievant refused to accept the assign-
ment. 7
The company record, dated February 1, stated in part,
"The grievant refused the demotion [to bundler] and was
laid off on January 8." (G.C. Exh. 8.)
On or about January 21, after the second-step griev-
ance hearing, Gellepis met with Sivley at the Local's
office. 8 Sivley again restated his position, including that
he would not accept the bundler's job. Gellepis restated
his position that the grievance was without merit. Gelle-
pis, then the administrator of the Union, testified that he
told Sivley:
[Tlhat job belongs to Benny Perez under the con-
tract, and also I did tell that, under the Consent
Contrary to the statement in G C. Exh. 7, Sivley first learned of the
demotion on January 5. Also contrary to a statement in G.C. Exh. 7, pur-
porting to show that an agreement had been reached at the first-step
hearing allowing Sivley until the second-step hearing to decide whether
to take the bundler's job, I have found above that no such agreement was
ever reached and that there was no basis for Sivley reasonably to believe
that such an agreement was reached.
a Gellepis described two meetings the week of January 21, while
Sivley described only one on January 24. While it is immaterial whether
more than one meeting occurred, I find that there were two meetings.
Decree9 it is mandated that plant seniority be used
On or about January 24, a second meeting occurred at
the Local's office. This time Gellepis and Sivley were
joined by Moreno, financial secretary of the Local. Gel-
lepis stated that since Sivley was laid off he could no
longer work as grievance committeeman, so Moreno was
appointed to replace him in that position and Henry
Espinosa was appointed to replace him as grievance
committee chairman. Then Gellepis reappointed Sivley
as president of the Local, although without the power to
sign checks and vouchers. Again the subject of Sivley's
grievance arose and Gellepis reiterated his belief that
Sivley had no case. Gellepis commented that Perez had
him on three counts: seniority, preferential seniority, and
minority status. t At this meeting, in response to Sivley's
question, Gellepis stated that he had not yet decided
who would be attending a union "Sound Off" meeting in
Pittsburgh, Pennsylvania." Later that week, Gellepis
told Sivley that he would not be permitted to go to
Pittsburgh due to the financial condition of the Local
and because the content of the meeting was not that im-
portant. Sivley complained to Petris, Gellepis' superior,
about the refusal to permit the trip. Petris discussed the
matter by telephone with Gellepis, telling him of Sivley's
complaint, but also stating that Gellepis had exclusive
authority to decide who from the Local should attend.
Subsequently, Gellepis did allow Sivley to attend the
meeting because he had decided that officers of another
union facing plant closure should attend. While the con-
dition of the finances of the other local were much
better, Gellepis said he felt that, to be fair, he would
change his mind as to Sivley. He denied any pressure
from Petris.
On February 14, the third-step grievance hearing was
held. At this time, Sivley raised for the first time an issue
regarding reversion rights.t 2 Again the Company denied
the grievance. (G.C. Exhs. 9 and 9a.)
After the third-step meeting, the five-member local
grievance committee held a meeting to discuss Sivley's
grievance. Martin and one other member felt the griev-
9 The consent decree, dated April 12, 1974, binds both the Employer
and Respondent to use plant seniority for all purposes in which there is
an issue regarding layoffs, transfers, promotions, etc. Where it is in con-
flict with the basic agreement, it supersedes it. The purpose of the con-
sent decree is to increase the job retention, promotion, and transfer op-
portunities of minorities
'0 Sivley testified that Gellepis used the expression, "I favor minor-
ities" Gellepis denied using the expression at the heanng, but stated in an
affidavit to a Board agent that he may have used the expression. Moreno,
who testified for the General Counsel, supports Gellepis' testimony on
this point. Thus, I find that Gellepis never said he "favored minonties."
As will he more fully discussed below, even if Gellepis used the expres-
sion, there is overwhelming evidence either that he was merely express-
ing his desire to abide by the consent decree, or that, if stating his per-
sonal view, such did not affect his judgment of the merits of Sivley's
grievance.
