Oil, Chemical And Atomic Workers International Union, Local No. 5-114, Afl-Cio (Colgate-Palmolive Co.)

National Labor Relations Board - Board Decisions

Jun 15, 1989

295 N.L.R.B. 742 (N.L.R.B. 1989)

742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Oil, Chemical and Atomic Workers International
Union, Local No. 5-114, AFL-CIO (Colgate-
Palmolive Company) and Ronald A. Moody.
Case 17-CB-3426
June 15, 1989
DECISION AND ORDER REMANDING
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On August 16, 1988, Administrative Law Judge
Steven M. Charno issued the attached decision.
The General Counsel and the Respondent filed ex-
ceptions and supporting briefs, and the Respondent
filed an answering brief to the General Counsel's
exceptions.
The National Labor Relations Board has delegat-
ed its ' authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order Remanding.
The judge found that the Respondent Union vio-
lated Section 8(b)(1)(A) of the Act in two respects
alleged by the General Counsel, but that the Re-
spondent did not engage in two other alleged
8(b)(1)(A) violations. As explained below, we
adopt the judge's findings of the two violations but,
for the reasons also described below, we reverse
his dismissals . Further, we shall revise the judge's
recommended remedy for certain of the violations
he found to conform it with recent precedent.
The Respondent represents a bargaining unit of
approximately 600 workers at the Employer's
Kansas City, Kansas facility, and the Respondent
and the Employer are parties to a collective-bar-
gaining agreement that contains a grievance and ar-
bitration clause. At all relevant times, the Charging
Party, Ronald Moody, was a unit employee but
was not a member of the Respondent. On Novem-
ber 4, 1986, Moody was involved in a fight with
another employee. The Employer originally intend-
ed to discharge both employees but, due to the Re-
spondent's efforts, the Employer instead suspended
both on November 18, 1986, for 90 days. The other
employee accepted the discipline. Moody, howev-
er, filed a grievance with the Respondent on No-
vember 21, 1986. That grievance was denied by the
Employer at each step of the grievance procedure
preceding arbitration and was returned to Moody
on August 11, 1987.
On August 20, 1987,1 Moody asked the Re-
spondent's vice president , James ' Starcher, how he
could submit his grievance to arbitration. Starcher
explained to Moody that the Respondent's mem-
bership was required to vote to decide whether a
grievance would go to arbitration. Starcher also
told Moody that it had been the Respondent's
practice for a grievant to present his grievance at a
union membership meeting . Moody asked if he
could do this, and Starcher responded, "[y]ou're
not allowed in the Union hall without being a
union member." Starcher asked Moody if there
was anyone who would present Moody's griev-
ance, and Moody asked Starcher if he would do so.
Starcher refused, commenting "I tried to get you
to belong to the union." Moody questioned Starch-
er's meaning , and Starcher replied, "I tried to get
you to join the union, then we wouldn't have this
problem." Starcher told Moody he would check
with the Respondent's president, Vern Dietz, on
the matter.
Later that day, Moody met with Dietz and
Starcher. Dietz told Moody that Moody could
send the Respondent a letter requesting arbitration
and giving reasons for the request, and that the
letter would be presented at a membership meeting.
Starcher reaffirmed that Moody would not be al-
lowed to attend the meeting.
As a result of his conversation with the Re-
spondent's officers, Moody prepared a statement of
reasons for submitting his grievance to arbitration
and included his 1986 statement concerning his
grievance. Attached was a receipt with signature
and date lines, and which provided that "[t]his
statement is to be read in full by Vern Dietz at the
next union meeting and voted on."
On August 27, Moody offered the statements to
Dietz and asked him to sign the receipt. Dietz re-
sponded:
No, I won't sign nothing for you. You're not a
union member. I won't sign nothing for you
... other than what the law makes me, and
that 's because you're not a union member.
When Moody gave the papers to Dietz, the latter
stated:
I'll present it for you, but . . . I won't give
you my signature on anything, because I don't
represent you. I 'm not a legal attorney . . .
those people I represent because I've been
elected and they pay dues, but non-union
members I don 't do that for.
