Catalytic, Inc.

National Labor Relations Board - Board Decisions

Jan 28, 1991

301 N.L.R.B. 380 (N.L.R.B. 1991)

380
301 NLRB No. 44
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent’s request for oral argument is denied, as the record, ex-
ceptions, and briefs adequately present the issues and the positions of the par-
ties.
2 United Association of Journeymen and Apprentices of the Plumbing and
Pipe Fitting Industry of the United States and Canada.
Catalytic, Inc. and Plumbers and Pipefitters Local
Union No. 520. Case 4–CA–15320
January 28, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On August 23, 1988, Administrative Law Judge
Karl H. Buschmann issued the attached decision. The
Respondent filed exceptions1 and a supporting brief.
The General Counsel and the Charging Party each filed
an answering brief to the Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
The issue in this proceeding is whether the Board,
in the exercise of its discretion, will defer to a contrac-
tual grievance settlement prior to arbitration by the em-
ployer and the collective-bargaining representative,
where that settlement is opposed by the grievant and
his local union, which is not the bargaining representa-
tive or a party to the contract. The judge refused to
defer because the grievant, who was affected by the
settlement, and his local union, which was present at
the first step of the grievance procedure, refused to ac-
cept the settlement. For the reasons set forth below we
defer to the settlement and dismiss the complaint.
I. BACKGROUND
A. The Work Dispute and Berry’s Discharge
The Respondent is an engineering contractor en-
gaged, inter alia, in performing maintenance service
for Philadelphia Electric Company (PECO) at the
latter’s Peach Bottom nuclear generating plant in
Delta, Pennsylvania. The Respondent’s craft employees
at Peach Bottom are covered by the General Presi-
dents’ Project Maintenance Agreement (GPA), nego-
tiated on a nationwide basis with 14 International
Building Trades Unions, to which the Respondent is
signatory. The Charging Party, Plumbers and Pipe-
fitters Local Union 520, supplies employees to em-
ployers at the job, but it is not a party to the contract.
It is, however, an affiliate of one of the contracting
Internationals, the United Association.2 The United As-
sociation is the recognized bargaining representative.
The level of Respondent Catalytic’s craft work force
fluctuates considerably, as is typical on such a site, de-
pending on the level of work assigned to the Respond-
ent by PECO. The number of craft employees is gen-
erally highest during an outage, which is a shutdown
of the power generating unit, which occurs either on
a planned or an emergency basis. In August 1985, dur-
ing such an outage, PECO assigned the Respondent a
job involving the removal and reinstallation of ‘‘snub-
bers’’ (shock absorbers). PECO retained the repair
work on the snubbers, which it then awarded to a dif-
ferent contractor. Local 520’s business manager,
Hartinger, protested this assignment and told the Re-
spondent that it should tell PECO that the pipefitters
should be assigned all the work and, if not, the pipe-
fitters would not do any part of it. On Thursday, Au-
gust 29, the Respondent informed its pipefitter employ-
ees that the snubber removal work would be done in
two shifts beginning the following Tuesday, the day
after Labor Day. Local 520’s steward, Garland Berry,
reported this to Local 520 Business Manager
Hartinger, who disagreed. Hartinger said he would talk
to the Respondent and get back to Berry. In the mean-
time, Berry and the Respondent’s general foreman,
Pritchard, together selected which employees would
work the morning and afternoon shifts.
Just prior to quitting time on Friday, August 30,
Berry, who had again been in touch with Hartinger,
countermanded the Respondent’s orders in Pritchard’s
presence. Berry told the men that, contrary to the Re-
spondent’s directions, they should all report at their
prior, morning-shift time on Tuesday, instead of at the
two shifts designated by the Respondent. One of the
employees asked Berry whether he should take his di-
rections from Berry or from the Company. Berry told
him that he should always take his direction from the
local business manager.
Berry’s directive to the employees was reported that
same day to the Respondent’s site manager, McCauley.
McCauley, in turn, reported the directive to the Re-
spondent’s labor relations representative for the Peach
Bottom site, Neil Greeley, in Philadelphia. Greeley
called the United Association’s International represent-
ative for the site, Frank Deluca, that evening but
missed him. On Saturday morning, August 31, Greeley
talked to Deluca and then had a three-way conversa-
tion with Deluca and Hartinger. Deluca agreed that the
job was to be manned in accordance with the Respond-
ent’s instructions under the GPA, and so directed
Hartinger. Deluca, however, also requested a meeting
with the Respondent and PECO to discuss PECO’s
failure to give all the work on repair of the snubbers
to the pipefitters. Greeley agreed to arrange the meet-
ing.
Due to schedule conflicts, the meeting was not held
at the site until September 12. At the outset of the
381CATALYTIC, INC.
3 The general presidents’ committee includes a representative of each of the
GPA signatory unions.
4 Under the Respondent’s project rules for the Peach Bottom site, the Re-
spondent was not required to rehire Berry. The penalty for gross insubordina-
tion, the violation with which Berry was charged, is termination ‘‘for the
length of the project. Eligibility for rehire will be reviewed on an annual
basis.’’
The General Counsel argues that it is unclear whether Berry in fact was or
would have remained ineligible for rehire for any appreciable length of time
based on Berry’s testimony that Site Manager McCauley stated at the time of
Berry’s discharge that McCauley would consider Berry eligible for rehire.
However, it is undisputed that the Respondent’s official policy at the site is
to review eligibility for rehire annually.
September 12 meeting, a complaint was raised about
an incident concerning intimidation of a welding in-
spector, that PECO believed involved Berry. The Re-
spondent had learned of the incident that morning from
PECO. The remainder of the meeting apparently fo-
cused on Berry, without much substantive discussion
concerning PECO’s work assignments. (Investigation
later that day disclosed that Berry was not involved in
the welding incident.) The next day, Berry was dis-
charged by the Respondent, which cited as gross in-
subordination Berry’s directive to employees on Fri-
day, August 30, countermanding the Respondent’s or-
ders.
B. The Grievance and the Settlement
A grievance concerning Berry’s discharge was filed
the same day as the discharge and was processed
through three steps of the GPA’s grievance procedure.
Step 1 of that procedure is a meeting between the ag-
grieved employee and/or the ‘‘on-site representative’’
and the employee’s immediate onsite staff supervisor.
It is understood that the onsite representative has per-
mission to phone the office of the administrator of the
General Presidents’ Project Maintenance Committee
for guidance in any situation that may arise. On griev-
ances involving disciplinary action, or disputes relative
to local wages and fringe benefits arising under the
agreement, a representative of the Local Union is in-
cluded in the step 1 meeting. Step 2 involves an Inter-
national union representative, the Local union rep-
resentative, and the contractor’s labor relations man-
ager. At step 3, the information prepared for step 2,
plus any other supplemental information, facts, or posi-
tions developed in step 2, are submitted in writing to
the general presidents’ committee.3 If agreement is not
reached at that stage, either party may appeal to an ar-
bitrator.
