E. L. Mustee & Sons, Inc.

National Labor Relations Board - Board Decisions

Dec 3, 1974

215 N.L.R.B. 203 (N.L.R.B. 1974)

E. L.- MUSTEE & SONS, INC 203
E. L. Mustee & Sons , Inc. and Jerry Wayne Williams
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Teamsters,
Local Union 507 and Jerry Wayne Williams.,
Cases 8-CA-8168 and 8-CB-2297
December 3, 1974
DECISION AND ORDER'
By CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On July 23, 1974, Administrative Law Judge George
J. Bott issued the attached Decision in this proceeding.
Thereafter, Respondent Union filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings,' and
conclusions2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Teamsters Local, 507,,herein called
Union or Respondent-Union, the General Counsel of the
National Labor Relations Board issued complaints against
said Respondents on March 29,'1974, alleging that they
had engaged in unfair labor -practices in violation of the
National Labor Relations Act, as amended, herein called
the Act. Respondent filed answers denying the commis-
sion of any unfair labor practices. Pursuant to an order
consolidating cases and a notice of hearing, a hearing was
held before me, in Cleveland, Ohio, on May 8 and 9,
1974, at which all parties were represented: Subsequent
to the hearing, General Counsel, the Company and the
Union filed briefs which have been considered.
Upon the entire record in the case and from my observa-
tion of the witnesses, I make the following:'
FINDINGS OF FACT
I JURISDICTION OF THE BOARD
The Company is engaged in the manufacture of shower
stalls and laundry trays in Cleveland, Ohio. In the course of
its business operations, the Company each year receives pro-
ducts valued in excess of $50,000 at its Cleveland, Ohio,
facilities, directly from points located outside the State of
Ohio.
The parties concede, and I find, that Respondent-
Employer is an employer engaged in commerce within the
meaning of the Act.
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the Respondents, E. L. Mustee & Sons, Inc., Cleveland,
Ohio, its officers, agents, successors, and assigns, and
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Teamsters
Local Union 507, Cleveland, Ohio, its officers, agents,
and representatives, shall take the action set forth in the
said recommended Order.
1 Respondent Union has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibil-
ity unless the clcar preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (CA 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2 In several instances in his Decision, the Administrative Law Judge
speaks of Sec 8(b)(1)(B) of the Act In each instance, he clearly means Sec
8(b)(1)(A), and we hereby correct his inadvertent and nonprejudicial error
DECISION
STATEMENT OF THE CASE
GEORGE J. BOTT, Administrative Law Judge: Upon charges
of unfair labor practices filed by Jerry Wayne Williams on
February 8, 1974, against E. L. Mustee & Sons, Inc., herein
called Company or Respondent-Employer, and International
II THE LABOR ORGANIZATION INVOLVED
Respondent-Union is a labor organization within the
meaning of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Respondent-Employer's Alleged Violations of
Section 8(a)(3) and (1) of the Act
1. The facts
The Company and the Union are parties to a collective-
bargaining contract dated November 13, 1971, and expiring
October 31, 1974, covering the Company's Cleveland, Ohio,
facilities, which, inter alia, established wage rates for various
classifications of employees, with yearly increments of 40
cents per hour effective on the anniversary date of the agree-
ment.
At the time the pertinent events in this case took place,
Jerry Williams was the union steward at the Company's Junc-
tion Road warehouse.' On November 13, 1973, which was
the day that all employees were due to receive a wage increase
of 40 cents an hour under the terms of the collective-bargain-
ing contract, Roy Mustee, supervisor at the Junction Road
plant, told Williams and others that there would be a meeting
' General Counsel's unopposed motion to correct the transcript is hereby
granted
2 Approximately 25 persons were employed at Junction Road at the time
Respondent has another facility at Loraine Avenue, Cleveland, Ohio,
known as the Loraine plant, where approximately 50 employees work
215 NLRB No. 35
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of all employees that day at the Company's main plant on
Loraine Road.
After the employees assembled at the main plant, they were
addressed by John Trunzo, one of Respondent-Union's busi-
ness agents, who was accompanied by two other business
agents. According to the credited testimony of Williams,
Trunzo advised the employees that the Company was in fi-
nancial trouble and could not afford to pay the scheduled
increase. Trunzo then stated that the purpose of the meeting
was to take a vote on whether or not to accept a cut in the
amount due them. According to the credited testimony of
employee Shaw, who was corroborated by employee Cole-
grove, Trunzo informed the employees that the Company
desired a 25-cent reduction in the upcoming increase, but the
Union had agreed to a 20-cent reduction, and that was what
he recommended.
Before the vote was taken, Williams spoke against taking
a cut. He questioned whether the Company was actually
unable to afford an increase, and he asked why the Com-
pany's attorneys were not present as they were the previous
year.' Trunzo replied that lawyers were unnecessary be-
cause the Company was in financial trouble according to
their records and there was no need to check the Company's
records.' Williams responded that the employees would be
willing to hire their own attorney to check the Company's
claim, but Trunzo commented that the Company would have
to lay off a substantial number of employees on the following
Monday if it had to pay the full increase.
