Auto Workers Local 2333 (B. F. Goodrich Co.)

National Labor Relations Board - Board Decisions

May 30, 2003

339 N.L.R.B. 105 (N.L.R.B. 2003)

AUTO WORKERS LOCAL 2333 (B. F. GOODRICH CO.) 105
United Automobile, Aerospace and Agricultural Im-
plement Workers of America Local No. 2333
(B.F. Goodrich Aerospace Landing Gear Divi-
sion of the B.F. Goodrich Company)1 and David
Smith. Case 8–CB–9023
May 30, 2003
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND ACOSTA
On August 28, 2001, Administrative Law Judge Earl
E. Shamwell Jr., issued the attached decision. The Gen-
eral Counsel filed exceptions and a supporting brief and
the Respondent filed an answering brief.
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 decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order.

1 The General Counsel submits that the name of the Employer is cor-
rectly set forth in the pleadings in this case and requests that the case
caption be modified accordingly. We grant the General Counsel’s
request.
2 The General Counsel has excepted to some of the judge’s credibil-
ity findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The General Counsel has excepted to the judge’s statement that
“credibility, in my view, was not of much moment in my assessment of
the merits of each party’s claim,” and that “this case does not rest on
credibility.” To the contrary, we find that the judge made credibility
findings necessary for the resolution of the legal issue of whether the
Union violated Sec. 8(b)(1)(A) by refusing to accept and process the
Charging Party’s grievance. Although the judge stated that “I believe
that in the main, each witness testified forthrightly,” the judge more
specifically found that he “credited the testimony of the Respondent’s
officials regarding their interpretation of the contracts they negotiated
and/or administered, as well as their investigation of Smith’s claim.”
The judge thus found that the Union conditionally accepted and inves-
tigated Smith’s grievance; and he credited denials by Union Agents Joe
Cantale, Ed Gohr, and Gregory Tokar that they made derogatory state-
ments about Smith that indicated that the Union would not investigate
or process Smith’s grievance. Accordingly, we need not rely on the
judge’s alternative finding that even if the union agents made deroga-
tory remarks, the remarks did not interfere with the investigation of the
grievance.
Chairman Battista notes that the judge said, “I am inclined to credit
Cantale’s, Gohr’s, and Tokar’s denials because I believe they each
testified credibly, and there is no compelling reason to give [General
Counsel witnesses] Williams’ and Dawson’s accusations greater weight
than their denials.” However, the judge also said that all witnesses
testified “forthrightly.” He concluded that the credibility issue was
“not of much moment,” and the case did not “rest on credibility.” In
these circumstances, Chairman Battista is unable to say that one set of
ORDER
The recommended Order of the administrative law
judge is adopted, and the complaint is dismissed.

Thomas M. Randazzo, Esq., for the General Counsel.
Bryan O’Connor, Esq. (Joyce Goldstein and Associates), of
Cleveland, Ohio, for the Respondent.
DECISION
STATEMENT OF THE FACT
EARL E. SHAMWELL JR., Administrative Law Judge. This
matter was heard by me on February 13 and 14, 2001, in Cleve-
land, Ohio. Based on an unfair labor practice charge filed on
November 23, 1999, by David Smith against the United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America, UAW, Local No. 2333 (the Respondent), the Re-
gional Director for Region 8 of the National Labor Relations
Board (the Board) issued a complaint dated August 18, 2000,
against the Respondent. The complaint alleges that the Re-
spondent violated Section 8(b)(1)(A) of the National Labor
Relations Act (the Act) by failing and refusing to accept and
process a grievance of David Smith because he refrained from
engaging in union activities. The Respondent timely filed an
answer to the complaint admitting some allegations but essen-
tially denying the commission of any unfair labor practices.
The Union also asserted certain affirmative defenses and re-
quested reimbursement for costs and attorneys’ fees pursuant to
the Equal Access to Justice Act.
On consideration of the entire record, including posthearing
briefs filed by the General Counsel and the Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
B. F. Goodrich Aerospace Landing Gear Division of the B.
F. Goodrich Company (the Employer), an Ohio corporation,
with an office and place of business in Cleveland, Ohio, is and
has been engaged in the manufacture of landing gear parts for
the airline industry. The Employer, in conducting its aforesaid
business operations, annually purchases and receives at its
Cleveland, Ohio facility, goods valued in excess of $50,000
directly from points located outside the State of Ohio. The
Respondent admits, and I would find and conclude, that the
Employer is and has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.

witnesses preponderates over the other. Thus, the General Counsel has
failed in his burden of establishing, by a preponderance of the credible
evidence, facts necessary to establish the violation. Chairman Battista
does not reach the issue of whether a violation would have been shown
if the General Counsel’s witnesses had been believed and Respondent’s
witnesses disbelieved.
We correct the judge’s inadvertent erroneous statement that “[Ed-
ward] Gohr’s agency status was stipulated and agreed to by the Re-
spondent during the hearing.” The record reveals that the stipulation
was to Gregory Tokar’s agency status.
339 NLRB No. 20
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 106
II. THE LABOR ORGANIZATION AND THE APPROPRIATE UNIT
The Respondent admits, and I would find and conclude, that
at all material times, it is and has been a labor organization
within the meaning of Section 2(5) of the Act. Furthermore, at
all material times, by virtue of Section 9(a) of the Act, the Re-
spondent, together with the International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of
America, UAW, has been the exclusive collective-bargaining
representative of the following employees (the unit) of the Em-
ployer:

All full-time and regular part-time factory hourly-rated em-
ployees employed by the Employer in the Greater Cleveland
area, but excluding all office clerical employees, professional
employees, and guards and supervisors as defined in the Act.

The Respondent admits, and I would find and conclude, that
the unit is an appropriate unit for purposes of collective bar-
gaining.
III. THE UNFAIR LABOR PRACTICES
A. Background Facts1
David Smith is currently employed by the Employer, having
begun his employment on March 7, 1978. Smith has been a
unit employee from the beginning of his employment and has
been continuously employed in various departments of the
Employer’s operations. However, for the period covering Oc-
tober 1979 through 1984, Smith was employed as a mainte-
nance supervisor and was removed from the unit. In 1984,
Smith returned to the hourly ranks2 and received from the Un-
ion an adjusted (unit) seniority date of October 11, 1982.
Smith’s employment with the Employer has been interrupted
by two layoffs over the years; for instance, he was laid off on
June 7, 1994 (recalled on September 8, 1997), and October 22,
1999 (recalled on about April 24, 2000). It is Smith’s October
22, 1999 layoff that forms the basis of the charges he leveled
against the Respondent, and the instant litigation. Smith’s lay-
offs were in each case governed by the terms of the collective-
bargaining agreements then in force at the respective times.
Unit employees have been represented by certified collec-
tive-bargaining representatives since at least 1979, up to the
present. During the period covering 1979–1991, unit employ-
ees were represented by Aerol Aircraft Employees’ Association
(AAEA), an independent union; from 1991 to the present, the
unit has been represented by the Respondent3 with which
AAEA, by vote of unit members, became affiliated.

