Hotel & Restaurant Employees Local 26 (Copley Plaza)

National Labor Relations Board - Board Decisions

Nov 21, 1989

297 N.L.R.B. 261 (N.L.R.B. 1989)

HOTEL & RESTAURANT EMPLOYEES LOCAL 26 (COPLEY PLAZA) 261
Hotel & Restaurant & Institutional EmploYees and
Bartenders International Union, Local No. 26,
AFL-CIO (Copley Plaza Hotel, Inc.) and John
R. Brennan. Case 1-CB-6426
November 21, 1989
- DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS. J
On May .20, 1987, Administrative Law Judge
Steven M Charno issued the attached decision
The Respondent filed exceptions and a supporting
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 and the
record. in light of the exceptions' and brief and has
decided to affirm the judge's rulings, findmgs, 2 and
conclusions only to the extent consistent with this
Decision and Order
In this case the judge has concluded that the Re-
spondent Union unlawfully withdrew a discharge
grievance filed on behalf of Charging Party John
Brennan Because we find that the evidence of
animus toward Brennan is both speculative and at-
tenuated and because we further find that the
Union did not arbitrarily withdraw the grievance
after failing to receive a response from Brennan to
its request that he contact the Union about going
forward, we conclude that the Union did not
breach its duty of fair representation in handling
Brennan's, grievance Accordingly, we will dismiss
the 8(b)(1)(A) complaint s.
Brennan_ was employed by Copley Plaza Hotel
for over 10 years, during the last 5 of which he
was one of the, Respondent's union stewards In
-December 1985, he called the Union's office and
spoke with the secretary-treasurer, Lucy Festa
Brennan, apparently misunderstanding Union Presi-
dent Domenic Bozzotto's position on gratuity
workers' wages, expressed surprise at Bozzotto's
position, called Bozzotto derogatory names, and
stated that if gratinty workers did not secede from
the Union, Brennan_ might run against Bozzotto
•
The Respondent has requested oral argument The request is denied
as the record, exceptions, and brief adequately present the issues and the
positions of the parties We likewise deny the Respondent's motion to
remand the case to the judge for further hearing The evidence offered
was not previously unavailable and would not affect our decision in any
event
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board s established policy is not overrule an administrative law
judge's credibility resolutions unless the clear preponderance of all the
relevant evidence conâ– iinces us that they are Incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
the riext election "to make him work for his job"
When Festa realized 'and informed Brennan that
their conversation was being recorded on the after-
hours "telephone answering machine, Brennan ex-
pressed indifference but hung up and called back
on a different telephone line Thereafter, Bozzotto
played the taped conversation severaL times at loud
volumes in the union hall
On February 28, 1986, 3 Brennan's supervisor en-
tered the hotel's locker room where Brennan was
taking . his break and accused Brennan of smoking
marijuana Brennan was alone in the room Al-
though the room smelled of marijuana, there was
no other physical evidence of marijuana use Bren-
nan denied smoking marijuana and was sent home
before the end of his shift On March 5', Brennan
was terminated after the hotel's personnel director,
Patricia Michaud, told him that she believed that
he had been caught smoking marijuana
Brennan typed up a grievance that was given to
his union business agent, Henry Green, on March
9 On March 10 or 11, Brennan met with Green to
discuss the gnevance and Green said that "he'd be
in touch" On March 17, Green set up a March 28
step I meeting with Michaud Both Green and Mi-
chaud credibly testified that Green canceled the
March 28 meeting with Michaud after informing
her that Green had been unable to contact Bierman
by telephone and was going to send a letter to
Brennan's home 4
On April 2, 5 days after talking to Michaud,
Green sent Brennan a letter advising him that time
was running out and requesting that Brennan con-
tact the Union if he wanted to go forward with his
grievance The judge found it "uncertain when
Brennan received the letter " On April 8, Mi-