In this case, in preparation for step 2, International
Representative Deluca, Local Business Manager
Hartinger, and Berry met in Washington, D.C., with
M. E. Moore, assistant general president of the United
Association, and his assistant, R. Baynes, and ex-
plained the Local’s position. Moore called the Re-
spondent’s vice president, McIntire, to advise him of
the United Association’s concern about getting the
grievance settled. Approximately a week later, a step
2 meeting was held in Washington. Present were
Moore, Deluca, and Baynes for the Union; and Greeley
and McIntire for the Respondent. The parties discussed
Hartinger’s disagreement with PECO’s decision to give
only the removal and reinstallation work on the snub-
bers to the Respondent and the United Association’s
position with respect to Berry’s authority at the jobsite.
After the grievance was discussed in detail, McIntire
suggested that both sides take a few days to digest the
grievance and get back in contact by phone. No resolu-
tion was reached.
In a January 2, 1986 letter to the administrator of
the general presidents’ committee, Marvin J. Boede,
general president of the United Association, requested
that the GPA step 3 grievance concerning Berry’s ter-
mination be placed on the agenda for the next general
presidents’ committee meeting, to be held January 10
to 12. The letter ‘‘enclosed . . . copies of the United
Association’s and also the Company’s position,’’ and
noted that Boede was sending a copy of the letter to
the Respondent so that it would be aware of the date
of the step 3 meeting. At step 3, both parties to the
GPA, the Respondent and the United Association, pre-
sented their positions to the committee. In a January
31, 1986 letter, Administrator Owens advised that:
At the last regular meeting of the General
Presidents’ Committee a Step III grievance was
reviewed involving Garland Berry, Member of
UA Local #520, terminated from the Peach Bot-
tom Nuclear Power Plant, Delta, Pennsylvania
project.
After hearing statements from both parties and
carefully examining all of the evidence submitted,
it was the position of the committee that Garland
Berry should be made eligible for immediate re-
hire without any back pay.
Rather than invoking arbitration, both parties to the
GPA contract, the Respondent and the bargaining rep-
resentative, United Association, accepted this result4
and deemed it final and binding. Although Local 520
was not a party to the contract, its business manager,
Hartinger, protested that Berry should be ‘‘reinstated’’
rather than rehired, and should receive full compensa-
tion for lost wages.
C. The Judge’s Decision
The judge found that the Respondent had violated
Section 8(a)(3) by discharging Berry. The judge re-
jected the Respondent’s argument that the Board
should defer to the resolution arrived at through the
grievance procedure of the collective-bargaining con-
tract. He concluded that the Board had ‘‘re-emphasized
the importance of the requirement that all parties agree
to be bound’’ in Alpha Beta Co., 273 NLRB 1546,
382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 273 NLRB 1546 (1985), petition for review denied sub nom. Mahon v.
NLRB, 808 F.2d 1342 (9th Cir. 1987).
6 In this regard, we note that the Respondent argued that the GPC decision
was tantamount to an arbitration award and further argued that, if the decision
is viewed as a settlement, deferral is appropriate under the standards set forth
in Alpha Beta and Olin, see fn. 8 infra.
7 Spielberg Mfg. Co., 112 NLRB 1080 (1955).
8 Olin Corp., 268 NLRB 573 (1984).
9 In Postal Service, we stated:
But the Union, as his collective-bargaining agent, was, in the words of
the Ninth Circuit’s affirmance of Alpha Beta, empowered to bind him
‘‘wholly apart from [his] own separate consent.’’ Further, we find that
McCullough [the grievant and charging party] authorized the Union to
settle the dispute when he invoked the contractual grievance procedure.
[300 NLRB at 197.]
10 Combustion Engineering, 272 NLRB 215 (1984), cited by the judge, is
not to the contrary. In that case, the parties agreed to a settlement regarding
employee Richard, which provided that he would be reinstated with no back-
pay, subject to a 120-day probationary period. The judge in that case declined
to defer to the agreement on grounds that he did not know ‘‘the nature, extent,
or circumstances pursuant to which such settlements have been made.’’ The
Board found the judge’s analysis unconvincing and reversed. Thus, the Board
stated
The terms of the agreement suggest that both Richard and the Respondent
made concessions in order to settle the grievance and avoid arbitration.
Specifically, Richard agreed to forgo backpay and the Respondent agreed
to reinstate him though not obliged to do so at that time. [Id. at 217. Em-
phasis added.]
Although the grievant himself appears to have agreed to the terms of the set-
tlement in that case, that is not a prerequisite, as discussed above, and the
Board’s decision did not turn on that fact. Here, as in Combustion Engineer-
ing, both parties to the grievance procedure made concessions and settled the
matter. The bargaining representative agreed to forgo backpay on Berry’s be-
half, and the Respondent agreed to make him eligible for rehire, although not
obliged to do so under its project rules for the Peach Bottom site.
11 Conversely, we do not believe that it is either necessary or appropriate
to interject ourselves into the parties’ resolution of their grievance to determine
if, in our view, sufficient negotiations or discussions occurred to merit deferral.
Moreover, contrary to the dissent, we do not believe that the Board precedent
relied on there warrants any such determination. Simply put, it is our view
that a disposition satisfactory to the parties arrived at through their collectively
bargained grievance resolution machinery is sufficient to merit deferral under
Alpha Beta and Postal Service.
1547.5 He found that as Local 520 disagreed with the
settlement, ‘‘all parties did not agree to be bound,’’
and that ‘‘all parties did not participate in the griev-
ance procedure’s third step.’’ On the merits, the judge
held that Berry was discharged for his actions as Local
520’s steward and that the gross insubordination attrib-
uted to him was committed in his capacity as union
steward. The judge also observed that, even if the Au-
gust 30 incident could be considered independently of
his steward’s duties, Berry’s instructions to the em-
ployees could not be regarded as gross insubordination
because he was merely acting under Hartinger’s orders.
II. DISCUSSION
The Respondent excepts both to the judge’s failure
to defer this matter to the grievance procedure’s reso-
lution, and to his decision on the merits.6 We find
merit in the Respondent’s exception to the judge’s re-
fusal to defer and, therefore, find it unnecessary to
pass on the merits.
The United Association (the bargaining representa-
tive) and the Respondent have accepted a resolution of
Berry’s grievance that was arrived at through the
mechanism of the bargained-for grievance procedure.
Thus, both deemed the general presidents’ committee’s
disposition of the grievance to be final and binding.
The question is whether the agreement of the Em-
ployer and the bargaining representative to the general
presidents’ committee’s resolution of the grievance is
enough to warrant the Board’s deferring to that resolu-
tion without the agreement of the affected employee or
his local. The answer is found in Postal Service, 300
NLRB 196 (1990).
In Postal Service, we interpreted our Alpha Beta de-
cision, and the Ninth Circuit’s affirmance of that deci-
sion, as authorizing the Board to apply the deferral
principle of Spielberg7 and Olin8 to settlement agree-
ments between the employer and the authorized bar-
gaining representative that were reached during con-
tractual grievance and arbitration proceedings, short of
a final and binding arbitration award, even though the
employee grievant opposed the settlement. We did so
on the theory implicitly approved by the Ninth Circuit
in Alpha Beta, that the employee’s collective-bar-
gaining agent was empowered to bind him, even with-
out his consent.9
Here, Local 520, whose Business Agent Hartinger
assisted Berry in the presentation of his grievance, is
not the collective-bargaining representative. The au-
thorized representative is the United Association, and
the United Association is a party to the settlement of
the grievance by the GPC to both parties’ satisfaction.
