Communications Workers Of America, Afl-Cio And Its Local 6320 (Ad/Vent Information Services, Inc.)

National Labor Relations Board - Board Decisions

Jun 8, 1989

294 N.L.R.B. 810 (N.L.R.B. 1989)

810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Communications Workers of America, AFL-CIO,
and its Local 6320 (AD/VENT Information
Services , Inc.) and Gertrude Smith . Case 7-
CB-7223
June 8, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On September 28, 1988, Administrative Law
Judge Lowell Goerlich issued the attached deci-
sion. The Respondents filed exceptions and a
memorandum brief to the Board, the General
Counsel filed cross-exceptions, a motion to strike
portions of Respondents' memorandum brief to the
Board, and a motion to correct portions of the ad-
ministrative law judge's decision, and the Respond-
ents filed an answering brief to the General Coun-
sel's cross-exceptions and motion to strike.
On January 12, 1989, the Board issued an Order
Remanding Proceeding to the administrative law
judge in order to clarify his description of certain
testimony and to make an important credibility de-
termination. The Order granted the General Coun-
sel's motion to correct portions of the judge's deci-
sion and held the General Counsel's motion to
strike in abeyance pending issuance of the judge's
supplemental decision.
On February 14, 1989, the judge issued the at-
tached supplemental decision in which he made the
required credibility resolution and reaffirmed his
original decision and recommended Order.
The Respondents filed exceptions and an addi-
tional memorandum brief to the Board and the
General Counsel filed a motion to strike portions of
Respondents' memorandum brief.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision, the sup-
plemental decision, and the record in light of the
exceptions and briefs and has decided to affirm the
judge's rulings, findings, and conclusions only to
the extent consistent with this Decision and Order.
The judge found that the Respondents violated
Section 8(b)(1)(A) of the Act by treating Charging
Party Gertrude Smith's grievance in a perfunctory
' The General Counsel's motions to strike refer to a March 18, 1988
letter sent by the General Counsel's Office of Appeals to Joseph P
Touchstone This letter was attached to both of the Respondents' memo-
randum briefs to the Board that also discussed the significance of the
letter regarding Smith 's 8(b)(1)(A) allegation We agree with the General
Counsel that the letter was not introduced at the hearing and is thus not
a part of the record in this proceeding. Accordingly, we grant the Gener-
al Counsel 's motion to strike the letter and any discussion of the letter
from the Respondents' briefs
manner and arbitrarily failing to process the griev-
ance. We disagree.
Gertrude Smith, Joe Touchstone, and Delano
Johnson were account executives in Detroit en-
gaged in soliciting advertisers for a telephone di-
rectory. The employees worked under a collective-
bargaining agreement between the Respondents
and the Employer providing that all grievances
had to be filed in writing within 45 days with the
Employer's division level management. The divi-
sion manager supervising the Detroit account ex-
ecutives was located in Chicago. Thus, any griev-
ance filed covering unit employees in Detroit had
to be timely filed in Chicago. On December 12,
1986, Smith, Touchstone, and Johnson were dis-
charged because they had failed to reach a sales
quota.
On the evening of December 12, Smith, Touch-
stone, Johnson, and Respondents' steward, Allesia
Daniels, met at an employee's home to discuss their
discharges and the grievance procedure. Johnson
filed a grievance with the Employer on December
30 and was reinstated with no backpay on January
26, 1987. Touchstone attempted to file his griev-
ance some time on January 26, 1987, the last day of
the contractual filing period. Smith presented her
grievance to Daniels after 5 p.m. on January 26.
Daniels informed Smith that because the Respond-
ents' executive vice president had advised Daniels
that Touchstone's grievance filed earlier the same
day was untimely, Smith's grievance also was late.
Daniels testified that the Touchstone and Smith
grievances were not processed because it was too
late for the Company to receive them in Chicago
by January 26. At the hearing, Smith admitted that
near the time of her discharge, she was aware of
the 45-day grieving period.
