P.P.G. Industries Inc.

National Labor Relations Board - Board Decisions

May 17, 1977

229 N.L.R.B. 713 (N.L.R.B. 1977)

P.P.G. INDUSTRIES INCORPORATED
P.P.G Industries Incorporated' and Edward Ponkow
Glaziers Union Local 1204, AFL-CIO 2 and Edward
Ponkow. Cases 30-CA-3711 and 30-CB-975
May 17, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On January 19, 1977, Administrative Law Judge
Eugene George Goslee issued the attached Decision
in this proceeding. Thereafter, the Charging Party
filed exceptions, 3 the General Counsel filed excep-
tions and a supporting brief, and the Respondents
each filed a brief in answer to the General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,4 and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
1. The complaint in Case 30-CB-975 alleges that
the Respondent Union violated Section 8(b)(1)(A) of
the Act by failing to represent adequately Joseph and
Edward Ponkow in the presentation of their griev-
ances concerning riding time and mileage to the
Employer's jobsite, and by refusing to proceed to
arbitration on those grievances for arbitrary, irrele-
vant, and invidious reasons. The complaint in Case
30-CA-3711 alleges that the Respondent Employer
violated Section 8(a)(1) and (3) of the Act by refusing
to recall the Ponkows to work because they engaged
in union and/or protected concerted activities. In his
Decision, the Administrative Law Judge found that
the Respondents had not engaged in any unfair labor
practices and therefore recommended that the
complaints herein be dismissed in their entirety. We
I Herein called Respondent Employer or PPG.
2 Herein called Respondent Union.
3 In his exceptions, the Charging Party contends that the Administrative
Law Judge "was completely unfair in his decisions of the cases." After a
careful examination of the entire record, we are satisfied that this allegation
is without merit. There is no basis for finding that bias and partiality existed
merely because the Administrative Law Judge resolved important factual
conflicts in favor of the Respondents' witnesses. As the Supreme Court
stated in N.L.R.B. v. Pittsburgh Steamship Company, 337 U.S. 656, 659
(1949), "IT)otal rejection of an opposed view cannot of itself impugn the
integrity or competence of a trier of fact."
4 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products.
229 NLRB No. 107
find merit in the General Counsel's exceptions to the
Administrative Law Judge's Decision.
2. Turning first to Case 30-CB-975, the relevant
facts can be summarized as follows. The Respondent
Employer is engaged in the distribution and installa-
tion of glass and related products from its facility
located in Milwaukee, Wisconsin. Both Joseph and
Edward Ponkow had been employed by the Respon-
dent Employer for 16 or 17 years, but their jobs were
terminated in 1970 when PPG closed its branch
facility in Oshkosh, Wisconsin.
In July or August 1975, Joseph Ponkow telephoned
PPG in Milwaukee, stated that he knew that they
had been awarded the glazing contract on the
Lutheran Aid building in Appleton, Wisconsin, and
inquired about the availability of work. Approxi-
mately 5 or 6 weeks later, PPG contacted the
Ponkows and told them to report to the Lutheran
Aid jobsite on October 14, 1975.5
After the Ponkows received their first paycheck,
they determined that they had not been paid for
riding time and mileage which they believed they
were entitled to on the ground that the driving
distance from the Oshkosh court house to the
Appleton jobsite was 27-1/2 miles, or 2-1/2 miles in
excess of the "Free Zone" specified in article VIII of
the collective-bargaining agreement then in effect
between the Respondent Union and PPG. 6 This
agreement, which apparently covered other employ-
ers as well, applied to work performed in both the
southern and northern areas of the State of Wiscon-
sin, and provided a separate wage scale for each area.
It appears from the record that the issue of the
Ponkows' entitlement to riding time and mileage
turns on whether, under article VIII, PPG was a
southern area employer, in which case mileage and
riding time could technically be claimed from
Milwaukee to the jobsite in Appleton, or a northern
area employer, in which case riding time and mileage
could only be claimed if the jobsite was outside the
"Free Zone," defined as "a twenty-five (25) mile
radius of the City Hall of the Employer's warehouse
city." The record also reveals that if PPG was a
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings. In
this connection, we note our agreement with the General Counsel's
contention that the Administrative Law Judge erred in finding in sec. lI.B,
par. 16 of his Decision that in Joseph Ponkow's initial testimony he
"vehemently denied that he ever talked to Frank Hudson." Nevertheless, we
find a sufficient basis for affirming the Administrative Law Judge's finding
crediting the testimony of Hudson concerning the contents of the
conversation in question.
I As discussed infra, the Administrative Law Judge found, on the basis of
his credibility resolutions, that in these initial conversations the Ponkows
agreed to the condition imposed by PPG that there would be no payment
for riding time and mileage to thejobsite.
R Art. VIIIl is set forth in part in sec. II,A, par. I of the Administrative
Law Judge's Decision.
713
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
northern area employer under the contract a ques-
tion arises as to whether Appleton or Oshkosh was
the proper "warehouse city." In short, we agree with
the Administrative Law Judge's statement that "a
valid question did exist as to the interpretation of the
bargaining agreement" in relation to the Ponkows'
claim.
In late October 1975, the Ponkows telephoned
Joseph Sofio, business manager of the Respondent
Union, and informed him that they were not
receiving riding time and mileage. Sofio contacted
Branko Stanich, PPG's glazing superintendent for
the Lutheran Aid project, and was told by Stanich
that the matter of riding time and mileage was
between the Ponkows and Frank Hudson, PPG's
branch manager in Milwaukee. Sofio then informed
Edward Ponkow of his conversation with Stanich
and told Ponkow to contact Hudson.
No further developments occurred with regard to
this matter until June 5, 1976,7 when the Ponkows
reduced their claims to writing and presented two
grievances to Business Manager Sofio. On June 8,
Sofio forwarded a copy of the grievances to Branch
Manager Hudson of PPG. 8
The Administrative Law Judge found that on three
occasions during the month of June Sofio discussed
the Ponkows' grievances with Hudson. In each
conversation with Sofio, Hudson maintained that the
Ponkows' grievances were not meritorious, primarily
because the Ponkows had agreed at the time of their
hire that they would not be paid for riding time and
mileage. And, on all three occasions, Sofio expressed
his agreement with Hudson that the grievances had
no validity. Thus, the Administrative Law Judge
found that on June 14 Sofio told Hudson that the
Ponkows "did not have a valid claim"; on June 22
Sofio "again stated that he felt that the Ponkows did
not have a legitimate claim to riding time and
mileage"; and on June 28 Sofio "again agreed that
the Ponkows had no legitimate claim, and told
Hudson to take no further action until he heard
further from Sofio."
Respondent's executive board considered the
Ponkows' grievances on July 219 and unanimously
7 All subsequent dates herein are in 1976 unless otherwise indicated.
s The parties' collective-bargaining agreement contained basically a two-
step procedure under which grievances were first presented to the Employer,
followed by arbitration at the request of either party in the event the
grievance was not satisfactorily adjusted.
9 The Administrative Law Judge, apparently by inadvertence, found in
sec. I[,B, par. 13, of his Decision that the executive board considered the
Ponkows' grievances on July 31.
°o In finding no 8(bXIXA) violation, the Administrative Law Judge also
relied on the fact that the grievances on their face claimed mileage for both
Ponkows, while only one automobile had been driven. Citing the testimony
of Joseph Ponkow that Sofio had cautioned him in October 1975 that
double mileage could not be claimed if only one car was driven, the
Administrative Law Judge concluded that "the grievance they filed with the
Respondent Union was not only in error, but was a purposeful attempt to
agreed not to take the grievances to arbitration. The
minutes of the meeting reveal that the executive
board's action was based on the following considera-
tions:
I. Had the Business Manager secured employ-
ment for the Ponkows they would have received
mileage and riding time.
2. Only one member has riding time coming
(ART 9).
3. The Board cannot justify the delay in time
from Oct. 28, 1975 to June 5, 1976.
