San Francisco Newspaper Agency

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD San Francisco Web Pressmen and Platemakers' Union No. 4 affiliated with the International Printing and Graphic Communications Union of North America (San Francisco Newspaper Printing Company, Inc., d/b/a San Francisco Newspaper Agency) and Gil Fowler. Case 20- CB-4721 April 25, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On November 27, 1979, Administrative Law Judge William J. Pannier III issued the attached Decision in this proceeding. Thereafter, Respond- ent filed exceptions and a supporting brief, and the General Counsel filed a brief in response to Re- spondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. Respondent excepts to the Administrative Law Judge's finding that its processing of a grievance filed by Gil Fowler and Mike Tenorio was arbi- trary and perfunctory, and that it thereby breached its duty of fair representation in violation of Sec- tion 8(b)(l)(A) of the Act. For the reasons stated below, we find merit in Respondent's exceptions. The operative facts are fully described in the Administrative Law Judge's Decision. On August 12, 1978,' Tenorio and Fowler became embroiled in a barroom altercation with Bill Creekbaum, an- other member of Respondent employed by the Em- ployer. Although the incident occurred off the Em- ployer's premises and during nonworking hours, Paul Trimble, Respondent's area representative, de- cided that Respondent's executive board should in- vestigate the altercation because Creekbaum had "pulled" a knife normally used as a tool of their trade. Fowler first agreed to appear before the ex- ecutive board, but later decided with Tenorio not to appear. They telephoned Trimble on the even- ing of August 23 to advise him of their decision. Trimble, who was working on the Employer's night shift, attempted, without success, to persuade them to appear. Fowler and Tenorio decided to emphasize their refusal by visiting Trimble at work and personally telling him that the the dispute was i Unless therwise noted, all dates are in 1978 249 NLRB No. 23 a private matter of no concern to Respondent. Fowler and Tenorio were accompanied by a third man, Richard Shimer. The three confronted Trim- ble, with Fowler acting as spokesman, and said they wanted to talk to him. Trimble agreed to talk, but Fowler repeatedly insisted that the conversa- tion occur outside. Trimble refused to leave his workplace. Fowler then asked when he would get off from work and ended the conversation by promising to see Trimble outside at that time, ap- proximately 5 a.m. The credited testimony reveals that Trimble felt threatened by Fowler's words and conduct, and was concerned about leaving work the following morning, inasmuch as he did not drive and had to wait at a nearby bus stop in an area he described as "not exactly the classiest neighborhood in San Francisco." In order to allay his fears, Trimble asked the night foreman if the Employer's security personnel could accompany him to the bus stop. The night foreman relayed Trimble's request, and the grounds therefor, to his superiors, who granted the request, and also decided to discharge Fowler and Tenorio. The terminations were accomplished on August 24. On that same date, the Employer obtained written statements concerning the alleged threat from Trimble and two employee eyewit- nesses, David Cutsinger and E. F. Henderson. Upon learning the following morning that Fowler and Tenorio had been discharged for their action, Respondent's president, Richard Munger, immediately initiated the contractual grievance procedure by calling for a meeting of the Joint Standing Committee, despite the fact that he knew that the threatened employee was a union officer. 2 The committee was composed of two representa- tives of Respondent, Munger and David Ratto, Re- spondent's vice president, and two representatives of the Employer. Section 21(b) of the collective- bargaining agreement between Respondent and the Employer provides that: To the Joint Standing Committee shall be re- ferred for settlement . . . all disputes regard- ing discharged employees . ... The Joint Standing Committee must meet within five (5) days from the date on which the members of said committee are notified in writing by either party, through its authorized representative, that a meeting is desired, and shall proceed forthwith to attempt to settle any question raised by either party. Section 21(c) of the agreement further provides that all decisions of the committee require a unani- 2 It should be nrioted that neither Fowler nor Tenorio filed a grievance concerning their discharge until August 26, 2 days after Munger initiated the grievance procedure on their behalf SAN FRANCISCO WEB PRESSMEN AND PLATEMAKERS' UNION NO. 4 mous vote of the representatives, and that, if agree- ment cannot be reached within 10 days, either party may request that the dispute be moved to ar- bitration. After arranging for a meeting of the Joint Stand- ing Committee, Munger interviewed Trimble, Hen- derson, and Cutsinger on August 24 or 25. Munger testified that, after completion of the interviews, he . . . found out that the union was in a most precarious position. In order to prosecute the grievance and the discharge and attempting for reinstatement, I would have to utilize wit- nesses who were present at the incident, if you will. Much to my dismay, I found that all three of the witnesses support the company's position. So it became very difficult . . . at best, to try to prosecute. The Joint Standing Committee met on August 29. In accordance with past practice, the discharg- ees were not present. The Employer presented Re- spondent with the written statements of Henderson, Cutsinger, and Trimble, and "emphatically" refused to reinstate Fowler and Tenorio. Respondent's offi- cials caucused, sought advice from Respondent's attorney, and, in Munger's words, a little bit later after the caucus we final- ly arrived at the decision, one that wasn't easily reached, I would have to say. Looking for every avenue that we could explore to try to bolster the Union's position to no avail, the decision was finally reached, based on the evi- dence that was presented by management at the Joint Standing Committee meeting, and based on the entire circumstances and merits of the whole grievance, we chose not to pursue it any further. That is, we chose not to pursue it to arbitration. On September 17, at the next regularly scheduled general membership meeting of Respondent, the membership voted to approve that decision. Based upon the foregoing facts, the Administra- tive Law Judge found that Respondent's process- ing of the grievance relating to the discharges of Fowler and Tenorio was arbitrary and perfunctory, because it accepted as fact "accounts of a dispute which are ambiguous and susceptible of more than one interpretation without making at least an effort to obtain the grievant's explanation of his con- duct." We cannot agree. The Administrative Law Judge established a standard which would, in prac- tice, require unions to obtain explanations from every grievant or discharged employee. While such a practice may be salutary, neither the Board nor the courts have established any such requirement. Indeed, it has been recognized that negligent ac- tions or inactions by a union do not alone consti- tute a breach of the union's duty of fair representa- tion. General Truck Drivers, Chauffeurs and Helpers Union, Local No. 692, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Great