Clothing and Textile Workers Local Union 148T

National Labor Relations Board - Board Decisions

Jan 20, 1982

259 N.L.R.B. 1120 (N.L.R.B. 1982)

1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amalgamated Clothing and Textile Workers Local Lewis be reinstated, with Mary Shirley adding that
Union 148T, AFL-CIO-CLC (Leshner Corpora- the Employer should reinstate both grievants if it
tion) and Deborah Susan Blaydes. Case 9-CB- were going to reinstate one. Harold Carpenter,
4312 plant supervisor, replied that he would have
January 20, 1982 brought Blaydes back but that "now" he would
"have to take it to the Company." Subsequently,
DECISION AND ORDER the Respondent was notified in writing that both
grievances were denied. The Respondent did not
BY MEMBERS FANNING, JENKINS, AND process either grievance to arbitration.
~ZIMMERMAN~ ~The Administrative Law Judge concluded, with-
On July 8, 1981, Administrative Law Judge out supplying a rationale, that the Respondent's re-
Elbert D. Gadsden issued the attached Decision in fusal to accept the Employer's "offer" to reinstate
this proceeding. Thereafter, the Respondent filed Blaydes, but not Lewis, and its "squeeze play" of
exceptions and a supporting brief. insisting that both employees be reinstated or nei-
Pursuant to the provisions of Section 3(b) of the ther constituted a breach of its duty of fair repre-
National Labor Relations Act, as amended, the Na- sentation to Blaydes. He further concluded that,
tional Labor Relations Board has delegated its au- having rejected the Employer's "offer," the Re-
thority in this proceeding to a three-member panel. spondent's failure to take Blaydes' grievance to ar-
The Board has considered the record and the at- bitration was arbitrary and likewise a breach of its
tached Decision in light of the exceptions and brief duty of fair representation.
and has decided to affirm the rulings, findings, and A union breaches its statutory duty of fair repre-
conclusions of the Administrative Law Judge only sentation when its conduct toward a member of the
to the extent consistent herewith. collective-bargaining unit is arbitrary, discriminato-
We disagree with the Administrative Law ry, or in bad faith.' There is no evidence or con-
Judge's conclusion that the Respondent violated tention that the Respondent's actions regarding
Section 8(b)(l)(A) by failing to represent fairly em- Blaydes' grievance were the result of bad faith or
ployee Deborah Blaydes. hostility toward Blaydes. Nor is there any evidence
On April 18, 1979, Blaydes was involved in sepa- of disparate treatment. To the contrary, the Re-
rate physical altercations during worktime-one spondent, in processing the grievances, argued that
with employee Charlene Lewis, the other with em- both Blaydes and Lewis should be reinstated. Fi-
ployee Connie Butterly. All three employees were nally, it cannot be said that the Respondent, having
fired pursuant to an employer rule against fighting. decided to process the grievances, did so in a per-
Thereafter, Blaydes and Lewis filed grievances. functory manner, for it actively advocated its posi-
The Administrative Law Judge found that, at the tion. The only issue in this case, therefore, is
first-step grievance meeting, Plant Manager Paul whether the Respondent, by taking the position
Moritz stated that the Employer was willing to re- that it took and then abandoning Blaydes' griev-
instate Blaydes but not Lewis. The record indicates ance short of arbitration, acted arbitrarily. Con-
that the Employer's position was based on its belief trary to the Administrative Law Judge, we find
that Blaydes had not been the aggressor in either that it did not.
fight and merely had defended herself. The Admin- There is nothing in the record to indicate that
istrative Law Judge also found that the Respond- the Respondent's position that both Blaydes and
ent's officials, particularly Mary Shirley, financial Lewis be reinstated or neither was anything other
secretary, responded to the Employer's "offer" by than a good-faith, honest attempt to secure the re-
insisting that it was company policy to discharge instatement of both grievants. The Respondent also
all employees involved in a fight or none and, owed a duty of fair representation to Lewis. We
therefore, both grievants should be reinstated or see no reason why its duty to represent Blaydes
neither. At the second grievance meeting, Moritz fairly and act as her advocate required it to accept
again stated that the Employer would reinstate the Employer's offer to reinstate Blaydes at the ex-
Blaydes, but not Lewis, whom Moritz termed a pense of Lewis' continued employment. 2 The
"troublemaker." The Respondent's representatives
again insisted that both grievants or neither be rein- ' Truck Drivers, Helpers. Taxicab Drivers, Garage Employees and Airport
stated. Because Lewis could not attend the second- Employees Local Union No. 335. affiliated with International Brotherhood of
Teamsters, Warehousemen and Helpers of America (Monarch Institutional
step meeting, a third meeting was held so that she Foods), 229 NLRB 1319 (1977), affd. 597 F.2d 388 (4th Cir. 1979).
could give her version of the events. During that 2 The Employer's "offer" to reinstate Blaydes was, by its own terms,
conditioned upon the Respondent's acceptance of its refusal to reinstate
meeting, George Meyer, the Respondent's business Lewis. At no time did any employer representative offer to reinstate
representative, requested that both Blaydes and Continued
259 NLRB No. 152
4312 l t r i r, r li t t
r ,
ri s r i . t i t
, it ri t r itr ti .
The i i tr ti
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.
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rewith,.collective-bargaining

