Brewery Workers Local 1016, IBT (American Malting Incorporated)

National Labor Relations Board - Board Decisions

Mar 19, 1982

260 N.L.R.B. 1078 (N.L.R.B. 1982)

tDECISIONS OF NATIONAl. LABOR RELATIONS BOARD
Brewery Workers Local 1016, IBT (American Malt-
ing Incorporated) and David M. Pawelek. Case
3-CB-3713
March 19, 1982
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMI RMAN, AND
HUNTI IER
On October 28, 1981, Administrative Law Judge
Michael O. Miller issued the attached Decision in
this proceeding. Thereafter, the Charging Party
filed exceptions 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, dismissed in its entirety.
I In ser IIB. "Analsis and Cocllisiois," of his Decision. the Adminl-
istrative L.au Judge inadvertently states: 'Respondent had it, practice of
paying for such timne and the Unioln had rno basiis on which 1to ilaim pa?-
menti" The word "Responident" should he "American" (Ihe Employer)
DECISION
STATEMENI OF IHE CASI
MICHAEI O. Mi I .ER, Administrative Law Judge: This
case was heard in Buffalo, New York, on August 24 and
25, 1981, based upon a charge filed by David M. Pawe-
lek, an individual, on October 7, 1980,' and a complaint
issued on behalf of the National Labor Relations Board,
herein called the Board, by the Regional Director for
Region 3 of the Board, on November 14.
The complaint alleges that Brewery Workers Local
1016, International Brotherhood of Teamsters, herein
called the Union, violated Section 8(b)(l)(A) of the Na-
tional Labor Relations Act, herein called the Act, by
failing fairly to represent Pawelek. The Union's timely
filed answer denies the commission of any unfair labor
practices.
All parties were afforded full opportunity to appear, to
examine and to cross-examine witnesses, and to argue
( All dates hereinafter are 198() unless otherwise specified.
260 NLRB No. 154
orally. The Union filed a brief which has been carefully
considered.
Based upon the entire record, including my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing:
FINDINGS 1: FAC I
I. THI: UNION'S L ABOR ORGANIZATION SiA US AND
JURISI)ICT'ION-PREL.IMINARY CONCI.USIONS OF IAW
The complaint alleges, the Union admits, and I find
and conclude that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
The Union is the collective-bargaining representative
of the production and maintenance employees of Ameri-
can Malting Incorporated, herein called American or the
Employer. American is a New York corporation en-
gaged at Buffalo, New York, in the processing, sale, and
distribution of malt, grain, and related products. Jurisdic-
tion is not in issue. American annually manufactures,
sells, and distributes from its Buffalo plant products
valued in excess of $50,000 which are shipped directly
from said plant to States of the United States other than
the State of New York. The complaint alleges, the
answer admits, and I find and conclude that American is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE ALL EGEiD UNFAIR l.ABOR PRACTICES
A. The Facts
The General Counsel contends that the Union unfairly,
arbitrarily, or invidiously breached its duty to represent
Pawelek during September 1980 by failing to process a
grievance and by demanding that American "impose
equal discipline upon [Pawelek] and another employee
for an altercation which occurred between them in the
plant on working time on or about July 21." The Union
asserts that it represented Pawelek in regard to his griev-
ance and denies that it sought an increase in Pawelek's
discipline for his role in the altercation. Rather, it sought
reduction of the discipline assessed against his fellow em-
ployee. Upon my careful evaluation of the facts as de-
scribed below, I am compelled to agree with the Union.
David Pawelek has been employed by American for
more than 8 years. He had secured his employment with
the assistance of William Evens, the Union's business
agent and business manager, a friend of his parents for 20
or more years. Pawelek was employed in the bargaining
unit and was a member of the Union.