4. The expense is too great to go to arbitration.
5. Article 8 is discriminatory toward the Em-
ployer.
Thereafter, Sofio notified the Ponkows of the board's
decision and substantially reiterated the reasons set
forth in the minutes of the meeting. Thus, Sofio
informed the Ponkows that "[i]t would have been the
Business Manager's responsibility, provided he se-
cured the employment for the men." In a letter to a
Board agent dated August 24, Sofio stated that one
of the reasons why the Union did not take the
Ponkows' grievances to arbitration was that "[t]hey
secured their employment on their own and made the
conditions."
The Administrative Law Judge concluded that the
Respondent Union had not breached its duty of fair
representation by the manner in which it processed
the Ponkows' grievances or by its refusal to proceed
to arbitration. The Administrative Law Judge noted
that Sofio discussed the grievances with PPG on
several occasions and when PPG objected to the
grievances, Sofio presented the matter to the execu-
tive board. On the basis of credibility resolutions, the
Administrative Law Judge found that the Ponkows
were informed by PPG at the time of their hire that
travel time and mileage would not be paid and that
this condition of employment fully explained their 7-
month delay in filing the grievances.10 Although we
affirm the Administrative Law Judge's factual
obtain moneys to which the Ponkows were not entitled." Contrary to the
Administrative Law Judge, we do not believe that the record will support
any inference of fraudulent intent on the part of the Ponkows. The source of
this problem lies in the fact that the grievances were set forth on one sheet of
paper signed by both Ponkows. See sec. II,B, par. 7 of the Administrative
Law Judge's Decision. Grievance I involved riding time which concerned
both Ponkows, while grievance 2 involved mileage. In the testimony cited
above, upon which the Administrative Law Judge relied, Joseph Ponkow
also stated that he told Sofio that he, Ponkow, knew that mileage could be
claimed for only one car: "We made that definitely clear, that the mileage
would be split. There was no mention of each one getting mileage. The
mileage was to be split, because my brother took his car one week, I took it
the next week." Although the minutes of the Union's executive board
meeting gave as one of the reasons for not proceeding to arbitration the fact
that 'o ]nly one member has riding time coming" (apparently intended as a
714
P.P.G. INDUSTRIES INCORPORATED
findings, we disagree with the legal conclusions
drawn therefrom.
It is well settled that a bargaining agent must serve
the interests of all bargaining unit employees fairly,
in good faith, and without hostility or discrimination
against any of them on the basis of arbitrary,
irrelevant, or invidious distinctions." The test is
whether the union's conduct toward a unit employee
is "arbitrary, discriminatory, or in bad faith." 12
Thus, a union breaches its duty when it arbitrarily
ignores a meritorious grievance or processes it in a
perfunctory fashion.'3
In Associated Transport,14 we held that once a
union undertakes to present an employee's grievance
to an arbitral committee it is obliged to act as the
employee's advocate, and present his grievance in the
light most favorable to him. Accordingly, we found
there that the union breached its duty of fair
representation by openly stating before the commit-
tee that the grievance was without merit. In sustain-
ing our unfair labor practice finding, the court of
appeals noted that although "a union may in good
faith refuse to process a member's grievance alto-
gether .... [i]t is venerable tort law that purporting
to take action where duty is nonexistent creates in
itself certain duties." 15
We are not prepared to say that the Union's
obligation here, where it was presenting a grievance
at the initial stage of the procedure, is synonymous
with its duty to act as advocate for the grievant
where, as in Associated Transport, it was representing
an employee before an arbitral forum.16 But, under
the principles stated above, the Respondent Union
was obligated to exercise its considerable discretion
in good faith, with honesty of purpose, and free from
reliance on impermissible considerations. We find
that the totality of Respondent's conduct failed to
satisfy that standard.
In this case, the Ponkows filed two grievances
seeking to determine whether they were entitled to
certain benefits under an ambiguous provision in the
collective-bargaining agreement. Although the
Union agreed to process the grievances, it conceded,
during the first communication with the Employer,
that the Ponkows did not have a valid claim. On two
reference to mileage rather than riding time), this consideration was omitted
entirely from the subsequent letter to the Ponkows, and the letter to the
Board agent characterized the grievances as only containing "mistakes."
Under these circumstances, we are persuaded that the so-called claim for
double mileage was nothing more than an inadvertent error which could
have been easily corrected by the Union, if it had been willing to do so.
"1 Vaca v. Sipes, 386 U.S. 171 (1967); Miranda Fuel Company, Inc., 140
NLRB 181 (1962), enforcement denied 326 F.2d 172 (C.A. 2, 1963).
12 Vaca v. Sipes, supra at 190.
i3 Id at 191, 194.
Truck Drivers, Oil Drivers and Filling Station and Platform Workers
Local No. 705, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers ofAmerica (Associated Transport, Inc.), 209 NLRB 292
(1974), petition for review denied 532 F.2d 1169 (C.A. 7, 1976).
subsequent occasions, the Union repeated this view
in discussions with the Employer. Yet the following
month, the Respondent's executive board, in unani-
mously agreeing not to take the grievances to
arbitration, concluded that "[h]ad the Business
Manager secured employment for the Ponkows they
would have received mileage and riding time," thus
indicating that the claim itself was meritorious under
the collective-bargaining agreement.
We disagree with the Administrative Law Judge's
interpretation of this reason as constituting "only an
acknowledgment that the Ponkows had set their own
conditions of employment." The statement on its
face refers only to the manner in which the Ponkows
obtained their employment. Similarly, the Union's
letter to the Ponkows did not state that they had set
their own conditions of employment but claimed
only in this regard that "[li]t would have been the
Business Manager's responsibility, provided he se-
cured the employment for the men." Since the
parties' collective-bargaining agreement did not
contain an exclusive hiring hall provision, the fact
that the Ponkows did not secure their employment
from the Union is clearly an irrelevant consideration
in processing their grievances, and adverse union
action against them for that reason is impermissible
under the Act.17
Furthermore, even assuming that this statement
was a reference to the agreement which the Adminis-
trative Law Judge found that the Ponkows had made
with PPG at the time of their hire, i.e., not to be paid
for riding time and mileage, we are not persuaded
that the two considerations are separable. Thus, the
Union's letter to the Board agent a month after the
decision had been made not to proceed to arbitration
claimed that one of the reasons therefor was that the
Ponkows "secured their employment on their own
and made the conditions."
Nor do we believe that a waiver by some unit
employees at the time of their hire of specific benefits
under the collective-bargaining agreement may
properly form any basis for their representative's
refusal to process their claim to those benefits. Over
30 years ago, the Supreme Court, in holding that
individual employment contracts could not be relied
i5 532 F.2d at 1175.
16 See Service Employees International Union, Local No. 579, AFL-CIO
(Convacare ofDecatur d/b/a Beverly Manor Convalescent Center), 229 NLRB
692, fn. 2 (1977).
17 Thus, it has been held that where there is no hiring hall agreement in
existence at the time of an employee's hire a union violates Sec. 8(bX2) and
8(bXI)A) by causing the employee's discharge because he had not been
referred to the employer by the union and had not received union clearance.
N. LRB. v. Teamsters Local Union No. 676, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
[Tellepsen Petro-Chemical Company ] , 419 F.2d 1274 (CA. 3, 1969). Accord:
Laborers' International Union of North America, AFL-CIO, Local No. 83
[Fry, Inc.] v. N.LR.B., 497 F.2d 1337 (C.A. 6, 1974).