1 In this section, I have set out certain matters that factually are not
in dispute and/or represent findings on my part based on factual stipula-
tions of the parties and the credible evidence (including the reasonable
inferences therefrom) of record. I have specifically credited the find-
ings in this section over any other arguably contrary or inconsistent
evidence.
2 It is not disputed by the parties that by dint of an agreement be-
tween the Employer and Smith, at his option or that of the Employer,
he was allowed to return to the hourly ranks.
3 For a time, the Employer was called Cleveland Pneumatic Com-
pany and evidently was acquired by or merged with B. F. Goodrich
Robert (Bob) Williams and Bernard Dawson have been em-
ployed by the Employer since November 8, 1965, and Novem-
ber 29, 1966, respectively, and served as officials of AAEA for
a number of years. When AAEA affiliated with the Respon-
dent, new union leadership was elected. During the material
period—October 22, 1999, through the time of the hearing—
admitted agents Joseph (Joe) Cantale, Edward (Ed) Gohr, and
Gregory Tokar held the offices of president, chief steward, and
committeeman/grievance committee chairman, respectively,
and were responsible for administering, policing, and interpret-
ing the applicable collective-bargaining agreements between
the Respondent and the Employer, including the provisions
thereof dealing, inter alia, with terms and conditions of em-
ployment and the grievance and arbitration procedures.4
B. The Handling of Smith’s Grievances
The General Counsel called three witnesses to establish the
charge herein—David Smith, Robert Williams, and Bernard
Dawson.
David Smith explained why he believed that, first, he was
entitled to have his grievance—his disagreement with the Em-
ployer’s decision to lay him off on October 22, 1999—
processed by the Respondent; and, second, the Respondent, in
his view, refused to process his grievance for unlawful reasons.
According to Smith, after his stint in management from Oc-
tober 1979 to 1984, he returned to the unit as an hourly worker
and received his adjusted seniority date that, according to his
understanding, was to be used for bidding for jobs and bumping
of less senior employees, but not for layoff determinations by
the Employer. Smith stated that where layoffs were concerned,
he was told by Robert Williams of the AAEA that the collec-
tive-bargaining agreement in force in 1984 in article IV(c) pro-
tected him from the layoffs that were occurring at the time he
returned to the unit; further, that his protection from layoff
derived from his hire date and not his adjusted seniority date.5
According to Smith, the AAEA position made sense to him and
seemed vindicated by several factors. First, at the time of his
return to the unit in 1984, unit employees were being laid off;
he was not, although he admits he did not return to his old job
but was assigned to another occupation at the Company.

around 1994, and its name was changed to B. F. Goodrich Aerospace
Landing Gear Division.
4 With respect to the agency status of the three individuals, the Re-
spondent admitted in its answer that Cantale and Gohr were agents
within the meaning of Sec. 2(13); Gohr’s agency status was stipulated
and agreed to by the Respondent during the hearing. (Tr. 13–14.)
5 Art. IV(c) of the collective-bargaining agreement in existence at
the time Smith returned to the unit is contained in GC Exh. 2(B). The
entire agreement was not offered by the General Counsel. The provi-
sion, in pertinent part, provides:
The Company recognizes that there have been provisions in
the collective-bargaining agreements since 1972 protecting those
employees in the bargaining unit from layoff. It is the intent and
policy of the Company to continue this approach to job security
not only through, but beyond the termination date of this agree-
ment. In this effort, the Company agrees that employees on the
active payroll who were members of the Association as of July 1,
1978, shall be protected from layoff for the term of this agree-
ment. [Emphasis added.]

AUTO WORKERS LOCAL 2333 (B. F. GOODRICH CO.) 107
Second, during another round of layoffs at the Company,
about 1991 according to Smith, a number of unit employees
who had more seniority than he were laid off.6 According to
Smith, the applicable agreement between the Employer and the
AAEA covering this timeframe like the contract in place when
he returned to the unit in 1984 provided (in article 4.2(c)) for a
July 1, 1978 protection-from-layoff date.7 Since he was hired
on March 7, 1978, he was protected from layoff during the term
of the contract.
Third, according to Smith, during the period covering 1991–
1994, there were layoffs at the Employer, but he was not laid
off but remained in his position in the kellering department.
Smith attributed his not being laid off again to the then applica-
ble agreement between the Employer and the AAEA in article
4, section 4.2(c) that contained a layoff protection date of De-
cember 12, 1978, which was more favorable to him.8 Again,
according to Smith, he believed there were employees in his
department who had more unit seniority vis-a-vis his adjusted
seniority date who were laid off; but he was not.
Finally, Smith noted that he was again laid off around May
or June 1984. However, he did not disagree with or grieve this
determination because the applicable agreement9 provided for a
layoff protection date of March 5, 1978, which date was 2 days
prior to his hire date of March 7, 1978.
Turning to the issue at hand, Smith stated that he was re-
called from his 1994 layoff on about September 8, 1997, at
which time a new collective-bargaining agreement was in
place. According to Smith, this contract, as it pertained to em-
ployees such as he who were not on the active payroll as of
May 19, 1997, provided for a layoff protection date of March 5,
1979.10 Smith stated that he believed this language protected

6 Smith stated that a unit employee, Myron Dzek, was hired in 1979
and laid off during this period. Smith also believed that unit employees
Wilbur Abercombie and John Martin had greater seniority but, nonethe-
less, were laid off at this time.
7 See GC Exh. 2(d). Again, this exhibit contains an excerpt from the
agreement between the Employer and the AAEA covering the period
May 16, 1988–1991. The agreement eliminated the Roman numeral IV
and replaced it with the Arabic 4, and the layoff protection clause was
renumbered to 4.2(c). The language relied on by Smith was identical to
previous contracts.
8 The 1991–1994 agreement in excerpted form is contained in GC
Exh. 2(e).
9 See GC Exh. 2(f) which contains art. 4, sec. 4.2(c) for the contract
covering the period May 16, 1994, through May 15, 1997. It should be
noted that the Respondent is now representing the unit at this time.
10 See GC Exh. 2(g), the excerpted agreement between the Employer
and the Respondent for the period of June 6, 1997–May 15, 2000. This
exhibit contains art. 4, sec. 4.2(c), which provides in pertinent part:
The Company recognizes that there have been provisions in
the collective-bargaining agreements since 1972 protecting those
employees in the bargaining unit from layoff. It is the intent and
policy of the Company to continue this approach to job security
not only through, but beyond the termination date of this agree-
ment. In this effort, the Company agrees that employees on the
active payroll as of May 19, 1997 and who were members of the
Union as of September 3, 1996, shall be protected from layoff for
the term of this agreement. Employees not on the active payroll
as of May 19, 1997 will have a protection date of March 5, 1979.
[Emphasis added.]
him because the March 5, 1979 date clearly encompassed his
hire date of March 7, 1978.
According to Smith, while he was punching in for his shift
on or about October 21, 1999, his supervisor, Doug Hillebrand,
advised him that there were going to be some layoffs in the
department and that he was going to be laid off. Smith said that
he initially contacted his Union Steward Jack (last name un-
known), about the proposed layoff but, because he was not
available, decided to contact the Respondent’s officials, Ed-
ward Gohr and Gregory Tokar, that same morning. According
to Smith, he conversed with Tokar and Gohr, expressing to
them his view that he was protected from layoff. Smith said he
was told that the Respondent’s president, Cantale, was out of
town, but that they would check out his claim. Smith was not
sure of the date, but he also stated that he advised Tokar and
Gohr that they should speak with Williams who knew that
Smith had been protected over the years from layoff based on
his hire date irrespective of his adjusted seniority date. How-
ever, Gohr and Tokar disagreed with him and insisted that the
seniority date would control for purposes of layoff determina-
tions under the existing contract.11
According to Smith, Gohr and Tokar advised him that they
would have to speak with Mark Hunt, the Employer’s human
resources manager.
On October 22, Smith said he received official notice of his
layoff and again contacted Gohr and Tokar, who once more
advised him that his 1982 adjusted seniority date would govern
the matter. According to Smith, he advised Gohr that he
wanted to file a grievance and Gohr asked him whether he
wanted to fill out his own grievance or allow him (Gohr) to
prepare one for him. Smith said that he permitted Gohr to pre-
pare the grievance and he would sign it; and he did sign the
proposed grievance on October 22, 1999.12
According to Smith, his last day at work was October 22, a
Friday.13 However, in early November 1999, Smith stated he
called Gohr about the status of his grievance and was told by
Gohr that the Respondent was still working on it. Later, on
about November 19, Smith stated he spoke to Cantale, presi-
dent of the Union, who advised him that the Union had deter-
mined that Smith’s 1982 adjusted seniority date would control
for purposes of layoff and that essentially Smith did not have a
grievance; rather, he had a complaint. According to Smith,
Cantale told him that the former union (AAEA) and the Em-
ployer had made a mistake and the Respondent was going to
11 At this juncture, it should be noted that the Employer and the Re-
spondent had entered into a new agreement with an effective date of
October 1, 1999, and terminating on May 16, 2003. See GC Exh. 4, the
contract in its entirety. Smith’s position that he was protected under
this contract was based on his aforestated belief that since art. 4., sec.
4.2(c) under the previous contract protected him based on his hire date.
According to Smith, art. 4, sec. 4.2(c) of the new contract, being un-
changed, gave him similar protection based on his hire date.
12 See GC Exh. 5, a copy of Smith’s grievance dated October 22,
1999, and signed by Smith and Gohr. Smith claims he did not receive a
copy of this until sometime in November 1999.
13 The parties stipulated and agreed, however, that Smith was “laid
off to the street” by the Employer on October 25, 1999. (See GC Exh.
3.)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 108
correct the matter. Smith said that he told Cantale he was going
to file a charge with the Board.
Later on, about November 22, 1999, Smith said he received a
letter from Gohr which advised him that the Respondent, after
investigation of his proposed grievance, was not going to file
his grievance because, in its view, his layoff was justified by
his 1982 adjusted seniority date and, therefore, there was no
violation of the collective-bargaining agreement.14
Smith noted that during the period he acted as a supervisor,
he wrote up various employees for not doing their jobs, which
he believed created much animosity against him in the unit.
According to Smith, he was called names such as asshole and
believes Cantale discriminated against him in the handling of
his grievance.15 However, Smith also believed that Gohr did
not pursue his grievance because he was receiving a lot of
feedback from the members of the Union who had animosity
against him for his conduct while in management.16
Smith admitted that the Respondent never expressed any
view other than that his adjusted seniority date was going to be
used to determine his layoff rights, that the Union was going to
go by that date. (Tr. 75.)
Robert Williams identified himself as a current employee of
the Employer, having started with the Company on November
8, 1969, and a former official of the independent AAEA.17
Williams testified that when he served as an official with the
AAEA, he was intimately involved in the grievance process
and with the administration and interpretation of the various
collective-bargaining agreements between the old union and the
Company.18 Williams has known Smith for a number of years,
including the time he was a supervisor in the maintenance de-
partment and when he returned to the hourly ranks.
According to Williams, Smith was not a particularly good
supervisor and did not know how to handle the workers and,
consequently, many workers did not like him. Smith, accord-
ing to Williams, was reputed to be vindictive and earned special
enmity among the unit workers when they staged a walkout

