Eldorado Mfg. Corp.

646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Eldorado Manufacturing Corporation' and Allen L. Davidson United Steelworkers of America, AFL-CIO 2 and Allen L. Davidson. Cases 14-CA-12749 and 14-CB-4588 May 20, 1980 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDAL.E On December 27, 1979, Administrative Law Judge Robert W. Leiner issued the attached Deci- sion in this proceeding. Thereafter, Respondent Employer and Respondent Union filed exceptions and supporting briefs. Herein called Respondent Employer. 2 Herein called Respondent Union. S Respondent Employer has requested oral argument. This request is hereby denied as the record, the exceptions, and the briefs adequately present the isssues and the positions of the parties. I Respondent Employer and Respondent Union have excepted to cer- tain 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 incor- rect, Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. In the sixth paragraph of the "Conduct in the Shop" section of his De- cision, the Administrative Law Judge incorrectly stated that plant man- ager ". . . Hiller said that the abusive language was his way of speak- ing." It appears from the record that the Administrative Law Judge in- tended to refer to employee Miller rather than Hiller. In the first para- graph of the "Discussion and Conclusion" section of his Decision, the Administative Law Judge incorrectly stated that ". .. Hiller was 'aggra- vated' over Anderson's and Miller's post-April 'picky' assertions .... " Apparently the Administrative Law Judge intended to refer to Davidson rather than Anderson. We, therefore, correct these inadvertent errors. In par. 1 of the "Discussion and Conclusion" section of his Decision, the Administrative Law Judge incorrectly stated that Plant Manager Hiller testified that Miller's failure to operate his machine at full speed and Miller's threat to force the Company to shut down occurred in Janu- ary or February 1979. As the Administrative Law Judge correctly found, this incident actually occurred after the strike in April 1979; however, the record also reveals that Hiller in fact testified that this incident was reported to him sometime in April 1979. This error in the Administrative Law Judge's Decision does not affect his conclusions, and we do rely upon it in adopting his Decision. Rather, we rely upon the Administra- 249 NLRB No. 88 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,3 and has decided to affirm the rulings, find- ings,4 and conclusions s of the Administrative Law Judge and to adopt his recommended Order, as modified herein.6 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- tive Law Judge's finding that, after learning of this incident, Hiller never took any action based upon it and did not mention it even at the time of Miller's discharge. Respondent Union has excepted to the Administrative Law Judge's failure to note Miller's testimony that during the grievance meeting on May 15, 1979, he stated that he did not want his job back. Respondent Union argues that it had no duty to notify Miller of its willingness to process a grievance concerning his discharge because Miller had dis- claimed any interest in his former job. The record reveals, however, that Miller also stated at the end of the grievance meeting that he would like his backpay. Thus. there is no basis for Respondent Union's assertion that Miller had abandoned his grievance by his statements at this meeting. I In finding that Respondent Union violated its duty of fair representa- tion, Member Truesdale does not rely on the Administrative Law Judge's characterization of Respondent Union's actions as "perfunctory." Member Truesdale notes that Respondent Union's job steward, Leon Wi- seman, harbored hostility toward Davidson and Miller because of their protected activity in protesting Wiseman's conduct as steward; that Re- spondent Union's business agent, Richard Blackburn, relied upon Wise- man to tell Davidson and Miller that the Union would be willing to proc- ess their grievances, even though Blackburn was aware that these em- ployees felt that Wiseman did not properly represent their interests; and that Wiseman never communicated this message to Davidson and Miller. In view of this evidence, Member Truesdale would find that Respondent Union's inaction as to the grievances arising out of the discharges of Da- vidson and Miller was not merely perfunctory, but was in fact an arbi- trary action so grounded in bad faith as to constitute a breach of Re- spondent Union's duty of fair representation. See ITT Arctic Services, Inc., 238 NLRB 116, fn. 1 (1978), and Newport News Shipbuilding & Dry Dock Company, 236 NLRB 1470, fn 9 (11978). 6 In par. 11, 2(a), of his recommended Order, the Administrative Law Judge failed to require that Respondent Union's notification to Respond- ent Employer be in writing and that Respondent Union also notify the two named employees in writing that it has no objection to their employ- ment. We shall therefore modify his recommended Order in this respect. ELDORADO MANUFACTURING CORPORATION 647 fled below, and hereby orders that Respondent El- dorado Manufacturing Corporation, Eldorado, Illi- nois, its officers, agents, successors, and assigns, and Respondent United Steelworkers of America, AFL-CIO, Granite City, Illinois, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modi- fied: 1. Substitute the following for paragraph II, 2(a): "(a) Notify the above-named Respondent Em- ployer, in writing, and also notify employees Jerry Miller and Allen Davidson, in writing, that it has no objection to the employment of Miller and Da- vidson in their former or substantially equivalent jobs with unimpaired seniority and with all other rights and privileges previously enjoyed." 2. Substitute the attached Appendix B for that of the Administrative Law Judge. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause El- dorado Manufacturing Corporation, herein called the Company, or any other employer to discharge any employee or discriminate against any other employee because the employee en- gages in activities protected under Section 7 of the Act. WE WILL NOT restrain or coerce any em- ployee by failing or refusing to process, or en- gaging in perfunctory processing of, griev- ances of employees against the Company, or any other employer, because an employee en- gages in activities protected under Section 7 of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL notify the Company, in writing, and we will also notify employees Jerry Miller and Allen Davidson, in writing, that we have no objection to the employment of Miller and Davidson in their former or substantially equivalent jobs with unimpaired seniority and with all other rights and privileges previously enjoyed. WE WILL, jointly and severally with the Company, make whole Jerry Miller and Allen Davidson for any loss of wages they may have sustained, with interest, by reason of our un- lawful action against them, according to law. UNITED STEELWORKERS OF AMER- ICA, AFL-CIO-CLC DECISION STATEMENT OF THE CASE ROBERT W. LEINER, Administrative Law Judge: These cases were heard in Harrisburg, Illinois, on Sep- tember 12 and 13, 1979, on a consolidated complaint based on charges filed by Allen L. Davidson, an individ- ual, alleging that Eldorado Manufacturing Corporation, herein called Respondent Employer or the Company, and United Steelworkers of America, AFL-CIO, herein called Respondent Union or the Union, violated, respec- tively, Section 8(a)(1) r3 (3) and Section 8(b)(1)(A) and (2) of the National L.arr Relations Act, as amended, in that the Union, by its Lents, unlawfully caused and at- tempted to cause the discharge of employees Allen L. Davidson and Jerry Miller, and Respondent Employer did unlawfully discharge Allen L. Davidson and Jerry Miller, its employees. The consolidated complaint further alleges that Respondent Union, in violation of Section 8(b)(l)(A) of the Act, ur 'awfully refused to accept and process grievances under its collective-bargaining agree- ment with Respondent Employer relating to the dis- charges of the two above-alleged discriminatees. At the hearing all parties were afforded the opportuni- ty to call, examine, and cross-examine witnesses, and to make oral agreement. Upon the entire record herein, including testimony of the witnesses and my observation of their demeanor, and in consideration of the post-hearing briefs filed by Gen- eral Counsel, Respondent Union, and Respondent Em- ployer, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT EMPLOYER The consolidated complaint alleges, and Respondents admitted at the hearing or in the pleadings, that Re- spondent Employer, an Illinois corporation, maintains a principal office and place of business in Eldorado, Illi- nois, where it has been and is engaged in the maufacture, sale, and distribution of valves and related products. During the year ending August 1, 1979, a representative period of its operations, it manufactured, sold, and dis- tributed at its Eldorado place of business products valued in excess of $50,000 of which products valued in excess of $50,000 where shipped from said place of business di- rectly to points located outside the State of Illinois. It is admitted by all parties and I find that Respondent Em- ployer, at all material times, has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of t, Act. 