Communications Workers Local 6360

National Labor Relations Board - Board Decisions

Feb 10, 1984

268 N.L.R.B. 812 (N.L.R.B. 1984)

COMMUNICATIONS WORKERS LOCAL 6360
Communications Workers of America, Local 6360
and Patricia A. Coble and Office and Profes-
sional Employees International Union Local No.
320, AFL-CIO. Cases 17-CA-10991 and 17-
CA-11093
10 February 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 12 July 1983 Administrative Law Judge Wil-
liam J. Pannier III issued the attached decision.
Charging Party Coble filed exceptions. '
The National Labor Relations Board has delegat-
ed 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 has decided to
affirm the judge's rulings, findings, 2 and conclu-
sions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
We deny Charging Party Coble's request for a hearing as lacking in
merit.
Chairman Dotson would not have accepted the exceptions as they are
not in compliance with the minimum requirements as set forth in Sec.
102.46(b) of the Board's Rules and Regulations.
s Charging Party Coble has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance 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 re-
versing the findings.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge:
This matter was heard by me in Kansas City, Missouri,
on January 27 and 28, 1983. On August 27, 1982,' the
Regional Director for Region 17 of the National Labor
Relations Board issued a complaint and notice of hear-
ing, based on an unfair labor practice charge filed in
Case 17-CA-11093 on July 15, alleging that Communica-
tions Workers of America, Local 6360, herein called the
Respondent, had violated Section 8(a)(5) and (1) of the
National Labor Relations Act, as amended, 29 U.S.C. §
151, et seq., herein called the Act, by failing and refusing
to accept a written grievance submitted by Office and
Professional Employees International Union Local No.
320, AFL-CIO, herein called the Union, with regard to
the discharge of Patricia A. Coble. On December 14, the
said Regional Director issued an order consolidating
I Unless stated otherwise, all dates occurred in 1982.
270 NLRB No. 119
cases, consolidated complaint and notice of hearing, con-
solidating Case 17-CA-11903 with Case 17-CA-10991,
filed on May 18, and alleging, in addition, that the Re-
spondent had violated Section 8(a)(3) and (1) of the Act
by having discharged Coble on May 18 because she had
"joined, supported, or assisted the Union, and engaged in
concerted activities for the purpose of collective-bargain-
ing or other mutual aid or protection, and in order to
discourage employees from engaging in such activities or
other concerted activities for the purpose of collective-
bargaining or other mutual aid or protection." The Re-
spondent denies the commission of any unfair labor prac-
tices both with respect to its discharge of Coble and with
regard to its refusal to accept the Union's grievance con-
cerning her termination.
All parties have been afforded full opportunity to
appear, to introduce evidence, to examine and cross-ex-
amine witnesses, and to file briefs. Based on the entire
record, on the briefs filed on behalf of the parties, and on
my observation of the demeanor of the witnesses, I make
the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, the Respondent has been an un-
incorporated association with an office and place of busi-
ness located at 914 Main Street, Lee's Summit, Missouri,
and has been engaged in the organization and representa-
tion of employees in collective bargaining with various
employers concerning wages, hours, and other terms and
conditions of employment. During calendar year 1981, in
the course and conduct of its operations, the Respondent
collected and received dues and initiation fees in excess
of $250,000, of which an excess of $50,000 was remitted,
as it is annually, to the business office of the Respond-
ent's International. Therefore, I conclude, as admitted by
the Respondent, that at all times material, the Respond-
ent has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7).
II1. THE LABOR ORGANIZATION INVOLVED
At all times material, the Union has been a labor orga-
nization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
As must be apparent from the recitation in the State-
ment of the Case, there are two issues in this proceeding:
Whether Coble was terminated on May 18 for reasons
prohibited by the Act and, secondly, whether the Re-
spondent's refusal to accept a grievance concerning her
discharge was unlawful or, instead, was not a violation
of the Act because the circumstances of her discharge
were such that a grievance concerning it arguably could
not be filed under the terms of the Respondent's collec-
tive-bargaining agreement with the Union. Based on the
evidence presented, I conclude that Coble was not dis-
charged for reasons proscribed by the Act, but rather
was terminated for having engaged in activity not pro-
812
COMMUNICATIONS WORKERS LOCAL 6360
tected by the Act. Furthermore, I conclude that in refus-
ing to accept a grievance concerning Coble's termina-
tion, the Respondent was relying in good faith on a his-
torical interpretation of its collective-bargaining agree-
ment which at one point in the past had been accepted
by the Union and, consequently, that its refusal to accept
the grievance concerning Coble's discharge was not a
violation of the Act in the circumstances presented in
this case.
B. The Discharge of Coble
1. Facts
Coble commenced working for the Respondent as a
clerk/typist in its Lee's Summit hiring hall on July 27,
1981. At that time, and at all times material thereafter,
only one other clerical employee had worked in that
hall: Executive Secretary Beverly Webb. On Monday,
December 21, 1981, two incidents occurred, mention of
which arises in connection with subsequent events sur-
rounding Coble's termination. As she had sat at her desk
that day, Chief Steward David Spencer had approached
her from behind and, according to Coble, had "put his
arms on my shoulders, gave me a squeeze and said,
'Happy birthday."' Later that same day, she testified,
"Burt Geraghty, who is a committee man for the special
project committee of [the Respondent] came into the
office and told me he wanted me to call in a out on
union business for Nigger Mike Harris." Though not her-
self black, Coble objected to Geraghty's use of that ra-
cially derogatory term. Consequently, the two incidents
led her to author a letter to Dennis Williams, the Re-
spondent's elected secretary and her immediate supervi-
sor, in which she complainted about what had occurred:
First, a Chief Steward gave my shoulder an unso-
licited squeeze. This is the first time anyone in this
office has made any physical contact with me. I feel
that any physical contact is not proper in a profes-
sional office.
Secondly, I was given a direct verbal instruction
by a committee person who used a racially deroga-
tory word. The members of this Local are of sever-
al different races. I feel that me receiving instruc-
tions which are racially discriminating is detrimen-
tal to my professional reputation. Anyone overhear-
ing me taking such instructions could possibly have
a racial discrimination suit against this office.
Please let me know when you have time to meet
with me.
During the morning of December 23, 1981, Williams
met with Coble to discuss her letter. According to
Coble, the only witness who testified about the meet-
ings, 2 in connection with Coble's complaint about Ger-
aghty's remark, Williams had
. . .said, "I don't know what I can do about that
either," he said, 'Everybody on the executive board
uses the term nigger." He said, "Dennis Stidham
· Williamn did not appear as a witness, though there was no contention
by the Respondent that he had been unavailable to it.
says nigger." He says, "what am I going to do, tell
them not to say it." I said, "I just want you aware
that whenever somebody is giving me specific job
instructions, not to use the term nigger." He says,
"Well, I don't know what I can do about that."
Although, as discussed in greater detail, infra, Coble
claimed that she had heard other executive board mem-
bers use that same racially deprecetary term during the
time that she had been employed by the Respondent, in
contrast to her description of Geraghty's use of it, she
did not described any other specific instances where an
executive board member, including President Dennis
Stidham, had done so. Nor is there any evidence that she
ever again has protested or complained about that racial
term having been used in her presence.
In March, Williams spoke to both Coble and Webb
about overtime claims that had been filed, apparently
principally by Coble, and that the Respondent had been
obliged to pay. The Respondent concedes that its over-
time policy and procedures had not been explained in
detail to the two clerical employees prior to this meet-
ing. Thus, no disciplinary action had been taken against
either of them and, so far as the record discloses, there
were no further overtime problems after Williams' con-
versation with them.