14 See GC Exh. 6, a copy of the November 22, 1999 letter from Gohr
to Smith. This letter also indicates that a copy of Smith’s unprocessed
grievance (GC Exh. 5) was attached.
15 Smith acceded that he does not believe Cantale personally had
anything against him. (Tr. 56.)
16 Smith related his experience with a unit member named Vaga,
who, as late as sometime in 2000, spat at his feet every time he saw
Smith. However, Smith reported this behavior to Cantale and Gohr
who spoke to Vaga and the spitting ceased as a result. Gohr admitted
that the Respondent—Gohr as chief steward in particular—has never
refused to give him anything or cooperate with him during the griev-
ance process, and that he and the current union officials never experi-
enced any problems while he was a supervisor.
17 Williams stated that he served as union steward from 1968–1969
and 1970 to 1972. In 1975, he served as union steward and was elected
as a committeeman in 1976. He served as vice president in 1997 and
again as steward in 1979, 1980, and 1981. He was elected chief stew-
ard in 1982 and served in that capacity until 1985; he also served as
chief steward from 1991–1994. Williams ran for president of the Re-
spondent in 1998 but was defeated.
18 Williams stated that he participated in the negotiation of the con-
tracts between the AAEA and the Employer but had no role with regard
to the contracts between the Respondent and the Employer.
(wildcat) strike in 1981 and Smith “fingered” many of the
strikers for union activity, with the result that a lot of workers
were either fired, or suspended for up to 3 months.
Williams stated that Smith returned to the unit in 1984 when
he was chief steward and claimed that he was entitled to do so
by virtue of a letter from the Employer which stated essentially
that Smith could return to hourly ranks at his or the Company’s
discretion.19 According to Williams, he was notified by man-
agement in 1984 that there was a problem with Smith, mainly
that there was an issue as to whether he could be laid off. Wil-
liams stated that he met with the then-Employer vice president,
the AAEA president, and chairman of the Union’s grievance
committee and discussed the layoff protection clause in the
current contract. Ultimately, the Employer and the AAEA
concluded that Smith was protected from layoff under article 4,
paragraph 7(c) based on his hire date.20 Therefore, although
there were layoffs occurring in 1984, Smith was determined
immune from layoff because he was on the active payroll—by
dint of his March 7, 1978 hire date—as of on or before July 1,
1978, consistent with the layoff protection language of article 4,
paragraph 7(c) in the 1981–1985 contract.
Williams acknowledged that certain unit employees like
Myron Dzek and Wilbur Abercombie, who were hired in 1979
and had more unit seniority than Smith, were laid off during
various layoffs during the period covering 1991–1994. Wil-
liams stated that these workers protested to him about their
being laid off while Smith was not. However, the AAEA ad-
vised them that Smith was protected by his hire date and the
Association stood by that position; there was nothing they
could do.
Williams noted that the AAEA interpretation was applied
consistently to Smith and noted that when Smith was laid off in
June 1994, it was because the current agreement provided for
layoff protection for employees who were actively on the pay-
roll on or before March 5, 1978; and Smith was not protected
because his hire date was March 7, 1978.
Turning to Smith’s layoff in October 1999, Williams be-
lieved that Smith, under article 4.2(c) of the applicable agree-
ment (June 6, 1997–May 15, 2000), was protected from layoff
because the agreement provides that employees not on the ac-
tive payroll as of May 19, 1997—Smith—will have a protected
date of March 5, 1979. According to Williams, since Smith’s
date of hire preceded that date, he should have been protected
19 Williams stated this letter was unusual and at first he did not be-
lieve Smith possessed it. However, Smith did at a later time show it to
him. The letter was not produced at the hearing.
20 Williams elaborated on this point, explaining that the hire date ap-
proach to any layoff protection, at least in Smith’s case, was connected
to the AAEA’s interpretation of art. 47(d) of the 1979–1988 agreement
(GC Exh. 2(a)). According to Williams, the Company could not sub-
contract any work if a unit worker was laid off. In such event, the
Company would have to return all work from the subcontractors to the
Unit. Thus, the AAEA and the Company agreed that any employees
employed on or before May 16, 1979, were protected from layoff.
When Smith returned to the unit in 1984, AAEA employed similar
reasoning to his possible layoff. Since art. 4, in the applicable con-
tract—the 1981–1985 agreement—provided for a July 1, 1978 protec-
tion date, and Smith’s hire date was March 7, 1978, he was determined
protected from layoff at that time.

AUTO WORKERS LOCAL 2333 (B. F. GOODRICH CO.) 109
and he advised Smith of his view. [Note: Williams conceded
that the subcontracting-out provision was not at issue at this
time.]
Williams stated that Smith asked him to talk to the Respon-
dent’s officials, Gohr in particular. Williams said that he told
Smith that he would speak with the Respondent only if asked.
Later, he was indeed asked by Gohr to come to the Respon-
dent’s office and he met with him.21 According to Williams, he
advised Gohr of the history of the AAEA’s experience with the
protection clause and that Smith was protected by his hire date
because, in his view, the Employer could not lay off Smith and
continue to subcontract work out of the unit.
According to Williams, Gohr responded by saying that the
1997 agreement was changed to prevent Smith’s recall.22 Also,
Gohr did not agree with Smith’s hire date’s being controlling
and, according to Williams, seemingly ignored what he had to
say. Williams believed that Gohr’s mind was made up and that
the meeting was a mere formality.
Williams also attested to several conversations he had with
the Respondent’s officials after Smith was laid off. Williams
stated that on one occasion, simply out of curiosity, he asked
Cantale, who was visiting the facility, about Smith’s grievance
which he understood had been submitted to the Respondent.
According to Williams, Cantale merely said, “Screw Dave
Smith.”23 On another occasion, Williams stated that he, Ber-
nard Dawson, Tokar, and a union committeeman initially were
discussing Dawson’s pending grievance and the conversation
turned to Smith, whereupon Tokar said that “[Smith] ain’t noth-
ing but a f—g asshole anyway.” Williams stated that he told
Tokar to be careful about what you say to people, telling him
that someone is going to take that the wrong way. Tokar
merely said, “I hear ya.” Then, sometime in November, Wil-
liams said he spoke to Smith who advised that Gohr had told
him that the grievance would not be processed. According to
Williams, the next day, he spoke to Gohr about Smith’s griev-
ance and Gohr told him that Smith had a complaint, not a
grievance.24 Gohr said nothing more about the matter. Wil-
liams conceded that Gohr’s calling him down to the Respon-
dent’s office was part of the Union’s investigation of Smith’s
complaint and that the Respondent’s view that article 4, sec-
tion(c)’s protections applied to seniority dates was maintained
consistently throughout the investigation. Nonetheless, Wil-
liams stated that he told Tokar around October or November
1999 that he thought the Respondent discriminated against
Smith and, because he felt that the seniority approach was un-