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. RESPONDENT UNION AS A LABOR ORGANIZATION Respondent Union is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background At its Eldorado, Illinois, plant, the Company is en- gaged principally in the metalworking business, especial- ly the regrinding of valves for large engines and the chrome plating of valve stems to avoid corrosion. At all material times, it has employed 11 unit employees: Pen- nell, Anderson, Butler, Daniels, Miller, Horton, Cox, Da- vidson (the Charging Party), Wiseman, Donnelly, and Beam. The plant manager since the fall of 1974, an ad- mitted supervisor within the meaning of Section 2(11) of the Act, has been and is Herschel Hiller. Hiller and an office clerical are the only two company persons ex- cluded from the production and maintenance unit under the collective-bargaining agreement between Respondent Union and Respondent Employer which expired in Feb- ruary 1979. The expiration was followed by a strike which lasted until on or about April 2, 1979, when a new collective-bargaining agreement was executed for a 2- year period expiring March 1981. The Union is represented in the shop by a shop ste- ward and two grievance committeemen, all selected by the unit employees.' From time to time in the past, Jerry Miller was president of the Union, shop steward, and a Respondent Union denies the agency of the steward (Wiseman) and committeemen (Cox and Pennell) singly or in combination. The uncontra- dicted evidence shows that these three employees and their predecessors represent the unit (together with the union business agent, Richard Black- burn, where matters concern negotiation of terms of a collective-bargain- ing agreement) in collective bargaining and individual unit employees in their grievances with Respondent Employer pursuant to the terms of the collective-bargaining agreements between Respondents. On such evi- dence, contrary to Respondent Union, General Counsel has established a prima facie agency of the steward (Wiseman) and the two elected com- mitteemen to act for the Union in matters of discharges and grievances. In fact, Union Business Agent Blackburn, an admitted union agent, with- out objection and in the ordinary course of union business, consulted with and used these elected union officials for purposes of grievance han- dling with regard to grievances in the instant discharges. Thus, the burden of coming forward with regard to their lack of agency shifted to Respondent Union to adduce evidence that the steward and committee- men, in some way, were not agents or acted so far outside their actual, implied, or apparent authority as to require a conclusion that, in the pres- ent circumstances, they were not the Union's agents and did not "bind" the Union by their acts, or, in any event, to rebut the prima facie case. Respondent Union failed to adduce any such evidence. It should also be noted not only that, by art. X of the 1979-81 collec- tive-bargaining agreement's grievance and arbitration procedure, the par- ties formally designate the shop steward and the committee (grievance committee) as participants in the grievance procedure (G.C. Exh. 2), but also that Plant Manager Hiller told Miller and Davidson as he was about to discharge them: "I have just talked with the Union committee . . . about the problems that have been going on out there in the shop." Blackburn described Shop Steward Wisemen as "the grievance man at the plant." If there was evidence that Wiseman, Cox, Pennell, or other union agents were ever disavowed as being union agents in their dealings with Hiller as union representatives, it was not adduced. I concluded, therefore, that for purposes of this proceeding Wiseman, Pennell, and Cox, collectively and individually, were union agents, acting within the scope of their authority, and bound Respondent Union by their individual and collective acts. committeeman. As will appear herein, Davidson was a union committeeman in the period ending May 7, 1979. Prior to November 1978, Ivan Butler was shop ste- ward and the chief union representative in the unit. Around November 1978, Miller, Davidson, Horton, and other employees became dissatisfied with Butler's per- formance allegedly because he would not support em- ployees and because of favoritism. Leon "Red" Wiseman was selected as the new shop steward and was supported by Miller, Horton, and Davidson, the latter two of whom, until May 7, 1979, were his union committee; i.e., the grievance committee and contract negotiating com- mittee aiding the shop steward. As will be noted, infra, on May 7, Horton and Davidson resigned as committee- men following an unsuccessful effort to oust Wiseman as shop steward. At all material times, and apparently as far back as prior to the summer of 1978, the shop employees have been divided into two openly antagonistic factions. The evidence demonstrates that the two factions openly detest each other and, with one exception, remain con- stant in their membership and in their mutual dislike. That one exception was Leon Wiseman. Prior to the strike of February and March 1979, Wiseman, as shop steward, was a member of the Miller-Davidson faction. This faction was then composed of Miller, Horton, Da- vidson, Wiseman, Donnelly, and Beam. The other fac- tion was Pennell, Anderson, Butler, Daniels, and Cox. Conduct in the Shop Although the evidence shows that the Miller-Davidson faction (of which Wiseman was a member until after the strike ending April 2, 1979) appeared to be the more ag- gressively vulgar, there is no dispute on this record that each faction behaved badly to and irritated the other. There is no dispute that the Miller-Davidson faction, in- cluding Wiseman, but particularly Jerry Miller, com- mencing in at least late 1978, demonstrated the following behavior when in the presence of members of the other faction: abusive, obscene, and vicious language; feigned vomiting gestures; breaking the other faction's coffee cups; intentionally wasting company-provided coffee so that the other faction could not drink coffee; and break- ing a company chair so that employee Cox could not sit on it while operating his machine in the plant. The evi- dence shows, as the Company observes in its brief, page 3, that employee Cox so "successfully" teased Davidson that Davidson responded by destroying parts for Cox's motorcycle. Wiseman, shop steward since late 1978, identified as part of the Miller-Davidson faction until shortly after the end of the strike on April 2, 1979, en- gaged in the same or similar abusive conduct toward the other faction as did Miller and Davidson. During the February-March strike, however, the rela- tionship between Miller and Wiseman cooled. During the strike and ensuing picketing, Wiseman angered Miller be- cause Wiseman allegedly did not patrol on the picket line during periods when it was his turn and did not notify others when he left the picket line. In addition, Miller accused Wiseman, who was on the contract negotiating committee, of a negotiating posture too soft to the Com- pany and of merely backing Union Representative Rich- ELDORADO MANUFACTURING CORPORATION 649 ard Blackburn in capitulating to the Company's demands and not vigorously supporting the Union's side. Although as far back as August 1978 Cox complained to Plant Manager Hiller regarding the breaking of the chair, and longtime (20 years) employee Pennell com- plained to Hiller over the generally bad shop relations, Hiller did little about it. Thus, Pennell's complaints about the breaking of coffee cups and even of Miller's April 1979 failure to operate his machine at full capacity, to- gether with a Miller threat to close down Respondent Employer's factory, caused Hiller to take no action or even to threaten action. On one occasion, Hiller