chaud told Green that she believed the grievance
was untimely because the contractual time limit for
a step I grievance meeting was 10 days Having
been unable to contact Brennan, Green acceded to
Michaud's request to withdraw the grievance
'Brennan called Green on April 15 and 3 and, in
one of these conversations, Green informed him
,that his grievance had been withdrawn
3 All subsequent dates refer to 1986 unless specified otherwise
4 The judge discredited Green's testimony that he unsuccessfully at-
tempted to call Brennan 50 times between March 11 and 17, and that he
made at least 40 unsuccessful attempts to contact Brennan by telephone
between March 17 and 28 The judge did not clearly indicate by his
credibility resolutions whether he was finding that Green did not make
any phone calls to Brennan's residence or only that Green did not make
the number of calls he claimed to have made Nevertheless, because the
Union eventually contacted Brennan by mail, It is not necessary for us to
resolve this ambiguity
In otherwise discredited testimony Brennan admitted receipt of the
letter on Apnl 3 Because this aspect of Brennan s testimony was not
controverted, It is not Clear why it should be discredited In any event it
is undisputed that Brennan did receive the letter
297 NLRB No 34
e
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The judge discredited much of the Respondent's
witnesses' testimony, including Bozzotto's denial of
knowledge of the December 1985 tape recording,
Green's and Bozzotto's denials that they conferred
over dropping Brennan's grievance, Green's testi-
mony regarding attempts to telephone Brennan
before dropping the grievance, and Green's testi-
mony that he withdrew the grievance in order to
avoid prejudicing Brennan's position in the matter.
The judge rejected as pretextual the Respondent's
contention that it withdrew Brennan's grievance
because it believed he no longer wished to pursue
it. Implicitly inferring animus from Bozzotto's re-
peated playing of the tape of Brennan's December
1985 phone conversation with Festa, the judge fur-
ther found that the Respondent's withdrawal of the
grievance was actually motivated by Brennan's
criticisms of Bozzotto in the taped conversation.
Accordingly, the judge concluded that the Re-
spondent violated Section 8(b)(1)(A) of the Act by
failing to represent Brennan for unfair, arbitrary,
and invidious reasons. As noted, we disagree with
the judge for the reasons that follow.
Contrary to the judge, we find insufficient proof
of retaliatory motivation in the Respondent's han-
dling of Brennan's grievance. It is speculative at
best to surmise from the replaying of the taped
conversation that Bozzotto was expressing displeas-
ure. Bozzotto's publication of the tape is as equally
indicative of amusement as it is of displeasure.
Even assuming Bozzotto's tape playing shows he
harbored some personal animosity toward Brennan,
we cannot find, given the facts surrounding the
withdrawal of the grievance, that it could be rea-
sonably inferred that animosity was a motivating
factor in the decision to withdraw.6
Absent animus, this case essentially involves in-
quiry into the reasonableness of the Union's deci-
sion to withdraw Brennan's grievance on April 8.
The evidence establishes that the Union met with
Brennan, scheduled a step I grievance meeting,
preliminarily discussed the matter on at least two
occasions with the Employer, canceled the griev-
ance meeting due to the unavailability of the griev-
ant, and eventually acceded to the Employer's
pressure to withdraw the grievance more than a
month after the discharge—long after expiration of
the contractual time limit and 11 days after the ex-
tended limit set by the aborted step I meeting.
Most importantly, the Union acceded to the Em-
ployer's position 6 days after the Union's unack-
6 Bozzotto was also aware that Brennan had campaigned for someone
running against the Bozzotto slate a year before the December 1985 tele-
phone conversation Under the circumstances of this case, we fall to dis-
cern any link between Bozzotto's awareness of Brennan's opposition and
the Union's decision to drop the grievance
nowledged written request that Brennan contact it
if he wished to proceed, a request that Brennan in-
disputably received.
