Assoc. of Packers & Drivers Union

608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Association of Packers & Drivers Union (Guy's Foods, Inc.) and Michael A. Gordon, an Attorney for Helen Mealy. Case 17-CB-725 February 22, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING, BROWN, AND JENKINS On June 29,1970, Trial Examiner Morton D. Fried- man issued his Decision in the above-entitled pro- ceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Trial Examiner's Decision. The Trial Examin- er also found that the Respondent had not engaged in certain other unfair labor practices and recommended that these allegations of the complaint be dismissed. Thereafter, the Respondent and the General Counsel filed exceptions to the Trial Examiner's Decision to- gether with supporting briefs. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirMed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner as modified below. We agree with the Trial Examiner that Respondent Union violated Section 8(b)(1)(A) by telling employee Helen Mealy on two separate occasions that her griev- ance against the Employer would not be processed unless Mealy withdrew unfair labor practice charges then pending before the Board. Contrary to our dissenting colleague, we believe that Respondent Union's insistence that Mealy give up her statutory right of access to the Board or lose her contractual right to invoke a grievance procedure made on her behalf was clearly coercive within the meaning of the Supreme Court's decision in N. L. R. B. v. Industrial Union of Marine and Shipbuilding Work- ers of America, AFL-CIO, 391 U.S. 418. There, as noted in the dissenting opinion, the Court held that freedom of access to the Board should be "as great" as the freedom to petition any other department of Government. The Court held that "any coercion" (em- phasis supplied) to defeat that access was beyond the legitimate interests of a labor organization. We take this language to mean what it says. Respondent Un- ion was not privileged, however motivated and wheth- er or not its judgment was "reasonable" or otherwise, to force Mealy to the difficult choice of giving up her grievance or her charge before the Board. We believe the Court made it clear in the above case, as quoted by our dissenting colleague, "that the overriding pub- lic interests makes unimpeded access to the Board the only healthy alternative . . . ." No responsibility of a union to protect its members' interests, no duty of fair representation, no "legitimate discretion" to process or not to process a grievance is justification to impede, deter, or interfere with an employee's right to come to this Board with an unfair labor practice charge. We cannot interpret the Supreme Court's decision, cited above, in any other way. In our opinion, the scope of discretion which our dissenting colleague finds inher- ent in the Union's representative capacity is so broad as to constitute a reversal of what the Court has held to be the proper interpretation of this statute. Nor can we agree that Spielberg Manufacturing Company, 112 NLRB 1080, is authority for dismissing this com- plaint. While it is true that the Board in Spielberg "recognized" an arbitration award without passing itself upon the issue of alleged strike misconduct, in that case the matter had been fully litigated before a neutral tribunal and the Board could fairly say: "In summary, the proceedings appear to have been fair and regular, all parties had agreed to be bound, and the decision of the arbitration panel is not clearly repugnant to the purposes and policies of the Act." Spielberg supra at 1082. No such parallel litigation has occurred here and Spielberg is therefore inappo- site. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby adopts as its Order the Recom- mended Order of the Trial Examiner, as modified herein, and hereby orders that the Respondent, Asso- ciation of Packers & Drivers Union, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's Recommended Order, as modified hereinafter: 1. Change paragraph 1(a) of the Trial Examiner's Recommended Order to read: "Restraining or coerc- ing Helen Mealy, or any employee similarly situated, in the use of the processes of the National Labor Relations Board by informing her or any other em- ployee that we will not process a grievance unless the employee withdraws charges the employee has filed with the Board." 