told Pennell that the matters might settle down among the employees after the new contract was signed, noting that employees become a little jumpy within a short time before a new contract is executed. Upon employee An- derson's complaints that Donnelly was wasting coffee, Hiller told Anderson that he had to catch the perpetra- tors before he could do anything about it. Prior to the strike, though opening the factory each morning was the plant manager's function, many em- ployees were provided with keys to the factory door which the first employee to arrive would open so that the employees could commence work even without the presence of the plant manager who might not yet have arrived. In April, after the end of the strike, the unit em- ployees, including Shop Steward Wiseman, agreed that none of them would thereafter accept keys from the Company to open the door and commence work outside the plant manager's presence.2 Within a few days after the end of the strike, however, Wiseman accepted a key offered by Hiller and, having openly left the Miller-Da- vidson faction (inter alia, by taking coffeebreaks with the other faction) and identified himself as a member of the other faction, waved the key "in front of Miller's nose." Miller told Wiseman that, if the key was used to open the door, he would see to it that the door would not open again. Wiseman returned the key to Hiller and ad- mitted that he broke his promise not to accept the key. Shortly thereafter, the lock became jammed, and could not be opened by any existing keys. Hiller was forced to change the lock.3 a Miller testified without contradiction that, if Hiller did not show up at 7 a.m., employees who were present and ready to work might leave and nevertheless receive "4 hours of show up pay." 3 In its brief at p. 6, Respondent Union urges (I) Miller's testimony on the key incident is "not worthy of consideration"; (2) the connection be- tween Wiseman's repossession of the key and the performance of his duties as shop steward is "beyond the pale of understanding"; and (3) Miller merely did not want Wiseman or anyone else to have a key. I nev- ertheless regard the evidence as significant. Union counsel nowhere suggests that Wiseman denied Miller's version of this key incident. The inferences I draw from this area of testimony are that (I) Wiseman's poststrike waving of the key under Miller's nose demonstrated that he had broken his poststrike agreement to refuse keys; (2) the waving of the key was Wiseman's attempt to underline his will- ingness to remain cooperative-or, in Miller's view, unnecessarily com- pliant-with management, especially in morning openings of the factory in the absence of the plant manager, thereby precluding union employees from receiving "call-in" pay; (3) Wiseman had joined the other employee faction and would not support the Miller-Davidson faction in its attempts to deal rigorously (which in Wiseman's view, amounted to unnecessary obstructiveness) with Respondent Employer; and (4) Miller, reasonably believing from this conduct that Wiseman was openly demonstrating an- tagonism and opposition to the Miller-Davidson faction and its collective- bargaining stances, by mid-April sought, by drafting and circulating a pe- Hiller, in a series of general statements, testified that, on some half-dozen occasions in the 6 or 7 months before the May 11, 1979, discharges of Miller and David- son, both in the office and in the shop in the presence of employees, including Horton and Wiseman, he told Da- vidson to settle down, to do his work, and to mind his own business. These statements to Davidson were de- rived from complaints of harassment and disruption that Davidson was causing, including Davidson's abusive lan- guage and other conduct. Thus, this type of reaction by Hiller, aware of the accusations, was the limit of his re- sponse to various acts of the Miller-Davidson faction ranging from abusive and obscene language to threats of closing the plant and acts of physical misconduct involv- ing equipment. With regard to Miller, although Hiller had conversa- tions with either Cox or Pennell, inquiring whether Miller broke the chair that Cox used, he never confront- ed Miller or cautioned any employee about the events. When he spoke to Miller about Miller's obscene lan- guage on two or three occasions because other employ- ees in the shop, particularly those in the other faction, complained, Miller said that the abusive language was his way of speaking. By the turn of 1979, Hiller and Miller had a talk in which Miller stated that he was bored with his job and did not leave only because he could not find another job. Hiller told Miller that he would give him a recommendation to get another job because he was hurt- ing the job by remaining. Hiller said that he could not recall Miller's answer. In any event, Miller remained on the job. Grievances; Antagonism Against Wiseman as Shop Steward After the April 1979 contract was signed, Horton and Beam filed grievances (G.C. Exhs. 3 and 4) concerning small amounts of pay due them under alleged contract violations. These grievances, filed on April 6 and 7, re- sulted in an April 9 grievance meeting on Horton's grievance and a subsequent conversation between David- son and Wiseman that same afternoon at quitting time in Wiseman's truck. Wiseman regularly drove Davidson to and from work. On that afternoon, Wiseman told David- son: "if you didn't quit 'pushing the union' you will be fired." I do not credit Wiseman's unsure, equivocal denial of the substance of the conversation, particularly in light of his subsequent testimony that he "could have" said it but could not recall. About this same time, in April 1979, Miller drew up a petition to name Davidson as the shop steward and to oust Wiseman. The two union committeemen at this time were Davidson and Horton. Horton, a member of the tition among employees, to oust Wiseman from his shop stewardship as Miller testified. I further conclude, as will be seen infrm, that a month later, in the face of the Miller-Davidson faction's continuous abusive re- sponses to Wiseman, Wiseman sought their discharge by Hiller. Thus, I do not construe the connection between the key incident and Wiseman's performance of his union "duties" as shop steward to be insignificant. Moreover, when, as it might appear, Miller or his agents thereafter jammed the lock to insure the uselessness of the keys, Hiller, on this record, made no effort to inquire into the event, much less to punish the offenders. This lack of action in the face of employee anarchy and mis- conduct is not without significance. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Davidson-Miller group, solicited signatures among the employees and about four or five signed, including Da- vidson. Davidson thereafter removed his name because employee Butler complained that Davidson's name in support of the petition should not appear if Davidson was running for the job. Wiseman admitted that he knew that Miller had drafted the petition to get another shop steward and that Horton was soliciting signatures. This April Davidson-Miller activity ultimately led to a May 7 union meeting where they unsuccessfully attempted to unseat Wiseman as shop steward.4 On April 17, in the shop, Davidson walked over to Wiseman and, among other things, discussed Wiseman's performance of his union duties, including the calling of the union meetings. Wiseman, according to Davidson, whom I credit,5 said he did not "feel like he should have to support . . . guys like Miller because [they] gave [him] a lot of trouble during [contract] negotiations." On the morning of April 26, in Wiseman's truck await- ing the opening of the plant, Davidson and Wiseman argued over Wiseman's failure to tell the two committee- men of employee problems. Davidson accused Wiseman of not "pushing" the Union, and stated that, because of Wiseman's financial dealings with the Company, David- son could understand why Wiseman was not doing his job. Wiseman said that, if Davidson felt that way, David- son would have to find another way to get to work. Later in the same day, April 26, after this argument with Wiseman, Davidson saw Hiller unloading valves with a forklift truck. There was no emergency or train- ing mission in the work performed by Hiller. Davidson told Wiseman that this work was unit work which Hiller was performing in violation of the contract, 6 and Wise- man said that he would speak to Hiller about it. Wise- 4 According to Davidson, Miller, and Horton, shop steward Wiseman allegedly failed to keep employees informed of union matters, and, con- trary