21 Williams did provide a precise date but reckoned that the call from
and meeting with Gohr took place within the 3-day notice period gov-
erning layoffs under the contract.
22 Williams stated that he admonished Gohr to be careful about
comments such as this.
23 Williams, when cross-examined about his averments in an affida-
vit he submitted to the Board agent, said that actually Cantale said,
“F—k Dave Smith.” He explained he did not want to use that language
in the affidavit.
24 Williams stated that Smith told him that Gohr was going to reject
the grievance and had said that Smith did not have a grievance, he had
a complaint. Smith, it should be noted, testified that Cantale told him
that he did not have a grievance, rather a complaint. (Tr. 48.)
fair to Smith, he had advised Smith to file an unfair labor prac-
tice charge.
Bernard Dawson25 testified about his views on the layoff and
seniority provisions of the Respondent’s contract with the Em-
ployer and the Union’s handling of Smith’s grievance.
Dawson testified that he knows Smith and his history with
the Employer, including his hire date of March 7, 1978, his
temporary assignment to management, and his return to the
hourly ranks in 1984. According to Dawson, Smith’s return to
the unit was controversial and resulted in the filing of griev-
ances and charges with the Board, as some unit members
viewed his return as illegal. However, the matter was resolved
based on Smith’s agreement with the Employer allowing him to
return to hourly and a decision by the AAEA that his hire date
protected him.26
Dawson stated that Smith’s adjusted seniority date in 1984
did not confer sufficient seniority to return him to the occupa-
tion he held prior to working as a supervisor. However, be-
cause of the agreement with the Employer and Smith’s hire
date, he was returned to the unit in another occupation, while
other workers with more unit seniority were laid off. According
to Dawson, historically, Smith’s layoff protection date has been
his hire date and seniority was never utilized as a determinative
factor by the AAEA during his (Dawson’s) tenure.
Turning to Smith’s layoff in October 1999, Dawson recalled
other unit workers questioning its legitimacy. Dawson said he,
too, shared his view to the workers that Smith had a legitimate
grievance. Dawson stated that he, Williams, Gohr, and Tokar
were meeting in the union office after the layoff in October
1999 and the conversation turned to Smith, with he and Wil-
liams arguing for Smith’s protection from layoff under the con-
tract and Gohr and Tokar arguing against. According to Daw-
son, Tokar, after a while, simply said that he really did not care
about the “f—g asshole.”27 Dawson stated that he warned To-
kar to be careful about his attitude because it could get every-
one in trouble. Dawson also related another conversation about
Smith’s layoff in October 1999 with Gohr and Cantale who
made some sort of derogatory remark (which he could not re-
member) about Smith.28
25 Dawson stated that he held several positions with the AAEA (but
none with the Respondent), including steward from 1967–1969, rules
committeeman and membership committee from 1973–1978 and 1981–
1983, respectively; he served as chief steward from 1985–1987. Daw-
son also served as interim president and president of the AAEA from
around October 1988–1992. Dawson’s duties in these various offices
included day-to-day administration of the Union’s negotiation, and
interpretation of collective-bargaining agreements. Dawson also ac-
knowledged having unsuccessfully run for the office of chief steward
against Gohr in 1998. Dawson also stated that he had unsuccessfully
run for grievance committee chairman in March 2000 against Tokar.
26 According to Dawson, Williams told him that Smith was returned
to hourly because of his date of hire and the position was verified by
the Employer’s department of human resources.
27 Dawson, for his part, allowed that he viewed Smith as a “flaming
asshole” (as opposed to a “f—g” one), and that is how Smith generally
is regarded around the plant because of Smith’s role in the 1981 strike.
28 Dawson stated that Gohr and Cantale were visiting with him re-
garding a grievance he had filed over a denial of payment of sick bene-
fits by the Employer at the time; and Williams happened to be at his

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 110
The Respondent called several witnesses to meet the com-
plaint allegations—Bill Minor, John Cantale, Edward Gohr,
and Greg Tokar.
Bill Minor identified himself as the International representa-
tive for the United Auto Workers (Region 2) since 1993; his
duties generally include assisting local unions in contract nego-
tiations and handling grievance procedures pertinent to various
collective-bargaining agreement.
Minor stated that he has been directly involved in contract
negotiations with the Employer since 1994 and particular was a
signatory to the first contract between it and the Respondent—
the 1994–1997—agreement. According to Minor, the date
referred to in article 4.2(c)—March 5, 1978—was meant to
protect employees from layoff based on their (unit) seniority.
Minor explained that during the 1994 contract negotiations the
Employer’s business was suffering a downturn and the Em-
ployer proposed to reduce the number of protected employees.
After bargaining back and forth over the number of employees
to be laid off, the Employer supplied the bargaining committee
with an employee seniority list which was used to arrive at a
cutoff date to reach the desired number for layoff; March 5,
1978, was the agreed on cutoff date. According to Minor,
March 5, 1978, corresponds to the employees’ (unit) seniority
date and not their hire dates. Moreover, in these negotiations
concerning section 4.2(c), the hire date was never discussed as
a criterion for purposes of layoff determination.29 Minor stated
that under the 1994–1997 contract an employee with a hire date
prior to March 5, 1978, but with an adjusted seniority date after
March 5, 1978, would not have been protected from layoff
during the term of that contract.
Turning to the agreement between the Employer and the Re-
spondent for the period covering June 6, 1997–May 15, 2000,
Minor testified that he was also involved in the negotiations
and in fact was the chief spokesman for and a signatory on
behalf of the Respondent. According to Minor, the Respondent
sought to protect basically all unit workers employed at that
time and therefore section(c) was designed to protect all em-
ployees on the payroll as of May 19, 1997, and who were
members of the Respondent as of September 3, 1996; the Sep-
tember 3 date corresponded to the least senior unit employee in
the plant at the time. As to employees not then on the active
payroll as of May 19, 1997 (like Smith), a protection date of
March 5, 1979, was agreed on for purposes of recall to work.
According to Minor, March 5, 1979, is based on the employee’s
seniority date—not his hire date; and again in point of fact,
there was no discussion about the dates in section(c) referring
to hire dates. Accordingly, for the life of this contract, accord-
ing to Minor, any employee recalled would have a protection
date based on his unit seniority and, to be protected from future
layoffs, that seniority date would have to be on or before March
5, 1979.