.
.
.
hat oth rievants O either , ,
St ewis ould ot t end S l s it t f
e sters,
.
ould er f vents. uring hat I
T h e
meeting, George Meyer, the Respondent's business conditioned upon the Respondent's acceptance of its refusal to reinstatem etingGeorge r, te ode ' is.
.
.
CLOTHING AND TEXTILE WORKERS LOCAL UNION 148T 1121
Board has held that a union "has a wide range of Thus, this is not a case where a union, having un-
discretion in serving the unit it represents"3 and the dertaken to process a grievance, abandoned it with-
Respondent's response to the Employer's "offer," a out reason or merely at the whim of someone exer-
response which sought to obtain the reinstatement cising union authority. 7 We therefore find that the
of both grievants, certainly falls within that discre- Respondent did not arbitrarily dispose of Blaydes'
tion. The Respondent's position was based on the grievance and shall dismiss the complaint in its en-
Employer's policy of discharging all employees in- tirety.
volved in a fight, or none, and, therefore, it cannot
be said to be arbitrary or based on irrelevant con- ORDER
siderations. Moreover, while the position taken by Pursuant to Section 10(c) of the National Labor
the Respondent resulted ultimately in the denial of Relations Act, as amended, the National Labor Re-
Blaydes' grievance, it is only through hindsight lations Board hereby orders that the complaint
that the Respondent's good-faith attempts to secure herein be, and it hereby is, dismissed in its entirety.
the reinstatement of both Blaydes and Lewis can
be called into question. were discussed at the July meeting, no vote or action was taken. The Ad-
Nor did the Respondent's failure to arbitrate ministrative Law Judge made no finding on the extent of the discussion
or on whether a vote was taken. Nevertheless, it is the General Counsel's
Blaydes' grievance violate its duty of fair represen- burden to prove that the Respondent acted arbitrarily. Since the record
tation. Contrary to the Administrative Law Judge, establishes that, at a minimum, some discussion on the merits of the griev-
the mere fact that the Respondent refused to ances preceded the Respondent's failure to invoke arbitration, we cannotthe mere fact that the Respondent refused to find that the Respondent acted arbitrarily or without reason.
accept the Employer's offer to reinstate Blaydes Local 417, International Union. United Automobile. Aerospace and Agri-
but not Lewis did not obligate it to process cultural Implement Workers of America (UAW) (Falcon Industries. Inc.).
Blaydes' grievance to arbitration. Rather where, as sup r
here, a union undertakes to process a grievance butDECISION
decides to abandon the grievance short of arbitra-
tion, the finding of a violation again turns on STATEMENT OF THE CASE
whether the union's disposition of the grievance E
was arbitrary or motivated by ill will or other invi- Un unfair labr practice carges file d in ase
dious considerations. There is no evidence that the 43on unfar labor practce ch1979 by ares fled n ase 9-CB-
4312 on August 6, 1979, by Deborah Susan Blaydes, an
Respondent's failure to invoke arbitration was individual, herein called Blaydes or the Charging Party,
based on animosity, discrimination towards against Amalgamated Clothing and Textile Workers
Blaydes, 5 or irrelevant considerations. Also, the Local Union 148T, AFL-CIO-CLC, herein called Re-
record establishes that, following the denial of the spondent, a complaint was issued by the Regional Direc-
grievances, a discussion on their merits took place tor for Region 9 on behalf of the General Counsel on
during the Respondent's July 1979 union meeting. 6 April 25, 1980.
The complaint alleges in substance that in each of
Blaydes without adding that the Employer would not reinstate Lewis. in three separate grievance meetings Respondent refused to
his brief to the Administrative Law Judge, the General Counsel, relying accept Employers ofer of reinstatement of the Charging
on the testimony of Plant Supervisor Carpenter, contended that the
"offer" to reinstate Blaydes was, in fact, unconditional. While Carpenter Party because Respondent desired Employer to reinstate
testified that the Employer, by its "offer," was willing to reinstate other discharged employees along with the Charging
Blaydes and continue proceesing Lewis' grievance, he also testified that. Party, and Employer refused to reinstate the other dis-
"When they said all or none, we said if we couldn't take just her
lBlaydes] back, we would take none." Of course, the Employer did not chargees; and that Respondent refused to process to arbi-
need the Respondent's approval before it could unilaterally reinstate tration a grievance concerning the discharge of the
Blaydes without reinstating Lewis. However, even assuming that the Em- Charging Party, pursuant to provisions of the collective-
ployer intended its "offer" to be unconditional, it was not stated in those
terms. bargaining contract with Employer. By these acts and
' Ohio Valley Carpenters District Council. Local Union No. 415. United omissions, the complaint alleges that Respondent failed
Brotherhood of Carpenters and Joiners of America. AFL-CIO (Cincinnati to represent the Charging Party, for reasons which are
Fixtures. Inc.). 226 NLRB 1032 (1976); Truck Drivers Helpers Taxicab unfair, arbitrary, and invidious, thereby resulting in a
Drivers Garage Employees and Local Union Nao. 355. affiliated with Inter-
national Brotherhood of Teamsters. Chauffeurs Warehousemen and Helpers breach of the fiduciary duty owed employees it repre-
of America (Monarch Institutional Foods), supra. See, generally, Ford sents; and that by such acts and omissions, Respondent
Motor Company v. Huffman, 345 U.S. 330 (1953). has restrained and coerced its employees in the exercise
' Local 417, International Union. United Automobile, Aerospace and Agri-
cultural Implement Workers of America (UAW) (Falcon Industries, Inc.), of their protected Section 7 rights, in violation of Section
245 NLRB 527 (1980). 8(b)(l)(A) of the Act.
I The Respondent also failed to take Lewis' grievance to arbitration. The hearing in the above matter was held before me in
I Business Agent Meyer, then Grievance Chairman Magnolia King, Fi-
nancial Secretary Mary Shirley, and employee Barbara Grubb, all testi- Cincinnati, Ohio, on April 13 and 14, 1981. Briefs have
fied that, following the discussion, the membership voted not to invoke been received from counsel for the General Counsel and
arbitration. Meyer further testified that the discussion included the likeli- counsel for Respondent, respectively, which have been
hood of winning an arbitration. On the other hand, Bea Miranda, the Re- carefully considered.
spondent's president at the time, testified that, although the grievances
'
Call Ques i
n p epi p t's n p n hirratp i i t ti fi i t t t t i iINor did the Respondent's failure to arbitrate .
' Vi I O es - .