Western Unifreight System), 209 NLRB 446, 448 (1974). A union violates its duty of fair representation to bargaining unit members when it "arbitrarily ignore[s] a meritorious grievance or process[es] it in a perfunctory fashion." Vaca et al. v. Sipes, 386 U.S. 171, 191 (1967). We have recently stated that where, as here, a union undertakes to process a grievance, but decides to abandon the grievance short of arbitration, the finding of a violation turns on whether the union's disposition of the grievance was perfunctory or motivated by ill will or other invidious considerations. Glass Bottle Blowers Asso- ciation of the United States and Canada, AFL-CIO, Local No. 106 (Owens-lllinois, Inc.), 240 NLRB 324 (1979). The Administrative Law Judge found that Respondent did not harbor any animus against either of the discharged employees, and did not act through any hostile motivation. No exceptions were filed to this finding; accordingly, we will defer to it. Cases such as ITT Arctic Services, Inc., 238 NLRB 116 (1978); E. L. Mustee & Sons, Inc., 215 NLRB 203 (1974); and Sargent Electric Compa- ny, 209 NLRB 630 (1974), are therefore inapposite. Having determined that Respondent did not act through hostile motivation or harbor any animus against the discharged employees, the issue present- ed becomes a most narrow one: Did Respondent process the subject grievance in a perfunctory fash- ion and thereby violate its duty of fair representa- tion by failing to obtain the discharged employees' version of the incident leading to their discharge? To answer this question in the affirmative would, we believe, place the Board in the position of second-guessing a union's assessment of the merits of a grievance. It is well settled that: . .. so long as it exercises its discretion in good faith and with honesty of purpose, a col- lective-bargaining representative is endowed with a wide range of reasonableness in the per- formance of its duties for the unit it represents. Mere negligence, poor judgment, or ineptitude in grievance handling are insufficient to estab- lish a breach of the duty of fair representa- tion. 3 While the Board found a violation of the union's duty of fair representation in Convacare of Decatur, the union in that case failed to conduct any investi- 3 Service Enplovees International Unin, Local NVo 579. AFL-CIO (Cont vacare of Decatrur d/b/a Beverr Manor Convalescencr Centr, e a), 22q Nl.RB 692, 695 (1977), and cases cited herein. 89 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gation of the asserted reason for the discharge of a unit employee. In contrast, here Respondent sepa- rately interviewed two employee eyewitnesses, as well as the employee against whom the alleged threat was directed. Unlike the union in Phyllis Whitehead d/b/a P & L Cedar Products, 224 NLRB 244 (1976), Respond- ent did not merely accept uncorroborated asser- tions that the discharged employees had engaged in misconduct. Rather, it conducted an investigation and determined to its own satisfaction that those assertions were true. Despite the results of that in- vestigation, Respondent followed through with its request for a Joint Standing Committee meeting by protesting the discharges during the grievance meeting of August 29. As noted above, only after the Employer adamantly refused to reinstate Fowler and Tenorio did Respondent's representa- tives caucus and decide not to pursue the grievance to arbitration. Under these circumstances, we find and con- clude that Respondent's handling of the grievance filed by its president on behalf of Fowler and Ten- orio was not outside the "wide range of reasonable- ness"4 accorded a statutory bargaining representa- tive. Accordingly, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. MrEMBER JENKINS, concurring: Unlike my colleagues, I think the Administrative Law Judge formulated the correct general standard for the Union's discharge of its duty of fair repre- sentation. In the circumstances of this case, howev- er, I agree with them that the Union carried its in- vestigation to the point of ascertaining the facts with reasonable certainty, and did not breach its duty. 4 Ford Motor Co. v. Huffman, 345 U.S. 330, 338 (1953). DECISION STATEMENT OF THE CASE WILLIAM J. PANNIER III, Administrative Law Judge: This matter was heard in San Francisco, California, on June 19 and 20, 1979. On February 9, 1979, the Regional Director for Region 20 of the National Labor Relations Board issued a complaint and notice of hearing, based upon an unfair labor practice charge filed on September 1, 1978,1 alleging violations of Section 8(b)(l)(A) of the National Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called the Act. All parties have been afforded full opportunity to appear, to introduce evidence, to examine and cross-ex- amine witnesses, and to file briefs. Based upon the entire record, upon the briefs filed on behalf of the parties, and upon my observation of the demeanor of the witnessess, I make the following: FINDINGS OF FACT I. JURISDICTION At all times material, San Francisco Newspaper Print- ing Company, Inc., d/b/a San Francisco Newspaper Agency, herein called the Employer, has been a Nevada corporation with its headquarters in San Francisco, Cali- fornia, and has been engaged in the publication, distribu- tion, and sale of the San Francisco Examiner and San Francisco Chronicle newspapers to retail customers. During the past calendar year, the Employer received revenues in excess of $50,000 from both the San Francis- co Examiner newspaper and the San Francisco Chron- icle newspaper, each of which meets the Board's juris- dictional standards. Therefore, I find, as stipulated by the parties, that, at all times material, the Employer has been an employer engaged in commerce and in operations af- fecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED At all times material, San Francisco Web Pressmen and Platemakers' Union No. 4, affiliated with the Inter- national Printing and Graphic Communications Union of North America, herein called Respondent, has been a labor organization within the meaning of Section 2(5) of the Act. 11l. ISSUE On August 24, the Employer discharged Gil Fowler and Mike Tenorio, journeymen pressman, for "their con- duct on the night of August 23, 1978, when, while in an off-duty status, they entered [the Employer's] pressroom and threatened to commit acts of physical violence upon the person of Paul D. Trimble, the area representative of the Union in the pressroom, who at that time was on duty." The sole violation alleged in the complaint is that on August 24 Fowler and Tenorio asked to file a griev- ance concerning their discharges, but that Respondent refused to process that grievance for arbitrary, irrelevant, invidious, or unfair reasons in violation of Section 8(b)(1)(A) of the Act. IV. RELEVANT EVENTS Respondent and the Employer are parties to a collec- tive-bargaining agreement. Section 21 of that agreement provides for creation of a Joint Standing Committee to which are referred, inter alia, all disputes between the parties "regarding discharged employees." This is the 'Unless otherwise stated, all dates occurred in 1978. SAN FRANCISCO WEB PRESSMEN AND PLATEMAKERS' UNION NO. 4 91 first step of the grievance procedure set forth in the agreement. Fowler and Tenorio commenced working in the Em- ployer's pressroom in November 1977. Both had come from the Washington, D.C., area and both had been ter- minated by The Washington Post for their conduct in connection with violence