Local 417, UAW

National Labor Relations Board - Board Decisions

Sep 27, 1979

245 N.L.R.B. 527 (N.L.R.B. 1979)

LOCAL 41'
Local 417, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW) (Falcon Industries, Inc.) and
Cheryl Houck. Case 7-CB-4179
September 27, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On June 13, 1979, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions 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
conclusions 2 of the Administrative Law Judge and to
adopt her recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Local 417, International
Union, United Automobile, Aerospace and Agricul-
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear 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 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing her findings.
2 In the "Analysis and Conclusions" section of her Decision, the Adminis-
trative Law Judge incorrectly referred to Sec. 8(a)(IXA) of the Act, rather
than Sec. 8(b)IXA). We therefore correct this inadvertent error.
In the same section of her Decision, the Administrative Law Judge cited
General Truck Drivers, Warehousemen, Helpers and Automotive Employees,
Local 313, International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America (Rhodes a Jamieson, Ltd.), 217 NLRB 616
(1975), in support of her finding that Respondent violated its duty of fair
representation by its handling of Houck's grievance. Although Member
Penello dissented in that case, he agrees with the legal principle for which the
Rhodes & Jamieson case is cited, and he finds the facts in this case to be
distinguishable from the facts in the Rhodes & Jamieson case.
In adopting the Administrative Law Judge's finding that Respondent
breached its duty of fair representation, Chairman Fanning relies solely on
her finding that Respondent's failure to process Houck's grievance stemmed
from President Cooper's animosity toward Houck. Since Chairman Fanning
believes that this finding is supported by a preponderance of the evidence, he
does not reach the issue of whether, absent animosity toward Houck, Re-
spondent's inaction amounted to a willful failure to process her grievance
We shall modify the Administrative Law Judge's notice to conform to
her recommended Order
527
tural Implement Workers of America (AW), Troy,
Michigan, its officers, agents, and representatives.
shall take the action set forth in the said recommend-
ed Order, except that the attached notice is substi-
tuted for that of the Administrative Law Judge.
APPENDIX
NO-'ICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF TIlE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to present evidence and state their positions. the Na-
tional Labor Relations Board has found that we vio-
lated the National Labor Relations Act, as amended,
in certain ways. We have been ordered to post this
notice. We intend to carry out the Order of the Board
and abide by the following:
WE Wi I. NOT fail or refuse to process em-
ployee grievances, or process such grievances in
a routine manner, for no reason or for arbitrary
or invidious reasons.
WE WILL NOTr deliberately misinform employ-
ees about the status of their grievances.
WE WILL NOr in any like or related manner
restrain or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the
Act.
WE wVII,I. make Cheryl louck whole, with in-
terest, for the wages she lost because of our fail-
ure to process her grievance.
LOCAL 417, INTERNATIONAL UNION, UNITED)
AUTOMOBILE, AEROSPACE AND AGRICUL-
TURAL. IMPLEMENT WORKERS OF AMERICA
(UAW)
DECISION
STATEMENrT OF THE CASE
NANCY M. SHERMAN. Administrative Law Judge: This
case was heard on February 7 and 8, 1979, in Detroit.
Michigan, pursuant to a charge filed on July 5, 1978, and a
complaint issued on August 31, 1978. The issue presented is
whether Respondent Local 417, International Union,
United Automobile, Aerospace, and Agricultural Imple-
ment Workers of America (UAW) (the Union or Respon-
dent) failed to fairly represent Cheryl Houck regarding her
grievance against Falcon Industries, Inc. (the Company or
Falcon), and willfully misinformed Houck about the status
of her grievance, in violation of Section 8(h)l1)(A) of the
National Labor Relations Act, as amended (the Act).
Upon the entire record, including the demeanor of the
witnesses, and after due consideration of the briefs filed bh
Respondent and by counsel for the General Counsel. I
hereby make the following:
245 NLRB No. 75
DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
FINI)IN(;S OF FA('I
1. JURISI)CIIl()N
The Company is a Michigan corporation which main-
tains its principal office and place of business in Warren,
Michigan, where it packages and distributes products
manufactured by the Ford Motor ompany. During the
fiscal year ending May 31, 1978, a representative period.
the Company had gross revenues exceeding $500.000 and
shipped products valued in excess of' $50,000 directly to
points located outside Michigan. I find that, as the Union
concedes, the Company is engaged in commerce within the
meaning of the Act and that assertion of jurisdiction over
its operations will effectuate the policies of the Act.
The Union is a labor organization within the meaning of
the Act.
II. rHe ALIL.GED UNFAIR LABOR PRA(CI('FS
A. Alleged Background
Cheryl Houck began working for the Company on July 2,
1973. In December 1977, while working as a hi-lo driver.
she had an argument with employee Wilma Cooper, who at
all material times was the Union's chairperson, about who
was entitled to use a pallet which Houck had deposited in
front of Cooper's work station. Houck became angry, swore
at Cooper, and told her not to touch the pallets in the fu-
ture. Thereafter, Cooper avoided Houck and would not
speak to her.'
B. Events Giving Rise to Houck's Grievance; the
Preparation and Filing of the Grievance
At all times material here, the Union has been the repre-
sentative of the Company's employees under Section 9 (a) of
the Act and has been recognized as such under a collective-
bargaining agreement with the Company which contains
the following grievance and arbitration procedure:
I. Should a difference arise between the Company
and the Union as to the meaning and application of
this agreement, an earnest effort shall be made to settle
such differences without any interruption or distur-
bance of the normal operation of the plant, in accord-
ance with the grievance procedure set forth below.
2. The term "day(s)" shall mean calendar day(s). ex-
cluding Saturday, Sunday and holidays.
3. The following grievance procedure shall function.
4. Steps in the grievance procedure:
STEP I
A. Any employee having a complaint or grievance
shall have the right to call the committeeman and in-
form the foreman of that fact. The committeeman shall
be permitted to investigate the complaint and discuss it
with the employee. The matter will then be taken up
My finding in this last sentence is based on Houck's testimony. For
demeanor reasons, I do not credit Cooper's testimony that it was Houck who
refused to speak to her.
with the foreman, and the foreman, employee and
committeeman shall attempt to adjust the grievance.
B. In the event the grievance is not adjusted at Step
1 A., it will then be reduced to writing, signed by the
grievant. and presented to the foreman for his written
disposition.
('. The foreman will return his written disposition to
the committeeman within two 2) days.
STEP 2
If the grievance is not satislactorily adjusted by the
foreman's written answer, the committeeman may ap-
peal to the Plant Manager within two (2) days of the
receipt of the foreman's written answer. Within two (2)
days of the appeal, the Plant Manager, or his repre-
sentative, will hold a hearing on the grievance with the
committeeman and Chairman. The Plant Manager's
written answer will be given to the Chairman within
two (2) days of this hearing.
STEP 3
If the Step 2 answer does not settle the grievance,
the Chairman may appeal it to the Company Pres-
ident, or his representative, within two (2) days of the
receipt of the Step 2 answer. Within five (5) days of
appeal, the Company President or his representative
will hold a meeting with the full Committee and the
Local Union President or his representative if they de-
cide to attend. The Company's written answer will be
given to the Chairman within five (5) days of this meet-
ing.