.1, _ i. . A.1- n - refusd j ^
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Off O te I s ce
t i Obli O tries.
a
.
t r a rie a ce but DECISION
et er t e i 's is siti f t ri D G A L Jde
itrary E LBE RT D. G
A D SD E N . Administrative Law Judge:
tions.r r is evidence that the U
po n un f a ir lab o r p r
ac t ic e c h a r g es
f il ed in Cas e 9 - C
B -
dious considerations.' There is no evidence that the.4312
ll l t r i rt ,
i til
,

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ti r i r r

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I t ls faile t take e is' grievance to arbitration. e hearing in the above atter as held before e in
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t t tifi t t t i i i l t li eli- s l f r t, res ecti el , ic have been
penters s ict l. te
ive ers.

l
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in this case and from my obser- cinnati, Ohio, and the same telephone number: 761-
vation of the witnesses, I hereby make the following: 1797.'
FINDINGS OF FACT B. The Propriety of Notice of the Charge Upon Local
148T
I. JURISDICTION
The parties herein stipulated that on August 6, 1979,
At all times material herein, Employer Leshner Corpo- Charging Party (Blaydes) filed a charge against Amalga-
ration, herein called Employer, an Ohio corporation with mated Clothing and Textile Workers Local 2297, AFL-
an office and place of business in Hamilton, Ohio, has CIO-CLC, and that a copy of said charge was served by
been engaged in the manufacture of textile products. registered mail on August 6, 1979. Thereafter, the charge
During the past 12 months, a representative period, was dismissed by the Regional Director for Region 9 on
Employer, in the course and conduct of its business oper- September 24, 1979, because he concluded that the
ations, purchased and received at its Hamilton, Ohio, fa- burden of establishing a violation of Section 8(b)(1)(A) of
cility products, goods, and materials valued in excess of the Act could not be sustained, and a complaint was not
$50,000 directly from points located outside the State of issued. This determination was appealed by Charging
Ohio. Party and sustained. Consequently, a complaint was
The complaint alleges, the Employer admits, and I issued on April 25, 1980, alleging that Local 2297 violat-
find that Employer is an employer engaged in commerce ed Section 8(b)(l)(A) of the Act by failing to fairly rep-
within the meaning of Section 2(6) and (7) of the Act. resent the Charging Party (Blaydes) in processing her
grievance in reference to her discharge.
il. THE LABOR ORGANIZATION INVOLVED An amended complaint was issued on January 19,
The complaint alleges, the answer admits, and I find 1981, correcting the name of Respondent Union to
that Amalgamated Clothing and Textile Workers Local Amalgamated Clothing and Textile Workers Local 148T,
Union 148T, AFL-CIO-CLC, herein called Respondent AFL-CIO-CLC, and containing the identical allegations
or Union, is now and has been at all times material set forth in the original complaint. At the hearing herein,
herein a labor organization within the meaning of section the parties stipulated that George Meyer is the joint
2(5) of the Act. board manager and business agent for Respondent (Local
148T) and Local 2297; and that Respondent and Local
iI. THE ALLEGED UNFAIR LABOR PRACTICES 2297 have the same mailing address, and the same tele-
phone number but separate and distinct bargaining agree-
A. Background Facts ments, covering different units of employees of Employ-
er. Nonetheless, counsel for Respondent argues that nei-At all times material herein, Respondent, by virtue ofcR~ »*>~~~ o\ .ther a charge nor an initial complaint was ever filedSection 9(a) of the Act, has been, and is now, the exclu- a or i was eragainst Local 148T, but rather, Local 148T was servedsive bargaining representative for purposes of collective with an amended complaint without having first beenwith an amended complaint without having first beenbargaining with respect to rates of pay, wages, hours, served with a charge addressed to it, or an original com-
served with a charge addressed to it, or an original com-
and other terms and conditions of employment, of alland other terms and conditions of e ploy ent, of all plaint. Therefore, counsel for Respondent contends that
employees of Employer in the following unit:employees f l r i t ll i Local 148T was not properly served according to Board
All employees in the Old or South Plant in Hamil- rules, and that the amended complaint herein should be
dismissed.ton, Ohio with the following exceptions: superinten- dismissed.
dents, foremen, office employees, and watchmen. However, the record shows that Meyer testified and
counsel for Respondent acknowledged at the hearing
At all times material herein the following-named per- that Respondent knew that the charge herein was intend-
sons occupied the positions set opposite their respective ed for Respondent (Local 148T); that upon receipt of the
names, and are now, and have been, agents of Respond- charge, George Meyer made arrangements for certain of-
ent within the meaning of Section 2(13) of the Act: Jeri- ficers of Respondent to meet with the Board agent inves-
lene Miller, steward; Mary Shirley, steward; Bea Mir- tigating the charge; and that some of Respondent's offi-
anda, president; Meg King, chief steward; and George cers gave statements to the investigating Board agent. It
Meyer, business agent. is also observed by me that the record does not show
At all times material herein, Respondent and Employ- that Respondent objected to service of the charge or the
er have maintained and enforced a collective-bargaining initial complaint herein prior to service of a copy of the
agreement covering wages, hours, and other terms and amended complaint. In fact, in paragraph I of its answer
conditions of employment of the employees in the unit to the initial complaint, Respondent admits to service of
described above, which agreement includes, inter alia, a the charge. It is apparent, however, that although Re-
grievance and arbitration procedure. spondent denied such service in its answer to the amend-
The parties herein stipulated that George Meyer is a ed complaint, such denial was not filed until sometime
joint board manager for Respondent and Local 2297; after January 14, 1981, subsequent to some of the investi-
that Respondent, Local 148T, and Local 2297 have thesame maipong aentres, Local 14T and Lyomg A venue, C - The facts set forth above are undisputed and are not in conflict in thesame mailing address: 215 West Wyoming Avenue, Cin- record.
-
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At all times material herein, Respondent, by virte of r e r . t l , s l f r s t ar es t at ei- ., .... ,*,. - _
c »* o/ <* .1. . i. i- j * \\. t n e T l i t t a c n ra nitial i w ever fl
,. . .. .. „ r ii * ~~~against ,
agin L 18 , b rte, L 1 w sre
. .. .. ,* .. * ' . ~~~~~~with l i t with an a c w h f bee
i*«r.r < o i. iand other ter s and conditions of employment, of all plaint. herefore, counsel for espondent c te s t at