A discussion followed about the method of voting. A
standing vote was taken and the employees voted unani-
mously not to accept a reduced increase. Later that day, the
Company posted a notice announcing a layoff of approxi-
mately 45 employees.
Subsequent to the meeting and prior to-the announcement
of the layoff, Williams initiated and circulated a petition
which the Junction Road employees signed in the appropriate
column to show whether or not they were willing to take a
cut All but two of them indicated opposition to it. It was
Williams' intention to have this document circulated at the
main plant and to present it to an attorney for his advice. He
testified without contradiction that Supervisor Mustee was
nearby when the petition was being signed. He also testified
without contradiction that when he returned to the Junction
Road plant after the vote, Roy Mustee asked him how the
vote turned out, and he replied, "We won."
On Friday, November 16, 1973, Roy Mustee informed the
Junciton Road employees that another meeting would be held
at the main plant that day. At this meeting, Trunzo again,
accompanied by two other business agents, presided and in-
formed the employees that there would be another vote be-
cause the Company was in dire financial straits and would
have to lay off numerous employees if they did not vote to
accept a cut. According to the credited testimony of
Williams,' he again protested taking a vote, this time point-
ing out that the employees had already turned the proposition
down and indicating that a second vote was "illegal." He said
' When a similar vote was taken a year earlier, the employees voted to
accept less than the contract provided
A It was never made clear who made these representations to the Union
or on what facts and records they were based
5 Basically corroborated by employees Shaw and Colegrove.
Trunzo replied that the vote would nevertheless be taken.
Trunzo asked the stewards to supervise the vote and sug-
gested how it be conducted. Williams opposed the proposal,
indicating that it might be vulnerable to ballot box stuffing.
With the support of the employees, he demanded that the
ballots be dropped into a hat in view of all the employees, and
this method was adopted.
Before the actual balloting took place, Williams continued
to argue with Trunzo, insisting that the Company's books
should be inspected by an attorney, but Trunzo stated that it
was the Union's responsibility to represent the employees and
they did not need a lawyer. He reiterated that Respondent
had financial problems and that a layoff was imminent if a cut
were rejected. William asked Trunzo if the Union's bylaws
did not cover the situation the employees were confronted
with. He said Trunzo replied that bylaws had nothing to do
with the case and that he got his orders from his "boss."
According to Williams' uncontradicted testimony, he asked
the same question of another business agent who became
"bitter" and began "yelling." Before the discussions ended
and the balloting began, Williams announced that he did not
care if it cost him his job, but he was still against taking a cut.
The exchanges between Trunzo and Williams were "heated,"
according to employee Shaw, and at one point Trunzo told
Williams that "you'll get in trouble" according to employee
Colegrove. Williams also testified that Trunzo was "angry"
and told him that if he did not "shut up," he would be in
"trouble." Trunzo could not remember making such a re-
mark and was inclined to deny it, although he conceded that
he may have told Williams to shut up because he was
monopolizing the debate. Although the "get in trouble" re-
mark does not appear in Williams' affidavit given the Board
during the investigation of the case, I credit his and Cole-
grove's versions
The vote was taken and this time the employees voted to
accept the cut. I credit Williams' uncontradicted testimony
that after the results were announced he continued to protest
to Trunzo and the other business agents present that the
second vote was unfair. When Williams returned to the Junc-
tion Road Plant, Supervisor Mustee asked him what the re-
sult was, and he replied, "We lost."
Williams testified that on or about December 5, 1973, he
was approached in the plant by Supervisor Roy Mustee who
started a conversation by commenting that he had heard that
Williams was going to retire. Williams said he was taken by
surprise by the question and asked Mustee what he meant.
According to him, Mustee stated that the Company did not
"want people working for [it] that make waves and you make
waves." Williams testified further that Mustee then walked
him to another area of the plant while continuing to talk
about retirement. During the conversation, according to Wil-
liams, Mustee told him that if he did not resign, things could
"get rough" for him and Mustee could assign him dirty and
difficult jobs. According to Williams, the jobs which Mustee
then proceeded to list as examples were tasks that he did not
normally perform. Williams also testified that Mustee told
him that Robert Mustee, the Company's vice president in
charge of production, had told him "to get" Williams no
matter "how long it takes . ..." Williams refused to quit,
he said, and asked Roy Mustee for a few days to consider the
matter, and Mustee agreed.
E. L. MUSTEE & SONS, INC.
On December 6, after consulting an attorney, Williams
wrote to the Union and stated that because of his "status as
a shop steward, and because [he] opposed the cut in . .
pay," Roy Mustee had demanded his resignation and threat-
ened to harass him until he did. He never received a reply to
his communication.