I Sivley testified that he was told by Gellepis at this time that he
would definitely not be going. To resolve this credibility problem, I again
turn to Moreno, who supports Gellepis' version. Thus, I credit Gellepis
on this point.
i2 Under this alternative theory, to be further discussed in the "Discus-
sion and Conclusions" of this opinion below, if Sivley were not entitled
to remain as a general inspector, he was entitled to revert to a higher
rated job than bundler
953
DECISIONS OF NATIONAL LABOR REI.ATIONS BO)ARD
ance had merit; the three other members of the commit-
tee felt it lacked merit. Nevertheless, the committee de-
cided unanimously to request Gellepis to appeal the
grievance to the fourth step. Although possessing com-
plete discretion as to which grievances to take to the
fourth step, and having stated his opinion on several oc-
casions that Sivley's grievance lacked merit, Gellepis
took the grievance to the fourth step. (G.C. Exh. 10.)
On or about May 9, Gellepis called a union caucus to
discuss Sivley's grievance and the seven-eight others
scheduled to be heard in a few days. In attendance be-
sides Gellepis and Sivley were the members of the
Local's grievance committee and the other grievants.
Gellepis again restated his opinion that Sivley's griev-
ance lacked merit and also stated that Sivley's case
would be affected by the issue of Sivley's having accept-
ed or refused the bundler's job. Gellepis also restated his
view that Perez was a minority with preferential senior-
ity.
On May 14, the fourth-step grievance hearing was
held at the plant personnel office. Facing Gellepis on
behalf of the union grievants was W. G. Stewart from
the Employer's headquarters in Pittsburgh. Gellepis al-
lowed Sivley to argue his own grievance. Then the
Union met in a caucus and Gellepis told Sivley that the
case would not be going to arbitration, but that Gellepis
would ask the Company to settle the case for $500. :'
When the offer was presented to Stewart, he replied that
he would consider it and reply later.
On June 2, the Company denied Sively's grievance at
the fourth-step meeting. Subsequently, the Company pre-
pared the fourth-step record, including the summary of
the Company's contractual analysis (G.C. Exh. 13) and
the summary of the Union's contractual anaysis (G.C.
Exh. 18.) The Union's analysis was approved by Gellepis
on June 26. Under the terms of the agreement, Gellepis
had 30 days from June 26 in which to file for arbitration
of Sivley's grievance. (G.C. Exh. 2.)
On October 5, 1980, Sivley wrote a letter to Petris
which reads as follows:
Dear Bob:
As of this date, Local Union 2058 Administrator
and International Staff Representative, Chris Gelle-
pis has failed to notify me the status of my Griev-
ance AB-LA 80-2, which was heard in the 4th Step
of grievance procedure during May, 1980.
I have been informed by Bill Pollard, Supt. Per-
sonnel Admin. for American Bridge, that my griev-
ance was not appealed to the board of arbitration
under time limits outlined in Labor Agreement and
that he considers my grievance "closed."
la Sivley denied that Gellepis told him that the case would not be
going to arbitration. I credit Gellepis' testimony here In light of Gelle-
pis' view of Sivley's grievance which he had expressed on several occa-
sions, I believe that it was likely for him to make the statement. Indeed, if
Gellepis had not stated it, Sivley would have asked, just as he had done
regarding the Pittsburgh trip Moreover, both Martin and Moreno were
present at the fourth-step meeting and neither was asked about the matter
by counsel for the General Counsel. For the same reasons, I do not be-
lieve Sivley's testimony that, in early June, he asked Gellepis what he
planned to do about the grievance.
Bob, if this information is correct, then this letter
constitutes an appeal for payment of all wages and
incentive benefits ($3,60).00), auto and phone ex-
penses thru 9-30-80 ($226.50) lost due to the negli-
gence of Mr. Gellepis.