it:i -or 'i - - n -employ es e n e f it: l t r rl ser e r i to oard
ll l i l il u le , a nd t ha
t t he am e nd e d l i i l
, ti
e d f
, is
t h a t
in i t ia l t
I it
t o t h e i n i t ia l
t h e
i it ti cedure,.spondent
rti s r i ti l t t t r i
e d l i t, i l t il ti
j i t
a f t e r
t t t, l , l t Tre i
ili r : t i , i , oT set abov e ar e undisputed and are n con. i ct in the
\<* A. i her
CLOTHING AND TEXTILE WORKERS LOCAL UNION 148T 1123
gations to which Manager Meyer assented and with sent a message to that effect to Linda. About 10 or 15
which he cooperated. minutes later, Blaydes said a spot was coming through
Counsel for Respondent renewed its motion for dis- on the material and she went to talk to the machine op-
missal of summary judgment at the hearing based upon erator about it. Connie Butterly told her again that Linda
his argument heretofore alluded to. had to go to the restroom. Blaydes said she told her she
However, in view of the fact that Manager Meyer ac- was not doing it and that she had sent word by Butter-
cepted a copy of the charge served upon him, admitted ly's husband that she was not relieving. The testimony in
that he knew it was intended to be against Local 148T, this regard is rather conflicting, however, it appears that
whom he also represents, and thereafter made arrange- Butterly told Blaydes not to use her husband as her per-
ments for, and cooperated with a Board investigation of sonal slave or as her messenger boy and, according to
Local 148T officials, pursuant to said charge, I conclude Union President Bea Miranda, Connie Butterly told her
and find that Respondent (Local 148T) was not misled Blaydes said, "She would take her husband up to the
either by the substance of the charge, or by the fact that hayloft and show him a good time." Other witnesses tes-
it was mistakenly addressed to Local 2297. Respondent tified Blaydes told Butterly "F-- you, and the broom
was not prejudiced by the charge because the allegations you rode in on." Blaydes testified she could not recall
contained therein were identical to the allegations in the what the conversation was between herself and Connie
amended complaint. Although the amended complaint Butterly at this juncture.2 Nevertheless, Butterly's hus-
was labeled "amended," it was amended to reflect only band was a machine operator and he was the one who
Respondent's correct title, not its address or the sub- was supposed to come and get the relief girl whenever
stance of the allegations. Thus, for all practical purposes, one of the employees wanted to go to the restroom.
Respondent received a copy of the original complaint Butterly left her machine and grabbed Blaydes around
bearing its correct name, for which it knew the charge the neck, proceeding to choke and scratch her about the
and the original complaint were intended. neck and face. Machine operator Keith came over and
For the foregoing reasons, I further conclude and find commenced pulling Butterly off Blaydes. The record
that the mere technical misnomer of Respondent in the shows from all testimonial accounts that Blaydes simply
charge and original complaint herein is not a sufficient tried to block and pull the hands and arms of Butterly in
ground for the dismissal of the amended complaint, pur- an effort to avoid being hurt, without retaliating in any
suant to Section 10(b) of the Act. American Geriatric En- way with physical force. Subsequently, Supervisor Steve
terprises, Inc., and its wholly-owned subsidiary Hamilton Gay assigned her to a machine and dryer, and another
Medical Convalescent Center, Inc., 235 NLRB 1532 girl continued to serve as relief girl.
(1978), and Ross Sand Company, Inc. d/b/a Rosco Con- Fifteen minutes prior to the end of her shift, Blaydes
crete Pipe Co., Inc., 219 NLRB 915 (1975). also find testified she went to the restroom and, as she was leaving
that, since Respondent had actual notice of the charge there, Charlene Lewis hollered to her, requesting to be
(Meyer knew the charge was for Local 148T), said relieved. Lewis continued to holler at her, and Blaydes
charge and amended complaint were validly and timely said she continued walking without responding. Then,
served within the meaning of Section 10(b) of the Act. Lewis said something to her and she (Blaydes) turned
Peterson Construction Company, Inc., 106 NLRB 850 around and made a reply which she cannot now recall,
(1953), and American Steamship Company, a subsidiary of but adding that she did not want to hear what Lewis had
General American Transportation Corporation, 222 NLRB to say. Blaydes said she returned to her work station.
1226 (1976). Lewis stopped her machine and came to her work sta-
Accordingly, counsel for Respondent's motion to dis- tion and grabbed her around the neck. All testimonial ac-
miss the complaint, or for summary judgment, is hereby counts of record clearly show that, while both Lewis
denied. and Butterly, respectively, attacked Blaydes by grabbing
C. An Altercation With Some Physical Contact her around the neck, choking her, scratching her around
Between Two Employees During Working Time the neck and face, and/or pulling her hair, Blaydes did
not at any time retaliate against them physically. Blaydes
Dischargee Deborah (Debby) Blaydes was employed simply tried to defend herself by holding the hands and
by Respondent on April 18, 1978, until April 24, 1979. arms of Butterly and Lewis.
During working time on April 24, 1979, Blaydes testified The testimonial accounts nevertheless show that,
that they had an extra girl that night and she worked on during their altercation, Blaydes told Butterly and Lewis,
the assembly line as usual whenever they had an extra "F-- you, and the broom you rode in on." 3
girl. She was assigned there by Steve Gay, supervisor of
her shift. Another girl was assigned to be relief girl, 2 Although Blaydes said she did not recall telling Butterly, "F--
which involved relieving girls at their work station in you." or the remarks in reference to taking Butterly's husband up in the
order to permit them to go to the restroom or for other hayloft, I nevertheless credit Miranda's testimony because I was persuad-
personal reasons. Blaydes said one girl hollered back to ed by her demeanor as well as the unobjected to testimonial reports of
participants in the grievance meetings that Blaydes made such a remark,
her for relief, and she went to the girl and told her that as well as telling Butterly, "F-- you, and the broom you rode in on."
she was not relieving and that she would have to wait Moreover, Blaydes did not categorically or convincingly deny she made
for the girl who was relieving. Thereafter, Connie But- the former remarks.
terly hollered at her, saying Linda had to go to the rest- 3 Although Blaydes impliedly denied that she used such language, I
was persuaded by her demeanor while testifying, as well as by the con-
room. Blaydes said she told her that she was not reliev- sistent testimonial accounts of what transpired in the grievance meetings,
ing, that Lisa Haddock was, and that she had already Continued

