Exxon Mobil Corp.

• Decision Date: 30 September 2004
• Docket Number: 13-CA-40976
• Citation: 343 NLRB No. 44
• Parties: Exxon Mobil Corporation and Nick Slusher.
• Court: National Labor Relations Board

343 NLRB No. 44

Exxon Mobil Corporation and Nick Slusher.

No. 13-CA-40976

United States of America, National Labor Relations Board

September 30, 2004

Chairman Battista and Members Schaumber and Walsh.

DECISION AND ORDER

The issue presented in this case is whether the Respondent unlawfully terminated chief steward Nick Slusher because of his involvement in protected grievance-related conduct. We find, contrary to the judge and the dissent, that Slusher was not engaged in protected grievance activity. Rather, we find that Slusher was engaged in unprotected harassment of a fellow employee because of that employee’s dissident union activities. We, therefore, find that the Respondent lawfully terminated Slusher for his unprotected conduct.^[1]

It is well established that employees, under Section 7 of the Act, have the protected right to file and process grievances, and the discipline or discharge of employees for doing so is a violation of Section 8(a)(1). See, e.g., Prime Time Shuttle International, 314 NLRB 838, 841 (1994); Thor Power Tool Co., 148 NLRB 1379, 1380– 1381 (1964), enfd. 351 F.2d 584 (7th Cir. 1965). The Board has long made clear that the grievance activities of union stewards are especially important to the effectiveness of grievance-arbitration machinery. Union Fork & Hoe Co., 241 NLRB 907, 908 (1979); Clara Barton Terrace Convalescent Center, 225 NLRB 1028, 1034 (1976).

The Board also has made clear, however, that the protections afforded to grievance activity do not extend to harassing conduct. “While Section 7 shields employees from potential employer discipline or other adverse action in the exercise of Section 7 rights, it does not permit employees to use grievances as a sword to gain immunity from the consequences of harassment.” Caterpillar Tractor Co., 242 NLRB 523, 530 (1979), enfd. 638 F.2d 140 (9th Cir. 1981).

This improper use of the grievance procedure is precisely what happened here. Thus, we find that Slusher is not entitled to the protection accorded to grievance-related conduct, because his filing of a grievance was a poorly disguised attempt to cloak his earlier harassing conduct with protected status.

The record shows that on February 26, 2003, ^[2] unit member Dan Breneisen filed a decertification petition with the Board. The decertification election was scheduled for April 11.

Before the decertification election, Slusher obtained a court abstract from Lake County, Illinois, showing that Breneisen had been charged with driving-under-the influence (DUI) on September 24, 1995. Slusher admitted that on April 6—5 days before the decertification vote initiated by Breneisen—he gave (or showed) a copy of the court abstract to unit employees Rich Moreno and Roy Machinski and to Supervisors Kevin Lozinak and Jim Heisen, and that he may have inadvertently given it to unit employee Michael Schaeffer. The judge found that Slusher distributed Breneisen’s court abstract in support of a grievance regarding the allegedly disparate application of the Respondent’s drug and alcohol policy. The record, however, supports a different interpretation

On April 10, Breneisen filed a complaint with Respondent’s management that Slusher “has taken personal and confidential records about me and has passed out photocopies to my fellow co-workers.” That day, the Respondent notified Slusher that “it had received another complaint of harassment” against him; but to avoid disrupting the decertification election, it would investigate the harassment complaint after the election.

It was not until April 11, just before the unit voted that day in favor of decertification, and representation ceased, that Slusher filed a grievance alleging disparate treatment under Respondent’s drug and alcohol policy. We find that Slusher’s grievance filing was an attempt to cloak his unprotected harassment of Breneisen for filing a decertification petition. Our reasons follow.^[3]

It is undisputed that Slusher learned of Breneisen’s DUI-incident as early as February 20, yet took no steps to file a grievance until nearly 2 months later on the date of the decertification election. Thus, the timing of Slusher’s discovery of the DUI incident and the distribution of the court abstract, as compared to his subsequent grievance filing, shows that Slusher’s object in circulating the DUI record was to harass Breneisen, who he knew was subject to discharge under the Respondent’s strict drug and alcohol policy if it was determined by the Respondent that Breneisen had failed to disclose the DUI-incident. The grievance filing itself came only after Slusher was told of the Respondent’s investigation of the harassment complaint against him, and as the Union itself was being decertified.

In addition, the April 11 grievance filed by Slusher was a cloak to provide cover for the circulation of the DUI report. Slusher filed it on April 11 on behalf of former unit member Frank Blommaert, alleging the lat-ter’s disparate treatment under the Respondent’s drug and alcohol policy as compared to Breneisen. Blom-maert, however, was terminated on January 10, and the parties’ contract required that such a grievance be filed no later than 30 days following the occurrence giving rise to it. Slusher, a veteran steward, was certainly well aware of this 30-day deadline. As the judge found, Slusher filed “more than the average number of grievances” and was “punctilious in enforcing the contract.” Slusher’s filing of the grievance, at the time he did so, fully substantiates our conclusion that it was an attempt to cloak Slusher’s earlier harassment of Breneisen with protected status.^[4]

We do not agree with our colleague that our decision “raises serious concerns about the future protection of grievance activity in the workplace.” We simply conclude that the circulation of Breneisen’s DUI record was in retaliation for his decertification activity, and that the grievance filing was an effort to disguise this fact.

Conclusion

For the reasons set forth above, we find that the Respondent did not violate the Act by suspending and discharging Slusher for harassment.

ORDER

The complaint is dismissed.

Member Walsh, dissenting.

The majority reverses the judge’s rock-solid findings, based largely on credibility, that chief steward Nick Slusher was engaged in protected grievance activity; that he did not lose the protection of the Act; and therefore the Respondent violated Section 8(a)(1) of the Act by suspending and discharging him for engaging in that protected activity. This unwarranted rejection of the judge’s findings raises serious concerns about the future protection of grievance activity in the workplace.

Factual Background

The Respondent’s drug and alcohol policy had been a dominating issue for the bargaining unit of fuel tanker drivers. The Union had consistently disputed the implementation of the policy since its inception in 2001, and had even filed unfair labor practice charges over it. Chief steward Nick Slusher had filed several grievances over the policy on behalf of unit employees. Not surprisingly, the Respondent’s drug and alcohol policy was one of the paramount issues in the parties’ negotiations for a successor contract, because the unit drivers viewed the policy as directly impacting their eligibility to continue driving. The parties’ negotiations were ongoing since the expiration of the previous contract on April 30, 2002, and were continuing after the decertification petition was filed by driver Dan Breneisen on February 26, 2003.

At a union meeting on March 12, 2003, discussing inter alia the policy, Breneisen stated in front of approximately one dozen fellow drivers that he “had a DUI [driving-under-the-influence]” in the past. Indeed, he had admitted this to Slusher when asked in February 2003. Slusher spoke to the Union’s business representative about filing a grievance alleging disparate application of the policy, because unit driver Frank Blommaert had been suspended in August 2002 for a DUI-incident, while in contrast Breneisen had not been suspended for his DUI-incident. Seeking to document their claim through public records, Slusher obtained on April 5, 2003, a court abstract from Lake County, Illinois, showing that Breneisen had been charged with driving-under– the influence (DUI) on September 24, 1995.

On April 6, Slusher gave a copy of the court abstract to Supervisors Kevin Lozinak and Jim Heisen who would be involved in processing the grievance. In addition, while handing out copies of the Union’s bargaining proposals, Slusher gave (or showed) a copy of the court abstract to unit employees Rich Moreno and Roy Machin-ski, explaining his belief that it supported a disparate application grievance.^[1]

On April 11, 2003, Slusher filed the grievance. There is no dispute that Slusher was, as the judge found, an “extremely aggressive” union advocate who filed numerous grievances on behalf of the bargaining unit, and “aggressively enforced the collective-bargaining agreement throughout his tenure” as chief steward until the day it ended when the Union was decertified on April 11, 2003.

Legal Principles

As the majority acknowledges, it is settled law that the filing of grievances unquestionably is protected concerted activity, and union stewards play an integral role in overseeing grievance procedures. See, e.g., NLRB v. City Disposal Systems, 465 U.S. 822, 836 (1984). As the Board has summarized:

It is well settled that filing grievances under a collective-bargaining agreement constitutes protected concerted activity. Union stewards filing and processing grievances on behalf of other employees similarly enjoy the protection of the Act, even if, while doing so, they exceed the bounds of contract language, unless the excess is extraordinary, obnoxious, wholly unjustified, and departs from the res gestae of the grievance procedure. [Footnotes and quotation

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