Your friend,
/s/ Harry A. Sivley, Jr.
On October 20, Petris acknowledged receipt of Sivley's
letter and stated that an investigation was being conduct-
ed. (G.C. Exh. 12.) On November 6, Petris wrote a letter
to Sivley which reads as follows:
Dear Harry:
An investigation has been made of your com-
plaint in your letter of October 15. Enclosed is a
copy of Representative Gellepis' report.
I am in accord with his report. If you wish to
discuss this further with me, please call my secre-
tary to schedule a convenient time to come in and
talk to me about the matter.
Sincerely and fraternally,
/s/ Robt. J. Petris
In the October 28 cover letter of the report of Gellepis
sent to Petris and sent by Petris to Sivley, Gellepis states
in part:
(b) Harry Sivley was notified by me repeatedly that
he had "no grievance" and that I was not going to
arbitrate his case. In the presence of the grievance
committee during a caucus in the Fourth Step meet-
ing of May 14, 1980, I declared that I would NOT
arbitrate the Harry Sivley grievance. I told the
Committee that the Inspector job belonged to the
Recording Secretary, Ben Perez, and that Htarry
Sivley had no right to refuse the bundler's job
B. Analysis and Conclusions
I begin by noting that the General Counsel does not
attack Respondent's initial processing of Sivley's griev-
ance under the contractual grievance procedure. The
General Counsel does contend that, since on or about
June 26, Respondent violated the Act by its refusal to
process Sivley's grievance to arbitration (br., p. 13).
However, no violation of the Act could have occurred
prior to on or about July 26 because Respondent had 30
days from June 26 to file its notice for arbitration of Siv-
ley's grievance.
The General Counsel has made a second, more serious,
error reflected in a two-part argument, p. 13 of his brief:
first, that his initial burden was to show that Sivley's
grievance was clearly not frivolous, and, second, that he
satisfied that burden. In my judgment, the General Coun-
sel is wrong on both counts.
In support of his first contention, the General Counsel
cites the Board's holding in The Buffalo Newspaper Guild,
Local 26, American Newspaper Guild, AFL-CIO (Buffalo
Courier-Express, Inc.), 220 NLRB 79 (1975). This case
was distinguished and explained by the Board in the later
954
STEELWORKERS. DISTRICT 38
case of Glass Bottle Blowers Association of the United
States & Canada. AFL-CIO. Local No. 106 (Owens-Illi-
nois., Inc.), 240 NLRB 324 (1979). There, the Board
scolded the Administrative Law Judge for making the
same error made by the General Counsel in the instant
case and stated (at 324):
Examination of a grievance for the limited purpose
of determining whether or not it is "clearly frivo-
lous" is not, however, the first step in a far-ranging
inquiry into the merit or importance of the griev-
ance. Nor should it be. Where, as here, a union un-
dertakes to process a grievance but decides to aban-
don the grievance short of arbitration, the finding of
a violation turns not on the merit of the grievance
but rather on whether the disposition of the griev-
ance was . . . motivated by ill will, or other invi-
dious considerations. 1 4
This is not to say that the question of whether a particu-
lar grievance lacks merit should be ignored. I will find
below that Sivley's grievance was indeed "clearly frivo-
lous." However, the discussion must commence with the
motivation of the Union which I consider below, begin-
ning with some additional principles of Board law.
In Central States. Southeast and Southern Areas Pension
Fund d/b/a Three Hundred South Grand Company, 257
NLRB 1397, 1399 (1981), the Board stated:
A union's duty of fair representation requires it to
serve the interests of all the employees it represents
fairly and in good faith and without hostile discrimi-
nation based on unfair, arbitrary, irrelevant, or invi-
dious distinction. In the performance of this duty,
however, the effective administration of a contract
requires that a union be afforded broad discretion in
deciding what grievances to pursue and the manner
in which they should be handled.
