Wentcel, Inc.

828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wentcel, Inc. and Ronald Alvin Sawyer Brotherhood of Teamsters & Auto Truck Drivers, Local No. 70, International Brotherhood of Team- sters, Chauffeurs, Warehousemen & Helpers of America and Ronald Alvin Sawyer. Cases 20-CA-6600 and 20-CB-2429 August 10, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On January 6, 1972, Trial Examiner James T. Barker issued the attached Decision in this proceed- ing. Thereafter, exceptions were filed by the Respon- dent Union together with a supporting brief. General Counsel filed a supporting and answering brief. The Respondent Employer filed no exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions, cross- exceptions, and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order except as modified herein. The Trial Examiner found that the Respondent Employer, Wentcel, Inc., violated Section 8(a)(3) and (1) of the Act by terminating employee Sawyer because of his nonmembership in the Union. No exceptions having been filed by the Respondent Employer to this finding, we adopt such finding pro forma. The Trial Examiner also found that by entering into, maintaining, and giving effect to a collective- bargaining agreement containing an unlawful union security provision the Respondents engaged in conduct violative of Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and Section 8(b)(2) of the Act. The Respondent Union excepts to this finding on the basis that the collective-bargaining agreement alleg- ed to contain the unlawful union security clause was not effective at the time of Sawyer's discharge, thus it could not constitute the basis for a finding that the maintaining and giving effect to an alleged unlawful security clause violated the Act as found by the Trial Examiner. We find merit in Respondent Union's exception. A review of the record discloses that the Respon- dent had reached accord on numerous aspects of a collective-bargaining agreement that had been in negotiation between the parties from August 1970 and was consummated on January 21, 1971. Full agreement had not been reached on all the terms of the agreement as of December 30, 1970, the date of Sawyer's discharge. While the record establishes that the collective-bargaining agreement that became effective on January 21, 1971, did contain an illegal union security clause, there is no evidence in the record that the Respondent sought to enforce such illegal clause prior to the date of the consummation of the agreement. Accordingly, in all the circum- stances, we find, contrary to the Trial Examiner, that Respondents did not enter into, maintain, or give effect to a collective-bargaining agreement contain- ing an unlawful union security provision in violation of Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and 8(b)(2) of the Act. We shall therefore dismiss this allegation in the complaint and amend the Trial Examiner's Order accordingly. The Trial Examiner also found that the Respon- dent Union by causing or attempting to cause the Employer to terminate Sawyer because Sawyer was not a member of the Respondent Union, engaged in, and is engaging in, unfair labor practices in violation of Section 8(b)(2) of the Act. The Respondent Union excepts to this finding by the Trial Examiner. We find merit in this exception. The Trial Examiner specifically finds that there was no direct evidence that any official of the Union demanded that Della, president of Respondent Employer Wentcel, Inc., terminate Sawyer. Nonethe- less, the Trial Examiner concluded that the actions of Union Official Ybarrolaza, when contacted by Della regarding the latter's intention to discharge Sawyer for unsatisfactory work performance, provided a basis from which the inference could be drawn that a demand for Sawyer's termination was made. We find nothing in the record that would support such an inference. Della was the one who instigated the termination of Sawyer. Della in talking to Ybarrola- za about his (Della's) intention of terminating Sawyer sought to ascertain whether if he proceeded with the termination the Union would undertake to represent Sawyer. Ybarrolaza informed Della that Respondent Union would not represent Sawyer if Local 287 (Teamsters), of which Sawyer was a member, assumed responsibility. This evidence is insufficient to establish that the Union made a demand for Sawyer's discharge. The record evidence does show that Ybarrolaza did tell Della, at the time of the above-mentioned conversation, that two employees, Goble and Johnson, were not members of the Respondent Union and that he (Ybarrolaza) might have to ask Della to discharge them if they did not transfer to Respondent Union. However, we do not agree with the Trial Examiner that this statement by Ybarrolaza provides a basis for concluding that 198 NLRB No. 104 WENTCEL, INC. 829 the Union must have attempted, for the same reason, to have Sawyer discharged. We find, in all the circumstances, that the evidence of record does not support a finding that the Respondent Union violated Section 8(b)(2) of the Act. We shall therefore dismiss this allegation of the complaint and amend the Order accordingly. It is clear from the record that Ybarrolaza had been informed by Della of Sawyer's shortcomings in the performance of his work at various times prior to Sawyer's actual discharge and that Ybarrolaza had so warned Sawyer. It is also abundantly clear that Della in consulting with Ybarrolaza regarding his intention to discharge Sawyer was interested in whether in view of Sawyer's work record the Union would protest his discharge. The record evidence does not indicate in any way that the Union through its agent Ybarrolaza had any doubts as to Della's complaints as to Sawyer's work performance but indicates that such complaints had substance and Sawyer's discharge was justified. The test of failure by a Union to fairly represent a unit employee was set forth by the Supreme Court in Vaca v. Sipes (386 U.S. 171). There the Court held that a Union must represent "employees without hostility, in good faith and honesty, and avoid arbitrary conduct." We find no breach of these standards in the conduct of the Union in this case, particularly in view of the repeated warnings given to Sawyer that he was in danger of discharge because of his continued acts of misconduct. In all the circumstances, we find that the Union did not violate Section 8(b)(1)(A) of the Act as alleged. Accordingly, contrary to the Trial Examiner, we shall therefore dismiss this allegation of the com- plaint. i ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner as modified below and hereby orders that the Respondent, Wentcel, Inc., Oakland, California, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order.2 The complaint as to the Union is in all respects hereby dismissed. a "dues paying" member of Local 70 The fact that, as we are finding, no collective-bargaining agreement was in effect at the time of the discharge does not justify Respondent Union in failing and refusing to represent a unit employee for discriminatory reasons in connection with a matter which was of vital concern to the employee , i