On December 7, when Williams returned to work, Roy
Mustee asked him for his resignation, but it was not forth-
coming. When Mustee adked him if he ever intended to re-
sign, Williams said he might at some future date. He said that
Mustee indicated that he would give him a few more days to
make up his mind, but that he never gave Mustee the response
that he wanted, and shortly after Mustee's last request, Mus-
tee assigned him to the dirty job of cleaning dock plates, a job
he had never previously done.
On January 7, 1974, a box fell on Williams and injured him
slightly. I credit this testimony, which was corroborated by
employee Shaw, that Roy Mustee learned of this incident. I
also credit Williams' testimony that because of the injury he
stayed at-home on January 8, but had his wife telephone Roy
Mustee at the plant and explain to him why he was off
work.'
Upon reporting for work on January 9, 1974 , Williams was
discharged by Roy Mustee. During the course of their con-
versation about the discharge, Williams said that Mustee told
him that he must have known that he was "going to be fired
sooner or later for [his] activities." Williams said Roy Mustee
added that if he wanted to do anything about it, he would
have to talk to Robert Mustee.
Williams filed a grievance over his discharge, which states
in part that his discharge was for "too much time off," and
which refers to his absence on January 7 because of an injury.
He also telephoned Robert Mustee and asked him why he had
been fired He said that Mustee at first informed him that the
reason was because of too much time off, but that during the
conversation, Mustee told him that "we could hear every-
thing that you were saying that day in the office, and you got
the Union pretty mad at you." According to Williams, Mus-
tee went on to explain that, "We don't want people making
waves around here. We want people for the Company._ Be-
sides, you wrote up a grievance and any time somebody writes
up a grievance, we get rid of them. The Union may stick up
for you once, but not twice, and that's when we get them."
Williams said he asked Mustee to rehire him but that Mus-
tee said he would have to talk with Roy Mustee first and for
Williams to call back. Williams telephoned Mustee again on
the next day, but Mustee told him that he would not be
rehired.
Supervisor Roy Mustee denied that he had told Williams
that he "made waves," that the Company did not want per-
sons "who make waves," or that Robert Mustee told him "to
get" him no matter how long it took. He also denied threaten-
ing him in any way or reprimanding him for anything other
than absenteeism. With respect to conversations about Wil-
liams' quitting, he said he had had "friendly" conversations
with Williams over a long period of time because Williams
had told him on a number of different occasions that he was
thinking about going into business or joining the armed ser-
vices. This uncertainty on Williams' part, he said, cause him
6 Mrs Williams testified credibly that she made the call
205
to inquire about his plans occasionally, because he had to
know ahead of time whether he would need a replacement for
him. Roy Mustee also denied that Mrs. Williams telephoned
him on January 8 and told him that her husband would not
report that day. According to him, he had reprimanded Wil-
liams earlier for absenteeism , and on January 8, in a conversa-
tion with Robert Mustee, he commented that Williams was
absent again . He said Robert Mustee directed him to termi-
nate Williams.
Robert Mustee testified that Williams had a long record of
absences, which he was aware of, and that he had previously
decided to terminate him and had so advised the Union, but
he was persuaded to change his mind by the intervention of
Trunzo, the Union' s business agent . On January 8, Williams
was absent again Roy Mustee commented on Williams'
absence-something that he had already observed from com-
pany absentee reports-and so he told Roy to terminate Wil-
liams. He admitted that Williams telephoned him more than
once after his discharge and talked with him, but he said he
told Williams that he had been fired for taking too much time
off, and he denied that he threatened him.
I do not credit Roy and Robert Mustee in regard to the
various threats or other remarks that Williams attributed to
them. Roy Mustee's version of how he might have mentioned
retirement to Williams in late 1973, or at some other indefi-
nite time, appeared contrived and a convenient explanation
for pressing Williams for his resignation not long after Wil-
liams had opposed the proposed reduction in the scheduled
wage increase. He also appeared not to be fully recounting his
contacts or conversations with Williams, and I was particu-
larly unimpressed by his weak denial of Mrs. Williams' tes-
timony about her telephone call to him. I have, on the other
hand, carefully considered Williams' testimony and his de-
meanor, as I recall it, as well as the contentions of respond-
ents and the matters they have brought to my attention as
bearing on his credibility, and I conclude that those defects
are relatively insignificant.' I credit Williams over Roy
Mustee, and I find that the latter told Williams on December
5, 1973, that he "made waves" and the Company disapproved
of it;' asked for his resignation and threatened him with re-
prisals if he did not submit it; and told him that Robert
Mustee had instructed him to get him no matter how long it
took. I also find that Roy Mustee told Williams when he fired
him on January 9, 1974, that he should have known it was
coming because of his prior "activities."'