715
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on to forestall collective bargaining, stated that
"since the collective trade agreement is to serve the
purpose contemplated by the Act, the individual
contract cannot be effective as a waiver of any
benefit to which the employee otherwise would be
entitled under the trade agreement." J. I. Case
Company v. N.L.R.B., 321 U.S. 332, 338 (1944). The
Court reasoned that "[t]he very purpose of providing
by statute for the collective agreement is to supersede
the terms of separate agreements of employees with
terms which reflect the strength and bargaining
power and serve the welfare of the group. Its benefits
and advantages are open to every employee of the
represented unit, whatever the type or terms of his
pre-existing contract of employment." Significantly,
the Court quoted this passage in its historic Steele
decision and added the following: "The purpose of
providing for a representative is to secure those
benefits for those who are represented and not to
deprive them or any of them of the benefits of
collective bargaining for the advantage of the
representative or those members of the craft who
selected it." '8 Analogously, Respondent's purpose is
to secure the benefits of the collective agreement for
all unit employees and not to exclude individuals
from whom the Employer exacted a waiver at the
time of their hire, thereby limiting the enjoyment of
such collective benefits to those who were referred
through the Union.
In view of the foregoing, we conclude that in
processing the Ponkows' grievances the Respondent
Union based its actions in substantial part upon
irrelevant and arbitrary considerations in violation of
the Ponkows' "right to fair and impartial treatment
from [their] statutory representative." Miranda Fuel,
140 NLRB at 188. Accordingly, we find that by this
conduct the Respondent Union violated Section
8(b)( )(A).
3. Concerning the 8(a)(3) allegation of the com-
plaint, the facts can be summarized as follows. The
Ponkow brothers reported to the jobsite on October
14, 1975, and, except for a short layoff, continued
working until December 31, 1975. After a layoff of a
week, they were recalled on January 6 and worked
steadily until April 16 when they were again laid off.
The Ponkows were recalled for part of a workday on
May 3, and this was their last employment on the
Lutheran Aid job. Their grievances were filed with
the Union on June 5, and forwarded to the
Respondent Employer on June 8.
On June 22, Branch Manager Hudson handed
Business Manager Sofio a written response to the
"' Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192, 201 (1944).
i9 For example, at one point Hudson testified as follows:
Q. [By counsel for Respondent Union ] Who were you making that
Ponkows' grievances, stating, inter alia, that the
information in the Ponkows' grievances was incom-
plete and inconsistent with the facts, "thus causing
you to erroneously question PPG's trustworthiness
and which we feel amounts to harassment." At
another point in the letter Hudson referred to "an
attempt . . . to harass us into paying a premium
eight months after the fact," and stated that the
Company "question[s] the ethics of this request."
The Administrative Law Judge found that in
discussing the grievances with Sofio on June 22
"Hudson also made some comment about harass-
ment of P.P.G. while negotiations were in progress,"
but the Administrative Law Judge stated that the
testimony was in conflict as to whether Hudson's
accusation was directed at the Ponkows or at the
Respondent Union.19
On July 7, when operations at the Lutheran Aid
project resumed after the May 3 layoff, the Ponkows
were not recalled to work. Rather, PPG hired five
employees from the Hoffer Glass Company, only two
of whom had been previously employed on the
Lutheran Aid job. On September 2, after the filing of
the instant unfair labor practice charges, Glazing
Superintendent Stanich telephoned the Ponkows and
offered them work on the Lutheran Aid project, but
he testified that he told Edward Ponkow that "we
would pay no mileage and traveling time." The
Ponkows declined the offer.
In concluding that the Respondent Employer's
failure to recall the Ponkows was not violative of
Section 8(a)(1) and (3), the Administrative Law
Judge relied on two factors. First, he found that PPG
had a "commitment to use the employees of Hoffer
Glass Company on the Lutheran Aid project, to the
extent Hoffer's employees were available." Second,
he found that the Respondent Employer needed a
"matched crew capable of performing the work
required" of installing large sections of plate glass.
Contrary to the Administrative Law Judge, we do
not believe that the Respondent Employer's decision
was motivated solely by lawful business considera-
tions.
The record demonstrates that the alleged commit-
ment justification advanced by PPG is wholly
pretextual. Thus, Phillip Hurst of Hoffer Glass
Company testified that this "commitment" consisted
of a request on his part to Hudson prior to the start
of the project to "keep us in mind, to try to keep our
men working." Most significantly, Hurst testified
that he could have provided men to Hudson in
January, February, March, April, and May 1976, but
claim-take a look at that letter, and read it carefully. Were you saying
that the Union was harassing you, or the Ponkows?
A. No. I would say, in this letter, the Ponkows were.
716
P.P.G. INDUSTRIES INCORPORATED
the record reveals that during this entire period PPG
chose instead to utilize the services of the Ponkows.
It was not until the Ponkows filed their grievances in
June that this "commitment" sprung to life after
being dormant throughout the first 5 months of the
year.
The second factor relied on by the Administrative
Law Judge was the Respondent Employer's alleged
need for a matched crew which could install large
sections of glass. However, Glazing Superintendent
Stanich, who made the decision to hire the Hoffer
employees, testified that he did not even inquire as to
whether the Ponkows were capable of performing
this type of work. When this fact is considered in the
context of the pretextual "commitment" justification
proffered by the Respondent Employer, the timing of
the refusal to recall, and particularly PPG's docu-
mented hostility toward the Ponkows for claiming
riding time and mileage, it is clear that the decision
not to recall the Ponkows was motivated principally
by their grievance activity.20 Contrary to the Admin-
istrative Law Judge, we do not believe that PPG's
accusations against the Union and the Ponkows of
harassment and unethical conduct can be dismissed
as "certainly not unjustified." For, it is well estab-
lished that "the filing of grievances pursuant to a
contractual grievance procedure is protected by
Section 7 of the Act, and that discipline of an
employee therefor tends to interfere with, restrain,
and coerce employees in violation of Section 8(aX1)
and discourages union activity in violation of Section
8(a)(3)." 21 As there are no circumstances here which
would remove the Ponkows' grievance activity from
the protection of the Act,22 we conclude that the
Respondent Employer's discrimination against them
because of that activity violated Section 8(a)(3) and
(1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent Employer is engaged in
commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Respondent Union is a labor organization
within the meaning of Section 2(5) of the Act.
3. By failing to process the grievances of Edward
and Joseph Ponkow in a fair and impartial manner,
the Respondent Union has violated Section
8(b)(1)(A) of the Act.
4. By refusing to recall Edward and Joseph
Ponkow on July 7, 1976, because they filed grievanc-
es pursuant to a contractual grievance procedure, the
20 Therefore. even if lawful considerations did play a role, a violation
must still be found.
21 Mrs. Baird's Bakeries. Inc., 189 NLRB 606 (1971). enfd. 457 F.2d 512
(C.A. 5. 1972): Hunter Saw Division of Asko, Inc., 202 NLRB 330 (1973).
Respondent Employer has violated Section 8(a)(3)
and (1) of the Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
THE REMEDY
Having found that Respondents have engaged in
certain unfair labor practices, we shall order that
they cease and desist therefrom and take certain
affirmative actions necessary to effectuate the poli-
cies of the Act.
We shall order the Respondent Employer to offer
reinstatement to Edward and Joseph Ponkow,
without prejudice to their seniority or other rights
and privileges, and make them whole for any loss of
earnings they may have suffered by reason of
Respondent Employer's unlawful refusal to recall
them. Backpay is to be computed in a manner
consistent with Board policy as set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), with
interest thereon at the rate of 6 percent per annum as
set forth in Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
The uncertainty as to whether the Ponkows'
grievances would have been found to be meritorious
and the uncertainty as to whether an attempt now to
proceed to arbitration would be considered timely
are direct products of the Respondent Union's
unlawful action. Where, as here, resolution of that
uncertainty is required for the determination of
monetary responsibility, it is proper to resolve the
question in favor of the injured employees and not
the wrongdoer. King Soopers, Inc., 222 NLRB 1011,
1020 (1976); Local Union No. 2088, International
Brotherhood of Electrical Workers, AFL-CIO (Feder-
al Electric Corporation), 218 NLRB 396 (1975).
Accordingly, for the purposes of remedy, we shall
presume that the Ponkows' grievances, if fairly and
impartially processed, would have been found to be
meritorious and would have resulted in payment to
them of riding time and mileage. Therefore, we shall
order the Respondent Union to make the Ponkows
whole for this loss which they suffered as a result of
the Respondent Union's unlawful action, with
interest thereon at the rate of 6 percent per annum as
set forth in Isis Plumbing, supra.