e, his discharge from employment 2 Substitute the attached notice for the Trial Examiner's Appendix A APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Act gives all employees the right to get or keep a job even if they are not members of a union, except under certain conditions. Unless these conditions are met, the requirement to join a union in order to keep a job is illegal. The specific conditions which make that requirement lawful include: (1) The requirement to join the union must be pursuant to a lawful collective-bargaining con- tract. (2) The contract must give the employees at least 30 days after they are hired, before they can be required to join the union. However, employees who work in the building and construction industry have only 7 days to join. The Act also protects an employee from being fired for not joining the union, if the requirement to join does not meet the above conditions. The National Labor Relations Board found that we violated your legal rights under the above- described provisions of the National Labor Relations Act. Specifically, the Board found that employee Ronald Sawyer was discharged by us for failure to join Respondent Union, Local 70, Teamsters Inter- national. Accordingly, we give you the following assurances: WE WILL NOT unlawfully discriminate against employees as to their hire or tenure of employ- ment, or any term or condition of employment. WE WILL make up any pay loss which Ronald Sawyer suffered together with 6-percent interest covering the period between Sawyer's unlawful discharge on December 30, 1970, and his reins- tatement on March 17, 1971. WENTCEL, INC. (Employer) i Chairman Miller would adopt the Trial Examiner's findings of an 8(b)(I)(A) violation The circumstances cited by the majority disclose, at most, that there existed valid grounds upon which the Union could have refused to represent Sawyer with respect to his discharge The fact is that the Union told Sawyer it could not help him because he was not a member of Local 70 Business Agent Ybarrolaza told Sawyer this on January 6, Secretary-Treasurer Leishman told him the same thing a few days later, and, in late January, Leishman even refused to give Sawyer a copy of the recently executed collective-bargaining agreement because Sawyer was not Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, 13018 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415-556-3197. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES T. BARKER, Trial Examiner : This matter was heard at San Francisco, California, on July 8, 9, and 26, 1971, pursuant to an initial charge and a first amended charge filed in Case 20-CA-6600 by Ronald Sawyer on February 23, 1971, and April 19 , 1971, respectively; and a charge filed in Case 20-CB-2429 on February 23, 1971, by Sawyer. On September 13, 1971, the General Counsel timely filed a brief with me and thereafter , on September 15, the counsel for the Respondent Union filed a letter memorandum, served on the parties, setting forth the position of the Union with respect to the legal issues involved herein. Upon consideration of the brief of the General Counsel, and the memorandum of the Respondent Union, and upon the entire record in this case , and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY At all times material herein Wentcel, Inc., hereinafter referred to as the Company or Respondent Company, has been a California corporation engaged in business in Oakland, California, as a contract mail hauler for the United States Postal Service . During the 12-month period immediately preceding the issuance of the complaint herein, the Company , in the course and conduct of its business operations , received gross revenues in excess of $50,000 for transporting mail in interstate commerce for the United States Postal Service. Upon these facts, I find that at all times material herein, Wentcel, Inc., has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The parties concede that at all times material herein Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America, hereinafter called the Union, has been a labor organization within the meaning of Section 2(5) of the Act, and I so find. III. THE UNFAIR LABOR PRACTICES A. The Issues The General Counsel contends that at all relevant times on and after September 1, 1971, there was in effect between the Company and the Union a collective-bargaining agreement containing an illegal union -security provision; and that by entering into , maintaining, and enforcing the collective-bargaining agreement containing illegal union- security provisions the Company violated Section 8(a)(1), (2), and (3) and the Union violated Section 8(b)(1)(A) and Section 8(b)(2) of the Act . Moreover, contends the General Counsel, the Company violated Section 8(a)(3) of the Act by discriminatorily terminating the employment of Ronald Sawyer, and the Union, in turn, violated Section 8(b)(1)(A) and Section 8(b)(2) of the Act by attempting to cause or causing Sawyer's termination. The General Counsel further contends that the Union violated Section 8(b)(I)(A) of the Act by refusing to process Sawyer's grievance charging that his termination was in violation of the notice provisions of the contract between the Company and the Union. Further issues bearing upon the aforesaid principal issues relate to (a) whether the union-security provision, illegal on its face, was in effect at the time of Sawyer's discharge; (b) whether Johnnie Cunningham was at material times a supervisor within the meaning of the Act; and (c) whether Alex Ybarrolaza , Augusta McInnis, and A. N. Leishman were agents of the Union. With respect to the principal issues, the Company contends that Sawyer was terminated solely for cause and the Company and the Union join in their contention that the collective-bargaining agreement containing the union- security provision here in issue was not in effect at the time of Sawyer's discharge. Additionally, the Union contends that the General Counsel failed to prove that it attempted to cause or did cause the Company to terminate Sawyer's employment ; and that the General Counsel similarly did not sustain his burden of establishing that the Union failed in any obligation arising under the Act to process Sawyer's grievance. B. Pertinent Facts 1. The setting a. The Company Wentcel, Inc., is a company formed from an individual proprietorship formerly known as Della Trucking Compa- ny and owned by Charles Della. Since 1952, Charles Della has held a contract with the United States Government to haul mail as a star route carrier. Wentcel, Inc., was organized in November 1970 to perform mail-hauling services. In performing the function the Company utilizes virtually the same equipment and personnel as did the predecessor enterprise and performs its mail-hauling services from the same location. The contracts with the Government under which the Company operates are for a 4-year term and the current contract held by the Company expires on June 30, 1973. The contract in question has no automatic renewal provision and renewal of the agreement is dependent upon satisfactory performance on the part of the Company. Service and attitude of the