Teamsters Local 327 (Kroger Co.)

National Labor Relations Board - Board Decisions

Dec 13, 1977

233 N.L.R.B. 1213 (N.L.R.B. 1977)

TEAMSTERS LOCAL 327
Teamsters, Chauffeurs, Helpers and Taxicab Drivers
Local Union 327, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (The Kroger
Co.) and David Thomas Woodard, Michael C.
Walters, James Allison Haley, and Larry E. Potts.
Cases 26-CB-1192, 26-CB-1192-2, 26-CB-1192-
3, and 26-CB-1205
December 13, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On August 2, 1977, Administrative Law Judge
Robert C. Batson issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
I 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
credibility 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 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
We do note, however, that the Administrative Law Judge's inadvertent
reference to employee "Billy C. Milligan" should read "Billy C. Milliken."
DECISION
STATEMENT OF THE CASE
ROBERT C. BATSON, Administrative Law Judge: This
consolidated proceeding under the National Labor Rela-
I The facts found herein are based upon the record as a whole and upon
my observations of the witnesses testifying under oath. Credibility
resolutions have been derived from such record and observations with due
regard for the logic of probability under the teachings of N. L R. B v. Walton
233 NLRB No. 181
tions Act, as amended, 29 U.S.C. Sec. 151, et seq., herein
called the Act, was heard by me at Nashville, Tennessee,
on April 25 and 26, 1977, based upon a consolidated
complaint and notice of hearing and an amendment to
consolidated complaint issued by the Regional Director for
Region 26, growing out of charges filed by: David Thomas
Woodard, an individual, in Case 26-CB--1192; Michael C.
Walters, an individual, in Case 26-CB-1192-2; James
Allison Haley, an individual, in Case 26-CB-1192-3; and
Larry E. Potts, an individual, in Case 26-CB-1205, against
Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local
Union 327, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein Respondent or Union. All parties partici-
pated throughout by counsel or other representatives and
were afforded full opportunity to present evidence and
arguments, and to file briefs. Briefs have been received
from counsel for the General Counsel and the Respondent.
Record and briefs have been carefully considered.
Issues
The principal factual issues are: (I) whether Respondent,
by its Local 327 president, William Ellis, in order to induce
its members employed at the Kroger Company, Nashville,
Tennessee, to ratify a proposed contract, represented to
them that the Employer had agreed not to take disciplinary
action against any employee then engaged in a strike and
represented that item 3 of the proposed supplement
prohibited mileage bid drivers from bidding more than the
equivalent of 40 hours a week, or $261.20, and, if such
representations were made, whether true or false; (2)
whether Respondent investigated the grievances of its
members who were disciplined for alleged strike miscon-
duct and rendered proper assistance to them, particularly
with respect to asserting the represented agreement that no
disciplinary action would be taken, and whether Respon-
dent failed to process a grievance filed pursuant to its
represented interpretation of item 3 of the supplement.
Upon the entire record, including consideration of able
briefs filed by counsel for the General Counsel and
Respondent, and my observation of the testimonial
demeanor of the witnesses,' I make the following:
FINDINGS AND CONCLUSIONS
I. RJRISDICTION
At all times material herein, Respondent Teamsters,
Chauffeurs, Helpers and Taxicab Drivers Local Union 327,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, has
been, and is, a labor organization within the meaning of
Section 2(5) of the Act.
At all times material herein, the Kroger Co., herein
Kroger, Employer, or Company, has been, and is, a
corporation doing business in the State of Tennessee, with
an office and place of business located at Nashville,
Manufacturing Company, 369 U.S. 404 (1962). No testimony has been
pretermitted and any testimony not discussed has been in conflict with
credited testimony or incredible and unworthy of belief
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tennessee, where it is engaged in the retail sale of grocery
products. During the past 12 months, in the conduct of its
Nashville operation, it purchased and received goods
valued in excess of $50,000, directly from points located
outside the State of Tennessee, and during the same period
of time it had a gross volume of business in excess of
$500,000. I find that at all times material herein Kroger has
been, and is, an Employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts as Found
Kroger's Nashville operation involved here is a distribu-
tion center engaged primarily in the warehousing and
transportation of goods for its retail stores. Respondent has
for a number of years been the collective-bargaining
representative of a unit of employees which is apparently
all employees except office clerical and those statutorily
excluded. There have been a number of successive
collective-bargaining agreements, the current one effective
from September 2, 1976,2 to September 1, 1979. The
previous agreement expired August 25.