2. In footnote 11 of the Trial Examiner's Decision change "10" to "20" days. 3. Substitute the attached notice for the Trial Examiner's notice. MEMBER BROWN, concurring: Respondent Union was ready and willing to take 188 NLRB No. 85 ASSOC. OF PACKERS & DRIVERS UNION up a grievance respecting Mrs. Mealy's discharge through its contractual grievance-arbitration proce- dure with the Employer, but not if the very same matter was to be litigated in a concurrent unfair labor practice proceeding before the Board on Mrs. Mealy's charge against the Employer. Even apart from time and money considerations, I readily appreciate that cogent reasons of sound labor relations may underlie a position against duplicative concurrent proceedings. However, the question pre- sented is not whether national labor policy should impel the Board to defer to the parties' grievance-arbitration arrangements,' and thus not process an unfair labor practice charge in the face of such applicable arrangements. Involved here, rather, is whether, notwithstanding its good faith in the prem- ises, Respondent Union could lawfully advise Mrs. Mealy that it would not prosecute her grievance un- less she withdrew the charge.' With somewhat less certainty than I would desire, I agree with my col- leagues that the Marine Workers and Skura cases are controlling. CHAIRMAN MILLER, dissenting: This case raises the question whether an employee representative violates Section 8(b)(1)(A) by either re- questing or insisting (the facts present either possibili- ty) that a discharged employee withdraw an individual 8(a)(3) charge as a precondition to the union's processing of the dischargee's grievance. It is my view that where, as in this case, the union acts for nondiscriminatory reasons it may require a repre- sented employee to exhaust the contract grievance procedure prior to invocation of Board jurisdiction and decline to process a grievance if the grievant indi- vidually perseveres in an alternative forum. The Trial Examiner and my colleagues are of the view that the Skura 3 and Marine Workers4 decisions are precedent for a contrary view. I do not agree. Those cases involved action or threatened action by a union to penalize members for resorting to our proc- esses, and the question presented was whether the union could compel its members to exhaust internal remedies and appeals within the union structure be- fore complaining of such a penalty before this Board. The Supreme Court in the Marine Workers case said, as to that issue, supra at 424: A healthy interplay of the forces governed and i See, for example, my separate opinions in Raytheon Company, 140 NLRB 883, 888-891, Thor Power Tool Co, 148 NLRB 1379, 1381-83 , The Hilton- Davis Chemical Company, Division of Sterling Dru& Inc., 185 NLRB No. 58, and cases cited therein (fn. 5) 2 The Regional Director eventually dismissed the charge after investigation and did not issue a complaint 3 Local 138, International Union of Operating Engineers, AFL-CIO (Charles S Skura), 148 NLRB 679 4 N L R B v. Industrial Union of Marine and Shipbuilding Workers ofAmeri- ca, AFL-CIO, 391 U S 418 (1968) 609 protected by the Act means that there should be as great a freedom to ask the Board for relief as there is to petition any other department of gov- ernment for a redress of grievances. Any coer- cion used to discourage, retard, or defeat that access is beyond the legitimate interests of a la- bor organization. That was the philosophy of the Board in the Skura case. Local 138, International Union of Operating Engineers, 148 NLRB 679; and we agree that the overriding public interest makes unimpeded access to the Board the only healthy alternative, except and unless plainly in- ternal affairs of the union are involved. The issue here, however, does not involve any act of union coercion, as I interpret the facts, but only a reasonable exercise of legitimate discretion in the complex and difficult area of employee representa- tion. A union has a duty fairly to represent its constit- uents. A fortiori, it must have a wide range of discre- tion in choosing the means and manner of best effec- tuatin that representation.5 In exercising that discretion it muse take into account many considera- tions. It may choose not to process one employee's grievance because the facts of his case are weak and an adverse result in his case holds the potential of creating a precedent adverse to employees who, in the future, may have cases presenting the same issue upon a more solid or appealing factual basis. It may c,^oose not to press a given grievance or group of grievances in the belief that they can be more successfully re- solved across the bargaining table in an approaching contract negotiation. It may choose not to pursue a member's alleged, but doubtful, claim of contract vio- lation because a successful prosecution of his claim may prejudice a substantial group of members who have vested interests in a contrary interpretation of the same contractual provision. It may choose to em- ploy counsel to try some arbitration cases, but not others. In short, a responsible union must necessarily be free to make certain judgments about how best to protect its members' interests. Reasonable discretion in the excercise of that judgment must therefore nec- essarily be permitted, although I do not doubt the propriety of our insisting that such judgments not be made upon premises running contrary to the basic guarantees of our Act. Clearly a union may not choose, for example, to process only the grievances of its ardent supporters and refuse to process the griev- ances of those who choose not to engage actively in union affairs. 