arising during a strike against that publication. In January, the Employer terminated both of them upon learning of their criminal convictions resulting from that activity. Without waiting for either man to file a grievance, Respondent undertook to, and did, secure their reinstatement. At Respondent's April general membership meeting, Fowler first learned of a program, embodied in a supple- mental agreement between Respondent and the Employ- er, by which apprentices working prior to January 1, 1977, could be elevated to the status of conditional jour- neymen, thereby attaining a preference over full journey- men not employed prior to that date. At the June gener- al membership meeting, continued observance of the pro- gram became a matter of debate.2 Fowler testified that, when he announced that he intended to appeal to Re- spondent's International and to file age discrimination charges against Respondent, Vice President David Ratto rose from his seat, pointed at Fowler, and said, "Major- ity rule's always been good enough for Local 4. And if you continue and alienate yourself from Local 4, you may find you've bit off more than you can chew." Ac- cording to Fowler, Ratto then turned to Tenorio and said, "You are lucky we work you at all. We could do you like Denver did you and not work you period." On redirect examination, Fowler testified that Ratto also "reminded me that the company had discharged me in January and the union went to bat for me that time." Ratto testified only that he did not "recall making any derogatory remarks and threatenting remarks to Mr. Tenorio or Fowler. To the best of my knowledge, I made none." Tenorio, who appeared as a witness after Fowler, testified that Ratto said: Majority rule is usually good enough for this local; that if he pursued it, that he may alienate himself from Local 4 and bite off more than he could chew. And he then turned to me and said that I ought to be lucky that I'm working, that they could do the same thing the Denver local did, and not represent me and not let me work, and I ought to just shut up and sit down. Asked specifically if Ratto made any reference to the Employer's January discharges, Tenorio responded that Ratto had done so: "He said that the union represented us once; and that we may find ourselves biting off more than we can chew, if we come into any kind of harass- ment by the company, again." While no other official of 2 Fowler claimed that after the April Meeting he went "to the union meeting every month, mustered as much support as I could, got those signatures that appear on the document signed; and most of them went up to the union meeting with me; over a period of two or three months I built up a few backers. This continued to the June meeting, every month, same old thing." Yet, not one other witness called by the General Coun- sel, including Tenorio, supported Fowler's claim that his outspoken oppo- sition extended over so prolonged a period prior to the June meeting. Respondent described Ratto's words at that meeting journeyman Curtis Wiley had been called as a witness by the General Counsel before Fowler and Tenorio. He tes- tified simply that Ratto rose "and pointed his finger at Brother Fowler and said if he didn't desist in what he was doing that he would alienate himself from the local. Then he sat down." In late June, 14 members signed and sent a "griev- ance" letter to the International protesting continued im- plementation of the conditional journeymen program. Fowler's signature was one of two that headed the list of signatures. However, journeyman James Palmer's return address was used for the letter, and it was to Palmer that the International subsequently directed its correspond- ence denying the grievance. In addition, Fowler visited the local office of the United States Department of Labor to inquire about filing age discrimination charges. Although he made more than one such visit, no charges were ever filed, and Respondent's officials denied any knowledge of his activities in that regard. While Fowler claimed that it was "a widely known fact" that he had been there, he admitted that he never told any of Re- spondent's officials about these trips, and there is no other evidence that would tend to support his assertions that these visits were "a widely known fact." In late July or early August, Fowler ran for chapel chairman. He testified that he did so to "see if I could muster some support in the chapel and see if I could stop the appren- tices from moving up by being the chapel chairman." Nevertheless, there is no evidence that he made this in- tention known, and there is no evidence that this was even an issue during the campaign. Fowler lost the elec- tion. During the afternoon of August 12, Tenorio and Fowler became embroiled in a fight, during nonwork- time at a bar across the street from the Employer's facili- ty, with Bill Creekbaum, who also worked for the Em- ployer, and who also was one of the signatories to the "grievance" letter sent to Respondent's International. During the altercation, Creekbaum pulled a knife. Though on vacation at the time, Area Representative Paul C. Trimble decided that Respondent's executive board should investigate the fight since a knife had been used. Trimble explained that knives are a tool of the trade, and that the Employer had never prohibited em- ployees from taking them from the premises. He testified that he feared that such a restriction might be imposed if the Employer learned of the altercation, and if, in fact, the knife used by Creekbaum had been one used in per- forming his work. Thus, Creekbaum was summoned to appear before the executive board in August. No similar invitation was extended to Fowler and Tenorio at that time because, testified Trimble, he was unaware of their involvement until Creekbaum appeared and described what had happened. After listening to Creekbaum's de- scription of what had occurred, the members of the ex- ecutive Board-fearing prolongation of the argument, possible extension of the dispute into the Employer's pressroom, and the possibility that the Employer might again terminate Fowler and Tenorio should it learn of the dispute-decided to invite Fowler and Tenorio to its 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD September meeting to obtain their version of what had occurred. 3 Although Fowler initially agreed to Trimble's request that he appear at the September meeting, he and Tenorio later discussed the invitation and decided not to appear. During the evening of August 23, they telephoned Trim- ble, who was then working for the Employer on the night shift, and advised him of their decision. While Trimble attempted to persuade them to appear, pointing out that they had not been issued citations compelling their appearance, both declined. Not satisified that they had made their position clear, Fowler and Tenorio de- cided to journey to the Employer's premises to tell Trimble personally that they believed the dispute was a private matter of no concern to Respondent. This visit led to their terminations. When Fowler and Tenorio arrived at the Employer's plant, a third man, Richard A. Shimer, was with them. He went along, according to Fowler and Shimer, to find out if he could obtain employment with the Employer. However, there is no evidence that this was explained to Trimble during the course of the encounter that oc- curred. Once at the plant, the three men went to Trim- ble's workplace, and Fowler asked to speak with him. Trimble invited Fowler to do so, but the latter replied, "No. I don't want to talk to you here. Let's go out- Let's walk outside. I want to talk to you outside." 