The dissent would find that the reasons ad-
vanced by the Respondent for dropping Brennan's
grievance were pretextual and that the true reason
was retaliatory. There is no evidence that the
Union has, in similar circumstances, treated any
other employee's grievance any different or that
the course the Union followed was unreasonable:
The grievance was dropped only when, after re-
ceiving pressure from management to get on with
its processing, the Union made a reasonable but un-
successful effort to have Brennan contacted; an
effort that Brennan himself acknowledged he re-
ceived. 7 In these circumstances, we cannot find the
reasons advanced by the Union for its decision to
be pretextual. Nor can we conclude that the Union
was grossly negligent or arbitrary in finally with-
drawing the grievance after receiving no reply
from Brennan to its letter. 8 Accordingly, because
we conclude that the Union's handling of Bren-
nan's grievance did not breach its duty of fair rep-
resentation, we shall dismiss the complaint.
ORDER
The complaint is dismissed.
CHAIRMAN STEPHENS, dissenting.
The judge determined, in view of all the facts,
that the Respondent Union, whose president was
criticized by a shop steward, retaliated by with-
drawing the steward's grievance of his discharge.
He concluded, and I agree, that this conduct
breached the Respondent's duty of fair representa-
tion and violated Section 8(b)(1)(A). I dissent from
my colleagues' reversal of the judge's decision and
their dismissal of the complaint because I believe
that the judge's inferences and conclusions more
fully account for the credited and undisputed evi-
dence, considered as a whole.
The Employer discharged John Brennan, a long-
time union steward, on March 5, 1986. Brennan
submitted his written grievance to the union busi-
ness agent, Henry Green, on March 9. On March
10 or 11, Brennan met with Green and gave a de-
tailed account of the circumstances of his dis-
charge. They agreed that the grievance would
likely go through the contractual process to arbi-
traiton. Green told Brennan that he would stay in
7 As noted supra Green wrote to Brennan on April 2 and Brennan did
not call as he was requested to do until April 15
8 Even if the Union's actions might be characterized as negligent, neg-
ligence alone is insufficient to constitute such arbitrary conduct as would
constitute a breach of a union's duty of fair representation See, e g,
Office Employees Local 2, 268 NLRB 1353, 1355 (1984), enfd sub nom
Erchelberger v NLRB, 765 F 2d 851 (9th Cir 1985)
.
HOTEL & RESTAURANT EMPLOYEES LOCAL 26 (COPLEY PLAZA) 263
touch, but did not. On Wednesday, April 2, he
mailed Brennan a letter stating that time was run-
ning out for completion of step I of the grievance
process and that he should contact the Union. On
Tuesday, April 8, Green acceded to the Employ-
er's request to withdraw the grievance as untimely.
On either April 15 or 23, in a conversation initiated
by Brennan concerning the grievance, Green in-
formed him that it had been dropped and would
not be reopened.
The judge was not impressed, and neither am I,
with the Respondent's explanation that it conclud-
ed that Brennan no longer wished to pursue the
grievance given his failure to respond to the April
2 letter by April 8, the date the grievance was
withdrawn.' Rather, the judge found the Respond-
ent's explanation and its supporting contentions en-
tirely pretextual, and largely on that basis he in-
ferred that the withdrawal of the grievance was
unlawfully motivated.
The Respondent's animus with respect to Bren-
nan was established by Union President Bozzotto's
reaction to Brennan's taped statements critical of
him and his policies. Thus Bozzotto played the
tape over and over at a high volume during a
meeting in the Respondent's union hall, apparently
at some time in December 1985 or early 1986. Had
the playing of that tape been as minor and innocu-
ous a matter as my colleagues suggest, Bozzotto
would have willingly admitted to playing it. In-
stead, he not only denied playing the tape over the
loudspeaker system, he denied even that such a
tape existed. Bozzotto's discredited denial contrib-
utes to the pretextual character of the Respondent's
defense.