By the following month, relations between Coble and
Webb had become strained to the point where Coble had
requested that criticisms of her work be made only in
writing by Webb and, consequently, where Webb com-
plained, apparently to Williams, about Coble's attitude. s
On April 6, Williams again met with the two clericals in
an effort to ameliorate their problems. During this meet-
ing, testified Coble, Webb had complained that Coble
had been performing Webb's functions and, in general,
had been "trying to make [Webb] look a fool." In the
course of defending herself, Coble had pointed out that
her own duties never had been clearly delineated and
that she "had to know exactly what types of jobs I was
required to do, and what jobs I'm not supposed to do."
Although Williams ended the meeting by admonishing
the two clericals to try to get along, Coble remained
troubled by the fact "that in reality nothing had been set-
tled out of our meeting because I was still unclear about
what I should be doing." Accordingly, on the following
day, she prepared another letter to Williams stating:
Yesterday at Beverly's request, you and I had a
meeting with her. At this meeting she voiced sever-
al complaints and accusations.
I am uncertain of what conclusions were made at
this meeting.
What was your conclusion in regard to her re-
marks?
Please put your reply in writing.
Thank you.
During the morning on April 8, Williams summoned
Coble to an inner office at the hall and handed her a
letter that read:
S Webb did not appear as a witness in this proceeding.
813
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Due to the problem that have arisen in the past
few weeks such as lack of communications with
fellow workers and staff members and the hostilities
that currently exist, I have found it necessary to
notify your Union Representative, Harry Rounds
[sic] that you are hereby being placed on indefinite
suspension without pay until the Executive Board
has an opportunity to meet and discuss the fate of
your future employment with [the Respondent].
The next scheduled Executive Board meeting is to
be held on April 12, 1982. If you have any ques-
tions you should contact your Union Steward.
The Respondent's president, Dennis Stidham, testified
that the suspension, which is not alleged to have been
unlawfully motivated, had been decided on because of
Coble's difficulties with Webb, of reports that Coble had
been keeping a diary of activities that went on in the Re-
spondent's hall and, at least to some degree, of Coble's
earlier overtime claims.
Business Manager Round testified that he had met
twice with the Respondent concerning Coble's suspen-
sion: Once with Stidham, Williams, and possibly some-
one else at approximately 1 p.m. on April 12, and, again,
with Stidham and Williams on April 16, a meeting that
also had been attended by Coble. During the first meet-
ing, testified Round, Stidham had advanced the follow-
ing explanation for the suspension:
[Hie told me that there was frictions, you know, in
the office, and that there had been-well, I'll have
to start over. She said that one of the things he said
that Pat opened the windows during the winter, it
was in the winter, and it was-she said it was stuffy
in there, she would open the windows in there, the
secretary would become cold because of the air
coming in ....
At that time I believe is when we brought up
that she was supposedly, a log or diary being kept
of different things going on in the office.
Well, [Stidham] said that it was his understanding
that Dennis Williams had told him that there was a
diary being kept by Pat telling of different activities
that was going on in the office, and about the offi-
cers and so forth. 'And that Pat had told Beverly
Webb that she should keep one too for her own
protection. And then I believe there was some more
statements that the two girls had some arguments
on job duties and so forth. But this was mostly the
reasons for the suspension at this time.
Asked if any further reasons had been advanced during
that meeting for the suspension, Round replied, "I don't
recall any right now." At no other point during his testi-
mony did Round add anything further to his above-
quoted description of Stidham's explanation for the sus-
pension during the April 12 meeting.
On April 12, the Respondent's executive board did
meet and decided to reinstate Coble on Tuesday, April
13, and to reduce her suspension to I day's duration,
paying her for the other days during which she had been
suspended. Coble, however, was not satisfied with this
resolution and asked Round to pursue her grievance,
seeking full rescission of the suspension, removal of any
notation of it from her employment record, payment for
the now 1-day suspension, and an apology letter from
the executive board.
At the next meeting concerning the grievance, on
April 16, Coble testified that Stidham first had said that
he had no complaints about the manner in which she
performed her duties, but that he had received "a lot of
complaints about her from my members .... I don't
know [how] to put it, but supposedly, she's been making
threats about keeping a diary. And this had my officers
real upset." According to Coble, after Stidham had ex-
plained further the concerns caused the Respondent's of-
ficers by her maintenance of a diary, she had denied
flatly ever having kept one, asserting, "I have never had
a diary. This is the first I have ever heard of a diary," at
which point, claimed Coble, Stidham had asked for Wil-
liams' notes4 and had,
. . . brought up the fact that in December I had
complained to Dennis Williams about a steward
giving me a hug, and about a committee person
using the terms "nigger." He said that they needed
a girl in the office who could get along with every-
body and who wouldn't get upset if somebody
touched her.
He said he needed a girl in the office who wasn't
offended by cussing. And I said, "Dennis, I didn't
say I was offended by cussing. I do object if some-
body cusses at me. I do object if somebody has
physical contact with me. And I do object if some-
body uses a racial slur whenever they are giving me
a direct work instruction, because if anybody over-
heard that, that would implicate me as being preju-
diced."
Then, testified Coble, Williams had raised the matter of
Webb's complaint about Coble's attitude and actions that
had led to the meeting to resolve their difficulties, point-
ing out that following that meeting he had received a
memo from Coble requesting a reply in writing.
4 Although Williams did not testify, counsel for the General Counsel
offered into evidence "a copy of a handwritten memo made by Mr.
Dennis Williams concerning his conversation with Pat Coble in Decem-
ber of 1981." Presumably, this was the document to which Stidham,
under Coble's version of the April 16 meeting, had referred. It reads:
At Pat Coble's request I met with her this morning to discusss
what she felt was unprofessional conduct happending in the office.
Earlier in the week someone came into the office and left and [sic]
article for a Mike Harris. He asked Pat if she knew who he was, she
replied no. The person then sid he's a big tall nigger. Pat said she
was offended by this type of language and would like me to try and
up grade [sic] the language used in this office. Also during the week
a gentleman came in and offered Pat a plate of cookies and candy.
When she took it he put his arm around her and hugged her and
wished her a Merry Christmas. She said this offended her as she
does not like physical contact. I told her I didn't know what I could
do but I could try to work something out. She told me that she
would document our conversation for her records in case something
like this happened again.
814
COMMUNICATIONS WORKERS LOCAL 6360
Ultimately, the Respondent's executive board empow-
ered Stidham to rescind the suspension and to pay Coble
for the day for which she had not been paid, but not to
furnish her with a letter of apology. At a meeting with
Round, scheduled for May 13, Stidham had intended to
explain that he was going to take the actions authorized
by the executive board. However, testified Stidham,
prior to that meeting he had spoken by telephone with
his son Tim, a member of the Respondent and one with
whom the elder Stidham's relations had become strained.
Tim Stidham had asked why Coble had been suspended
and, after Dennis Stidham had explained that he would
not discuss the matter with anyone other than Coble's
bargaining representative, the conversation had contin-
ued with Tim Stidham saying, "that Pat had told him
that Dennis Williams had admitted in a grievance meet-
ing that he had made advances to Beverly" and, further,
"that Pat had told him that she was going to be terminat-
ed on May the 20th, 1982 .... " Dennis Stidham testi-
fied that he had replied that he "didn't know we were
terminating her" and when his son had said "everybody
out here is madder than hell and we want a meeting,"
that the executive board would handle the problem.
Later that same morning, testified Dennis Stidham, he
had received a call from Bernelle Farmer, a black
member of the Respondent, who "said she and some
people in the plant wanted a meeting immediately with
me concerning racial slurs at the office by the Executive
Board." According to Stidham, Farmer had "said that
the Executive Board had been accused of calling blacks
'niggers' and gays 'dykes,"' and, further, that she had
heard this from Florence Purvey, another black member
of the Respondent, who had just been called by Coble.
