American Federation of Grain Millers Local 33

National Labor Relations Board - Board Decisions

Dec 21, 1978

239 N.L.R.B. 978 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
American Federation of Grain Millers Local 33, AFL-
CIO and Charles Mingus, Representative (Boise
Cascade Corporation) and Carlton Lowe. Cases 9-
CB-3539 and 9-CB-3576
December 21, 1978
DECISION AND ORDER
BY MEMBERS JENKINS MURPHY. AND TRUESDAI.E
On August 31, 1978, Administrative Law Judge
Bernard Ness issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings,' and
conclusions 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, dis-
missed 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 respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing his findings.
violated Section 8(b)(1)(A) of the Act in their treatment of
Mary Boston and Carlton Lowe, both stewards of the
Union and employees of Boise Cascade Corporation,
herein called the Company. The complaint alleges that the
Union's and Mingus' actions taken against Boston were
because she threatened to utilize the processes of the Na-
tional Labor Relations Board, herein called the Board, if
the Union failed to support a grievance filed by her against
the Company concerning employee Harold Sarles. The
complaint further alleges that the Union's and Mingus' ac-
tion taken against Lowe were because he filed the unfair
labor practice charge in Case 9-CB-3539 on her behalf and
because he testified on her behalf before the Union's trial
board on March 14. The Union has denied the commission
of any unfair labor practices and contends that the actions
taken against the individuals concerned were not for the
reasons alleged in the complaint. It should be noted that
insofar as their employment is concerned, stewards do not
receive any additional benefits or emoluments attending
such position. They only are relieved from paying union
dues.
Upon the entire record, including my observation of the
witnesses and their demeanor, and after due consideration
of the briefs filed by the parties, I hereby make the follow-
ing:
FINDINGS OF FACT
i. THE BUSINESS OF THE COMPANY
The Company is engaged at its New Albany, Indiana,
plant, in the manufacture of fiber cans. During the 12-
month period preceding the issuance of the complaint, it
sold and shipped products valued in excess of $50,000 from
its New Albany plant directly to points outside the State of
Indiana. The parties agree, and, based on the foregoing, I
find, that the Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The parties agree, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
IIL. THE ALLEGED UNFAIR LABOR PRACTICES
DECISION
STATEMENT OF THE CASE
BERNARD NESS. Administrative Law Judge: These consol-
idated cases were heard at Louisville, Kentucky, on De-
cember 13, 1977, pursuant to unfair labor practice charges
filed in Cases 9-CB-3539 and 9-CB-3576 by Carlton L.
Lowe, an individual, on April 18 and June 13, 1977, re-
spectively,' and separate complaints consolidated for pur-
poses of hearing. The complaints in Cases 9-CB-3539 and
9-CB-3576 issued on June 8 and July 29, respectively. The
consolidation order was issued on July 29. The complaint
alleges that the Union and Charles Mingus, its president,
All dates hereinafter are in 1977 unless otherwise indicated.
The Union represents the production and maintenance
employees at the plant. The collective-bargaining contract
between the Union and the Company during the period
herein involved was from September 1, 1975, through Au-
gust 31, 1977. Mingus, an employee at another company,
has been president and business representative of the
Union since 1972. Lowe, an employee of the Company,
was the steward for the inspection department for 8 years
and was the chief steward of the entire bargaining unit
since 1976. Boston became a steward in May 1976. Both
Lowe and Boston are members of a three-person plant
committee which is involved in the grievance process. Stin-
er was the third member on the committee. Mingus' role in
the grievance procedure is only advisory in the initial
stages.
978
GRAIN MILLERS LOCAL 33
Mingus preferred charges with the Union against Boston
on January 31, charging her with improper conduct in that
she lied about him and brought discredit upon the Union.
A hearing was held before the Union's trial board on Feb-
ruary 19 and March 5. On March 14, the trial board found
her guilty and invoked the penalty of censure and a sus-
pension of rights in the Union for 6 months. The union
membership ratified the trial board's action on March 22.