.
,
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tended,.neck
i , l l
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l l i i i f i ll l i
l l i f i i li ti
ti tric i l quentl r i
t r rises, I ., it ll - i i ry ilt i
l les t t r, I ., irl c ti to serve as relief girl.
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ral T r a nsp or tati oration, 22 N L R B i ti
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Sai l
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1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blaydes also testified that Supervisor Gay was one of Charlene Lewis would not be present because she was in
the persons who separated her and Lewis, and she asked the hospital. Blaydes was asked to tell her story and she
him if she was going to be fired and Gay said he did not did, essentially as she testified in this proceeding. Super-
know, he would have to talk with management. On the visor Gay told his story, essentially as he did in the first
next day, April 25, 1979, Supervisor Gay gave her a grievance meeting. A concensus of the committee again
written warning and advised her she was fired. Charlene concluded that Butterly was the aggressor and Lewis
Lewis and Connie Butterly were also fired on the same was the aggressor, respectively, in each instance with
day. Blaydes, who was the passive victim in each attack.
Thereafter, Plant Manager Paul Moritz said he would
D. Grievance Committee Meetings and Union reinstate Blaydes to her job, but not Charlene Lewis, be-
Membership Meeting in Reference to Dischargee cause she was a troublemaker. Plant Supervisor Harold
Deborah Blaydes' Grievance Carpenter said he thought both Blaydes and Lewis
A composite of the essentially corroborated testimonial should be reinstated. Mary Shirley said both should be
accounts of what was discussed, and what was generally reinstated or neither, in accordance with company
understood and agreed upon during three grievance policy. Business Agent Meyer said he could not make a
committee meetings and two union membership meet- decision until he heard Lewis' version of the incident.
ings, with respect to the grievances filed by Deborah Thereupon the meeting was adjourned.
(Debby) Blaydes and Charlene Lewis, is as follows: Present at the third-step grievance meeting on or about
Present at the first-step grievance committee meeting June 7, 1979: Business Agent George Meyer, Bea Mir-
in or about early May 1979 were: Paul Moritz, plant anda, Jerilene Miller, Meg King, and the testimony is
manager, Supervisor Steve Gay, for Employer, union of- conflicting as to whether Mary Shirley was present, for
ficials Bea Miranda, Jerilene Miller, and Mary Shirley, the Union. Plant Supervisor Harold Carpenter and Plant
for the Union, and grievant Deborah Blaydes. After Manager Paul Moritz were present for Employer, and
Blaydes told her version of the April 24 incidents, as she grievant Charlene Lewis. Grievant Blaydes was asked to
previously testified herein, Supervisor Steve Gay said his leave before the meeting started because the committee
investigation of the incidents indicated dischargee Connie had already heard her version. Lewis told her version of
Butterly had attacked Blaydes and the former acknowl- the incident which was essentially the same as Blaydes'
edged she was in the wrong. testimonial account herein. The concensus of the com-
A concensus of the grievance committee, as did a con- mittee was the same as it was in the two prior grievance
sensus of members at a May union meeting, concluded meetings, with respect to what each dischargee did.
that dischargee Butterly was the aggressor in the inci- Business Agent Meyer asked to have Blaydes reinstated
dent between Blaydes and Butterly; that dischargee to her job and Mary Shirley said, "If you're gonna bring
Charlene Lewis was the aggressor in the incident be- one of them back, bring 'em both." Carpenter said he
tween Blaydes and Lewis; and that Blaydes was passive would have brought Blaydes back but now he would
and only defensive in blocking or trying to remove the have to take it to the Company (Employer). The meeting
hands and arms of Butterly, and later, the hands and was adjourned. Subsequently, Carpenter did advise the
arms of Lewis from around her neck, in an effort to pre- Union, in writing, pursuant to its request, that both
vent them from choking her, scratching her face and grievances (Blaydes and Lewis) were denied by Employ-
neck, or pulling her hair. It was the view of the griev- er.
ance committee that Blaydes had been assaulted by But- There was a union membership meeting in early July
terly and Lewis, respectively, and that Blaydes did not 1978 and Deborah Blaydes, Mary Fields, Bessie Mark-
retaliate, and therefore, should not have been fired. ham, George Meyer, Mary Shirley, and Bea Miranda
Plant Manager Moritz then offered Blaydes her Job were present. Blaydes told Shirley she (Shirley) cost her
back and Mary Shirley said it was company policy to (Blaydes) her job. An argument ensued between Blaydes
discharge both or all employees involved in a fight. and Shirley and Blaydes got angry and left the meeting.
Moritz nevertheless again offered Blaydes her job or Before leaving, she asked Meyer was the Union going to
stated he wanted to reinstate her. Mary Shirley said, process her grievance to arbitration and Meyer said he
"No," the Company had to take both Blaydes and But- did not know. Since the Union was advised by Employer
terly back, or neither one. Charlene Lewis was not pres- (Carpenter) that the grievances (of Blaydes and Lewis)
ent and the committee wanted to hear her version of the were denied, no action was taken by the Union to proc-
incident, so the meeting was adjourned. ess Blaydes' grievance to arbitration, pursuant to the
Present at the second-step grievance committee in or contract. In reference to the grievances, Mary Shirley
about late May 1979 were: Plant Manager Paul Moritz,
abot le My 199 w : P t M r Pl ori, and Meg King testified that the job of the Union is to try
Plant Supervisor Harold Carpenter, and Second Shift Su- to he the disa ed te th U t t
pervisor Steve Gay, for Employer; Business Agent
George Meyer, Bea Miranda, Mary Shirley, and Meg Supervisor Carpenter testified that the Union never
King, for the Uniong foorlady Kathy Heatherly, and contacted him about taking Blaydes' grievance to arbitra-ing, for the Union; floorlady Kathy Heatherly, and
grievant Deborah Blaydes. Bea Miranda announced that tlon He further testified undisputedly that Blaydes'
grievance was denied. It was determined at the last
that Blaydes did use the above language towards Butterly and Lewis. grievance meeting that the Union would not allow Em-
Consequently, I discredit Blaydes' denial and credit the testimony that ployer to reinstate Blaydes without reinstating Lewis and
she used said language. Butterly, and "I had no alternative but to deny the griev-
,
ievance it ee gs ion
ip ischarge r. r l
rah l ydes' rievance t i t t t l i
is.