22 As discussed supra, the Ponkows' acceptance. at the time of their hire,
of the condition imposed by PPG that there would be no payment for riding
time and mileage cannot be effective as a waiver of any benefit to which
they would otherwise be entitled under the collective-bargaining agreement.
717
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that:
A. Respondent Employer, P.P.G. Industries In-
corporated, Milwaukee, Wisconsin, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recall or otherwise discriminating
against an employee because of his union or
protected concerted activities.
(b) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of their
rights under the National Labor Relations Act, as
amended.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Offer Edward and Joseph Ponkow immediate
and full reinstatement to their former positions or, if
such positions no longer exist, to substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, and make
them whole for any loss of earnings they may have
suffered as a result of the discrimination practiced
against them in the manner set forth in the section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at its jobsite in Appleton, Wisconsin,
copies of the attached notices marked "Appendix A"
and "Appendix B."23 In the event the Respondent
Employer is no longer working at the Appleton
jobsite, said notices shall be posted at its place of
business in Milwaukee, Wisconsin. Copies of Appen-
dix A, on forms provided by the Regional Director
for Region 30, after being duly signed by the
Respondent Employer's representative and copies of
Appendix B, after being duly signed by the Respon-
dent Union's representative, shall be posted by
Respondent Employer immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Respondent Employer to insure that said notices are
not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps the Respondent Employer has taken to
comply herewith.
B. Respondent Union, Glaziers Union Local
1204, AFL-CIO, Milwaukee, Wisconsin, its officers,
agents, and representatives, shall:
I. Cease and desist from:
(a) Failing to process employee grievances in a fair
and impartial manner.
(b) In any like or related manner restraining or
coercing employees in the exercise of their rights
under the National Labor Relations Act, as amend-
ed.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Make Edward and Joseph Ponkow whole for
the losses they suffered as a result of the Respondent
Union's unlawful action against them in the manner
set forth in the section of this Decision entitled "The
Remedy."
(b) Post at its business offices and meeting halls
copies of the attached notice marked "Appendix
B." 24 Copies of said notice, on forms provided by the
Regional Director for Region 30, after being duly
signed by an authorized representative of the
Respondent Union, shall be posted by Respondent
Union immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to members are customarily posted. Reason-
able steps shall be taken by the Respondent Union to
insure that said notices are not altered, defaced, or
covered by any other material. Additional copies of
said Appendix B shall be duly signed by an
authorized representative of the Respondent Union
and furnished to the said Regional Director for
transmission to the Respondent Employer for post-
ing by the Respondent Employer in accordance with
the Order directed to the Respondent Employer
above.
(c) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order,
what steps the Respondent Union has taken to
comply herewith.
23 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
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
24 See fn. 23, supra.
718
P.P.G. INDUSTRIES INCORPORATED
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recall or otherwise
discriminate against an employee because of his
union or protected concerted activities.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights under the National Labor
Relations Act, as amended.
WE WILL offer Edward and Joseph Ponkow
immediate and full reinstatement to their former
positions or, if such positions no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and
privileges, and WE WILL make them whole for any
loss of earnings they may have suffered as result
of the discrimination practiced against them.
P.P.G. INDUSTRIES
INCORPORATED
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail to process employee griev-
ances in a fair and impartial manner.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
their rights under the National Labor Relations
Act, as amended.
WE WILL make Edward and Joseph Ponkow
whole for the losses they suffered as a result of
our unlawful action against them.
GLAZIERS UNION LOCAL
1204, AFL-CIO
DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GOSLEE, Administrative Law Judge:
These consolidated cases came on to be heard before me at
Appleton, Wisconsin, on December 16, 1976, upon com-
plaintst issued by the General Counsel of the National
Labor Relations Board and answers filed by P.P.G.
Industries Incorporated and Glaziers Local Union 1204.
' The complaint in Case 30-CA-3711 was issued on September 15, 1976,
upon a charge filed on July 16, 1976, and duly served on the Respondent
Employer on the same date. The complaint in Case 30-CB-975 was issued
upon a charge filed on July 16, 1976. and duly served on the Respondent
The issues raised by the pleadings relate to whether or not
P.P.G. Industries violated Section 8(aXl) and (3) of the
Act, and whether or not Glaziers Union Local 1204
violated Section 8(b)(X)(A) of the Act. Briefs have been
received from the General Counsel and the Respondent
Employer, and have been duly considered.
Upon the entire record in these proceedings, and having
observed the testimony and demeanor of the witnesses, I
hereby make the following:
FINDINGS OF FACT
I. PRELIMINARY MATTERS
(COMMERCE, JURISDICTION AND LABOR
ORGANIZATION)
The complaints allege, the answers admit, and I find that
(I) P.P.G. Industries, hereinafter sometimes called the
Respondent Employer, is engaged in the distribution and
installation of glass products from its facility at Milwaukee,
Wisconsin; (2) its purchases of goods and materials in
interstate commerce are sufficient to satisfy the Board's
standards for the assertion of jurisdiction; and (3) the
Respondent Employer is an employer within the meaning
of Section 2(2) of the Act, and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act. The
complaints also allege, the answers admit, and I find that
Glaziers Union Local 1204, hereinafter sometimes called
the Respondent Union, is a labor organization within the
meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES ALLEGED
The complaint in Case 30-CB-975 alleges that since on
or about July 5, 1976,2 the Respondent Union violated
Section 8(bXIX)(A) of the Act by failing to adequately
represent Joseph and Edward Ponkow in the presentation
of a grievance they had filed concerning riding time and
mileage at the Respondent Employer's Appleton, Wiscon-
sin, jobsite. The complaint in Case 30-CB-975 further
alleges that the Respondent Union also violated Section
8(b)(IXA) of the Act by failing to proceed to arbitration on
the Ponkows' grievance. As to Case 30-CA-3711, the
complaint alleges that, on or about July 7, the Respondent
Employer violated Section 8(aX)() and (3) of the Act by
refusing to recall Joseph and Edward Ponkow to work on
its Appleton job because the Ponkows had engaged in
union "and/or" protected concerted activities. By their
answers the Respondents generally deny that they have
engaged in any unfair labor practices, and for the reasons
related below I find that the Respondents' prayers for
dismissal of the respective complaints should be granted.
A. Background
For some years past, P.P.G. and the Respondent Union
have been signatories to collective-bargaining agreements.
At the time the Ponkow brothers were hired for the
Union on that date. On November 17, 1976, the Regional Director issued
and served on the parties an order consolidating cases.
2 All dates recited hereinafter are in 1976, unless specified to the
contrary.
719
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Employer's Lutheran Aid job at Appleton, a
bargaining agreement was in effect for the years 1974 to
1976, applicable to P.P.G., and apparently other employ-
ers, for work performed in both the Southern and Northern
areas of the State of Wisconsin. At some unspecified time
in 1976, the 1974-76 agreement was superseded, and
P.P.G. became signatory to a new bargaining agreement
applicable only to work performed in the northern area,
which included the Lutheran Aid job at Appleton. Under
the terms of the prior bargaining agreement a separate
wage scale applied to work performed by members of the
bargaining unit in the nothern area, and the contract also
provided for the payment of riding time and mileage under
certain specified conditions. The provision concerning
riding time and mileage is set forth in article VIII of the
1974-76 bargaining agreement, and provides in parts
pertinent to this proceeding as follows:
ARTICLE VIII
When employees are told to report to a single job site,
within the employers normal work area, there shall be
no riding time or mileage paid. When employees, after
reporting to their initial job site are directed by the
employer to report to another job site or job sites,
mileage, per car, will apply between all succeeding job
sites. The normal work areas (Free Zone) are as
follows.
NORTHERN AREA EMPLOYERS: Within a twenty-five mile
radius of the City Hall of the Employer's warehouse
city.