workstation. Dawson did not report this remark (nor Tokar’s) to the
Employer or the Respondent.
29 Minor stated he had no knowledge or understanding that hire dates
were ever used in the agreements prior to 1994.
Minor stated that he also was the chief spokesman for the
current agreement30 between the Employer and the Respondent.
Minor noted that while the language of section(c) was un-
changed in the current contract, the Employer proposed in ne-
gotiations to delete it entirely. However, more to the point,
according to Minor, there was again no discussion about March
5, 1979, as a hire date. According to Minor, as such, section(c),
to the extent it protects employees from layoff, it does so on the
basis of unit seniority. Similarly, March 5, 1979, establishes a
seniority date basis for employees not on the active payroll as
of May 19, 1997.
Minor stated that in his view, in spite of prior interpretations
that may have been given to section(c) at different times while
another union was presenting the unit, and pursuant to different
contracts,31 that any employee who works in management loses
seniority for that time, and that such an employee under the
contract cannot gain an advantage over hourly workers in the
unit. According to Minor, section(c) must be considered with
the seniority provisions of the contract32 and is not in itself
controlling on the issue of layoff (and recall) determinations.
Minor stated that section (c), in his view, does not lend itself to
different interpretations—unit seniority controls—and resort to
an arbitration would not be necessary.
Minor noted that he did not know Smith personally and only
about his complaint in the context of the instant litigation.
However, in his view, the contracts between the Employer and
the Respondent would not allow Smith to use his hire date as a
protection date, because to do so would give him an unfair
advantage over unit employees for time he spent in manage-
ment. This would, in Minor’s view, render the seniority provi-
sions meaningless. Minor volunteered that if Smith was pro-
tected in the past from layoff based on his hire date, this was a
mistake. However, as far as he was concerned, the Respondent
was not attempting to rectify any mistakes but merely following
the contract language.
Edward Gohr33 testified about the handling of Smith’s griev-
ance by the Respondent. Gohr stated that as chief steward
30 The current agreement is contained in GC Exh. 4 and covers the
period October 1, 1999, through May 16, 2003. Minor explained that
the agreement was negotiated about 9 months earlier to take advantage
of certain operating changes proposed by the Employer that would
allow the Cleveland plant to remain open. As noted, Smith was re-
called pursuant to this agreement in April 2000.
31 Minor stated, based on pertinent questions posed by the General
Counsel regarding sec. 4.2(c), that if at any time unit employees with
greater seniority than Smith were laid off, this was violative of the
contract. Furthermore, in his view, if this occurred by mistake, it does
not change the language of the contract, and that no union official or
company representative can make an agreement in conflict with con-
tract that has been accepted and ratified by the membership. In short,
according to Minor, a violation of the agreement, whether by mistake
or negotiation, cannot be controlling or binding in the future.
32 While the only complete contract in evidence is the current one, I
note that sec. 10 deals with the seniority. Sec. 10.19 specifically deals
with transfers from hourly to salary and retransfer to hourly rates and,
in sec. 10.196, there is a provision for determining an adjusted seniority
date for workers like Smith.
33 Gohr began his employment with the Respondent in April 1989
when it was known as Cleveland Pneumatic. However, Gohr was laid

AUTO WORKERS LOCAL 2333 (B. F. GOODRICH CO.) 111
(since 1998), he is responsible for the initial steps of the con-
tract grievance process which includes verbal discussion be-
tween the employees, the regular steward, and the immediate
Employer supervisor; a formal first step which entails a write-
up of the grievance; and then on to the second step if there is no
resolution.34
Gohr stated that he participated in the negotiations leading to
the 1999–2003 contact and that the section(c) dates, which
remained unchanged from the previous agreement, were not
discussed in terms of hire dates; it was his understanding that
section(c) pertained to an employee’s (unit) seniority.
Explaining how the language of section(c) of the 1999–2003
agreement worked, Gohr stated that if an employee were hired
prior to or on March 5, 1979, and he was on layoff (hence, not
on the active payroll) but was recalled during the life of the
agreement, then the employee is protected by that worker’s
seniority date; however, if the employee’s seniority date was
after March 5, 1978, the employee would not be protected.
According to Gohr, both the Respondent and the Employer
interpreted the clause in this fashion.35
Turning to Smith’s layoff, Gohr stated that on October 21,
1999, the Employer posted a layoff notice that included Smith.
However, prior to the posting, Smith had come to the union
office claiming that he heard a rumor that he was going to be
laid off, but that he thought this would be improper because his
hire date protected him. Smith also claimed he had some
documentation that supported his position.36
According to Gohr, prior to Smith’s so informing him in this
meeting, he was unaware that Smith’s hiring and seniority date
were different. At any rate, Cantale, Smith, and he discussed
section(c) with Smith claiming that his hire date protected him
based on some documentation he possessed.
Gohr stated that on that day, he conducted an investigation of
Smith’s claim, first by contacting Hunt in human resources.
Hunt provided certain information to him by telephone which
he recorded that included Smith’s initial date of employment,
his time in management, his return to hourly ranks, his 1994
layoff, and his 1997 recall.37
Gohr stated that on October 22, 1999, Smith came to the un-
ion office and he (Gohr) informed Smith that based on the in-
formation received from the Employer, he felt the layoff was
proper based on Smith’s adjusted seniority date of October 11,
1982. According to Gohr, Smith said he had a document in his

off in about 1990, was recalled in December 1991; laid off again in
November 1992, and was recalled on September 3, 1996. Gohr stated
that he lost his recall (and seniority) rights in the last layoff and, there-
fore, his unit seniority date is September 3, 1996. He is the least senior
member of the unit.
34 Gohr stated that he has handled 200 or more grievances, most of
which are verbal.
35 The Respondent called Gerald DeFalco, the Employer’s vice-
president for human resources, its chief spokesman during negotiations
and a signatory to the 1999–2003 agreement, who essentially corrobo-
rated Gohr on this point. He also stated there was no documentation of
any agreement between the Company and Smith allowing him to use
his hire date as a protection date.
36 Gohr noted that Cantale was present at this meeting.
37 See R. Exh. 5, Gohr’s handwritten notes of the information he
says Hunt provided him.
personnel file that would show he was protected. According to
Gohr, Smith and he again discussed section(c), and Gohr said
he again advised Smith that he did not agree with Smith’s in-
terpretation that the provision protected him.
However, in spite of his disagreement with Smith, Gohr said
that, nonetheless, he wrote up a proposed grievance protesting
Smith’s layoff,38 demanding his recall, and that the Employer
make March 7, 1978, his protected date for the life of the con-
tract and all future contracts. According to Gohr, he wrote the
grievance first in anticipation of receiving the information
Smith claimed he had or otherwise existed in his personnel
records; and, second, he wanted to write it on October 22, be-
cause if Smith was to be laid off that day, he wanted to save
him a trip back to the plant the next week to sign the grievance.
Gohr stated that irrespective of their discussion about section
4.2(c), he did not cite that provision of the agreement in the
grievance because he felt that Smith’s seniority rights under
article 10 of the agreement were implicated by the proposed
layoff;39 in fact, Gohr said that he did not think there was a
violation of section 4.2(c).
According to Gohr, he told Smith that if the information he
claimed actually existed in his personnel file with the Em-
ployer, he would file the grievance. If the proof were not there,
then he would not file because the grievance had no merit.
According to Gohr, Smith assured him that the documentation
indeed existed.
Gohr said after this meeting, he called Cantale, who was out
of town, to apprise him of Smith’s matter and that he had writ-
ten the provisional grievance. Cantale promised to look into
the matter on the following Monday (October 25). Gohr also
stated that he mailed Smith copies of the previous contracts he
had requested on October 22.40
On Monday, October 25, Gohr was in the union office with
Cantale who spoke to Smith by telephone. Gohr overheard
Cantale talking to Smith about the hire date versus seniority
date issue and seeking Smith’s permission to examine his per-
sonnel file. Cantale was given permission and, on that day, he
and Cantale went to see Hunt,41 the Employer’s human re-
sources manager, and reviewed, in Hunt’s presence, Smith’s
personnel file. After a 30–35 minute examination of every
document, Gohr said that they found no proof that Smith was
permitted to have his hire date as a protective date. After the
review, Gohr stated that Cantale contacted Smith and advised
him of the results of the examination. Cantale asked Smith to
produce any proof he may have to substantiate his claim. Gohr
stated that he also reviewed the Respondent’s files looking for
38 Gohr identified GC Exh. 5 as the grievance he prepared for Smith
on October 22, 1999.
39 Gohr also felt that art. 18 dealing with rates of pay was implicated
as well as art. 11 dealing with hours of work because while on layoff,
he would not receive his rate of pay and would have no hours of work
and, therefore, in order to effectuate his demand under the seniority
provisions, he needed to cite these provisions to receive a meaningful
remedy for Smith.
40 Gohr identified R. Exh. 6, a cover letter from himself to Smith
which indicates he was sending the information he had promised.
41 Hunt is no longer with the Employer and he did not testify at the
hearing.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 112
proof to support Smith’s position, but could find none. About 2
weeks after the layoff, Gohr said he called Smith and asked if
he had found the documentation. Smith said he had not but
Smith continued to maintain that the information was in his
personnel file. Gohr advised Smith that he and Cantale had
reviewed his file and there was no support for his position.
Consequently, Gohr mailed a letter42 to Smith advising him that
the grievance would not be pursued because the Respondent
had determined that there was no violation of the contract and
included a copy of his grievance.
Regarding his dealings with Williams, Gohr said he once did
discuss amicably Smith’s layoff with Williams,43 who thought
Smith was protected by his hire date. Gohr denied ever telling
Williams that Smith did not have a grievance, just a complaint.
He also denied harboring any animus against Smith and has
never called Smith names such as “asshole,” and has not heard
any union officials speak profanely or otherwise disparagingly
about Smith. According to Gohr, he never consulted with
Dawson about the matter.
Joe Cantale testified that he was the current president of the
Respondent, having assumed office in 1998;44 his duties in-
clude oversight of the collective-bargaining agreement as well
as the day-to-day operations of the Respondent. As president,
Cantale stated that he has a role in the grievance-arbitration
process covered by the agreements between the Employer and
the Respondent.
Cantale, who has known Smith for some time, having
worked with him since the 1970s, said that in October 1999,
Smith approached him concerning his possibly being laid off
because there were rumors that there was a lack of work in
Smith’s department. According to Cantale, Smith raised the
issue of protection dates and said that he did not want this to be
problematic. Cantale said he told Smith that he imagined that if
he were protected from layoff the last time, he would also be
protected this time. Cantale said that when he made this state-
ment to Smith, he had not investigated the matter and was not
aware that there was a question about Smith’s seniority date.
Turning to October 22, 1999, Cantale said that he was out of
town but received a call from his chief steward, Gohr. Gohr
advised him that Smith had come to the union office and said
that he was being laid off and there was a question about his
protection date.
According to Cantale, he told Gohr that all the Respondent
could go by was the company records and directed him to con-
tact Mark Hunt of the Company’s human resources department