STEP 4 Arbitration
If the third step answer does not settle the grievance,
a notice of appeal to arbitration must be filed within
ten (10) days after receipt of the Company's third step
written answer: failure to file this notice shall mean the
grievance is closed on the basis of the Company's third
step answer. Within twenty (20) days of notice to ap-
peal, subject to the provisions of the pre-arbitration
provisions, one party or the other must take action to
start arbitration proceedings: failure to do so closes out
the grievance.
Pre-Arbitration Step
The purpose of the twenty (20) days time limit, fol-
lowing the notice of appeal to arbitration, is to give the
parties opportunity, that is the Company representa-
tives, including outside counsel, the Local Union, In-
ternational Representatives, to meet in an effort to set-
tle the grievance, or to recommend that some other
forum, such as mediation or fact-finding be used, with
the understanding that the recommendation of the me-
diator or fact-finder be used as a basis for reaching
settlement. Failing to use this step, the matter goes to
arbitration.
Power of the Arbitrator
* * * * *
The arbitrator shall have no power to add, modify,
subtract, amend the terms of this agreement ....
528
I.OCAL 417. [LAW
5. Time l.imits
A. They may be extended, mutually, in writing by
the parties.
B. If the Union fails to act within the time linmits.
the grievance will be deemed abandoned and settled
on the basis of the Company's last answer.
6. No claims, including claims for back wages. by
an employee covered by this Agreement. or by the
Union, against the Company shall be valid for a period
prior to the date the grievance was first filed in writing
On and before Tuesday, March 28. 1978.2 Houck worked
on the day shift. On March 28 she and others were advised
that on March 29 the Company was instituting an after-
noon shift to which they' were being assigned. No conten-
tion is made that the Company breached the bargaining
agreement either by instituting the afternoon shift, by as-
signing Houck thereto, or by affording her one day's notice
of the change. Houck did not want to work afternoons.
because such a schedule interfered with her classes and with
babysitting her sister's children. Nonetheless, she decided to
work that shift until she found somebody that wanted to
change with her.
That same day. March 28, she found that day-shift em-
ployee Randy Lindsay was willing to change to the after-
noon shift in order to enable Houck to continue working on
the day shift. Still, on March 28 she asked then plant man-
ager William Davis whether Lindsay could work the after-
noon shift instead of her. Davis told her to get it in writing.
Then, according to Houck's credible testimony, she was al-
ternately told by Davis that she and Lindsay could change.
and by then union committeeman Michael Hansbury that
management would not permit it. According to Houck's
credible testimony, at the 3:30 p.m. end of the March 28
workday, Hansbury told her that Davis would not accept
any more changes.3 Then Houck went to Davis and asked
him why he could not accept the change. He said, ...
because of the paperwork," and that he could not accept
any more changes until the fourth working day after Houck
was supposed to begin working on the afternoon shift.
On the following day. Wednesday, March 29, when
Houck was supposed to start working the afternoon shift.
she reported to work at 7:30 a.m., the starting hour for the
day shift, and asked Davis to put her to work that morning
on the day shift. Davis told her no, that she was supposed
to work from 4:30 p.m. to 1:30 a.m. Houck asked him to
help her "some way." Davis said that he could not do any-
thing. Houck asked for a 3-day personal leave. Davis said
that he was not giving out any. Houck asked to talk to her
union representative. He called employee Irene Rajewski.
All dates hereafter are 1978, unless otherwise stated.
Houck's testimony aside, there is no evidence about what Davis in fact
told Hanrbury. Davis was not asked about this matter. and Hansbury., who
at the time of the hearing no longer worked for the Company, did not tesif).
I regard Houck's testimony as probative of the matter (see Rule 801(dx2XC
of the Federal Rules of Evidence), but do not regard the issue as important
'The bargaining agreement states that up to 90 days' lease of absence
"may be granted at the discretion of Management without loss of seniorit "
who was acting chairperson. because (Cooper was ol an
extended medical leave ot ahsence. hen l)avisl told Ilouck
to wait in the office maintained hb the Ulnion ill the plant.
She waited there until Ratewski arrived. tlouck told her
what had happened. At Rajewski's suggestion the two
women went to )avis' office. Rajewski asked why he could
not let Houck and indsay exchange shifts. Davis again
said that because of the "paperwork." he was not going to
accept an' "more" exchanges until the following Mondal.
Rajewski said that she could not understand wh, D)ais
could not change. During this conversation, commiltteeman
Hansbury came into the office. D)uring one of these two
conversations with Davis Houck told him that she had no
alternative hut to quit. At the hearing before me. Davis
testified that Houck quit.
After the second conversation had ended. Hlouck went
into the parking lot. where Hansbury stopped her and told
her to come in the next day to fill out a grievance. [ouck
did not work at all that day. March 29.
On the following day Hanshbur told touck that with her
5 ears' seniority there houldt be no pioblem tte also told
her to call in that afternoon. March 30. to get a "call nuin-
her" which would show that she had reported that she was
not going to be at work. Houck did call in. hut was told that
she could not he given a call number because she was not
emploxed by Falcon Industries. That da>. March 30, after
consulting with Houck. Hanshurs filled out in triplicate,
and Houck signed, a griexance alleging a violation of the
Company's contractual undertaking not to "discriminate in
the hiring of employees, in their training, upgrading, pro-
motions, transfer or layoffs. discipline, discharge, or other-
wise because of race, creed. color, national origin, political
affiliations, sex, marital status or age." The grievance did
not refer to a contract clause (art. IV. sec. 8) that an em-
plohee loses seniority only when he quits, is discharged tor
just cause, is absent for 3 working dass without notifying
the Company, or fails to report for work tir 3 days when
called by the Company by registered mail or telegram. The
grievance read in part as follows:
. . .Bill Davis stated that the aggrieved employee
quit. I was present and I did not hear her quit . . .
. . The company started [an] afternoon shift on 2
29 78. The company then proceeded to transfer em-
ployees by seniority [illegible]. The aggrieved employee
was transferred to the afternoon shift hut found a
higher seniority willing to take her place [hut] the com-
pany denied the request. However, the company ap-
proved a similar request for two other employees. The
following day the aggrieved employee came to the
plant and tried to talk to plant manager Davis] hut
this effort failed. She tried to call in sick for the after-
noon shift but was denied a call-in number. This em-
ployee did not quit her job. She should he reinstated
and paid all lost Iwages?] and [given] a chance to make
the shift change.
The (Company's business records contain an entrs with a
"date originated" of March 29 and an approx al bh Davis
dated that same day, stating that Houck "QUIT-ltnahle to
work the Second Shift"
529
I)tl.C(ISIONS ()F NAIIONA I. ABOR RLA'IONS BOARI)
(. 7 nolnw-lhl llnt' ( on frsal iol.s oi tlarchl 31 mid 3/
As previously noted, the Ilouck grievance was drawn up
in triplicate. he forms used are printed forms used by the
I nion in all plants where it acts as the representative. I he
printed mnaterial on both sides of all three forms s i dentical.
ilosever., the top copy is white, the first carbon is yellow,.
aind the second carbon is pink.