Stidham agreed to meet with Farmer and her group at 4
p.m. that afternoon.
It was after having participated in these telephone con-
versations that Stidham met with Round and Coble and
advised them about the disposition of her grievance. Ac-
cording to Coble, the following had occurred:
When we got into his office, he stated, "Well, I was
going to take that letter of suspension off her
record, but I've had phone calls all morning long
from members over at the plant and they are com-
plaining to me about Pat's grievance."
Harry asked me-Harry Round asked me had I
been talking to any of the members at the plant
about my grievance. I stated members had called
the office and asked me about my suspension, about
my grievance, and yes, I did answer their questions,
concerning my grievances.
Dennis Stidham said, "if I get anymore phone
calls concerning your grievance, then out you go."
And I said, "Mr. Stidham, are you saying that you
are threatening to fire me?" And he said, "no, that's
not a threat." He said, "that's a promise. If I get
anymore phone calls from my members about your
grievance, then I will fire you."
Stidham agreed that he had said that he had intended to
rescind Coble's grievance, but was not going to do it in
light of "what we've been through today and what I've
been through on the telephone today," and, further,
agreed that he had said that he had gotten "two tele-
phone calls already today concerning your suspension,"
and that if he got "one more call on this, you are gone."
Initially, Round testified only that Stidham had "said
he had been receiving calls from the plant in reference to
the suspension or grievance suspension of Pat Coble, and
that he didn't want anymore and if he got anymore why
he was going to terminate her." However, during direct
examination, he was pressed for more detail regarding
Stidham's comments concerning the subject and he testi-
fied:
And [Stidham] said I just don't want to have any-
more, and he said, there is being lies told or un-
truths told and he said, I don't want anymore of it,
that if I have want anymore of it, that if I have any-
more, I'm going to terminate you. And I asked Pat,
I said, "are you calling the plant out there and tell-
ing them things?" And she said, "They call in the
days, the members of [the Respondent] plant, West-
ern Electric call in," and she said, "If they ask me
about it," she said, I'll tell them," but she said, "I
don't call them."
During the afternoon of May 13, Stidham received
two more calls, this time from female members, one of
whom also was an executive board member, during
which the executive board was accused of having re-
ferred to gays as "dykes." At 4 p.m. on May 13, a dele-
gation of the Respondent's members did meet with the
executive board. All involved in that meeting who testi-
fied agreed that it had been an acrimonious one that had
ended with everyone still angry and disenchanted. While
the reasons for Coble's suspension had been mentioned
during it and were discussed at least to a degree, most of
the meeting had been devoted to angry accusations, di-
rected at executive board members who had been
present, concerning purported derogatory racial and
sexual remarks by them, and to denials by those members
that they had made such remarks.
During the morning of May 14, the executive board
met. There was discussion of resignation by several of
the members in light of the confrontation that had oc-
curred during the later afternoon of the preceding day.
There also was discussion about terminating Coble but
no decision in that regard was reached. Instead, the
meeting adjourned and several board members, including
Stidham, took time off for the rest of the day.
During the later afternoon of May 14, Coble, who was
by herself at the Respondent's hall, called the police and
reported having been threatened by someone who had
come to the hall, but whose identity was unknown to
her. When the police arrived at the Respondent's hall, in
response to her call, Coble gave a statement and during
the course of that process, David Long, area vice presi-
dent of 30 building for day shift, arrived and overheard
at least a portion of Coble's discussion with the police.
According to Coble, once the police had left, Long had
threatened that if she filed charges against the unknown
individual who had been at the hall that afternoon, she
would be fired.
815
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon returning late that afternoon from having gone
fishing, Stidham was told, by his wife, that an anony-
mous caller had told his 75-year old mother that he "had
taken off with all the union money and left the country."
Then he received a call notifying him of Coble's encoun-
ter that afternoon and of her police report concerning
the unknown individual. That was followed by another
call summoning Stidham to a nearby cocktail lounge
where a group of the Respondent's members were
present and "want[ed] to know what's going on." When
he arrived at the lounge, Stidham discovered about 50
members, many of whom inquired concerning what had
been happening and one of whom accused Stidham of
having "suspend[ed] a woman because she stated her
opinion about the Executive Board." At some point
during the course of the events of that evening, Stidham
became aware that the initially unknown person, whom
Coble had accused of threatening her in the hall, was
Robert Toft, a member of the Respondent and a store-
keeper at Western Electric.
On Monday, May 17, during her lunch hour, Coble
went to the police station when she filed charges against
Toft for the incident that had occurred on the preceding
Friday. 5 On that same day, the Respondent's executive
board voted to terminate Coble.
At two points in his testimony, Stidham recited the
reasons for the executive board's decision. During direct
examination, he testified that the decision had been,
"Based on everything. Based on the fact that she had
made the calls into the plant, that she had told lies to the
people, that the incident involving Bobby, because we
then had the information that we needed to back that up,
the whole thing I've been talking about." Under cross-
examination, he explained further as follows:
The lies, political pressure, which was covered in
her contract that she was not to be involved in any
political action. We were involved in a convention
election at the time. The whole Executive Board,
other than myself, I believe-when I say the whole
one, the majority of the Executive Board members
were running in the election to the convention. We
knew that there would be some effect on that
which proved out to be later in the election, there
was one man on the Executive Board elected to go.
And it was due to political pressure. We didn't
know that at the time, but we did know that people
were very upset with the Executive Board, not be-
cause of the termination of Pat Coble but because of
the lies concerning the racial slur and the references
to gays as "dykes." Plus charges made by Pat Coble
that there were immoral, extra-marital affairs going
on at the union hall during working hours.
One other executive board members who had been
present during that meeting and who testified in this pro-
ceeding was Long. He described several reasons that had
been discussed that day as ones that had led to the exec-
utive board's decision to discharge Coble:
8 Ultimately, according to Coble, the city attorney had decided not to
prosecute the basis of her complaint.
Several of them. Because of the fact that she
stated to-or called individuals that we represent in
the plant and said that we were calling blacks nig-
gers and homosexuals or whatever dikes [sic] and
you know, we went all the way back through back
history as to the overtime problem, the problem
that Ernie Ashlens had, you know, kind of dis-
cussed all of the problem that we might have and
what would be the solution to them.
Four points raised in connection with the foregoing
recitation of the reasons for having terminated Coble re-
quire further explication. First, Toft denied flatly ever
having threatened Coble during the afternoon of May 14.
Rather, he testified that he had heard rumors about exec-
utive board members resigning due to things that a secre-
tary named Pat had been saying and, when he had ar-
rived at the hall, he had asked her if she was that secre-
tary. According to Toft, when Coble had not responded
to his question, he had said that, "if she was the one that
was causing all this trouble, that she would pay for it.
And she said, 'Is that a threat?' I said, no, that's just tell-
ing you that god will make you pay for your sins."
Though Coble testified that Toft had approached her
desk and had been speaking "real loud" and shaking his
finger while talking to her, Toft denied having done
these things. Moreover, he denied having called Coble,
as she claimed that he had, a "god damn bitch." or a
"f-g liar." Rather, he testified that he only had made
the types of remarks described above.
Second, Long testified that he had received a call
from Coble on April 10 during which she had reported
that she had been suspended and that she wanted to
know the reason. According to Long, when he had re-
plied that he did not know the reason and had suggested
that she contact Stidham or Williams, Coble had retort-
ed, "that she didn't really trust them or something to
that effect, I can't remember the words, and that the
only two that she felt like she could talk to would be me
or Bill Summers, because we were not involved in im-
moral extra-curricular activities."