to established shop practice, failed to promptly convene meetings with management over shop grievances. They also resented Wiseman's (and Blackburn's) lack of vigor in the prior contract negotiations. It was Wiseman's alleged dilatory action rather than his failure to actually call the grievance meetings that caused the alleged dissatisfaction with his stewardship. I The Union's counsel argues (Br., p. 10) that this Davidson testimony should be discredited as pure invention since it was not included in Da- vidson's pretrial statement, and Davidson testified that he recalled the in- cident on the night before he testified when reviewing his statement, but failed to advise General Counsel of his new recollection on the following morning. I would ordinarily be disposed to discredit such testimony. On the other hand, after union counsel thoroughly exposed the issue, the matter required negation or explanation from Wiseman. Wiseman was re- minded of Davidson's testimony and asked if he recalled such a conversa- tion. Wiseman answered: "No sir. I never did recall saying that I wouldn't back anybody in the plant, if possible." When pressed if this answer was a denial, Wiseman said that he never said such a thing to the best of his knowledge. I am not satisfied with such negation and under all the circumstances credit Davidson. In this conclusion, I am mindful of another Wiseman preliminary denial, supra, of his telling Davidson on April 9 that he would be fired if he "didn't quit pushing the union," fol- lowed by his admission that he could have said it but was not sure. 6 The collective-bargaining agreement (G.C. Exh. 2) provides in "Arti- cle VIII, Wages": Section 6.- Work Performed by Supervisors. Supervisors shall not perform work on an hourly rated job if the result would be to displace any employee in the bargaining unit, but this will not prevent such work (I) in emergencies when regular em- ployees are not immediately available; (2) in the instruction and training of employees; (3) in performance of production emergencies. man did so. At or about the same time, Miller had seen Hiller unloading barrels from a truck and told Wisemen about it without any results. Wiseman testified that, on the several occasions that he told Hiller of the contract violation complaints that Hiller was doing unit work, Hiller became "aggravated" at these complaints. On the next day, April 27, a large lathe was being de- livered to the factory. Respondent is not equipped to take delivery with its own equipment of so large a lathe, and there is no dispute that a private trucker was used to deliver it. In accepting the delivery, Pennell and Hiller mounted the truck on which it was placed. There was a dispute as to whether Hiller engaged in unit work in taking delivery of the lathe, although he admitted carry- ing a round metal bar in securing the delivery. Pennell corroborated Hiller that he was merely directing the placing of chains to facilitate unloading of the lathe. Da- vidson, to the contrary, testified that, when he left the factory, he asked Miller and Donnelly to watch Hiller to see if he engaged in unit work. They did so and told him that Hiller had engaged in some work. When Pennell thereafter denied that Hiller engaged in unit work, Da- vidson cursed him and told him that he was not acting like a good union man. In any event, the next day Da- vidson asked Wiseman to call for a shop meeting with Hiller regarding the unloading of the truck. The meeting was to discuss the subject whether an employee should receive overtime pay for the work performed by Hiller. At the meeting, Davidson told Hiller that he had two witnesses to the incident, and Hiller again denied doing unit work. On a Monday in early May, a second meeting was held regarding the unloading of the lathe. Davidson had meanwhile asked Wiseman on two or three occa- sions to call this meeting, but Wiseman had not done so. Thereafter, Davidson had gone directly to Hiller, who agreed to hold a meeting that day. At this meeting, Hiller accused the Davidson group of engaging in "picky" stuff. When Miller and Davidson spoke of other instances of Hiller's engaging in unit work, Hiller ac- cused Miller of starting up trouble, of being a "trouble- maker," and of being a "big duck in the puddle," and Davidson of being uncooperative in the plant. During the meeting, Wiseman was silent. At or about this time, in late April or early May, Miller admitted that he drew two obscene pictures (Union's Exhs. 1 and 2) showing Wiseman and Union Agent Blackburn, and also Wiseman and Hiller, in ob- scene poses. Davidson and Beam posted these obscene pictures at Wiseman's workplace. Hiller testified that in the 4-1/2 years of his being plant manager no employees, other than Miller and Davidson, were ever discharged. Similarly, he testified that no em- ployee was ever given any discipline or warning for abu- sive language or harassment. The only written warning ever given to any employee on this record was that given by Hiller to Davidson on May 4, 1979. The May 4, 1979, Written Warning to Davidson On May 4, Cox demanded that Hiller have a shop meeting after Cox alleged that Davidson had miscon- trued something that Hiller said concerning Cox's oper- ation of a machine tool. Hiller thereafter agreed with ------ ----- ---- ELDORADO MANUFACTURING CORPORATION 651 Cox's version and rejected Davidson's version of what Hiller had said. Hiller told Davidson to quit running around the shop trying to cause trouble and to mind his own business. Davidson told Hiller that, anytime Hiller talked to him, Davidson wanted his union representative with him. Hiller, pointing to Wiseman, told Davidson that Wiseman was standing right there. Davidson an- swered, "I said anytime, Jack." Hiller told Davidson that he was giving him a warning notice for "disobedience," Respondent Employer's Exhibit 1, and Wiseman told Davidson that he deserved the warning notice. Davidson admitted that in 1978, after Cox called him an idiot, Davidson thereupon threw away a motorcycle part owned by Cox. The record also shows that Miller and Horton threatened Wiseman with slashing Wise- man's tires because of Wiseman's failure to act properly as the shop steward. No disciplinary action occurred from these events. The Union Meeting of May 7, 1979 At 3:30 p.m. in Respondent Employer's lunchroom, the employees (except Miller) held a union meeting with Union Representative Richard Blackburn. Davidson, a committeeman, called the meeting because, he said, Wi- seman did not properly represent the employees as ste- ward. Wiseman said that he could not get along with Horton and Davidson as committeemen, and Davidson argued that all he was doing was standing up for his union rights. When Davidson called for a vote to oust Wiseman as shop steward, the majority failed to signify that they wanted to get rid of him. At that point, David- son and Horton resigned as members of the committee, and the employees voted to replace them with Cox and Pennell. There was a dispute as to whether Union Repre- sentative Blackburn agreed with Davidson that Wiseman was not representing the employees properly. Blackburn denied that he had agreed with Davidson's assertion that Wiseman did not represent the employees well; rather, Blackburn testified that Davidson said that Wiseman was not doing his job, and that Blackburn answered only that "if [he] were right in what [he] said he was doing, he was not doing his job."'7 It is unnecessary to resolve this conflict, for, in any event, it is clear that Blackburn knew that five employees in the unit were dissatisfied with Wiseman, and that Davidson was prominent in that assertion. The May 11, 1979, Discharges of Miller and Davidson On May 11, 1979, at or about 11:30 a.m., Hiller dis- charged Davidson and Miller. The work day starts at 7 a.m. and ends at 3:30 p.m. There is a 10-minute coffeebreak between 9 a.m. and 10 a.m. With the start of the 9 a.m. coffeebreak, Wiseman told Hiller that he wanted to see him in the office and Hiller agreed. Wiseman then told two union committee- men, Cox and Pennell, that he wanted them to accompa- 7 There is no question that Davidson told Blackburn that his five-man faction did not like the way Wiseman performed as shop steward. It is unnecessary, as noted in the text, to decide the above question whether Blackburn agreed with Davidson's assertion. ny him into the office in case there was any trouble with regard to getting his vacation pay. Respondent Employ- er's normal vacation pay practice is for an employee in- tending to take a vacation and desiring prior remittance of