O()n March 30 llanshury came into Davis' office alone
and gave him all three copies oft the grievance. The upper
half of the hack of the forms contains the printed entry
"Ioreman's )isposition (Give detailed reasons)" followed
hb printed lines which continue about halfway down the
page. At this point there are printed blanks for "Foreman's
Signature" and "[)ate of I)isposition." Hansbury said.
"why don't we resolve [the grievance and put C(heryl back
to work?" )avis said. "... everybody's hot under the collar.
(her I blew off. She quit. Let her stay off a couple otf weeks.
ake it to step two lof the grievance procedure], and we'll
see what we can do there. We'll negotiate then." Davis
wrote in red ink on the lined portion of each of the three
copies of the grievance, "Employee Quit. Bill I)avis. 3/30/
78." lie returned the yellow copy to Hanshury, sent the
white copy to the C'ompany's personnel office, and retained
the pick copy for his own files.'
On the following day. March 31. lanshurs came into
)avis' office and asked him to put Houck back to work,
saying that she would go on the afternoon shift. tHansburv
brought with him the yellow copy of the grievance. Davis
wrote in blue ink on the lower. unlined half of the back of
the document. "Denied-Cheryl Quit. Bill Davis." and then
returned the document to Hansbury. Davis did not date
this entry. lie made no additional entry either on the white
copy in the personnel office or on the pink copy in his own
files,,
Cooper and Rajewski both testified to an alleged tele-
phone conversation between them during which Rajewski
allegedly advised Cooper of the Houck grievance and
Cooper allegedly told her to process it. Rajewski testified
that she initiated this call a day or so after physically receiv-
ing the written grievance, which is dated March 30. Cooper
testified, at one point, that this conversation took place on
March 29, and later, that it took place on Houck's last day
of work, which was March 28. Rajewski testified that she
advised Cooper that a written grievance had already been
prepared, whereas Cooper's testimony implies that Rajew-
ski did not mention the written document. In view of the
foregoing discrepancies and for demeanor reasons, I dis-
credit the testimony summarized in this paragraph.
I My findings in the foregoing paragraph are based on Davis' testimony.
As previously noted. Hansbury did not testify. Rajewski testified that Hans-
bury gave her the yellow copy of the grievance, and that on March 31 this
document was presented to Davis during a meeting attended by her. Htouck,
Hansibury. and plant superintendent Holtz. She testified, in effect. that Da-
vis red-ink entry dated March 30 was not on the yellow copy when it was
given to him on March 31. In view of the March 30 date written on the
document, and for demeanor reasons. I credit Davis.
I My findings in this paragraph are based on Davis' testimony and on the
three copies of the grievance. See in/ra. part 11, F. 2. As previously noted,
Hansbury did not testify.
I). SIthscqtc'nl (Gricvralti n.cDi tvions Betliscec te t )i'on
and tic ( ompatlv' S.st'qni (Co, pcr-/lou k arnd (op'r-
Britl Dist ssionv ./41olt tHoul, s (;rie'vance
A ew days after Houck stopped working for the ('Coni-
pans. emlplosee Marion Britt telephoned Ilouck that conm-
mitteelman l anshur had been fired. I ouck then tele-
phoned chairperson Cooper. who said that she would be
taking over Houck's grievance and handling it, and would
have to set up a meeting. rom time to time thereafter.
Houck asked Britt to ask Cooper about the status of the
grievance. Cooper's replies. which Britt relayed to Houck.
are set forth inatr.
A few days after Cooper returned to work following her
medical leave of absence (infra. In. . 10). Britt. who like
Houck is white, approached Cooper, who is black, and said,
"what is with the Cheryl Houck grievance? ... I have often
wondered in this plant why it is that whenever a black gets
discharged. the Union always get them back, and whenever
a white gets fired. they never get back." Overhearing this
comment, Rajewski, who is white. said that she was the one
that handled the Ilouck grievance.
Between the date of C'ooper's return and April 24 she
came into Davis' office two or three times a week and par-
ticipated in at least one step 2 and at least one step 3 meet-
ing. During this period, neither she nor Davis brought up
the Houck grievance. About the third week in April. Houck
again telephoned Cooper, who said that she had had a
meeting with the Company and that the company represen-
tatives, whom she did not identify, did not want her to
discuss Houck's grievance. About the same time, Britt told
Cooper that Houck had asked Britt to ask Cooper about the
grievance. Cooper replied that "they" had met with Davis.
who had said that Houck was a troublemaker and was not
going to get her job back.
On April 25. when Cooper was in Davis' office on other
matters, Davis said, "you know, this Cheryl Houck griev-
ance." Cooper said. "yes." Davis said, "you know, I'm call-
ing time on it,"- that is, stating that the grievance was dead
because it had not been timely, appealed. Cooper said. "oh."
Davis said, "yes." Cooper said, "well, forget it." While
Cooper was in the office, Davis wrote in black ink on his
pink file copy of the grievance. "Union did not follow thru.
Grievance is dead ... 4/25/78." After she left. he wrote in
pencil. "4/25/78 No 2nd step meeting requested." Davis
credibly testified that when he brought the Houck grievance
to Cooper's attention, he was willing to negotiate on it both
as to timeliness and as to substance. Davis had previously
dealt with two or three grievances which involved quits and
which he had denied at step one. One or two of these em-
ployees had been taken back. Davis possessed and some-
times exercised authority to resolve a termination griev-
ance, without checking with Company President Barclae,
by taking hack the employee. During the preceding 5 years
Davis had dealt with Cooper on between 30 and 50 griev-
ances. On two or three other occasions he had "called time"
on a grievance, and on each such occasion Cooper tried to
take the grievance to the third step. Cooper had appealed to
step 2 all the grievances which were not settled to her satis-
faction at step I. and had appealed to step 3 all the griev-
ances which were not settled to her satisfaction at step 2.
A()
O.(CAI. 417. AW
About late April. Britt again told Cooper that Houck had
asked Britt to ask Cooper abhout the grievance. Cooper said
that a planned meeting on the grievance could not be held
because of the absence of Compa;n President Barclae. who
does not participate in the grievance procedure until the
third step. About the same time, ouck telephoned Cooper
about the status of the grievance. Cooper replied that there
had been a meeting with the (CompanN and that it did not
want to discuss her grievance.
In early May. during a meeting with ouck in the plant
parking lot. Cooper told her that the Union intendcled t
strike the Company. that she had a number of grieances.
and that Houck's grievance would be "top priorit." O)n
May 8, at the Union's request, the Company met with t in
a step 2 and step 3 meeting regarding five grievances. not
including Houck's. On two occasions later that month
Houck telephoned Cooper about the status of her griev-
ance, and Cooper said that the Company did not want to
discuss it.