personnel of the Company are factors given weight by the postal service in deciding whether or not to renew the agreement . The complaints lodged by the postal service concerning deficiencies in the work performance of drivers or other personnel of mail WENTCEL, INC. 831 haulers are transmitted verbally or by telephonic contact with supervision, or in writing. The contract which the Company presently holds with the postal service represents its sole and exclusive source of revenue. Johnnie Cunningham has direct authority and responsi- bility over the day-to-day supervision of the personnel of the Company. Included in Cunningham's responsibilities are oversight duties with respect to truckdrivers employed by the Company and he has authority to hire and terminate the employment of employees. Additionally, he participates in the adjustment of employee grievances and consults with and advises Charles Della on labor relation matters.' I find that Johnnie Cunningham has been at all pertinent times a supervisor within the meaning of the Act. b. The officers and jurisdiction of the Union Local 70 is headquartered in Oakland, California. Its jurisdiction extends throughout Alameda County, Califor- nia. Alex Ybarrolaza is business representative of the Union, A. N. Leishman is its secretary-treasurer, and Augusta McInnis is a shop steward. In his capacity as business agent of the Union, Alex Ybarrolaza administers the collective-bargaining agree- ment between the Company and the Union and adjusts grievances arising thereunder. Additionally, he performs duties relating to the representation of a membership of 1,200 individuals under collective-bargaining agreements with a variety of employers. Ybarrolaza participated in negotiating the most recent agreement between the Company and the Union. A. N. Leishman participates in the representation of the membership of the Union. In his capacity as secretary- treasurer, Leishman collects, deposits, and disburses funds of the Union; directs the office staff; performs certain administrative functions; and is in charge of dues cards. He occasionally reviews contracts which have been negotiated by the Union and possesses authority to recommend modification in their terms prior to execution. Leishman signed the most recent collective-bargaining agreement between the Union and the Company and he affixed his signature to documents extending the prior agreement for an interim period. Virtually all correspond- ence of the Union is signed either by Leishman or by one other designated officer of the Union. Under the practices of the Union, as well as under the terms of the procedure outlined in the Union's collective- bargaining agreement with the Company, the shop steward participates in the initial step of the grievance procedure. As found, Augusta McInnis served at times pertinent as a shop steward of the Union. The most recent collective- bargaining agreement declares that an employee must initially discuss his grievance with his "Shop Steward, Chief Steward and Supervisor." If a grievance is not resolved at the initial level the Union's business agent processes the grievance from that point on. Leishman does not participate in the grievance process.2 I find that at material times Alex Ybarrolaza and A. N. Leishman were agents of the Union and that Augusta McInnis was an agent of the Union for all matters pertaining to grievances. 2. The alleged unlawful conduct a. The union security provision (1) The current agreement The Union has represented the employees of the Company, or its predecessor, since approximately 1967. The initial collective-bargaining agreement covering the Company's employees was one between employers desig- nated as mail haulers, on the one hand, and Local 70, on the other. The agreement had been jointly negotiated by Local 70 and by Teamsters Locals 624 and 980. The agreement covering the Company's employees was effec- tive from March 10, 1968 , to August 31 , 1970. The agreement contained a standard 31-day union -security provision. The current agreement which was executed by the parties on January 21, 1971, and by its terms was effective from September 1, 1970, until August 31, 1971, contained the following provisions: ARTICLE 1. DESIGNATION OF BARGAINING AGENCY AND JURISDICTION. s s * s n Section 2: It shall be a condition of employment that any employee covered by this Agreement shall apply for Union membership immediately upon or by the completion of his second day of employment. Upon attainment of seniority, such employee shall then be eligible for membership in the Union; and upon acceptance shall maintain his membership in good standing as a condition of continued employment. All employees covered by this Agreement must maintain their membership in the Union in good standing as a condition of continued employment. The Employer shall discharge any employee covered by this Agreement within seven (7) days after receipt of written notice from the Union that said employee has not become or remained a member in good standing. ARTICLE VIII. SENIORITY AND LAY-OFFS: Section 1 : Seniority shall not apply to an employee until he shall have been employed by the Employer eighteen (18) days in a thirty (30) day period . Seniority shall commence upon the completion of such period and shall revert to the first day of hire. Upon attainment of seniority an individual shall be consid- ered a regular employee. ARTICLE IX GRIEVANCE PROCEDURE: Section 1 . A grievance by any employee, the Union or the Employer shall be limited to any controversy, complaint or misunderstanding arising as to the interpretation or observance of any of the provisions of this Agreement . Processing of any grievance must be 1 The foregoing is based on the credited testimony of Charles Della z The creidted testimony of Alex Ybarrolaza and documents of record establish the foregoing 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD commenced within thirty (30) days from the time of the event or events giving rise to the grievance. Section 2: Any case pertaining to a discharge or suspension shall be handled as follows: b. Within five (5) days of the occurrence of the alleged cause for discharge or suspension, the Employer shall give written notice by registered mail to the employee and to the Local Union of its decision to discharge or suspend the employee; and such notice shall set forth the reason or reasons for the discharge or suspension. If the Employer fails to give such notice within the specified five (5) day period, the right to dis- charge or suspend for that particular reason shall be waived. The modification in the union-security provision from a 31-day provision to that set forth above was accomplished at the suggestion of Ybarrolaza. Della did not oppose Ybarrolaza's request and the inclusion of the provision in the new agreement was not an obstacle in the negotiations. In explaining the reason for the modification in the union- security provision, Ybarrolaza testified at the hearing that when he assumed his duties with the Union he noted that both the Company and a competitor enterprise with which the Union had a union shop contract had a great number of