' For example, the testimony in regard to the noise level at the point
where Williams and Roy Mustee started their December 5 conversation was
unclear, somewhat inconsistent and unpersuasive in addition, Williams,
like most witnesses, was inclined at times to remember the strong points in
his case more quickly than he recalled the weaker ones, but, in my opinion,
this does not materially affect his credibility Other items, such, as discre-
pancies in time, distance, or location, such as in Williams' and Shaw's
versions of where they were when Roy Mustee opened the December 5
conversation with Williams, are the normalt inconsistencies found in the
testimony of witnesses who observe the same scene
8 Williams is corroborated in this instance by employee Shaw
' Although I am inclined in the direction of finding that Roy Mustee
assigned Williams the dirty work of cleaning the dock plates after their
conversations about Williams ' resigning in order to show him that he meant
business, I find it unnecessary to resolve this question or the issue of whether
or not Williams was, contrary to past practice, assigned a variety of jobs after
he refused to resign, because I am convinced that Williams honestly believed
that he was being harassed in this area because of his position on the wage
increase, and also because I am unpersuaded by anything in the record to
(Continued)
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robert Mustee's testimony about his conversations with
Williams after his discharge is generally sketchy and impre-
cise, and it is•practically incomprehensible in regard to what
Williams or he said about the filing of grievances. Mustee was
also inclined to ramble in his testimony and to tend to evade
direct questions. He also appeared confused and somewhat
embarrassed. Although Williams' account of Mustee's de-
tailed revelation during their talk of what really motivated
him to discharge Williams might seem at first glance a reck-
less and, therefore, an unlikely confession for a sophisticated
executive to make when questioned about it by the employee
involved, my observation of Mustee as a witness has led me
to believe that he is not experienced in these matters and
could very well have unburdened himself to Williams. I credit
Williams' version of their conversations.
With respect to absenteeism on which Respondent-
Employer relies as an explanation for Williams' discharge,
the record shows as follows: Williams was absent 27 times
from January 1, 1973, through January 8, 1974. On Septem-
ber 20, 1973, Supervisor Roy Mustee gave him a written
warning for taking too much time off, and, on December 7,
1973, after Williams had been absent on other occasions, he
repeated the warning.
On December 10 the Company wrote to the Union stating
that it contemplated discharging Williams for absenteeism.
According to the uncontradicted testimony of Robert and
Roy Mustee and Union Business Agent Trunzo, Trunzo tele-
phoned the Company and insisted that it not fire Williams.
Robert Mustee agreed not to go forward with the discharge.
In 1973 seven employees, including Williams, who had
poor attendance records were fired by the Company. The
record also shows, however, as will appear in greater detail
below, that in each of the six other cases the employee was
fired for a combination of circumstances, including absences
in prior years, short term employment and other factors. An
exhibit in evidence shows that no person presently employed
by the Company had more unexcused absences than Williams
in 1973.
Robert Mustee testified that the Company attempts to hold
the number of unexcused absences an employee may incur
without discharge to 20 per year, but he also described the
policy as flexible. Mustee also indicated that an employee
who missed more than 20 days in any year was subject to
discharge and that absences may be carried over to.the next
year However,' as will be discussed below, the examples he
gave of carryovers were in the cases of new employees hired
in the middle of a year, and Roy Mustee, Williams' supervi-
sor, contradicted him by testifying that in the case of an
employee who had beeh employed for more than a year, the
slate is normally wiped clean of absences at the end of the
calendar year.
As found earlier, Williams was discharged on January 9,
1974, after having been at home on January 8 because he
injured his back on the job on January 7. Respondent-
Employer knew of the injury and the reason for the absence.
the contrary, and there is very little, that a reasonable man would not also
have believed as Williams did
2.. Analysis, additional findings and conclusions in
Williams' case
Shop Steward Williams engaged in union and other pro-
tected concerted activities by opposing the reduction in the
scheduled pay increases provided for in the collective-bar-
gaining contract and by vigorously taking a position on that
and other subjects contrary to the Union's business agents at
the November 16, 1973, meeting.
The issue of the reduction in the upcoming pay raise was
important to the Company, and it disapproved of and re-
sented Williams' leading of the opposition to the cut and told
him so. I have found, for example, that Roy Mustee accused
him of "making waves" and sought to force him to quit not
long after the November 16, 1973, meeting, and then told him
after his discharge that he must have known that he was
going to be fired at some time because of his activities. In
addition, when he subsequently spoke with Robert Mustee,
Williams was reminded of the November 16, 1973, meeting,
and his heated opposition to the Union's recommendation to
take a wage cut, which Mustee described as "making waves,"
and he was then told that his filing of a grievance about Roy
Mustee's treatment of him was another reason to get rid of
him. On the basis of these clear admissions of Respondent's
real motivation in discharging Williams, a finding of a viola-
tion of the Act is practically compelled unless Respondent-
Employer has introduced persuasive evidence of valid busi-
ness considerations sufficient to overcome the General
Counsel's case. I find that it has not and that its reliance of
Williams' record of absenteeism is pretextual in order to con-
ceal the real reason for his discharge.
Respondent, contending that six persons were fired for
absenteeism in 1973, relies heavily on these discharges in an
attempt to demonstrate that it treated Williams evenhand-
edly. Robert Mustee conceded, however, that in each of the
cases in question, the number of absences in 1973 was not the
sole reason for the discharge.