' All subsequent dates are in 1987 unless noted otherwise
295 NLRB No. 76
OIL WORKERS LOCAL 5-114 (COLGATE-PALMOLIVE CO.)
On September 8, Moody filed the instant unfair
labor practice charge against the Respondent. On
September 16, the Respondent held three meetings
for its members . After each meeting was called to
order, the Respondent's officers presented reports.
Included was one by Steward Joseph Stude on the
status of grievances. Starcher then spoke briefly
and Dietz gave a lengthy report. According to the
Respondent 's official minutes of the September 16
meetings, at the close of Dietz' presentation , "[t]he
R. Moody grievance, arbitration and charges
against the union were reported ." The Respondent
refused to read Moody 's statements to its members
and, though the statements were made available to
the membership , the meetings were not recessed to
allow the Respondent 's members to review them.2
After various other reports and communications
were read , motions were entertained , and a motion
that Moody's grievance not be taken to arbitration
was passed at each of the meetings . The next day,
Starcher informed Moody of the outcome and indi-
cated that Moody 's statements had not been read at
the membership meetings.
The judge found that the Respondent violated
Section 8 (b)(1)(A) on September 16 by discrimina-
torily refusing to permit Moody to attend the meet-
ings of its members in order to seek their vote to
arbitrate his grievance. We agree with this finding.
In doing so, we note in particular that the Re-
spondent's asserted "substituted but equivalent pro-
cedure" for Moody's grievance fell far short of the
procedure customarily provided to the Respond-
ent's members especially given that the Respondent
refused to read Moody's statements to its members
and that there was no one to advocate arbitration
of his grievance at the meeting . 3 This disparate
8 The judge found that unit employee Cathy GaMarsh had testified
that Moody's grievance had been read by Chief Steward David Taylor,
and the judge rejected GaMarsh 's testimony because Taylor had testified
that he had not attended any of the membership meetings GaMarsh actu-
ally testified that the grievance was read by the chief steward , and that
this could have been either David Taylor or Joe Stude . The record
shows that the latter did in fact attend the membership meetings and re-
ported grievances . Thus, we find that the judge's characterization of Ga-
Marsh's testimony was erroneous . However , we do not reverse the
judge 's credibility finding concerning GaMarsh because , as he indicated
at fn . 9 of his decision , she had a poor recollection of the September 16
membership meeting.
8 The judge found that Glass & Pottery Workers Local 15 (Owens-Corn-
ing), 282 NLRB 1296 (1987), relied on by the Respondent, was inapposite
because there was no evidence here that the Respondent's members were
otherwise aware of the nature of Moody 's grievance and request for arbi-
tration. The Respondent contends that the judge himself had excluded
such evidence We find that the Respondent's offers of proof were in any
event insufficient to establish that the evidence would show that, as in
Glass & Pottery Workers , the members who decided whether to proceed
with the complainant 's grievance were fully aware of the facts of the
grievance Unlike Glass & Pottery Workers, the Respondent 's offers of
proof involved the knowledge of the facts of Moody 's grievance by only
2 of the 45 members who voted on the grievance , and there was no indi-
cation what the source of these members ' knowledge was and hence
whether that source was comparable to the sources of knowledge of the
743
treatment of a nonmember was arbitrary and dis-
criminatory , and was inherently destructive of im-
portant employee rights and violated Section
8(b)(1)(A) of the Act as the judge found.4
The judge , however, found that Starcher 's earli-
er statement to Moody on August 20 that "we
wouldn 't have this problem " if Moody were a
union member did not violate Section 8 (b)(1)(A).