Thus, Berry’s and Local 520’s disapproval of the set-
tlement does not defeat the case for deferral under our
Postal Service holding.10 In this regard, contrary to our
dissenting colleague, we conclude that the parties’ mu-
tually satisfactory resolution of the grievance through
resort to the agreed-on grievance machinery is tanta-
mount to a settlement agreement such as was involved
in Postal Service. We further conclude that deferral to
such a settlement furthers the purposes and policies of
the Act favoring private resolution of labor disputes.11
We also find Spann Building Maintenance Co., 289
NLRB 915 (1988), relied on by our dissenting col-
league to be inapposite here. In that case the employer
made offers to settle employee Lewis’ discharge griev-
ance without backpay or seniority. Lewis declined
those offers and filed a charge with the Board. About
a week later, the company’s personnel manager tele-
phoned Lewis about filing the charge and made an-
other offer, which Lewis refused. Finally, the com-
pany’s personnel manager called Lewis just before
issuance of the complaint and offered to reinstate her
at a different building from the one where she had pre-
viously been employed—without backpay, without the
previously offered seniority and vacation pay, and
without any mention of settling either the pending
NLRB charge or the unresolved grievance. Lewis, who
had then been off work for some 6 months, agreed to
return to work. The Board found that the Respondent:
383CATALYTIC, INC.
12 Accord: Postal Service, supra.
13 The Board in Raytheon Co., 140 NLRB 883 (1963), further conditioned
deferral on an arbitrator’s having considered the unfair labor practice issue.
14 We note that both Berry and Hartinger, like the grievant in Postal Serv-
ice, supra, were familiar with the operation of the grievance and arbitration
procedure. See Postal Service, supra at 197 fn. 11. And see Energy Coopera-
tive, Inc., 290 NLRB 635 (1988), where the Board gave effect to a strike set-
tlement agreement between the union and the respondent employer, over ob-
jections of the individual charging party. The Board there noted the language
of the Ninth Circuit, in affirming Alpha Beta, that ‘‘a union is empowered to
bind employees it represents wholly apart from their separate consent.’’ Id. at
637 fn. 16.
15 268 NLRB at 574.
16 See Independent Stave Co., 287 NLRB 740, 743 (1987); Postal Service,
supra at 198 fn. 13.
outside the channels of the grievance procedure
and without involving the Union, contacted Lewis
directly and arranged for her to resume working.
This was clearly an effort by the Respondent to
limit its potential backpay liability in the event
that Lewis prevailed in her unfair labor practice
case. This informal arrangement, entered into
without the involvement of the Union . . . did not
purport to be a settlement of the grievance. [289
NLRB at 916.]
The Board concluded that the fact that Lewis was rein-
stated ‘‘does not retroactively change the nature of the
Respondent’s arrangement with Lewis and transform it
into a settlement.’’ Thus, as the union had made it
clear that it would not proceed further in the grievance
over Lewis’ discharge, and the Board found that the
grievance was not settled, the Board found it appro-
priate to determine the merits of the complaint. But the
situation in Spann was totally unlike that presented
here. Thus, in Spann no agreement was reached
through the grievance mechanism, and the Respond-
ent’s offer to Lewis did not purport to be a settlement
or resolution of either the grievance or the unfair labor
practice charge. By contrast, in the instant case we are
asked to defer to a disposition arrived at through the
parties’ collectively bargained grievance machinery in
a situation in which both parties deem that resolution
to be final and binding.12
It is, therefore, appropriate to examine the settlement
in light of the general deferral principles enunciated in
Alpha Beta, supra, and in Olin and Spielberg, supra.
Those principles require that the proceedings be fair
and regular, that all parties have agreed to be bound,
and that the resolution is not clearly repugnant to the
purposes and policies of the Act.13 The first deferral
criterion is satisfied here because there is no evidence
that the grievance proceedings were anything but fair
and regular. The parties’ settlement satisfies the second
criterion that all parties had agreed to be bound, as dis-
cussed above.14
We further find that the settlement in this case is not
‘‘clearly repugnant’’ to the purposes and policies of
the Act. In Olin, supra, the Board stated it would not
require an arbitrator’s award to be totally consistent
with Board precedent. Rather, the Board will not find
an award to be ‘‘clearly repugnant’’ unless it is ‘‘pal-
pably wrong.’’15 In this case, the fact that Berry may
not have received all the relief to which he (or
Hartinger) believed that he was entitled does not
render the settlement ‘‘palpably wrong.’’16 Indeed, we
find no indication that the resolution of the grievance
is repugnant to the Act. Rather, the parties’ settlement
involved a compromise, with both sides making con-
cessions and with Berry being made eligible for imme-
diate rehire.
Finally, we conclude that the last deferral criterion
referred to in Olin has been met in this case. The
Board in Olin held that the unfair labor practice issue
must have been considered by the arbitrator, and that
this criterion is met when the contractual issue is factu-
ally parallel to the unfair labor practice issue and the
arbitrator was presented generally with the facts rel-
evant to resolving the unfair labor practice. Olin,
supra, 268 NLRB at 574, and cases cited there. Fur-
ther, the Board held that the party seeking to defeat
deferral bears the burden of showing that the Olin
standards have not been met. Where, as here, a settle-
ment is reached prior to arbitration, the criterion is sat-
isfied when the contractual issue and the unfair labor
practice issue are factually parallel, and the parties
were generally aware of the facts relevant to resolving
the unfair labor practice issue. Here, the record shows
that these aspects have been met, and the General
Counsel has not raised a genuine issue with respect to
the Olin standards.
III. CONCLUSION
We shall defer to the settlement arrived at by the
parties through the mechanism of their grievance pro-
cedure and dismiss the complaint.
ORDER
The complaint is dismissed.
MEMBER CRACRAFT, dissenting.
Contrary to my colleagues, I find that the instant
case does not involve a grievance settlement, but mere-
ly a union’s decision not to appeal a grievance to arbi-
tration. Accordingly, I find Postal Service, 300 NLRB
196 (1990), and Alpha Beta, 273 NLRB 1546 (1985),
affd. sub nom. Mahon v. NLRB, 808 F.2d 1342 (9th
Cir. 1987), dealing with deferral to negotiated griev-
ance settlements, to be inapplicable.
United Association of Journeymen and Apprentices
of the Plumbing and Pipe Fitting Industry of the Unit-
ed States and Canada (the International) is signatory to
the general presidents’ Project Maintenance Agree-
ment, the relevant collective-bargaining agreement.
The Charging Party, Plumbers and Pipefitters Local
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The first step requires a grievance to be discussed by the employee or his
onsite representative and the supervisor involved. If it is not resolved at that
stage, it is discussed between an International union representative and
Catalytic’s labor relations manager. If still not resolved, it then proceeds to
step 3 and is submitted in writing to the general presidents’ committee (GPC),
a body of 14 or 15 craft union presidents who are signatory to the presidents’
agreement. Both Catalytic and the International make presentations to the
GPC. The GPC then issues a recommended decision that is reviewed by Cata-
lytic and the International. If either party is dissatisfied, it can proceed to step
4, arbitration. If the matter is not submitted to arbitration, the record indicates
that the recommended decision of the GPC becomes final and binding on the
International and Catalytic.
2 The International representative made a brief oral presentation before the
committee and requested that Berry be reinstated with backpay. Catalytic’s
labor relations manager made an oral presentation and submitted a written re-
port.
3 In its exceptions, the Respondent’s primary contention is that the GPC de-
cision is similar to an arbitration award and should be deferred to under the
principles set forth in Spielberg Mfg. Co., 112 NLRB 1080 (1955). I disagree.
Where, as here, the parties’ own procedure provides for arbitration but the
grievance is not processed to that final step, I find Spielberg inapplicable. See
Whirlpool Corp., 216 NLRB 183, 186 (1975).
4 275 NLRB 971 (1985), remanded sub nom. Lewis v. NLRB, 800 F.2d 818
(8th Cir. 1986), supplemental decision 284 NLRB 470 (1987), second supple-
mental decision 289 NLRB 915 (1988).
Union No. 520 (the local union), while affiliated with
the International, is not a party to this agreement. The
grievance procedure in that agreement consisted of
four steps.1
Garland Berry, a member of the local union, was the
steward for Local 520. Berry was informed that he was
discharged by the Respondent on September 13, 1985.
The local union filed a grievance concerning the dis-
charge with the International on Berry’s behalf. The
grievance remained unresolved through the second
step. The International then took the grievance to step
3 by submitting it to the general presidents’ committee
(GPC).2 The GPC found the following:
After hearing statements from both parties and
carefully examining all of the evidence submitted,
it was the position of the committee that Garland
Berry should be made eligible for immediate re-
hire without any back pay.
Subsequent to that decision, the local union, which
is not directly involved in the grievance procedure,
urged the International to take the case to step 4, arbi-
tration. The International refused, taking the position
that the only time a case goes to arbitration is when
the GPC cannot agree to a solution. The International
stated that the ‘‘U.A. has taken them to the highest
step in the grievance procedure and will consider this
case closed.’’
My colleagues term the parties’ decision not to pur-
sue the Berry grievance to arbitration a ‘‘settlement.’’
My colleagues then apply the principles of Postal
Service and Alpha Beta to this so-called settlement and
conclude that the General Counsel has not satisfied his
burden of showing that deferral is not warranted. Ac-
cordingly, they dismiss the complaint.
I cannot join my colleagues’ decision because I dis-
agree with their basic premise. Simply stated, there
was no grievance settlement in this case. Certainly, as
the Respondent argues in its brief, the GPC decision
did not constitute a negotiated settlement of Berry’s
grievance.3 There were no direct discussions between
the Respondent and the International. Rather, the Re-
spondent and the International presented their respec-
tive positions to a third party, the GPC, which issued
a decision. The mere fact that that decision became
final when the International decided not to invoke step
4 of the grievance procedure does not transform the
resolution of the grievance into a ‘‘settlement.’’
The facts of Postal Service and Alpha Beta are en-
tirely different. In those cases, direct employer-union
discussions were held, both sides made concessions,
and agreements were reached. The Board found that
the grievances were settled and concluded that deferral
was warranted under the standards set forth in Olin
Corp., 268 NLRB 573 (1984). The Board did not state
or even suggest in Postal Service or Alpha Beta that
every resolution of a dispute in the context of the
grievance procedure would constitute a ‘‘settlement’’
worthy of Board deference.
On the contrary, in the seminal case of Alpha Beta
the Board twice emphasized the importance of the par-
ties’ having resolved their differences through the ne-
gotiation process. First, the Board quoted with ap-
proval the view of former Member Penello, as follows:
Deferral in general will encourage parties . . .
to negotiate rather than to litigate their dif-
ferences.
The Board should encourage employers and
unions to negotiate their differences arising during
the term of their bargaining agreement, to discuss
and settle grievances, and, if necessary, to arbi-
trate their differences. [273 NLRB at 1547. Em-
phasis added.]
Second, in finding that the disposition of the griev-
ances was not ‘‘palpably wrong’’ under the law, the
Board relied on the fact that there had been ‘‘negotia-
tions between the Respondents and the Unions.’’ 273
NLRB at 1547 (emphasis added).
In the instant case, on the other hand, it bears re-
peating that resolution of the Berry grievance was not
the result of negotiations or discussions between the
parties. What occurred here was nothing more than a
decision by the International not to pursue the griev-
ance to arbitration. In my view, deferral in such cir-
cumstances is not appropriate.
When labor and management negotiate a grievance
settlement, the merits of their respective positions will
likely have a major bearing on the outcome. However,
when a union merely decides not to appeal a grievance
to arbitration, the union’s view of the merits may have
little to do with its decision. For example, in Spann
Building Maintenance Co.,4 the union had a general
385CATALYTIC, INC.
5 Combustion Engineering, 272 NLRB 215 (1984), is distinguishable on the
same basis. In that case the Board deferred to a negotiated settlement in which
both the employer and employee made concessions.
6 The judge found that there had been a grievance ‘‘settlement,’’ and the
Respondent excepted to that finding. The Respondent’s position is summarized
in fn. 3, supra. The General Counsel’s view is that the grievance was
‘‘dropped.’’ The Charging Party argues that ‘‘[n]either Local 520 nor Mr.
Berry was even involved in the settlement process, if that is a proper descrip-
tion for what went on before the GPC.’’ 1 Respondent’s motion to reopen the hearing is denied.
policy of not arbitrating a discharge grievance if the
company had offered reinstatement. In the instant case,
the International’s policy was not to appeal a grievance
to arbitration if the GPC could agree on a solution. In
another case, a union may not be able to afford the
cost of arbitration. The Board should not dismiss an
employee’s statutory claim in deference to a private
dispute resolution mechanism where there is a substan-
tial likelihood that the party representing the employ-
ee’s interests declines to proceed with the employee’s
claim on a basis that gives little or no consideration to
the merits.
My colleagues do not cite a single case in which the
Board considered a decision not to seek arbitration to
be a ‘‘settlement,’’ and I know of none. To the con-
trary, in Spann Building Maintenance, supra, the Board
found that a union’s decision not to pursue a grievance
was not equivalent to a settlement. Briefly, the facts in
that case were that the union filed a grievance over an
employee’s discharge and discussed resolution of the
grievance with the company without success. After the
employee filed an unfair labor practice charge, the
company contacted the employee directly and offered
reinstatement to a different work location with no men-
tion of the offer being in settlement of the grievance.
The employee accepted this offer. Thereafter, the union
refused to pursue the employee’s grievance to arbitra-
tion on the ground that it ‘‘consider[ed] the matter as
settled based on the fact that [the employee] was rein-
stated to employment.’’ 289 NLRB 915, supra. Based
on the union’s position and citing Alpha Beta, the
company urged the Board to defer to ‘‘the settlement
agreement’’ between the company and the union. The
Board found deferral inappropriate, distinguishing
Alpha Beta on the ground that in Spann there had been
no settlement of the grievance.5
Here, as in Spann, the parties did not negotiate a
mutually satisfactory resolution of the grievance. And
here, as in Spann, the decision not to appeal the griev-
ance to arbitration does not constitute a ‘‘settlement.’’