The judge found that the Respondents violated
Section 8(b)(1)(A) because the Respondents had of-
fered no explanation regarding why they did not
attempt a delivery of either Smith's or Touch-
stone's grievances, 2 except that the grievances
were untimely. Although Touchstone's grievance
was received by the Respondents on the 45th day,
the Respondents' executive vice president made no
effort to deliver the grievance to Chicago. The
judge also noted that the collective-bargaining
agreement does not provide for the method of de-
livery. Thus, according to the judge, Touchstone's
grievance could have been sent by telegraph or
other device enabling timely delivery. Moreover,
because Johnson's grievance proved to be well
taken, it was reasonable to assume that Touch-
2 The Respondents' treatment of Touchstone's grievance is not at issue
in this case
294 NLRB No. 68
COMMUNICATIONS WORKERS LOCAL 6320 (AD/VENT)
stone's grievance had merit. The judge concluded
that Smith's grievance was perfunctorily treated in
the same manner as Touchstone's grievance, except
that Daniels rather than the Respondents' executive
vice president had arbitrarily failed to accept
Smith's grievance.
Contrary to the judge, we find that the Respond-
ents did not treat Smith's grievance in an arbitrary
manner. It is undisputed that the Respondents held
a meeting to explain the grievance process to
Smith, Touchstone, and Johnson and that on a date
near that of her discharge, Smith knew she had 45
days to file her grievance. It is also undisputed
that, in order to be properly filed, a grievance had
to be in writing and received by the employer in
Chicago on or before the 45th day. When Smith at-
tempted to submit her grievance in Detroit after 5
p.m. on the last day of the filing period, the Re-
spondents explained to her that the grievance was
untimely. The Respondents had concluded that the
grievance could not have been received by the
Chicago division level management on the same
day. Contrary to the judge, we find that the duty
of fair representation does not require a union to
resort to extraordinary measures to process griev-
ances. Rather, a union's obligation is merely to re-
frain from conduct that is arbitrary, discriminatory,
or in bad faith. Vaca v. Sipes, 386 U.S. 171 (1967).
We note in this connection that the General Coun-
sel has not shown that the Respondents normally
enlisted special means to ensure the timeliness of
grievances. Thus, under these circumstances, we
find that the Respondents acted reasonably in treat-
ing the grievance as untimely.
We also note that the Respondents offered
Touchstone and Smith the same explanation for
their refusal to process the grievances indicating
the Respondents' impartial treatment of Smith's
grievance. Staff Officers (Delta Steamship), 277
NLRB 1137, 1150 (1985). Moreover, as there is no
claim of hostility, the fact that the Respondents
processed Johnson's grievance suggests the Re-
spondents' willingness to pursue Smith's and
Touchstone's grievances had they been timely
filed. Accordingly, we conclude that the Respond-
ents did not treat Smith's grievance in a perfuncto-
ry manner and we shall dismiss the complaint.
ORDER
The complaint is dismissed.
Linda Rabin and Pennie Millender, Esqs., for the General
Counsel
William M. Franz, Esq., of St. Louis, Missouri, for the
Respondent.
Gertrude Smith, of Detroit, Michigan, pro se.
DECISION
STATEMENT OF THE CASE
811
LOWELL GOERLICH, Administrative Law Judge. The
original charge in this case filed on June 12, 1987, by
Gertrude Smith, the Charging Party, was served on
Communications Workers of America on June 17, 1987,
by certified mail. A complaint and notice of hearing
naming Communications Workers of America, AFL-
CIO, and its Local 6320 as the Respondent was issued on
December 8, 1987. An amended charge filed February 5,
1988, was served on Communications Workers of Amer-
ica on February 8 and 9, 1988, on Communications
Workers of America, AFL-CIO, and its Local 6320 on
February 8, 1988, and on Local 4013, Communications
Workers of America on February 11, 1988, by certified
mail. An amended complaint and notice of hearing was
issued on May 27, 1988
The amended complaint alleges that the "Respondent
Union, by its agents, willfully, arbitrarily and perfuncto-
rily failed'to timely file with the employer and process
the grievances" of the Charging Party and Michael Al-
dridge in violation of Section 8(b)(1)(A) of the National
Labor Relations Act. Timely separate answers were filed
by Communications Workers of America, AFL-CIO
(Respondent International) and Communications Work-
ers of America, AFL-CIO, and its Local 6320 (Respond-
ent Local), denying that either had engaged in the unfair
labor practices alleged.