Third, Ernest G. Ashens, the Respondent's vice presi-
dent for skilled trades, testified that around March I he
had encountered a problem with Coble when he had
taken a half-day vacation and,
. . . a girl that I'd been going with for about five
years called up and was looking for me and [Coble]
told her that I was on vacation; and she didn't
know why she could be so upset about me being
gone because I do it all the time.
And so I went-after that, she was upset and crying
and everything. So I went to Ms. Coble and told
her. I said, "I would appreciate, on my own person-
al business, that she would stay out of it."
According to Ashens, Coble had replied, "I'm sorry."
Finally, the collective-bargaining agreement, between
the Respondent and the Union, in effect at the time of
Coble's termination had contained a provision, article
IV, section 5, which reads: "No employee shall, as a
condition of his employment, be required or permitted to
816
COMMUNICATIONS WORKERS LOCAL 6360
participate in any internal union political action of their
employer, nor shall he be required or permitted to cam-
paign for any individuals who are candidates for a union
office." It was to this paragraph that Stidham was refer-
ring in mentioning "political pressure."
2. Analysis
To support the allegation that Coble's discharge had
been unlawfully motivated, counsel for the General
Counsel, makes a carefully constructed argument that, in
effect, proceeds backwards in time and makes the follow-
ing points. First, Section 7 of the Act protects employee
efforts to appeal for support to other employees, custom-
ers, and the public where that employee had a dispute
with his or her employer. Second, the Respondent termi-
nated Coble primarily for having made appeals to its
members for them to support her position in her griev-
ance against it. Third, while in the course of making
those appeals, Coble had told the Respondent's members
that executive board members were referring to blacks as
"niggers," that subject had been directly related to her
grievance inasmuch as Stidham had raised it during the
April 16 meeting, and it had been an accurate assertion
in light of Williams' comment to her during her meeting
in December 1981. Consequently, concludes the General
Counsel's argument, in the course of appealing for their
support, Coble had been doing no more than exercising a
statutory right by reciting to the Respondent's members
what had been told to her by the Respondent's own offi-
cials and, consequently, her termination for that reason
had constituted a violation of the Act.
In addition to that primary argument, in support of the
allegation that Coble had been unlawfully terminated,
counsel for the General Counsel makes the following
subsidiary arguments intended to dispose of several other
points raised in connection with Coble's termination.
First, to the extent that asserted remarks by Coble con-
cerning "immoral extra-curricular activities" may have
influenced the Respondent's decision to fire her, the fact
is that one of the principal reasons for having suspended
Coble had been the Respondent's concern that she had
been maintaining a diary that was causing the Respond-
ent's officers to become upset. Thus, the subject of why
those officers would have become upset had been one
logically related to the subject of Coble's grievance and,
concomittantly, to her appeal for support by the Re-
spondent's members. Second, Coble denied ever having
said that the Respondent's officers had been calling gays
"dykes" and there is no evidence that she ever had done
so in the course of appealing to the Respondent's mem-
bers for support. Accordingly, at best, this accusation is
governed by the doctrine enunciated in NLRB v. Burnup
& Sims, 379 U.S. 21 (1964). Finally, to the extent that
Coble's termination may have resulted from the criminal
charge that she had preferred against Toft, that charge
had resulted from Toft's own conduct to oppose and, in
effect, to supress Coble's efforts to generate support for
her grievance among the Respondent's members. Thus,
Coble's conduct in connection with the Toft incident had
been directly related to her statutorily protected rights to
file a grievance and to generate support for it among the
Respondent's members inasmuch as, by having filed
charges against Toft, she had been attempting to pre-
serve and to protect her ability to exercise those rights.
While the General Counsel's arguments contain a cer-
tain inherent logic, the difficulty with them in the cir-
cumstances of this case is that most of them-that
Coble's communications to the Respondent's members
had been intended only to generate support for her
grievance; that she had been told that all executive board
members referred to blacks as "niggers" by Williams in
December 1981; that she never had told the Respond-
ent's members that executive board members had been
referring to gays as "dykes"; and that Toft's conduct on
May 14 had been threatening and abusive-rely exclu-
sively on Coble's own testimony and, thus, on her believ-
ability. But, when she testified, Coble's demeanor was
not impressive and a review of the transcript serves only
to confirm my impression that she was not being candid.
Rather, when testifying, it appeared that Coble was at-
tempting to tailor her accounts of events and conversa-
tions so that they would appear in the light most favor-
able to her position. Moreover, her testimony during this
proceeding appears to have been consistent with a pat-
tern that emerges from review and analysis of her con-
duct since, at least, her suspension in April. That is,
rather than having been a person of good will who took
action to correct inequities, as she attempted to portray
herself, the evidence discloses that, after the Respondent
had failed to erase altogether a concededly not unlawful-
ly motivated suspension, Coble had retaliated by report-
ing purported pernicious comments by executive board
members to the Respondent's members. This seemingly
was done by her to impugn the integrity of the members
of a body that would not revoke her suspension and, fur-
ther, to undermine with the Respondent's membership,
particularly those who were influential and most likely
to be susceptible to the substance of Coble's remarks, any
support that executive board members had enjoyed pre-
viously.
That Coble was not a reliable witness becomes most
apparent when comparing her testimony with that of
Florence Purvey, a member of the Respondent and one
of the more vocal spokespersons for black members of
the Respondent. Called during the General Counsel's
case-in-chief, Coble described a telephone conversation
with Purvey during the morning of May 13.6 Later,
Purvey appeared as a witness for the Respondent and
contradicted, virtually branch and root, every significant
aspect of Coble's description concerning that call. Thus,
as quoted above, when asked by Round during the May
13 meeting if she had been called the Respondent's mem-
bers concerning her grievance, Coble had replied that it
had been members who had been calling her. With refer-
ence specifically to her conversation with Purvey, during
the hearing in this matter, Coble testified expressly, "I
have had one conversation with Flo Purvey as she called
me at the office." But, Purvey directly contradicted both
of those assertions, testifying that initially "[Coble] called
me at the plant," and, further, that "I called her back."
Thus, there were two conversations by telephone, not
I It had been Purvey who had related Coble's remarks to Farmer and
that, in turn, had led the latter to telephone Stidham on May 13.
817
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one as Coble claimed, and it had been Coble, not
Purvey, who had initiated the first such call.
Moreover, in describing her purportedly single tele-
phone conversation with Purvey, Coble claimed that the
subject of her suspension and grievance had been raised
by Purvey who,
. . . wonder[ed] how come I had not been answer-
ing the phone lately. I told her I was a clerk typist
and answering the phone was not one of my duties
anymore, unless, of course, Beverly was on the
other line and then I could answer the phone.
She asked me what had come about. How come
that was. I told her since my suspension, I'm not-I
am clerk typist. I don't answer the phone. She says,
she asked me about my suspension and I said,
"Well, I am grieving it right now. My suspension is
being grieved at this point in time."
On its face, such a sequence of casual questioning by
Purvey appears unlikely if, as Purvey testified, it had
been Coble who had initiated the telephone calls that
morning. And, indeed, Purvey did not corroborate that
description which portrays her as having been the one
who, through curiosity, had elicited from Coble a state-
ment that she had been suspended. In fact, Purvey did
not even recall Coble having mentioned, during their
first telephone conversation, having been suspended nor,
for that matter, having stated that she had filed a griev-
ance. Instead, Purvey testified that discussion of Coble's
personal situation had been initiated by Coble's own as-
sertion "that her job was in jeopardy and could I help
her."