In further support of his inference that Bozzot-
to's animosity toward Brennan was the motivating
factor in the grievance withdrawal, the judge relied
on Business Agent Green's fabrication that he
withdrew the grievance rather than proceed with a
step I meeting without Brennan because he did not
want to misstate Brennan's claim. As a business
agent, Green was generally authorized to proceed
without the grievant through step I. Beyond that,
after Green and Brennan had fully discussed the
matter on March 10 or 11, they agreed that the dis-
pute would likely go all the way to arbitration,
thus making it apparent in this case that completing
step I was no more than a formality. The judge
also found spurious Green's denial that he dis-
cussed dropping the grievance with Bozzotto,
pointing out that it was the Respondent's policy to
clear all grievance withdrawals with Bozzotto. He
found Green's assertion all the more unbelievable
because it was the grievance of a longtime steward
that was withdrawn rather than merely a mem-
ber's, and a discharge grievance at that.
Thus, the judge found several layers of pretex-
tual fabric covering the Respondent's conduct, and
this contributed substantially to his findings that
the true reason for the dropping of Brennan's
grievance was an unlawful one—the Respondent's
desire to retaliate because of Brennan's critical
comments. I find such an inference reasonable and
appropriate in these circumstances. See, e.g., Fast
Food Merchandisers, 291 NLRB 897 (1988), citing
Shattuck Denn Mining Corp. v. NLRB, 362 F.2d
466, 470 (9th Cir. 1966).
Most of the judge's analysis was based on his
credibility resolutions. Although my colleagues
affirm these findings, they fail to attach to them
and to other of the judge's fact findings the signifi-
cance that they reasonably demand in the circum-
stances. Thus, for example, the majority finds Boz-
zotto's playing of the tape ambiguous concerning
animus without accounting for the fact that he un-
truthfully denied that the tape even existed. Fur-
ther, they fail to attach any meaning to the fact
that Green had the authority to proceed on his
own through step I, yet not only did he not pro-
ceed, he withdrew the grievance instead. In addi-
tion, they attribute no significance to the Respond-
ent's discredited denial that Bozzotto was consulted
before the grievance was withdrawn, when it was
indisputably the Respondent's practice for Bozzotto
to review such matters. Accordingly, I would
affirm the judge's finding that the Respondent's
withdrawal of Brennan's grievance was unlawfully
motivated, certainly not a matter of mere negli-
gence, and a violation of Section 8(b)(1)(A).
Don Firenze, Esq., for the General Counsel
George E. O'Brien, Esq., of Boston, Massachussetts, for
the Respondent.
DECISION
STEVEN CHARNO, Administrative Law Judge. In re-
sponse to a charge timely filed, a complaint was issued
on 20 August 1986 alleging that the Hotel & Restaurant
& Institutional Employees and Bartenders International
Union, Local No. 26, AFL-CIO (Respondent) violated
Section 8(b)(1)(A) of the National Labor Relations Act,
by failing to represent John Brennan for reasons which
were unfair, arbitrary, invidious, and a breach of the fi-
duciary duty owned the employees Respondent repre-
sents. Respondent's answer denied the commission of any
unfair labor practice.