4 Trimble refused to leave the pressroom. He testified that he suggested that they go into the chapel chairman's office, but that Fowler had declined to discuss the matter there. Fowler, Tenorio, and Shimer each denied that Trimble made this suggestion.5 In any event, when Trimble continued to refuse to step outside, Fowler then inquired as to the time that Trimble got off from work. When Trimble said that his shift would be ending at ap- proximately 5 or 5:30 a.m., Fowler left, saying "Well, I'll see you when you get off work. I'll talk to you then." Trimble testified, in essence, that he felt threatened by Fowler's words and conduct that evening and that he was concerned about leaving work the following morn- ing, inasmuch as he did not drive and had to wait at a bus stop, it would be mostly dark at that hour of the morning, the area was "not exactly the classiest neigh- borhood in San Francisco," Fowler and Tenorio "had both been involved in a bar brawl," and he was "not a fighting man" and "didn't know these men that well enough to feel that I could talk my way out of a fight." Both Shimer and Tenorio denied that Fowler had spoken 'Fowler testified that Creekbaum told him that Ratto and Trimble had requested him to file charges against Fowler and Tenorio, but that Creek- baum had refusd to do so. However, Creekbaum was never thereafter called to corroborate Fowler's testimony nor to describe any such appeal having been made to him by Ratto and Trimble. There was no assertion that Creekbaum was unavailable to testify. 4Fowler testified that he wanted to speak to Trimble privately because "people was gathering around" and he did not want a personal dispute to be "spread all over the shop" Indeed, there had been at least two other employees, E. F Henderson and David Cutsinger, present during the ex- change. However, Fowler conceded that he never explained to Trimble why e wallted to talk to him outside, testifying "I presumed he knew." 'This coinflict does nlot appear to be a matter of great moment, for Fowler tstificd that, even if Trimble had suggested using that office he "wAouldn't hase alnyway because I didn't trust the office not to eavesdrop. I don't consider it is sanctuary." to Trimble in other than a normal tone of voice that evening, but Fowler freely conceded that, in talking to Trimble, he had been "loud. I was a little teed, you know." In fact, in a pretrial affidavit, Fowler admitted that "Trimble did act scared while I was there talking to him, so I later decided to leave him alone. And Tenorio and I went home for the night."6 Acting upon the basis of his concern as to what might happen the following morning when his shift ended and he left the plant, Trimble asked the night foreman if the Employer's security personnel could accompany him to the bus stop. Based upon Trimble's account of what had occurred, the Employer decided to terminate Fowler and Tenorio. On the following morning when he heard Trimble's account of the events of the prior evening, Ratto directed Respondent's secretary-treasurer, William Benfield DeCelles, to prepare travel cards for Fowler and Tenorio, in effect barring them from further dispatch and also from membership in Respondent. It is undisput- ed that later that same morning, DeCelles told Fowler and Tenorio to take the travel cards "and get out of town." Ratto testified that it is Respondent's policy to talk to the person who has been discharged to ascertain his or her position "if we can contact them." However, Re- spondent did not contact either Fowler or Tenorio to conduct such an investigation, even though President Richard Munger did interview Trimble, Henderson, and Cutsinger about the matter on August 24 or 25. In a pre- trial affidavit, Ratto stated that, prior to the Joint Stand- ing Committee meeting conducted to discuss Fowler's and Tenorio's discharges, "[t]he matter was not investi- gated because the union did not, at the time have [the] phone number or address of either Tenorio or Fowler." Yet, DeCelles testified that he had had addresses for both men in August. Moroever, there is no evidence that, in directing DeCelles to issue travel cards to Fowler and Tenorio, Ratto had told DeCelles to have either man contact Respondent's officials to give their accounts of what had occurred on August 23. Finally, prior to the Joint Standing Committee meeting regarding the terminations held on August 29, Ratto twice had per- sonal contact with Fowler and Tenorio: Once on August 26 when they had brought, inter alia, a grievance regard- ing their discharges to him, and again on August 29 just prior to the Joint Standing Committee meeting. On nei- ther occasion did Ratto make any effort to ascertain from them what had occurred that evening, nor did he request that they make themselves available on some other occasion to provide such information. To the con- trary, on August 29 Fowler and Tenorio had requested that they be permitted to attend the Joint Standing Com- mittee meeting, but, according to DeCelles, Ratto had retorted "that they were no longer members of the union, they were not entitled to sit in, or something like that." 6Nevertheless, when he testified, Fowler claimed that he did not be- lieve that Trimble was frightened, and further testified that he did not return to the Employer's facility when Trimble's shift ended because "I fell asleep. I tried to stay awake, but I just didn't make it. I worked day shift that day, and I was tired " Tenorio advanced no explanation for why he and Fowler had not returned on the morning of August 24. SAN FRANCISCO WEB PRESSMEN AND PLATEMAKERS' UNION NO. 4 93 Prior to the Joint Standing Committee meeting, the Employer had asked Trimble to prepare a written state- ment as to what had occurred on August 23 and, addi- tionally, had asked Trimble to have Henderson and Cut- singer prepare similar statements. Trimble's statement de- scribes the incident as follows: I asked Fowler and Tenorio what they wanted and they said they wanted to talk to me. I said, "O.K. What about." They replied "Not here." I of- fered to talk to them in the chairman's office and they said no. I told them either here or in the chair- man's office. Then, in a threatening tone of voice, they said, "We'll see you after you get off work- outside." I repeated that they could talk to me as I offered but, again in a threatening tone of voice they said they would see me outside after work. Asked for an explanation of his use of the pronoun "they" in his statement when everyone else agreed that Tenorio had not spoken that evening, Trimble explained that Fowler had "used the first person plural 'we"' in making his remarks that evening. Neither Henderson nor Cutsinger testified during the hearing in the instant matter. In their statements, they, like Trimble, used the pronoun "they" and both described Fowler as having spoken in "a threatening tone of voice." For example, Cutsinger's statement recites: "Trimble repeated that they could talk to him either there or in the chairman's office. They repeated that they would be waiting for Trimble when he got off work, again in a threatening voice." These statements were presented by the Employer to Respondent's officials at the August 29 Joint Standing Committee meeting. Respondent's officials caucused, contacted Respondent's attorney by telephone, and, as President Munger testified: . . . [l]ooking for every avenue