On further aspect of Coble's conversation with Purvey
is worthy of note at this stage. Coble denied expressly
having said anything to the Respondent's members about
executive board members having referred to gays as
"dykes." As noted above, one of the General Counsel's
subsidiary arguments is that there is no direct evidence
that Coble had made that particular type of statement to
the Respondent's members. Yet, Purvey's account of her
first telephone conversation with Coble tends to refute
that argument and to support the Respondent's testimony
that, in fact, Coble had attributed use of that word to ex-
ecutive board members. Thus, Purvey testified that in
the course of their conversation, Coble had said "also
that she had gotten in trouble because a member of the-
members of the E Board were using racial snares, you
know like 'nigger' and 'darks' and 'arises,' no it wasn't-
'gays."' Of ocurse, Purvey's testimony does not recite
that Coble had used the word "dyke." But, there is no
basis for assuming that Purvey is a member of the latter
group whereas she clearly is a member of the former.
Consequently, it is somewhat understandable that she
would become upset on hearing that slurs were being di-
rected against blacks and might not have been wholly at-
tentive to the precise words immediately following
Coble's description of the use of such deprecatory terms.
What is clear from Purvey's testimony is that in the
course of reciting derogatory remarks purportedly being
used by executive board members, Coble had included in
her enumeration terminology referring to sexual prefer-
ence.
True, Purvey was called as a witness by the Respond-
ent and, at least in theory, there always is the possibility
that, with the passage of time, she has become favorable
to the Respondent's interest in its dispute with Coble.
However, that was not the impression that Purvey con-
veyed. Rather, she appeared to be testifying candidly,
albeit with some uncertainty as to whether the remarks
described to her by Coble actually had been uttered by
members of the Respondent's executive board or, alter-
natively, whether she and other members of the group
that had gone to the executive board during the after-
noon of May 13 had been pawns moved on a board the
dimensions of which only were beginning to emerge. In
short, Purvey appeared to be an honest and candid indi-
vidual whose testimony I credit.
With respect to Coble's testimony, a few other points
are worth noting. First, as found above, Coble's testimo-
ny that she had not called the Respondent's members to
solicit their support was contradicted directly by Purvey.
While no other member, as distinct from executive board
member, was called to corroborate Coble's account by
testifying that he or she had initiated a call to inquire
about Coble's suspension and grievance. Second, there is
no evidence that would support an inference that any of
the Respondent's members likely would have contacted
Coble to ask about her personal problem. That is, so far
as the record discloses, Coble had not become so friend-
ly with any of the Respondent's members that there
would have been a basis for concluding that it was only
natural for them to have contacted her concerning her
dispute with the Respondent. Third, by the time that the
calls to Stidham had begun occurring, a month had past
since Coble's initial 3-day suspension on April 8, 9, and
12. So far as the record discloses, Coble had worked
steadily following her reinstatement on April 13. There
is no evidence of any intervening event, between April
13 and May 13, that likely would have suddenly brought
the matter of her suspension to the attention of the Re-
spondent's members and would have sparked them to
make calls to the Respondent on her behalf.
In sum, based on my impression of Coble when she
testified and on a review of the transcript of the testimo-
ny and other evidence adduced, I conclude that Coble
was not being candid and I do not credit her testimony.
Short of Coble's testimony, the only evidence remaining
in the record that serves as any support for the General
Counsel's basic argument-that Coble's remarks to mem-
bers about racial slurs by executive board members had
been related directly to her suspension by virtue of the
Respondent's own reference to the December 1981 com-
plaint about Geraghty's comments concerning Harris-is
Round's testimony concerning statements made during
the April 16 meeting at which Coble's grievance con-
cerning the suspension was discussed.
Round testified that, during that meeting, Stidham had
raised the subject of Coble's complaint about Geraghty's
remark in December 1981. However, when testifying,
Round did not mention this subject until after having
given a full recitation of what had been said by Stidham
818
COMMUNICATIONS WORKERS LOCAL 6360
during that meeting-a recitation that omitted any men-
tion of Coble's complaint about racial slurs-and not
until the topic had been suggested to him by counsel.
Even then, when the subject was suggested initially to
him, Round first answered by reciting a description of
what he understood had happened on that day in De-
cember 1981. Only after the subject again was suggested
to him did Round finally provide a description as to
what Stidham purportedly had said on April 16 regard-
ing Coble's complaint about the racial slur. While Round
impressed me as being a basically sincere individual, at
this point in his testimony he appeared nervous and de-
sirous of attempting to avoid a direct answer to the ques-
tion being put to him. It seemed that he felt almost cor-
nered and obliged to provide testimony concerning Stid-
ham's purported remark more from a sense of loyalty to
Coble than because Stidham actually had made such a
remark concerning Coble's prior complaint about the
racial slur.
That conclusion is but confirmed by two other factors.
First, as set forth above, Round described an earlier
meeting, on April 12, with Stidham, Williams, and possi-
bly one other person at which the Respondent's reasons
for having suspended Coble were reviewed. Round's de-
scription of what had been said during that meeting is
quoted above. Even a cursory examination of it discloses
that at no point did Round claim that either Stidham or
Williams had even mentioned the events of December
1981 when they described the Respondent's reasons for
having suspended Coble indefinitely.
Second, when Coble's above-described recitation of
what Stidham purportedly had said on April 16 is com-
pared with Round's recitation, the two versions do not
correspond. Thus, while Coble describes Stidham as
having objected to her sensitivity to "cussing," Round
testified that Stidham had said: "Well, he says that is
what a lot of people call this man. And that, you know,
they didn't think, apparently, didn't think anything of it,
at the time that had been referred to him as far as that."
Consequently, while Round attempted to corroborate
Coble's claim that the subject of her complaint about the
racial slur had been raised on April 16, in fact he failed
altogether to corroborate her account of what assertedly
had been said that day. In light of the foregoing consid-
eration, and based on my observation of him when testi-
fying, I do not credit Round's testimony regarding this
aspect of the April 16 grievance meeting.
In light of the foregoing conclusions, the remaining
evidence discloses the following sequence of events.
Coble had been suspended indefinitely on April 8 for
various reasons, none of which is alleged to have been
unlawful. By April 13, she had been reinstated and her
suspension had been reduced in duration to a single day.
Her bargaining representative had been processing a
grievance concerning that I-day suspension, intending to
pursue the matter to arbitration if necessary. Immediately
prior to a may 13 meeting, scheduled for the Respondent
to make its final reply to that grievance, Stidham had
begun receiving telephone calls from the Respondent's
members in which accusations were made that there was
a plan to fire Coble on May 20 and that executive board
members had been making racially derogatory remarks.
Over the course of the remainder of that day and during
the following one, members continued to complain about
racially and sexually derogatory remarks attributed to ex-
ecutive board members. Coble admits that she had been
the source of that information to members although, as
noted but not credited above, she denied having initiated
such conversations with members, claiming that she
merely had responded to their inquiries. Because of the
untruthful remarks made to its members by Coble, and in
light of her past record of difficulties, as well as because
of the criminal charge that she had filed against Toft, the
Respondent decided to and did terminate her.
Whether or not an employee of a labor organization
engages in activity protected by Section 7 of the Act
when he or she contacts its members to solicit their sup-
port for a personal dispute with that labor organization is
not, in the final analysis, the question presented here. For
the protection of Section 7 is not so all-encompassing
that it protects, without distinction, all activity by em-
ployees aimed at implementing its enumerated objectives.