From the inception of negotiations, around July 1,
Kroger proposed that certain driver work be bid on a
"mileage" or "run" basis as opposed to the hourly basis for
all work under the existing contract. In fact, Kroger had
proposed to the Union earlier in the year that it agree to a
trial period of such bidding. The Union and the drivers
refused. While there were other issues negotiated, the only
one relevant here is the mileage bid and the manner in
which Ellis represented it to the members. There were
many meetings leading up to the August 17 meeting. After
the August 17 meeting, Ellis agreed to present Kroger's
proposal to the membership, including the proposal to
convert some driver work to a "mileage" bid basis, but
excluding economics, i.e., the rate per mile. The member-
ship refused to ratify and the parties returned to negotia-
tions.
The contract expired on August 25. However, by
agreement the parties extended it to midnight August 27, at
which time the employees ceased work and engaged in a
strike.
On August 31, Kroger and the Union had a lengthy, 12-
1/2-hour bargaining session at the office of the Federal
Mediation and Conciliation Service in Nashville. In
attendance for Kroger were Walter Blake, director of labor
relations; David Carlson, Charles Thomas and Jack
Overback, district manager, vice president, and personnel
manager of the Southland Marketing Area, respectively.
For the Union were Local 327 president, William Ellis, and
the employee committee including Bobby Reynolds and
Billy C. Milligan who testified at this hearing.
Blake opened the meeting with a statement about alleged
violence on the picket line and away from the strike site;
stating that it was difficult to negotiate in an atmosphere of
such violence. He then enumerated a number of specific
2 All dates hereafter are 1976 unless otherwise indicated.
I While crediting Blake in all other respects, I do not credit his denial of
this statement. Ellis testified that Blake made that or similar statements on
several occasions and Milligan and Reynolds testified the statement was
made by both Thomas and Blake.
instances of violence and stated that the Company had
called in the F.B.I. and the National Labor Relations
Board and if it determined that Kroger employees were
responsible for the violence it would take a strong position
that they should not be reinstated when the strike was over.
Ellis responded that he had just come from the picket line
and did not see any misconduct. He added that the Union
could not be responsible for the acts of every individual on
strike. He continued that he assumed they still had a
grievance procedure and these individuals would have a
hearing. Blake assured him that was the case.
The parties then went into negotiations to resolve the
several issues in dispute. Sometime in the afternoon, Blake
made a statement to the effect that the Company wanted to
get a contract and get the employees back to work and
would let bygones be bygones and look to the future, or
proposed that they forget the past and look to the future.3
There was no discussion as to what this general
statement meant, and specifically nothing with respect to
the alleged misconduct. Later in the day the mediator told
the union committee that the Company's statement about
letting bygones be bygones might be good for them.
With respect to the Company's proposal that certain
driver work be bid on a mileage or trip basis, as opposed to
hourly, Blake told the committee that if this portion were
ratified more work would be assigned to the Nashville
operation, specifically the St. Louis milk run and others.
The Company further suggested that if this proposal were
rejected and the drivers remained on an hourly basis, some
work then being done by Nashville based drivers would be
reassigned to units which had adopted the mileage basis.
This had also been discussed at the August 17 meeting. By
10:30 p.m. an agreement had been reached which Ellis
agreed to recommend ratification to the membership.
Blake then polled the employee members of the committee
and got a mixed reaction. Some said they would recom-
mend ratification, some said they would recommend
against ratification, and yet others said they would not
recommend against.4
On September 1, Ellis presented the proposed contract to
the membership for ratification in four different groups,
warehouse, maintenance, health and beauty aids, and
drivers. Those portions of the agreement affecting only one
group of employees were not presented to the others. For
instance, the mileage bid proposal was presented only to
the drivers.