Each Employer shall choose which normal work area
he is going to operate in for Free Zone purposes, but
each Employer shall be restricted to only one Free
Zone. Any work done outside this area is then covered
by the riding time and expense provision of this
Agreement. Each Employer agrees to advise the Union
of the Free Zone area he wishes and any changes due to
relocation of facilities or other reasons shall be
negotiated between the Union and the Employer
involved.
According to Frank Hudson, the Respondent Employ-
er's branch manager at Milwaukee, it is P.P.G. policy,
when performing contracts outside the Milwaukee area, to
send out its own working foremen, but to otherwise man
the job with employees from the local area. The bidding for
the Lutheran Aid job at Appleton began in 1974, but was
delayed for various reasons and the contract did not
become final until 1975. In early 1975, while the contract
was still in the process of negotiations, Hudson received a
telephone call from a Phillip Hurst of Hoffer Glass
Company in Appleton. Hurst reported that he projected a
very slow year, and asked if Hudson would consider using
some of Hoffer's employees on the Lutheran Aid job.
Hudson agreed to use Hoffer's employees, and two
employees from the Company, plus two working foremen
from P.P.G.'s Milwaukee facility began the Lutheran Aid
job in July 1975.
Both Joseph and Edward Ponkow were previously
employed by the Respondent Employer for 16-17 years,
but their jobs were terminated in or about 1970, when
P.P.G. closed its branch facility at Oshkosh, Wisconsin.
Joseph Ponkow testified that he heard that P.P.G. had been
awarded the glazing contract for the Lutheran Aid job, and
in July or August 1975 he called P.P.G.'s Milwaukee office
and asked to talk to Mr. Ken Hoffmeyer. Hoffmeyer was
not available, but Joseph Ponkow talked with some other
person, otherwise unidentified in his direct testimony.
Ponkow related his prior employment with P.P.G., ex-
pressed knowledge of the Lutheran Aid job, and asked if
there was an opening. Ponkow did not testify to any reply
received, but stated that he left his name and a telephone
number where he could be contacted in Oshkosh.
Approximately 5 or 6 weeks later Joseph Ponkow
received a call from Branko Stanich, the Respondent
Employer's glazing superintendent for the Lutheran Aid
project. Stanich reported that he was then employing men
from Hoffer Glass Company, but could put Ponkow to
work. According to Joseph Ponkow, Stanich called him a
second time on the same day and stated that he could also
use Edward Ponkow on the Lutheran Aid job. The Ponkow
brothers reported to the jobsite on October 14, and
continued working until October 24, 1975. After a short
layoff the Ponkow brothers returned to work on November
17 and continued to work until December 31, 1975. Joseph
and Edward Ponkow were again recalled on January 6,
1976, and continued to work steadily until April 16. The
Ponkow brothers were recalled for a part of a workday on
May 3, and this was their last employment on the Lutheran
Aid job.
B. The Alleged Refusal To Adequately Represent
Joseph and Edward Ponkow worked on the Lutheran
Aid job until they collected their first paychecks, and then
determined that they had not been paid for driving time
and mileage, which they contend was due them on grounds
the driving distance from the County Court House at
Oshkosh to the jobsite was 27-1/2 miles, or 2-1/2 miles in
excess of the Free Zone specified in article VIII of the
collective-bargaining agreement. Admittedly, neither dur-
ing their initial week of employment nor at any time
thereafter did the Ponkows claim payment for riding time
or mileage, notwithstanding that space was provided for
such claims on the weekly timesheet they were required to
complete for P.P.G. Nevertheless, sometime in October
Edward Ponkow called Joseph Sofio, business manager of
the Respondent Union, and apparently Joseph Ponkow
was a participant in the conversation on an extension
telephone. The Ponkows reported that they were employed
by P.P.G. on the Lutheran Aid building and were not
receiving time and mileage even though it was a distance of
27-1/2 miles from the Oshkosh Court House to the jobsite.
According to Edward Ponkow, Sofio answered that he
would relay the message to Frank Hudson of P.P.G. In
addition, Joseph Ponkow testified that in the October
conversation Sofio cautioned the employees that they
could not both claim mileage because they used only one
car.
720
P.P.G. INDUSTRIES INCORPORATED
On further examination Edward Ponkow testified that he
again talked to Sofio a day or so later, and Sofio reported
that he had discussed the riding time and mileage with
Frank Hudson, and Hudson had replied that there was no
way he would pay riding time and mileage to the Ponkows
and would hire laborers before he did so.
Joseph Sofio acknowledged in his testimony that about
October 28, 1975, he was called by one of the Ponkows
with a complaint they were not receiving pay for driving
time and mileage from P.P.G. Sofio asked what arrange-
ments had been made at the time of hire, but received no
reply. Sofio did agree, however, that he would call Branko
Stanich about the matter.
Sofio did call Stanich, reported the conversation with the
Ponkows, and was told by Stanich that the matter of riding
time was between the Ponkows and Frank Hudson. Within
the next couple of days Sofio also reported the matter to
Frank Hudson. Hudson told Sofio that he had told the
Ponkows before the job started that there would be no
riding time or mileage paid. Sofio cautioned Hudson that
he better look into the matter, and that he didn't want
another "Playboy Club." 3
Sofio called Ed Ponkow, told him of his contact with
Branko Stanich, related that Stanich had advised that the
Ponkows contact Frank Hudson, and cautioned that
Ponkow be sure to do so. According to Sofio's testimony,
which I credit, he heard no more from the Ponkows until
June 5, when they filed a written grievance concerning the
failure of P.P.G. to pay riding time and mileage.
As concerns the October conversations between the
Ponkows and Joseph Sofio concerning the driving time and
mileage claim, I generally credit the version related by
Sofio. It is clear from all of the testimony that Sofio
acknowledged the grievance reported by the Ponkows and
agreed to check the matter out with Branko Stanich. Sofio
did talk to Stanich about the grievance and contends he
talked to Frank Hudson. As Joseph Ponkow acknowl-
edged, Sofio called the employees back and instructed
them to get in touch with Hudson and discuss the matter
with him. The Ponkows disregarded Sofio's instructions,
made no contact with either Hudson or Stanich, and made
no further complaint about the matter until June 5.
The record reflects that between October 28, 1975, and
June 5, 1976, the Ponkow brothers attended two union
meetings which Local 1204 held for its members in the
Oshkosh area. At neither of these meetings did the
Ponkows raise the issue of their alleged grievance against
P.P.G. for its failure to pay riding time and mileage.
Nevertheless, at a third union meeting held on June 5,
Edward Ponkow read a grievance pertaining to the matter,
and later gave a copy of the written grievance to Sofio.
Sofio's only comment, or question, related to the amount of
time elapsed between the date on which P.P.G. allegedly
3 Referring to a prior job where a large number of employees claimed
riding time and mileage after the project was completed.
4 There is a good deal of conflicting testimony in the record as to when
and how both charges in this matter were developed and filed. Joseph
Ponkow originally testified that he and his brother talked to a representative
of the Region before they filed the grievance of June 5. and that the
Region's representative made out the CB charge and suggested to the
employees that they should file a grievance. Subsequently, Joseph Ponkow
changed his testimony, and testified that the charges were filled out after the
grievance was filed. and the suggestion of the Region's representative was
failed to pay riding time and mileage and the date of the
grievance. There is also evidence, which I credit, that one
of the Ponkows threatened that, if no action was obtained
on the grievance within 10 days, the Ponkows would go to
the Labor Board.4 The grievance, which was signed by
both Ponkows, contained attachments setting forth the
details of their riding time and mileage claims, and recited
as follows:
I hear by [sic] direct the business agent of Local 1204
Milwaukee, Wis. (Brother Joe Sofio) two file two
grievances against PPG Industries 11316 W. Rodgers
Street, Milwaukee, Wis. regarding Lutheran Aid Bldg.
Appleton, Wis.