This matter. was heard on July 20, 1988. Each party
was afforded a full opportunity to be heard, to call, ex-
amine, and cross-examine witnesses, to argue orally on
the record, to submit proposed findings of fact and con-
clusions, and to file briefs All briefs have been carefully
considered.
On the entire record in this case' and from my obser-
vation of the witnesses and their demeanor, I make the
following2
FINDINGS OF FACT, CONCLUSIONS, AND REASONS
THEREFOR
I. BUSINESS OF THE EMPLOYER
AD/VENT Information Services, Inc., a subsidiary of
Southwestern Bell Publications, Inc. (AD/VENT or
Employer) is, and has been at all times material, a corpo-
ration duly organized under, and existing by virtue of,
the laws of the State of Missouri.
At all times material, AD/VENT has maintained an
office and place of business at 3600 Northwestern High-
'Respondent 's motion to strike a portion of the General Counsel's
Memorandum of Points and Authorities is denied
2 The facts found are based on the record as a whole and the observa-
tion of the witnesses The credibility resolutions have been derived from
a review of the entire testimonial record and exhibits , with due regard for
the logic of probability , the demeanor of the witnesses , and the teachings
of NLRB v Walton Mfg Co, 369 U S 404, 408 (1962) Regarding those
witnesses testifying in contradiction to the findings , their testimony has
been discredited either as having been in conflict with the testimony of
credible witnesses , or because it was in and of itself incredible and un-
worthy of belief All testimony has been reviewed and weighed in light
of the entire record No testimony has been pretermitted
812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
way, Suite 100, in Farmington Hills, Michigan , its Farm-
ington Hills place of business . AD/VENT maintains
other places of business in various States within the
United States of America . AD/VENT, is and has been
at all times material , engaged in the solicitation , sale, and
provision of telephone directory. advertising. The
AD/VENT Farmington Hills place of business located
in Farmington Hills, Michigan , is the only facility in-
volved in this proceeding.
During the year ending December 31, 1986, which
period is representative of its operations during all times
material , AD/VENT, in the course and conduct of its
business operations , had gross revenues from its business
operations in an amount exceeding $500,000, and pur-
chased goods and services valued in excess of $50,000,
which goods and services were transported and deliv-
ered , and/or provided to its AD/VENT Farmington
Hills place of business in Farmington Hills, Michigan, di-
rectly from suppliers and points located outside the State
of Michigan.
AD/VENT Information Services, Inc., a subsidiary of
Southwestern Bell Publications , Inc., is now, and has
been at all times material , an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent International and Respondent Local are,
and have been at all times material, labor organizations
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES INVOLVED
Delano Johnson, Gertrude Smith, Michael Aldridge,
and Joseph Touchstone were employed by AD/VENT
as account representatives engaged in soliciting advertis-
ers in Detroit, Michigan, for the silver pages, a telephone
directory tailored to senior citizens. All four employees
were discharged on December 12, 1986, for similar rea-
sons having to do with the charge that each had not
reached the quotas required for their jobs.
The employees worked under a contract between
Communications Workers of America and Southwestern
Bell Publications, Inc., dated October 26, 1986, and ex-
piring by its terms on October 27, 1989. The four em-
ployees named above were members of Respondent
Local.