his vacation pay to give 10 days' notice. Cox and Pen- nell accompanied Wiseman into the office. After they spoke to Hiller for an hour and a half or 2 hours, Hiller went out into the shop and told Miller and Davidson to come into his office. They came in. Hiller pulled their timecards and told them that he had a "problem." Ac- cording to Hiller, he said that he had just talked to the union committee with regard to problems outside the shop, and that it was clear that "you are causing a lot of problems out there and disrupting the whole work force." Miller then asked Hiller what he was going to do, and Hiller answered, "I am going to let you go." When Miller asked for the reason, Hiller, according to his testimony, answered, "harassing other employees out there." There is no allegation in the Hiller testimony that Hiller asserted that Miller and Davidson were interfering with production. Rather, he said, "I heard from other employees too long. I got to do something. I have made my decision to let you go." Miller does not contest this version except that he said that Hiller also said that "a majority of the men" feel that Hiller had to do some- thing. In any event, Miller asked Hiller what he meant by "harassment" and "disrupting the work force." When Hiller told him that he did not want to discuss the matter further, Miller and Davidson told him that they wanted the union committee in there with them. The union com- mittee came in at or about 11:30 a.m., but, before they entered, Hiller said that they would not do Miller and Davidson much good.8 When Pennell and Cox entered with Wiseman, Miller told them that Hiller had just fired them and asked, "Can he do that?" Cox said he an- swered, "I guess he can," or, according to Miller, Cox answered, "He just did." The committee met with Hiller and the two discriminatees for about 10 minutes and thereafter Davidson and Miller left the plant. They asked Wiseman to call a union meeting relating to the dis- charges. The testimony of Davidson, Miller, Hiller, Wiseman, Cox, and Pennell does not substantially vary regarding the mechanics of the discharge in Hiller's office, the par- ticipation of Wiseman and the union committee, and the conversation among the participants both before and after the entrance of the union committee. What does vary widely, however, is the testimony of Hiller, Wise- man, Pennell, and Cox, i.e., participants in the discharge, regarding what happended in Hiller's office before Miller and Davidson were called in by Hiller and notified of the discharge. The Events Outside in the Shop; the Events in Hiller's Office At all times during the hearing, Shop Steward Wise- man testified that he did not request Hiller to discharge Miller and Davidson. Two witnesses called by General Counsel, Beam and Horton (both in the Davidson-Miller faction), gave un- I Hiller never explained this statement. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contradicted testimony, which I accept, concerning two events which occurred in the shcp area during the dis- charge meeting after the union committeemen and Wise- man left Hiller's office and at the time that Davidson and Miller were called into the office to be discharged. Horton testified that, sometime after the committeemen (Pennell and Cox) and Wiseman left Hiller's office after about 2 hours inside, Pennell came out and told that something pretty bad was going to happen but refused to divulge anything further. Thereafter, Horton testified that Miller and Davidson went into the office and were discharged; that thereafter he asked Wiseman why they were fired, and Wiseman told them that they were fired for harassing employees; and that, when Horton told Wi- seman that the employees ought to walk out to protest the discharges, Wiseman told him, "There's the door." Wiseman, later in the morning, told him that, "I had to do it . . . some of us people have got good jobs." Beam corroborates Horton and asserts that Pennell told him that something "bad" was going to happen. Beam, fur- ther corroborating Horton, recalls that thereafter, on the same day, Wiseman told him and Horton, "I had to do it. All the rest of us have got good jobs. You know that they were troublemakers." Wiseman testified that at or about 9 a.m., during breaktime, he got "nervous" and wanted a meeting with Hiller regarding his deteriorating physical and mental condititon; that it was unnecessary to give 2 weeks' notice of a vacation in order to receive his vacation pay; that he went into Hiller's office for that purpose and that purpose only; and that he did not enter the office or seek the meeting with a desire to cause the discipline of any employee, much less the discharges of Miller and David- son. Wiseman testified that nothing had happened that day to provoke him to go into the office and make the satements that he made even though Miller had made his usual nose-holding and lip-smacking noises indicating contempt for Wiseman. At any rate, at Wiseman's re- quest, Hiller entered the office and the committee ac- companied them. Wiseman told Hiller that he needed a vacation; that he was headed for the hospital, and that after the vacation he might not return to work. Hiller said that he asked Wiseman why this state of affairs had occurred (notwithstanding that Hiller, according to Wi- seman, knew for months of the shop pranks and lack of discipline). Wiseman told Hiller that it was a result of the "rumpus" in the shop and the obscene and denigrating gestures and the obscene pictures hung in his work sta- tion and similarly disruptive elements, and that he did not have to work in such environment. Pennell then said that he might leave as well, and Cox added that it was not right for a man to have to leave work under such conditions. Hiller gave Wiseman his vacation pay, but Wiseman thereafter failed to quit or go on vacation. Whereas Wiseman, on direct examination, was positive that the names Miller and Davidson were not mentioned at the meeting, Cox, a witness friendly to Wiseman, spe- cifically recalled that Wiseman identified Davidson and Miller as the cause of the problems not only in the shop but outside the shop and, indeed, at union meetings.9 Cox thereafter could not recall what Wiseman told Hiller concerning what had happended at the union meetings. Pennell did not testify on the point; i.e., wheth- er Davidson and Miller were identified during the dis- charge meeting. Hiller's direct testimony is unclear as to whether Davidson's and Miller's names were brought up, but on cross-examination, his sworn pretrial statement having refreshed his recollection, Wiseman admitted that at the meeting he told Miller that he would have to quit if "those two" did not quit. He admitted that the words "those two" referred to Miller and Davidson. After Pennell and Cox told Hiller that they might quit just as Wiseman was going to quit, Hiller told them that it sounded as if he had to do something. Again, whereas Wiseman denied that he ever mentioned Miller and Da- vidson in the conversation or urged thay they be fired, Cox specifically testified that, when Hiller asked Wise- man who was causing the biggest problems, Wiseman named Miller and Davidson; and that Hiller told the group, before calling in Miller and Davidson, that he was going to let Davidson and Miller go. Thus Cox's testimo- ny directly contradicts Hiller's testimony that he did not tell the group, prior to calling in Miller and Davidson, what he intended to do as disciplinary action. In con- junction with Wiseman's change of testimony with regard to whether he mentioned "those two," referring to Miller and Davidson, I do not credit the testimony of Hiller and Wiseman in their assertion (I) that Wiseman did not mention Hiller and Davidson as the source of his problems during the meeting, and (2) that, prior to call- ing Miller and Davidson, Hiller never told them that he intended to terminate the employment of Miller and Da- vidson. I regard these two testimonial elements as crucial with regard to the overall estimation of the credibility of Hiller and Wiseman. Again, whereas Wiseman specifically denied that he asked for their discharges, I credit Cox that Wiseman threatened to quit because of the abuse from "those two," naming Davidson and Hiller; and I have credited Horton and Beam, who testified without contradiction, that later on the same date, May 11, after Miller and Da- vidson had been discharged, Wiseman told them, "I had to do it." This has no reference, in my estimation, other than to the fact that Wiseman had urged Hiller to dis- charge Miller and Davidson. Whether he said