In fact, this case is even weaker than Spann for finding
a settlement because no party before the Board even
argues as its primary position that the Berry grievance
was settled.6
In Alpha Beta, the Board reiterated what it had stat-
ed earlier in Olin: this Agency is committed to a pol-
icy of deferral ‘‘where appropriate safeguards for statu-
tory rights are satisfied.’’ 273 NLRB 1547. One of
those safeguards, implicit in Alpha Beta, is that the
employee’s bargaining representative negotiate the set-
tlement to which the Board is deferring. Believing as
I do in the importance of that safeguard, I must dissent
from my colleagues’ decision to defer to a nonexistent
‘‘settlement.’’ I would instead affirm the judge’s find-
ing that the Respondent violated Section 8(a)(3) and
(1) of the Act by discharging Berry because of his ac-
tivities as a union steward.
Margaret M. McGovern, Esq., for the General Counsel.
Francis M. Milone, Esq. (Morgan, Lewis & Bockius), of
Philadelphia, Pennsylvania, for the Respondent.
James L. Cowden, Esq. (Handler, Gerber, Johnson, &
Strokoff), of Harrisburg, Pennsylvania, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge. This
case arose on a charge filed on September 18, 1985, by
Plumbers and Pipefitters Local Union No. 520 and a com-
plaint issued by the General Counsel of the National Labor
Relations Board on January 30, 1987, against Catalytic, Inc.
The complaint alleges that the Respondent, Catalytic, Inc.,
violated Section 8(a)(3) and (1) of the National Labor Rela-
tions Act (the Act) by discharging its employee, Garland
Berry. The Respondent’s answer admits the jurisdictional al-
legations of the complaint, the status of Neal Greeley and
Lou McCullough as supervisors, and the discharge of the
employees, but it denies the allegations of unfair labor prac-
tices and, as an affirmative defense, submits that the Board
should defer to the resolution of the grievance procedure.
The case was tried before me on April 20 and May 1,
1987, in Harrisburg, Pennsylvania, where all parties were
given an opportunity to introduce relevant evidence, to exam-
ine and cross-examine witnesses, and to make oral argument.
Briefs were filed by the General Counsel, the Charging
Party, and the Respondent on June 5, 1987. Based on the
whole record1 in this case and from my observation of the
demeanor of the witnesses, I make the following
FINDINGS OF FACT
Catalytic, Inc. is a Pennsylvania corporation with its main
office located in Philadelphia, Pennsylvania, from where it
conducts its business of general construction. It is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The Union, Plumbers and Pipefitters Local Union No. 520,
is a labor organization within the meaning of Section 2(5) of
the Act.
The Issues
At issue is whether deferral to the contractual grievance
procedure is justified and, if not, whether the Respondent
violated Section 8(a)(1) and (3) of the Act by discharging
Garland Berry.
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Facts
Catalytic, as an engineering contractor, was performing
maintenance work on a nuclear generating plant for the
Philadelphia Electric Company (PECO) at its Peach Bottom
site. The Respondent employed approximately 25 to 30
plumbers and pipefitters at that site to provide the necessary
maintenance when the plant was operating. During outages
the number of employees usually increased anywhere from
150 to 300. These employees were members of Local 520
which is affiliated with the United Association of Journey-
men and Apprentices of the Plumbing and Pipe Fitting Indus-
try of the United States and Canada (the International). The
International is 1 of 14 International building trades unions
which are signatories to a collective-bargaining agreement,
known as the General Presidents’ Project Maintenance
Agreement (Presidents’ Agreement) (R. Exh. 2). This docu-
ment in article VII provides for a grievance and arbitration
procedure consisting of four steps, the last of which is arbi-
tration.
Garland Berry was a member of Local 520 and had been
employed by the Respondent as a pipefitter since 1979. Since
April 1, 1984, he was the steward at the Peach Bottom site
for Local 520. During the summer of 1985 PECO assigned
to Catalytic the work to remove and to reinstall snubbers, de-
vices designed to operate as shock absorbers in a nuclear re-
actor. The repair work was awarded by PECO to another
contractor over the objections and complaints of Local 520.
In August, Catalytic informed Berry and the eight-man
crew of pipefitters who had been working the day shift that
it would be split into two shifts, four on the day shift and
four on the second shift. Catalytic’s foreman, Ike Pritchard,
also told Berry that the split shift would go into effect on
Tuesday following Labor Day. Berry promptly informed Au-
gust Hartinger, the business agent for Local 520, of that deci-
sion. Hartinger was opposed to the splitting of the crew and
called Lou McCauley, the project manager, and Neal Gree-
ley, the labor relations manager, and informed them that he
opposed management’s decision to split the crew. Hartinger,
unable to resolve the matter on Friday, instructed Berry to
have the eight-man crew report for work at their normal
starting time on Tuesday. In the presence of Foreman Pritch-
ard, Berry instructed the men to report for the day shift on
Tuesday which in effect disregarded management’s earlier
instructions. Greeley reported the disagreement to the Inter-
national’s representative Frank DeLuca on the following day.
DeLuca agreed to comply with managment’s decision to
have four men report for the first shift and four in the after-
noon for the second shift. Greely, DeLuca, and Hartinger dis-
cussed the problem again in a telephone conversation on Sat-
urday afternoon and also agreed to a meeting to discuss
grievances and PECO’s refusal to assign more work to the
pipefitters. Following these discussions, the crew reported for
work as agreed on a split-shift basis. On Thursday, Sep-
tember 12, the parties met. Present were Neal Greeley and
Lou McCauley representing Catalytic and Frank DeLuca and
Gus Hartinger for the Union. Garland Berry attempted to at-
tend the meeting but was excluded by Catalytic’s representa-
tives. Greeley immediately informed the Union that the Com-
pany wanted Berry dismissed and that Berry would be dis-
charged on the ground that he had made threats to a welding
inspector. Greeley stated that ‘‘they were having problems
with Garland as the steward, that he had his nose into com-
pany business they didn’t feel that he should be involved in,
that even PECO was having a hard time accepting him as
a steward, that they wanted him dismissed, they didn’t want
him on the project any more, he was too much of a trouble
maker.’’ (Tr. 24.) Hartinger, after consulting with Berry out-
side the meeting room, denied that he had made any threats
to a welding inspector. Hugh McNally, a supervisor with
PECO, was called in and confirmed his belief that Berry had
made such threats. Nevertheless, DeLuca and Hartinger in-
sisted that Berry was not the one who had intimidated the
inspector and resisted any attempts to take adverse action
against him. The meeting ended with a discussion of PECO’s
dissatisfaction with Local 520 and the Respondent’s agree-
ment to investigate the threat incident before taking any ac-
tion. On the following day, after Berry had returned to work,
he was informed by McCauley that he was discharged. Berry
testified as follows about that conversation (Tr. 118):
After he took me out of earshot from everybody, he
told me that, Garland, I guess you gathered that the
way that meeting went, the way they were really gun-
ning for you, we had to discharge you. We’re going to
get rid of you.