employees who were not members of the Union. Ybarrolaza testified that by reason of the nature of the mail-hauling operation the contract was difficult to police and extensive efforts were undertaken to persuade the employees to join the Union. Ybarrolaza testified further that in many instances the shop steward and other union officials are not aware of new hires. In further explanation of the reason for seeking to modify the union-security provisions Ybarrolaza testified: ... we wanted something in there to where the Employer would notify his employees at an early stage in the game that Local 70 was their bargaining agent and they should come down and inform the umon that they were coming to work there. In a similar manner, the seniority provision was incorporated in the new agreement. While the predecessor agreement had provided that seniority would not apply to an employee "until he shall have been employed by the Employer for a thirty (30) day period" Ybarrolaza testified that in negotiations with Della it was noted that while some of the employees worked a normal 5-day workweek others worked only 4 days per week, or approximately 21 working days in a 30-day period. Ybarrolaza testified that the 18- day requirement was achieved to "take care of all of the 3 Alex Ybarrolaza testified that after January 17 it was brought to his attention that the union-security provision embodied in the new collective- bargaining agreement was "possibly illegal." Consequently, on March 20 he transmitted by mad to Charles Della certain recommended revisions Consultation and correspondence ensued and on April 27, 1971, the parties executed an amendment to the union security and seniority articles of the current agreement which have the effect of granting new employees the full 30-day period in which to apply for membership in the Union, and of vesting seniority at the completion of 30 days' employment employees that were working there" but that at no time during the negotiations was there any discussion concern- ing the impact of the revised seniority provision upon membership under the union-security provision. Indeed, Ybarrolaza testified that new hires are uniformly given a minimum of 90 days to join the Union.3 (2) The negotiations The negotiations culminating in the current agreement commenced in August 1970 and were conducted by Charles Della and Alex Ybarrolaza. During late August and early September, the Union was also engaged in negotiations with a competitor of the Company, and in light of discussions between Della and Ybarrolaza relating to the practical effect of those negotiations, agreement was achieved on August 27 to extend the then existing collective-bargaining agreement for an additional 30-day period. By letter dated September 1, A. N. Leishman described the terms of the extension as follows: The Union agrees to extend the present agreement for thirty (30) days; and you agreed that any wage, conditions or benefit increases would be made effective September 1, 1970 and would be applied retroactively to that date. Della and Ybarrolaza met in four principal substantive collective-bargaining meetings. The initial meeting was held on August 27 and the other meetings were held in late September, in October, and on November 3.4 At the conclusion of the latter meeting, agreement had been reached on an hourly wage scale of $4.05 and an increase of 5 cents per hour in the amount of incentive pay to be paid qualifying employees. All money items, as such, had been resolved. At the conclusion of the November 3 meeting the only remaining issues related to an owner- operator clause, a floating holiday, supplemental pensions, certain vacation benefits, and the length of employment necessary to attain seniority.5 (3) The November 6 ratification meeting The terms which by the end of the November 3 meeting had been agreed upon were presented to the membership of the Union for ratification on November 6. At the meeting, Ybarrolaza explained the provision of the agreement and stated that the Company had accepted them.6 He recommended that the new agreement be ratified by the membership. The membership voted unanimously to ratify the agreement and Ybarrolaza stated that a "few days" would be required to have the agreement typed up.7 (4) Further terms discussed Subsequent to November 6, Della and Ybarrolaza + I credit Charles Della in this regard and do not credit Alex Ybarrolaza that a fifth meeting was held in December 5 1 rely on the credited testimony of Alex Ybarrolaza with respect to the status of negotiations and the issues remaining on and after November 3 6 Whether the unresolved issues were explained to the membership by Ybarrolaza is not discernible from the record T I rely on the credited testimony of Johnnie Cunningham, John Goble. Ronald Sawyer. and Alex Ybarrolaza in making the foregoing findings WENTCEL, INC. 833 consulted together and achieved agreement on the issues which on November 3 remained unresolved. The owner- operator and vacation pay issues were not settled until mid-January and the final document was thereafter prepared for signature. While each of the issues remaining unresolved after the November 3 meeting was incorporated in the final document, none of these issues were presented to the membership of the Union for ratification.8 (5) The new contract terms implemented In the meantime, in mid-December, Ybarrolaza contact- ed Delia by telephone and informed him that the employees had approved the new wage rates that had been included in the new agreement by way of addendum and had otherwise ratified the agreement that had been negotiated. Ybarrolaza stated that the Union would soon get the new agreement "out" for signature and he added that the Company could put the new wage rates into effect. Subsequently, Della informed Mary Dykstra, the Com- pany's secretary-treasurer and office manager, that the wage agreement had been settled upon. Consequently, on December 29, Dykstra issued payroll checks to the employees covering incentive and retroactive pay from September 1 through December 19. December 19 marked the end of the most recent full payroll period.9 Beginning with the payroll period commencing December 20, Dykstra computed current wages at the new scale. b. The termination of Ronald Sawyer (1) The membership meetings During the course of the negotiations between the Union and the Company, membership meetings were held relating to the negotiations. The initial meeting was held in late October and was featured by membership rejection of a company contract offer and by a strike vote of the membership. Ybarrolaza presided at the meeting and during the course of the meeting there occurred a discussion concerning who among those in attendance would be permitted to vote. Augusta McInnis, a shop steward of the Union, pointed out to Ybarrolaza that several of the drivers employed by the Company, including Sawyer, were not members of the Union. In open meeting Sawyer alluded to the fact that he was a member of Local 287 and that he would like to persuade Local 287 to join the contract negotiations. Ybarrolaza deferred this issue but after the meeting Sawyer and Ybarrolaza spoke