We disagree . In dismissing , the judge found that
the statement was not made in the context of a re-
fusal to process Moody's grievance , but in the
course of seeking a solution to the "problems,"
purportedly shared by Moody and the Respondent,
of Moody 's nonmember status . As the facts clearly
reveal , however, there is no indication in Starcher's
comments that the Respondent was then seeking a
"solution" to the perceived "problem ." Rather,
Starcher told Moody that : (a) the Respondent's
practice was to allow grievants to present their
grievances to the membership at a membership
meeting but (b) because Moody was not a union
member, he was not allowed in the hall to attend a
membership meeting and (c) that Starcher himself
would not present Moody 's grievance to the mem-
bership because Moody was not in the Union. In
this context, Starcher 's statement that no problem
would exist if Moody were a union member rea-
sonably would be understood as a direct rebuke of
Moody 's nonunion status, and would convey the
impression that the Respondent intended to treat
Moody disparately . Indeed, that is precisely what
occurred subsequently.5
business committee in Glass & Pottery Workers We further find Glass &
Pottery Workers distinguishable because in that case there was no evi-
dence that the union had a practice of having grievants present their
grievances to the business committee.
' The judge further found , and we agree, that the Respondent's an-
nouncement of Moody's unfair labor practice charge against it at the
same time that it informed its members that he sought arbitration of his
grievance , during a portion of the meetings that was not appropriate to
either announcement , was a separate violation of Sec. 8 (b)(1)(A). We find
that this conduct additionally supports the conclusion that the Respond-
ent violated Sec 8(bXl)(A) with respect to the presentation of Moody's
request for arbitration of his grievance.
5 In view of the context in which the "problem" statement was made,
we are not persuaded by our dissenting colleague's characterization of
the August 20 encounter as one in which the Respondent was simply ex-
ploring a good-faith solution to the "problem" in a nonthreatening
manner. Because the focus of the encounter, taken as a whole, served to
cast blame on Moody for instigating the "problem ," the coercive effect
of Starcher's statement was not mitigated by his comment that he would
check on the matter with the Respondent 's president.
Assuming that the Respondent was then seeking a solution to the per-
ceived problem , Member Johansen further notes that the solution that the
Respondent settled on-the manner of presentation of Moody's griev-
ance-was rightly found a violation by the judge . In the context here of
informing Moody that he could not attend the meeting while at the same
time failing to afford Moody a substantially equivalent procedure for the
presentation of his request for arbitration of his grievance , Member Jo-
hansen finds on this basis also that the Respondent 's statement to Moody
that he would not have that problem if he had "join[ed ] the union" was
likewise a violation of Sec 8 (b)(1)(A).
Continued
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Finally, we disagree with the judge's finding that
Dietz' statement to Moody on August 27 did not
violate Section 8(b)(1)(A). In dismissing, the judge
found that Dietz' statement that he would do noth-
ing for Moody because he was not a union member
was qualified by the phrase "other than what the
law makes me," and that his statement "I don't rep-
resent you" was made "in the context of profes-
sional legal representation" and was coupled with a
commitment to present Moody's statement at the
membership meetings. We find, however, that
Dietz' statement that he would do what the law re-
quires did not vitiate the coercive effect of his
statement that he did not represent Moody because
Moody was not a member of the Union. 6 Further,
contrary to the judge, it is clear that Moody's
statement did not describe some aspect of "profes-
sional legal representation" but was an indication
that he would treat Moody disparately with regard
to workplace grievances because of his nonunion
status. Accordingly, we reverse the judge's finding
and conclude that Dietz' statement violated Section
8(b)(1)(A) of the Act.
REMEDY
The Respondent has engaged in unfair labor
practices, and we shall order it to cease and desist
and to take affirmative action designed to effectu-
ate the purposes of the Act . We have found that
the Respondent committed various violations in the
handling of Moody's grievance . We find that suffi-
cient evidence has been presented to establish that
Moody's grievance was not clearly frivolous.7
Thus, the burden of proof has shifted to the Re-
spondent to prove that it lacks merit . See Rubber
Workers Local 250 (Mack- Wayne), 290 NLRB 817
(1988) (Member Cracraft dissenting) (Mack-Wayne
II). The Respondent may elect to do so either at
the unfair labor practice stage or in a compliance
proceeding . Accordingly, we shall remand this case
to the judge .8 Should the Respondent elect to liti-
Member Cracraft would not find the August 20 statements by them-
selves to be violative of the Act. The Charging Party was told that the
"problem" would be taken up with the Union's president. Absent an indi-
cation on August 20 that there was no recourse , or solution , for the prob-
lem, the fact that the subsequent "solution" was violative of the Act does
not render the earlier, nonthreatening statements themselves violative.
s See Trico Products Corp., 246 NLRB 514 (1979).