He said there was a meeting in downtown Philadel-
phia and Garland had to go. And he was instructed to
discharge me. At that point in time, I asked him what
the charge was.
He said gross insubordination. And I said, Lou, what
is your definition of gross insubordination. He said,
Garland, simply for getting into Catalytic’s business.
And I asked him if I were eligible for rehire. He
said, as far as I’m concerned, I don’t have any problem
with hiring you, Garland. That’s what he told me.
McCauley also called Hartinger informing him that Berry
was dismissed for ‘‘gross insubordination.’’ As recalled by
Hartinger, McCauley said as follows (Tr. 28):
[T]hey weren’t firing Garland for the welding in-
spector thing, they were firing him for gross insubor-
dination. . . . [T]hey weren’t pleased with the way he
told the four men that I had told not to come in on the
Tuesday after Labor Day, they were very displeased
that he would go out and tell people something like
that; therefore they were going to dismiss him.
They figured that was gross insubordination.
The Union filed a grievance under the Presidents’ Agree-
ment on behalf of Berry with the International. Under that
procedure the Local, which is not directly involved in the
grievance process, sent a telegram to the president of the
International. Several days after the discharge, Berry, accom-
panied by Hartinger and DeLuca, met with the two represent-
atives of the International in Washington, D.C., Ed Moore
and R. W. Baynes, assistants to the president. Moore at-
tempted to but could not resolve the matter with David
McIntire, the Respondent’s vice president for labor relations.
A second meeting took place a week later between McIntire
and Greeley for the Company and Moore and DeLuca for the
Union. Again the dispute remained unresolved, although
DeLuca testified that it had been his impression after the
meeting that Berry would be reinstated. However, because
charges had been filed before the Board, both sides assumed
387CATALYTIC, INC.
2 With the exception of the incident involving Supervisor McMahon, the two
other incidents are not contradicted. McMahon’s testimony impressed me as
too equivocal to be convincing. I therefore credit Berry’s version of the inci-
dent.
that the matter was out of their hands and they failed to re-
solve the issue.
The International took the grievance to the third step by
submitting it to the General Presidents’ Committee, a body
of 14 or 15 craft union presidents who are signatories to the
Presidents’ Agreement. Frank Coyne, the representative of
the United Association to that committee, presented the
grievance to the committee on behalf of the Union, and the
Respondent’s position was presented by Greeley. The record
shows that Greeley also submitted a written report, but the
record is not clear how extensive a written report was pre-
sented on behalf of the Union. (R. Exhs. 1, 8; Tr. 305–307.)
However, Coyne, who unlike Greely had not been involved
in the prior negotiations, was briefed orally by DeLuca and
in writing by Assistant President Baynes. The Presidents’
Committee did not meet until January 15, 1986. Coyne made
a brief oral presentation before the committee and requested
that Berry be reinstated with backpay. Greeley made an oral
presentation and turned over a written report on behalf of the
Employer (R. Exh. 11). The decision of the committee, con-
tained in a letter, dated January 21, 1986, to Catalytic, was
(G.C. Exh. 3):
After hearing statements from both parties and care-
fully examining all of the evidence submitted, it was
the position of the committee that Garland Berry should
be made eligible for immediate rehire without any back
pay.
In a letter dated February 11, 1986, Hartinger urged the
International to take the case to arbitration stating, inter alia
(G.C. Exh. 9):
I would appreciate your views on this matter for I felt
then, and I still do, that Garland was dismissed for try-
ing to enforce the G.P.H. on behalf of the United Asso-
ciation. Therefore, I still feel that Garland should be re-
instated, not rehired, and should receive full compensa-
tion for lost wages he is entitled to.
Hartinger received a response, dated March 6, 1986, in
which Ed Moore, assistant general president of the Inter-
national, informed the Local that:
[A] hearing was held and it was agreed that Mr. Berry
would be rehired but not entitled to back pay. Because
of the agreement of the General Presidents’ Committee,
there is no further step as far as arbitration. The only
time it goes to arbitration is when the committee cannot
agree to a solution. [R. Exh. 9.]
Berry was rehired in April 1987.
Because McCauley had told Berry and Hartinger already
in October 1985 that Berry was eligible for rehire, and be-
cause other employees who are discharged for cause are sub-
sequently eligible to be rehired, Local 520 and the General
Counsel view the decision of the Presidents’ Committee as
meaningless. Moreover, the General Counsel and the Charg-
ing Party submit that Berry ‘‘was discharged in retaliation
for his activities as steward,’’ and that the given reason for
his discharge, namely, insubordination, was a pretext. Ac-
cording to the Respondent, the discharge was not related to
Berry’s activities as a union steward.
Analysis
Garland Berry had been a satisfactory employee at Cata-
lytic since 1979 at the Peach Bottom site. He had no record
of disciplinary problems; to the contrary, he had been consid-
ered by management for a supervisory position. However, in
his role as a shop steward since 1984 he was perceived by
management to cause problems for Catalytic and its relation-
ship with PECO. According to Berry’s testimony, three inci-
dents occurred which demonstrated Catalytic’s frustration
and hostility toward him as a steward.2 In May or June 1985,
Berry met Michael McMahon, a maintenance supervisor, in
the hall as he came out of another supervisor’s office. ‘‘He
threw his hands up in the air and said, I quit, I give up,
you’re the only [son-of-a-bitch] that I can’t win anything
from on site’’ (Tr. 105). Right after that encounter with
McMahon, Berry was called into the office of John Booth,
a construction supervisor and, according to Berry, ‘‘he sat
me down to his left, and he—began to tell me that he was
very disenchanted with some of the derogatory remarks he
had heard that I had been making around the site, suggested
that I watch my mouth.’’ Booth also informed him ‘‘that he
didn’t particularly like the way I did business on the tele-
phone [and] . . . that he wasn’t too happy with my selection
as the union steward’’ (Tr. 106). Booth then turned to an-
other supervisor in the office and, in the presence of Berry,
said, ‘‘I want to know where this son-of-a-bitch is every
minute of every hour of every day on this site, and I want
a job assignment in front of him at all times’’ (Tr. 106).
Berry had a similar conversation with Lou McCauley, the
site manager. Berry testified that after McCauley learned of
the decision of the Local not to split the work crew, he got
angry and said that he ‘‘never had so damn many griev-
ances’’ in his entire tenure than he had since Berry became
the steward (Tr. 107).
The Respondent argues that these statements, even if
made, do not reflect union animus and had no reasonable
connection with the discharge, as none of these supervisors
were involved in the discharge. The General Counsel, how-
ever, states, and I agree, that the Respondent was frustrated
with what it perceived was the inflexibility and obstinance of
Local 520 regarding changes in assignments. Even though
the Respondent knew that Berry was merely following the
orders of Hartinger, the only way to retaliate against the
Local was through Berry. Catalytic, the subcontractor to
PECO, was repeatedly informed of PECO’s dissatisfaction
with the performance of the pipefitters. For example, Greeley
testified about his conversation with DeLuca about Berry’s
refusal to staff the staggered shift (Tr. 169):
And again I reviewed for Mr. Deluca the situation
and the history with 520 as far as their activities which
had taken place in March; basically their interjecting
into our management decisions, which we were in the
outage, basically we were being viewed by Philadelphia
Electric as being a—not controlling the situation.