A hearing was held before me in Boston, Massachu-
setts, on 12 February 1987. 1 Briefs were thereafter filed
' My colleagues and I agree that the record does not establish when 1 I have made the transcript corrections which appear in App A
Brennan received the letter [omitted from publication]
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by the General Counsel and Respondent under due date
of 19 March 1986
FINDINGS OF FACT
I JURISDICTION
Copley Plaza Hotel, Inc (Copley) is a corporation en-
gaged in the operation of a hotel in Boston, Massachu-
setts During the calendar year ending 31 December
1985, Copley, in the course of its operations within Mas-
sachusetts, purchased and received goods valued in
excess of $50,000 from points outside the State and de-
rived gross revenues in excess of $500,000 It is admitted,
and I find, that Copley is an employer engaged in com-
merce within the meaning of the Act
Respondent is admitted to be, and I find is, a labor or-
ganization within the meaning of the Act
II THE ALLEGED UNFAIR LABOR PRACTICE
A Background
- Respondent and Copley are parties to a collective-bar-
gaining agreement governing the terms and conditions of
employment of certain of Copley's employees 2 That
agreement sets forth a three-step grievance procedure
culminating in arbitration Step I of the procedure pro-
vides for a meeting between representatives of the Re-
spondent and Copley Respondent's business agents are
authorized to handle the Step I meeting in the absence of
the grievant 3
Respondent's highest officials are its president, Do-
menic Bozzotto, and its financial secretary-treasurer,
Lucy Festa Bozzotto has the power to hire and fire
business agents, in at least the former case, the Executive
Board "has to approve it "4 In addition, Bozzotto deter-
mines which grievances will go to arbitration and is con-
sulted by Respondent's business agents before a griev-
-ance is dropped 5
2 The relevant unit is all laundry employees, housekeeping employees,
waiters, waitresses, bellhops, bell captains, baggage porters, door persons,
dining room captains, bartenders, and desk employees employed by the
Copley Plaza Hotel Inc at its Boston, Massachusetts location, but ex-
cluding confidential employees, guards, professional employees, and all
supervisors as defined in the Act
3 Business Agent Henry Green so testified without contradiction
4 The testimony of Business Agent Henry Green to this effect was un-
rebutted In response to a leading question on redirect by Respondent's
counsel, Green testified that he believed the Executive Board would have
to approve his discharge
5 Festa so testified Respondent argues that Festa s testimony is false
because she admittedly resolved minor grievances without reference to
Bozzotto Clearly, Respondent's second highest official would have
greater discretion in such matters than would a business agent whose
very livelihood was controlled by Bozzotto Respondent suggests on
brief that Festa, an individual who served as one of Respondent's officials
for over 9 years, repeatedly perjured herself in this proceeding by contra-
dicting Bozzotto s testimony Respondent does not suggest why Festa
should wish to bring harm to her union and no reason is apparent from
the record While there is obvious antipathy between Festa and Bozzotto,
her attitude toward Bozzotto appears neither hastily conceived nor illogi-
cal Moreover, she testified about that attitude on cross-examination with
admirable directness and candor Based on my observation of the de-
meanor of Festa and Bozzotto in the hearing room and on the stand, I
have credited the former whenever their testimony was in conflict
John Brennan was employed by Copley for over 10
years and was a banquet bartender at the termination of
his employment For the last 5 years of his tenure with
Copley, Brennan represented 15 to 20 bargaining unit
employees as one of Respondent's shop stewards Shortly
after 5 p m on a day at the end of the first week of De-
cember 1985, Brennan called Respondent's hall to secure
some information concerning a newly negotiated collec-
tive-bargaining agreement which affected the Copley
employees represented by Respondent Festa answered
the telephone and answered Brennan's questions During
the conversation, it was noted that Bozzotto had stated
that gratuity workers were overpaid because they "got
two bites at the apple "6 Brennan expressed surpnse at
Bozzotto's opinion, called Bozzotto some "derrogatory
names" and stated that, if gratuity workers did , not
secede from the Union, Brennan would run against Boz-
zotto in the next election, "just to make him work for his
job" At that point, Festa realized that the after-hours
telephone answering machine was recording the call and