that we could ex- plore to try to bolster the Union's position to no avail, the decision was finally reached, based on the evidence that was presented by management at the Joint Standing Committee meeting, and based on the entire circumstances and the merits of the whole grievance, we chose not to pursue it any further. That is, we chose not to pursue it to arbitration. In arriving at this decision, no effort was made to con- tact and confer with either Fowler or Tenorio. At the September general membership meeting, a motion was made to dispatch Fowler and Tenorio to other shops lo- cated within Respondent's jurisdiction, and that motion was approved. V. ANALYSIS The complaint alleges that Respondent refused to process Fowler and Tenorio's discharge grievance for ar- bitrary, irrelevant, indivious, or unfair reasons. In sup- port of that allegation, the General Counsel advances a theory consisting of several factual elements: i.e., that Respondent had not even waited for Fowler and Tenorio to file a grievance regarding their January terminations before contacting the Employer about that matter; that, during the June general meeting, Ratto had specifically reminded Fowler and Tenorio of past job difficulties in warning them about the consequences of continuing to oppose the conditional journeyman program; that Fowler and Tenorio had ignored Ratto's warning and had continued activities in opposition to that program; that Respondent's abnormal procedure of investigating an off-duty barroom fight demonstrated that it was seek- ing a means of retaliating against Fowler and Tenorio for these continued activities; that it had been an official of Respondent who had reported the events of August 23 to the Employer, thereby imperiling Fowler's and Ten- orio's jobs; and that Respondent had simply accepted the Employer's evidence regarding what had occurred on August 23 without even seeking to ascertain the dis- charged employees' versions of what had transpired that evening. Thus, contends the General Counsel, "Respond- ent's one-sided investigation and presentation of the grievance was motivated by Respondent's aversion to the internal union activities of Fowler and Tenorio . . . and was tantamount to a refusal to process the grievance for unlawful reasons." Several factors, however, operate to undermine the viability of this argument. First, it is not logical to equate the January termina- tions with those of August; for the former had resulted from the Employer's learning of criminal convictions arising from misconduct at another employer, and They had not been based upon misconduct occurring at the Employer's facility nor upon misconduct occurring while Fowler and Tenorio had been employed by the Employ- er. Although both of these factors were present when the Employer decided to terminate them in August, the misconduct attributed to Fowler and Tenorio related di- rectly to their employment with the Employer, having occurred while it employed them and on its premises. This being the fact, it can hardly be said that any differ- ence in Respondent's approaches to the handling of grievances concerning the two sets of discharges, of itself, shows that Respondent harbored hostility toward Fowler and Tenorio in August. In any event, there was not really that much difference, since, in January, Re- spondent had grieved their terminations without waiting for them to file a grievance and without even consulting with them. Second, I do not credit Tenorio's and Fowler's ac- counts of what Ratto purportedly said to them at the June general membership meeting. While Ratto did not deny specifically the statements attributed to him by them, "[a] trier of fact need not accept uncontradicted testimony as true if it contains improbabilities of if there are reasonable grounds for concluding that it is false." Operative Plasterers' & Cement Masons' International Asso- ciation, Local 394 (Burnham Brothers, Inc.), 207 NLRB 147 (1973). When they testified, both Fowler and Ten- orio appeared to be attempting to embellish their ac- counts of what occurred in an effort to buttress their po- sitions. A review of the record confirms that impression. For example, Fowler claimed to have engaged in exten- sive activity to oppose the conditional journeyman pro- gram between the April and June general membership meetings. However, no other witness called by the Gen- eral Counsel corroborated his account of prolonged and 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD intensive efforts by him in opposition to that program prior to the June meeting. Similarly, there was no cor- roboration for his claim that his inquiries regarding the possibility of filing age discrimination charges was "a widely known fact." Apparently perceiving the signifi- cance of Trimble's frightened condition on the night of August 23, Fowler denied that Trimble appeared scared that evening even though he admitted as much in his pretrial affidavit. Moreover, whereas his affidavit recited that it was Trimble's condition that led him (Fowler) to make a conscious decision not to return the following morning, he attempted to further avoid the adverse im- plication of Trimble's fright by claiming that he simply fell asleep before he was able to go back to the Employ- er's facility. Similarly, Tenorio's denial that Fowler spoke to Trimble in a loud voice on August 23 was di- rectly contradicted by Fowler's admission that he did. With specific regard to Ratto's remarks at the June general membership meeting, Fowler, when initially asked to recount what was said, included no reference to the January discharges in his narrative recitation of what Ratto said. During cross-examination, Fowler then added that Ratto made another remark. In so doing, his con- cern appeared to be that his earlier narrative description might have been deficient in establishing the requisite hostility by Respondent in general and by Ratto in par- ticular. Then, on redirect examination, he added that Ratto "reminded me that the company had discharged me in January and the Union went to bat for me that time." Tenorio, who testified after Fowler, pursued a similar course: He gave a narrative account of Ratto's re- marks that included no reference to the January dis- charges and then added the asserted comment about that subect only when the topic was suggested to him. By contrast, journeyman Wiley, who testified before Fowler, made no reference to such a comment by Ratto, nor, for that matter, to any comment pertaining to Ten- orio's difficulties in Denver: Ratto "pointed his finger at brother Fowler and said if he didn't desist in what he was doing that he would alienate himself from the local. Then he sat down." I credit this account of Ratto's re- marks to Fowler that day, and I do not credit the de- scription advanced by Fowler and Tenorio. This, of course, still leaves the issue of whether Ratto's remarks, as related by Wiley, constituted evidence that Respondent harbored sufficient hostility toward Tenorio and, particularly, Fowler to warrant the conclusion that it was likely that Respondent would cross the boundary separating membership considerations from consider- ations relating to their employment rights. See the dis- cussion in International Longshoremen's and Warehouse- men's Union, Local 13 (Pacific Maritime Association), 228 NLRB 1383, 1385 (1977), enfd. 581 F.2d 1321 (9th Cir. 1978). At the outset, it is worth noting that there is no allegation that Ratto's remarks constituted restraint or coercion within the meaning