Grievance # I
All riding time incurred on all working days between
Oct. 14-1975 to and including May 3-1976, consisting
of one hour per day; total 95 days.
Grievance #2
Mileage to and from Oshkosh city hall to Lutheran Aid
Bldg. Appleton, Wis. mileage one day 55 miles, total
worked days 95 days. 5225 miles at 13 per mile. Riding
time I hour each day - 95 days.
On June 8, Business Manager Sofio sent a letter to Frank
Hudson of P.P.G., enclosing a copy of the Ponkows'
grievances, and requesting a meeting no later than June 24
to discuss the matter. On a composite of the testimony of
Hudson and Sofio I find that the grievances were discussed
first in a telephone conversation on or about June 14.
Hudson told Sofio that he felt that there was no cause for
the claim of riding time and mileage, that P.P.G. was
working in the northern area, had a commitment to hire
employees in that area, and that the Union did not have a
case. Sofio agreed that in his opinion the Ponkows did not
have a valid claim for riding time and mileage, and Hudson
agreed that he would make further contact with Sofio.
At a negotiations meeting about June 22, Hudson
handed Sofio a written response to the Ponkows' grievanc-
es, reciting, inter alia, that the Ponkows had been informed
at the time of their hire that they would not be paid riding
time and mileage, and that the Ponkows agreed to this
condition. In a conversation which ensued, Sofio again
stated that he felt that the Ponkows did not have a
legitimate claim to riding time and mileage, and he also
commented on the elapse of time between the date the
alleged claims arose and the date the Ponkows filed their
grievances. Hudson also made some comment about
harassment of P.P.G. while negotiations were in progress,
but the testimony is in conflict as to whether Hudson's
that the employees wait to file the CB charge after it had been determined
what action the Respondent Union took on the grievance of June 5.
Whatever occurred, it is clear that the Region's representative typed out the
CB charges, but left a blank for the date on which the 8(bXIXA) violations
were alleged to have commenced. On July 6, Edward Ponkow signed the CB
charge, after inserting the date of July 14. 1976, in the blank space.
Similarly, the Region's representative prepared the CA charge, again leaving
blank the date on which the 8(aXl) and (3) violations are alleged to have
occurred, which was also signed by Ponkow on July 6, after he had inserted
a date of July 14.
721
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accusation was directed, or understood by Sofio, at the
Ponkows or at the Respondent Union.
On June 25, Sofio sent a letter to Hudson, reciting that
P.P.G. had failed to comply with certain provisions in
articles IX and VIII of the bargaining agreement, and
requesting a meeting no later than July I to select an
arbitrator. Approximately 3 days later Hudson met with
Sofio and repeated the contention that the Ponkows' claim
was not meritorious. Sofio again agreed that the Ponkows
had no legitimate claim, and told Hudson to take no
further action until he heard further from Sofio.
Sofio's testimony concerning his several conversations
with Hudson does not differ materially from that adduced
from Hudson. Sofio denied that he used the word
"illegitimate," but conceded that he told Hudson that there
was a problem in the interpretation of the bargaining
agreement, and that Sofio felt he was being set up by the
Ponkows. Sofio explained to Hudson that, read literally,
article VIII of the bargaining agreement denominated
P.P.G. as a southern area contractor and that technically
mileage and riding time could be claimed from Milwaukee
to the jobsite in Appleton. He further explained to Hudson
that this was not the intent of the agreement. There was
some discussion of whether Appleton or Oshkosh was the
proper warehouse city for P.P.G. for the Lutheran Aid job.
With the use of a map Sofio and Hudson measured the
distance from the City Hall in Oshkosh to the Lutheran
Aid jobsite, and determined that the distance was within
25-mile Free Zone specified in article VIII of the bargain-
ing agreement.
The Ponkows further testified in this proceeding to
conversations they had with Business Manager Sofio after
their grievances were filed on June 5. There is a consider-
able degree of conflict in the testimony proffered by the
two witnesses as to the number of the conversations, the
dates on which they occurred, and the contents. Joseph
Ponkow testified that, after he received a copy of Sofio's
letter to P.P.G. of June 8, he and his brother called Sofio,
and Sofio said that he would try to straighten the matter
out with P.P.G. According to Joseph Ponkow there was a
second telephone conversation with Sofio after the Pon-
kows received P.P.G.'s response to the grievance, dated
June 21. Ponkow told Sofio that the whole of P.P.G.'s reply
was false, except for the statement that he had personally
contacted the Company for a job. Sofio stated he would
contact Hudson and try to come up with some kind of
arbitration. The Ponkows again talked to Sofio a few days
later, to ask what was happening, and Sofio replied that he
had talked to Hudson and there was nothing to arbitrate.
Sofio agreed, however, that he would present the grievance
to the Union's executive board for evaluation and a
determination of whether arbitration was warranted. There
was one or more subsequent conversations between the
Ponkows and Sofio with accusations by them of delay
because of the unavailability of the executive board, and
the Ponkows threatened to go to the NLRB in Milwau-
kee-an action which the record reveals the Ponkows had
already accomplished.
Sofio presented the Ponkows' grievances to the executive
board on July 31, and the executive board unanimously
agreed not to take the grievance to arbitration. Upon
Sofio's explanation, the board concluded that (1) had the
business manager secured employment for the Ponkows
they would have received riding time and mileage; (2) only
one member has riding time coming under article IX; (3)
the board cannot justify the delay in time from October 28,
1975, to June 5, 1976; (4) the expense is too great to go to
arbitration; and (5) article VIII is discriminatory toward
the Employer. Sofio was directed to notify the Ponkows in
writing of the board's decision, which he subsequently did
by a letter 5 with the following notice:
The conclusion of the Executive Board is as follows.
1. The Business Manager talked to Ed Ponkow on
October 28, 1975 about the riding time and
mileage, that same evening he contacted Branko
Stanich of PPG Industries, hearing no more from
Ed or Joe Ponkow, he concluded that the
problem was resolved. The Board cannot reason
why nothing was said to the Business Manager
between October 28, 1975 and June 5, 1976, at
which time the grievance was filed.
2. The Union does not have the assets.
3. Portions of Article VIII of the Articles of Agree-
ment are discriminatory and unenforceable.
4. It would have been the Business Managers respon-
sibility, provided he secured the employment for
the men.
If you have any questions do not hesitate to contact me.
The essential purpose of this proceeding as it pertains to
the 8(b)(l)(A) allegations is not to determine finally
whether the Ponkows' grievances were meritorious or
nonmeritorious, but the purpose is to determine whether or
not the Respondent Union's conduct was arbitrary and
capricous, and therefore evaded the fiduciary obligation it
owed to its members. Nevertheless, the merits of the
Ponkows' grievances are inextricably intertwined with the
issue of the Union's conduct and the reasons it recited in
refusing to process the grievances to arbitration. Particular-
ly at issue are the terms under which the Ponkows obtained
employment from P.P.G., their failure to claim riding time
and mileage on the weekly timesheets they filled out for the
Company, their claim of mileage for both Ponkows when
only one car was driven, and particularly the delay in their
claims from October 1975 to June 5, 1976. Inherent in
determining these precise issues also carries over to the
question of what credibility should be accorded the
Ponkows' testimony in those areas where the evidence is in
conflict.
Joseph Ponkow made the contact with P.P.G. seeking
employment, and in his initial testimony he vehemently
denied that he ever talked to Frank Hudson. In later
testimony Ponkow admitted he did not know to whom he
talked, and finally conceded that his conversation may
have been with Hudson. Hudson testified in this proceed-
ing and I find that he was the person to whom Joseph
5 The letter was inadvertently dated June 22, 1976.
722
P.P.G. INDUSTRIES INCORPORATED
Ponkow spoke, and I further credit Hudson's testimony
concerning the contents of the conversation.