so informed Brennan The latter responded that he didn't
care if he was being filmed but hung up and called back
on another line 7 It is undisputed that Brennan cam-
paigned against Bozzotto's slate in Respondent's 1984
election and that Bozzotto saw him doing so 8
After Respondent's meeting the following Sunday,
Bozzotto mentioned the taped conversation to Festa
When Festa responded that Bozzotto was the one who
had said that gratuity employees got two bites at the
apple, he replied "well, they did" Thereafter, Bozzotto
played the tape several times at a very high volume in
Respondent's hall Subsequently, several people men-
tioned to Festa and Brennan that they had heard about
the taped conversation 9
B The Discharge and Grievance
At 9 15 pm on Friday, 28 February 1986, 10 Brennan
was taking his break in the men's locker room when
Christian Galilee, Copley's assistant food and beverage
manager, entered and accused Brennan of smoking mari-
juana Brennan was alone in the room, which smelled of
marijuana, but there was no physical evidence that Bren-
nan had been smoking Brennan returned to work. but
was sent home before the end of his shift and told to
"take it up with Personnel" Brennan returned to the
8 Gratuity workers, who deal directly with the public, receive tips as
well as the wages set by the collective-bargaining agreement
7 I credit the mutually corroborative testimony of Festa and Brennan
to this effect Respondent's suggestion that Festa testified that Brennan
only mentioned running against Bozzotto during the , unrecorded tele-
phone call is not supported by the record
5 Brennan so testified without contradiction
9 Festa and Brennan so testified, while Bozzotto disavowed the opinion
that gratuity workers were overpaid and denied any knowledge of the
tape Respondent asserts that the tape does not exist because It was not
offered in evidence More plausible explanations of its absence are that It
was retained by Bozzotto after he played it or that it was returned to the
answering machine where other messages were recorded over the origi-
nal one Respondent further argues that because Bozzotto's "supporters"
at the hall did not mention the tape to Festa, no such tape was made
Given the antipathy between Festa and Bozzotto, I cannot conceive the
logical basis for this argument For these reasons, as well as those set
forth in fn 5, supra, I credit Festa and Brennan over Bozzotto
1 ° All dates hereinafter are 1986, unless otherwise indicated
HOTEL & RESTAURANT EMPLOYEES LOCAL 26 (COPLEY PLAZA) 265
hotel on 2, 3, and 4 March to determine whether he had
received a message to report to Personnel, he had not
After reporting to work and changing into his uniform
on Wednesday, 5 March, Brennan was told by a supervi-
sor to report to personnel Once there, he met with Pa-
tricia Michaud, Copley's director of personnel, who
stated that Gallice had caught Brennan smoking marijua-
na the prior Fnday Brennan replied that he had been ac-
cused, not caught Michaud rejoined that Gallice had
seen him, which Brennan denied Michaud replied, "We
believe him and you are terminated" On Brennan's de-
parture from the hotel, Michaud told him that he was
barred from the employee and public portions of the
hotel for life Brennan went home and called an attor-
ney, who suggested that Brennan employ Respondent's
grievance procedure Following that suggestion, Brennan
typed up a grievance protesting his dismissal, which
characterized his discharge as a threat to his "reputation
and career "11
On Saturday, 8 March, Brennan went to the hotel and,
after obtaining permission, entered and gave his griev-
ance to the Copley's weekend manager Upon exiting the
hotel, Brennan encountered an International organizer
for Respondent Brennan inquired whether the organizer
would be attending Respondent's meeting the following
day Receiving an affirmative response, Brennan asked
him to give a copy of the grievance to Henry Green, a
business agent of Respondent The organizer did so, and
Green received the grievance on 9 March
On 10 or 11 March, Brennan called Green in ,the
morning and met with him at Respondent's hall about
4 15 pm During the meeting, Brennan gave a detailed
account of the circumstances leading to his termination,
including the fact that there was no physical evidence
that he had been smoking _marijuana Brennan explained
that Copley was adamant over his dismissal and voiced
his expectation that the matter could not be settled short
of arbitration Green agreed with this assessment of the
situation and stated that "he'd be in touch "12
During a meeting concerning another grievance on 17
March, Green suggested to Michaud that they schedule a
Step I meeting on Brennan's grievance They then