9 Moody claimed that he should not have been suspended for fighting
because he had been defending himself and he had been the one who re-
ported the incident to his supervisor . Given the testimony by the Em-
ployer's supervisor of hourly personnel that the Employer's penalties for
fighting are "based on the circumstances around the incidents ," Moody's
claim that these factors warranted reducing his punishment was not clear-
ly frivolous.
e Member Cracraft would not remand the case and would not allow
for the possibility of a backpay remedy . As stated in her dissent in Mack-
Wayne II, the burden of proof rests with the General Counsel in the ini-
tial unfair labor practice proceeding to show that the grievance in dispute
was meritorious before the Board may award backpay The General
gate the merits issue at the compliance stage, the
judge shall issue an appropriate order based on this
decision, including provisional make-whole and
other remedies similar to those set out in Rubber
Workers Local 250 (Mack-Wayne Closures), 279
NLRB 1074 (1986) (Mack-Wayne I), requiring the
Respondent to (1) permit Ronald Moody to be rep-
resented by his own counsel at the arbitration pro-
ceeding, and (2) to pay the reasonable legal fees of
such counsel. Should the Respondent elect to liti-
gate the merits issue now, the judge shall convene
a hearing for the purpose of taking evidence and,
when the hearing is concluded, shall prepare and
serve on the parties a supplemental decision.
ORDER
It is ordered that the record in this proceeding is
reopened and remanded to Administrative Law
Judge Steven M. Charno for the purpose of allow-
ing the Respondent to elect whether to present evi-
dence on the merits of the grievance at a hearing
or at a subsequent compliance stage.
If the Respondent elects to present evidence on
the merits of the grievance at the compliance stage,
then the judge shall recommend an appropriate
Order based on this decision and that Order shall
contain provisional make-whole and other reme-
dies, including a cease-and-desist order. See Mack-
Wayne I, supra.
If the Respondent elects to present evidence on
the merits of the grievance at this time, Judge
Charno shall convene a further hearing for the pur-
pose of taking evidence in accordance with this de-
cision. On the hearing's conclusion, Judge Charno
shall prepare and serve on the parties a supplemen-
tal decision containing findings of fact, conclusions
of law, recommendations, and an appropriate
Order. Following service of the supplemental deci-
sion on the parties, the provisions of Section 102.46
of the Board's Rules and Regulations shall govern.
Counsel did not sustain such a burden of proof in this case . Additionally,
as set forth in her dissent , she does not believe that the bifurcated pro-
ceedings adopted by her colleagues are an appropriate utilization of the
Board 's resources.
Stephen E. Wamser, Esq., for the General Counsel.
John W. McKendree, Esq., of Denver, Colorado, for the
Respondent.
DECISION
STATEMENT OF THE CASE
STEVEN M . CHARNO, Administrative Law Judge. In
response to a timely filed charge, a complaint was issued
on October 22, 1987, alleging that the Oil , Chemical and
Atomic Workers International Union , Local No. 5-114,
AFL-CIO (Respondent) violated Section 8(b)(1)(A) of
}
OIL WORKERS LOCAL 5-114 (COLGATE-PALMOLIVE CO.)
the National Labor Relations Act, by restraining and co-
ercing employees in the exercise of rights guaranteed in
Section 7 of the Act. Respondent's answer denied the
commission of any unfair labor practice.
A hearing commenced before me in Kansas City,
Kansas, on December 17, 1987. On the second day of
that hearing, I granted the General Counsel's motion to
amend the complaint by inserting an additional allegation
of behavior violative of Section 8(b)(1)(A) of the Act. At
the close of evidence on December 18, I granted Re-
spondent a continuance to allow it to prepare its defense
to the amendment to the complaint.' The continued
hearing took place on January 18, 1988. Thereafter,
briefs were submitted by the General Counsel and Re-
spondent under due date of February 19, 1988.