fire them or merely, "I'll quit if you keep them," for instance, is not crucial concerning whether Wiseman requested the discharge. International Packings Corporation, 221 NLRB 479, 484 (1975). Discussion and Conclusion From the above testimony, I conclude that employee discipline, whether management-imposed or self-imposed, in the plant, at all material times, was anarchic; that, con- trary to Hiller's testimony, and particularly because of the smallness of the shop and intimacy of working condi- tions, he was directly informed of the conditions and I Cox also testified, in apparent contradiction of his testimony in the text above, that, during the meeting in Hiller's office, there was no identi- fication of the source of the shop problem. ELDORADO MANUFACTURING CORPORATION 653 who among the employees was responsible therefor by Pennell, Wiseman, and Cox at various times up to 8 to 10 months prior to the May 11 discharges; that Pennell and Cox previously complained directly of this state of mis- conduct and threatened to quit employment because of it; that until on or about April 1979, with the execution of the collective-bargaining agreement, Wiseman was at all times a participant in the anarchic conditions and en- gaged in the same or similar misconduct which was thereafter allegedly found by Hiller to be reprehensible on the part of the Miller-Davidson faction in general, and Allen Davidson and Jerry Miller in particular; and that not only did Hiller know of these derelictions in his shop, but he openly ignored the situation on the ground that either it would improve or abate. Particularly on the basis of Wiseman's testimony and Hiller's admission that, after the 7-week strike, Hiller was "aggravated" over Anderson's and Miller's post-April "picky" assertions that Hiller was engaged in unit work, and the Miller and Davidson consistent demands for shop meetings regard- ing alleged Hiller contract violations, I reject Hiller's tes- timony that he discharged Miller and Davidson because of their harassing other employees by breaking rival fac- tion members' coffee cups, because in 1978 Davidson broke Cox's chair, because of Davidson's receipt of a written warning for insubordination or disobedience on May 4, 1979, or because of Miller's and Davidson's gen- eral abusive and foul behavior in the shop. In reaching this conclusion, I have also taken into account the seri- ous actions, especially by Miller, wherein he told Pennell that he was not operating his machine at full speed, and that Miller would force the Company to shut down. This matter occurred after the strike in 1979 despite Hiller's testimony that it occurred sometime in January or Feb- ruary 1979. It is a matter of such seriousness, the threat of an employee to interfere with production, that I would have no hesitancy in finding that it was a precipi- tating cause of the Miller discharge regardless of any other protected conduct in which Miller and Davidson were engaged. Cf. Tama Meat Packaging Corp., 230 NLRB 116 (1977). Notwithstanding Pennell's advising Hiller of Miller's threats, Hiller took no action when it occurred and did not mention it after it occurred at any time up to and including the discharge. I conclude, in sum, that Hiller discharged Miller and Davidson only because of the urging of Respondent Union, which urging found an entirely sympathetic ear in Hiller because of Hiller's desire, as a matter of Re- spondent Employer's interest, to rid itself of two employ- ees who were continually showing dissatisfaction and causing him "aggravation" because of his alleged con- tract violations in doing unit work. The fact that the two of them were boisterous and instigators of trouble in the shop also added to Hiller's decision to fire them, but his prior accusations that they were "troublemakers" par- ticularly related to their accusations of his engaging in unit work. Weighing all the evidence, and disregarding the state- ment by Wiseman to Davidson that if Davidson contin- ued to push the Union he could get fired as not binding on Hiller in view of the fact that there was no proof that Wiseman was an agent of the Company, but accepting Wiseman's warning as an element in Wiseman's state of mind, I nevertheless conclude that (a) on May 11 Wise- man presented Hiller with an ultimatum, either fire Miller and Davidson or Pennell, Cox, and Wiseman would quit; (b) Wiseman described them as "troublemak- ers"; (c) Wiseman was motivated in requesting the dis- charges because Miller and Davidson were harassing him, but that the harassment, in large measure, flowed from their dissatisfaction with Wiseman's performance as shop steward and their attempt to oust him from that job only 4 days before he demanded the discharges; (d) Shop Steward Wiseman and the two committeemen, the entire union agency in the shop, were apparently acting for the Union in demanding the discharges; °0 and (e) Davidson's and Miller's intraunion activities were not so obstreper- ous or obstructive as to prevent Wiseman from adequate- ly performing his job as shop steward. I further conclude that, assuming, arguendo, no intraunion retaliation moti- vated Wiseman and the two committeemen in demanding the two discharges, but only that the personal harass- ment was no longer bearable to them, the Union's de- mands for the discharges would nevertheless violate Sec- tion 8(b)(1)(A) and (2) of the Act. Davidson's and Mill- er's vulgar and offensive behavior (which one may not in anyway condone) would be no defense for the Union's getting them fired. International Union of Operating Engi- neers, Local 18, AFL-CIO (Ohio Contractors Association), 204 NLRB 681 (1973). Where, as here, however, the evi- dence demonstrates that, in fact, Wiseman was motivated by "harassment" flowing in large part from Miller's and Davidson's continual accusations of Wiseman's failure to adequately perform as shop steward, their insistence on prompt grievance meetings, and their May 4 attempt to unseat him as shop steward, I conclude that the Union's causation of the discharges a fortiori violated Section 8(b)(1)(A) and (2) of the Act in that the motivation was based in part upon discriminatory elements. See Interna- tional Packings Corporation, 221 NLRB 479, 484. Re- spondent Employer's acquiescence in this union demand for the discharges violates Section 8(a)(1) and (3) of the Act, without more. Ibid. As above noted, no express demand for the discharges is required, a mere threat to quit being sufficient. Ibid. Here, of course, Wiseman said, "I had to do it," referring to the discharges. In the instant case, Hiller was not unreceptive to the demand of the Union. Rather, aggravated by Miller's and Davidson's continual, recent (April 27 and April 20) ac- cusations of contract violations because of his allegedly engaging in unit work, Hiller seized upon the Union's de- mands to rid himself of these two "troublemakers." Again, Hiller knew for months of Miller's and David- son's antisocial behavior (lock jamming, chair breaking, coffee wasting) and did little about it. Even a report of a work slowdown provoked no reaction. His one act of disciplining Davidson, on May 4 for insubordination, io Indeed, Wiseman said that he was speaking for a majority of the unit employees. Cox told Hiller of the trouble Miller and Davidson caused at union meetings. I reject any contention that the entire union representational body in the plant manager's office requesting the dis- charge of two employees is not covered with the mantle of apparent union authority Certainly there is no evidence that any of them made any disclaimer or suggested they were acting only as individuals. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stemmed not from Davidson's misconduct with co-em- ployees (which was the gravamen of Wiseman's and Pen- nell's complaints), but rather from a direct confrontation with Hiller himself. Miller's conduct with respect to Hiller, in any event, in no way precipitated Wiseman's demand for Davidson's and Miller's discharges, and I reject Hiller's assertion at the hearing that it was an un- derlying cause for the two discharges. While it might well have been a reason for Hiller's acquiescing in the Union's request, it was a mere welcome addition, and was not at the heart of the Union's conduct or Hiller's acquiescence. Hiller, by acquiescing in the Union' demand for the discharges, and by discharging Miller and Davidson on May 11, 1979, therefore violated Sec- tion 8(a)(l) and (3) of the Act. The Union Meeting of May 15, 1979 As above noted, immediately after the May 11 dis- charges, Miller and Davidson requested a union meeting. There was a union meeting relating to the discharges 4 days later at a nearby motel. Davidson complained to Wiseman that Wiseman had never told him of the con- vening of the meeting, and that Davidson had to rely on information from another employee that the meeting was indeed to occur relating to his own discharge. Davidson remarked that it was not the other employees' job but Wiseman's job to notify him of the meeting. This uncon- tradicted failure of Wiseman to communicate directly with Davidson and Miller on an important union matter repeated his earlier dilatory conduct and was to be re- peated in a subsequent, more ominous setting. See infra. In any event, present at the meeting were Davidson, Horton, Miller, Cox, Wiseman, Pennell, and Union Agent Blackburn. When Miller and Davidson admitted their having caused "aggravation" of other employees, Blackburn told them that he did not know what he could do about the discharges; that, although he did not think they had much of a case, he would consult his supervi- sors; and that he would get back to them with regard to filing grievances. Davidson testified that he did not know how to put the grievances in writing which would most favorably demonstrate his case. Blackburn told them to try and get their jobs back, and, if they could not do so, he would try. " Blackburn told them to hold off their filing of grievances for about a week and he would contact them. Thereafter, Blackburn telephoned Hiller and asked for the jobs back. Hiller said that there was nothing to be done; that the employees had been fired and would stay fired. About a day or two later, with Davidson not having a phone and Blackburn unable to reach Wiseman, Black- burn telephoned Committeeman Cox and told Cox to get Wiseman to notify the two discharged employees to write out their grievances. No written or other griev- ances were ever filed. Cox, corroborating Blackburn, testified that, a few days after the May 15 union meeting at the motel, Black- ' Blackburn testified that, if he were unsuccessful in getting the Com- pany to reinstate them. "we would go through the procedure and I would he talking with my bosses " burn telephoned him and told him to give a message to Wiseman: To get Miller and Davidson to write out grievances regarding the discharges.'2 Cox testified that he told this to Leon Wiseman. Wiseman testified that he never asked Miller and Da- vidson to file grievances, although Blackburn, through Cox, had given him a message to that effect. Although he saw Davidson on several occasions thereafter, the only thing that Wiseman did was, on one occasion while across the street from Davidson, to ask Davidson if he had grievance forms. Davidson answered that he did have grievance forms. Wiseman's house is a couple of houses away from Davidson's. The record is barren on any action taken by Wiseman with regard to contacting Jerry Miller. The evidence shows that, after the unfair labor prac- tice charges were filed by Davidson and Miller against the Union, the union attorney sent a letter to Respondent Employer seeking reinstatement of the two alleged dis- criminatees. Blackburn testified that there is no contractual time limit for filing grievances (written grievances are not re- quired) other than that the grievances be filed within "a reasonable time." Blackburn also testified that, after he called Cox to reach Wiseman on the filing of the griev- ances, he telephoned Wiseman to discover if the griev- ances were filed. Wiseman said that no grievances had yet been given to him. Blackburn did not then seek to directly contact either Miller or Davidson. Blackburn ad- mitted that he did not ask Wiseman whether Wiseman had contacted either Miller or Davidson. After the instant unfair labor practice charges were filed, Blackburn never offered to take the discharges as grievances. Blackburn testified that he was on vacation when the charges were filed. He also testified that he never thereafter contacted Davidson or Miller regarding the grievances. He testified that Wiseman should have contacted them, and that he knew that Wiseman was not on friendly terms with Miller and Davidson and that Da- vidson had criticized Wiseman's performance as shop ste- ward. The record is clear that Blackburn, on two previous occasions, had visited Davidson's house. B. Discussions and Conclusions Violation of Section 8(b)(l)(A): Failure To Process Grievances The complaint (par. 10) alleges that the Union failed to accept and process a grievance of the discriminatees which the two discriminatees attempted to file under the provisions of the contract. There is no question but that there was no "attempt" by the discriminatees to file writ- ten grievances, and that there was no refusal by the Union to accept them. Rather, the evidence shows that Blackburn told the two discriminatees that he would consult the Union and would get back to them with regard to the filing of the grievances which the discri- 12 Blackburn told Cox: "IT]ell Leon [Wiseman] to get a hold of Allen [Davidson] and Jerry Miller and tell them to explicitly write out in their own words, in a grievance, as to how they were wrongfully discharged and their rights violated." ELDORADO MANUFACTURING CORPORATION 655 minatees told him they wanted to file. I conclude that the variation between the allegation and the proof, with the attendant circumstances, failed to mislead or surprise Respondent Union and was of no legal significance. In any event, Respondent Union's motion to dismiss the complaint in this regard related to the sufficiency of the proof rather than any prejudice. I conclude that Blackburn, rather than contacting the two employees, contacted Wiseman to contact the discri- minatees, knowing that the discriminatees distrusted Wi- seman, who had been alleged by them not to properly represent the unit employes and not to perform his duties as shop steward. In particular, Blackburn knew that the Miller-Davidson faction had only 1 week prior to the May 11 discharges and 10 days before his telephone call to Cox (to have Wiseman contact Miller and Davidson) sought to oust Wiseman as shop steward, and knew that there was animus between Miller and Davidson on one side and Wiseman on the other regarding Wiseman's al- ledgely becoming too soft on Respondent Employer in the processing of grievances and in the enforcement of the contract. In the face of such evidence of mutual ani- mosity, it is not surprising, and it cannot have surprised Blackburn, that Wiseman's only attempt to convey Blackburn's message on the filing of grievances was Wi- seman's totally ambiguous question to Davidson as to whether he had grievance forms. Whether or not Black- burn acted in good faith on this point, this conduct on the part of Blackburn seems to me to fall far short of the Union's executing its legal obligation to entertain and process the grievances in good faith. Blackburn was merely making a show of going through the act. This is especially so in view of the fact that the Union, on this record, was at least facially hospitable to processing the grievances. Blackburn, however, dispatched Wiseman, whom I conclude he knew to be antagonistic to the two discriminatees, to advise them of the Union's willingness to process the grievances. In this case, this was the equivalent of sending the fox to guard the chickens. In the landmark case of Steele v. Louisville & Nashville Rail- road Co., et al., 323 U.S. 192 (1944), the Supreme Court said that the Union must represent employees "without hostile discrimination, fairly, impartially, and in good faith." In the later case of Ford Motor Co. v. Hoffman, et al., 345 U.S. 330, 338 (1953), the Court added to "good faith" the concept of "honesty of purpose." By 1967, the rule (Vaca v. Sipes, 386 U.S. 171 (1967)) was refined so as to impose an obligation on the Union not to ignore a meritorious grievance or to process it "in a perfunctory manner." Simply stated, Respondent Union cannot absolve itself of its duty to accept or process grievances by the device of having Blackburn to contact Wiseman, and Wiseman, then in supposed execution of his obligation (imposed on him by Blackburn to notify the two alleged discrimina- tees that the Union would process their grievances), to simply ask one of them, as Wiseman asked Davidson, whether he had grievance forms. This seems to me to fall far short of a communication by the Union, through Blackburn, to Wiseman and to both discriminatees that the Union would willingly and honestly process their grievances. The Union (Blackburn) cannot hide behind the illegal conduct of its agent (Wiseman), especially where, as here, it could reasonably suspect the agent's personal conflict in executing his agency. To say that Wiseman adequately communicated with Davidson by asking him whether he had the grievance forms, and that this constituted a communication that the Union was willing to process the grievances, flies in the face of reason. As above noted, there was no communication to Miller at all. What actually happened is that the Union was faced with the obligation of representing two em- ployees who sought to displace the shop steward for al- leged malfeasance, and who abused the shop steward by their insistence on contract terms. What Blackburn did was to act or, actually, fail to follow up on the dis- charges and grievances in such a way that he thought perhaps the problem would go away. The problem did not go away. This is "perfunctory processing" within Vaca v. Sipes, supra, if Blackburn (a) relied on Wiseman, who was merely arbitrarily too lazy to do his job, or (b), as in this case, relied on Wiseman, who was motivated by antagonistic and unlawful considerations in failing to affirmatively notify the discriminatees. 