agreed on the date of 28 March 13 There was no reason
"Respondent argues that Brennan's statement in his grievance that
the nature of his offense had not been "clarified and substantiated" dem-
onstrates a lack of trustworthiness While Brennan possessed a large vo-
cabulary, he demonstrated several times while testifying that he was
unable to use all of it correctly Accordingly, I reject Respondent's argu-
ment The gnevance clearly alleged a violation of the collective-bargain-
ing agreement between Copley and Respondent
12 Brennan so testified Except for Green's testimony that he had told
Brennan "to stay in touch," Green did not contradict any of Brennan's
testimony which underlies the above findings It is highly Improbable that
an expenenced and admittedly overworked business agent would invite
repeated telephone calls prior to the time he had anything to report Ac-
cordingly, I accept Brennan's version of the disputed point Brennan also
testified that Green had stated that the grievance would have to be
cleared with Bozzotto This statement is an example of Brennan's unfor-
tunate tendency to adorn his testimony with self-serving embellishments
indicative of less-than-total candor I therefore reject it
13 Michard so testified, while Green testified that the parties met on 17
March concerning Brennan's gnevance and that the meeting had to be
canceled because Brennan did not show up Michaud further testified that
she did not believe that Green's version was possible because she would
have noted the scheduling of a 17 March step I meeting concerning
for Green to contact Brennan pnor to 17 March and
there is no credible evidence that he attempted to do
so 14
Ultimately, Green canceled the 28 March meeting and
informed Michaud that he had been unsuccessful in
reaching Brennan and was going to send a letter to his
home 15 On 2 April, 5 days after speaking with Mi-
chaud, Green sent a letter to Brennan's home which
stated
We have had no luck contacting you for the Step
One of the Grievance Procedure in regards to your
grievance with the Copley Plaza Hotel Time is
running out
Please contact Local 26 if you wish to go for-
ward with this case
It is uncertain when Brennan received the letter 16
During a meeting concerning other matters on 8 April,
Michaud stated that Brennan's grievance was untimely
and suggested that Respondent withdraw the case
Green responded that he would withdraw the grievance
since he had been unable to contact Brennan 17
On 15 and 23 April, Brennan placed further calls to
Green concerning the grievance During one of these,
Green informed Brennan that the grievance had been
dropped and would not be reopened 18 There is no pro-
bative evidence that Respondent sought to reopen Bren-
nan's grievance 19
' -
Brennan in her calendar Given Michaud's relative lack of interest in the
outcome of this proceeding and based on my observation of the demean-
or of both witness while testifying, I credit Michaud over Green on this
point
14 Green's testimony that he unsuccessfully attempted to telephone
Brennan 50 times between 11 and 17 March at all hours of the day and
night is both wholly illogical and supposititious
15 Michaud and Green so testified Green also testified that he made at
least 40 attempts at all hours of the day and night to contact Brennan by
telephone between 17 and 28 March and that no one ever answered the
phone Given the uncontested fact that both Brennan and his wife were
residing at their home throughout this penod, Green's story strains judi-
cial credulity beyond the breaking point Accordingly, I reject his testi-
mony on this point
15 Brennan testified that he received the letter the following day, 3
April, and immediately called Green who said that "time may have run
out" and that there was only a 50-50 chance that the grievance would be
heard Green denied that this conversation took place Brennan was an
argumentative witness, who demonstrated a highly convenient lack of
memory concerning matters to his detriment, while exhibiting a discon-
certing tendency toward the self-serving embellishment of matters which
might redound to his benefit While Green was by no means a wholly
credible witness, I find him more believable than Brennan on this point,
based on the respective demeanor of the two witnesses while testifying
"Nothing is more commmon in all kinds of judicial decisions than to be-
lieve some and not all' of a witness' testimony See NLRB v Universal
Camera Corp, 179 F 2d 749, 754 (2d Or 1950)
15 Michaud's testimony to this effect was not disputed by Green
15 Brennan and Green both testified to this effect but disagreed as to
the content of the two conversations Neither witness' version of what
occurred would alter the outcome of this decision if it was adopted as a