'Ford Motor Co v Huffman, 345 U S 330 (1953) 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But here, while it was originally alleged that the refusal to process the grievance was due to the Charg- ing Party's activity on behalf of a rival union, the Examiner specifically found that this allegation was not proved, and in fact found the record "barren of any evidence" to this effect. Instead, it appears that the Union sought to im- prove upon its chances of successfully resolving the grievance through the normal grievance procedures by not antagonizing the Employer by subjecting it to dual litigation of the same issue. Indeed, the Union had been told by the Employer's counsel that "the Employer probably would not sit down to arbitrate the matter as long as the charge was pending." Faced with this set of facts, the Union was called upon to exercise the type of discretion to which I have alluded above. It could have dropped the grievance and offered legal assistance in prosecuting the charge before this Agency. It could have sued to force the Employer to arbitrate the grievance, while at the same time encouraging the employee to pursue the unfair labor practice charge. Or, as it did here, it could choose to offer its assistance to the grievant in the contractual grievance machinery if the grievant was willing to forego the second forum of Board proce- dures. This is apparently believed to offer the best opportunity for favorable consideration of the com- plain by the Employer, and this was the alternative it chore. I cannot agree with my colleagues that the Union, by selecting this alternative, violated our Act. There is a further reason I would find no violation of the Act in Respondent's refusal to process Mealy's grievance during the pendency of her unfair labor practice charge based on the same events. My col- leagues, by analogizing this case to Skura and Marine Workers, imply that here, as i n those cases, Respondent's actions contravened the public policy of free access to the Board. They overlook the fact that the Board itself has repeatedly held that the Act does not mandate the finding of unfair labor practices when the charging party or his representative has cho- sen the forum of grievance and arbitration. Thus, in Spielberg Manufacturing Company,6 the Board, for policy reasons, declined to exercise its normal adjudi- catory and remedial powers where a fair and regular arbitration proceeding had been held. Spielberg has been followed in many subsequent cases. Had Re- spondent pursued Mealy's case through the grievance and arbitration procedure here, the Board, following its own established precedent, would have stayed its hand in the collateral 8(a)(3) proceeding. Yet the ma- jority holds that Respondent offended public policy 6 112 NLRB 1080 by offering Mealy the same choice of forums the Board itself routinely offers litigants. I would dismiss the complaint. APPENDIX NOTICE POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government To All Members of Association of Packers & Driv- ers Union WE WILL NOT deny Helen Mealy, or any em- ployee similarly situated, fair representation in the processing and handling of her grievance filed pursuant to the terms of our agreement with Guy's Foods, Inc., by informing Helen Mealy, or any other employee, that we will not process any grievance unless charges against Guy's Foods, Inc., are withdrawn. WE WILL NOT restrain or coerce Helen Mealy, or any employee similarly situated, in the use of the processes of the National Labor Relations Board by informing her or any other employee that we will not process a grievance unless the employee withdraws charges the employee has filed with the Board. WE WILL NOT in any like or related manner re- strain or coerce employees in the exercise of rights guaranteed in Section 7 of the Act. ASSOCIATION OF PACKERS & DRIVERS UNION (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone 816- 374-5181. ASSOC. OF PACKERS & DRIVERS UNION TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MORTON D. FRIEDMAN, Trial Examiner: Upon a charge filed by Michael D. Gordon, an attorney for Helen Mealy, an individual, herein referred to as Mealy, on October 29, 1969, the Regional Director for Region 17 of the National Labor Relations Board, herein called the Board, issued a complaint on March 11, 1970, on behalf of the General Counsel of the Board against Association of Packers & Drivers Union, herein called the Union or the Respondent, alleging violations of Section 8(b)(1)(A) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. In its duly filed answer to the aforementioned complaint, the Respondent, while admitting certain allegations of the complaint, denied the commission of any unfair labor prac- tices. Pursuant to notice, a hearing on this case was held before me at Kansas City, Missouri, on April 23, 1970. All parties were represented and were afforded full opportunity to be heard, to introduce relevant evidence, to present oral argu- ment, and file briefs. Briefs were filed by counsel for the General Counsel and the Respondent'I Upon consideration of the entire record, including the briefs of the parties, and upon my observation of each of the witnesses as they