In the case of Elsie Brown, who was absent on 70 days in
1972 and 38 days in 1973, Mustee admitted that the fact that
she lied about when her doctor would permit her to return
to work was a contributing factor in the decision to fire her.
Mustee agreed that it was the combination of 2 years'
absences that resulted in Cynthia Edward's discharge in Au-
gust 1973, after 19 absences in 1973. Edwards was absent 28
days in 1972, but there is no letter to the Union in her file
indicating that Respondent intended to discharge her.
In Robert Henry's case, his file shows that he was absent
26 days in 8 months of'employment in 1972 without dis-
charge, and in the first 5 months of 1973, he was absent for
43 days, but 29 were excused. The Union grieved Henry's
discharge, and in a reply to the grievance, Mustee set out the
employee's 12-year absenteeism record "over such a short
period of time" as well as his record of "poor cooperation,"
and on cross-examination he conceded that it was this combi-
nation of factors that caused the Company to fire him.
Jesse Landers and Lawrence Muldrew were short-term
employees who were employed for 4 months and 11 months
respectively and who accumulated absences of 14 and 30
E L. MUSTEE & SONS, INC.
days , respectively . " Mustee clearly indicated that their re-
cords of absences , considered in the light of their short-term
employment , was the reason they were discharged.
Employee Hazel Boggs Stiffler was absent on 28 days in
1973 and was discharged , but Mustee admitted that in her
case , too, it "was a combination of factors . . . over and
above the sheer volume of her absences" that caused her
discharge . Her file also shows that she was rehired after her
discharge in 1973.
Company records also show that employee Wagner, who
had 23 absences in 1973 , plus 63 excused absences because of
an injury , is still employed , even though Mustee admitted
that he has engaged in serious infractions of company policy,
such as, refusing to work a job , disregarding safety rules,
insubordination , leaving his job without permission, and
fighting with another employee.
It appears from the above analysis that there is no compnay
rule that 20 unexcused absences result in an employee's dis-
charge , nor are absences in 1 year necessarily carried over
into the next , as Robert Mustee indicated . The policy is "flex-
ible," as he described it, and liberal . It is clear that length of
tenure, number of absences over a number of years and other
factors are considered before the decision to terminate an
employee is made . If an employee is otherwise satisfactory,
it appears , as Roy Mustee testified , that his absences in 1 year
are forgiven at the commencement of the next . Moreover,
discharge for absenteeiim is no bar to reinstatement.
On the basis of this summary of employment policy, it
appears that Williams' case is not like the cases of the six
other employees fired in 1973 . He was not a short -term em-
ployee , since he had been employed for almost 3 years, and
there is, in any case , no evidence that his absences in previous
years were abnormal . In addition , he was discharged after
only 1 day of absence in 1974, and this despite his being off
because of an injury suffered on the job . Moreover , he applied
for rehire and was refused , although another employee had
been rehired under no more unfavorable conditions . Finally,
the record shows nothing of any significance indicating that
Williams was not otherwise a satisfactory employee, but
another employee who had a record of absences as bad as his
was kept , despite his poor attitude , but Williams was fired.
I can readily believe, as Robert Mustee stated in the cases of
the other employees fired in 1973, that other circumstances,
not merely the number of days off in a given time , determine
whether or not an employee is terminated , and since the
principal circumstance which distinguishes Williams from all
other employees , past or present , was his militant opposition
to a reduction in a scheduled pay increase , I conclude that
such circumstance is a more reasonable explanation for his
termination than his 27 absences.
I conclude that Respondent -Employer was substantially
motivated to discharge Williams because of his union and
other protected concerted activities . By such conduct, Re-
spondent-Employer violated Section 8 (a)(3) and ( 1) of the
Act."
I also conclude that Respondent-Employer violated Sec-
10 Mustee admived that Co Exh 6 showing 27 absences for Muldrew was
inaccurate
11 Bunney Bros Construction Company, 139 NLRB 1516 (1962), New
York Trap Rock Corporation , 148 NLRB 374 (1964 ), Interboro Contrac-
tors, Inc, 157 NLRB 1295, enfd 388 F 2d 495 (CA 2, 1967)
207
tion 8(a)(1) of the Act by Roy Mustee 's threat to Williams to
engage in reprisals against him until he quit , and by Robert
Mustee 's statement to him that the Company gets rid of
employees who file grievances against it.
B. The Union 's Alleged Violation of Section 8(b)(1)(B) of
the Act
1. The facts
The complaint alleges that Respondent -Union violated
Section 8(b)(1)(B) of the Act when Business Agent Trunzo
threatened Williams at the November 16, 1973 , meeting with
"trouble" if he did not cease his opposition to the Union's
position on a reduction in the upcoming wage increase prov-
ided for the collective -bargaining contract , and by refusing to
process his grievance concerning his discharge.
I have found in greater detail about that during a heated
exchange between Williams and Trunzo at the November 16
meeting , in which Williams vigorously questioned taking
another vote on the issue of accepting less of an increase in
wages than due under the contract , Trunzo angrily told Wil-
liams to shut up or he would be in trouble . I have also found
that although Williams wrote a letter to the Union about Roy
Mustee 's insistence on his resignation and threat to harass
him until he did , he never heard from the Union thereafter
about the matter.