The contract provided for a grievance procedure as
follows:
ARTICLE XX
GRIEVANCES
Section 1 . The Union3 shall be the exclusive rep-
resentative of all the employees in the Bargaining
Unit for the purposes of presenting to and discuss-
ing with the Company grievances of any and all
such employees arising from such employment; sub-
ject always , however , to the provisions of this
Agreement , the current Agreement of General Ap-
plication between the Union and the Company and
of any applicable law.
Section 2.
a. Any employee complaint (except those which
contemplate treatment or proceedings inconsistent
with the terms of a collective bargaining contract
or agreement then in effect including proposals for
the modification of, or addition to, any such con-
tract or agreement) which is reduced to writing and
delivered by a Union representative in accordance
with Section 2.b. following, within 45 days of the
action complained of shall be considered and han-
dled as a formal grievance.
b. The grievance procedure shall normally con-
sist of three successive steps. Notice of grievances
and appeals of decisions made at the first and
second steps shall be forwarded in accordance with
the following:
Step Number-Company Representative Desig-
nated to Receive Grievance
1-Division level management having superviso-
ry authority over the conditions or circumstances
which gave rise to the grievance . In the absence of
a Division level, the notice of the grievance shall be
forwarded to the District level manager having the
supervisory authority.)
Respondent Local, a local formed under the constitu-
tion of the Communications Workers of America , repre-
sented around 4000 employees and entertained jurisdic-
tion over AD/VENT account representatives through-
out the United States except for the State of Texas. Re-
spondent Local had about 30 to 35 members in the De-
troit area . ADVENT' ceased its operation in Detroit
on January 6, 1988 . All employees were laid off on May
6, 1988 , at AD/VENT Information in Detroit.
William R. Murphy was Respondent Local's executive
vice president with offices in St . Louis , Missouri, where
the Respondent Local was quartered.
Murphy described the procedure under the contract
for processing grievances as it applied to the Detroit em-
ployees of AD/VENT . Two stewards were assigned for
the Detroit employees , Allesia Daniels and Betsy Soma.
An employee's grievance was given to one of these stew-
ards and then forwarded to the chief steward in St.
Louis where it ended up in Murphy 's hands. As stated
by Murphy, "I would file the grievance on the yellow
form that I gave you and I would give that then to the
president of the local who would send the form . . .
letter requesting a meeting [with the Employer]." The
grievance was sent to Larry Furrow , the division level
manager in Chicago. Under the contract the grievance,
to remain a live grievance , must have been filed with the
division level manager within 45 days. For the above-
mentioned discharges the 45th day would have been Jan-
In the contract , Union refers to Communications Workers of Amer-
ica.
4 AD/VENT was a wholly owned subsidiary of Southwestern Bell
Publications, Inc
COMMUNICATIONS WORKERS LOCAL 6320 (AD/VENT)
iiary 26, 1988 According to Murphy, if an employee in-
sists, his grievance will be filed with the Employer.5
On the evening of December 12, 1987, dischargees
Smith, Touchstone, Johnson, and Stewart Daniels met at
the home of employee Shirley Wood where their dis-
charges were discussed for 6 hours. Daniels "mentioned"
that the employees "should grieve and that she would
accept the grievances if [they] wanted to file." The pro-
cedure for grieving was also discussed.
Daniels telephoned Murphy on December 12, 1987,
and advised him of the four discharges. Murphy told
Daniels "to take all grievances on the matter." Daniels
had taken notes during the discharge sessions that she
had attended. Daniels forwarded these notes to Murphy.
Murphy received a grievance for Johnson that was filed
with the Employer on December 30, 1986. A grievance
hearing was held on January 9, 1987, and resumed on
January 21, 1987, at which time the grievance was re-
solved. Johnson was reinstated with no backpay and re-
turned to work on January 26, 1987.
Murphy received no grievance forms from Smith, El-
dredge, or Touchstone. Johnson's grievance was the only
grievance Murphy ever presented to the Employer.