The collective-bargaining agreement between the
Union and the Employer provides that employee griev-
ances "relating to the interpretation or application of the
Agreement" are to be taken up initially by the employee
or his steward and the employee's foreman. Thereafter, if
no satisfactory adjustment is reached, the matter is re-
ferred to the Union's secretary for attempted adjustment
between higher representatives of the Union and the Em-
ployer. Final and binding arbitration is available for reso-
lution of those grievances which are not resolved at this
second step. Pawelek became a frequent grievance filer
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BRREWERY WORKERS L(OCAL 101t. I3RT
from the start of his employment. According to Evens,
Pawelek filed more grievances than all the rest of the
unit employees combined. Pawelek recalled filing three
or four grievances in 1974, alleging inequitable work dis-
tribution and supervisory harassment. Evens represented
him on these grievances and resolved the work distribu-
tion issues to his satisfaction. However, Pawelek claimed
that the supervisory harassment continued. Pawelek
could not recall whether he filed any grievances in 1975
or 1976. He filed some grievances in the spring or latter
part of 1977 but could recall no details beyond the fact
that he was satisfied with the quality of the Union's rep-
resentation.
It was in 1977 or 1978, Pawelek alleges, that Evens
began to fail properly to process his grievances. He illus-
trated this with the following example: Sometime during
this period, a fellow employee, Ralph Graf, had angrily
accused Pawelek of making false statements about Graf.
Pawelek, who understood a grievance to be any problem
which one wrote down and gave to the Union for cor-
rection, filed a grievance against Graf. Evens came to
the plant and told both Pawelek and Graf, "Shake hands
or go settle it out on the dock"; i.e., fight it out. Graf
and Pawelek shook hands and went back to work; Pawe-
lek was satisfied. However, he complained that he never
got a written answer to his grievance.
On January 22, 1979, Pawelek was suspended without
pay for 2 days for failure to perform his duties as in-
structed. He filed a grievance on February 7, 1979, and,
as a result of the Union's representation, the Employer
agreed to reduce his discipline to a single day's suspen-
sion and a warning that future misconduct or violation of
company rules and practices would result in more severe
penalties.
On July 25, Pawelek became involved in a physical al-
tercation with Dick Kiener, a fellow employee. Alleged-
ly, Kiener attacked Pawelek at his work station. Pawelek
told Supervisors Bill Shaw and Larry Benkstein about
the assault and they told hin to file a grievance. Pawelek
did so. Because of chest pains stemming from the alterca-
tion, American took Pawelek to the hospital for X-rays
where, following an examination, he was told to take the
remainder of the day off. In addition to his grievance,
Pawelek filed a harassment complaint in Buffalo City
Court, charges against Kiener under the Union's consti-
tution, and a claim for workmen's compensation.
American's executive vice president, Robert Limburg,
called Evens and told him of the fight and both of them
then investigated the circumstances. Witnesses told
Evens that it had been basically a shoving match. Lim-
burg spoke to employee witnesses; he tried to talk to
Pawelek but Pawelek refused to discuss it with him. Be-
cause of Pawelek's pending court action, Limburg and
Evens decided to hold up on the processing of Pawelek's
internal union charges and on the Employer's determina-
tion regarding discipline.
About August 15, Pawelek felt that he was being har-
assed by his supervisor, Benkstein, because of the fight
with Kiener. This harassment, he contended, made him
nervous to the point of being ill and he went to the
office to ask that someone take him to the hospital. Lim-
burg, who was in the office at the time, told Pawelek
that he would not be compensated for the day if he left.
American transported him to the hospital, where he was
given a tranquilizer and sent home.
In the following week, Pawelek received his pay and
noted that he had not been paid for the day on which he
had gone to the hospital. When he complained to Shaw,
he was told that he would not be paid for the day. On
August 19, Pawelek filed a grievance complaining of the
harassment by Benkstein and of the Employer's failure to
pay him for the lost day.2 On August 20, Pawelek was
given a disciplinary action notice for his alleged negli-
gent performance, on August 14, of assigned duties and
for his failure to meet established work standards. The
notice was signed by Shaw and Benkstein. Pawelek filed
no grievance against this discipline.
About August 22, according to Pawelek, a meeting
was held between the Employer and the Union in regard
to his August 19 grievance. Evens was present. Pawelek
believed that he was being poorly represented' and
stated that, if there were going to be a meeting, he
wanted his own attorney present. He left the meeting
and it continued without him. Subsequently, Pawelek re-
ceived the Employer's reply, denying that Benkstein's
discussions with him concerning the performance of his
assigned duties were harassment and asserting that the
Employer had no policy of paying employees for lost
time except where an employee had sustained a physical
injury on the job. It also denied that Benkstein's repri-
mand of him was related to any prior incidents.