ap- peared before me I make the following: FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYER Guy's Foods, Inc., is engaged in the processing and wholesale distribution of food products. In the course and conduct of its business, Guy's Foods, herein referred to as the Employer, annually ships from its principal place of business in Kansas City, Missouri, directly to distribution facilities outside the State of Missouri goods and products of a value in excess of $50,000. It is stipulated and I find that the Fmployer is an employer engaged in commerce within the meaning of Sections 2(6) and (7) of the Act. II THE LABOR ORGANIZATION INVOLVED It is stipulated, and I find, that the Respondent is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. The Issues 1. Whether the Respondent refused to process a griev- ance on behalf of Mealy unless Mealy withdrew an unfair labor practice charge she had filed against the Employer. 2. If the answer to issue 1. is in the affirmative, did such refusal on the part of the Respondent constitute restraint and coercion in violation of Section 8(b)(l) (A) of the Act? 3. If the answer to issue 1 . is in the affirmative, whether the Respondent's refusal to process the grievance was moti- vated by reason of Mealy's activities on behalf of a rival labor organization? i Simultaneously with the filing of his brief , counsel for the General Counsel moved to correct the transcript of the testimony of the hearing in certain particulars There being no opposition , this motion is granted B. The Facts 611 It is undisputed that Helen Mealy began working for the employer on August 8, 1962 . During her employment Mealy was active in various union affairs . During 1968 she was a member of the Respondent's negotiating committee. For sometime Mealy was also a shop steward for the Respon- dent and was such during 1 year immediately preceding her discharge which occurred on June 9 , 1969. Some years prior to her discharge, Mealy had acted as an observer at the polls in an election in which the Respondent was opposed by the American Bakery and Confectionery Union, herein referred to as ABC. However, although Mealy acted as the observer for the ABC at that time, she later participated as shop steward negotiating committee member for the Respon- dent. She testified that she never expressed to anyone during her period of activity on behalf of the Respondent that she favored the ABC. Mealy operated a machine which packed nuts and can- dies. On June 20, 1969, Mealy was discharged. Immediately upon her discharge Mealy took a bus to the Regional Office of the Board where she filed an unfair labor practice charge against the Employer.2 Thereafter, on June 23 , according to Mealy, she went to the offices of ABC where she had one of the business agents of that organization write out a grievance for her. Then, from the offices of ABC, Mealy called William R. Dummitt, the business representative of the Respondent Union.30n the telephone, Mealy told Dummitt that she had been fired and wanted to file a grievance against the Employer. Dum- mitt said that he would be at her home that afternoon. It is undisputed that Dummitt did come to her home the af- ternoon of the telephone call. Mealy first gave Dummitt a copy of the charge she had filed against the Employer and then gave him the grievance which had previously been written out for her by the ABC representative . She asked Dummitt to process the grievance. Mealy's version of Dummitt's answer differs markedly from the version given by Dummitt in his testimony . According to Mealy, Dum- mitt answered her request that he process the grievance by stating, in Mealy's words "that he could not process the grievance because Guy's wanted me to drop the labor charges." According to Dummitt, he told Mealy that he did not know what to do about the grievance, that he would have to check with Respondent's counsel about the charge. Ac- cording to Dummitt he told Mealy this and explained to her that this was so because he had never run up against this before, that is, "a Board charge pending and a grievance on the same proceeding." Although on cross-examination Mealy admitted that Dummitt said something about having to see union counsel, she insisted that Dummitt told her that he could not process the grievance unless she dropped the charge against the Employer. On the other hand, Dummitt admitted that in his pretrial affidavit he made the statement, "I told her I would have to check it and as long as she had the Labor Board charges we could not intervene." On the basis of all of this conflicting testimony and on the basis that Dummitt admitted in his pretrial affidavit, made months before the hearing, that he did tell Mealy in effect 2 The lawfulness of that discharge is not involved in this case . It appears that Mealy filed two unfair labor practice charges against the Employer both of which were dismissed upon investigation by the Regional Director. 