Murphy "never personally informed Ms Smith or Mr.
Aldridge that his or her grievance had no merit."
A. Aldridge's Claim Against Respondent Local
According to Aldridge, immediately after he was dis-
charged on December 12, 1986,6 he told Daniels that he
desired to file a grievance over his discharge. Daniels
gave him a grievance form and her home address with
instructions to fill out the form and send it to her, where-
upon she would mail it to St. Louis.7
Aldridge testified that he filled out the grievance form
within the next 2 days and placed it in an envelope ad-
dressed to Daniels and dropped it in a mailbox. Aldridge
made no copy of the grievance. Some time prior to Janu-
ary 1, 1987, Aldridge reached Daniels by phone. He
asked her whether she had receive this grievance, to
which she answered, "No." In the last week of Decem-
ber 1986, or the first week of January 1987, Aldridge
went to the Employer's office at Farmington Hills for
the purpose of cleaning "some stuff" out of his desk and
,,some accounts that some other representatives were
working on that I was going to brief them on it." Ac-
cording to Aldridge, he obtained a grievance form from
Betsy Soma and "[w]rote out a brief grievance." Al-
dridge made no copy. Aldridge approached Daniels,
who was at her desk talking on the phone. Aldridge
opened her desk drawer, "laid the grievance paper in the
drawer, and said, `Here is my grievance. Please take care
of it' in a very low tone of voice because. Mr. Ray was
sitting in the next office." Daniels replied, "I'll take care
of it." Later Aldridge called Daniels several times and
5 Murphy testified, "if the grievant, the employee, wants a grievance to
be filed, it wasn't settled, the person really wants it to be filed, it would
be filed at the first step "
6 At Aldridge's request Stewarts Daniels and Soma were present at his
discharge
' Aldridge testified, "at that time she gave me her address so I could
send her the grievance form because I wanted to take the time to think
everything through to put it on paper "
813
asked her whether she had heard anything from St.
Louis.
Aldridge's affidavit read:
After my termination, I received a-form and filed a
grievance with my steward, Buckingham. I filed it
within two weeks of my termination Buckingham
apparently lost the first one and within days, I filed
an identical grievance. . . . She said she lost the
first one.
Daniels testified that she had talked to Aldridge prior
to the first of the year and advised him what he needed
to do to file a grievance Aldridge advised Daniels that
he should send the grievance to her home. Daniels re-
ceived nothing from him.
Testifying further, Daniels denied that Aldridge had
slipped a grievance form in her desk drawer or had been
present at her desk as claimed by Aldridge.
Here is testimony of two witnesses that is contradicto-
ry. Thus, I must decide whether to believe Smith or Al-
dridge. I discredit Aldridge because of his demeanor (he
was not a straightforward witness), his story that he
slipped his grievance in Smith's desk drawer seems an
implausible event under the circumstances, and there are
certain inconsistencies in his testimony.
Hence, the claim based on the Union's failure to proc-
ess Aldridge's grievance is dismissed.
B. Smith's Claim Against Respondent Local
Smith, who was discharged on December 12, 1986, ob-
tained a grievance form while at the meeting in the home
of employee Woods. According to Smith, she completed
the form on January 19, 1987, made a xerox copy of the
original, and delivered it to Daniels at her home. Daniels
told Smith that "according to ... [the] reps in St. Louis,
it was not in a timely fashion, because . . . it was being
handled locally and it was past the 30 day filing period."
Daniels testified that the next time she saw Smith,
after the meeting at employee Wood's home, was on Jan-
uary 26, 1987, between 5 and 6 p.m., at Daniel's home.
Smith wanted to file her grievance, but Daniels said,
"Smith, I had learned earlier when the same situation of
Joe Touchstone occurred that even though this was the
45th day, it's too late for the Company to respond to it."