concerning it. At that time, Sawyer repeated his desire to have Local 287 join in the negotiations and Ybarrolaza stated that he wished Sawyer would persuade them to do so. Ybarrolaza stated, however, that Local 287 had been contacted previously and had not joined the negotiations. Sawyer stated that he would like to defer joining Local 70 until he determined whether or not Local 287 would participate in the contract negotiations. Sawyer subsequently contacted representatives of Local 287 in an effort to persuade them to join in the contract negotiations but nothing resulted from this effort. The issue of membership in Local 70 was again raised at the meeting of November 6, which, as found, featured a contract ratification vote on the part of the membership of the Union. Ybarrolaza presided at the meeting and Sawyer was in attendance. Other nonmembers of Local 287 also attended and it was announced that nonmembers present at the meeting could participate in the voting. However, Ybarrolaza expressed a desire to speak separately with the nonmembers at the termination of the meeting. He did so and in due course spoke with Sawyer. In speaking to Sawyer, Ybarrolaza stated that it was Sawyer's obligation to join Local 70. Sawyer stated that he preferred to remain a member of Local 287. Ybarrolaza answered that Local 287 did not want to participate in the contract and that, unless Local 287 became a party to the agreement, it would not be able to represent Sawyer. In this context, Ybarrolaza stated that "one of these morn- ings" Sawyer would "probably wake up and find himself without a job" in that Sawyer's employer had told him that Sawyer "was messing up on the job." Ybarrolaza added that Sawyer would, in that event, " go running" to Local 287 and that that local would have nothing to do with him. Ybarrolaza also asserted that because Local 70 was the only union that could afford him "proper protection" under the contract Sawyer should belong to Local 70.10 (2) Ybarrolaza and Della converse During the course of contract negotiations which transpired in October and November, on several occasions Della mentioned to Ybarrolaza that he had been the recipient of complaints from the postal service concerning the job performance of Sawyer. Della complained that the postal service would not put the complaints "in wasting." Then, between mid-December or late December, Della again spoke with Ybarrolaza concerning Sawyer. Della informed Ybarrolaza, in substance, that Sawyer was not performing his work in a satisfactory manner and asked Ybarrolaza the procedure to be followed under the contract to effect his termination. During the course of the conversation, it was noted that Sawyer was a member of Local 287 and Della observed that there was still talk of 8 Alex Ybarrolaza so testified 9 Dykstra testified that on December 29 checks covering the payroll period ending December 19 were issued pursuant to normal practice and that the retroactive pay due under the terms of the new agreement was paid on December 29 10 All of the foregoing is based on a composite of the credited testimony of Alex Ybarrolaza and Ronald Sawyer I specifically credit the testimony of Sawyer to the effect that, in open meeting in October, he mentioned his membership in Local 287 and his desire to have that local participate in the contract negotiations I rely on his testimony and that of Ybarrolaza in concluding that the further substantive discussions pertaining to this were deferred until after the meeting in October I rely specifically on the testimony of Ybarrolaza in concluding that Sawyer's reference to the possible adverse effects of Sawyer's membership in Local 287 to the exclusion of Local 70, as found above , transpired at a meeting held on November 6 Ybarrolaza testified convincingly concerning this chronology and his testimony gains support from that of John Goble who attended only the November 6 meeting The testimony of Sawyer was less convincing insofar as it fixed the precise date of this occurrence Moreover, I do not credit the testimony of Sawyer to the effect that Ybarrolaza stated in terms that if he , Sawyer, "didn't join" Local 70 he "might wake up on the wrong side of the bed one morning " and would be fired I find Ybarrolaza' version more credible and conclude that Sawyer's testimony is inaccurate with respect to the actual content of Ybarrolaza's remarks on this occasion 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 287 becoming a party to the contract. Ybarrolaza noted that Sawyer was not a member of Local 70 and that, in the event of Sawyer's termination, Local 70 would not represent Sawyer if Sawyer sought to have Local 287 represent him Ybarrolaza added that, under the circum- stances, because Sawyer was not a member of Local 70, Della was free to do what he wished with respect to the termination of Sawyer. Ybarrolaza also noted, during the course of the conversation, that two employees of the company, Johnson and Goble, were members of Local 287 and had not become members of Local 70. Ybarrolaza stated that, if they did not transfer their membership to Local 70, the Union would have to request Della to terminate them." (3) Della instructs Cunningham On December 29, Della spoke with Cunningham and informed Cunningham of his previous telephone conversa- tion with Ybarrolaza. He also informed Cunningham that Ybarrolaza had called to his attention the fact that Sawyer and some other employees of the Company had not transferred their membership to Local 70 and that, accordingly, Local 70 could not represent them. Della thereupon instructed Cunningham to terminate Sawyer when he reported to work. Della explained to Cunningham that because Sawyer had failed to transfer his membership to Local 70 and because Sawyer's work attitude toward the Company and toward the postal service had not been satisfactory, the termination should be effectuated.i2 (4) Cunningham terminates Sawyer On the morning of December 30, Sawyer conversed with Cunningham by telephone. Sawyer initiated the call and in speaking with Cunningham informed Cunningham that he had had car trouble and did not know whether he would be able to get to work on time. He suggested that Cunning- ham should call a replacement. Cunningham responded that Sawyer should not "bother" because he was being terminated. Sawyer asked Cunningham the reason for his termination and Cunningham responded that this termina- 11 The foregoing is based on a composite of the credited testimony of Charles Della and Alex Ybarrolaza I credit Ybarrolaza to the effect that the foregoing conversation transpired prior to December 29 Additionally, while I place reliance on the testimony of Ybarrolaza concerning the conversa- tion, I am convinced that, in recounting his participation in the conversation, Ybarrolaza tended to cast his comments in a favorable light and to attribute to himself a degree of detachment and objectivity with respect to Sawyer's nonmembership in Local 70 and the role which Local 70 would play in any grievance proceeding arising from Sawyer's termination, not actually warranted Thus, I credit the testimony of Charles Della in finding that, during the course of the conversation, Ybarrolaza, in words and substance, conveyed to Della that, in the event of Sawyer's termination, ;Sawyer would, by reason of his membership in Local 287 and nonmember- ship in Local 70, have to look to Local 287 for representation Moreover, while I credit the testimony of Della and Ybarrolaza to the effect that at no time during the conversation did Ybarrolaza , in specific terms , demand Sawyer's termination because of his nonmembership in Local 70, he did communicate to Della, as Della testified, that in the circumstances, Della was free to take whatever action he deemed justified without fear of intervention on the part of Local 70 12 The credited testimony of Johnnie Cunningham establishes the foregoing I credit only that portion of Della's testimony as is consistent with the above factual findings tion was due to the fact that he had not transferred his membership to Local 70 and that his work had not been satisfactory.13 A short time later, Sawyer again telephoned Cunning- ham. He informed Cunningham that he would be able "to make it in to work" and would do so. Cunningham responded to the effect that Sawyer could come in if he desired to do so but that his check would not be ready for "a little while." The conversation ended on this note.14 No written notice setting forth the basis for his termination was served on Sawyer by the Company. (5) Sawyer's employment and union affiliation Ronald Sawyer was employed by the Company as a driver on August 1, 1970. Unitl his termination on December 30, 1970, he hauled mail by truck and loaded and unloaded mail. At the time of his employment and at all material times Sawyer was a member of Local 287. He was at no time a member of Local 70. On March 17, 1971, Sawyer returned to the Company's employ and was employed by the Company at the time of the hearing. When Sawyer was initially employed by the Company, Cunningham instructed Sawyer that the Company's employees were represented by Local 70 and that if he belonged to any other union he should transfer his membership.15 Ronald Sawyer testified that during his term of employment he understood he had an obligation to join Local 70. c. The posttermination events (1) McInnis consults with management At the conclusion of his second conversation with Cunningham on December 30, Sawyer went directly to the yard. Upon reaching the yard, he spoke again with Cunningham and inquired whether his termination was still effective. Cunningham said that it was. Sawyer then placed a telephone call from a pay phone at the yard and spoke with Augusta McInnis, shop steward of the Union. Sawyer outlined for McInnis the events which had Della testified that he had received complaints from Sawyers's supervi- sors concerning Sawyer's work He further testified that he had heard rumors to the effect that Sawyer intended to call in sick on December 31 and that accordingly, he instructed Cunningham to terminate Sawyer if Sawyer did , in fact, call in for the purpose of advising Cunningham that he would not be available for his normal shift assignment With respect to his conversation with Cunningham , Della testified that he was "hot under the collar" and that, accordingly , he didn't "recall what the conversation was " between them Della did testify, however, that with respect to the conversation with Cunningham , " I think I instructed Mr Cunningham to go-we were going to get rid of Mr. Sawyer. And I called the union to find out what the rules and regulations were concerning that " I am convinced Della's testimony concerning Sawyer's anticipated absence due to illness was a rationalized afterthought and that Della did not instruct Cunningham concerning the matter 4 I credit the testimony of Cunningham in finding that Sawyer was informed his work had not been satisfactory is Sawyer testified that he had experienced battery trouble with his automobile and after first talking with Cunningham received assistance in starting his own automobile and, accordingly . placed the second telephone call to Cunningham ", Johnnie Cunningham testified he followed the practice of so informing all new hires WENTCEL, INC. 835 transpired that morning. Accordingly, in mid-morning, McInnis came to the yard and spoke with Sawyer and Cunningham. McInnis asked Cunningham the reason for Sawyer's termination and Cunningham responded that Sawyer had been terminated because he had not trans- ferred his membership to Local 70 and for "other reasons." Thereupon, McInnis asked Cunningham whether, if Sawyer joined Local 70 and "the other problems were worked out," he could stay on the job. Cunningham responded that there would be no possib=lity of this, Sawyer asked Cunningham the reason for this and Cunningham stated that he did not have to tell Sawyer and did not elaborate further. McInnis then asked Cunning- ham if there had been any 5500's filed against Sawyer and Cunningham stated that there had been none.16 Cunning- ham did assert, however, that there had been telephonic complaints but that no written reports had been filed. The Company has a policy for automatic termination of any driver who receives three form 5500's.17 From this point in the conversation, Sawyer, McInnis, and Cunningham walked into the yard. McInnis asked Cunningham the principal reason for Sawyer's termina- tion. At this moment, Della joined the conversation and Della observed that he had had a telephone conversation with Ybarrolaza concerning Sawyer and that if Sawyer's termination had not resulted from his failure to transfer to Local 70 it would have been for "something else." When asked by Sawyer to explain the meaning of this statement, Della responded that he meant Sawyer's "attitude." Della did not elaborate. McInnis noted that if the Company terminated Sawyer that it was going to take similar action against employee Goble. Della responded, in substance, that he would take action in that regard. Thereafter, Sawyer and McInnis spoke together. McIn- nis informed Sawyer that because the termination had been "approved" by Ybarrolaza, he did not think that there was "much that he could do." McInnis additionally stated, however, that, although he did not have a copy of the collective-bargaining agreement in his possession, he thought that prior to his termination Sawyer should have been entitled to "some sort of statement" either from the Company or the Union giving him time to effectuate his transfer to Local 70.18 McInnis informed Sawyer that he would speak with Ybarrolaza and let him know the result of the conversation. During the 6-week period that followed, McInnis did not contact Sawyer. (2) Sawyer contacts Ybarrolaza Directly following his conversation with McInnis, Sawyer made efforts to contact Ybarrolaza by telephone. 