3 Dummitt testified, contrary to Mealy, that he received the call from Mealy on June 25 and not on June 23 He also testified that he first received the call from a man whom he could not identify and that then Mealy got on the telephone As hereinafter discussed , I find that this difference in dates is inconsequential 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that as long as she insisted on ggoing through with the Board charge he could not intervene, ! find and conclude, upon my observation of the witnesses , that Mealy's version is the more accurate of the two and that Dummitt in effect told Mealy he could not process the grievance unless she drop- ped the charge against the Employer 4 In any event, against did evidently go to the office of the Respondent's counsel after leaving Mealy's home. There he discussed the matter with counsel. Dummitt testified that he was told by counsel that the Employer probably would not sit down to arbitrate the matter as long as the charge was pending. A day or so later, according to Dummitt, June 27, he made contact with Mealy on the telephone at Mealy's new place of employment.' In the telephone conversation, ac- cording to Mealy, Dummitt asked her, again in her own words, "if I would drop the labor charges he would process the grievance." According to Mealy she refused to drop the charges and that was the full context of the conversation. Mealy has not heard from Dummitt since . Nor has she heard from anyone else connected with the Respondent. According to Dummitt, he told Mealy that by reason of the fact that Mealy had a charge pending at the Board, they did not feel "that the Company would sit down and talk to us on the same charge with the charge before the Board." Then Dummitt testified "I told her that it would be up to her as to which way she wanted the Union to go." Accord- ing to Dummitt, Mealy then said that she would let Dum- mitt know . Dummitt has at no time since then heard from Mealy. On cross-examination Dummitt was asked the following question : "As a matter of fact, isn't it true that you told her," "It is up to you, if you want to drop the charges with the N.L.R.B. we will intervene?" Dummitt answered, "yes." Inasmuch as the Mealy version of the conversation at Mealyy's home has already been credited I find and conclude that Mealy's version of the telephone conversation at her place of employment is also the more accurate of the two versions and I conclude that what Dummitt stated to Mealy was in effect a restatement of his original position that the Respondent would process Mealy's grievance if and when Mealy would drop the charges against the Employer. The Respondent contends that regardless of the content of the two conversations between Mealy and Dummitt, it nevertheless processed the grievance . According to Dummitt's uncontroverted testimony, he was leaving town and telephoned Karl Williams , at that time president of the Drivers Local of the Respondent . Dummitt asked Williams to process the grievance. Since he could not physically hand the written grievance over to Williams, he read it to Wil- liams. The grievance read as follows: On Friday, June 20, 1969, I was unjustly discharged b7 the Company, Guy's Foods, Inc. I deny the Company s accusations made in their letter of June 18 , 1969. I am hereby requesting my reinstatement to my former posi- tion with full seniority and all benefits and all lost wages be made whole to me. 6In coming to the foregoing conclusion, I have considered Dummitt's statement on the record, when faced with his pretrial affidavit, that the portion of the affidavit above quoted was a mistake which he had not noticed when he read and signed the affidavit . I do not credit the statement to the effect that Dummitt had not noticed a mistake in his pretrial affidavit. S Mealy testified that Dummitt called her a week or two later. However, in this respect I believe Dumnutt's testimony is more accurate In any event, the date of the telephone call is not critical. 6 This letter set forth the grounds upon which the Respondent discharged Mealy. [s] Helen Mealy Williams' uncontroverted testimony relates that he did not write down the grievance but that on Friday, June 27, he contacted Guy Caldwell, president of the Employer and made an appointment with him. He later went to the Employer's establishment and spoke to Caldwell in person for about 30 to 45 minutes. The reasons for Mealy's dis- charge were discussed. Caldwell said that Mealy had been warned on a number of occasions for letting nuts and candy run out on the floor; she refused to shut off her machine when the paper ran out although she was ordered to do so by her floorlady. Caldwell said he would be glad to meet and talk over the matter with anyone from the Union but would not put Mealy back to work. After this conversation, Williams reported back to Dum- mitt, told the latter of the conversation with Caldwell, and recommended to Dummitt that the grievance had been properly processed and that Caldwell would not rehire Mealy. There is no showing in the record that other than speaking to Caldwell and stating to him the purpose of his visit, lliams did anything in addition to investigate the charges or to in any way suggest