The Respondent also refers in its brief repeatedly to
‘‘PECO’s dissatisfaction with the pipefitters’’ and explains
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that ‘‘PECO’s dissatisfaction with the pipefitters stemmed
from an incident in the spring of 1985 in which Local 520
had refused to man an emergency water service job at Peach
Bottom because it was protesting Catalytic’s implementation
of a staggered work week’’ (R. Br. 5, 8, 9). In an interoffice
memorandum, dated October 16, 1985, Greeley gave his
version of the scenario leading to the Berry discharge, stat-
ing, inter alia (R. Exh. 11):
Lou advised Mr. Hartinger that the PECO maintenance
division felt uncomfortable with the pipefitters attitude
and performance because of the March incident and
wanted the majority of the work to be completed by in-
house maintenance forces.
That memorandum also blamed Berry for a March incident
involving disagreement over ‘‘a staggered work week’’ caus-
ing considerable revenue loss to PECO.
It is abundantly clear that Catalytic was frustrated with
Local 520 generally and displeased with its decision to op-
pose the splitting of the shift. However, this was not the ini-
tial reason given by the Respondent for Berry’s discharge. At
the September 12 meeting with DeLuca and Hartinger, Gree-
ley announced the decision to fire Berry because of threats
made to a welding inspector. This reason, however, was sub-
stituted by another after the Respondent discovered that
Berry was not the one who had made such threats. Indeed,
that reason was also inconsistent with Greeley’s written
memorandum explaining the discharge (R. Exh. 11). Greeley
stated there that ‘‘Catalytic will not have Mr. Berry becom-
ing involved in management decisions and as a result of his
actions [discussed] Catalytic’s intentions of dismissing Mr.
Berry’’ (R. Exh. 11). Whether or not the Respondent had in-
dicated prior to the September 12 meeting that Berry would
be discharged, it is certainly clear from Hartinger’s testimony
that Berry had long been considered by Catalytic’s manage-
ment as a steward who ‘‘had his nose into company busi-
ness’’ and by PECO as ‘‘too much of a troublemaker’’
whom they wanted dismissed (Tr. 24). After both sides had
agreed during their meeting on September 12 to have the
crew report for the split shift as requested by management,
and after management had determined that its basis for Ber-
ry’s discharge, namely, the threat to the welding inspector,
was unfounded, it nevertheless discharged Berry on the fol-
lowing day, Friday, September 13, ‘‘for gross insubordina-
tion for directing a work stoppage’’ (R. Exh. 11). This, of
course, referred to Berry’s actions on Friday, August 30,
when he relayed Hartinger’s order to the pipefitters that they
were to report as usual on Tuesday, September 3 at 7:30
a.m., rather than comply with management’s request for the
split shift. Greeley and other management officials of the Re-
spondent were aware that Berry had not initiated this action,
and that he had followed the instructions of his manager,
Hartinger. All this suggests a basic insincerity involved in
the Respondent’s conduct and its handling of the discharge,
and gives credence to the General Counsel’s argument that
the Respondent sought to discharge Berry not for misconduct
on his part, but because he was Hartinger’s spokesman on
the site and because of Respondent’s and PECO’s dis-
satisfaction with Local 520 and its resistence to changes in
assignments.
The Respondent argues strenuously that ‘‘there is simply
no reasonable basis in the record for infering that Catalytic
had any basis for being upset with Berry because of his ac-
tivities as a union steward’’ and the ‘‘evidence in the record
simply will not support the conclusion that Mr. Berry’s ac-
tivities as a union steward were a ‘substantial and motivating
factor’ in his discharge,’’ even considering the statements
made by several supervisors, because they were not directly
involved in the decision to terminate him (R. Br. 29, 35). Yet
it is clear that the ‘‘gross insubordination’’ attributed by the
Respondent to Berry was committed in his capacity as a
union steward. Moreover, the record is replete with evidence
that Catalytic and PECO were generally critical of Berry as
a steward and wanted him out. This is evident not only from
the remarks made by the three supervisors of Catalytic but
also from the general tenor of the evidence. Greeley testified
at length about PECO’s dissatisfaction with the pipefitters
generally and PECO’s desire to have Berry terminated. Since
PECO stood to lose money during an outage, the pressure in-
creased on Catalytic to help remedy the situation. In
Catalytic’s opinion Local 520 had been ‘‘interjecting into our
management decisions.’’ In PECO’s opinion, Catalytic was
‘‘not controlling the situation,’’ they ‘‘were in a very dif-
ficult situation’’ where ‘‘the client sits in our offices . . .
watching the situation,’’ where the contract with PECO was
to expire in 3 or 4 months, and where PECO ‘‘wondered
who was running the job’’ (Tr. 169–170). Considering these
circumstances and also aware that PECO wanted Catalytic to
discharge Berry, Catalytic complied.
I disagree with the argument of the Respondent that the
discharge of Berry was unrelated to his activities as a union
steward. Moreover, the fact that the Respondent based the
discharge on an unfounded and erroneous reason and then
changed the basis of the discharge to the directive which had
been resolved at the meeting of September 12, shows that the
Respondent had decided to terminate Berry and was search-
ing for a more suitable reason. Considering the Respondent’s
shifting reasons for the discharge, the comments by several
supervisors, the admitted dissatisfaction of PECO with the
pipefitters, the conclusion is compelling that Berry was dis-
charged because of his activity as a union steward. I do not
view the ‘‘insubordination’’ incident as separate and distinct
from Berry’s performance as a steward and, accordingly, do
not find a dual motive for the discharge. Compare Wright
Line, 251 NLRB 1083 (1980). However, assuming arguendo
that this incident should be considered independently, I can-
not find that Berry’s instructions to his crew could be re-
garded as gross insubordination, because he merely acted as
the messenger of Hartinger’s orders. But even if it could be
construed to amount to insubordination, the evidence is clear
that it was a pretext. This is clear from the Respondent’s
conduct in seizing initially upon another, unfounded incident
as a reason. Moreover, the instructions to the crew were sub-
sequently countermanded in accordance with the Respond-
ent’s wishes and the matter had become a moot issue. With-
out the Respondent’s union animus and Berry’s activities as
a steward, it is clear that Catalytic would not have dis-
charged Berry as a result of the Labor Day incident.
The more difficult issue in this case is the Respondent’s
argument that the Board should have deferred the matter to
the grievance procedure of the collective-bargaining contract.
Generally, the Board finds deferral appropriate where a
grievance procedure is available to the parties to resolve their
dispute. Spielberg Mfg. Co., 112 NLRB 1080 (1955); Dubo
389CATALYTIC, INC.
3 See also Thatcher Glass Mfg. Co., 265 NLRB 321 (1982).
Mfg. Corp., 142 NLRB 431 (1963); Collyer Insulated Wire,
192 NLRB 837 (1971). The basic criteria to be applied in
determining whether deferral is appropriate are that all par-
ties agreed to be bound, that the proceedings were fair and
regular, and that the decision of the arbitration was not re-
pugnant to the Act. Spielberg Mfg. Co., supra. In Olin Corp.,
268 NLRB 573 (1984), the Board further explained that the
contractual and statutory issues should be factually parallel.