Rather, "even with the protection afforded by the Act to
employees who organize and engage in union activities,
an employer in the pursuit of the right to manage his en-
terprise is not left impotent to discharge an employee for
misconduct . . . or for other valid reasons." (Footnote
and citations omitted.) NLRB v. Charles Batchelder Co.,
646 F.2d 33, 38 (2d Cir. 1981). While "not every impro-
priety committed during such activity places the employ-
ees beyond the protective shield of the act [sic]," NLRB
v. Thor Power Tool Co., 351 F.2d 584, 587 (7th Cir. 1965),
nevertheless there is a point at which "the protection of
the right of employees to full freedom in self-organiza-
tional activities should be subordinated to the vindication
of the interest of society as a whole." NLRB v. Illinois
Tool Works, 153 F.2d 811, 816 (7th Cir. 1946).
Virtually every circuit court of appeals, as well as the
Board and its administrative law judges, has attempted to
formulate a more specific general test to measure the
point at which that subordination occurs. See, e.g.,
NLRB v. Thor Power Tool Co., supra; Syncro Corp. v.
NLRB, 597 F.2d 922, 925 (5th Cir. 1979); Excavation-
Construction v. NLRB, 660 F.2d 1015, 1020 (4th Cir.
1981). Here, however, analysis need only be concerned
with the question of employee disloyalty. "There is no
more elemental cause for discharge of an employee than
disloyalty to his employer. It is equally elemental that
the Taft Hartley Act seeks to strengthen, rather than to
weaken, that cooperation, continuity of service and cor-
dial contractual relation between employer and employee
that is borne of loyalty to their common enterprise."
(Footnote omitted.) NLRB v. Electrical Workers IBEW
Local 1229, 346 U.S. 464, 472 (1953). For, in the final
analysis, it had been Coble's own disloyalty, displayed
through the unfounded remarks that she had made to the
Respondent's members in a context where, in reality, she
really had not been concerned about having them sup-
port her grievance, that led to her discharge.
The Respondent's product is its ability to represent
employees and, further, its customers are its members.
While it deals with employers in negotiations, it does so
on behalf of those members. Without them, or at least
819
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without supporters willing to have it serve as their bar-
gaining representative, the Respondent would be out of
business.
Coble's accusations about what members of the Re-
spondent's executive board had been saying and doing
were severe ones. "It is common knowledge in these sen-
sitive times that misunderstanding in the area of race re-
lations are easily provoked by minimal conduct or a
careless word." H. L Meyers Co. v. NLRB, 426 F.2d
1090, 1094 (8th Cir. 1970). Indeed, the serious effect of
her remarks about executive board members having used
a racially derogatory term was amply illustrated by the
reaction of Purvey, Farmer, and certain other members
when they heard what Coble had to say. No less sensi-
tive and serious were the remarks concerning the sexual
preferences of the Respondent's members. Nor is it un-
likely that at least some members would become upset at
learning that executive board members, who served as
the managing agents of these employees' bargaining rep-
resentative, had been engaging in extramarital activities.
In short, the remarks made by Coble were serious ones,
having a natural consequence of creating a fissure be-
tween the Respondent and its members.7
In making these reports to the Respondent's members,
Coble, in effect, was acting as an expert on the subject of
remarks by executive board members. Inasmuch as they
worked for employers in the area, the Respondent's
members were always at its Lee Summit Hall. By con-
trast, Coble had regularly been working there. Thus, as
between the members and herself, she had been in a posi-
tion to be better informed about what executive board
members had been saying while at the hall than would
be the members of the Respondent. Indeed, any claim
that the Respondent's members would not have relied on
what she had told them, even though they personally
had not experienced comments of the nature described
by Coble being made by executive board members, is
dispelled completely by what actually had occurred after
Coble's reports to various members. Tim Stidham tele-
phoned his father to protest. Purvey reported what had
been said to her by Coble to Farmer and other black
members who, in turn, immediately demanded a meeting
with the executive board. Other members called to pro-
test the purported use of the word "dyke" in referring to
gays.
Nor, in the final analysis, can it truly be said that, at
least at the outset, Coble had begun making these calls
with the object of generating support for her position in
connection with the grievance that she had filed con-
cerning her suspension. As set forth above, Purvey testi-
fied that when she had been called by Coble, the latter
had only "said that her job was in jeopardy," and
Purvey had no recollection of Coble even having men-
tioned her suspension or grievance during their first tele-
The absence of direct evidence that Coble actually had intended such
a result is not significant. American Arbitration Assn., 233 NLRB 71, 75
(1977). Moreover, Coble appeared sufficiently perceptive to have appre-
ciated that her remarks would have an effect adverse to Respondent's ex-
ecutive board members. In light of the foreseeability of such an adverse
consequence, an employee, no less than an employer, "must be held to
intend the very consequences which foreseeably and inescapably flow
from his actions .... "NLRB v. Erie Resistor Corp., 373 U.S. 221, 228
(1983).
phone conversation. Tim Stidham, when he had tele-
phoned his father, had mentioned Coble's suspension, but
he also recited "that Pat had told him that she was going
to be terminated on May the 20th, 1982 .... " Yet, as
noted above, this record contains no evidence that would
afford even a basis for concluding that, following her re-
instatement on April 13, there had been even the slight-
est indication,that Coble's "job was in jeopardy" or "that
she was going to be terminated on May the 20th, 1982."
Furthermore, as concluded above, there is no credible
evidence that either Stidham or Williams had made any
reference to Coble's complaint about Geraghty's racial
slurs in December 1981 during the course of discussing
her suspension and grievance with her and Round in
April. Consequently, there was no relationship between
racial slurs and Coble's suspension had grievance over it.
Similarly, there simply was no basis whatsoever for re-
marks about executive board members calling gays
"dykes." The injection of these inflammatory remarks
into her discussion with the Respondent's members fur-
ther evidences that Coble had been engaging in these
conversations for purposes ulterior to attempting to gen-
erate support among them for her position concerning
the l-day suspension in April.8
In sum, a preponderance of the evidence shows that
Coble had been making unfounded assertions about her
employment status and about the comments of the Re-
spondent's executive board members. Whether, in
making those remarks, she had been motivated by a
desire to punish the executive board for not having re-
scinded her suspensions or had been attempting some
form of power play to compel the Respondent's execu-
tive board to bend to her wishes, neither her statements
concerning her future employment nor her recitations of
what executive board members purportedly had been
saying about certain classes of the Respondent's members
had any relation to the merits of her suspension nor to
her grievance concerning it. Her remarks impunged the
quality of the Respondent's ability to represent certain
classes of its members and, accordingly, the quality of its
"product." Her remarks were made deliberately. Having
been made to Respondent's members, they had been
made to its "customers." In having made them, Coble
was, in effect, speaking as an expert since she worked
regularly, day in and day out, in the Respondent's Lee's
Summit Hall where executive board members had their
offices. In these circumstances, there is no basis for con-
cluding other than that Coble's conduct had exceeded
the bounds of the protection afforded by Section 7 of the
Act. NLRB v. Local Union No. 1229, supra.
' Although it must be obvious from my disposition of Coble's credibil-
ity, it bears stating specifically that I do not credit Coble's testimony that
Williams had told her that, "Everybody on the executive board uses the
term nigger.... Dennis Stidham says nigger." Other than Coble's testi-
mony concerning Williams' purported remark to this effect, there is not a
scintilla of evidence in this record that Stidham, Williams, or any other
member of the Respondent's executive board had used either that term or
the term "dykes."
' The executive board had authorized Stidham to rescind even the I-
day portion of her suspension. However, there is no evidence that Coble
had been aware of that fact prior to her meeting with him on the morn-
ing of May 13, after she had spoken to Tim Stidham and to Purvey.