alternative methods for dealing with the Mealy matter. Thus, he did not suggest that Mealy be only suspended as a disciplinary measure. Of course, it should be noted, that since Williams did not have physical possession of the grievance he did not present it as written to Caldwell. The grievance procedure set forth in the bargaining agreement between the Employer and the Respondent re- quired that the first grievance step was to be made by the individual concerned to the supervisor. If nothing results therefrom, the second step of the grievance procedure is to be taken. This requires that within 7 days of the event, the Respondent present to the Employer a written grievance. It is undisputed that technically the grievance was not pre- sented according to the contract because Williams did not present a written grievance to Caldwell. Williams admitted that he did not write down the grievance as it was read to him over the telephone by Dummitt. Caldwell also testified and confirmed that to which Wil- liams testified. I therefore find and conclude that the Res- pondent, through Williams, did at least grieve to the extent that he talked to Caldwell about the discharge of Mealy. It should be noted, in passing, that the grievance proce- dure of the collective-bargaining agreement between the Respondent and the Employer provides for a third step which may be used to further a grievance. This step provides for arbitration and, furthermore, provides that arbitration may be resorted to if the matter is not settled within 5 days after the grievance is presented in writing. The record is barren of any indication, nor does the Respondent contend, that the Respondent made any effort to proceed with the third step of the grievance procedure. C. Concluding Findings The Respondent argues that (a) Dummitt did not tell Mealy that the Respondent would not process Meal 's grievance against the employer unless Mealy withdrew the charges she had filed against the employer, (b) that in any event Respondent did process Mealy's grievance and that therefore committed no violation of the Act and (c) that the record is barren of any evidence that part of the reason for Respondent's refusal, if indeed there was a refusal, was Mealy's activity on behalf of the ABC. With regard to argument (a), I have already found and ASSOC. OF PACKERS & DRIVERS UNION concluded that on two separate occasions, first at Mealy's home and then during the telephone call to Mealy's place of employment, Dummitt, in so many words, told Mealy that Respondent would not process Mealy's grievance un- less Mealy withdrew the charges against the Employer. Counsel for the General Counsel and the Charging Party both contend that this verbal refusal is sufficient restraint and coercion to constitute a violation of Section 8(b)(1)(A) of the Act. I agree. Assuming, arguendo, that the Respondent did, after the verbal refusal to process Mealy's grievance, nevertheless properly process the grievance, there would still be a viola- tion in the initial verbal refusal. It is well established that a Union may not resort to restraint or coercion in any form for the purpose of restricting the right of an employee mem- ber to file charges with the-Board. And the Board has the affirmative duty to protect to the outermost limits of the Board's authority the ri Pe of employees to file charges .8 Since an em loyee w ether n t or wrong, has the right to file charges and to be protecte by the Board in doing so, it follows that the Board will protect an employee such as Mealy, who filed charges, from even a bare threat not to process a grievance unless the filed charge against the for- mer employer is withdrawn. This is so because such a threat will naturally not only inhibit the employee who has resort- ed to the Act's protection but will interdict as well other employees who may learn of the Union's conduct in making the threat .9 By reason of the foregoing, it becomes unnecessary to determine whether the Respondent still refuses to process Mealy's grievance, or put another way, whether Respondent has, in fact, failed to properly process the grievance. The Respondent's argument, that in any event, the grievance was processed, and that, therefore, there is no violation is of no avail. Section 8(b)(1)(A) of the Act was violated when Dummitt told Mealy that Respondent would not process the grievance unless Mealy withdrew her charges against the Employer. In any event, the collective-bargaining agree- ment between the Respondent and the Employer would prevent the processing of the grievance at this time, be- cause, as noted above, it provides that the second stage must be processed within 7 days after the grievance has arisen and the thtrd stage of the grievance procedure provides that if the matter is not settled in the second stage within 5 days after presentation of the second stage, the grievance must be submitted to arbitration within 4 days thereafter, and that time is of the essence. Accordingly, even assuming the Res- pondent still has refused to process the grievance, there is no way, at this late date, to remedy