f

f i fr r r , i ff rt t r - i , in riti , rs a t to its request, that both
t t fr i r, r t i r f rie a ces ( la es and e is) ere denied by ploy-
itt t t l ult t i i ti rl l
t l i , ctiv l , t t l i t , .
l l r , i ir
l t t h e o f e r ed h e r j t i i
i i l la
i r t r ll l i l i fi t. i l l t l t ti .
rit v rt l ss i ff r l r j r f r l i , t i i
t t t t r i t t r. r irl i , ri t i i i
" ," t t t t l t
t rly ck, r it r . rl i t r - ( r t r) t t t ri l i
i t i t r -
i i t, t ti j r . ess l ' ri t r itr ti , rs t t t
r t t t s -st ri itt i r I r ri , r irl
,> . .. ,. - ,.'. *about late May 79 ere: lan anager aul Moritz,
a n t ti i t t t j f t i is t t
la t er is r ar l r t r, ift - t v t e rite
rvis r teve y, f r l y r; si ss t Sav iscarger estified tatedn
eorge eyer, Bea iranda, Mary Shirley, and Meg cSupervisor Carpenter testified that the Union never
Ki , f r t i ; flo rl t t rl , contacted him about takitg Blaydes'grievance to arbitra-
t o n . H e f u r t h e r te !>t lf i e i "" is t l t t l s'
grievant Deborah Blaydes. Bea Miranda announced that i . t
is. ti t t t i l t ll -
Wi ti