More specifically, an employee does not have an abso-
lute right to have his grievance taken to arbitration re-
gardless of the provisions of the applicable collective-
bargaining agreement. ' 5
With the above law for guidance. I find in this case
that Respondent's refusal to process Sivley's case to arbi-
tration was based not on ill-will or other invidious con-
siderations; rather, at all times relevant to this proceed-
ing, Respondent acted in the utmost good faith. In this
case, Respondent acted (primarily) through Gellepis, its
staff representative for 35 years.
The General Counsel makes much of Gellepis' alleged
comment on January 24 that he favored minorities. I
have found above that Gellepis never made that exact
statement, but it is likely that he stated something close
to it. I will even assume, arguendo, that the exact state-
ment was made as Sivley testified. Yet it does not sup-
port the General Counsel's case.
First, I find that Gellepis' alleged remark indicated
nothing more than his desire to recognize the dictates of
the consent decree (Resp. Exh. 5). Even as the General
14 See also Laborers International Union of Vorth Am erica, Local 324.
AFL-CIO (Centex Homes of California. Inc.). 234 NL.RB 367, 371 (197R)
15 Vaca v Sipes. 386 U S 171 (1967)
Counsel concedes (br., p. 14), the consent decree "re-
quires the Employer and Respondent to utilize plant con-
tinuous service for all purposes in which a measure of
continuous service is being utilized in order to increase
the promotional and transfer opportunities of female and
minority employees .... " It should be noted that on
May 14, almost 3 months after the alleged remark, Gelle-
pis authorized, in his discretion, the fourth-step grievance
procedure. It is clear that Sivley himself did not believe
that Gellepis was discriminating against him when the al-
leged remark was made. He had every right to appeal
then or later to his friend Petris, who was the immediate
superior of Gellepis. Indeed, Sivley did just that when he
felt that he was being unfairly precluded from attending
a union "Sound Off' meeting in Pittsburgh. No such
appeal was ever made to Petris with respect to Gellepis'
alleged remark. Accordingly, for the reasons cited
above, I must conclude that said alleged remark does not
support the General Counsel's case.
In the same way that Gellepis' desire to observe the
letter and spirit of the consent decree is no evidence
against the Union, neither is the personal relationship be-
tween Gellepis and Perez. The former admitted that he
was friends with Benny Perez and liked him. This is no
evidence of discriminatory intent. Gellepis flatly denied
that race was a factor in refusing to arbitrate Sivley's
grievance and I credit this denial based on his demeanor
and the surrounding facts or circumstances of this case.
But the General Counsel also contends (br., p. 15) that
there was evidence of personal animosity between Sivley
and Gellepis. Sivley testified that in 1976 or 1977 Gelle-
pis disagreed with certain actions which Sivley took as
president of the Local. Gellepis wrote a letter critical of
Sivley and had it read at a meeting of the Local. Gelle-
pis recalled the incident and explained that it concerned
a pattern of spending by the Local in excess of receipts,
thereby violating the Union's constitution. In Carpenters,
Local Union #1104 (The Law Company, Inc.), 215 NLRB
537 (1974), the Board noted evidence of some antago-
nism between a union member and his business agent.
This, said the Board, was an insufficient basis to con-
clude that the business agent's conduct was motivated by
the hostility between the two men. The Board found that
the General Counsel had not proven by a preponderance
of the evidence that the respondent's refusal to represent
the member with respect to his discharge was arbitrary,
discriminatory, or in bad faith. The complaint was dis-
missed.
