UNITED STEELWORKERS OF AMERICA, ETC. v. NLRB

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: PER CURIAM
• Citation: United Steelworkers of Am. v. Nat'l Labor Relations Bd., 692 F.2d 1052 (7th Cir. 1982)
• Decision Date: 27 August 1982
• Docket Number: No. 81-2832.,81-2832.
• Parties: UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

692 F.2d 1052

UNITED STEELWORKERS OF AMERICA, AFL-CIO-CLC, Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.

No. 81-2832.

United States Court of Appeals, Seventh Circuit.

Argued June 7, 1982.

Decided August 27, 1982.^*

Opinion November 16, 1982.

Carl B. Frankel, Assoc. Gen. Counsel, Pittsburgh, Pa., for petitioner.

Andrew Tranorich, Washington, D.C., Elliott Moore, N.L.R.B., for respondent.

Before BAUER and WOOD, Circuit Judges, and CAMPBELL,^** Senior District Judge.

PER CURIAM.

This case arises on a petition by the United Steelworkers of America, AFL-CIO-CLC ("the Union") pursuant to Section 10(f) of the National Labor Relations Act, 29 U.S.C. §§ 151 et seq. ("the Act"), for review of a Decision and Order of the National Labor Relations Board ("NLRB" or "the Board") issued on September 30, 1981. 258 N.L.R.B. No. 68. Pursuant to Section 10(e) of the Act, the Board has cross-applied to enforce its order. We deny enforcement of the Board's order.

I. Facts

Gloria Wiley was a machine operator at Memphis Folding Stairs, Inc. ("the Company") from October, 1977 to January, 1980 when she was discharged for insubordination. Wiley's practice was to drive home during her half-hour lunch break. On January 13, 1980, she left the plant at 11:30 a.m. and found her car blocked by another car, which Wiley recognized as belonging to a foreman. Wiley found the foreman in the lunchroom and asked him to move his car and he agreed to do so. She then went back to her car and waited for approximately 15 minutes. When the foreman did not appear, she returned to the lunchroom to again ask him to move his car; the foreman replied that he would move it when he finished lunch. By the time the foreman moved his car, there were only a few minutes remaining in the lunch period.

Wiley then waited in the hall for Don Bratschi, her foreman and immediate supervisor. When Bratschi came out of the lunchroom, Wiley asked him whether she could start her lunch break late. He said no and directed her to go to work. Wiley refused since she had not yet eaten lunch. Bratschi again asked her to return to work and Wiley again refused. Bratschi then left for the work area. Wiley stopped Jerry Gerrard, the plant superintendent, and asked him if she could take her lunch break. After learning that Bratschi denied her request, Gerrard replied that there was nothing he could do.

Foreman Bratschi advised Alma Hyman, Wiley's department steward, that Wiley had refused to go back to work and asked her to talk to Wiley. Hyman spoke with Wiley, counseling her to return to work as "the best thing for you to do." In response, Wiley said, "I don't know, ...." Wiley then walked back to her machine. Bratschi approached her and asked her to return to work. Wiley again asked if she could go to lunch. Bratschi denied that request and repeated his request that she return to work. Wiley remained silent. Bratschi asked if Wiley heard him talking to her. Wiley continued to stand mute. Bratschi then fired her.

Following her discharge, Wiley went to Hyman's work station and told Hyman she wanted to file a grievance. Hyman did not have a form on hand so she suggested that Wiley go see the president of the local union. The next contact between the Union and Wiley was the day after the discharge when chief steward James Powell went to Wiley's house. Wiley related what had happened the previous day, including all the facts and circumstances surrounding the discharge. He suggested that she meet him at the guard house outside the plant the next day and he would have a grievance form.

The next day Powell told Wiley he would talk to Gerrard about getting her job back before she filed a grievance. Shortly thereafter, other local union officials arrived and a meeting was held at the guard shack to discuss Wiley's case. Powell, Hester, Hyman, and Lois Johnson, vice president of the local, reviewed the facts leading to the discharge. Wiley was excluded from the meeting. The four unanimously concluded that Wiley did not have a meritorious grievance under the collective bargaining agreement. Although they felt that her case lacked merit, they also decided to let her file a grievance because under the collective bargaining agreement,¹ she could not be prevented from filing once she chose to do so.

At the conclusion of the meeting, Powell provided Wiley with a grievance form. Hester helped Wiley fill out the form and directed her to take the grievance to Hyman for submission to the Company. Allegedly, Hyman had to sign it before it could be given to the Company and processed.²

Wiley completed the form and took it to Hyman. According to Wiley, she gave the form to Hyman and asked her to hold it until 3:30 p.m. because Powell would be talking to the superintendent about getting her job back. Still according to Wiley, Hyman responded that Wiley should tell Powell that she would turn in the grievance when she got ready. According to Wiley, there was no argument between the two.

Hyman's account, on the other hand, is that when Wiley brought her the grievance form, Wiley became upset and verbally abused her.³ Hyman responded to Wiley's cursing by refusing to sign her grievance. Hyman nevertheless accepted the grievance and later brought it to Hester. Hester, in turn, submitted the grievance to Powell. Powell did not then file the grievance with the Company. Although it is not clear exactly when it was filed, the grievance signed by Hester and Powell was eventually submitted to the Company.

On April 18, 1980, Wiley filed unfair labor practice charges with the Board against the Union for failing to file her grievance because she criticized Steward Hyman's performance of her official duties. Subsequently, the parties agreed to a settlement, approved by the Regional Director. The agreement provided:

WE WILL NOT fail or refuse to fairly represent any employee in a bargaining unit represented by us or negligently and carelessly fail or refuse to file and process any employee's grievance.

WE WILL request Memphis Folding Stairs, Inc. to reinstate Gloria Wiley to her former position, or, if it no longer exists, to a substantially equivalent position. If it refuses to reinstate her we will consider a grievance over her January 13, 1980, termination and pursue it in good faith with all diligence.

WE WILL make Gloria Wiley whole for any losses she suffered by reason of our failure to promptly file and process her grievance.

WE WILL NOT in any other manner interfere with, restrain or coerce employees in the exercise of their rights guaranteed in Section 7 of the National Labor Relations Act.

The agreement also provided, "Back Pay — The Charged Party will make whole the employees named below by payment to each of them of the amount opposite their name." No amount, however, was included next to Wiley's name. Following approval of the settlement agreement, the Union requested a meeting with the Company. The Company agreed to meet with the Union, but did not waive the collective bargaining agreement requirement that grievances had to be filed within two days of their occurrence.

At the meeting, International Staff Representative Don Bogan intervened on behalf of Wiley. Bogan's preparation for the meeting consisted of a discussion with Staff Representative Wright concerning the circumstances of Wiley's discharge. The record does not indicate whether the Company raised the timeliness defense at the meeting. At the outset, the employer presented several documents relating to the grievance; they consisted of Wiley's disciplinary record including a prior discharge for absenteeism,⁴ a written statement describing the latest discharge, and the formal discharge notice. Wiley was invited to comment and was given an opportunity to present her side of the case.

Bogan argued that the discussion be limited to "whether or not this woman was terminated for just cause." Bogan requested that the Company reinstate her without backpay. The Company's representatives then caucused to consider Bogan's requests. Following a discussion, they returned and announced the Company's decision to let the discharge stand. As the Company explained, "Wiley had been insubordinate in refusing to go to work notwithstanding three orders that she do so." Moreover, it appears that Wiley's prior record contributed to the Company's decision.

After the meeting, Bogan explained to Wiley the weaknesses in her case and advised her that her chances of winning before an arbitrator would be slim. Ultimately, Bogan determined not to pursue Wiley's grievance to arbitration. He grounded his decision on her admitted refusal to comply with repeated orders by supervisors that she return to work and on the well-settled principle that an employee given an order to work must obey and grieve later. Moreover, Bogan knew that Wiley's prior disciplinary record would be considered by the arbitrator and would not help her cause in arbitration.

II. The Board's Conclusions and Order

The Board, in agreement with the Administrative Law Judge, found that the Union violated section 8(b)(1)(A) of the Act by refusing to process Wiley's grievance because of Wiley's criticism of Hyman's performance of her official duties. The Board further found that, by not making Wiley whole with backpay for any losses she suffered by reason of the Union's conduct, as well as by failing to process Wiley's grievance through the contractual grievance procedure on its merits, the Union violated the April 21, 1980 settlement agreement.

The Board ordered the Union to cease and desist from the unfair labor practices and from restraining or coercing employees in the exercise of their rights guaranteed by the Act. Affirmatively, the Board directed the Union to request reinstatement for Wiley to her former or a substantially equivalent position, and if such request was refused, to secure the Company's consideration of her grievance and to pursue it in good faith and with due...