of Section 8(b)(1)(A) of the Act. Ratto's words, as related by Wiley, did not consti- tute an explicit threat to interfere with Fowler's and Tenorio's employment relationship with the Employer. Nor did they contain an explicit threat to refuse to aid them should they encounter difficulties in the course of their employment relationships. Ratto did state that further opposition to the condi- tional journeymen program could "alienate" Fowler, at least, from Respondent. However, it must be recalled that, by the time of this debate on the subject, the terms of the program had already been embodied in an agree- ment with the Employer and a majority of Respondent's members had voted in April to implement it by elevating one eligible apprentice to the status of conditional jour- neyman. In short, the debate at the June meeting did not pertain to a subject on which there was a clean slate, but rather was concerned with an already resolved and im- plemented matter. In this posture, it is just as inferrable that Ratto had meant that, by prolonging the discussion, Fowler would cause the majority to become "unfriendly, hostile, or indifferent" 7 toward Fowler qua member of Respondent as qua employee. In choosing between these inferences, there is a para- mount consideration that should be kept in focus. That consideration is that rigorous debate of union policies is encouraged by Federal labor policy generally and by the Act particularly. See, e.g., International Union of Operat- ing Engineers Local 400, AFL-CIO (Hilde Construction Company), 225 NLRB 596, 601-602 (1976), enfd. by un- published decision 95 LRRM 3010, LC 13,305 (D.C. Cir. 1977). Of necessity the cases in this area are normal- ly centered on the rights of employees to question union policy and to attempt "to align their union with their po- sition." Nu-Car Carriers, Inc., 88 NLRB 75, 76 (1950), enfd. 189 F.2d 756, 760 (3d Cir. 1951), cert. denied 342 U.S. 919 (1952). Yet, to be fully effective in promoting full exploration and consideration of union policy, the corollary must exist: Union officials must have the right, short of making unlawful threats, to defend their policies, to question the basis of employee opposition, and to at- tempt to align dissident members with union policies. Moreover, there must come a point at which debate re- garding settled issues must cease. During the course of such rigorous debate, it is quite likely that participants, including union officials, will become emotional and ex- press strong language. For the area of formulating union policy is one "where opinions are frequently expressed in very strong language." International Union of Elevator Constructors Local Union No. 8, AFL-CIO (San Francisco Elevator Co.), 243 NLRB No. 10 (1979). To later be over casual in relying upon union officials' strongly expressed, but lawful, comments made during such debates as a basis for inferring animus would hobble those officials' ability to explain and to defend their policies. Ultimately, it would curtail their ability to provide rebuttal argu- ments to the general membership and to terminate the prolongation of further debate about issues which, as was the case here, had already been resolved by the member- ship. There is no basis for choosing to infer that Ratto's "alienate" comment pertained to other than Fowler's general standing with Respondent's membership as op- posed to Fowler's employment status. In view of the ab- sence of such a basis, and in light of the general consid- erations set forth above, I find that it cannot be said that ? The definition of "alienate," as pertinent to Rato's usage of the word, contained in Webster's New Collegiate Dictionary, Springfield, Massachusetts: G. & C. Merriam Co.. 1977. SAN FRANCISCO WEB PRESSMEN AND PLATEMAKERS' UNION NO. 4 95 Ratto's remark pertained to Fowler's employment status, or that it constituted an implied threat not to fairly rep- resent Fowler in future disputes which might arise from his employment relationship. Third, Fowler claimed to have pursued his opposition to the conditional journeymen program throughout the summer. But there is no evidence that Respondent would have been aware of any activities by him that were so unique that it could he inferred that Respondent would likely have sought to retaliate against him. For example, while his signature headed the column of signatures on the "grievance" letter, 13 other members signed that letter and the return address used was that of Palmer, Indeed, so far as the record discloses, there were no ef- forts to obtain further consideration of the program by the International once the "grievance" was denied. There is no reliable evidence that Respondent had knowledge of Fowler's trips to the Department of Labor office. There is no evidence that Fowler's campaign for chapel chairman was waged on the basis of opposition to this program. Nor is there evidence that the program was even explored during that campaign. Even less sig- nificant was Tenorio's internal union activity following the June general membership meeting-being confined to having been the 10th signatory to the "grievance" letter. In sum, a preponderance of the evidence simply will not support the conclusion that Fowler's activities were of such concern that Respondent would likely have been disposed to retaliate against him in August for any prob- lem posed by him. Fourth, any argument that the August investigation of the barroom brawl had been initiated by Trimble as a device for finding a method of retaliating against Fowler and Tenorio founders on one fact: Trimble had been un- aware that Fowler and Tenorio had been involved at the time that he had initiated the investigation by the execu- tive board. His testimony in this regard is corroborated by the fact that it had been Creekbaum-not Fowler and Tenorio-who had been summoned to the August execu- tive board meeting. To the extent that there were differ- ences between Respondent's treatment of this altercation and other fights between members, Trimble's explanation that the use of a knife had concerned him, because of its use as a tool of the trade and because the Employer had not prohibited employees from taking knives from its premises, was logical and convincing. Only when Creek- baum disclosed to the executive board that Fowler and Tenorio had been involved in the fight did that body see fit to involve them in its investigation. Again, the expla- nations for doing so, advanced by the executive board members who testified, were logical. Although Fowler claimed that Creekbaum warned of a plot by Ratto and Trimble to have charges preferred against Fowler and Tenorio, this testimony was hearsay, inasmuch as Creek- baum never testified, and, in any event, it was given by Fowler, a less than reliable witness. In sum, the investi- gation of the barroom brawl provides no solace for the General Counsel's theory. Fifth, while it is true that Trimble was the one who reported the August 23 encounter to the Employer, no inference adverse to Respondent is warranted because of that fact. He did not make that report in an effort to cause trouble for Fowler and Tenorio-he did so to obtain protection when his shift ended and he had to leave the Employer's facility. Regardless of Fowler and Tenorio's intentions that evening, I have no doubt that their conduct frightened Trimble. To be invited outside at night, without explanation, by one of a group of three persons during the course of a dispute, and to then be told that the group would be waiting outside