In the present case, the proof is also lacking. First, the
dispute between the two men was stale, 3-4 years old,
and there was no evidence of any continuing acrimony
over the years. Next, Gellepis reappointed Sivley as
president of the Local on January 24. Also, Sivley was
permitted to travel to Pittsburgh, Pennsylvania, for a
union gathering as well as to San Francisco and Sacra-
mento for other matters concerning union business. Gel-
lepis had authority to prevent Sivley from making these
trips, particularly since the finances of the Local were
not bountiful. Furthermore, while Gellepis repeatedly ex-
pressed his view to Sivley that the latter's grievance
lacked merit, he never conveyed this opinion to the Em-
955
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployer's representatives. 6 To the contrary, at the fourth-
step meeting, Gellepis offered to settle with the Employ-
er for $500. In addition, I again note that Sivley never
appealed to Petris on the grounds that Gellepis' hostility
toward him was affecting his treatment of the griev-
ances. Nor is there evidence that Sivley ever complained
to his friends and supporters, Martin and Moreno, that
Gellepis was discriminating against him.
Finally, I note the testimony of Petris that Gellepis
should not bring to arbitration grievances that lack merit,
lest a bad precedent be established. 7 In this respect, I
agree with Gellepis that Sivley's grievance lacked merit
and, for that reason, find Respondent further supported
in refusing to take the grievance to arbitration. I turn
now to consider said grievance on its merits.
I begin by looking to the contentions of the General
Counsel, who states (br., p. 12), "Sivley ultimately relied
upon three arguments in support of his grievance: (1)
that he, rather than Perez, was entitled to retain the gen-
eral inspector position on the basis of 'super-seniority'
arising out of his status as a general grievance commit-
teeman; (2) that he was entitled to a higher classification
than the bundler position based upon his retention
and/or reversion rights; and (3) that he was entitled to
continue to work in the bundler job which he had com-
menced working in on the morning of January 21, 1980."
With respect to the first contention, the General Coun-
sel acknowledges (br., p. 12) that the collective-bargain-
ing agreement does not expressly provide for "super-su-
perseniority" for general grievance committeemen. Yet,
in a non sequilor, the General Counsel argues that Siv-
ley's argument has a logical basis. If a matter is not ex-
pressly set forth in the agreement, nor implied by any
reasonable construction as I find, then what matter if it
has a logical basis. Indeed, Sivley's argument has no logi-
cal basis anyway. It is true that paragraph 125(c) of sec-
tion X (the 1962 local agreement) (G.C. Exh. 4)18 pro-
hibits anyone other than current employees from serving
as grievance committeemen. However, as Sivley himself
conceded in his testimony, when he called Pollard on
January 7 to ask for an explanation of the demotion and
cited to Pollard section 125(a) of the local agreement,
Pollard replied, "You are not leaving the plant, you are
going to be a bundler, and that is the way it is going to
be." Accordingly, Sivley's right to continue as grievance
committeeman was unaffected by the demotion to
bundler. Furthermore, the Company's decision to rely on
plant seniority where both Sivley and Perez were simi-
larly situated was rational and nondiscriminatory. Ac-
cordingly, this element of Sivley's grievance was clearly
frivolous as he had no right under the circumstances to
retain his job as general inspector.
With respect to Sivley's second contention, the Gener-
al Counsel candidly states (br., pp. 12-13) that this "is
the least persuasive of his [Sivley's] arguments," and
16 Compare Truck Drivers, Oil Drivers, and Filling Station and Platform
Local No. 705, International Brotherhood of Teamsters. Chauffeurs. Ware-
housemen & Helpers of America (Associated Transport, Inc.c), 209 NL.RB
292 (1974), affd. 532 F.2d 1169 (7th Cir. 1976).
'7 Cf. Consolidated Aluminum Corporation, 258 NLRB 281 (1981).
a1 In pertinent part, this sec. reads, "An employee who is in layoff
shall not act as a grievance committeeman."
"that Sively mistakenly believed that there were higher
rated jobs than bundler to which he was entitled." The
evidence introduced at the hearing showed not only that
Sively was not entitled to a higher rated classification
than bundler, but that he was not even entitled to a
bundler position. Sively relied on the appendix to the
local agreement (G.C. Exh. 4, p. 66) to argue that he
was entitled to a job as a material checker rather than as
a bundler. However, in the early 1970's the Company re-
placed its reversion with a new two-part system. The
first of these listed each employee by name (Resp. Exh.
3). Under Sivley's name is listed his present job as gener-
al inspector. Pollard testified that Sivley also had prior
experience as a machine shop inspector which was omit-
ted by error. However, this job did not exist as of Janu-
ary. Having obtained a particular employee's current and
past experience, it is possible to turn to a second docu-
ment (Resp. Exh. 1) listing those jobs to which an em-
ployee had reversion rights. Under this list, Sivley as a
general inspector (516) had reversion rights only to a job
as general helper, a position which, as of January, had
been broken down to 31 different jobs.'9 Whether these
31 different jobs included the job of bundler is arguable
and need not be determined here. Even though the
Union never agreed to Respondent's Exhibits 1 and 3,
the evidence shows that the Company implemented them
without protest either by Sivley or the Union. Accord-
ingly, Sivley's rights, if any, to a job higher than bundler
are determined by reference to these two documents
which are valid based on custom and usage. In light of
the discussion above, I find that Sivley had no rights to a
higher job classification and this aspect of Sivley's griev-
ance is "clearly frivolous."
Finally, with respect to Sivley's third contention, I
find that he voluntarily waived whatever rights he had
to the bundler job. I have determined above that the
Employer through Caulfield and Pollard never agreed to
give Sivley until January 21 to decide whether to accept
the bundler job. This is a matter of credibility resolution
as the General Counsel admits (br., p. 13). When Sivley
left the first-step grievance hearing on January 8 without
accepting the bundler's job, and without telling the two
supervisors that he was off from work on union business,
he automatically reverted to layoff status. This finding is
supported by company business records. Accordingly, I
find this third and final aspect of Sivley's grievance to be
clearly frivolous.
For all of the reasons stated above, I will recommend
that this case be dismissed in its entirety.
CONCI USIONS OF LAW
1. The Employer is an employer within the meaning of
Section 2(2) of the Act, engaged in commerce and in an
industry affecting conmerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
'9 Pollard testified that Sivley was not even entitled to the job as
bundler because a general helper classification ran from job class 3 to job
class 6. Apparently only job class 3 jobs were still in existence as of Janu-
ary. However, the Company had previously agreed, at Sivley's request,
to demote Martin and Moreno to bundlers rather than to galvanizing
helpers and the Company felt it had to do the same for Sivley himself
956
STEELWORKERS, DISTRICT 38
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor
practices alleged in the complaint.
Upon the basis of the foregoing findings ofC fact, con-
clusions of law, and the entire record in this proceeding,
and pursuant to Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER2 0
It is hereby ordered that the complaint be, and it
hereby is, dismissed in its entirety.
20 In the event no exceptions are filed as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
APPENDIX A
R
O-
Healh d
Welfare
Pension d
Apprentce-
Namre Clnassfi rroorn Yr Qtr td hp TApreining
Fund
ontribution
al 52 01 per
or
Ralph Journeyman 1979 4 139 00 S279.39
)rti, Bricklayer 1980 1 13575 272 86
2 165 50 332 66
Jose Journeyman
Romero Bricklayer
Ernesto Journeyman
Romero Bricklayer
Robert Journeyman
Saen Brncklayer
Felipe Journeyman
Sanz Bricklayer
1981
1979
1980
0
0
0
0
1535
135 75
0
0
0
0
0
0
0
0
0
160
0
0
0
0
0
0
95 75
46.50
0
0
0
0
0
18.0
0
To
To
05
13S75
46.3
To
SO
308 54
272 86
3
4
I
2
4
2
3
4
1981 1
2
1979 4
1980 1
2
4
1981 I
2
1979 4
1980 I
2
3
4
1981 I
2
1979 4
1980 1
2
3
4
Induiry
Conmrbuinwn
18 per hr
125 (2
24 44
29 79
27 it3
2444
32 16 2.88
192.46 1724
9346 837
36.18 324
957