On January 9, 1974, the Company discharged Williams,
allegedly for absenteeism , a claim which I have found to be
pretextual , and he immediately filed a grievance in which he
noted that he had been off work the day before his discharge
because of an accident on the job. No one from the Union got
in touch with Williams to investigate this claim , which I have
found to be valid. As a matter of fact , no one from the Union
made any effort to talk with Williams after his discharge in
order to get his version of the events preceding and following
his discharge , which I have described in great detail earlier.
The grievance arbitration procedure set out in the contract
between the parties provides for a meeting of Company and
Union representatives to discuss a grievance and attempt to
settle it . If the grievance is not resolved , the next step is
arbitration , but the Union 's executive board has full authority
to decide whether to process a grievance further at any stage
in the procedure , "if, after a reasonable and fair exercise of
the Board 's judgment , it is concluded ... " that it lacks
merit . 12 The Union did not meet with the Company on Wil-
liams' grievance and the Union's executive board was not
presented with the grievance . Not only was Williams not
contacted for evidence as part of an investigation of the merits
of his case, but he was never notified of the Union 's decision
to close the case as being without merit.
Union Business Agent Trunzo testified that having re-
ceived a letter from Williams in early December 1973, stating
that Roy Mustee had demanded his resignation because he
opposed the pay cut and had threatened to harass him until
he quit, he telephoned Mustee and told him that he did not
know the true facts, but if he was harassing Williams he ought
to stop.' 3
12 Article XIV, G C Exh 2
13 Williams' letter was addressed to Harold Friedman , President of Re-
spondent-Union, and in addition to reporting Mustee's conduct , the waster
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Ttunio was given the letter which' the Company
wrote the Union on December 10, 1973, stating that it was
considering firing +Williams because he had-been absent 24
days that year, he telephoned Robert Mustee. He testified
that he advised Mustee that he saw no grounds-to justify a
discharge and that, after some discussion about Williams'
attendance record, Mustee agreed not to terminate him, but
to give him one more chance.
After Williams was discharged, his grievance was given to
Trunzo by another business agent of the Union. Trunzo testi-
fied that he telephoned Robert Mustee and "had a long tussel
on the phone" with him about Williams, but Mustee was
adamant and refused to reinstate him. He said he then let the
matter "cool for a couple of days, . . . turned it over to
another business agent." Later, according to Trunzo, when
Business Agent Mascitti was talking to Robert Mustee on the
telephone, Trunzo suggested that he mention reinstating Wil-
liams, which Mascitti did, but without success." Prior to
Mascitti's call, Trunzo had made another call to Mustee
about Williams' vacation pay, which apparently had not been
paid him when he was discharged Shortly thereafter, Wil-
liams received what was due him." Trunzo said that during
this conversation he asked Mustee if he would rehire Wil-
liams, but Mustee's response was negative.
During one of his conversations with Mustee, Trunzo
asked him to send him Williams' absenteeism record, he said.
When he got this document, he and Business Agent Mascitti
presented Williams' case to the "officers of the Union," and
after a discussion and a review of Williams' file," the offic-
ers decided to close the case because it was not strong enough,
Trunzo said." He did not inform Williams of the decision,
and he could not remember exactly how Williams was sup-
posed to learn about what had happened to his grievance
2. Analysis, additional findings and conclusions
Business Agent Trunzo's testimony about his efforts to
save Williams' job in December 1973, and the extent of the
Union's intercession on Williams' behalf through himself and
other business agents after Williams was fired was vague and
unconvincing in substance and unimpr8sive in delivery."
The witness' embarrassment when attempting to explain his
and his colleagues' handling of the Williams case was evident.
But even if it is granted that Trunzo or others from the Union
made an effort to have the Company restore Williams to
employment, the effort was halfhearted, in my view, and fell
far short of the standards which govern a union's representa-
tion of its members.