FINDINGS OF FACT
I. JURISDICTION
Colgate-Palmolive Company (Employer) is a corpora-
tion engaged in the manufacture , sale, and distribution of
soap products with an office and place of business in
Kansas City, Kansas . During the calendar year preceding
issuance of the complaint , the Employer , in the course of
its operations in Kansas , purchased and received goods
valued in excess of $50,000 from points outside the State
and sold and shipped goods valued in excess of $50,000
to points outside the State . It is admitted,2 and I find,
that the Employer is an employer 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 PRACTICES
A. Background
Respondent represents a bargaining unit of approxi-
mately 600 workers at the Employer' s Kansas City facili-
ty3 and runs an ongoing "Close the Ranks" campaign to
induce nonmembers to join the Union; all but 5 of the
unit employees were members of Respondent in August
1987. Respondent and the Employer are parties to a col-
lective-bargaining agreement which contains a grievance
and arbitration provision.
At all times relevant herein , Ronald Moody was a unit
employee but was not a member of Respondent. On No-
' The continuance was also granted to allow effectuation of the parties'
agreement to obtain and submit an expert evaluation of certain tape re-
cordings which had been received in evidence . The expert selected by
the parties did not file his report in a timely fashion and, at the conclu-
sion of the continued hearing , the parties jointly moved to be released
from their agreement to supply such a report . Although I had earlier in-
dicated my willingness to receive the report as a joint exhibit after the
close of the record , I granted the parties ' motion. The parties' January
18, 1988 letter discharging the expert is identified as A.L.J. Exh. 4 and
the expert's late -filed report, as A.L.J. Exh . 5. The former exhibit will be
received in evidence and the latter rejected.
Y Respondent made this admission through amendment of its answer at
the outset of the hearing.
a The bargaining unit is comprised of "all employees employed by the
Employer at its Kansas City, Kansas facility , excluding plant directors of
manufacturing , salesmen , buyers, department managers , professional and
technical employees, foremen , watchmen , office employees and proba-
tionary employees."
745
vember 4, 1986, he was involved in a fight with a fellow
employee, Garrett Buckley. On November 18, the Em-
ployer suspended both employees for a period of 90
days.4 Buckley accepted the discipline, while Moody
filed a grievance with Respondent on November 21.
That grievance was denied by the Employer at every
step of the grievance procedure preceding arbitration5
and was returned to Moody on August 11, 1987.6
B. Events of August 20
On the morning of August 20, Moody called Respond-
ent's hall and spoke with its vice president, James
Starcher.7 When Moody inquired about the procedure
for submitting his grievance to arbitration , Starcher ex-
plained that Respondent 's membership was required to
vote on the matter . Moody inquired as to what he should
do, and Starcher replied that it had been Respondent's
practice for a grievant to present his grievance to the
membership during a membership meeting . Moody asked
if he could do so, and Starcher responded "[y]ou're not
allowed in the union hall without being a union
member." Starcher repeated that Moody would not be
permitted to attend a meeting and promised to bring the
matter to the attention of Vern Dietz, Respondent's
president. Later in the conversation, Starcher asked if
there was anyone who would present Moody's griev-
ance, and Moody asked Starcher to do so. Starcher re-
fused, commenting "I tried to get you to belong to the
union." Moody questioned Starcher 's meaning, and the
latter replied "I tried to get you to join the union, then
we wouldn't have this problem." Moody arranged to
meet Dietz that afternoon, and the conversation ended.
Later that day, Moody met with Dietz and Starcher at
the Employer's facility. After explaining the contractual
arbitration procedure, Dietz stated that Moody could
send Respondent a letter requesting arbitration and
giving reasons for the request . In response to Moody's
query, Dietz indicated that the letter would be presented
to Respondent's members at a membership meeting.
Starcher reaffirmed that Moody would not be allowed to
attend such a meeting . Dietz then informed Moody that
Respondent 's executive board would consider the matter
on September 14 and make a recommendation at Re-
spondent's membership meetings on September 16.