The record does not disclose whether or not any striker
had been named as having committed alleged strike
misconduct. However, it is apparent that in each group, at
least the drivers, warehouse, and maintenance groups from
which the General Counsel presented witnesses, one of the
primary concerns of the members was what would happen
if the Employer disciplined or discharged employees for
alleged strike violence.
The General Counsel presented three witnesses from the
driver group. Bullock didn't recall any discussion about
violence except that prior to the meeting Ellis told the
4 The foregoing findings of fact, except as otherwise noted, is based upon
the credited testimony of Blake, Carlson, Ellis, Milligan, and Reynolds.
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TEAMSTERS LOCAL 327
group the "Company was willing to let bygones be bygones
and forget the past and look toward the future and wanted
to get this contract settled." Larry Potts recalled that
violence was mentioned but nothing was said. Billy
Milligan, who was a member of the negotiating committee,
stated that Ellis told the drivers what Blake and Thomas
had said about letting bygones be bygones and that it
would probably save some people's jobs.
The General Counsel called two witnesses from the
maintenance group. Bobby Reynolds was not questioned
with respect to what Ellis had told the group. Gerald
Soloman testified that Ellis told the group he liked the part
about letting bygones be bygones. In response to a
question concerning the violence, Ellis stated that if anyone
was proven guilty of the violence their jobs were gone. He
could not work miracles. On cross-examination Soloman
agreed that Ellis had made it clear that he didn't expect a
few little words to perform miracles.
All six witnesses from the warehouse group testified that
Ellis told them what the Company had said about letting
bygones be bygones and look to the future. In response to
specific questions concerning possible firings for strike
misconduct, Ellis stated "All I can say is what they told us.
If this contract is ratified everything will be forgiven and
forgotten. If anybody is fired I will back you 100 percent." 5
James Haley, David Woodard, and James Booker testified
that Ellis told them that if anyone was fired they would
have a good grievance, or that they could grieve.
In the driver group there was yet another, and perhaps
greater problem, i.e., the conversion of some of their work
to the mileage concept as proposed by the Company and
which had been rejected earlier. Ellis first presented the
basic contract to the drivers which they ratified. He then
told them that he was sorry that he had to present the
mileage proposal supplement to them again. There fol-
lowed a lengthy discussion, characterized by Bullock as
"highly contested." Apparently, one of their major con-
cerns was that more senior drivers would "hog" the runs,
thereby causing the layoff or curtailment of work for junior
drivers. At issue here is whether Ellis represented to the
drivers that item 3 of the supplement, which provides
"Mileage drivers who report to work as scheduled shall be
guaranteed weekly pay not less than the equivalent of forty
(40) hours at the basic straight-time hourly rate in 3, 4, or 5
days to be worked," was to be interpreted as prohibiting
drivers from bidding mileage runs substantially in excess of
their 40-hour guarantee.
According to Billy Milligan, in response to a question
concerning more senior drivers hogging the runs, Ellis
replied that "the mileage would be bid equivalent to the
weekly guarantee or as near as possible." On cross-
examination Milligan stated that Ellis told them that he
recommended the drivers bid as close to 40 hours a week as
possible and did not tell them the contract prohibited
bidding over 40 hours.
Bullock testified that Ellis told them if the proposal were
accepted there would be plenty of work for everybody
because the Company had promised additional runs, but if
it were rejected there would be a big layoff. However, in
I Testimony of George H. Ruiz.
6 Gerald Soloman apparently did not have a step 2 heanng because the
Company's witnesses were out of town and his case was sent on to step 3.
response to the specific question as to whether or not there
was a limit on mileage, Ellis replied "No." He continued
that "you will bid no less than three days or no more than
five equal to your 40 hour guarantee or as close to it as you
can get."
Only Larry Potts testified that Ellis told the group that
"no man would be able to bid above his 40 hour week
equivalent or $261.20 a week." On cross-examination Potts
testified that Ellis did make the "proposal" that no driver
would bid above his weekly guarantee and specified it at
$261.20.