asked Mr Friedman, "as President of our Union [to] explain to my brother
employees the investigation that the Union made to recommend this pay cut
to Union members "
14 Mascitti did not testify
15 Williams also talked to Mustee about his vacation pay in one of the
conversations he had with him after his discharge
i6 The "file was not Williams ' personnel file but copies of warnings given
to him by the Company
17 Trunzo's exact words about the officers were, "as far as they were
concerned, it was closed " The officers did not testify
18 Robert Mustee's versions of what was said when Trunzo telephoned
him were even more imprecise and seemed more superficial than Trunzo's,
and they did nothing to inspire confidence in his credibility or help dispell
the serious questions I have about the accuracy of what they said they talked
about when Williams was discussed
A labor organization violates its duty of fair representation
if it is guilty of bad faith when it handles a grievance for a
member or treats it in an arbitrary or perfunctory
manner.19 An individual grievant has, however, no absolute
right to have his grievance taken to arbitration, because a
union must be allowed a considerable range of discretion in
settling or abandoning, short of arbitration, those grievances
which the union in good faith believes do not justify that
costly and time-consuming final step.20 While I recognize,
as the Union ably contends, that mere negligency or the
exercise of poor judgment in the handling of a grievance
does no[ automatically make out a case of unfair repre-
sentation," each case must be decided on its own par-
ticular facts, and union hostility and whether or not a griev-
ance was processed on its own merits are factors to be consid-
ered in judging the union's action.22
On the facts as I have found them, I conclude that the
Union's total processing of Williams' grievance, including its
failure to take it to arbitration, was motivated by union hos-
tility generated by Williams' opposition to the Union's posi-
tion on the scheduled pay increase, and was, therefore, in bad
faith as well as arbitrary and perfunctory. If Trunzo is to be
believed, he protested the Company's attempt to fire Wil-
liams in December on the ground that his record did not
justify it, yet with only one additional absence in January
1974, the Union closed the case without even talking to the
grievant, and this despite the fact that he claimed in his
written grievance that his absence was caused by a job-con-
nected injury. If the Union had checked with Williams it
would have discovered that employee Shaw was with him
when he was hurt and that Supervisor Roy Mustee learned
of it shortly thereafter. Trunzo's excuse for his inaction that
there did not appear to be any company records to support
Williams' claim is incredible. The duty to fairly represent
includes "the duty to act as advocate for the grievant."23
Failure to discuss the case with Williams was not mere negli-
gence, it was a reckless disregard of his rights. It was also in
the same vein as the Union's treatment of his complaint about
Roy Mustee's harassment of him, where, as set out above in
greater detail, Trunzo, without talking to Williams, the
Union's own representative on the job, merely telephoned
the supervisor, who denied the charge. In his letter to the
Union, Williams included a request that the Union's
president "explain" to the membership what investigation
the Union had made of the Company's claim of poverty
before it had decided to recommend to the employees that
they forego the full amount of a wage increase due them
in November 1973, a proposal hardly designed to endear
19 Vacav Sipes, 386 U S 171, 190 (1967), Retinav Local 14, Apartment,
Motel, Hotel and Elevator Operators Union, 453 F 2d 1018, 1023 (C A 9),
Griffin v UA. W, 469 F 2d 181 (C A 4), 193 NLRB 223, 234, Miranda Fuel
Company, Inc, 140 NLRB 181, 185 (1962)
20 Vaca V Sipes, supra, at 191-192
21 Bazarte v United Transportation Union, 429 F 2d 868, 872 (C A 3),
Griffin v UA W, supra
22 Independent Metal Workers Union, Local No I (Hughes Tool Com-
pany), 147 NLRB 1573, (1964), Local 485, International Union ofElectri-
cal, Radio & Machine Workers (Automotive Plating Company), 170 NLRB
1573 (1968)
23 Truck Drivers, Oil Drivers and Filling Station and Platform Workers
Local No. 705 (Associated Transport, Inc), 209 NLRB 292 (1974)
E. L. MUSTEE & SONS, INC. 209
Williams to the Union's top officials. By ignoring him, the
Union showed its continued disenchantment with his
ideas.
Additional evidence of lack of fair representation is the
Union's failure to meet face-to-face with employer represen-
tatives on the grievances or to present it to the full Union's
executive board , as provided in the collective -bargaining con-
tract. Viewed in the light of its initial failure to talk with
Williams as part of its investigation of his case, The Union's
subsequent neglect of its obligation to then confront the Com-
pany with whatever evidence it had discovered to support
Williams' claim and to then present this information to the
Union's executive board on the question of going to arbitra-
tion, if the case has not been previously settled on the merits,
deprived Williams of the due process which is included in the
concept of fair representation. Finally, the Union again ig-
nored Williams' rights by closing his case without notifica-
tion to him, a further indication that in addition to being
arbitrary and perfunctory on its face, the Union's handling of
his grievance was influenced by hostility to him.
By failing to fairly represent Williams in the processing of
his grievance, including taking his case to arbitration, because
he had opposed the Union's policies and had otherwise exer-
cised his rights under Section 7 of the Act, Respondent-
Union violated Section 8(b)(1)(A) of the Act.24
I also conclude that Respondent-Union violated Section
8(b)(1)(A) of the Act by threatening Williams with reprisals
because of his protected activities.
IV THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, it will be recommended that they cease
and desist therefrom and take certain affirmative actions de-
signed to effectuate the purposes of the Act.
It has been found that Respondent-Employer has violated
Section 8(a)(3) and (1) of the Act by discriminatorily dis-
charging Jerry Williams. I shall, therefore, recommend that
Respondent offer him immediate and full reinstatement to his
former job, or, if this job no longer exists, to a substantially
equivalent position, without- prejudice to his seniority or
other rights and privileges.