Hudson testified that he was called by Joseph Ponkow in
late July 1975 and was told the Ponkow brothers were on
hard times and needed a job. Hudson replied that he had a
commitment to use employees from Hoffer Glass, but if
Hoffer needed his men at any point he would rehire the
Ponkows. Hudson told Joseph Ponkow that he would
advise his glazing superintendent of the Ponkows' avail-
ability, and Stanich would contact them if a need
developed. Hudson further told Joseph Ponkow that there
would be no expenses or riding time on the Lutheran Aid
job and that the wage scale would be that provided for in
the bargaining agreement for northern area contractors. At
no time in his testimony did Joseph Ponkow specifically
deny Hudson's testimony concerning the conditions of the
job stated in the July conversation, and I credit Hudson's
testimony.
Hudson also testified that he had no notice of the
Ponkows' complaint concerning P.P.G.'s failure to pay
them riding time and mileage until he received Sofio's letter
and a copy of the grievance in June 1976. This testimony
conflicts with Sofio's statements concerning a conversation
with Hudson shortly after the Ponkows' complaint on
October 28, 1975, but on the whole of the record I credit
Hudson and find that Sofio was mistaken or confused in
his testimony in this respect. The finding is fully supported
by the contents of Sofio's letter to the Ponkows advising
them of the determination of the executive board, in which
he related a conversation on October 28 with Branko
Stanich but made no reference to any like conversation
with Hudson. On the basis of this finding, I further find
that at no time prior to June 5, 1976, did Hudson tell Sofio
that he would hire laborers before he would pay the
Ponkows' expenses for riding time and mileage.
Branko Stanich confirmed in his testimony that some-
time in the summer of 1975 Hudson gave him a slip
concerning Hudson's call from Joseph Ponkow, and was
instructed by Hudson to keep Ponkow in mind if
employees were needed on the Lutheran Aid job. In
October Stanich called Joseph Ponkow and offered the
brothers employment on the Lutheran Aid job beginning
on October 14. In the course of the conversation Stanich
told Ponkow of Hudson's condition stated earlier that the
Ponkows would not be paid for mileage or traveling time,
and Joseph Ponkow stated that this was agreed. Stanich
also testified that after the Ponkows began work he showed
Edward Ponkow a copy of the timesheet and informed him
that there would be no pay for travel time or mileage.
Both of the Ponkow brothers deny that Stanich ever
informed them that driving time and mileage would not be
paid on the Lutheran Aid job. I do not credit the Ponkows'
denial, and my resolution in this respect is predicated on
the comparative demeanor and candor of the witnesses, as
well as it is predicated on the whole background of how the
Ponkows proceeded with their complaint against P.P.G. for
travel and mileage pay. It is clear from the whole record
that the Ponkows knew that space was provided on the
weekly timesheets to claim time and mileage, as well as
6 The Ponkows admit knowledge of the provision in art. IX of the
bargaining agreement, which provides that "Each employee shall submit an
account of his daily expenses on a simple form provided by the Employer."
they knew of their obligation to claim the expenses they
now insist they were entitled to.6 Nevertheless, from
October 14, 1975, through May 3, 1976, neither of the
Ponkows ever gave P.P.G. any information concerning
their claims for travel and mileage expenses, and each week
they simply left the required information out of their
timesheets. As an explanation the Ponkows first contend
that, after they complained to Sofio on October 28, they
understood that their claim to travel and mileage expenses
was in the process of resolution and no claim to the
Company was necessary. Considering the elapse of more
than 7 months from October 28, 1975, to June 5, 1976, and
further considering that the Ponkows abstained from
making any inquiry of Sofio in the intervening 7-month
period, I do not credit their explanation. Secondly, the
Ponkows proffered the explanation that they abstained
from claiming travel and mileage expenses on their
timesheets out of fear that P.P.G. would terminate their
employment. There is no credible evidence in the record to
support such an explanation, and I reject the contention of
their alleged fear of loss of employment as incredible.
In arriving at a determination of the credibility attending
the Ponkows' testimony, I have also taken into consider-
ation their failure to file any grievance with the Respon-
dent Union until June 5, and their claim for mileage for
both brothers when only one automobile was driven. The
Ponkows seek to justify the delay in the filing on the same
grounds as they seek to justify their failure to claim
expenses on their weekly timesheets; that is that they had
complained to Sofio on October 28, and that further
complaints would jeopardize their employment. The
Ponkows' excuses, for the reasons related above, are
rejected. As to the double claims for mileage, the Ponkows
evinced full knowledge of the provision of the bargaining
agreement and Joseph Ponkow testified that they were
cautioned by Sofio that double mileage could not be
claimed if only one car was driven. Assuming this evidence
as fact, the finding is warranted that the grievance they
filed with the Respondent Union was not only in error, but
was a purposeful attempt to obtain moneys to which the
Ponkows were not entitled.
In summary I find that the Ponkows were informed by
P.P.G. at the time of their hire that travel time and mileage
would not be paid them on the Lutheran Aid job, and I
further find that their awareness of this condition of
employment fully explains their failure to claim travel and
mileage expenses on their weekly timesheets, as it also
explains the delay of over 7 months before the Ponkows
filed their grievances.
There remains the necessity to determine whether the
Respondent Union failed in its duty of fair representation
of the Ponkows. The General Counsel has cited an ample
body of precedent, going back to Miranda,7 for the
proposition that a labor organization is prohibited by the
Act from "taking any action against any employee upon
considerations or classifications which are irrelevant,
invidious or unfair." As a general statement of applicable
law I agree with the General Counsel's reliance on
Miranda, supra, and related cases, as I also agree with his
7 Miranda Fuel Compan), Inc., 140 NLRB 181 (1962).
723
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contention that a labor organization's duty of fair represen-
tation is a fiduciary obligation, and that when a union
undertakes to represent an employee in the processing of a
grievance it is obligated to represent the grievant "fully and
fairly." 8 However, the contours of the law must be equated
to the facts, and I am unable here to find any evidence that
the Respondent Union breached its duty of fair representa-
tion. It is not a breach of the collective-bargaining agent's
duty of fair representation to take a good-faith position
contrary to that of employees it represents,9 and the
statutory bargaining representative is allowed, subject
always to complete good faith and honesty of purpose, a
wide range of reasonableness and discretion in serving the
employees it represents.l? In the exact words of the
Supreme Court of the United States: 11
Though we accept the proposition that a union may
not arbitrarily ignore a meritorious grievance or process
it in perfunctory fashion, we do not agree that the
individual employee has an absolute right to have his
grievance taken to arbitration regardless of the provi-
sions of the applicable collective bargaining agreement.
The facts here are that the Ponkows complained to
Business Manager Sofio in October 1975 that they were not
being paid for travel time and mileage. Sofio inquired of
Branko Stanich, was told that the matter was between the
Ponkows and Frank Hudson of P.P.G., and Sofio instruct-
ed the Ponkows to contact Hudson. The Ponkow brothers
ignored Sofio's instruction, made no attempt to contact
Hudson, and made no further mention of the matter to any
representative of the Respondent Union for a period in
excess of 7 months. Sofio's testimony that he considered
the matter to have been resolved must be credited, and the
Respondent Union cannot be charged with bad faith
because of the Ponkows' inaction.
The Ponkows filed their belated grievances on June 5,
1976, and compounded the belatedness with a claim for
expenses to which they were not entitled. Sofio forwarded
the grievance to P.P.G. with a request for discussions, did
discuss the grievance on several occasions, and when the
discussions proved unfruitful he requested a further
meeting to select an arbitrator. When P.P.G. objected to
the grievance, Sofio presented the matter to the Union's
executive board, and the board declined to proceed to
arbitration.
I find none of the reasons advanced by the Respondent
Union for its refusal to proceed to arbitration to be
arbitrary, capricious, invidious, unfair, irrelevant, or in any
manner evasive of its duty of fair representation of the
Ponkows. The Ponkows' grievances were filed more than 7
months after their alleged claims arose, and the belatedness
was compounded by their failure to ever claim travel time
and mileage from P.P.G., and their questionable claim for
mileage which was not due them. As I have found above,
nonpayment of travel time and mileage was a condition of
employment imposed by P.P.G. and agreed to by the
Ponkows at the time of their hire. Furthermore, a valid
s General Truck Drivers Local 315 (Rhodes & Jamieson, Ltd), 217 NLRB
616(1975).