Ellis testified that he read item 3 of the supplement to the
drivers and explained that they must bid the equivalent of,
or better than, their 40-hour guarantee and bid it on runs in
3, 4, or 5 days. In response to questions concerning the
hogging of work by senior drivers, he told them that he and
the Union recommended that drivers not bid over their 40-
hour guarantee. Ellis also told them the Company had
promised additional work for the Nashville based drivers if
they adopted the mileage proposal. However, if they did
not adopt the mileage proposal they may lose work by
reassignment to units bidding on the mileage basis. He
explained that if they lost drivers either way he felt they
would come nearer getting them back if the mileage
proposal were adopted since they would pick up additional
freight. The drivers then ratified the contract 41 to 40.
Late in the evening of September 1, or the early morning
of September 2, Ellis and Local 327 secretary-treasurer,
Dempsey Newell, went to the local motel wherein Blake,
Overbeck, and other Kroger officials were housed and
executed a memorandum of agreement. The employees
were to begin reporting back to work at 5 a.m., September
2. Blake again told Ellis that there would be some
employees they would not take back but that the letters
had not been prepared and he did not name any. He
assured Ellis they still had the grievance machinery and
there would be a hearing.
The following day, upon reporting to work, 15 employees
were given a letter stating in effect that they were not being
reinstated at that time pending further investigation
concerning their involvement in picket line misconduct
during the recent strike, and promised additional informa-
tion in the next several days. Apparently, each employee
receiving this letter immediately went to the union hall and
filed a grievance pursuant to the contract.
About September 8, there was a step 2 grievance
meeting, at which Personnel Director Overback presided
for the Company. Ellis characterized the step 2 procedure
as largely investigatory, and the step at which the Union
finds out the specific allegations against each employee.
However, a grievance may be settled at step 2 if the Union
can convince the Company of its position or the Company
can convince the Union. As a result of the step 2
procedure, 3 employees were reinstated; one with backpay
and the other two without backpay, the time lost to be
considered as disciplinary layoff.6 At the step 2 proceeding,
a grievant is told the charges against him and asked to
admit, deny, or explain such. The Company then presents
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some, or all of its evidence, including any witnesses it may
have.
The following day Ellis told the remaining 12 suspended
employees he would see them in Chicago on the 14th for
the step 3 procedure. At the step 3 procedure, the evidence
is presented to a panel of 2, one selected by the Union and
one by the Employer. In this case the panel consisted of
Sam Smith, an official of the Teamsters, Wichita, Kansas
Local, and C. Fred Warren from Kroger's Cincinnati,
Ohio, labor relations department. The panel hears the
evidence on each grievant and if they agree their decision is
final and binding on all parties. If they disagree, called a
"deadlock," either the Employer or the Union may, within
30 days, petition to take the case to arbitration.
By letter dated September 11, Kroger notified each of the
grievants of the disposition of their case and, for those not
reinstated, stated the specific acts of alleged violence it
relied upon in not reinstating them. I credit Ellis, that he
did not receive a copy of this letter before the October 14,
step 3 proceeding. Apparently, only 10 of the 12 grievants
elected to go to Chicago for the step 3 hearing.
The General Counsel presented five witnesses who went
to the step 3 hearing; two of whom, Soloman and O'Brien,
were reinstated, and three, Walters, Haley, and Woodard
were not reinstated. Each testified that the Union conduct-
ed no investigation of the charges against them prior to the
step 3 hearing.