this refusal by proc- essing the grievance. There remains for disposition the issue of whether the refusal of the Respondent to process Mealy's grievance was also motivated by reason of Mealy's sympathy with or activ- ities on behalf of the ABC. The only evidence that the Respondent was aware of, or had knowledge of, Mealy's sympathies for the ABC is the testimony of Mealy to the effect that some years before her discharge, at a Board conducted election, Mealy acted as an observer for the 7 N L R B v Industrial Union of Marine and Shipbuilding Workers of America, AFL-CIO, 391 U S 418, 424-425, Local 138 International Union of Operating Engineers, AFL- CIO (Charles S Skura) 148 NLRB 679, 681-682, Amalgamated Meat Cutters and Butcher Workmen of North America, etc (National Tea Company), 181 NLRB No 116 at pp 5-7 of the Trial Examiner's Decision 8 Local 138, International Union of Operating Engineers, AFL-CIO (Charles S. Skura), supra at 681 9 Cf Selwyn Shoe Manufacturing Corporation, et al, 172 NLRB No 81 (TXD) 613 ABC. The record establishes that although Mealy's griev- ance was drafted by a business representative of the ABC and that possibly the business manager of ABC was the one who put through the telephone call from Mealy to Dummitt to apprise Dummitt of her grievance, there is no showing that Dummitt or anyone connected with the Respondent had knowledge of this. Additionally, since the time that Mealy acted as an observer for the ABC at the Board con- ducted election, Mealy served as a member of a bargaining committee of the Respondent in 1968 and at the time of her discharge was shop steward for the Respondent. According- ly, I find and conclude that counsel for the General Counsel has failed to establish by a preponderance of the credible evidence that the Respondent had knowledge of any recent activity of Mealy on behalf of the ABC. Therefore, it cannot be inferred that the Respondent refused to process Mealy's grievance because of her activities on behalf of the ABC. Accordingly, I shall order dismissed that portion of the complaint which alleges that the Respondent refused to process Mealy's grievance because of her activities on be- half of the ABC. CONCLUSIONS OF LAW 1. Guy's Foods, Inc., is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Association of Packers & Drivers Union is a labor or ization within the meaning of Section 2(5) of the Act. 17B informing Helen Mealy that it would not process her grievance against Guy's Foods, Inc., unless she with- drew her unfair labor practice charge against Guy's Foods, Inc., the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, it will be recommended that it be ordered to cease and desist therefrom and that it take cer- tain affirmative action designed to effectuate the policies of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and con- clusions of law, and upon the entire record in the case, and pursuant to Section 1(Y(c) of the Act, it is ordered that Asso- ciation of Packers & Drivers Union, its officers, representa- tives, agents, and successors and assigns shall: 1. Cease and desist from: (a) Denying Helen Mealy, or any other employee similar- ly situated, fair representation in the processing and han- dling of her grievances filed pursuant to the Respondent's collective-bargaining agreement with Guy's Foods, Inc., by telling or informing Helen Mealy or any other employee that the Respondent will not process any grievance unless the employee withdraws any charges the employee may have filed against Guy's Foods, Inc. (b) In any like or related manner restraining or coercing employees in the exercise of rights guaranteed in Section 8(b)(1)(A) and Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Post at its business office, hiring halls, and meeting places copies of the attached notice marked "Appendix." Copies of said notice, on forms provided by the Regional Director for Region 17, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be 10 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, recommendations, 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 In the event that the Board's 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 Rela- tions Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board " maintained by it for 60 consecutive days thereafter , in con- spicuous places, including all places where notices to mem- bers are customarily posted . Reasonable steps shall be taken by the Respondent to ensure that said notices are not al- tered, defaced, or covered by any other material. (b) Mail to the Regional Director for Region 17 signed copies of the attached notice for posting by Guy's Foods, Inc., at its various installations, if the said Company is willing to do so. (c) Notify the Regional Director for Region 17, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. II IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations of Section 8(b)(1)(A) of the Act other than those found herein. 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Re- gion 17, in writing, within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith "