Petition for Review of an Order of the National Labor Relations Board.
Before BAUER and WOOD, Circuit Judges, and CAMPBELL, Senior District Judge.*fn*
Per Curiam: This case arises on a petition by the United Steelworkers of America, AFL-CIO-CLC ("the Union") pursuant ot 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") issue on September 30, 1981. 258 NLRB 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.
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 Alman 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, . . . it." Wiley then walked back to her machine. Bratschi approached her and asked 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, Hesteer, 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,*fn1 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 given to the Company and processed.*fn2
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.*fn3 Hyman responded to Wiley's cursing by refusing to sign her grievance. Hyman nevertheless accepted he 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 to 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, ...