C. The Events of August 27
As a result of his conversation with Respondent's offi-
cers, Moody prepared a two-page statement of reasons
for submitting his grievance to arbitration . Attached
* It is uncontested that the Employer originally intended to discharge
both employees and was deterred from doing so by Respondent's efforts
on their behalves . The General Counsel does not contend that Respond-
ent's representation of Moody prior to the imposition of discipline was
violative of the Act , and I find that the quality of that representation is
without relevance to the issues before me.
The General Counsel does not allege that Respondent unfairly or in-
adequately represented Moody prior to August 11, 1987 Again , the qual-
ity of Respondent 's representation during this period is irrelevant to the
issues before me.
6 All dates hereinafter are 1987 , unless otherwise indicated.
7 All findings concerning conversations between Moody and Respond-
ent's officers are based on tape recording transcripts.
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
thereto was a receipt with signature and date lines,
which provided "[t]his statement is to be read in full by
Vern Dietz at the next union meeting and voted on."
The receipt also noted that Moody's 1986 statement con-
cerning the grievance was attached.
On August 27, Moody offered the two statements to
Dietz and asked the latter to sign the receipt . Dietz re-
sponded:
No, I won 't sign nothing for you . You're not a
union member . I won't sign nothing for you. I
won't do nothing for you, other than what the law
makes me, and that's because you 're not a union
member.
Moody asked whether the refusal was based solely on his
nonmember status, and Dietz amplified that he was paid
to represent dues -paying members and Moody didn't pay
dues . When Moody gave the papers to Dietz, the latter
stated:
I, like I said, I'll present it for you, but as far as
signing anything , why no, I won't give you my sig-
nature on anything , because I don't represent you.
I'm not a legal attorney , I uh, uh , those people I
represent because I've been elected and they pay
dues, but non-union members I don 't do that for.
On September 8, Moody filed the charge against Re-
spondent which resulted in this proceeding.
D. The Union Meetings
On September 16, Respondent held three meetings for
its members . After each meeting was called to order, Re-
spondent 's officers delivered reports . Steward Joseph
Stude reported on the status of grievances and an-
nounced that the "Close the Ranks program has been
very effective with only five non union employees in the
plant." Starcher then commented briefly, and Dietz de-
livered a lengthy report . At the close of Dietz' presenta-
tion , "[t]he R. Moody grievance , arbitration and charges
against the union were reported ." While Moody's state-
ments were made available , there is no indication that
the meetings were recessed in order to allow Respond-
ent's members to peruse them .8 Thereafter, the financial
report was read and applications for membership were
received . Following this , "communications" and the ex-
ecutive board minutes were read . Finally , motions were
entertained , and a motion that Moody's grievance not be
taken to arbitration was passed at each of the meetings.9
6I find immaterial the fact that one of Respondent 's officers, David
Taylor, read Moody 's statements at the executive board meeting which
preceded the membership meetings.
B The foregoing findings are based on Respondent 's official minutes of
the September 16 meetings . Although Respondent offered no evidence
that these minutes were questioned or modified at any subsequent meet-
ing, it attempted to discredit them through the testimony of three of its
officers Each of these witnesses testified concerning a separate meeting,
and none displayed an accurate or detailed recollection of what occurred
on September 16. Thus, John Smotherman attributed the report on
Moody to David Taylor; the latter 's credited testimony that he did not
attend any of the membership meetings is supported by the minutes.
Brian Hannigan believed that the discussion of Moody occurred as a part
of new business , rather than during the officers' reports Cathy GaMarsh
could not recall making the motion that Moody 's grievance not be taken
The following day, Starcher informed Moody of the
outcome of the membership vote and indicated that
Moody's statements had not been read at the membership
meetings. 1 0
E. Discussion
The General Counsel contends that Starcher 's August
20 statement to Moody violated Section 8(b)(1)(A) of the
Act. I disagree . After referring to Moody's inability to
attend a membership meeting in order to request arbitra-
tion of his grievance, Starcher commented "we wouldn't
have this problem" if Moody was a member . This com-
ment was not made in the context of a refusal to process
Moody's grievance."" Indeed , the discussion surrounding
Starcher's comment was concerned with finding a solu-
tion to the "problem" shared by Moody and Respond-
ent. t z For the foregoing reasons, I find that Starcher's
statement was not coercive and, therefore , not violative
of the Act.