820
COMMUNICATIONS WORKERS LOCAL 6360
Before departing from this subject, certain other points
must be considered. First, based on Stidham's own
above-quoted testimony concerning his remarks to Coble
and Round on May 13, counsel for the General Counsel
argues that, whatever the nature of Coble's conduct,
Stidham's true concern had been exclusively with the
fact that she had contacted the Respondent's members
and not with what she had said to them. Yet, pressed for
a more detailed description of what Stidham had said
during that meeting, Round, a witness sympathetic to
Coble's position, described Stidham as having com-
plained specifically that day about "lies" and "untruths"
being "told."' ° Considering the tenor and substance of
the calls received earlier that day by Stidham, from his
son and from Farmer, it is not surprising that Stidham
would not have spoken or recalled the words that he
had spoken with the precision and detachment of an ob-
jective and uninvolved person. But the description fur-
nished by Round leaves unmistakable that Stidham had
complained about the substance of what was being re-
ported to him. Moreover, it is a somewhat artificial dis-
tinction to separate Stidham's reference to the fact of the
calls from the reality of what had been said during his
conversations with his son and Farmer." In any event,
Stidham's remark on May 13 has not been alleged as a
violation of the Act and, notwithstanding whatever he
may have said that day, the record is clear that the ter-
mination decision had been made by the executive board
and had been made on the basis of reports to them con-
cerning what Coble had said to the Respondent's mem-
bers.
Second, at the hearing and in its brief, the Respond-
ent's counsel has argued that Coble's conduct had consti-
tuted a violation of article IV, section 5 of the Respond-
ent's collective-bargaining agreement with the Union.
While it appears accurate that by the time of this hear-
ing, the Respondent's position had coalesced and had
become that Coble's actions had constituted conduct in
violation of that contractual provision, it is not so clear
that that contractual provision, itself, had been consid-
ered in connection with the executive board's decision to
fire Coble. Neither Stidham during direct examination
nor Long when he testified raised that provision as
having been a consideration. During cross-examination,
10 In light of what happened during this portion of Round's testimony,
I place no weight on his similar testimony that in the course of terminat-
ing Cole, Stidham had said only that he was doing so because "more
phone calls from the plant" had been received, without having gone on
to complain specifically about what had been said during those calls. As
Round's testimony concerning Stidham's remarks on April 16 tends to
show, he equated the fact of the calls and the message being related
during them in a manner that reference to the former embraced the
latter. As discussed infra, the fact of the calls and the substance of what
had been said during them appear to have been inextricably linked to-
gether by Round, as well as by Stidham, when they testified.
Il It is clear that Stidham was upset that Coble had been calling the
Respondent's members and he so testified. Yet, in so testifying, he also
made clear that he had been displeased about what Coble had been tell-
ing the Respondent's members. In short, in his mind, the two concepts-
the calls and what Coble had said during them-were inextricably bound
together. In these circumstances, it would be sheer conjecture to attempt
to speculate what would have happened had Coble confined her calls to
appeals for support by the Respondent's members with regard to her
grievance and had she not also seen fit to villify the members of the Re-
spondent's executive board during the course of them.
Stidham did mention the effects of Coble's statements on
executive board members. However, examination of his
testimony, quoted above, discloses only that the concern
had been with their ability to be elected to the conven-
tion in light of "the lies concerning the racial slurs and
the reference to gays as 'dykes"' rather than with the
propriety of Coble's remarks assessed in light of article
IV, section 5. Consequently, while the Respondent's
counsel has now chosen to assert a defense based upon
that provision, that does not mean that that defense can
be raised to the status of having been an actual reason
for Coble's termination. Just as administrative law judges
are not permitted to construct defenses for the Respond-
ent, Timken Co., 236 NLRB 757, 759-760 (1978), neither
may attorneys, through the excesses of argument, even
though well intentioned, do so. Here, so far as the record
discloses, article IV, section 5 had not been specifically
relied on when the executive board had made its decision
to fire Coble. Therefore consideration of her conduct in
light of its requirement is not warranted.
Third, to the extent that Coble's criminal complaint
against Toft might be, as is argued by the General Coun-
sel, activity protected by Section 7 of the Act and to the
degree that it had been a factor influencing the executive
board's decision to terminate Coble, Coble's activity in
this regard can be assessed no differently than her re-
marks to members about the executive board. That is, in
contrast to Coble, Toft appeared to be a candid witness
and I credit his description of the events that had oc-
curred on May 14. That is, I find that he neither verbally
abused nor threatened Coble that day, at least not with
personal action against her. Accordingly, her complaint
against him had no basis in fact and, as is true of her un-
founded recitations of purported remarks by executive
board members, was not protected by the Act, but in-
stead had been a spiteful reaction in retaliation for being
admonished by Toft for having baselessly created tur-
moil among the Respondent's members.
Finally, it is accurate that in arriving at its decision to
terminate Coble, the Respondent's executive board had
reviewed her employment history. However, there is no
evidence that, in having done so, the executive board
had considered her complaint about Geraghty, nor is
there evidence that it had viewed that complaint as a
factor adverse to retaining her as a clerk/typist. To the
contrary, a preponderance of the evidence in this matter
supports the conclusion that but for her own inaccurate
remarks to the Respondent's members about the words
and conduct of executive board members, she would not
have been terminated.
C. The Refusal to Accept Coble's Grievance
1. Facts
As set forth above, the Respondent's executive board
made the decision to terminate Coble at a meeting on
May 17. During that meeting, the decision also was
made to rescind her April suspension, to pay her for the
I-day of work that she lost due to it, and to discharge
her under article XI, section 1 of the then existing collec-
tive-bargaining agreement. That subsection provides:
821
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Prior to any termination of employment by the Em-
ployer execpt for just cause, the employee to be termi-
nated shall be given a two (2) week notice or two (2)
weeks pay in lieu thereof." Stidham and the executive
board felt that it had "just cause" for terminating Coble.
But, this provision of the collective-bargaining agreement
ws invoked to fire her because in 1972 the Respondent
had invoked a similarly worded provision when dis-
charging an employee, and the Union had agreed with
the Respondent's position, arrived at on the basis of
advice of counsel, that terminations pursuant to it were
not encompassed by the grievance and arbitration provi-
sions of the then existing collective-bargaining agree-
ment. In subsequently negotiated agreements, that provi-
sion had remained in identical form. It was relied on in
terminating Coble because, as Stidham explained, "It's
the responsibility of the Executive Board of the Union to
properly administer the funds that we operate under, the
dues money."
Thereafter, the Respondent resisted the Union's efforts
to grieve the subject of Coble's discharge. In a letter to
the Union's counsel dated June 29, the Respondent's
counsel explained fully the basis for its position:
As I informed you on the telephone, it is our posi-
tion that the termination of Pat Coble is not a
matter to be grieved or arbitrated. Article XI is the
only article of the contract dealing with termination
and provides that prior to termination except for
just cause, the employee shall receive two weeks
notice or two weeks pay in lieu thereof. Local 6360
paid Ms. Coble two weeks pay and thus complied
with all of the terms of said contract. Article XII
dealing with grievance and arbitration procedures
provides for the grievance and arbitration of any
dispute as to the interpretation or application of any
provision of the agreement. By our agreeing to pay
Ms. Coble the two weeks pay, there can be no dis-
pute as to the interpretation or application of the
contrast. For this reason we are refusing to grieve
her termination.
I will point out that in 1972 another clerical em-
ployee was terminated by Local 6360 and your
client at that time agreed that if the two weeks
were paid, the termination could not be grieved.
When Ms. Coble was terminated, Mr Round told
Mr. Stidham that he had hoped that he was not
aware of this provision in the contract.