By letter dated March 25, Mingus notified Boston that she
was removed from office as a steward and was suspended
from all union activities for 6 months.
The General Counsel's contention is that the action tak-
en against her was because she expressed an intention to
seek the assistance of the Board if the Union did not pur-
sue a grievance involving Sarles. The Union has denied
that this was a consideration in disciplining Boston.
Boston wrote a letter to the International, dated Decem-
ber 26, 1976, complaining that an employee, Harold Sarles,
did not have an adequate opportunity to bid on a job. 2 The
letter stated, inter alia, "He could have been contacted by
registered letter or a continued effort by the Union Presi-
dent to bid on the job. I am asking your assistance in sup-
porting this grievance within seven days or I will refer this
grievance to the National Labor Relations Board, Wash-
ington, D.C. in that the union will not support or submit
the grievance to the Company." (G.C. Exh. 2) Internation-
al President Wellborn responded by letter of December 30.
(G.C. Exh. 3). He suggested that if Sarles had not yet filed
a grievance, he should submit one and give a copy to Min-
gus. The letter went on to say, "I would further suggest that
in the future when you request assistance from this office
that you do so on the basis of the facts and refrain from the
unnecessary threats of going to the National Labor Rela-
tions Board as you are, of course, perfectly free to go to the
National Labor Relations Board at any time you wish to
do so. However, we do have, at all times, representatives
available who are more than pleased to assist you in any
difficulties arising." Boston directed another letter to the
International, dated January 3 which reads as follows:
Mr. Wellborn:
I referred this matter to the national office because
the available representatives (President of Local
Union) would not take the grievance to the company
or management. This lack of support by the local led
me to offer you the first chance to settle this grievance.
Should you not make an effort I will then make an
appeal to the National Labor Relations Board. You
must realize this grievance effects [sic] each person
working for this company.
Further it goes without saying I would not write this
letter to the national union without Mr. Sarles filing a
2 The existing contract provided that employees interested in applying for
a job vacancy must apply within 48 hours. A side agreement between the
Union and the Company, in effect for a number of years. provided that the
Union would attempt to contact employees who were away because of sick-
ness, vacation, etc. A job vacancy was posted in early October 1976. Sartes
was on vacation at the time. Steward Stiner intended to contact him but
learned Sarles l.,d no phone. When Sarles returned. he was disappointed
that he did not have any opportunity to bid on the Job vacancy
grievance and signing it. Second, Mr. Sarles would not
sign a grievance and submit it without wanting the
promotion.
If your representatives really want to help, send one
down to discuss this matter immediately or it will then
become necessary for me to contact the National La-
bor Board.
I will submit this grievance to the company myself
without higher Union support, as you suggested. How-
ever we will not accept settlement of this grievance
until all of my people feel satisfied that they are being
fairly treated.
Expecting to hear from you very soon.
Mary Boston
Union Steward
Boise Cascade Co.
3303 Grant Line Road
New Albany, Indiana 47150
A copy of Boston's first letter was forwarded to Mingus,
which he received on January 3. He received her second
letter on Janaury 12. Mingus wrote to the International on
January 7, responding to Boston's December 26 letter, and
sent copies to the plant committee, which included Boston
and Lowe. (G.C. Exh. 6.) In this letter he described his
efforts to have Sarles bid for the job vacancy and this was
known to the Committee. He also stated that Sarles had
not even filed a grievance.3 On January 15, Mingus again
wrote to the International, referring to Boston's Janaury 3
letter, copies to the plant committee. (G.C. Exh. 7.) He
accused Boston of lying when she reported that he would
not take the grievance to the Company and stated that her
action constituted a "serious breach of Committee respon-
sibility and Union by-laws." He added that he was un-
aware that a grievance had even been submitted. On Ja-
naury 31, Mingus preferred charges against Boston and
submitted the letters she had written to the International.