The General Counsel also contends that Dietz' com-
ments on August 27 were violative of Section 8(b)(1)(A).
Again, I disagree . Dietz' initial statement that he would
do nothing for Moody because the latter was not a
member was qualified with the phrase "other than what
the law makes me." Dietz' subsequent statement "I don't
represent you" was made in the context of professional
legal representation and was coupled with an explicit
commitment to present Moody's statement at the mem-
bership meetings. I do not believe that either comment
can fairly be read as a refusal by Respondent to repre-
sent a nonmember unit employee as required by law or
to process such an employee 's grievance. i 8 Accordingly,
I find that Dietz' August 27 statements did not restrain
or coerce Moody in the exercise of the latter's Section 7
rights.
The General Counsel alleges that the refusal to allow
Moody to present his request for arbitration to Respond-
ent's membership was discriminatory and violative of the
Act. It is well established that a union may not process a
grievance in an arbitrary or discriminatory manner. See
Vaca v. Sipes, 386 U.S. 171, 190 (1967). This principle is
to arbitration None of the witnesses recalled the recommendation of Re-
spondent 's executive board concerning the grievance . More significantly,
Respondent did not present testimony by Dietz , who made the report on
Moody , or by the individual who prepared the minutes , and I draw the
adverse inference requested by the General Counsel from Respondent's
failure to call either individual . For the foregoing reasons and based on
my observation of the demeanor of the witnesses as they testified , I credit
Respondent 's official records over the testimony of its officers
1OCathy GaMarsh testified that Moody 's grievance had been read by
Chief Steward David Taylor . Because Taylor did not attend the meeting,
I reject GaMarsh 's testimony
I I The three cases cited by the General Counsel in support of its con-
tention that this conversation violated the Act each involved an explicit
refusal to process a grievance because the grievant was not a union
member in good standing . I therefore find that authority unpersuasive in
resolving the issue before me.
12 The General Counsel 's apparent contention that Moody was told
that he had a problem is not supported by Starcher's use of the pronoun
"we „
18 The General Counsel appears to argue that Dietz ' refusal to sign the
receipt , which contained a promise to read Moody 's statements, constitut-
ed a refusal to read Moody's statements at the membership meetings.
Since there is no evidence that Dietz read the receipt before refusing to
sign it, I reject the General Counsel 's argument.
OIL WORKERS LOCAL 5-114 (COLGATE-PALMOLIVE CO.) 747
equally applicable whether or not the grievant is a union
member. American Postal Workers (Postal Service), 277
NLRB 541 fn. 1 (1985). Respondent contends that
Moody's treatment was not discriminatory because he
was given "a substituted but equivalent procedure." Re-
spondent's members may attend its meetings and urge its
membership to vote to arbitrate their grievances. Moody,
as a nonmember , was not allowed to attend a meeting,
and there was no one to advocate arbitration of his
grievance . Respondent even refused to read Moody's
statements to its members .' 4 This substituted procedure
falls far short of being equivalent , and I find the disparity
of treatment afforded members and nonmembers to be in-
trinsically arbitrary and discriminatory , as well as inher-
ently destructive of important employee rights . Respond-
ent's conduct is not insulated by the provision in its con-
stitution and bylaws which prohibits uninvited non-
members from attending membership meetings . Although
a union's internal governance is generally beyond the
scope of the Act, this is not the case when a union rule
impairs a significant statutory labor policy , such as the
nondiscriminatory handling of grievances . See Scofield Y.
NLRB, 394 U.S. 423, 430 (1969). I therefore find Re-
spondent 's refusal violative of Section 8(b)(1)(A) of the
Act.
Finally, the General Counsel contends that Section
8(b)(1)(A) was violated by Respondent 's announcement
of Moody's charge against it at the very moment it in-
formed its members that he sought arbitration of his
grievance . Respondent advances two counterarguments.