later, tends to be frightening. Trimble testified that he was fright- ened, and, in his pretrial affidavit, Fowler admitted that it appeared that Trimble was scared. It would hardly be illogical for an employee to seek protection in such cir- cumstances. That Trimble is an official of Respondent, as well as an employee, would hardly alter his personal safety concern or his right to seek protection. In these respects, he stood in the same position as any other em- ployee. Moreover, it was not illogical for Trimble to have gone to the night foreman in search of protection, since the Employer employed security personnel who, presumably, would have been more proficient than any other persons then at the Employer's facility in provid- ing protection. In sum, there is simply no basis for con- cluding that Trimble used the encounter of August 23 as a deliberate device for retaliating against Fowler and Tenorio. While the foregoing considerations serve to refute the General Counsel's argument that Respondent harbored animosity toward Fowler and Tenorio for their internal union activities and was seeking a means for retaliating against them because of that activity, there still remains the question of the manner in which Respondent proc- essed their grievance concerning their terminations. For hostile motivation is not the only basis upon which a union can be held to have breached its duty of fair repre- sentation. "[T]he language of section 8(b)(X)(A), unlike certain other provisions of section 8, is not restricted to discrimination which encourages or discourages union membership." Kesner v. N.L.R.B., 532 F.2d 1169, 1174 (7th Cir. 1976). Rather, "a union must represent fairly the interests of all bargaining-unit members during the negotiation, administration, and enforcement of collec- tive-bargaining agreements." International Brotherhood of Electrical Workers, et al. v. Foust, 442 U.S. 42 (1979). Specifically, "a union may not arbitrarily ignore a meri- torious grievance or process it in perfunctory fashion." Vaca v. Sipes, 386 U.S. 171, 191 (1967). In the instant case, at no point following the dis- charges did Respondent seek to ascertain Fowler's and Tenorio's descriptions of what had occurred on August 23, nor did it make an effort to obtain their explanations of their conduct that evening. Instead, as shown by Ratto's August 24 order to DeCelles to issue travel cards to Fowler and Tenorio, Respondent accepted Trimble's version of what took place and made the decision that Fowler and Tenorio were the wrongdoing parties. In short, while Ratto listened to Trimble, he made his deci- sion without attempting to listen to them. The Board has not been reluctant to find that the processing of a griev- ance was perfunctory where, at least, one element was the bargaining representative's failure to listen to the grievant's explanation of what occurred. See Newpor News Shipbuilding & Dry Dock Company, 236 NLRB 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1470 (1978); ITT Arctic Services, Inc., 238 NLRB 116 (1978); Service Employees International Union, Local No. 579, AFL-CIO (Convacare of Decatur d/b/a Beverly Manor Convalescent Center, et al.), 229 NLRB 692, 695 (1977); Phyllis Whitehead d/b/a P & L Cedar Products, 224 NL.RB 244, 260 (1976), and cases cited therein. Here, of course, there is no reliable evidence that either Fowler or Tenorio made a specific request that Respondent listen to their versions of what occurred. Yet, that is not the determinative consideration. On August 26, they presented Ratio with a grievance charg- ing that their discharges were unjust. On August 29, they requested permission to attend the Joint Standing Com- mittee meeting. Surely, it must have been obvious that they did not agree with the personnel action taken by Respondent. Nevertheless, neither Ratto nor any other official of Respondent made the slightest effort to even make arrangements to ascertain their basis for disputing the action taken by the Employer. Instead, Respondent's president arranged for a meeting of the Joint Standing Committee and interviewed Trimble, Henderson, and Cutsinger. Then, Respondent's officials examined the evi- dence accumulated by the Employer and, without even attempting to confer with Fowler and Tenorio, decided to abandon the grievance. Thus, Respondent arrived at its conclusion without ever confronting Fowler and Ten- orio with the basis for its conclusion that it should not pursue the grievance further. See Glass Bottle Blowers As- sociation of the United States and Canada, AFL-CIO, Local No. 106 (Owens-Illinois, Inc.), 240 NLRB 324 (1979). It is, of course, not the Board's function to act as arbi- trator by making a determination as to whether the un- derlying grievance actually was meritorious. Neverthe- less, Respondent's failure to at least attempt to obtain Fowler's and Tenorio's descriptions and explanations of their conduct on August 23 is particularly significant in cases such as this where, unike questions involving exces- sive absences, the conduct for which they were terminat- ed cannot be quantitated. Here, the circumstances of the underlying dispute are not as unambiguous as Respond- ent now seems to portray them. The reason for the ter- minations was based upon a verbal altercation and the in- ferences to be drawn from the words spoken and the ac- tions taken during that incident; the type of conduct which brings into play subjective impressions of both participants and witnesses. The words that were actually spoken-the request that Trimble go outside and the promise to return the following morning-were suscepti- ble of more than one interpretation as is shown by com- paring Trimble's fears with Fowler's asserted purpose in saying these things. The description of Fowler's tone of voice as having been "threatening" is ambiguous. Trim- ble readily acknowledged that Fowler made no threaten- ing gestures that evening. True, Fowler conceded having spoken loudly. However, he was "teed," and the conver- sation had been occurring in a pressroom. Talking in a loud and emotional tone is hardly automatically tanta- mount to threatening physical violence-if it were, then it could equally be inferred that Ratto was threatening physical retaliation at the June general membership meet- ing when he emotionally expressed his displeasure with Fowler's continued opposition to the conditional jour- neyman program. In sum, there is sufficient ambiguity and differences of interpretation in Fowler's and Tenor- io's August 23 conduct to give rise to a reasonable possi- bility that, had Respondent spoken with them, its posi- tion during and after the Joint Standing Committee meet- ing might well have been different. Respondent might well have concluded that there had been an honest error in judgment by Trimble which, with good will, could have been resolved on some basis other than the termina- tions of Fowler and Tenorio. See, e.g., United Steelwork- ers of America, AFL-CIO (Inter-Royal Corp.), 223 NLRB 1184, 1185 (1976). In its brief, Respondent argues that both former Gen- eral Counsel Irving and Board Member Truesdale have expressed concern regarding the extent to which the duty of fair representation might be used to intrude too deeply into the internal union decisionmaking processes. Such expressions of concern are neither novel nor ill founded. See, e.g., Vladeck, "The Conflict between the Duty of Fair Representation and the Limitations on Union Self-Government," in The Duty of Fair Represen- tation, 44-54 (J. McKelvey