9 Humphrey v. Moore, 375 U.S. 335, 349 (1964).
'o Ford Motor Company v. Huffman, 345 U.S. 330, 338 (1953).
question did exist as to the interpretation of the bargaining
agreement, and there is no evidence to refute the Union's
position that it was not the intent of the agreement to
require southern area contractors to pay travel time and
mileage from their southern area warehouse city tojobsites
in the northern area. Finally, in consideration of all of the
above factors, the Union's response of the expense of
arbitration on a highly questionable grievance is no
indication of a breach of its fiduciary obligation.
The General Counsel contends, nevertheless, that two
factors prove that the Respondent Union failed to fairly
represent the Ponkows. First, the General Counsel argues
that Sofio's statements to Frank Hudson concerning his
doubts of the legitimacy of the Ponkows' grievances
constitutes a breach of the Union's duty of fair representa-
tion.12 Unlike the facts in Associated Transport, Soflo's
comments on the likely lack of merit in the grievances were
directed to Frank Hudson, not to the Ponkows, and
occurred in the context of Sofio's attempts to resolve the
grievances. Furthermore, Sofio's comments concerning the
illegitimacy or lack of merit in the Ponkows' grievances
must be construed in the context of the whole dispute,
including the intent of the bargaining agreement, the
belatedness of the grievances and the Ponkows' claim for
mileage to which they were not entitled. In this context
Soflo's remarks to Hudson prove nothing more than Sofio's
acknowledgment of doubt that the grievances would
survive an arbitration proceeding.
As his second contention, the General Counsel argues
that the Union's proffered reason for refusing to proceed to
arbitration because the Ponkows secured their employment
with P.P.G. without the assistance of the Union is evidence
of bad faith. The record will not support the General
Counsel's contention. Sofio testified that in presenting the
grievance to the executive board he explained that it is his
normal practice to place men on the job and to insure that
issues such as travel time and mileage are spelled out and
determined before the employee goes to work. Sofio's
explanation is supported, moreover, by the testimony of
Joseph Ponkow. After receiving P.P.G.'s response to their
grievances, Joseph Ponkow talked with Sofio, and Sofio
told him, inter alia, that the Ponkows had made their own
contact with P.P.G., and had made an agreement with
P.P.G. that they would not be paid travel time and mileage.
Accordingly, I find that the Union's reference to the
manner in which the Ponkows had obtained their employ-
ment was not an expression of retaliation because they had
not used the hiring hall provisions of the bargaining
agreement, but, on the contrary, was only an acknowledg-
ment that the Ponkows had set their own conditions of
employment, and that this was a consideration in the
Executive Board's decision not to proceed to arbitration.
In summary, I find and conclude that the Respondent
Union did not breach or evade its duty of fair representa-
tion of the Ponkows, and the General Counsel has not
proved any violation of Section 8(bX IXA) of the Act.
ui Vaca v. Sipes, 386 U.S. 171, 191 (1967). See also E. Bond v. Local
Union 823, 521 F.2d 5 (C.A. 8, 1975).
12 Citing Truck Drivers Local No. 705 (Associated Transport, Inc.), 209
NLRB 292 (1974), enfd. 532 F.2d 1169 (C.A. 7, 1976).
724
P.P.G. INDUSTRIES INCORPORATED
C. The Alleged 8(aX3) Discrimination
The employment history of the Ponkow brothers on the
P.P.G. Lutheran Aid job is set forth above in the
background section of this Decision, but requires some
further explication. The record evidence reveals that after a
layoff on December 31, 1975, the Ponkows were recalled to
the Lutheran Aid job on January 5, 1976, and continued to
work until April 16. In the interim, in late December 1975,
the two employees from Hoffer Glass Company were
needed by their employer and left the Lutheran Aid job,
while the Ponkows were retained. By mid-April P.P.G. had
not been paid for its services and materials on the Lutheran
Aid job, all work was discontinued, and all of the
employees were laid off. The Ponkows and the two working
foremen were recalled by P.P.G. for I day on May 3 to
unload and store some glass. Thereafter, except for one
employee who worked on June 1, the job continued to be
unmanned until July 7.
On a composite of the testimony of Hudson and Stanich
I find that in early July the factory released a shipment of
large plate glass which had been held because of nonpay-
ment to P.P.G. for work and materials. It was decided to
unload the glass at the jobsite rather than store it in
Milwaukee and incur additional costs for transshipment to
Appleton. About the same time P.P.G. received payment
for its past services and materials, and it was decided to
man the job for 3 or 4 days while the large sections of plate
glass were installed.
Branko Stanich was responsible for manning the job to
install the plate glass, and because of the size and weight of
the plate glass panels he determined the need for a matched
crew accustomed to handling large sections of plate glass
with optimum skill and safety. Accordingly, Stanich
manned the job with the two P.P.G. working foremen who
were previously employed, and hired the remainder of the
crew from Hoffer Glass Company. In all, Stanich hired five
employees from Hoffer, including two who had been
previously employed on the Lutheran Aid job. Two of the
Hoffer employees worked less than a full week, and a third
was laid off after approximately 2 weeks. On or about
September 2, Stanich called the Ponkow brothers and
offered them a return to work on the Lutheran Aid project.
The Ponkow brothers declined the offer, having obtained
other employment.
In summary, I find and conclude that the General
Counsel has not proved that the Respondent Employer
violated Section 8(aXI) and (3) of the Act by failing to
recall the Ponkow brothers when it resumed operations on
the Lutheran Aid project on or about July 7, 1976. It is
13 The testimony of Phillip Hurst of Hoffer Glass Company, called by
the General Counsel as a rebuttal witness, only confirms the agreement
clear from the credited evidence in this proceeding that the
Respondent Employer had made a commitment to use the
employees of Hoffer Glass Company on the Lutheran Aid
project, to the extent Hoffer's employees were available.' 3
When P.P.G. resumed operations at Appleton in July 1976,
it had need for a matched crew capable of performing the
work required. Branko Stanich made the determination to
hire Hoffer employees, and not to recall the Ponkow
brothers at this juncture. Stanich was aware, and had been
aware since October 1975, that the Ponkow brothers had
made claim to travel time and mileage expenses, which
they had previously agreed, as a condition of hire, would
not be paid. Proof of discrimination requires evidence of
both motive and animus, and the essentials of both
elements are lacking in this case. Stanich knew of the
Ponkow brothers' claim to travel time and mileage which
they had previously agreed to forego, but he continued to
employ the brothers on the Lutheran Aid project from
October 1975 through mid-April 1976. It is true, as the
General Counsel contends, that there is evidence that
P.P.G. accused the Union and the Ponkow brothers of
harassment and unethical conduct. In the circumstances of
this case, and considering all of the other relevant evidence,
the Respondent Employer's accusations were certainly not
unjustified, and considered in the entirety of the record do
not prove unlawful motivation, and are not proof of
animus. I find and conclude, accordingly, that the 8(a)(1)
and (3) allegations should be dismissed.
CONCLUSIONS OF LAW
1. The Respondent Employer, P.P.G. Industries Incor-
porated, is an employer within the meaning of Section 2(2)
of the Act, and is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Respondent Union, Glaziers Union Local 1204,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. The General Counsel has not proved by a prepon-
derance of the evidence that the Respondent Union has
violated Section 8(bX )(A) of the Act.
4. The General Counsel has not proved by a prepon-
derance of the evidence that the Respondent Employer has
violated Section 8(aXl1) and (3) of the Act.
[Recommended Order for dismissal omitted from publi-
cation.]
between P.P.G. and Hoffer to use the employees of Hoffer on the Lutheran
Aid project, so long as Hoffer's employees were available.
725