(G.C. Exh. 8.)
Mingus testified that he preferred charges against Bos-
ton because she lied about him when she said he would not
pursue the Sarles grievances. He testified that he learned
she had circulated her letters in the plant and the letters
were posted on the bulletin board. This dissemination of
the letters also prompted him to prefer the charges against
her. Mingus had spoken to Sarles in October concerning
Sarles' lack of opportunity to apply for the job vacancy.
Mingus conceded the unfairness of the 48-hour rule and
told Sarles he would attempt to have it changed in the next
contract negotiations. At the request of the plant commit-
tee, Mingus brought up the Sarles affair with the Company
on October 19 at a regular company-union meeting. The
Company refused to deviate from the 48-hour rule. On De-
cember 12, after a union meeting, Boston pressed Mingus
to do something about the Sarles affair. Lowe testified that
at this meeting on December 12, Mingus told Boston "she
could not file a grievance or go to the National Labor Re-
lations Board." He also conceded, however, that Mingus
3 The Sarles grievance was first presented on January 16 Mingus first
learned of it on February 3 At the fourth step the parties agreed there was
no violation of the contract
979
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had many times told the stewards that no member would
be denied the right to present a grievance. At the trial
board hearing on February 19, Lowe testified to the same
effect and was called a liar by Mingus at that healing.
Boston corroborated Lowe at the trial board hearing. At
the hearing before me, she was called by the General
Counsel, but her testimony was limited only to the identifi-
cation of her December 26 letter to the International.
The General Counsel points in his brief to certain of
Mingus' testimony at the trial board hearing, which was
substantially repeated at the hearing before me. This was a
colloquy between Boston and Mingus on December 12. It
reads as follows:
Boston: Ed, can't we do anything for Sarles?
Mingus: No, I've already brought the case before
the company. We don't have a case. In fact, if we
insisted and the company granted the job award, both
the company and union would be vulnerable by con-
tract language to the other party that got the bid.
Boston: What about NLRB charges?
Mingus: You have a misconception about the
NLRB. They do not dictate to us. We have the respon-
sibility to process grievances and make good faith dis-
position of them.
Boston: I don't have a misconception of the
NLRB. I told the people when I ran for office, I would
push their grievances all the way.
Mingus: What do you want to do arbitrate all the
grievances? I have a responsibility to all the members
under the Constitution.
Boston: No.
Mingus: What do you mean by all the way? Boston
did not answer.
The General Counsel submits that this colloquy supports a
finding that Mingus would not support a Sarles grievance
and that he did not favor Boston going to the Board. Thus,
according to the General Counsel, it was this dialogue that
motivated Boston to communicate with the International,
and the statements in her letters were not lies. The General
Counsel's position is that since Boston's letters mentioned
the possible intention of using the Board's processes, and
Mingus attached her letters to his charges against her, it
follows that a reason for the charges against her and for the
trial board's finding was based upon her intention of going
to the Board. I do not agree. Mingus, in his testimony be-
fore me, which I credit, expressly stated that he was not
concerned with the possibility that she might go to the
Board. And at the hearing before the trial board, this mat-
ter came up only in an indirect way. Mingus testified as
stated in the above colloquy. I do not construe his com-
ments as a directive that a Sarles grievance could not be
filed or that she could not go to the Board. In short, I find
that Mingus preferred charges against Boston because her
letters to the International misrepresented his actions in the
Sarles affair and because she was circulating the letters in
the plant. There is no suggestion in the minutes of the trial
board that its findings were predicated in any way on the
fact that she was considering going to the National Labor
Relations Board. To put it another way, I do not agree that
Mingus' action or the trial board's action was because she
threatened to utilize the Board's processes as alleged in the
complaint. Accordingly, I shall dismiss this allegation.