(Emphasis added.) Smith later, after prompting, changed
it to "receive" the grievance. Daniel had contacted
Murphy about Touchstone 's grievance . Touchstone had
presented his grievance to Daniels on January 26, 1987.
Murphy had also told Daniels that the grievance would
now be handled locally by Communications Workers
Local 4009, in Southfield.
The contract between the employee and the Union
provided that: "any employee complaint ... which is
reduced to writing and delivered" to the division level
manager within 45 days of the action complained of,
"shall be considered and handled as a formal grievance."
Thus, if Smith's grievance had been delivered to Larry
Furro, the division level manager, in Chicago, Illinois,
on January 26, 1986, the 45th day, it would have contin-
ued to have been a live grievance. Murphy ruled Touch-
stone's grievance that was given to the steward on the
814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
45th day was too late. Such ruling does not conform
with the provisions of the contract, for the contract
holds that the grievance is too late only if it is not in the
hands of the division level manager on the 45th day.
Thus, if Touchstone's or Smith's grievance had been de-
livered to the division level manager on January 26,
1987, it would have been on time Moreover, the con-
tract does not provide information concerning how, or in
what form, or by what vehicle (except that the grievance
be written), the complaint is to be delivered to the divi-
sion level manager Hence, the complaint could have
been delivered by telegraph or by some other mode, that
could no doubt have put it in Chicago by midnight, Jan-
uary 26, 1987. The Respondent Local offered no expla-
nation regarding why it did not attempt a delivery of
either Touchstone's or Smith's grievance, except that it
was received by the Union too late. Murphy, who al-
ready had knowledge of the nature of the grievance, was
lax in his duty in not at least exhausting the probabilities
that the complainant's grievance might have been deliv-
ered on time. He ruled it too late before he investigated
whether the complaint could have been kept alive.
Moreover, in that Johnson's grievance proved to be well
taken, it was reasonable for him to have believed that
Touchstone's grievance had arguable validity. Because
Smith's grievance was perfunctorily treated in the same
manner as the grievance of Touchstone, except that it
was the steward who scotched it based on Murphy's per-
functory ruling, lack of appropriate fair representation
seems obvious. Murphy's failure to process Touchstone's
grievance or to even put forth a good-faith effort to get
it to the Employer, which carried over to Smith's griev-
ance, constituted a willful and perfunctory manner for
processing the grievance and was an arbitrary failure or
refusal to process Smith's grievance.
Since our Miranda Fuel decision, we have consist-
ently found that a union's arbitrary failure or refusal
to process an employee's grievance, or a union's
processing of a grievance in a perfunctory manner,
violates the union's duty of fair representation and
Section 8(b)(1)(A). [Rubber Workers Local 250
(Mack-Wayne), 290 NLRB 817 at 818 (1988) ]
Accordingly, the Respondent Local and the Respond-
ent International" violated Section 8(b)(1)(A).
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Respondents are labor organizations within the
meaning of Section 2(5) of the Act.
8 Respondent International filed a Motion for Summary Judgment,
which motion "primarily was premised on the fact that the Respondent
International had nothing whatever to do with this case " (R Memoran-
dum Br p 4) Because the International Union was the contacting party
and statutory agent , with the primary responsibility to process grievances
under the contractual grievance procedure, it cannot be permitted to
shirk that responsibility by hiding behind a local that fails to meet the
demands of Sec 8(b)(1)(A) of the Act Respondent International ' s motion
is denied
3. By treating Smith's grievance in a perfunctory
manner and by arbitrarily falling to process Smith's
grievances on January 26, 1986, Respondent breached its
duty of fair representation and thereby restrained and co-
erced Smith in the exercise of rights guaranteed by Sec-
tion 7 of the Act and thereby violated Section 8(b)(1)(A)
of the Act
4 The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondents have engaged in unfair
labor practices within the meaning of Section 8(b)(1)(A)
of the Act, I will recommend that they be ordered to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act
Because it appears that Respondents have not elected
to present evidence on the merits of the grievance in any
event, and the General Counsel has sustained her burden
of proof, I recommend the Board's remedy as set out in
Rubber Workers Local 250, 279 NLRB 1074 (1986), and
290 NLRB 817 (1988) 9
[Recommended Order omitted from publication.]