In a prehearing conference with the Kroger representa-
tive and the panel, Ellis raised as a defense to the
discharges for alleged misconduct during the strike Blake's
statement that they were willing to let bygones be bygones
and look forward to the future. Kroger interpreted the
statement as meaning they wanted to forget the strike and
get back to work and such did not constitute condonation
of the alleged violence. Evidently, both members of the
panel agreed the statement did not constitute a bar to the
discharges. Ellis did not thereafter assert the statement as a
bar in the hearing of each individual case. Each grievant
was given the opportunity to admit, deny, or explain the
charges against him. Each denied the charges. Each was
then asked if he had observed other strikers engaging in
specified acts, rock throwing, damaging property, shooting,
etc. Each denied having seen such acts. O'Brien testified
that he saw rocks in the air but didn't see anyone throw
them. Kroger then presented its witnesses to the alleged
conduct and they were examined and cross-examined by
Ellis. Each grievant was present during the hearing on his
grievance and had the opportunity to suggest questions and
to make any statement he wished or to call witnesses on his
behalf.7
As a result of the step 3 hearings, five additional
grievants were reinstated on September 20, their time off
between September 2 and September 20 being reduced to a
disciplinary suspension without pay and a probationary
letter being placed in their files. Thus, 8 of the 15 strikers
who were discharged for alleged misconduct were reinstat-
ed after pursuing the grievance procedure.
I Testimony in conflict with the facts as found with respect to the
conduct of the step 3 hearings is not credited.
I The grievance identified by Milligan as being the one he filed is dated
9/10/76. However, since the mileage bid was not posted until October 3, 1
assume it was misdated.
On October 3, Kroger posted for bidding both mileage
and hourly runs to become effective October 17. Drivers
who bid mileage runs put together a week's work on a day-
by-day basis in not less than 3 or more than 5 days a week.
As had been feared by less senior drivers, the more senior
drivers who bid mileage put together a week's work far in
excess of the guaranteed 40 hours or $261.20, some as
much as 60 hours which is the maximum hours allowable
under D.O.T. regulations, the net result being that they
were making more runs and working more hours which
caused the immediate layoff of 10 drivers. Prior to the
implementation of the mileage bid system there had been
73 regular bid drivers, 17 extra board bid drivers, and 3
nonguaranteed drivers. After October 17, there were 36
regular and 6 extra board mileage bid drivers, 27 regular
and 10 extra board hourly bid drivers, and 5 drivers in the
hostler classification.
Billy Milligan testified that some time in October he
prepared a grievance protesting the Employer's permitting
drivers to bid in excess of their guarantee and took it to the
union hall.8 Ellis was not there and the secretary xeroxed
Milligan a copy and placed the original in Ellis' pigeon
hole. Sometime later, apparently around January 19,
Milligan approached Ellis and asked about the grievance.
Ellis told him he had not received it. Milligan stated he
then took his copy of the original to the union secretary
who made him three copies, one of which he gave to his
steward, Ken Traughber, left another on the desk of
Transportation Supervisor Sandage, and one he retained. 9
According to Milligan he had not been informed as to the
disposition of his grievance, nor had he made any inquiry
concerning it.
Ellis testified with respect to the October grievance that
he took it up with the Company some 2 weeks after filing
and was told that the Company did not receive a copy of it
and it was therefore untimely under the contract. The
second grievance was taken up with the Company at step 2
in January in a meeting attended by Carlson and Sandage
for the Company and Union Stewards Kupka and Rigsby,
and Ellis for the Union. The Company denied the
grievance and the Union concurred since it did not raise a
question of interpretation of any contract provisions in the
absence of contract language dealing with limiting the
number of hours a driver may bid.
B. Analysis and Resolutions
The complaint alleges that Respondent, by Ellis, repre-
sented to employees at the September 1 ratification
meeting that Kroger had agreed not to discipline any
employees accused of picket line misconduct and that
under the new agreement no driver would be permitted to
bid for runs paid on a mileage basis above his 40-hour
weekly guarantee or as close thereto as possible. Counsel
for the General Counsel advances alternative theories upon
which to predicate the above as violations of Section 8(b)
(I)(A). One theory is that if either or both of the above
representations were not true such misrepresentations
9 The grievance identified by Milligan as being the one he filed in
January differs significantly in language from the one dated 9/10/76.
Clearly it is not an identical copy as testified to by him.
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TEAMSTERS LOCAL 327
violate Section 8(b)(1)(A); and if they were true the failure
of the Union to assert the agreement not to discipline as a
bar to the suspension of the 15 employees and the
subsequent discharge of 8 employees constitutes a failure
to fairly represent employees in the prosecution of
grievances and the failure to process the grievance filed by
Milligan with respect to drivers bidding in excess of 40
hours a week. It is additionally contended that the Union
failed to properly investigate and assist the employees in
preparing their grievances.