16 Under postal service procedures, written complaints against a driver are made through the device of a form letter or, if the complaint relates to an irregularity deemed substantial, through the filing of a form 5500 Form 5500 complaints may involve a lack of punctuality on the part of the driver in reaching or departing from a post office location, failing to have truck doors locked upon approaching the post office, and mixing or improperly loading the mail If a form 5500 complaint is filed both the contract hauler and the employee cited are required to separately respond in writing to the charge, 17 Charles Della testified that as a consequence of the reluctance of the postal service foremen to file form 5500 complaints against drivers, telephonic complaints are frequently lodged with the company supervisors He was unable to reach him. Accordingly, he went to the offices of Local 287 and spoke with Fred Hoffman, secretary-treasurer of the local. Sawyer described what had transpired and Hoffman stated, in substance, that he felt that under the collective-bargaining agreement between the Company and the Union Sawyer was entitled to written notice prior to termination. During the conversation, Hoffman also stated that John Goble had contacted him. In this regard Hoffman asserted that Goble informed him that he had been called and had been instructed to transfer into Local 70. Hoffman stated that he had advised Goble to proceed to effectuate his transfer to Local 70 so that he would not be terminated. After speaking with Hoffman, Sawyer went to the unemployment office and filed for unemployment com- pensation. (3) Goble obtains Local 70 clearance In the meantime, at approximately II a.m., on the morning of December 30, John Goble received a telephone call from Cunningham. Cunningham asked Goble if he were a member of Local 70. Goble stated that he was not. Thereupon, Cunningham instructed him to go to the office of Local 70 immediately and transfer his membership. He briefly outlined for Goble the procedure to be followed and stated that if he did not get clearance from Local 70 he would not be able to work that night. After conversing with Cunningham, Goble went to the office of Local 287 and spoke with Hoffman. In substance, Hoffman conceded the necessity, in the circumstances, of Goble transferring his membership. Thereafter, Goble went to the headquarters of Local 70 and spoke with the girl at the reception window. Goble informed the girl to whom he spoke that he was a member of Local 287 and understood that it was necessary for him to obtain clearance from Local 70. The girl answered in the affirmative and, thereupon, picked up a piece of paper. She asked, "Which one are you?" Goble identified himself by name and he was given forms to complete and execute effectuating his transfer from Local 287 to Local 70. During the conversation, the girl at the reception window to whom he spoke indicated that the piece of paper to which she referred contained three names. After being instructed by the girl to whom he spoke that the completion of the application and other papers was all that was necessary to permit him to work, Goble went to the yard and spoke with Cunningham. He informed Cunningham that he had obtained a clearance from Local concerning actionable offenses John Goble testified, however, that he had received two or three form 5500 complaints in an 18-month period [r The foregoing is based primarily on the credited testimony of Ronald Sawyer I have considered also the testimony of Johnnie Cunningham concerning this incident Cunningham could not recall McInnis asking Della the reason for Sawyer's termination Similarly. Cunningham did not recall Mclnnts saying anything to the effect that Ybarrolaza had given his approval of the termination However, on cross-examination, Cunningham conceded that these aspects of the conversation could have transpired when, as Sawyer testified, Della joined the conversation 1. accordingly. find that Sawyer is accurate in his description of the events and that Cunningham's testimony on this score is not as reliable as that of Sawyer. 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 70. His transfer from Local 287 to Local 70 was never accomplished.19 (4) Sawyer contacts Local 70 On or about January 6, Sawyer contacted Ybarrolaza by telephone and informed Ybarrolaza that he had been terminated. Ybarrolaza stated that he was aware of this and noted that there was nothing that he could do about the matter since Sawyer was not a member of Local 70. Sawyer, thereupon, asked Ybarrolaza whether or not he, Sawyer, had not been entitled to some sort of written notice either from the Union or from the Company. Ybarrolaza tersely responded and then terminated the conversation by hanging up the telephone. Thereafter, within the next few days, Sawyer conferred with A. N. Leishman at the offices of Local 70. Sawyer explained the events surrounding his termination and requested that Leishman intercede on his behalf. Leishman declined to do so, stating that Sawyer was not a member of Local 70 and that the matter was one for Local 287 to handle. In late January, Sawyer again contacted Leishman and requested that he be supplied with a copy of the collective- bargaining agreement between the Union and the Compa- ny. Leishman stated that he was not entitled to a copy. Sawyer then contacted Ybarrolaza. Ybarrolaza similarly declined to make a copy of the contract available to Sawyer, asserting that Sawyer was not a "dues paying" member of Local 70. Soon thereafter, during the first week of February, Sawyer, in possession of a copy of the Act, went to the offices of Local 70. Sawyer spoke initially with an office secretary and subsequently with Leishman. Invoking the provisions of the Act, Sawyer asserted, both to the secretary and to Leishman, that he was entitled to a copy of the collective-bargaining agreement. The secretary declined to provide him with a copy asserting that this was a matter for an official of the Union to handle. Sawyer, thereupon, spoke with Leishman and during an office conference punctuated by a telephone conversation be- tween Leishman and an official of the Labor Department, whom Sawyer had earlier consulted, Leishman agreed to supply Sawyer with a copy of the collective-bargaining agreement. During the office conference, but prior to the conversation between Leishman and the official of the Labor Department, Leishman had again declined to provide Sawyer with a copy of the collective-bargaining agreement. However, in ultimately agreeing to provide Sawyer with a copy of the agreement, Leishman observed that he would have nothing further to do with the matter and that Sawyer was going to have to "take the matter back to his own local 287." Leishman reiterated to Sawyer as the conference terminated that it was up to Local 287 "to do something about" Sawyer's termination.20 19 The foregoing is based on the credited testimony of John Goble Goble also testified that he attended the November 1970 meeting at which the question of contract ratification was discussed He further testified credibly that during the course of the meeting his nonmembership in Local 70 was noted and that the shop steward asked him why he had not transferred his membership Goble responded he had not done so because the dues were cheaper in Local 287 The shop steward stated that he would eventually have to effectuate a transfer 20 1 base the foregoing on the credited testimony of Ronald Sawyer Sawyer's testimony concerning this series of contacts was convincing and I After obtaining a