About May 24, employee Britt told Cooper that Houck
had asked Britt to ask Cooper about the status of Houck's
grievance. Cooper said that this was one of the grievances
which the Union was planning to bring up with Company
President Anthony Barclae to get Houck's job back. On
May 25 the union membership voted to commence a strike
against the Company unless certain problems were re-
solved. At the strike vote meeting. which was attended bh
Cooper and Britt but ot Houck, Union President Dean
Spooner read a list of what purported to be all outstanding
grievances, said that these were the only outstanding griev-
ances, and further said that the Union was going to discuss
them with Company President Barclae. Spooner did not
mention Houck's grievance. After the meeting. Britt asked
Cooper why Spooner had not mentioned Houck's griev-
ance. Cooper replied that the Union was "going to . . .
discuss this one when they got Mr. Barclae up front where
they could discuss the whole problem." The following week
Cooper told Britt that Cooper had put Houck's name on
the list, the Union wanted to discuss it, and Barclae "wasn't
in a very good frame of mind about grievances."
About June I Britt told Cooper that Houck had asked
Britt to find out what stage Houck's grievance was in.
Cooper replied that the grievance was in the third step and
Cooper thought it would have to go to an arbitrator. The
following week Cooper told Britt that Barclae wanted to
pick his own arbitrator for the grievances filed by Houck
and another employee, and that the parties had not reached
an agreement on it. At about the same time, when Houck
went to see Cooper about Houck's grievance, Cooper said
that the Company still did not want to meet on it. Houck
asked why the Company was setting up meetings if it did
not want to meet on Houck's grievance. Cooper said that
she did not know.
The Union met with Company President Barclae on June
9 and 15. At one or both of these meetings Barclae told the
Union that if the plant were struck it would never reopen
because its financial position was so bad. He further said
that the Company was about to file a proceeding under
chapter II of the Bankruptcy Act (11 U.S.C). that it had
been losing substantial amounts of money, that the Union
could verify this by sending in an auditors and that in the
e% ent fata strike tie ord Moto ( 'oip iln , i ( onipall,'s
onl\ customer. intended to rellon, e ll its Imcichanldl.
I)uring the lune 9 meeting the non told tle ( oipan
that in order to aoid a strike all the iittandling gri anct s
aind problems had to be rcsol ed. I he (paln\ aisked the
I !nion to present a list, from .hich the parties could negco-
tiate. and submit it to the (ompan . ()n lllune 14 the nion
ga c the (omrpan' an agenda of the emplo\ees' "tde-
mands," prepared and signed b ( ooer. s~hich the nion
represented to be all the problems \,hich were taking place
in the plant. Houck's grievance sas not referred o. ()n
June 15 the parties met agin. Interniltional Representati e
William Ward told Cooper thi "e er thing the hd ;is r
as grievance as concerned. n i the time to present it."
The nion said that it ould strike it all open grie inces
and other problems were not resol cd. 1-he C(ollpan!\ met
all of the Union's demands. as to rie;ances and other mat-
ters. except for the nion's grie. ance seekin the reinstiate-
ment with hackpa of one emplosee AS to this neploxce's
discharge. the Company insisted that this be arbitrated be-
cause it believed that he had broken into an octice. da miaged
file cabinets. and deliberatel1 run into a wa ter main with
hi-lo truck. thereby flooding a work area with scalding \.a-
ter. This grievance was later settled. betre tihe case ,as
arbitrated, with the dischargee's ai er o reinstateilment
and agreement to accept a sum of money from the (oul-
pany. Barclae credibl testified to the helief that the (oi-
pan had no contractual obligation to accede to ans of the
Union's grievances or other demands.
After the June 15 meeting. Plant Manager l)a is tele-
phoned Union President Spooner and asked him about the
Houck grievance. Spooner replied that he knes, nothin
about it. that he had seen no "paperwork" on it, and that it
must be at the local level. In mid-June. in the plant parking
lot. Houck asked Cooper what step the griev ance was in
Cooper said the third step. Houck asked what %oul1d hap-
pen to the grievance after the third step it' the Compan did
not want to talk about it again. Cooper said that it ould
go to arbitration. A few days later Cooper told Britt that
Cooper "couldnt do a thing for CherNl at all."
My findings in this Part II. D about Cooper's conv ersa-
tion with Houck and Britt regarding the Houck grievance
are based on credible portions of Houck's and Britt's testi-
mony. In addition to describing the specific conversations
summarized above, both Houck and Britt gave testimon\.
relatively generalized as to dates and contents. regarding
their conversations with Cooper on this subject. I regard it
as unnecessary to determine the number. contents, and
dates of any conversations in addition to those specificall!
described above. Cooper testified, in effect, that after Britt
acccused her in mid- or late April of racial discrimination in
handling grievances she had no more conversations with
Britt about Houck's grievance. Cooper further testified that
during her conversations with HIouck. after Cooper re-
turned to work. "I told her the compan \, as till den ing
Among other hings. the ('ompan' agreed ro reinsitle. slih ha,.kpa.I and
full seniorilt. an employee altegedl dhlrged Ior rtluslg t, ohes Plant
Manager Davis' Instructions and "t1lsjing iml ul" Alo,. the (nompan
agreed to give 2 weeks' hackpa t w cnmp,,\ee, ',h, had receied 2 eeks'
dlsciplinars las off for alleged gmnhng
-I
I)(CISIONS OF NATIONAL LABOR REL.ATIONS BOARD
her grievance. They said she quit .... All I could tell her
. . was, now that the grievance is in Mr. Spooner's hands.
and they haven't called a meeting or I could tell her that
they had called one .... If there was a meeting. I would tell
her. If there was no meeting, I couldn't tell her." Cooper
did not testify to any meetings with the Company which
were held after her return to work and during which the
Houck grievance was discussed. As to the period before
Houck filed the charge herein, the only such meetings
shown by the credible evidence were the April 25 meeting
where Davis brought up the louck grievance and "called
time" on it, without any protest by Cooper, and the June 15
telephone call initiated by Davis to Spooner, who said he
knew nothing about Houck's grievance. In view of the fore-
going and demeanor considerations, I discredit the testi-
mony of Cooper, summarized in this paragraph, about her
conversations with Houck and Britt regarding the louck
grievance.
E. Houck's Reinstatement Without Backpqv
The first week in July, Houck telephoned Spooner about
her grievance. He said that he had never seen or heard of it
and would see what he could do with it. Houck filed her
charge herein on July 5. Later in July. Spooner told Barclae
that Cooper had "really screwed up the Cheryl Houck
grievance," and asked Barclae to take her back. Barclae
said that he had examined her records a few days earlier
and was not interested in taking her back.' In early August,
Spooner telephoned International Representative Ward
and told him that a member at Falcon Industries "had quit
and . . . wanted her job back and changed her mind."
Spooner further told Ward that Barclae had offered to put
her back to work without seniority and that Spooner
"wasn't too happy with that." Spooner asked Ward to in-
tercede with Barclae. Then Ward telephoned Barclae and
asked him, as "a personal favor," to reinstate Houck be-
cause he wanted to limit the Union's liability to Houck and
"Wilma Cooper had really screwed up the grievance situ-
ation." Barclae said that he would "not do anything other
than what I told [Spooner] I would do. I will not give her
seniority back, she quit." Ward asked why Barclae would
not restore Houck's seniority. Barclae said that because of
her attendance record she was not a good employee and he
did not want her back at all, but he would take her back
without seniority. Ward said that doing more for her than
the contract required might improve the relationship be-
tween the Union and the Company. Barclae said that he
would take her back with seniority, as a personal favor to
Ward and as long as no precedent would be established, but
she would have to go on the shift to which she would be
assigned by seniority. Ward said that this would be fine.9
I Barclae testified at he hearing that he did not want to take her back
because "it would have established a precedent that an employee could quit
and then we would rehire her with full reinstatement." Barclae urther testi-
fled that he did not examine her work record or make any statements about
her work habits until after the charge had been filed. Davis testified that her
work record was all right or good and that her attendance record was not totx
good.
I My findings as to this conversation are based on a composite of credible
portions of Barclae's and Ward's testimony. To the limited extent that their
testimony conflicts. for demeanor reasons I credit Barclae.
In early August 1978, during a discussion with Houck
about her grievance. Cooper gratuitously brought up the
December 1977 pallet incident and said that that had noth-
ing to do with her not taking care of Houck.
hlouck returned to work, with seniority dating from her
1973 hire, in August 1978. She was never given any back-
pay for the period she was out otf work.
F. Othcer Disputed Factual Issues
1. Spooner's alleged April decision not to process the
Houck grievance
Union President Spooner testified that during a caucus
sometime between April 3 and April 20, he expressed a
decision not to pursue the Houck grievance because she
had quit and, therefore, the Union could not win it. It is
uncontradicted that Spooner told Davis about late June, at
least 2 months after this alleged decision, that Spooner
knew nothing about Houck's grievance. Spooner testified
that during this alleged caucus. "the committee went back
and got Cheryl Houck's grievance." Union chairperson
Cooper testified that on or about April 3 and before she
returned to work from her medical leave of absence, a re-
turn date she initially gave as April 27.10 she attended a
third-step grievance conference between company and
union representatives, including Spooner, during which al-
ternate chairperson Rajewski went down to the union office
in the plant to fetch the Houck grievance. Cooper testified
that no decision was made in her presence not to take the
Houck grievance to arbitration. and her prehearing affida-
vit states that after this alleged discussion she continued to
pursue the Houck grievance. Cooper testified that Com-
pany President Barclae attended this conference and that
during this conference Plant Manager Davis discussed the
Houck grievance with the Union: but Barclae and Davis
both testified that during this period of time Houck's griev-
ance did not come up between them and any union official.
Moreover, between March 15 and mid-April there were no
step 3 meetings. Also, Spooner testified that if the Union
had discussed Houck's grievance with management during
this period. his contemporaneously made minutes (G.C.
Exh. 6), which do not mention her grievance, would have so
stated. Cooper's prehearing affidavit does not refer to a cau-
cus, and aside from stating that the caucus was about
Houck's grievance, Cooper's testimony does not describe
what happened there.
Rajewski initially testified on direct examination that af-
ter her alleged telephone conversation with Cooper about
March 31, regarding Houck's grievance, this grievance was
discussed in her presence on only one other occasion, dur-
ing a meeting in late March with Davis, Houck, Hansbury,
and Plant Superintendent Holtz. Rajewski's testimony as to
this meeting is somewhat like Houck's credited testimony
about a conference in Davis' office on March 29, before her
written grievance was filed. Later. on direct examination,
' On cross-examination she testified that she may have returned on April
10 or 17. While on medical leave of absence she had to make daily trips to a
nearby medical clinic for treatment, but was physically able to confer with
management.
532
LOCAL 417. UAW
Rajewski testified that during a subsequent meeting at-
tended by Spooner, Barclae. and Cooper, Rajewski got the
yellow copy of the Houck grievance from the union file and
gave it to Cooper. Her testimony does not refer to a caucus.
On cross-examination Rajewski testified that she did not
mention this alleged Spooner-Cooper-Barclae meeting in
her prehearing affidavit, that during the General Counsel's
investigation she had repeatedly told him that after the
March meeting with Davis she had attended no other meet-
ings about the Houck grievance, and that the first time she
mentioned the Spooner-Cooper-Barclae meeting to the
General Counsel was about 2 days before the hearing, and
after she talked to Cooper and Spooner.
Moreover, when the General Counsel subpenaed
Spooner's minutes of his conferences with the Company.
the contemporaneously written minutes between November
1977 and January 1979 (G.C. Exh. 6) which were supplied
pursuant to that subpena did not mention the Houck griev-
ance. Later, Spooner produced an undated document
(Resp. Exh. 8) which consists of some notes which he took
during a caucus, and which states:
Cheryl Houck
Jean Carr
Cheryl and Randy was to have switched shifts.
There is no swapping of shifts in contract.
Greg:
The day Cheryl was to be transferred she talk me
twice, also said she didn't feel [as though?] Hansbury
could do anything for her and was there something I
could do. I said I would try. I talk to Mike. Mike said
she was flying off the handle and wouldn't give me a
chance to help her.
Andrew Johnson
Spooner testified that the caucus during which he prepared
Respondent's Exhibit 8 must have been held before April
20, because the document refers to Andrew Johnson and
(he testified) Andrew Johnson's grievance was discussed at
a meeting with the Company on April 20. Those portions of
General Counsel's Exhibit 6 which describe the April 20
meeting with the Company refer to a grievance filed by
Mary Johnson but do not refer to Andrew Johnson, whose
grievance is not mentioned in General Counsel's Exhibit 6
until the May I entry. Spooner also testified that Jean Carr.,
whom he identified as Houck's aunt, was present at the
caucus described in Respondent's Exhibit 8. Doris Carr
credibly testified that she is also known as Jean Carr: that
she is Houck's aunt: that the only conversation she ever
had with Spooner about Houck's grievance took place in
mid- or late July 1978, after her June 1978 promotion to a
supervisory job; and that Cooper and Gregory Garayer
were also present but Rajewski was not. I conclude that
Respondent's Exhibit 8 describes a caucus held in July
1978, after Houck filed her July 5 charge, and not a caucus
held before April 20, 1978.
In view of the foregoing discrepancies between the testi-
mony of Cooper, Spooner, and Rajewski; the absence from
Spooner's contemporaneous minutes of any reference to the
Houck grievance; Rajewski's belatedness in mentioning this
alleged April conference; Spooner's June statement to Da-
vis that he had never heard of the Houck grievance: and
demeanor considerations, I discredit Spooner's testimon\
(in effect denied by Cooper) that in April he expressed the
decision during a union caucus that the Union would not
pursue Houck's grievance because it was unmeritorious:
discredit Cooper's testimony (in effect denied b Spooner)
that the Union discussed Houck's grievance with company
representatives during a conference in about earls April:
discredit the testimony that on an occasion about earls
April, Rajewski brought Spooner the Union's copy of the
Houck grievance: and credit Barclae's and Davis' testi-
mony that during this period (between I and 24, inclusive.
as to Davis, and at all times before July 5. as to Barclae)
they had no contact with any union official about the
Houck grievance.
2. The alleged appeal to step 2
Furthermore, I find that the Houck grievance was never
appealed to step 2 of the grievance procedure. The contract
requires that appeals to step 2 he taken by the "chairman"
(Cooper or Rajewski) to the plant manager (Davis). How-
ever, there is no testimonial contradiction of Davis' testi-
mony that the grievance was never appealed to step 2 and
that no union official ever asked him for a second-step
meeting on the grievance." Moreover. the pink copy of the
grievance contains an entry by Davis, dated April 25. that
no second-step meeting had been requested. Nor is there
any testimonial contradiction of Davis' further testimony
that his undated entry on the lower half of the yellow griev-
ance form ("Denied-Cheryl Quit/Bill Davis") was made
during a conversation where the only union representative
present was the committeeman, and without the presence
(as called for by the contract at step 2) of either chairperson
Cooper or acting chairperson Rajewski. Furthermore,
chairperson Cooper testified that in mid- or late April
(which according to Davis was after he had made this sec-
ond, undated entry on the back of the yellow grievance
form), Acting Chairperson Rajewski told her, Spooner.
committeeman Garayer, Barclae, and Davis that the Com-
pany had only given the step I answer on the grievance and
had not called the step 2 meeting.
Nor does the Union seem to take a position as to who
appealed the grievance to step 2, when it was appealed,
which union representatives participated in a step 2 meet-
ing on the grievance, or the date of that meeting. Rather,
the Union seems to argue that the occurrence of such a step
2 meeting is established by the fact that Davis made entries
on the lower half of the Union's yellow copy of the griev-
ance ("Denied-Cheryl Quit") and of his own pink cops
("Union did not follow thru. Grievance is dead . .. 4/2 5,
78"). The Union relies on Cooper's testimony that Falcon
gives its second-step answer on the lower half of the back of
the grievance, and Spooner's testimony that he had seen an
undisclosed number of grievances which were handled by
Davis on bahalf of the Company, and that on these docu-
ments the step 2 response was always entered on the lower
" However, once the appeal has been made b3 the Union. the Company is
supposed to set up a second-step meeting
533
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
half of the back of the grievance form'2 However, Falcon
President Barclae testified that the second-step disposition
is generally entered on the top half of the page. While he
did not participate in the grievance procedure until the
third step, his testimony indicates that the practice was not
wholly uniform. Barclae futher testified that as a normal
practice the step 2 entry should state the step (although see
fn. 12 supra,) and be dated. Davis testified that he followed
this practice and, further, that when he wrote answers to
grievances during second-step meetings, by using carbon
paper he entered the same material on both his pink and
the Union's yellow copy. Davis' testimony in this respect,
which I credit, and his entries on the yellow and pink griev-
ance forms are consistent with his testimonial explanation,
which I therefore credit, about the circumstances under
which such entries were made. I regard Cooper's and
Spooner's testimony about the customary location of sec-
ond-step grievance entries as less substantial than the fore-
going evidence that Houck's grievance was never appealed
to that step.
G. Analysis and Conclusions
On the day that Houck's shift change became effective,
acting chairperson Rajewski told management in Houck's
presence that Rajewski did not understand why manage-
ment would not permit Houck to exchange shifts with
Lindsay effective that day. Also, that same day, committee-
man Hansbury told Houck to come in the next day to fill
out a grievance. On the following day Hansbury told
Houck that there should be no problem in obtaining favor-
able action on her grievance; advised her to obtain what
would have amounted to a postponement of her obligation
to work on the new shift until a date when the plant man-
ager had said he would accept more shift exchanges: and
filled out, signed, and filed a grievance form in connection
with the matter. This grievance advanced an argumentative
factual statement on her behalf, including an assertion by
Hansbury personally ("Bill Davis stated that Houck] quit.
I was present and I did not hear her quit").
Having thus undertaken to process Houck's grievance,
the Union was thereafter obligated to dispose of the griev-
ance in accordance with the standards imposed by the
Union's duty of fair representation. Glass Bottle Blowers
Association of the United States and Canada, A FL-CIO, Lo-
cal No. 106 (Owens-Illinois, Inc.), 240 NLRB 324 (1979).
While the Union's duty of fair representation did not forbid
it either to refuse to process the grievance or to handle it in
a particular manner for a multitude of reasons, that duty
did forbid the Union to refuse or fail to process it for an
i" In alleged corroboration of Spooner's testimony in this respect, the
Union offered into evidence five written grievances directed against Falcon.
None of these was processed dunng the period when Davis was the plant
manager, and there is no evidence that he had anything to do with process-
ing any of them. Furthermore, because the grievances do not state the step of
the grievance disposition in terms, and because the time intervals between
the various dispositions are frequently longer than the contractually pre-
scribed limits, it is difficult to determine from the face of these documents
which entry was made in connection with which step. (However, as to one of
these, Cooper credibly testified on the basis of her own knowledge that the
entry on the lower half of the back was the second-step disposition.)
arbitrary or invidious reason, or "without reason, merely at
the whim of someone exercising union authority." General
Truck Drivers, Warehousemen, Helpers and A utomotive Em-
ployees, Local 315, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Rhodes
& Jamieson, Ltd.), 217 NLRB 616, 617-618 (1975), enfd.
545 F.2d 1 173 (9th Cir. 1976); see also Milstead v. Interna-
tional Brotherhood of Teamsters, Local Union No. 957, 580
F.2d 232, 235 (6th Cir. 1978). 3 Further, the Union's duty of
fair representation imposed on it the duty not to "purposely
keep [Houck] uninformed or misinformed concerning" her
grievance. Groves-Granite, 229 NLRB 56, 63 (1977); see
also International Union of Electrical, Radio and Machine
Workers, AFL-CIO, Frigidaire Local 801 v. N.L.R.B., 307
F.2d 679, 683 (D.C.), cert. denied 371 U.S. 936 (per Burger,
C. J.).14
The credited evidence establishes that the Union,
through chairperson Cooper, failed to process Houck's
grievance either without reason, or for arbitrary or invid-
ious reasons-namely, Cooper's dispute with Houck about
the pallet or Cooper's resentment of the racial discrimina-
tion charge advanced against her by Britt, Houck's friend,
in connection with the status of Houck's grievance. Thus,
the Union never appealed Houck's grievance to the second
step of the grievance procedure even when Plant Superin-
tendent Davis in effect invited Hansbury and then Cooper
to do so, and even though as to all grievances (other than
Houck's) where Cooper was dissatisfied with the result or
where Davis had "called time," Cooper took the grievance
to the next step. Moreover, although just before the strike
meeting Britt reminded Cooper of Houck's grievance, the
Union did not bring it up during the June conferences with
the Company when, following the Union's threat to strike
unless all outstanding grievances and problems were re-
solved, the Company met practically all of the Union's ex-
pressed demands. I need not and do not decide whether the
Union's inaction would have breached its fair representa-
tion duty if due merely to negligence.'5 In the instant case,
3 The Union relies on International Union. United Automobile, Aerospace
and Agricultural Implement Workers of America, UA W (North American
Rockwell Corporation), 194 NLRB 1085, 1087 (1972), which predates Rhodes
d Jamieson. Although stating that some form of union hostility or opposition
to the individual discnriminated against had been present in pnor Board cases
finding a breach of the duty of fair representation, the trial examiner's Deci-
sion (adopted by the Board) went on to state, "This is not to say that one
cannot conceive of a situation where the Union's conduct is so patently
arbitrary or unfair that no motivating reason need necessarily be shown."