I shall further recommend that Respondent make him
whole for any loss of earnings he may have suffered as a result
of his discharge by payment of a sum of money equal to that
he normally would have earned from said date to the date of
Respondent's offer of reinstatement, less net earnings, with
backpay and interest thereon to be computed in the manner
prescribed by the Board in F W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
On the basis of the foregoing findings of fact, and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
2. The Union is a labor organization within the meaning
of the Act.
3. By discharging Jerry Williams for engaging in union and
concerted activities , Respondent-Employer engaged in unfair
labor practices in violation of Section 8(a)(3) and ( 1) of the
Act.
4. By threatening employees with reprisals because of their
union or concerted activities, Respondent-Employer violated
Section 8(a)(1) of the Act.
' 5. By threatening an employee with a reprisal if he did not
cease his opposition to the Union 's position concerning a
reduction in a scheduled pay increase provided for in the
collective-bargaining contract , Respondent -Union violated
Section 8(b)(1)(B) of the Act.
6. By refusing to process an employees' grievance because
of his said opposition to the Union's position regarding the
increase, Respondent -Union violated Section 8 (b)(1)(B) of
the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of the Act.
Upon the foregoing findings of fact, conclusions of law,
upon the entire record in the case , and pursuant to Section
10(c) of the Act, I hereby issue the following recommended:
ORDER25
A. Respondent-Employer, its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Threatening employees with discharge or other repris-
als if they engage in union or other protected activities.
(b) Discharging employees because they engaged in union
or other protected activities.
(c) In any other manner interfering with , restraining, or
coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action designed to effec-
tuate the policies of the Act:
(a) Offer Jerry Williams immediate and full reinstatement
to his former job , or, if this job no longer exists, to a substan-
tially equivalent position, without prejudice to seniority or
other rights and privileges, and make him whole for, any loss
of pay suffered by reason of the discrimination against him
in the manner provided above in the section entitled "The
Remedy."
(b) Preserve and, upon request, make available to the Na-
tional Labor Relations Board and its agents , for examination
and copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records necessary to determine the amount of backpay due
under the terms of this Order.
(c) Post at its plants in Cleveland, Ohio, covered by the
collective-bargaining contract, copies of the attached notice
1. The Company is an employer engaged in commerce
within the meaning of the Act.
24 Local485, I UE, supra, fn 22 In Rossv Hayes International Corpora-
tion, 84 LRRM 2922 (D C Ala, Oct 31, 1973), cited by the Union, the
union made a full investigation of the employee 's claim, including asking
him for evidence to support it
25 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and order, ' and all objections thereto shall be
deemed waived for all purposes
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,and marked "Appendix A."26 Copies of said notice, on
forms provided by the Regional Director for, Region 8, shall,
after being duly signed by Respondent, be posted by, it im-
mediately upon receipt and be maintained for a period of 60
consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other
material. - .
(d) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of receipt of this Decision, what
steps it has taken to comply herewith.
B. Respondent-Union, its officers, agents and representa-
tives, shall:
1. Cease and desist from:
(a) Threatening employees with reprisals because they op-
pose the policies of the Union.
(b) Refusing to process employee grievances because of
their opposition to the Union's policies or because they en-
gage in union or other protected concerted activities.
(c) In any other like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative action designed to effec-
tuate the policies of the Act:
(a) Post in conspicuous places in the Union's business of-
fices, meeting halls, and places where notices to its members
are customarily posted, copies of the attached notice marked
"Appendix B."27 Copies of said notice, on forms to be prov-
ided by the Regional Director for Region 8, after being duly
signed by an authorized representative of Respondent, shall
be posted by Respondent immediately upon receipt thereof,
and be maintained for 60 consecutive days thereafter in con-
spicuous places, including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be taken
by Respondent to insure that such notices are not altered,
defaced or covered by any other material.
(b) Notify the Regional Director for Region 8, in writing,
within 20 days from receipt of this Decision and recom-
mended Order, what steps it has taken to comply herewith.
26 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
27 See fn. 26, supra.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to harass or discharge em-
ployees because they engage in union or protected con-
certed activities.
WE WILL NOT discharge employees because they assert
their rights under the collective-bargaining contract
with International Brotherhood of Teamsters, Local
507, or because they engage in other union or protected
concerted activities.
WE WILL offer Jerry Williams immediate and full rein-
statement to his former job, or, if this job no longer
exists, to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges,
and we will make him whole for any loss of wages suf-
fered as a result of our discrimination against him.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of the
rights guaranteed them in Section 7 of the National
Labor Relations Act.
E. L. MUSTEE & SONS, INC.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten that you will get in trouble be-
cause you disagree with and express you opposition to
the Union's positions or policies in regard to any particu-
lar employer.
WE WILL NOT fail to refuse to process employee griev-
ances because they oppose the positions or policies of the
Union in regard to any particular employer.
WE WILL NOT in any other like or related manner re-
strain or coerce you in the exercise of the rights guaran-
teed you in Section 7 of the National Labor Relations
Act.
INTERNATIONAL BROTHERHOOD OF
TEAMSTERS CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF
AMERICA, TEAMSTERS LOCAL UNION 507