13 Lastly, it is not sufficient for the Union, as it did in this case after the filing of the charges, to have its lawyer request Respondent Employer to reemploy and reinstate the two discriminatees. This is surely not the equivalent of executing its contractual and statutory obli- gation of processing grievances. Under no view of the facts here did the Union ever, even at the time of the hearing, communicate with the two discriminatees and notify them that the Union was willing to process their grievances. Under these circumstances, and with the con- clusion that the pleadings in this case gave the Union ample notice of the acts for which it was charged under the statute, I conclude that the Union violated Section 8(b)(1)(A) of the Act in that it did not in good faith notify, and has never notified, Miller and Davidson that it was willing to accept and to process their grievances arising out of their discharges under the collective-bar- gaining agreement. Indeed, even at the hearing the Union's explicit recalcitrance was clear. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with Respondent Em- ployer's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. Upon the basis of the foregoing facts, and the entire record, make the following: 13 Pacific Coast Utilities Service. Inc., 238 NLRB 599 (1978); and par- ticularly liT Arctic Services. Inc.. 238 NLRB 116 (1978), where the union business agent surprisingly relied on the shop steward, whom he knew was unsympathetic to the grievants. 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Eldorado Manufacturing Corporation is an employ- er engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Union, by causing and attempting to cause Respondent Employer to discharge the alleged dis- criminatees, Jerry Miller and Allen Davidson, because they sought to remove the union shop steward from office, because of their allegations of his failure to per- form his duties, and because he allegedly failed to en- force the terms of the collective-bargaining agreement between Respondent Union and Respondent Employer, activities protected under Section 7 of the Act, violated Section 8(b)(l)(A) and (2) of the Act. 4. Respondent Employer, by discharging its employ- ees, Jerry Miller and Allen Davidson, at the request of Respondent Union because they engaged in activities protected under Section 7 of the Act, violated Section 8(a)(1) and (3) of the Act. 5. Respondent Union, by failing to notify the two al- leged discriminatees, Jerry Miller and Allen Davidson, that it was willing to process their apparently meritori- ous grievances, or by an unsuccessful, perfunctory at- tempt to notify one of them, violated Section 8(b)(l)(A) of the Act. THE REMEDY Since I have found that Respondent Employer and Re- spondent Union have engaged in unfair labor practices within the meaning of Sections 8(a)(l) and (3) and 8(b)(l)(A) and (2) of the Act, respectively, I shall recom- mend to the Board that Respondents be ordered to cease and desist from engaging in those unfair labor practices. I shall also recommend to the Board that Respondents take certain affirmative action in order to effectuate the policies of the Act. Such affirmative action will include making the two alleged discriminatees, Jerry Miller and Allen Davidson, whole for their loss of earnings, if any, resulting from the unfair labor practices involving them as specified above. Respondent Employer and Respond- ent Union shall be liable jointly and severally, and such loss of earnings shall be computed on a quarterly basis in the manner proscribed by the Board in F W. Woolworth Company, 90 NLRB 289 (1950); with interest thereon as established by the Board in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and at the rate of interest as de- termined by the Board in Florida Steel Corporation, 231 NLRB 651 (1977). Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 14 A. The Respondent Employer, Eldorado Manufactur- ing Corporation, Eldorado, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees, thereby unlawfully discouraging membership in United Steel Workers of America, AFL-CIO, because they engage in activities protected under Section 7 of the Act. (b) In any like or related manner, interfering with, re- straining, or coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act, except to the extent that such rights may be affected by an agree- ment requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Offer Jerry Miller and Allen Davidson immediate and full reinstatement to their former jobs or, if those po- sitions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, and, jointly and severally with the Union herein, make them whole for any loss of wages they may have suffered 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, time- cards, personnel records and reports, and all other rec- ords necessary to analyze the amount of backpay due. (c) Post at its Eldorado, Illinois, facility copies of the attached notice marked "Appendix A."15 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by Respondent Em- ployer's authorized representative, shall be posted by Re- spondent Employer immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by Respondent Employer to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps Respondent Employer has taken to comply here- with. B. The Respondent Union, United Steelworkers of America, AFL-CIO, Eldorado, Illinois, its officers, agents, and representatives, shall: 1. Cease and desist from: " In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. s 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." ELDORADO MANUFACTURING CORPORATION 657 (a) Causing or attempting to cause Respondent Em- ployer, or any other employer, to discharge any employ- ee or otherwise discriminate against any employee be- cause the employee engages in activities protected under Section 7 of the Act. (b) Restraining or coercing any employee by failing or refusing to process, or engaging in perfunctory process- ing of, grievances of employees against Respondent Em- ployer, or any other employer, because the employee en- gages in activities protected under Section 7 of the Act. (c) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is nec- essary to effectuate the policies of the Act: (a) Notify Respondent Employer above that Respond- ent Union has no objection to the employment of Jerry Miller and Allen Davidson. (b) Jointly and severally with the above-named Re- spondent Employer make whole Jerry Miller and Allen Davidson for any loss of earnings which they may have sustained by reason of the discriminatory action against them in the manner set forth in the section of this Deci- sion entitled "The Remedy." (c) Post at its business offices and meeting halls copies of the attached notice marked "Appendix B."'6 Copies of said notice, on forms provided by the Regional Direc- tor for Region 14, after being duly signed by Respondent Union's authorized representative, shall be posted by Re- spondent 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. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other materi- al. (d) Mail to the Regional Director for Region 14 signed copies of the notice entitled "Appendix B" for posting by Respondent Employer herein, Eldorado Manufactur- ing Corporation, if willing, in places where notices to employees are customarily posted. (e) Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. ' See fn. 15, supra. _