Pawelek asked Evens about his grievance several times
thereafter. Each time, according to Pawelek, Evens told
him, "[Don't bother me] with that shit. Just be lucky you
got your job."
Evens had attempted to investigate Pawelek's griev-
ance but none of the employees to whom he spoke had
witnessed the alleged harassment. He met with the Em-
ployer's representatives in late September, he recalled, in
a meeting to which Pawelek had been invited but refused
to attend, and accepted the Employer's positions that
there had been no harassment and that its policies did
not provide for pay for lost time under these circum-
stances. 4
The collective-bargaining agreement between Ameri-
can and the Union does not provide for sick leave. Ac-
cording to Limburg's credible testimony, American only
pays for lost time where an employee has sustained a
compensable physical injury. The only exception oc-
curred when the Employer, in order to induce an emo-
tionally troubled employee to leave the plant before he
hurt himself or someone else, acceded to a request to pay
that employee for the lost time.
I Pawelek gave fesv details of this alleged harassment in the course of
his testimony The grievance alleges not only the harassment but also a
threat by Benkstein to issue a reprimand to Pawelek if Pawelek grieved
The record contains no probative evidence of such a threat
Pa. elek initially testified that he stated that at this meeting On cross-
examination. he acknowledged that he only believsed. hut had not verbal-
ized his hhbelief that he wa, being poorly represented
I h is not clear from this record whether the meeting swhich Evens de
scribed as hasing taking place in late September is the same as that
placed by Passelek )in or about August 22 There are certain similarities
about Ihem
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DE CISIONS () NATIONAl LAB()OR RIELATIONS BO()ARD
After Pawelek's harassment complaint against Kiener
in Buffalo City Court was adjourned in contemplation of
dismissal, but prior to the actual dismissal thereof, Lim-
burg decided on the discipline to be given both belliger-
ents. Each was to receive a reprimand; additionally,
Kiener would be suspended for 3 days. Pawelek was
called into Limburg's office and was told: "We have
come to a conclusion on the answer on how to resolve
this." Limburg then described the discipline decided
upon. ' Limburg also informed Evens and Union Steward
Jim Lipa about his decision. Evens came to the plant and
he and Lipa met with Pawelek. They repeated what
Limburg had said about the discipline. Pawelek told
them that he was not satisfied, he disapproved, and he
wanted no discipline at all. According to his own testi-
mony (corroborated in substantial part by both Evens
and Lipa), Pawelek told Evens that, if Evens had any-
thing to say, he would like it in writing for his own at-
torney. Evens replied, "[Don't] give [me] any of that
legal bullshit." Pawelek asked Lipa if he had heard that
statement and Lipa acknowledged that he had. Pawelek
then began to walk out of the office and, as he was leav-
ing, Evens told him that he was 95 percent of the trouble
in the Company. Again, Pawelek asked whether Lipa
had heard what Evens had said and was told that he
had. Evens then told Pawelek, "You are nothing but a
punk." Lipa acknowledged hearing that as well.
On cross-examination, Pawelek further testified that
Evens had told him that he (Evens) would not settle for
anything less than a 3-day suspension and a letter of rep-
rimand for both Pawelek and Kiener. Pawelek then ad-
mitted that that is what he understood from Evens and
Lipa having said that Evens believed both Kiener and
Pawelek should receive equal punishment. Pawelek ad-
mitted that Evens never told him that the Union was
going to seek an increase in his discipline.
Pawelek filed no grievance over the letter of repri-
mand given him for his involvement in the altercation.
Kiener, however, did grieve his discipline. In processing
that grievance, Evens expressly sought the reduction of
Kiener's penalty to that assessed against Pawelek. When
the Company refused to accede to this position, the
Union took Kiener's grievance to arbitration and pre-
vailed. Both employees thus received the same penalty, a
letter of reprimand.