CLOTHING AND TEXTILE WORKERS LOCAL UNION 148T 1125
ances of all three dischargees." Carpenter continued to not equate a passive victim of an attack with physical
testify in this regard as follows: force as an employee involved in a fight. Even if
Blaydes' foul language to Butterly and Lewis actually
Q. What do you mean by you had no alternative? provoked them, words alone do not constitute an assault.
A. Well, the Union says we either take none or Moreover, such words cannot be asserted in self-defense
all. We wasn't going to take them all, so we denied to justify physical attack upon a person.
the grievance and didn't take anybody. ... Employer's view of Blaydes' part in both incidents is
Q. Now, you have mentioned the fact that you consistent with the common understanding of the word
had no alternative in view of what we have dis- "fight"-to take part in a physical struggle,4 as distin-
cussed here, you had no alternative but to fire all guished from "altercation"-an angry or heated argu-
three. What do you mean you had no alternative? ment. Apparently Blaydes and Lewis were discharged
What would prevent you from reinstating? before all of the details of each incident were known by
A. Not to hire her. Employer. However, the record shows that after Em-
Q. What do you mean, you had no alternative? ployer was satisfied that Blaydes was a passive victim in
A. In other words, the umnon said take them all both episodes, it immediately applied its policy with a
or none. construction that a passive nonretaliating victim was not
Q. Yes? Q. Ye s ? we w g to tk D y bk what it meant by being involved in a fight. Nevertheless,
A. We were willing to take Debby back. When some union members (Shirley and King) ignored Em-
they said all or none, we said if we couldn't takethey said all or none, we said if we couldn't take ployer's construction of its policy and its decision to re-
just her back, we would take none.Wjust her back, we hwould take none. p y cinstate Blaydes, and continued to maintain that Blaydes
Q. Was there anything that would prevent youQ.from taking Debby back? thatwouldpreventyou was involved in two fights and insisted that Employerfrom taking Debby back?
A. We'd have more problems with the union. reinstate Blaydes and Lewis, or neither of them.A. e'd have more problems with the union. When Employer learned that some union members of
Additionally, according to the undisputed testimony of the grievance committee were not relenting to Employ-
Carpenter, Employer's policy simply says, "all parties in- er's offer to reinstate Blaydes, but not Lewis, it gave in
volved in a fight will be discharged." He said, "It does to the Union's alternative and did not reinstate Blaydes
not say, all or none may be kept or rehired." or Lewis. As Plant Supervisor Harold Carpenter testi-
fied, Employer did not want to have problems with the
Analysis and Conclusions Union so it opted not to reinstate either employee.
Section 8(b)(l)(A) of the Act provides, in part as perti- At the July union meeting, Blaydes asked Business
nent herein, as follows: "It shall be an unfair labor prac- Agent George Meyer whether her grievance was being
tice for a labor organization or its agents-to restrain or processed to arbitration pursuant to the arbitration provi-
coerce employees in the exercise of the rights guaranteed sion of the contract. Meyer replied he did not know, he
in section 7." would have to think about it. Blaydes' grievance was not
In construing the application of Section 8(b)(l)(A) of processed to arbitration in accordance with the arbitra-
the Act, the U.S. Supreme Court and the Board have tion provision of the contract, and Respondent is not
held that a union with "the exclusive agent's statutory shown to have made an effort to do so. Consequently,
authority to represent all members of a designated unit under the foregoing circumstances, I find the evidence
includes a statutory obligation to serve the interests of all sufficient to support a conclusion that Respondent re-
members, without hostility or discrimination towards fused to accept Employer's offer to reinstate Blaydes. Its
any, to exercise its discretion with complete good faith failure to process her grievance to arbitration was there-
and honesty, and to avoid arbitrary conduct." Vaca et al. fore arbitrary conduct, having a coercive and restraining
v. Sipes, 386 U.S. 171 (1967), and Miranda Fuel Compa- effect upon the exercise of employees' rights protected
ny, Inc., 140 NLRB 181 (1962). by Section 7, and in violation of Section 8(b)(1)(A) of
In the instant case, it is unequivocally clear from the the Act.
uncontroverted evidence of record that, in each of the Additionally, I find that Respondent's failure to proc-
three grievance committee meetings, Employer was of ess Blaydes' grievance to arbitration, and its "squeeze
the view that Deborah Blaydes was the passive victim of play" of insisting Employer reinstate Blaydes and Lewis,
the attacks of Butterly and Lewis, and thereupon offered the established aggressors, or neither of them, constituted
to reinstate Blaydes but not Charlene Lewis. Butterly did a breach of Respondent's fiduciary duty to fairly repre-
not pursue a grievance, so some members of the Union sent Blaydes, in violation of Section 8(b)(l)(A) of the
(Mary Shirley) insisted that Emloyer reinstate Blaydes Act.
and Lewis, or neither.
Although it was established that Employer had a IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
policy which provided that all employees involved in a UPON COMMERCE
fight will be discharged, the word "fight" was not de- The activities of Respondent set forth in section 111,
fined and the policy did not prescribe conditions upon above, occurring in connection with the operations of
which Employer would retain or reinstate an employee Respondent described in section I, above, have a close,
who was involved in a fight. Notwithstanding the ab-
sence of such a definition, the evidence is clear that, at 4'Webster's New World Dictionary" (2d Ed. 1972).
least with respect to Deborah Blaydes, Employer does "Webster's New World Dictionary." supra.