First, it asserts that its members could not have been
biased by the announcement since "the evidence was
manifest that Mr. Moody told other employees about the
filing of the unfair labor charge ." This assertion is with-
out evidentiary support' 1 5 and is rejected . Respondent
next argues that it's behavior was required by a valid
union rule which mandates the "reading of communica-
tions" at membership meetings . I reject this argument be-
cause Respondent 's minutes establish that its announce-
ment of Moody's charge did not take place at the point
during its meetings when "communications were read."
Accordingly, I conclude that the validity of Respond-
ent's internal rule concerning communications is without
relevance to the issue before me. Neither Moody's
charge nor his grievance was announced during the por-
tion of the meetings appropriate to such an announce-
ment.'s Instead , the two were explicitly coupled by Re-
spondent's president . I infer from this wholly unneces-
sary, and apparently abnormal , juxtaposition that Re-
spondent's conduct was discriminatorily motivated. I
14 Because there is no evidence that Respondent 's members were
aware of the nature of Moody's grievance and request for arbitration, I
find inapposite the case cited by Respondent, Glass & Pottery Workers
(Owens-Corning Fiberglass), 282 NLRB 1296 (1987)
15 Cathy GaMarsh testified that she heard and "disregarded" Moody's
statement that he intended to file a charge against Respondent ; she fur-
ther testified that it wasn ' t until "later" that she learned a charge had
been filed. Brian Hannigan testified that his first certain knowledge of
Moody's charge came from Dietz ' announcement at a September 16
meeting Similarly, John Smotherman testified that he first learned of the
charge at a September 16 meeting.
16 Steward Stude 's report on outstanding grievances occurred at the
outset of each meeting.
therefore find that the manner of Respondent 's presenta-
tion of Moody's request for arbitration violated Section
8(b)(1)(A) of the Act.
CONCLUSIONS OF LAW
1. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
2. Colgate-Palmolive Company is an employer en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
3. By refusing to permit Ronald Moody to attend the
meetings of its members in order to seek their vote to ar-
bitrate a grievance concerning his suspension , Respond-
ent has engaged in an unfair labor practice in violation of
Section 8(b)(1)(A) of the Act.
4. By explicitly coupling its announcement that Moody
filed an unfair labor practice charge against it with its
consideration of his request that his grievance be carried
to arbitration , Respondent engaged in an unfair labor
practice in violation of Section 8(b)(1)(A) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. A preponderance of the credible evidence does not
establish that Respondent has otherwise violated the Act.
REMEDY
Inasmuch as Respondent has engaged in unfair labor
practices, I shall order it to cease those practices and to
take affirmative action designed to effectuate the pur-
poses of the Act. There can be no certainty that Moody
could have convinced Respondent's membership to arbi-
trate his grievance or that an arbitrator would have
found in Moody's favor . Because these uncertainties are
the direct result of Respondent 's unlawful practices, it is
appropriate to resolve them against Respondent. See
Graphic Communications Local 4 (San Francisco Newspa-
per), 272 NLRB 899, 900 (1984). Accordingly, the affirm-
ative relief ordered herein shall require Respondent to
ask the Employer to rescind Moody's suspension and
make him whole for any loss sustained . If the Employer
refuses to rescind the suspension , Respondent shall ask
the Employer to waive the time limitations in the griev-
ance provisions of the contract and, if the Employer
agrees to waiver, Respondent shall promptly and dili-
gently process Moody's grievance through arbitration. If
the Employer refuses waiver, Respondent shall make
Moody whole, with interest , for any loss he suffered due
to his suspension . See General Teamsters Local 528 (Asso-
ciated Grocers Co-op), 265 NLRB 415, 419 (1982). Back-
pay will be calculated in accordance with the formula set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987)."
Finally, the inclusion of a visitatorial provision, a
remedy sought by the General Counsel , has not been
shown to be necessary in order to ensure compliance
17 Under New Horizons, interest is computed at the short-term Federal
rate for the underpayment of taxes as set out in the 1986 amendments to
26 U S C § 6621.
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
with the Board's Order herein. See Cherokee Marine Ter- [Recommended Order omitted from publication.]
minal, 287 NLRB 1080 (1988).