42 See GC Exh. 6.
43 Gohr claimed he did not know Williams was a former union offi-
cial in 1984 when the protected date issue evidently arose; he later
found out about Williams’ role with the Union. However, Gohr denied
ever summoning Williams to talk about the issue of Smith’s grievance
and never really sought his opinion on the hire date seniority date con-
troversy. However, he could not be sure whether Smith had asked him
to speak with Williams about the coverage of sec. 4.2(c).
44 Cantale is employed by the Employer and before that its predeces-
sor, Cleveland Pneumatic Company; he has been employed since Au-
gust 28, 1967. Cantale has held other official positions with the Re-
spondent, including chief steward (1995–1998) and grievance commit-
teeman (1994–1997). Cantale also served as a steward with the AAEA.
and determine Smith’s seniority date. Cantale stated that upon
his return to the office on October 25, he consulted the Respon-
dent’s seniority list to see where Smith fell in seniority. He
also on this date called Smith, seeking his permission to exam-
ine his personnel file in the Employer’s possession because
Smith had told him that he had or there was some documenta-
tion that would protect him based on his hire date. Having
obtained Smith’s permission that day, Cantale stated that he
and Gohr examined Smith’s personnel records in Mark Hunt’s
office in Hunt’s presence.
According to Cantale, he and Gohr spent about 35–45 min-
utes examining Smith’s files which disclosed no agreement (or
letter) between Smith and the Company concerning the use of
his hire date for layoff protection.45 Cantale said that he also
asked Hunt about any additional documentation and was told
that Smith’s file was all there was. Cantale said that he and
Gohr then returned to the union office, called Smith, and ad-
vised him of their lack of success in finding any documentation
to support his claim. According to Cantale, Smith said he may
have the document in his possession. Cantale said he asked
Smith to contact him if he found anything to support his posi-
tion. According to Cantale, he waited a day or two for Smith to
call him and, receiving no call, recalled Smith. Cantale said
that Smith advised that he could not find the document but was
sure the document existed. However, Smith never provided
any documents that would demonstrate he was protected by
virtue of his hire date.
Cantale stated he was part of the bargaining team that nego-
tiated the agreement in effect when Smith was laid off and was
in fact a signatory. Turning to section(c) of this agreement,
Cantale stated that Smith was not on the active payroll on May
19, 1997 (he was on layoff); therefore, the protection date ap-
plicable to him and others like him was March 5, 1979, which
the Respondent viewed as a seniority date, not a hire date.
According to Cantale, the Respondent’s position was that Smith
was not protected by section(c) of the agreement, and after
discussing the matter with Gohr and investigating the matter,
the determination was made by him and Gohr that his grievance
was unmeritorious.46
Cantale acknowledged that Smith’s grievance was written up
by Gohr, before Smith was actually laid off, but that Smith was
told that the Respondent would have to investigate the matter
before it would be submitted to the Employer through the
grievance machinery.47 Cantale stated that he read Smith’s
proposed grievance over carefully and acknowledged while it
had no reference to section(c) of the agreement, this section
45 Cantale stated he did find documentation regarding Smith’s sen-
iority date.
46 Cantale submitted that he was aware of the Union’s legal duty to
fairly represent the membership, including the processing of griev-
ances; also, the Respondent’s constitution and bylaws incorporate this
principle.
47 According to Cantale, the Respondent has on other occasions han-
dled potential grievances in this fashion; that is, many grievances are
written up by the stewards, some by the grievants themselves, but later
after investigation by either the steward or grievant, a determination is
made that the grievance is not viable. The handling of Smith’s com-
plaint was therefore not usual.

AUTO WORKERS LOCAL 2333 (B. F. GOODRICH CO.) 113
was considered along with the seniority provisions as part of
the Respondent’s investigation. Cantale also acknowledged
that the letter sent to Smith denying his grievance was drafted
by Gohr on his instruction after both men had considered the
matter.
Regarding his contacts with Williams in the Smith matter,
Cantale said that he discussed the application of section(c) with
Williams but did not summon him to his office for that purpose,
and he advised Williams at some point that Smith’s seniority
date did not protect him from layoff.48 Cantale acknowledged
that he and Williams discussed Smith’s proof of his hire date
protection but, according to Cantale, he advised Williams that
Smith had not provided any documentation to establish that he
was protected from layoff.
Cantale testified he harbored no hatred of Smith then or now
and denied ever saying “screw” or “f—k Smith” to Dawson or
anyone and has never called Smith an “asshole.”49
Gregory Tokar testified that he is currently employed by the
Employer and holds the position of chairman of the grievance
committee with the Respondent, a post he has held a little over
a year. According to Tokar, he had no involvement in the in-
vestigation of Smith’s grievance and was not consulted by Can-
tale or Gohr about the matter.
Tokar stated that he once handled a grievance for Dawson
concerning a suspension issue and later a workmen’s compen-
sation matter which Dawson had grieved. On one occasion,
Tokar admitted speaking with Dawson by his desk about the
workmen’s compensation matter, but Gohr was not with him.
Gohr denied referring to Smith on this occasion as a “f—g ass-
hole” or being admonished by Dawson about his language.
Tokar said he has never heard Cantale or Gohr express or dem-
onstrate any ill will or animus to Smith, nor has he heard them
make derogatory remarks about him.
C. The Charges as Set Forth in the Complaint
The complaint alleges, in essence, that the Respondent, since
November 19, 1999, failed and refused to accept and process
Smith’s grievance (submitted pursuant to the current collective-
bargaining agreement) in which he protested his layoff by the
Employer on October 22, 1999, because Smith refrained from
engaging in union activities.
The complaint essentially further alleges that the Respon-
dent’s failure and refusal to accept and process Smith’s griev-
ance was based on reasons that were unfair, arbitrary invidious,
and, therefore, the Respondent breached its fiduciary duty to
Smith (and the unit employees); all in violation of Section
8(b)(1)(A) of the Act.

bleness as to be irrational.