' t t t ll, i t j stif sical attack upon a person.
i i t t t i
lt ti i i f t i - i t t i i l t l ,4 i ti
r , l ti t i ll
t r . t lt r ti t.' tl l i i
t l i i ll i
. t i . l r. r, t r r t t ft r -
l ti
. I t , t nio i t t ll t i , it i i t l li it li it
o r no ne. tr ti i t li ti
. e s ? .„. , _ „ , , „ t it t i
i ll i f l ' tr ti l i i
.
Q. Ws thre nythng hat ouldpreent ou nstate Blaydes, and continued to aintain that laydes. t t i t t l r t y ^ Epyefrom taking Debby ~wa
y
W ion.,. *, , ,,. . ,
e r 's

A t t h e J u l u n io n ti , l a s
e d B u si n e ss
t r r ri as ei
t t t. r li i t , e

o n
. tl ,
u n d e r t h e , I fi t i
t t t r -
f u se d
e f f e c t
. , l
e

V
.
T H E

, t ti iti t t t i ti III,
, i t

t it t i t a -
" ebster's
' ebster's l i ti . .
i i l ,
i i
ti )(l rti
i It ll i r i
i ti t - t i i i i
r l
ti '
tr i l ti ti l i i
t i t
l t l i t t r f ntl
t rit ll i i i i t
t t r l i t ll f l i t
tilit i i t '
ti i
t i i i t i r i tr i i
iranda - '
ti ti )(l
ui ca l
ll
tt t ' i
i ti ,
l t li i ti
. rl i l
, , ti l
i
i
lt t t l I I
l ll
i ill i , t i ti t f ti
fi t li i t ri i i r i ti i ti f
i t ri ti
i t i
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intimate, and substantial relationship to trade, traffic, and loss of earnings she may have suffered as a result of her
commerce among the several States and tend to lead to discharge on April 25, 1979, until such time as Blaydes is
labor disputes burdening and obstructing commerce and reinstated by Employer, or said employee obtains other
the free flow of commerce. substantially equivalent employment.
Having found that Respondent has engaged in unfair Upon the basis of the above findings of fact and upon
labor practices warranting a remedial order, I shall rec- the entire record of this case, I make the following:
ommend that it cease and desist therefrom and that it
take certain affirmative action to effectuate the policies CONCLUSIONS OF LAW
of the Act.
It having been found that Respondent has restrained 1. Leshner Corporation, Employer herein, is, and has
and coerced its members by repeatedly and arbitrarily re- been at all times material herein, an employer engaged in
fusing to accept Employer's offer to reinstate dischargee commerce within the meaning of Section 2(6) and (7) of
Deborah Blaydes, unless Employer also reinstate dis- the Act.
chargee Charlene Lewis, or neither employee, and final- 2. Amalgamated Clothing and Textile Workers Local
ly to further process Blaydes' grievance to arbitration; Union 148T, AFL-CIO-CLC, Respondent herein, is,
that Respondent also further coerced its members by and has been at all times material herein, a labor organi-
breaching its fiduciary duty fairly to represent her, all in zation within the meaning of Section 2(5) of the Act.
violation of Section 8(b)(l)(A) of the Act, the recom- 3. By repeatedly and arbitrarily refusing to accept Em-
mended Order will provide that Respondent cease and ployer's offer to reinstate dischargee Deborah (Debby)
desist from engaging in such unlawful conduct, and that Blaydes, and failing to process her grievance to arbitra-
it promptly request Employer to reinstate Deborah tion, Respondent violated Section 8(b)(l)(A) of the Act.
Blaydes to her former position or, if such position no repeatedly and arbitrarily failing to process dis-
longer exists, to a substantially equivalent position, or, if By reeatedly and arbitr y ag to r s
Employer refuses to reinstate Blaydes, Respondent chargee Deborah (Debby) Blaydes' grievance to arbitra-
should request Employer to processn tion, Respondent breached its a grfiduciary duty fairly to
said employee's discharge and pursue such grievance in represent Deborah (Debby) Blaydes, in violation of Sec-
good faith and due diligence, including permitting tion 8(b)(l)(A) of the Act.
Blaydes to have counsel or other representative of her 5. The aforesaid unfair labor practices are unfair labor
own choosing during such grievance arbitration proceed- practices affecting commerce within the meaning of Sec-
ing, and reimburse Blaydes for the reasonable cost there- tion 2(6) and (7) of the Act.
of, and Respondent shall make Blaydes whole for any [Recommended Order omitted from publication.]
merce,.substantially

)
.
,
ti )(l t dl it ril i t
i i t t t l r' ff r t r i st t isc r eborah ( ebby)
i i l f l i i
it tl r t l t i t t ti , t i l t ti l t t.
l t r f r r iti r, if iti 4. By t l
l r i t , t tantially i l t i i if c D' g. t arita
E ployer refuses to reinstate Blaydes, Respondent tion,.Responden breache its fiduciary dt frly to
s l re est l er to process a grievance over trep R e sp o n d e n tb b re a c h e db b t sBy d u c a r yi d u t y f at r l y t o
i i e p t e a n t D e b o t h ( D e b b y ) B la y d e s , in v lo l a t lo n o f S e c -
l f t t.
.

Fid i