The General Counsel contended that Evens had failed
to process Pawelek's grievance and had sought to equal-
ize the discipline assessed against Pawelek with that
given Kiener because of animus borne by Evens against
Pawelek. That animus allegedly arose out of an unhappy
but unrelated business dealing between Evens and Pawe-
lek's parents in early 1977. Evens and his son had rented
a garage from Pawelek's parents in which to conduct an
automotive repair business. They had occupied it from
February 1976 until February 1977. The Evenses were
not satisfactory tenants to the senior Paweleks and the
lease was not renewed, Thereafter, Evens, who had been
a regular customer at the Paweleks' tavern, ceased to fre-
l Pawelek testified initially that Limburg had told him that the Compa-
ny and the Union had decided on this discipline. He admitted that he had
concluded this from L ilmburg's having said "We have come to a conclu-
sion
quent that establishment. David Pawelek was entirely
unaware of these events for at least a year thereafter.
Evens denied that he bore any animus against David
Pawelek because of his business dealings with Pawelek's
parents. However, he candidly acknowledged that he did
not like Pawelek. He had received a number of com-
plaints about Pawelek from Pawelek's fellow employees
and believed Pawelek to be a destructive element in
American's small business. He did not wish to see Pawe-
lek's conduct, including repeated grievance filing, cause
American to fail. As noted, the Union had continued to
process grievances satisfactorily for Pawelek in both
1977 and 1979, subsequent to the alleged dispute.
B. Analysis and Conclusions
The facts herein speak for themselves and warrant
little discussion. There is not an iota of evidence to indi-
cate that the Union sought, for reasons good or bad, to
increase the discipline assessed against Pawelek for his
role in the altercation with Kiener.6 There was, I con-
clude, no union conduct which could be considered as a
breach of any duty owed to Pawelek. In reaching this
conclusion I note, inter alia, that Pawelek filed no griev-
ance against his discipline. Thus, he did not ask the
Union to do anything in regard to it. The Union had re-
ceived a grievance from Kiener and prosecuted it suc-
cessfully. The remedy the Union sought and achieved
for Kiener was clearly not unwarranted in the circum-
stances presented and had no adverse effect upon Pawe-
lek. Moreover, fighting among employees was prohibited
in the plant and as a participant in a fight Pawelek ex-
pected to receive some discipline. The discipline he re-
ceived was the mildest possible under the circumstances.
Similarly, I can find no breach of the Union's duty of
fair representation in its refusal to further process Pawe-
lek's grievance against Benkstein, which sought the lost
day's pay. Respondent had no practice of paying for
such time and the Union had no basis on which to claim
payment. Moreover, the Union did look into Pawelek's
harassment claim and unsuccessfully sought to have
Pawelek attend the meeting with Limburg and Benk-
stein. In light of Pawelek's refusal to cooperate, his histo-
ry at American, including a prior warning for similar
conduct, and the Union's record of satisfactorily repre-
senting Pawelek on other grievances, I cannot conclude
that Evens' acceptance of the Employer's position and its
refusal to take Pawelek's grievance to arbitration was un-
reasonable or for arbitrary or invidious reasons.
CONCLUSION OF LAW
The Union has not engaged in the unfair labor prac-
tices alleged in the complaint.
" Fhe General Counsel did not dispute this conclusion when confront-
ed with the facts, the General Counsel raised an alternative argument.
coXntending that Evens' and Lipa's statements to Pawelek, to the effect
that the Union would seek equal punishment, implied that they would
seek greater punishment for him and thus constituted a threat arising out
of Evcen,' animus toward Paswelek Such an allegation is outside the ambit
iof the complaint before me Were it prioperly pleaded. I would reject it
as being untwarranied from the facts herein
I()8
BREWERY WORKERS LOCAL 1016. IBT
Upon the basis of the foregoing findings of 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:
ORDER7
The complaint herein is dismissed in its entirety.
"In the e, rut no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulationl of the National L ahor Relations Board, Ihe find-
rigs, conclusions. and recommended Order herein shall. as provided in
Sec 102 48 of Ihe Rules and Regulations he adopted h. the Board and
become its findings, conclusions, and Order, and all objections thereto
shall he deemed .rvaised for all purposes
1081