4 Nothing to the contrary is suggested by Baldini v. Local Union No. 1095.
International Union, United Automobile, Aerospace and Agricultural Imple-
ment Workers, 581 F.2d 145 (7th Cir. 1978). The court of appeals there held
that a union member was obligated to exhaust his remedies within the union
before he could maintain a civil suit against it in Federal district court under
Section 301 of the Act for breach of the duty of fair representation, based on
allegations that the Union had told him that steps necessary to obtain arbi-
tration of his gnevance had been taken when in fact they never were. The
court went on to state, however, that if established, such allegations might
make out a breach of the Union's duty. In the instant case there is no
evidence that Houck had internal remedies against Respondent Local 417.
In any event, see N.LR.B. v. Industrial Union of Marine & Shipbuilding
Workers of America, AFL-CIO, 391 U.S. 418 (1968).
1i Cr. Newport News Shipbuilding and Dry Dock Company, 236 NLRB 1470
(1978): ITT Arctic Services, Inc., 238 NLRB 116 (1978);: Ruzicka v. General
Motors Corporation. 523 F.2d 306, 309 310 (6th Cir. 1975); Milstead, supra.
580 F.2d at 235.
,34
LOCAL 417, UAW
the Union's continued inaction, through Cooper. amounted
to a willful failure to pursue the grievance.
Further, the credited evidence shows that Cooper repeat-
edly misinformed Houck, directly or through Britt, regard-
ing the status of her grievance. In April and May, Cooper
variously said that the Union had brought up Houck's
grievance but the Company did not want to discuss it, that
Davis had rejected her grievance, and that a planned meet-
ing on the grievance could not be held. However, since
March 31 the Union had not in fact mentioned Houck's
grievance to the Company; and on April 25, after Cooper
had ignored Davis' tacit invitation to discuss Houck's griev-
ance, he had "called time" on it. About June I Cooper told
Britt, who had advised Cooper that Britt was inquiring
about the grievance at Houck's request, that the grievance
was in the third step and was expected to go to arbitra-
tion-assertions for which there was no basis whatever. At
about the same time, Cooper took Houck that the Com-
pany still did not want to meet on the grievance. In mid-
June, Cooper baselessly told Houck that the grievance was
in the third step and would be arbitrated if the Company
still did not want to meet on it; and shortly thereafter
Cooper baselessly told Houck (through Britt) that the
Union was trying to arbitrate the grievance. This conceal-
ment by Cooper, over a period of many months, of the fact
that the Union had done nothing about Houck's grievance
since March 31, and on April 25 Davis had "called time"
on it, effectively prevented Houck from bringing the matter
up with Spooner, who never heard until June that Houck
had filed a grievance, as late as the first week in July had
not seen it, and told Houck on that date that he would see
what he could do about it-a promise which he later kept
by inducing the Company to reinstate her.
The Union contends that it never had any duty of fair
representation with respect to Houck's grievance, on the
ground that it allegedly had no merit in the sense that the
Company's treatment of Houck allegedly did not constitute
conduct which an arbitrator would have found to be a
breach of the collective-bargaining agreement. I am less
confident than the Union that it could not have induced an
arbitrator to sustain Houck's grievance.' 6 In any event,
"Where, as here, a union undertakes to process a grievance
but decides to abandon the grievance short of arbitration,
the finding of a violation turns not on the merit of the griev-
ance but rather on whether the union's disposition of the
grievance was perfunctory or motivated by ill will or other
invidious considerations." Owens-Illinois, supra. No differ-
ent standard is indicated by Vaca v. Sipes, 386 U.S. 171,
190-193 (1967). Rather, the Supreme Court's discussion in
Vaca assumes that the union must honor the duty of fair
representation with respect to all grievances which it has
undertaken to process, including those which the union
eventually chooses to settle short of arbitration. The Court
stated, inter alia, "n providing for a grievance and arbitra-
tion procedure which gives the union discretion to supervise
the grievance machinery and to invoke arbitration, the em-
"'See, e.g., Novo Industrial Corp.., 41 LA 921; Davis Cabinet Co., 45 LA
1030; Tuttle Press Co., 49 LA 490. Cf. Marbro Food Service, Inc., d/b/a Fab's
Famous Foods Company, 152 NLRB 826, 836-842, enfd. 366 F.2d 477 (10th
Cir. 1966), cert. denied 386 U.S. 912 (1967).
ployer and the union contemplate that each will endeavor
in good faith to settle grievances short of arbitration.
Through this settlement process . . . both sides are assured
that similar complaints will be treated consistently, and ma-
jor problem areas in the interpretation of the collective bar-
gaining contract can be isolated and perhaps resolved. And
finally, the settlement process furthers the interest of the
union as statutory agent and as coauthor of the bargaining
agreement in representing the employees in the enforce-
ment of that agreement." 386 U.S. at 191. Nor is a different
rule suggested by United Steel Workers of America, AFL-
CIO, and its Local 4803 (Grasis Fabricating Compan i. 194
NLRB 716 (1971), decided before Owens-Illinois. Grasis re-
lied on the merit of the union's decision about grievance
strategy as a basis for finding unsupported by the evidence
the contention that the decision was motivated by the griev-
ant's failure to picket.
For the foregoing reasons, I conclude that the Union vio-
lated Section 8(a)(1)(A) of the Act by failing to fairly repre-
sent Cheryl Houck regarding her grievance against the
Company, and by willfully misinforming her about the sta-
tus of her grievance.
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization with the meaning of
Section 2(5) of the Act.
3. The Union has violated Section 8(b)(IXA) of the Act
by failing to fairly represent Cheryl Houck regarding her
grievance against the Company, and by willfully misin-
forming her about the status of her grievance.
4. The foregoing unfair labor practices affect commerce
within the meaning of the Act.
THE REMEDY
Having found that the Union has violated the Act in
certain respects, I shall recommend that it be required to
cease and desist therefrom and from like or related conduct.
Also, I agree with the General Counsel's contention in
his excellent brief that the Union should be required to pay
Houck the money she would have received if she had con-
tinuously worked for the Company from March 29, 1978, to
the date of her August 1978 reinstatement by the Company.
In some cases where a union has unlawfully failed or re-
fused to process a grievance, the Board has required the
union to process the grievance in accordance with the
union's duty of fair representation and, rather than issuing
an immediate order for the payment of the backpay the
employee would have received had the grievance been fa-
vorably disposed of, has retained jurisdiction in order to
reconsider the remedy should compliance with the affirma-
tive provisions of the original order prove ineffective. How-
ever, I believe that an order requiring the Union to ask the
Company to entertain Houck's grievance would be either
futile or unfair to her, and I agree with the General Counsel
that an immediate backpay order should issue here.
In the first place, the grievance is now time barred, and
the evidence indicates that the Company would not waive
535
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this defense if the Union now asked it to entertain Houck's
grievance. Thus, Company President Barclae credibly testi-
fied to the belief that the Company's treatment of Houck
did not violate the contract, and International Representa-
tive Ward credibly testified that when he asked Barclae
about backpay for Houck, "after coming off the ceiling" he
said "no sir . .. I don't owe her a dime."'
Furthermore, even if the Company did entertain the
grievance, the chances of a result favorable to Houck would
be much less than they would have been if the Union had
processed the grievance with reasonable promptness. Thus,
when Plant Manager Davis indicated to committeeman
Hansbury on March 30 that Davis would be disposed to
take her back after the approximately 4-day, cooling-off
period which would result from an appeal to the second
step of the grievance procedure, by offering reinstatement
the Company would have been able to forestall any con-
tinuing indefinite accrual of backpay liability. The same
was true when Davis on April 25 invited Cooper to process
Houck's grievance, and when the Union in mid-June ob-
tained a favorable resolution of virtually all its pending de-
mands and grievances and Davis drew Spooner's attention
to the Houck grievance. However, because after she filed
her charge with the Board the Union (through Spooner and
Ward) prevailed on the Company to reinstate Houck. the
Company's present incentive to offer her a money payment
would be limited to a desire to avoid possible arbitration
expenses (which, of ccurse, it could wholly forestall by
merely refusing to entertain the grievance at all). Moreover,
the Union's public insistence in the instant proceeding that
Houck's grievance had no merit would as a practical matter
interfere with the chances of a favorable ruling on the griev-
ance. Finally, the Union's failure to mention Houck's griev-
ance during the June 1978 discussions, which resulted in the
Union's obtaining a full remedy for practically all the griev-
ances it brought up and satisfaction of all its other de-
mands, deprived Houck of the Union's unusual tactical ad-
vantage at that time, when the Company believed that its
financial position would require a permanent shutdown if
the Union called its threatened strike.
Moreover, whether or not Houck's grievance constituted
a company violation of the bargaining agreement, the
weight of the evidence indicates that the Company would in
fact have acted favorably on the grievance if the Union had
pursued it before she filed her charge. Thus, when commit-
teeman Hansbury unsuccessfully presented her grievance to
Plant Manager Davis at the first step on March 30, he indi-
cated to Hansbury that Davis would be disposed to take
her back after the cooling-off period, of no more than 4
days, which would result from an appeal to the second step
of the grievance procedure, an appeal which the Union nev-
er took. Moreover, Davis credibly testified that when he
brought Houck's grievance to Cooper's attention on April
25, he was willing to negotiate on it as to timeliness and
substance. Furthermore, the weight of the evidence shows
that because of the Union's particularly good bargaining
position in mid-June, the Company would have taken back
Houck with full backpay if the Union had then asked the
Company to consider her grievance. Thus, at that time the
'1 Cf. Owens-Illinois, supra, 240 NLRB 324, fn. 10.
Union obtained all the relief it sought with respect to all 17
of the pending demands and 3 of the 4 pending grievances
which it brought to the Company's attention, including re-
instatement and full backpay for an employee allegedly dis-
charged for disobeying and cursing Plant Manager Davis
and full backpay for two employees who had received 2-
week suspensions for gambling. The Company capitulated
to these union demands and grievances notwithstanding
Barclae's belief that the Union was not contractually enti-
tled to satisfaction of any of them. Such fully remedied
grievances would appear to be at the very least no more
likely to receive favorable company action than the griev-
ance filed by Houck." The only grievance in which the
Union received less than it asked for arose from a discharge
because of alleged intentional destruction of company
property, and even this grievance was remitted to arbitra-
tion and was eventually settled by the Company's paying a
sum of money to the grievant. In contrast, no contention is
made that Houck engaged in any misconduct. In any event,
because any doubts about what would have happened to
the grievance were created by the Union's unlawful failure
to process it, such doubts should be resolved against the
Union. Local Union No. 2088, International Brotherhood of
Electrical Workers, AFL-CIO (Federal Electric Corpora-
tion), 218 NLRB 396, 397 (1975); Philip Carey Manufactur-
ing Company Miami Cabinet Division v. N.L.R.B., 331 F.2d
720, 729 (6th Cir. 1964), cert denied 379 U.S. 888.'9
For the foregoing reasons, I regard an unconditional
backpay order against the Union at this stage as best effec-
tuating the policies of the Act. See Federal Electric, supra,
396. Such backpay shall consist of the amount that Houck
would have received from the Company if continuously em-
ployed by it from March 29, 1978, to the date of her rein-
statement in August 1978, less her net earnings (if any) dur-
ing this period, to be computed in the manner described in
F. W. Woolworth Company, 90 NLRB 289 (1950), with in-
terest as described in Florida Steel Corporation, 231 NLRB
651 (1977)?-
The Union will also be required to post appropriate no-
tices.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
ORDER2'
Respondent Local 417, International Union, United Au-
" In view of the Company's favorable mid-June disposition of the Union's
demands and grievances, through Barclae, I regard as immaterial the evi-
dence that in June 1978 the Union was so dissatisfied with Davis that it tned
to induce the Company to discharge him.
19 Cf. Owens-Illinois, 240 NLRB 324, holding that an immediate backpay
award "would involve speculation into the merits of the) grievances and
might well be punitive," citing N.ILR.B. v. Local 485, International Union of
Electrical, Radio and Machine Workers, AFL-CIO Automotive Plating Co.],
454 F.2d 17 (2d Cir.). Here, the evidence shows that Houck's grievance
would have been favorably settled prior to arbitration and whether or not
the grievance made out a contractual violation, I note International Repre-
sentative Wade's credible testimony that the Union did in fact process, at
least through the "third step," grievances which did not make out a contrac-
tual violation. Indeed, of the six grievance forms in the record, only Houck's
specifies the contractual clause assertedly violated.
"See, generally, Isis Plumbing Heating Co., 138 NLRB 716 (1962).
2' In the event no exceptions are filed as provided by Sec. 102.46 of the
536
LOCAL 417. AW
tomobile, Aerospace and Agricultural Workers of America
(UAW), its officers, agents, and representatives, shall:
I. Cease and desist from:
(a) Failing or refusing to process the grievances of
Cheryl Houck, or any' other employee, or processing such
grievances in a perfunctory manner, without reason, or for
arbitrary or invidious reasons.
(b) Willfully misinforming Cheryl Houck or any other
employee as to the status of his grievance.
(c) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them
under Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Make Cheryl Houck whole for any loss of pay she
may have suffered by reason of her failure to work for Fal-
con Industries, Inc., between March 29. 1978. and her rein-
statement in August 1978. in the manner set forth in that
part of this Decision entitled "The Remedy."
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.
(b) Post at its offices and meeting halls copies ofl the at-
tached notice marked "Appendix.""' Copies of said notice,
on forms to be provided bh the Regional Director for Re-
gion 7, after being duly signed by the Respondent's autho-
rized representative, shall be posted b it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
daxs thereafter, in conspicuous places. including all places
where Respondent customarily posts notices to Its mem-
bers. Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered, defaced. or covered bh
any other material.
(c) Furnish signed copies of the notice to the Regional
Director for Region 7 for posting by Falcon Industries.
Inc., said Employer being willing. at all locations where
notices to its employees are customarily posted.
(d) Notify the Regional Director for Region 7. in writ-
ing, within 20 days from the date of this Order. what steps
Respondent has taken to comply herewith.
2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
537