48 Cantale denied that Williams ever said to him that Smith was pro-
tected by sec. 4.2(c) of the agreement although they discussed the ap-
plication of the section to Smith after his layoff. According to Cantale,
Williams merely said that Smith had been protected from layoff in
1984. Cantale said he questioned Williams’ interpretation of the con-
tract of that time and concluded that the 1984 contract language was
different and, therefore, not applicable to the contract then in force.
Cantale also denied that Smith ever asked him to talk to Williams.
49 Cantale denied reaching out to Dawson for his opinion on Smith’s
layoff protection.
D. Applicable Legal Principles
Section 8(b)(1)(A) of the Act provides, in pertinent part, that:

(b) It shall be an unfair labor practice for a labor or-
ganization or its agents —
(1) to restrain or coerce (A) employees in the exercise
of the rights guaranteed in Section 7: provided that this
paragraph shall not impair the right of a labor organization
to prescribe its own rules unless with respect to the acqui-
sition or retention of membership therein.

As a general proposition, violations of Section 8(b)(1)(A) es-
sentially involve unlawful union conduct including economic
threats, coercion, or reprisal against unit employees or breach
of the union’s duty of fair representation.
In cases where the union has been charged with failing to
honor or uphold its duty of fair representation in violation of
Section 8(b)(1)(A), the Board has established fundamental
general principles governing these cases. In Letter Carriers
Branch 6070, (Postal Service),50 the Board proclaimed:

A union owes all unit employees the duty of fair representa-
tion, which extends to all functions of the bargaining
representation. When a union’s conduct toward a unit
member is arbitrary, discriminatory, or in bad faith, it
breaches its duty of fair representation. But a union must be
allowed a wide range of reasonableness in serving the unit
employees, and any subsequent examination of a union’s
performance must be “highly deferential.” Mere negligence
does not constitute a breach of the duty of fair representation.
And a union’s conduct is arbitrary only if, in light of the
factual and legal landscape at the time of the union’s actions,
the union’s behavior is so far outside a wide range of
reasona

The duty of fair representation has been likened to the duty
owed by other fiduciaries, e.g., trustee/trust beneficiaries; attor-
ney/client, corporate officers and directors/shareholders; a un-
ion officer thus owes employees a duty to represent them ade-
quately as well as honestly and in good faith. Airline Pilots
Assn. International v. O’Neill, 500 U.S. 913 (1991).
Consequently, the union must show a legitimate union inter-
est with regard to its policies, bans actions, or failures to act as
these relate to rules governing its internal procedures. Carpen-
ters Local 35 (Construction Employers Assn.), 317 NLRB 18
(1995).
In Auto Workers Local 651 (General Motors Corp.), 331
NLRB 479 (2000), the Board noted that with regard to the in-
terpretation of collective-bargaining agreements, the Respon-
dent must exercise its discretion in good faith, with honesty of
purpose and free from reliance on impermissible considera-
tions, citing PPG Industries, 229 NLRB 713 (1977), enf. de-
nied 579 F.2d 1057 (7th Cir. 1978).
However, the Board has noted that it is well settled that a un-
ion’s refusal to process a grievance does not violate the duty of
fair representation where the union acted pursuant to a reason-
able interpretation of the collective-bargaining agreement
and/or a good-faith evaluation regarding the merits of the com-
50 316 NLRB 235, 236 (1995).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 114
plaint. Teamsters Local 815 (Beth Israel Medical), 281 NLRB
1130, 1146 (1986) (citing cases). In evaluating whether the
union’s conduct in such cases breached the duty of fair repre-
sentation, the Board’s responsibility “is not to interpret the
pertinent contract provisions and determine whether the Re-
spondent’s interpretation [of the contract] was correct. Rather,
our responsibility is to determine whether the Respondent made
a reasonable interpretation . . . or whether it acted in an arbi-
trary manner.” General Motors Corp., 297 NLRB 31 (1989).
E. Discussion and Conclusions
As noted, the complaint alleges that the Respondent
breached its duty of fair representation to Smith in refusing to
accept and process his grievance protesting his layoff because
he refrained from engaging in union activities.
The Respondent submits that the General Counsel provided
no evidence in support of this charge and renewed its original
motion made at the end of the General Counsel’s case-in-chief
to dismiss.51 The record will reflect that I was indeed of a mind
to grant the Respondent’s motion at the hearing but reserved a
ruling pending the completion of the case, that is, the closing of
the record, and a thorough examination and consideration of
that record, and the arguments of the parties. I have considered
the total record carefully and considerately, and I would find
and conclude that the General Counsel has not proven the com-
plaint allegation that the Respondent’s failure to accept and
process Smith’s grievance was predicated on or connected to
his refraining from union activities. The General Counsel ar-
gues (weakly) that a finding that the Respondent actually dis-
criminates against its members for engaging intraunion activi-
ties or for refraining from such union activities is not required
to find a violation of Section 8(b)(1)(A). Rather, he contends
that it is enough for a union to act arbitrarily, invidiously, or in
bad faith. In my view, the General Counsel’s argument misses
the point. The Respondent, on fundamental due process
grounds, rightly contends that it is entitled to know the charges
against it and, therefore be able to mount a defense to meet
those charges if it chooses. The choice of theory and language
giving vent to the complaint allegations are solely within the
prerogative of the General Counsel and presumably there
should be factual support to these allegations. If the evidence
does not support the charge and, as here, the General Counsel
does not avail itself of the opportunity to amend the complaint
to conform to the proof, then he proceeds at his peril.

51 The Respondent primarily bases its claim for attorney’s fees and
costs under the Equal Access to Justice Act (EAJA), 5 U.S.C. Sec. 504,
and NLRB Rules and Regulations, Series 8, §102.143, et. seq., because
of the General Counsel’s failure to produce competent evidence to
support the allegation as well as the Regional Director for Region 8’s
alleged refusal to meet with the Respondent’s representatives prior to
and after the issuance of the complaint. Under EAJA, only prevailing
parties may be compensated for fees and costs and other expenses
incurred in connection with the proceeding when the adjudicative offi-
cer of the agency finds that the position of the agency was substantially
justified or that special circumstances make an award unjust. However,
the prevailing party may apply only after entry of the Board’s final
Order in the applicable proceeding. See Sec. 102.48 of the Board’s
Rules and Regulations.
On the record, giving the phrase “refraining from union ac-
tivities” a commonsense, nontortured, or convoluted meaning, I
cannot discern what union activities Smith may have not en-
gaged in that may have prompted the Respondent to deal with
his grievance request as it did. The General Counsel submits,
and it seems undisputed, that Smith’s stint as manager in the
1980s may have left some residual bad feelings toward him
among unit members. But that was nearly 20 years ago, and
the question goes abegging as to what connection his manage-
ment activities had or may have had to his union activities.
Also, it is not altogether clear whether Smith’s supervisory
behavior was the sole cause of any antipathy towards him, since
even those who spoke up for him at the hearing did not think of
him in endearing terms. So it may be that Smith’s personality
traits were at work in producing whatever hard feelings there
were against him in the unit. In any event, the record is simply
devoid of any meaningful evidence of Smith’s having refrained
from engaging in union activities which could, in any reason-
able way, be connected to the Respondent’s decision not to
process his grievance. Therefore, I would recommend dis-
missal of this aspect of the complaint.
I would also recommend dismissal of the complaint to the
extent it charges the Respondent with refusing to accept
Smith’s grievance. Clearly, even looking at the evidence in its
most favorable light to the General Counsel and the Charging
Party, it cannot be gainsaid that the Respondent did not accept
Smith’s grievance. Certainly, it was accepted by the Respon-
dent, but just as certainly it was done so provisionally. None-
theless, in no way was it simply refused out of hand by the
Respondent and, therefore, I would also recommend dismissal
of this aspect of the complaint.
While I have recommended dismissal of certain aspects of
the complaint, the issue, in my view, remains whether the Re-
spondent refused to process Smith’s grievance for unlawful
reasons. The General Counsel submits that Smith’s grievance
was not frivolous, that he had been protected from layoff under
the collective-bargaining agreement in the past by the Respon-
dent’s officials, and that his hire date, as opposed to his senior-
ity date, controlled. The General Counsel contends that the
Respondent’s refusal to process Smith’s grievance was arbi-
trary, invidious and in bad faith as evidenced by the profane
and hostile statements allegedly made by the Respondent’s
deciding officials who, he claims, conducted virtually no inves-
tigation of the grievance, including ignoring how past officials
of the Respondent interpreted Smith’s layoff protection. In
short, the General Counsel argues that the Respondent’s offi-
cials did not like Smith and arbitrarily made no effort to protect
him under the collective-bargaining agreement pertinent to his
October 1999 layoff.
I will attempt to be brief in my resolution of the remaining
issue. As is obvious, I have examined and set out the positions
of the Charging Party and the various witnesses in some detail.
I believe that in the main, each witness testified forthrightly and
basically honestly and sincerely. Credibility, in my view, was
not of much moment in my assessment of the merits of each
party’s claim. On this score, for instance, I have not considered
as particularly weighty the fact that Williams and Dawson were
former officials of the AAEA and losers in subsequent elections