The Board will not only defer under such circumstances to
an arbitrator’s award, but also to a prearbitration settlement.
Combustion Engineering, 272 NLRB 215 (1984). The record
here shows that the grievance procedure consisted of four
steps. The parties stopped short of the last step, namely, arbi-
tration, and arrived at a settlement decision in step three by
the General Presidents’ Committee. Its decision was stated in
a letter dated January 31, 1986, by Thomas Owens, adminis-
trator (G.C. Exh. 3):
At the last regular meeting of the Presidents’ Com-
mittee, a Step III grievance was reviewed involving
Garland Berry, member of UA Local 520 terminated
from the Peach Bottom Nuclear Power Plant, Delta,
Pennsylvania project.
After hearing statements from both parties and care-
fully examining all of the evidence submitted, it was
the position of the committee that Garland Berry should
be made eligible for immediate rehire without any back
pay.
The decision was accepted by Catalytic and the Inter-
national. However, Hartinger representing Local 520, re-
quested the International by letter dated February 11, 1986,
to take the matter to arbitration. (G.C. Exh. 4.) He, inter alia,
stated: ‘‘I still feel that Garland should be reinstated, not re-
hired, and should receive full compensation for lost wages he
is entitled to. . . . [Y]ou told Catalytic that the U.A. would
take this case the whole way to arbitration and I find this
is necessary.’’ On March 6, 1986, the assistant general presi-
dent of the International wrote to Hartinger: ‘‘Because of the
agreement of the General Presidents’ Committee, there is no
further step as far as arbitration. The only time it goes to ar-
bitration is when the committee cannot agree to a solution.
. . . [T]he U.A. has taken them to the highest step in the
grievance procedure and will consider this case closed.’’ (R.
Exh. 9.)
The Respondent naturally submits that the Olin Corp.
standards were met and that deferral is appropriate. The Gen-
eral Counsel argues that ‘‘the relationship here is actually
three sided, involving Respondent the International Union
and the Local Union’’ (G.C. Br. 14). The Charging Party
would add the individual, Garland Berry. Moreover, accord-
ing to the General Counsel, ‘‘the record reflects a certain
tension among these parties . . . [whose] interests are not
wholly aligned.’’ Because the Local and the individual had
no direct role at all in the process of the grievance at step
III, it is the General Counsel’s position that deferral is inap-
propriate. The Charging Party and the General Counsel also
argue that the decision to rehire without backpay is meaning-
less because any employee, even afer discharge for cause,
could be rehired. Berry was rehired after several months and
did not receive any backpay. Although the Charging Party
further argues that none of the Spielberg and Olin standards
were met in this case, clearly the most troubling issue is that
Local 520 and Berry, as an individual did not participate di-
rectly in the settlement, nor did they fully accept its decision.
In United Technologies Corp., 268 NLRB 557, 560 (1984),
the Board stated, inter alia, as a guiding principle that ‘‘it has
refused to defer where the interests of the union which might
be expected to represent the employee filing the unfair labor
practice charge are adverse to those of the employee.’’ To
be sure, the interests of the International here were not nec-
essarily adverse to those of Berry, but it is plausible to con-
clude that the interests of the International were not wholly
congruent with those of Berry and Local 520, and that the
International attempted to settle a larger controversy, i.e.,
Catalytic’s and PECO’s overall dissatisfaction with the pipe-
fitters. Berry’s interests may have been sacrificed to achieve
the larger goal. In Combustion Engineering, 272 NLRB 215,
217 (1984), the Board recognized the importance of the indi-
vidual’s involvement in the settlement agreement and the
parties’ respective concessions in arriving at a settlement.
Here, of course, Berry was not involved in the settlement
process, nor did the Respondent make any concessions. To
the contrary, the Respondent’s position was accepted in spite
of the objections of Local 520. In a recent case, Alpha Beta
Co., 273 NLRB 1546, 1547 (1985),3 the Board reemphasized
the importance of the requirement that all parties agreed to
be bound. The Board there observed:
All parties had agreed to be bound, including the em-
ployees. Although the employees were not themselves
involved in the settlement negotiations, they were fully
informed as to the specific terms of the proposed settle-
ment by the Unions. Indeed, the Unions left the final
decision of acceptance or rejection of the proposed set-
tlement up to the employees, who knew that it did not
contain any provision of backpay. Instead of rejecting
the settlement on that basis, and without expressing any
dissatisfaction to the Respondents, the employees au-
thorized the Unions to accept the settlement agreement
on their behalf. Thus, the employees were bound by
their acts and those of their collective-bargaining rep-
resentative.
The record here shows clearly that Local 520, which rep-
resented Berry’s interests, disagreed with the settlement as
shown in its letter, dated February 4, 1986, to the Inter-
national requesting that the matter be taken to arbitration. In
sum, the record here shows that all parties did not agree to
be bound and that all parties did not participate in the griev-
ance process’ third step. Accordingly, I agree with the Gen-
eral Counsel and the Charging Party that deferral is not ap-
propriate under these circumstances.
CONCLUSIONS OF LAW
1. Catalytic, Inc. is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Plumbers and Pipefitters Local Union No. 520 is a labor
organization within the meaning of Section 2(5) of the Act.
3. By discharging Garland Berry because of his activities
as a union steward, the Respondent has violated Section
8(a)(3) and (1) of the Act.
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Under New Horizons for the Retarded, supra, interest is computed at the
‘‘short-term Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
6 If this 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Upon concluding that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to recommend
that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. Having
unlawfully discharged Garland Berry, the Respondent shall
offer him reinstatement, and make him whole for lost earn-
ings and other benefits computed on a quarterly basis from
the date of discharge to the date of a proper offer of rein-
statement, less net interim earnings in accordance with F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).4
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Catalytic, Inc., Philadelphia, Pennsyl-
vania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Discharging any employee because he engaged in
union activities.
(b) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Garland Berry immediate and full reinstatement
to his former job or, if that job no longer exists, to a substan-
tially equivalent position without prejudice to his seniority or
any other rights or privileges previously enjoyed and make
him whole for any loss of earnings and other benefits he may
have suffered as a result of the discrimination practiced
against him in the manner set forth in the remedy section of
this decision.
(b) Remove from its files any references to the discharge
of Garland Berry and notify him in writing that this has been
done and that evidence of his discharge will not be used as
a basis for future personnel action against him.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at the Respondent’s place of business in Philadel-
phia, Pennsylvania, copies of the attached notice marked
‘‘Appendix.’’6 Copies of the notice, on forms provided by
the Regional Director for Region 4, after being signed by the
Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge employees for engaging in union
activities.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Garland Berry immediate and full reinstate-
ment to his former job or, if that job no longer exists, to a
substantially equivalent position without prejudice to his
former seniority or any rights or privileges previously en-
joyed and WE WILL make him whole for any loss of earnings
and other benefits resulting from the discharge, less any net
interim earnings, plus interest.
WE WILL remove from our files any reference to the dis-
charge of Garland Berry. WE WILL notify him that this has
been done and that evidence of his unlawful discharge will
not be used in any way as a basis for future personnel action
against him.
CATALYTIC, INC.