Mingus preferred charges with the Union against Lowe
on April 29, charging Lowe with improper conduct and of
being deceitful. A hearing was held before the Union's trial
board on May 14. Lowe received timely notice of the hear-
ing but chose not to appear. On May 18, the trial board
found Lowe guilty of the charges. He received a censure, a
suspension of rights in the Union for 6 months, and a $40
fine, which he ultimately paid. The trial board's decision
was ratified by the membership on May 24, and Mingus
thereafter removed Lowe from the position of chief stew-
ard.
The complaint alleges that the action taken against Lowe
was in retaliation for his having filed charges with the
Board's Regional Office on behalf of Boston on April 18
and because he testified on her behalf at the trial board
hearing on March 14.4 At the trial board hearing, the thrust
of Mingus' charge was Lowe's behavior in the Reynolds
grievance and in the feed-in tube grievance. I find it unnec-
essary to dwell at length on each of these incidents. An
employee, Janet Reynolds, wanted what was called in the
record a "sign sheet" concerning the availability of em-
ployees in her department for work on weekends or holi-
day overtime. This was brought to Mingus' attention by
Lowe in mid-February. Both expressed the view that they
preferred not having a sign sheet. Mingus added that if an
employee insisted upon it, he felt that, pursuant to the con-
tract terms she would prevail. Thereafter, Mingus learned
that Lowe had told employees that he (Mingus) had said
there would not be a sign sheet. Mingus denied to the em-
ployees that he had taken such position. At his request, one
of the employees involved, Adan:s, confirmed this in writ-
ing to him on April 7.5 Mingus had also charged that Lowe
withheld from the Union and its committee the fact that he
had approached the Company in June 1976 on the alloca-
tion of overtime work on the feed-in tube operation, thus
misleading employees to file a grievance on this matter.
Mingus stated that the Union first became aware of Lowe's
role in this matter when this was revealed by the Company
at a meeting between the parties in January. Mingus stated
he later received reports that Lowe was denying to employ-
ees that he had approached the Company on this matter.
Mingus also stated that Lowe lied to him when Lowe said
he had spoken to Mingus about the matter on a specific
date in June 1976. Thus, Mingus accused Lowe before the
trial board of being deceitful, making misrepresentations,
and slandering him. Apart from the timing of Lowe's first
unfair labor practice charge, there is nothing in the record
to suggest that Mingus' charges against Lowe were pre-
ferred for that reason. Nor does the record show that the
Union's findings against Lowe were based upon his having
filed unfair labor practice charges on behalf of Boston.
Likewise, the record made before the trial board did not
include any testimony concerning Lowe's having appeared
as a witness at the Boston hearing. I find that the prepon-
derance of the evidence does not support the General
Counsel's contention that the action taken against Lowe
4 Lowe actually testified on behalf of Boston on February 10 rather than
March 14.
l 'he first unfair labx)r practice charge was filed on April 18.
980
GRAIN MILLERS LOCAL 33
was because he had filed unfair labor practice charges with
the National Labor Relations Board or because he had
testified on behalf of the trial board hearing. 6 Accordingly.
this allegation shall likewise be dismissed.
CONCLUSIONS OF LAW
I. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the mean-
6 Even if the latter were one of the reasons for the action taken ag,.,ii,
Lowe. I have serious doubts that this would hase been mio.tlsc of Ihe \
in the circumstances of this case
ing of Section 2(5) of the Act.
3. Respondent has not engaged in the unfair labor prac-
tices alleged in the complaint.
Upon all the foregoing. and pursuant to Section 10(c) of
the Act. I hereby issue the following recommended:
ORDER7
It is hereby ordered that the complaint herein be dis-
missed in its entirety.
In Ihr e ent no excepti.ms ire filed as prosided by Sec 102.46 of the
Rules and Regulations ,f the National L.ahor Relations Board. the firdings.
olnclusins. aind recolmiended Order herein shall ils provided ili Se,
10248 of the Rules and Reulations, he adopted ho the Board and bhecime
i n f.lin.'in . conclusiins. and Order and and ll objections thereto shall he
deemed mised for all purposes.
981