United Steelworkers of America, Local 8093

National Labor Relations Board - Board Decisions

Aug 2, 1976

225 N.L.R.B. 802 (N.L.R.B. 1976)

802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Steelworkers of America , Local 8093, AFL-
CIO-CLC (Kennecott Copper Corporation, Ray
Mines Division) and Donald R. Holland . Case 28-
CB-1003
August 2, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
that the United Steelworkers of America, Local 8093 (here-
in Respondent or Union), violated Section 8(b)(1)(A) of
the Act in that Respondent unlawfully restrained or
coerced Donald Holland in the exercise of his Section 7
rights by failing to represent him in an arbitration matter
arising under the union contract because he was not a
member of the Union at that time.
Upon the entire record, including my observation of the
demeanor of the witnesses and after giving due consider-
ation to the oral argument by Respondent and the brief
filed by the General Counsel, I make the following:
On May 24, 1976, Administrative Law Judge
James T. Rasbury issued the attached Decision in
this proceeding. Thereafter, Respondent Union filed
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, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.2
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 Respondent , United Steelworkers of
America , Local 8093 , AFL-CIO-CLC, its officers,
agents, and representatives , shall take the action set
forth in the said recommended Order.
1 In affirming the Administrative Law Judge's Decision that Respondent
violated Sec 8(b)(I)(A), we rely solely on his finding that the Local's presi-
dent told Holland that his grievance would not be taken to arbitration
because he was not a union member
2 The Administrative Law Judge, at In 3, inadvertently referred to the
State of Utah and its right-to-work statute This proceeding arose in Arizo-
na, which also has a right-to-work statute
FINDINGS OF FACT
1. JURISDICTION
The Kennecott Copper Corporation (herein Employer)
is a New York corporation maintaining its principal office
and place of business at 161 East 42d Street, New York
City, New York, and operating facilities in several States of
the United States, among which is a copper mine and
smelter at Hayden, Arizona, known as the Ray Mines Di-
vision, the facility involved in this proceeding, where it is
engaged in mining and reduction of copper ores and relat-
ed activities. During the most recent calendar year, which
period is generally representative of its annual operations,
the Employer, in the course and conduct of its business
operations at the Ray Mines Division in Hayden, Arizona,
purchased goods and materials valued in excess of $50,000
and caused same to be shipped in interstate commerce and
delivered to its Hayden, Arizona, place of business directly
from suppliers located outside the State of Arizona. During
the same period of time, in the course and conduct of its
business operations, the Employer sold and shipped goods
and materials valued in excess of $50,000 in interstate com-
merce from its Hayden, Arizona, facility directly to cus-
tomers located in States of the United States other than the
State of Arizona. On the basis of these undenied facts, I
find the Employer to be, and at all times material herein to
have been, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION
DECISION
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This case
was heard at Globe, Arizona, on April 13, 1976. The com-
plaint and an amended complaint were issued by the Re-
gional Director for Region 28 on January 30 and March
31, 1976, respectively, based on a charge filed by Donald
R. Holland on December 1, 1975.1 The complaint alleged
1 The relevant events herein occurred during the calendar year 1975 and
all dates hereinafter will be in the year 1975 unless otherwise indicated
The Respondent, United Steelworkers of America, Local
8093, AFL-CIO-CLC, is now, and at all times material
hereto has been, a labor organization within the meaning
of Section 2(5) of the Act.2
2 In his opening statement Representative Smith seemed to have been
raising the question of whether or not the appropriate party had been
charged in this case, or had been served in this case, because the certified
bargaining representative is the (International) United Steelworkers of
America and not Local 8093 I find no merit or real substance to Mr
Smith's observations because regardless of the certification there can be no
doubt that Local 8093 is the agent for the United Steelworkers of America
in carrying out the terms and conditions of the labor- management agree-
ment
225 NLRB No. 111
UNITED STEELWORKERS OF AMERICA, LOCAL 8093 803
III. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background Events
Donald Holland has been employed by the Employer for
approximately 8 years. During the first 5-1/2 or 6 years he
was a member of the Union but for some reason, unex-
plained in the record, he dropped out of the Union.3 In
February, Holland was transferred from the mill to the
binman area of the smelter department. During the first
month that Holland worked as a binman, Mr. Reese, an
employer safety representative, advised him that the low-
cut leather shoes he was wearing were inappropriate for
work in the smelter department. Following this admonition
Holland changed his footwear to rubber boots which had
been issued to him in the mill. Holland received no further
complaints or objections to the type of footwear until April
18.
B. The Facts Concerning Holland's Grievance
A day or two before April 18, a representative of
Respondent's safety committee, named Manuel Ortega,
visted the binman area of the smelter department and there
discussed safety and working conditions with the Charging
Party, Holland. Holland pointed out several situations
which he believed to be unsafe and Ortega indicated that
he would talk to Mr. Halcorn, a company safety represen-
tative, concerning these safety hazards. Later that same
day Holland was called to the office of his immediate su-
pervisor, Foreman Ponce, and the general foreman, Mr.
Dietzel, where he was reprimanded for complaining to
Ortega regarding the safety hazards. Holland was suffi-
ciently upset by this conversation that on his way home at
the end of his shift he related the incidents to David Men-
doza, who was the president of the Respondent.' Holland
advised Mendoza that Dietzel had reprimanded him be-
cause he had reported safety hazards to his union safety
representative rather than reporting them to his foreman
first. Mendoza viewed this treatment as some sort of union
harassment.
A day or two later, on April 18, Foreman Ponce called
Holland to his office and told him that by wearing rubber
boots Holland was violating company safety regulations.
Ponce advised Holland to wear leather boots in the future.
This was the first time that anyone had objected to the
rubber boots which Holland had been wearing. On that
same day Holland reported Ponce's shoe request to Men-
doza. Again Mendoza suggested that Ponce could be moti-
vated by a desire to harass Holland in view of his coopera-
tion with Respondent's safety inquiry. Holland then asked
Mendoza to check on the rules regarding the wearing of
rubber boots and to advise him of what he learned.
Mendoza testified that he reviewed the collective-bar-
3 The State of Utah has a right-to-work statute and there was nothing in
the evidence to indicate that the employees were required to pay a dues
equivalency (agency shop ) which has been held to be legal in some States
which have right-to-work statutes
The labor-management agreement provides that the president may also
be a member of the grievance committee (G C Exh 4).
gaining contract, as well as the Company's rules and regu-
lations, and was unable to find any provision forbidding
the use of rubber boots in the area where Holland worked.
Moreover, Mendoza testified that he asked Mr. Reese, the
company safety representative, and Mr. Stoker, the smelter
department superintendent, if there were any rules against
wearing rubber boots in the area where Holland worked
and was told by each of them that there were no such rules.
On April 20, Mendoza informed Holland of the results of
his inquiries.5 Shortly after reporting for work on April 20,
Holland was suspended and sent home for the remainder
of his shift by his supervisor, Foreman Ponce, because he
had reported to work wearing rubber boots. Holland re-
ceived no pay for any part of his April 20 shift. Holland
purchased leather boots on April 21 and thereafter wore
them working as a binman. Holland immediately advised
Mendoza over the telephone of his suspension and on May
5 Mendoza on behalf of the Charging Party filed a griev-
ance which requested that Holland be paid for the loss of
wages on the day that he was sent home and that the Em-
ployer cease and desist from harassing Holland. (See G.C.
Exhs. 2(a), (b), and (c).) 6
The labor-management agreement (G.C. Exh. 4) con-
tains a typical grievance-arbitration procedure providing
for three successively higher level meetings on the part of
the union grievance committee with representatives of
management in which each side is given an opportunity to
explain its views of the matter and then if it cannot be
amicably resolved, the fourth step provides submission of
the dispute to an arbitrator.
Holland testified thatjust shortly before July 27,7 he was
advised by Mendoza that the Employer had denied his
grievance at the third step and that Mendoza told him, "Of
course, you know that's all I can do for you on this one
since you're not a union member."
Q. Did he say anything else?
A. He [Mendoza] said that he had tried to get the
grievance committee to go ahead and arbitrate this
one for me anyway, but they refused, saying that if
they did this for me that it would be like giving the
union members a license to drop out the Union and
still have their grievances arbitrated.
* t
Q. Do you remember if, in that conversation, Mr.
Mendoza invited you to join Local 8093?
A. Yes. He said-he asked me if I would want to
The calendar for 1975 indicates that April 18 was on a Friday Holland
worked wearing rubber boots on April 19, but nothing was said to him
Holland's next shift began at 11 30 p in on April 20 and it was then he was
sent home
6 There was no explanation and I shall not speculate, but I am at least
curious as to why this matter was not handled in accordance with the provi-
sions of art VI, sec 8(a), at p 14 of the labor agreement (G C Exh 4)
which requires a union representative to be notified and given an opportuni-
ty to be present before the employee leaves the company property While
this was not a discharge, it certainly was discipline involving suspension
r This date was fixed by Holland because he went on his vacation on July
27 The fixing of the date also appears to be reasonably accurate inasmuch
as the third step denial, as reflected by Yagmin's letter to Mendoza, was
dated July 23 F A Yagmin, Jr, is the industrial relations director for the
Employer
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
join and he thought it would be better for both me and
the Union if I did.
Q. I see. And what did you tell him?
A. I said, "All right. I'll join."
As indicated earlier, Mendoza, who was subpenaed to
testify by the General Counsel, confirmed Holland's testi-
mony concerning the fact that he (Mendoza) had contact-
ed Reese, the safety representative, and Stoker, the smelter
superintendent, and advised Holland that those employer
representatives had informed him there were no rules
against rubber boots in the smelter. However, under cross-
examination questioning by Respondent, Mendoza testi-
fied that he had never informed Holland that he "would
not take a case to arbitration because he [Holland] was not
a member of the Steelworkers Union."
There was additional testimony-which I regard as
being unworthy and unnecessary of repeating here in de-
tail-tending to show that Respondent had processed other
grievances on behalf of Holland, some of which had been
satisfactorily settled prior to arbitration; and also testimo-
ny indicating that after Holland became a member of the
Union, the Union agreed to take a grievance regarding his
qualifications for a higher rated job to arbitration. I regard
this testimony as being insufficient to show a pattern from
which reasonable inferences can be drawn and not directly
relevant to the issues before me in this case.
Analysis and Conclusions
The law is clear that once a collective-bargaining repre-
sentative has been designated or selected by a majority of
employees in a unit appropriate for such purposes, that it
shall be the exclusive representative of all the employees in
such unit.' The collective-bargaining representative has the
same obligation to represent nonmembers as it has to rep-
resent members of the Union.
A resolution of this dispute turns on the credibility of the
only two witnesses, Mendoza and Holland, each of whom I
feel in most instances was endeavoring to relate the facts as
honestly as each could recall them. However, as regards
the reason why Holland's grievance was not taken to arbi-
tration, I am disposed to believe the testimony of Holland.
First of all, the answer or reason which Mendoza gave to
Holland for not taking the grievance to arbitration is en-
tirely logical and economically sound. Looking at the prob-
lem strictly from an economical viewpoint, why should the
Union spend some $400 to $1,000 9 in order to recover 1
day's pay for an employee who was not a member of the
Union, unless required to do so by law. I believe Holland's
testimony and am of the opinion that Mendoza gave Hol-
land an honest and truthful answer when he told him that
he had tried to persuade the other members of the griev-
ance committee to consent to take the matter to arbitration
and that he (Mendoza) could thereby persuade Holland to
8 See Sec . 9(a) of the Act Also Vaca et al v Sipes, 386 U.S 171 (1967).
9 Arbitrators normally receive sums ranging from $150 to $300 per day
for each day of hearing plus each day required in wnting the decision.
Based on my experience and personal knowledge in the area of arbitration,
I would estimate that this grievance would have taken from a day and a half
to 3 days' time on the part of an arbitrator
become a member of the Union, but that the committee
would not agree.
Even if I were not certain that Mendoza had truthfully
advised Holland that the grievance would not be taken to
arbitration because Holland was not a member of the
Union, nevertheless the Respondent is guilty of an
8(b)(1)(A) violation of the Act because its actions appear
arbitrary, discriminatory, and in bad faith when viewed in
the broad light of the facts of the grievance. After Holland
was advised that his footgear was not in conformance with
safety regulations, he turned to a logical source of informa-
tion in order to ascertain if his foreman's interpretation of
the regulations had been a correct one. Mendoza made a
thorough check of the contract and company rules, includ-
ing the opinions of two substantial and qualified represen-
tatives of the Employer, regarding the safety regulations of
the footgear in the smelter department. Having done so, he
(Mendoza) had a right to rely on his information and in
turn Holland had a right to rely on the information provid-
ed by Mendoza. The dispute was precipitated by mislead-
ing or erroneous information furnished by responsible
agents of the Employer. I find nothing in this case to indi-
cate that Holland was deliberately seeking to violate the
safety regulations or "bait" the Employer. In view of these
responsible representations by management, I am disposed
to feel that Holland had a right to rely on this information
and continue to wear his rubber boots unless or until he
was further warned or advised by the Employer that the
rubber boots were against safety regulations and that he
would be sent home if he continued to wear them. This is
not to say that in every instance a union is required to
process an employee's grievance to arbitration. If, in good
faith, it believes the grievance is without merit, it may re-
fuse to entertain it without running afoul of its duty of fair
representation. 10 However, where all of the evidence tends
to indicate that the grievance has merit and that the oppor-
tunities for being successful in arbitration are substantial,
then it does not seem unreasonable to conclude that the
Union's action was arbitrary, invidious, and in bad faith.
Respondent's actions in this instance were so unreasonable
as to be something more than poor judgment. I find the
Union to have violated its duty of fair representation to-
ward the Charging Party, Donald Holland, thereby inter-
fering with, restraining, and coercing him in the exercise of
his Section 7 rights."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON
COMMERCE
The activities of the Respondent as set forth in section
III, above, occurring in connection with the business oper-
ations of the Employer, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow of
commerce.
10 Carpenters, Local Union No 1104 (The Law Company, Inc), 215 NLRB
537 (1974).
11 Local Union No 2088, International Brotherhood of Electrical Workers,
AFL-CIO (Federal Electric Corporation), 218 NLRB 396 (1975)
UNITED STEELWORKERS OF AMERICA, LOCAL 8093 805
V. THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice within the meaning of Section 8(b)(1)(A) of
the Act, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. The Union's
misconduct caused Donald Holland to lose a day's wages
and I shall direct that it reimburse him for lost wages plus
interest at 6 percent per annum.
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
2. The Employer is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
3. The Respondent Union by its refusal to process a
meritorious grievance through arbitration because the af-
fected grievant was not a member of the Respondent
Union did thereby interfere with, restrain, and coerce an
employee of the Employer in violation of the employee's
Section 7 rights.
4. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER12
United Steelworkers of America, Local 8093, AFL-
CIO-CLC, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Discriminating in the representation of Donald Hol-
land, or any other employee, within a collective-bargaining
unit wherein said Union is the collective-bargaining repre-
sentative because said employees are not members of the
Union.
(b) In any like or related manner restraining or coercing
employees in the exercise of their rights as guaranteed in
Section 7 of the Act because said employees are not mem-
bers of the Union.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Make Donald Holland whole for the earnings lost by
him on April 20, 1975, including interest as set forth in the
section of this Decision entitled "The Remedy."
(b) Post at its union office and meeting hall copies of the
attached notice marked "Appendix." 13 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 28, after being duly signed by an authorized represen-
tative, shall be posted 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 the Union to ensure that said notices are not
altered, defaced, or covered by any other materials.
(c) Additional copies of Appendix shall be signed by a
representative of the Respondent Union and forthwith re-
turned to the Regional Director for Region 28. These no-
tices shall be posted, the Employer willing, at places where
notices to the Employer's employees are customarily post-
ed.
(d) Notify the Regional Director for Region 28, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
12 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
13 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employees
these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a representative
of their own choosing
To act together for collective bargaining or other
aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with these
rights.
WE WILL represent all employees in the collective-
bargaining unit regardless of membership or nonmem-
bership in the Union equally and fairly.
WE WILL make Donald Holland whole for wages lost
by him when we failed to adequately represent him
because he was not a union member.
UNITED STEELWORKERS OF AMERICA , LOCAL 8093,
AFL-CIO-CLC