AUTO WORKERS LOCAL 2333 (B. F. GOODRICH CO.) 115
for positions in the UAW and, therefore, could be motivated to
be less than truthful regarding the handling of Smith’s griev-
ance on their watch or in their dealings and relationship with
the current union leadership. In likewise, I have credited the
testimony of the Respondent’s officials regarding their interpre-
tation of the contracts they negotiated and/or administered, as
well as their investigation of Smith’s claim.
I also believe Smith testified sincerely about his belief that
he should have been protected from layoff in October 1999
although his position is primarily based on what appears to be
uncorroborated and undocumented evidence.
Thus, in my view, this case does not rest on credibility or
even the popularity (or lack thereof) of the witnesses. Rather,
applying the legal principles as enunciated by the Board, the
question is whether the Respondent’s action in deciding not to
process Smith’s grievance was free of arbitrariness and rational,
was done in good faith and not invidiously discriminatory.
On balance, I would find and conclude that the General
Counsel has not proven a violation of the Act by the Respon-
dent. My reasons include the following.
First, it is clear that the Respondent is not the same union as
the one that earlier represented Smith and which determined he
was protected from layoff based on his hire date. Williams
quite adequately explained the reasoning of the AAEA in
reaching its determination that Smith’s hire date controlled and
the Employer agreed. However, with the advent of the Re-
spondent, another view of layoff protection emerged, one dic-
tating that unit seniority would control in the determination of
layoff protection. The record does not support a finding that
this approach was undertaken because of Smith.
Rather, the Respondent’s view is eminently rational, for, as
the Respondent’s primary negotiator of the relevant contract
stated, in essence, that unit seniority (as opposed to hire date)
was the guiding criterion because employees who happened to
have served in salaried management positions were not to be
given an advantage over the hourly unit employees. Other
nuances and interpretations (probable and possible) of the con-
tract aside, the Respondent’s approach and its application to
Smith, in my view, is rational and not arbitrary. Thus, in spite
of the past practice which afforded Smith protection under prior
collective-bargaining agreements negotiated and administered
by another union, the new union, the Respondent and its offi-
cials, took a different but altogether reasonable and rational
approach that would benefit the members of the unit.
Regarding the Respondent’s handling of Smith’s grievance, I
should note that contrary to the General Counsel, the Respon-
dent, in my view, did undertake an adequate investigation of his
claim. Notably, it is clear that the Respondent’s stance on sen-
iority never changed. However, because Smith claimed to have
proof—a letter or other documents—of his hire date protection,
the Respondent took steps to verify his claim. Accordingly, the
Respondent accepted Smith’s grievance but clearly with the
understanding that Smith’s proof would be forthcoming from
some source, presumably the Employer or Smith himself.
When the proof did not materialize, the Respondent, consistent
with its position, did not process his grievance. Smith was
timely informed of this decision.
The General Counsel criticizes the Respondent’s investiga-
tory efforts on several grounds, mainly in not consulting with
the prior officials and seemingly having made up its mind about
the lack of merit in Smith’s grievance. However, the Board has
(rightly) not set any standards for a union’s investigation of a
grievance claim and only demands that it be consistent with the
union’s fiduciary responsibilities, at least, as I read the Board
authorities. I would conclude that the efforts by Cantale and
Gohr were adequate and gave Smith fair consideration of his
claim.
Finally, although I have found that the Respondent’s rea-
son(s) for not processing Smith’s grievance were rational and
nonarbitrary and that its investigation of the matter was ade-
quate. There remains the question of whether personal hostility
toward Smith may have impermissibly tainted the decision of
the Respondent’s officials, that is whether there was bad faith
in the decisionmaking process.
We start with an on-point and practical observation by the
Sixth Circuit:52

Not all members of the same union are necessarily personal
friends. They may even be personal rivals—bearing ordinary
human jealousies and conflicting goals. Such personal differ-
ences may be evidence that a union officer was hostile to a
particular member. . . . Personal hostility is not enough, how-
ever, to establish a prima facie case of unfair representation in
a union member’s discharge if the union’s representation dur-
ing the disciplinary steps is adequate and there is no evidence
that the personal hostility tainted the arbitrator’s decision.

Furthermore, the Board has recently ruled that a union official’s
use of profane and derogatory language to describe a unit
member claiming that the union breached its duty of fair repre-
sentation by implied threat not to represent him in a grievance
was not violative of the Act, and that such language was mere
name-calling.53 Thus, it is instructive to place negative and
derogatory statements by union officials in a certain perspective
where such statements are, as here, claimed to reflect hostility
sufficient to breach the Respondent’s fiduciary duties to the
member and the membership.
The General Counsel contends that the Respondent’s offi-
cials, namely, Cantale, Gohr, and Tokar, made derogatory
statements about Smith which clearly indicate that the Respon-
dent would make no effort to protect him through the grievance
machinery. Of course, the Respondent’s officials denied mak-
ing the remarks attributed to them. As to whether the remarks
were indeed made, I am inclined to credit Cantale’s, Gohr’s,
and Tokar’s denials because I believe they each testified credi-
bly, and there is no compelling reason to give Williams’ and
Dawson’s accusations greater weight than their denials. Also,
in point of fact, as noted, the Respondent’s officials’ investiga-
tory actions belie the General Counsel’s claimed lack of effort
to act on Smith’s grievance. Thus, even if the officials had
made the remarks, this clearly did not interfere with their inves-
tigation of Smith’s claim that his hire date protected him. Ac-
cordingly, I would find and conclude that the General Counsel

52 Van Der Veer v. UPS, Inc., 25 F.3d 403, 405 (6th Cir. 1994).
53 Letter Carriers Local 3825, 333 NLRB 343 (2001).

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 116
has not established that the Respondent’s officials were so per-
sonally hostile to Smith that their decision not to process his
grievance was tainted as a consequence.54
In summary, for the reasons stated above, I find and con-
clude that the Respondent did not unlawfully refuse to accept
and file and process Smith’s grievance over his being laid off
by the Employer on or about October 25, 1999.
CONCLUSIONS OF LAW
1. B. F. Goodrich Aerospace Landing Gear Division of the
B. F. Goodrich Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.

54 I note in passing that the Respondent’s officials, according to
Smith, took action against a fellow worker who contemptuously spit at
him wherever Smith came near. Here, again, it seems that if the Re-
spondent’s officials harbored any serious animosity toward Smith, they
would have taken no action. Rather, it seems that in spite of what may
be viewed as Smith’s idiosyncratic personality, his reputation, and what
have you, the Respondent’s officials took their duty to represent Smith
seriously and, in my view, fairly. Any claim that the Respondent har-
bored any serious animus toward Smith is simply not evident on this
record.
2. The Respondent, United Automobile, Aerospace and Ag-
ricultural Implement Workers of America, Local 2333, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent labor organization did not violate Sec-
tion 8(b)(1)(A) of the Act as alleged in the complaint.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended55
ORDER
The complaint is dismissed in its entirety.

55 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.