9 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U S C § 6621), shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
Linda Rabin and Pennie Millender, Esq., for the General
Counsel.
William M. Franz, Esq., of St. Louis, Missouri, for the
Respondent.
Gertrude Smith, of Detroit, Michigan, pro se.
SUPPLEMENTAL DECISION
Lowell Goerlich, Administrative Law Judge. This
matter' is before me on Order Remanding Proceeding to
the administrative law judge in that the "judge mischar-
acterized Smith's testimony when the judge stated that
Smith testified that Daniels told Smith of the untimeli-
ness of Smith's grievances on January 19," and for the
purpose of "explicitly" determining the credibility of
Charging Party Gertrude Smith and Union Stewart Alle-
sta Daniels in respect to whether Smith submitted a
grievance to Daniels on January 19, 1987.
Smith testified that she filled out and signed a griev-
ance on January 19, 1987, which she delivered to Dan-
iels' home on the same date. According to Smith, Dan-
iels' "reviewed it" and "mentioned that she would see
what she could do."
Smith further testified that "[a]pproximate[ly] a week
afterwards," she conversed with Daniels by phone
' My original decision issued on September 28, 1988 (JD-219-88) The
Board's remand Order issued on January 12, 1989 (not reported in the
Board volume)
COMMUNICATIONS WORKERS LOCAL 6320 (AD/VENT)
to see exactly what the status of the grievance had
reached, and she mentioned to me at that date that
according to, again , her conversations with reps in
St. Louis, it was not in a timely fashion , because
then the-it was being handled locally and it was
past the 30 day filing period And I asked her if that
was the extent of it , had she talked to St. Louis, and
she mentioned yes. That was the words she had
gotten back from St. Louis
After this conversation , according to Smith , she did
not contact Daniels again nor any other representative of
the Union.
On the other hand Daniels testified that the next time
she talked with Smith after December 12, 1986 (the date
on which Smith was discharged and the date on which
Daniels met with Smith and other discharges in respect
to the filing of grievances) was on January 26, 1987, at
which time Smith presented a grievance to her . Accord-
ing to Daniels she told Smith , that she "had learned from
Joe Touchstone 's narrative of the same date that it was
too late to send this to the Company . . [B]ecause it
was the 45th day." Daniels further testified that she said
to Smith , "Smith, I had learned earlier when the sme sit-
uation of Joe Touchstone occurred that even though this
was the 45th day, it's too late for the Company to re-
spond to it "
815
According to Daniels she also exxplained to Smith
that
Bill Murphy had explained that on that date that I
talked to him on January 26th that we would now
be handled locally by CWA local in Southfield. I
gave Smith the same information that I gave Joe
Touchstone earlier that day, that this was 4009 in
Southfield.
It is obvious that the testimony of Smith and Daniels is
contradictory . I credit Daniels' testimony2 and find that
Smith presented her grievance to Daniels not before Jan-
uary 26, 1987, and that she did not present her grievance
to Daniels on January 19, 1987 3
Accordingly , I adopt and incorporate herein my find-
ings of fact , conclusion , and reasons therefor4 and my
Conclusions of Law, remedy, recommended Order, and
notice set forth in my decision in this matter.
2 At the time I wrote my decision in this case , as between Smith and
Daniels , I was convinced that Daniels was the truthful witness , however,
it was my opinion at the time that a finding in this regard would have
served no useful purpose in view of the findings and recommendations
contained in my decision
3 It is of significance tht Delano Johnson, who was dicharged for the
same cause as Smith , was reinstated on January 26, 1987 , his grievance
having been resolved on January 21, 1987
4 As extended herein