2. Analysis
The arguments advanced in support of the allegation
that the Respondent violated Section 8(a)(5) and (1) of
the Act, by having refused to accept and to process the
grievance regarding Coble's termination to arbitration,
are straightforward ones. The General Counsel argues
that "Respondent's position that it can avoid the contrac-
tual grievance procedure if it deems the grievance with-
out merit constitutes a material, substantial, and signifi-
cant breach of its bargaining obligation to the [Union]."
The Union's argument is that having taken the position
that Coble had been fired for misconduct, the Respond-
ent acts inconsistently and in bad faith by arguing now
that it can avoid the contractual disputes resolution pro-
cedure by effecting her discharge under a provision per-
taining to terminations where "just cause" is not in-
volved. Rather, concludes the Union's argument, the
contractual provision invoked by the Respondent "was
designed to take care of the situation where if a plant
was being shut down on a permanent basis, which would
not fall under the 'lay-off' provisions of Article XI, Sec-
tion 3, since there would be no anticipated recall at a
later date to provide for, in effect two (2) weeks sever-
ance pay." However, in the circumstances of the Re-
spondent's position in this case, these arguments miss the
mark.
As a general proposition, it is no doubt a violation of
the Act for a party to a collective-bargaining agreement
to refuse flatly to honor and to abide by the provisions
of its disputes resolution procedures. See, e.g., Chicago
Magnesium Castings Co. v. NLRB, 612 F.2d 1028, 1034
(7th Cir. 1980); Independent Stave Co., 248 NLRB 219,
227-228 (1980). But, the Respondent did not totally repu-
diate the grievance and arbitration provisions of its then
existing agreement with the Union. Rather, it took the
position that specific terminations effected under a par-
ticular provision of that agreement were not subject to
its grievance and arbitration procedure. That is, that
under the terms of its agreement, it was not obliged to
arbitrate, and thus not to grieve, terminations effected
under that provision. It is well settled that "refusal to ar-
bitrate is not, in itself, a refusal to bargain in violation of
the Act." (Citations omitted.) Whiting Roll Up Door Mfg.
Corp., 257 NLRB 734 fn. 2 (1981). Moreover, the Board
long has held that it does not effectuate the purposes of
the Act "for the Board to assume the role of policing
collective contracts between employers and labor organi-
zations by attempting to decide whether disputes as to
the meaning and administration of such contracts consti-
tute unfair labor practices under the Act." Consolidated
Aircraft Corp., 47 NLRB 694, 706 (1943). It is in this area
that the issue posed by this aspect of the instant case is
rooted.
Contrary to the General Counsel's argument, the Re-
spondent is not simply taking the position that it would
not proceed through the grievance procedure to arbitra-
tion over Coble's discharge solely because it felt that
there was no merit to a grievance concerning that sub-
ject, although no doubt it does not feel that such a griev-
ance is meritorious. Instead, its position is that the then
existing collective-bargaining agreement had accorded it
an option: discharge without regard to the presence or
absence of "just cause," even though it existed, and pay-
ment of an additional 2 weeks' pay to the terminated em-
ployee, or discharge for "just cause" without making any
payment to the terminated employee beyond what al-
ready was owing for the period worked. There appears
to be no dispute that a termination under the latter
option would have been subject to the disputes resolu-
tion procedure of the then existing agreement, nor that
one effected pursuant to the former procedure would not
have been subject to it. Rather, the entire dispute in this
area is over the Respondent's ability to elect the catego-
ry under which particular terminations could have been
822
COMMUNICATIONS WORKERS LOCAL 6360
made. Consequently, the General Counsel's argument is
not pertinent to the issue posed here, for the Respondent
did not refuse to grieve and to arbitrate the dispute
simply because of its belief that it lacked substantive
merit, but instead because it had elected to exercise a
contractual option which it believed that it had a con-
tractual right to do.
It is the election, itself, that the Union attacks, arguing
that the Respondent's construction of the then existing
agreement is not correct and so distorts the meaning of
the agreement "as to give [the Respondent] a totally free
hand to do as it pleases with respect to its employees."
In this regard, the Union's argument does not appear to
be a totally baseless one. Yet, as noted above, it is undis-
puted that the Respondent had exercised the identical
option in 1972, invoking at the time an identically
worded clause to support the termination that it had ef-
fected, and that the Union had acquiesced in the Re-
spondent's position that the merits of the termination
need not be grieved or arbitrated. While that single inci-
dent may not be one that can be elevated to the stature
of a waiver of the Union's basic contractual right to
grieve disputes concerning discharges, the fact that the
Union did agree with the Respondent's position at that
time does serve to undermine any contention that the
Respondent had acted without basis or in bad faith in
adopting the position that it did at the time that it dis-
charged Coble. That is, the events of 1972 show that
there was some basis for Respondent's position that it
was entitled to attempt to avoid the costs of arbitration
by electing to terminate Coble under a contractual provi-
sion that was beyond the scope of the contractual dis-
putes resolution procedure.
With respect to the issue of the Respondent's good or
bad faith in having adopted the position that it did to
avoid the disputes resolution procedure, by electing to
effect Coble's termination under article XI, section 1, it is
worth noting that there did come a point in time, ac-
cording to the Union's counsel, when the Respondent
did agree to bifurcate the dispute and to arbitrate solely
the issue of arbitrability of the dispute, though not the
merits of Coble's termination. But, the Union rejected
this offer, feeling that if it prevailed on this point, it
would then have to incur the cost of a separate arbitra-
tion concerning whether or not there had been "just
cause" for discharging Coble. It would be ironic to con-
clude that the Respondent had demonstrated bad faith by
having chosen to terminate Coble under a contractual
provision not subject to the disputes resolution proce-
dure in order to avoid the cost of arbitration in a situa-
tion where the Union's approach to arbitration had been
influenced by that very same consideration.
In the final analysis, this dispute is one involving no
more than a difference of opinion over whether a certain
course of action was permitted by a collective-bargaining
agreement. The Respondent did not repudiate either the
agreement in its entirety nor did it repudiate altogether
the disputes resolution provisions of that agreement in
particular. There is no evidence that the Respondent, a
labor organization, is hostile to the concept of collective
bargaining in general, nor to the Union, in particular,
acting as the representative of the Respondent's clerical
employees. There was a precedent, based on the Union's
acquiesence in the Respondent's position on a prior occa-
sion, for the choice of action that the Respondent decid-
ed to pursue at the time that the decision was made to
fire Coble. It cannot be said that cost-saving is a consid-
eration that is irrelevant to the collective-bargaining
process in general, nor to the particular course of action
chosen by the Respondent in the circumstances present-
ed here. Therefore, I conclude that a preponderance of
the evidence fails to support the allegation that the Re-
spondent had violated Section 8(a)(5) and (1) of the Act
by taking the position that it could elect to terminate
Cole under article XI, section 1, and that, accordingly, it
did not have to grieve and arbitrate concerning that ter-
mination. National Dairy Products, 126 NLRB 434, 435
(1960); cf. Airport Limousine Service, 231 NLRB 932,
934-935 (1977).
CONCLUSIONS OF LAW
1. Communications Workers of America, Local 6360,
is an employer within the meaning of Section 2(2) of the
Act, engaged in commerce and in a business affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Office and Professional Employees International
Union Local No. 320, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. Communications Workers of America, Local 6360
has not violated the Act in any manner alleged in the
consolidated complaint.
Based on the foregoing findings of fact and conclu-
sions of law and on the entire record, I issue the follow-
ing recommended
ORDER 12
It is hereby ordered that the consolidated complaint
be, and it hereby is, dismissed in its entirety.
IS If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
823