I find that by the conclusion of the August 31 negotiating
meeting the Company and the Union had agreed to the
general principle to let bygones be bygones and look into
the future. This is precisely what Ellis told the members at
the ratification meetings. Ellis indicated that this was the
best they could get and he would play it for all it was
worth. However, he made it clear that he did not view this
ambiguous statement as an amnesty for strikers determined
to be guilty of acts of violence and property damage which
no one denied had occurred during the brief strike. He told
them that nothing could save the jobs of such employees
and he could not work miracles with a few little words.
I further find that Ellis did not misrepresent the
interpretation of item 3 of the supplement to the drivers by
telling them that a mileage bid driver could not bid
substantially over the 40-hour weekly guarantee. While his
statement that they must bid 40 hours a week or as close
thereto as possible may, standing alone, be ambiguous, his
emphatic negative response to the direct questions as to
whether there was a limit on the number of miles a driver
could bid places the former statement in perspective.
Moreover, according to Milligan and Ellis, Ellis told the
drivers that the Union recommended that no driver bid
over the guarantee.
Counsel for the General Counsel contends that the
Union breached its duty of fair representation in its
handling of grievances filed by the employees suspended
for suspected strike misconduct and alleges a failure to
process Milligan's grievance on driver overbidding. The
former contention is based upon the assumption that Ellis
failed to assert the let bygones be bygones statement as a
bar to the discharge of employees for alleged strike
misconduct, and a general failure to investigate their cases
and assist them in developing a defense. I find, as testified
by Ellis, that he did assert the Employer's statement to let
bygones be bygones as a bar to the discharge of any
employee. This was appropriately asserted prior to the
presentation of the individual cases, since, if either member
of the panel could have been pursuaded that such
statement constituted an amnesty, the question could then
have been taken to the final step of arbitration.
A grievant going to step 3 of the grievance procedure is
responsible for his own transportation to the site of the
hearing, and that of any of his witnesses. Only Woodard
10 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
contended that he had witnesses that he wished to present.
However, it appears that he did not bring them to the
Chicago meeting. Woodard's account of his own conduct,
which resulted in his arrest and plea of guilty to three
counts of disorderly conduct, could not be altered by other
witnesses. Indeed, O'Brien testified that had he been asked
about Woodard's assaulting a security officer, he would
have had to testify that he saw Woodard hit the officer,
which would have corrobarated Woodard's own account of
the event.
Ellis stated that in these cases he viewed each grievant as
being a witness for the others. All denied having seen any
individual commit any act of misconduct. While not
denying that there were rocks thrown, windshields broken,
trucks damaged, and other property damage, no one would
admit to having knowledge as to who did it.
Assuming that Ellis did not seize upon possible inconsis-
tencies in witnesses' testimony, the duty of fair representa-
tion in representing employees in grievances does not
require that each be handled with the expertise of a trial
lawyer. Here, it is obvious that Ellis represented the
grievants fairly and to the best of his ability.
The complaint alleges that Respondent violated Section
8(bXIXA) by refusing to process Milligan's grievance of
October 15. At the hearing, the General Counsel also
contended there was a similar failure with respect to the
one in January 1977. I credit Ellis' testimony that
Milligan's October grievance was denied by the Employer
because the Employer had not been served a copy, and it
was therefore untimely. As to the January 1977 grievance,
both Carlson and Ellis testified that it was considered at
the step 2 procedure and was denied. The Union thereafter
failed to pursue it since it did not involve an issue "over the
interpretation and application of a provision of" the
collective-bargaining agreement. Since there was no repre-
sentation that a provision of the contract limited the
number of hours or miles a driver could bid, there was no
failure in the duty of fair representation for the Union to
refuse to process the grievance further.
CONCLUSIONS OF LAW
I. Jurisdiction is properly asserted in this proceeding.
2. Respondent has not violated the National Labor
Relations Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
National Labor Relations Act, I issue the following
recommended:
ORDER O
The complaint be, and it hereby is, dismissed in its
entirety.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
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