ed. 1977). Yet, a rule that re- quires a labor organization to listen to more than one side of a dispute between members, in circumstances where those on one side have lost their jobs because of that dispute, hardly seems to be too intrusive into inter- nal decisionmaking. Respondent is still free to arrive at a decision not to process the grievance. Moreover, there may well be situations where the fact that a union offi- cial has witnessed an altercation and has reported what he or she has observed will suffice to constitute a greater than perfunctory investigation of the matter. Here, how- ever, Trimble was not a dispassionate observer-he was one of the disputants. Just as he was entitled to the same right as other employees to seek his Employer's protec- tion when he felt that he was threatened, as discussed above, so too is he subject to the same frailties of error, due to involvement, in his impressions as to what oc- curred. And, as shown above, had Munger interviewed Fowler and Tenorio-in the same manner as he had in- terviewed Trimble, Henderson, and Cutsinger-their ex- planations might well have convinced Respondent's offi- cials that Trimble had overreacted and that Respondent should pursue the grievance more vigorously. The conclusion which I reach here is a most narrow one. It does not pertain to the manner in which Re- spondent might have chosen to decide whether or not to process Fowler and Tenorio's grievance had it sought to interview them. It does not require that Respondent in- terview grievants in every situation. It does not preclude Respondent from confining investigations to accepting versions of what occurred from its officers when they are not disputants in the encounter that led to disciplin- ary action against an employee. It simply is this: A union's processing of a grievance is arbitrary and per- functory where, having undertaken investigation of a grievance, it accepts as fact accounts of a dispute which are ambiguous and susceptible of more than one interpre- tation without making at least an effort to obtain the grievant's explanation of his conduct. Because Respond- ent failed to satisfy this standard, I find that it violated SAN FRANCISCO WEB PRESSMEN AND PLArEMAKERS' UNION NO. 4 97 the duty of fair representation which it owed to Fowler and Tenorio. VI. THE EFFECT OF THE UNFAIR .ARBOR PRACTICES UPON COMMERCE The activities of Respondent set forth above, occur- ring in connection with the operations of San Francisco Newspaper Printing Company, Inc., d/b/a San Francis- co Newspaper Agency, described in section I, above, have a close, intimate, and substantial relations to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. CONCLUSIONS OF LAW 1. San Francisco Newspaper Printing Company, Inc., d/b/a San Francisco Newspaper Agency, is an employer engaged in commerce and in operations affecting com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. San Francisco Web Pressman and Platemakers' Union No. 4, affiliated with the International Printing and Graphic Communications Union of North America, is a labor organization within the meaning of Section 2(5) of the Act. 3. By processing the grievance concerning the August 24, 1978, discharge of Gil Fowler and Mike Tenorio in an arbitrary and perfunctory manner, San Francisco Web Pressmen and Platemakers' Union No. 4, affiliated with the International Printing and Graphic Communications Union of North America, violated Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. San Francisco Web Pressmen and Platenmakers' Union No. 4, affiliated with The Internatinal Printing and Graphic Communications Union of North America, did not violate the Act in any other manner. THE REM I)Y Having found that San Francisco Web Pressmen and Platemakers' Union No. 4, affiliated with the Internation- al Printing and Graphic Communications Union of North America, engaged in certain unfair labor practices, I shall recommend that it be ordered to cease and desist therefrom and that it take certain affirmative action de- signed to effectuate the policies of the Act. With respect to the latter, a review of section 21 of the collective-bargaining agreement discloses that there ap- pears to be no time limits imposed upon the processing of grievances to other stages of the grievance procedure beyond the Joint Standing Committee level. If that is correct, then the propriety of the discharges of Fowler and Tenorio can still be resolved through arbitration and, at this point, a backpay award would "involve spec- ulation into the merits of their grievance and might well be punitive." Glass Bottle Blowers Association (Owens-Illi- nois), 240 NLRB 324. Accordingly, San Francisco Web Pressmen and Platemakers' Union No. 4, affiliated with the International Printing and Graphic Communications Union of North America, shall be required to pursue the remaining stages of the grievance procedure, including arbitration, in good faith with all due diligence and, fur- ther, will be required to furnish Fowler and Tenorio with reasonable attorney's fees to permit them to retain their own counsel to represent them through the remain- ing stages of the grievance procedure. However, in the event that am incorrect with regard to the existence of time limitations for the processing of grievances to fur- ther stages in the grievance procedure and/or should there ultimately be a disposition that Fowler and Tenor- io's grievance is time-barred, then San Francisco Web Pressmen and Platemakers' Union No. 4, affiliated with the International Printing and Graphic Communications Union of North America, shall be ordered to make Gil Fowler and Mike Tenorio whole for any loss of earnings they may have suffered by reason of its unlawful refusal to process their grievance fairly, with backpay to be computed on a quarterly basis, making deductions for in- terim earnings, as prescribed in F. W Woolworth Compa- ny, 90 NLRB 289 (1950), plus interest as set forth in Isis Plumbing & eating Co., 138 NLRB 716 (1962), enforce- ment denied on different grounds 322 F.2d 913 (9th Cir. 1963), and Florida Steel Corporation, 231 NLRB 651 (1977). 8 [Recommended Order omitted from publication.] "The use of an alternative hackpay remedy, in the event that a dispule cannot be arbitrated on its erits. is not unprecedented See, eg.. Pepper Packing Co.. 243 NRBII No 7 (1979). Even if it could be said t have been likely hat an arbitrator would have upheld FAler's and TenoriosN discharges, that cannot he knoswn with certainty given he ambiguities of the situation, ad "elementary conceptions of justice and public policy re- quire that the wrongdoer shall hear the risk of the uncertainty which its own wrong has created " Bligelow N RKO Radio Ptures. Inc., 237 U S 251, 265 (1946) Accord Jack CG Buncher d/b/s The Buncher (ontrptv. I64 NI.RB 340. 341 (1967), enfd 405 F2d 787 (3d Cir 19691, cerl denlied, 396 US 828 While Respondent argues hat a backpay remed a osuld be puitise, the fact that the cost f backpay might be high ior even "drastic does ot make it extra rdinary Overtlte, /ran spoerratltsl Company v V1. RR. 372 F 2d 765, 770 (4th Cir 1967) "Rctroactive - foircemenl must alwas cottjital in it some element of hardship hu b a failure to grant hack p inlposes at least a;n equal hardship on the en plhyees " Ieeds d .srthrtip Co v\ VI.R N. .391 F 2d 74 80 (3d (i 1968) ioweeCr, the (slecral C'olIunsl's request for a remnedial interecs rae of 9 percent lri the hack pay is dcilie(d Se outhern ( alifornta I(di.l' (ornlpat,, 243 NI RH No 62, fri 1 (1979)