finding, since both versions can be rationalized to support or contradict
the positions of each of the parties in this case
15 Green testified that he unsuccessfully sought to reopen the griev-
ance Michaud testified that, sometime after the grievance had been
dropped, she mentioned Brennan's name to Green, but she had no recol-
lection of any attempt to reopen the grievance Based on his demeanor
while testifying, I do not credit Green on this point
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
C Discussion
General Counsel argues that Respondent did not act in
good faith when it withdrew Brennan's grievance on the
fourth business day following the day it mailed him a
letter requesting contact concerning the grievance 20 I
find this argument persuasive in the context of several
other considerations
The record is replete with spurious testimony by Re-
spondent's witnesses, which appears to have no purpose
other than to obscure the fact that Brennan's grievance
was dropped for unlawful reasons First, the repeated de-
nials by Green and Bozzotto that they conferred over
dropping the grievance are flatly incredible The concept
of a business agent on his own initiative dropping a
grievance over the discharge of a longtime shop steward
is highly improbable, even in the absence of Respond-
ent's practice of having its business agents clear the
dropping of all grievances with Bozzotto A second ex-
ample of discredited testimony designed to hide illegal
motivation is Bozzotto's dishonest disavowal of any
knowledge of the tape-recorded conversation between
Brennan and Festa Troubling for similar reasons is
Green's rejected testimony that he made over 90 unan-
swered telephone calls to Brennan in a little over 2
weeks Finally, I find patently absurd Green's testimony
that, in effect, he withdrew the grievance (when he had
the authority and the admitted ability to go forward with
the step I meeting without Brennan) in order to avoid
prejudicing Brennan's position in the matter
For the foregoing reasons, I find that the reason given
by Respondent for dropping Brennan's grievance—that
Respondent's officials believed that Brennan no longer
wished to pursue it—to be pretextual I further find that
Respondent was actually motivated by Brennan's state-
ments during the December 1985 telephone conversation
Accordingly, I find that Respondent failed to represent
Brennan for reasons which were unfair, arbitrary, invidi-
ous, and a breach of the fiduciary duty which Respond-
ent owes the employees it represents That failure is an
20 If one adopts the legal assumption concerning the length of time it
takes to deliver a letter, Respondent cannot be found to have acted on a
good- faith belief that Brennan had received the letter and did not Intend
to respond to it See Fed R Qv P 6
unfair labor practice in violation of Section 8(b)(1)(A) of
the Act as charged in the complaint
CONCLUSIONS OF LAW
1 Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act
2 Copley Plaza Hotel, Inc is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
3 By its failure to process the grievance of John Bren-
nan to arbitration, Respondent breached its duty of fair
representation and thereby engaged in and is engaging in
an unfair labor practice in violation of Section 8(b)(1)(A)
of the Act
4 The aforesaid unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act
REMEDY
Inasmuch as Respondent has engaged in an unfair
labor practice, I shall order it to cease that practice and
to take affirmative action designed to effectuate the pur-
poses of the Act Such affirmative action shall include
the posting of an appropriate notice and the processing
of Brennan's grievance through the remaining steps of
the grievance procedure In addition, Respondent shall
make Brennan whole for any loss of earnings he may
have suffered as a result of his discharge from the date of
that discharge on 5 March 1986 until the occurrence of
the earliest of the following events (1) Brennan is rein-
stated by the Copley Plaza Hotel, Inc , (2) Brennan ob-
tains other substantially equivalent employment or (3)
Respondent secures consideration of Brennan's grievance
by the Copley Plaza Hotel, Inc and thereafter pursues It
with all due diligence Backpay shall be calculated in ac-
cordance with the formula set forth in F W Woolworth
Go, 90 NLRB 289 (1950), to which interest shall be
added in the manner provided in Florida Steel Corp, 231
NLRB 651 (1977) 21 Finally, inclusion of a "visitonal
provision," a remedy sought by General Counsel, has not
been shown to be necessary in order to ensure compli-
ance with the Board's Order herein
[Recommended Order omitted from publication ]
21 See generally Isis Plumbing Co, 138 NLRB 716 (1962)