copy of the collective-bargaining agreement, Sawyer met with Fred Hoffman of Local 287. Subsequent to that meeting, Sawyer filed the instant charges, dated February 23. d. The alleged basis for the termination (1) The record entries The compensation record for Ronald Sawyer maintained by the Company and prepared by Mary Dykstra contained an entry revealing the date of Sawyer's termination as December 30. It also contained the related handwritten entry, "had called in sick" Additionally, entered upon the compensation record in the space provided for comments relating to the reason for termination Dykstra had made the following entry, "unsatisfactory work-nonunion." This latter entry by Dykstra followed a previous entry which had been partially crossed out or obscured. Dykstra testified after examining the initial entry that she believed that the entry which had been, in effect, deleted read "would not join Local 70 union." In explanation, Dykstra testified that the deletion had been made because Cunningham had given her a "definite explanation" with respect to the termination of Sawyer. Dykstra surmised that the initial entry was made in the normal course of business by her within a few days of the termination. She further surmised that she was initially told that Sawyer was terminated for not joining Local 70. In her testimony, Dykstra further indicated the belief that the second or final entry was made in the month of January after she received a routine inquiry relating to Sawyer's application for unemployment compensation. At that juncture, Dykstra made inquiry to Cunningham, who supplied her with the explanation which became the second entry upon the compensation record relating to the reason for the termination of Sawyer. Dykstra further testified, in substance, that terminations at the Company are infrequent and that in her experience the Union had always been aware of them when termina- tions occur. Dykstra testified that she did not undertake to contact or otherwise notify the Union with respect to the termination of Sawyer, because she assumed that the Union was aware of the termination. Dykstra additionally testified that because the employees of the Company are represented by a union "it has to be verified definitely [on the records] as to the reasons that they [employees] are terminated." (2) Post office complaints Charles Della testified that during the course of Sawyer's employment he received numerous telephonic complaints from post office supervisors concerning Sawyer's work. credit him Alex Ybarrolaza denies having conversed directly with Sawyer at any time during the month of January I find that he is in error in this regard Additionally, I do not accept the testimony of Ybarrolaza to the effect that in early January during a grievance hearing at the offices of the Union he was interrupted by the secretary and informed that Sawyer was seeking a copy of the contract and was creating "a bit of fuss" Although Ybarrolaza asserts that he informed the secretary that a copy of the agreement could not be provided to Sawyer because the agreement had not been completed and signed, I am not convinced that the Union's declination was articulated in those terms WENTCEL, INC. 837 Della conceded that no written complaints concerning Sawyer had been received from the post office. Specifically, Della testified that in early December he observed Sawyer back his truck up to the docks at the post office facility located at Seventh and Peralta in Oakland, California, and abandon the truck. Della testified that he approached Sawyer and asked him why he was leaving the truck and Sawyer responded that he was going to obtain a drink of water or go to the restroom. Della testified that it is against post office regulations for employees of contract haulers to enter the building or to mingle with the post office employees. Additionally, Della testified that drivers are required to remain with their trucks at all times and to observe an electronic light system which by flashing from green to red indicates when mail is either to be loaded from the truck on to the conveyor belt system or to be withheld. Della testified that on this occasion he instructed Sawyer to remain with the truck and not to enter the post office building. Della testified that on this occasion the post office supervisor to whom he spoke stated that Sawyer had been guilty of leaving his truck on several occasions. Cunningham testified that between October and mid- December he received several complaints concerning Sawyer. He testified that while Sawyer's work was satisfactory during the first month of his employment, the complaints began during October. Specifically, Cunningham testified that on an occasion in San Rafael a supervisor at that facility asked Cunningham to caution Sawyer against throwing mail sacks in a careless manner and failing to remain with his truck. In this regard, Cunningham testified that the supervisor stated that Sawyer had almost hit employees with mail sacks and that he would abandon his truck for intervals at the dock. According to the supervisor, Sawyer would not return to the truck until after it had been opened and two or three tiers of mail had been unloaded. With less specificity, Cunningham also testified that on "several occasions" supervisors at the Santa Rosa post office had asked Cunningham to "caution" or "control" Sawyer in his attitude toward employees of the post office department and to obtain Sawyer's better cooperation with the employees. With respect to complaints received from Mountain View postal supervision, Cunningham testified that on one occasion he was asked to caution Sawyer to remain with his truck and not to go to the post office platform or inside the post office building. Additionally Mountain View supervision had informed Cunningham that Sawyer was not cooperating in performing the unloading function and in picking up empty sacks and equipment for return to the Oakland post office Moreover, Cunningham testified that he had been informed by Mountain View supervisors of a complaint lodged by a woman employee concerning Sawyer's refusal to assist her in pulling heavy sacks containing magazines. According to the complaint of the female employee, Sawyer was leaving the heavy sacks for her to handle while he would handle the lighter ones. Sawyer conceded that he had been the recipient of complaints concerning his unloading procedures at Moun- tain View and at Oakland, as well as his lack of cooperation with supervision in Oakland in failing to move his truck as requested. With respect to the latter instance, Sawyer testified that he was on his lunch hour and was not required to follow the instructions of the supervisor. Della requested that he cooperate. Additionally, Sawyer testified that he requested Cun- ningham to consider him for assignment to a run to Santa Rosa. He was told by Cunningham that his request would be declined because he had received "complaints" from Santa Rosa about Sawyer. Finally, Sawyer testified that he had been reprimanded by supervision from the post office department concerning an alleged lack of punctuality in fulfilling his scheduled run. Sawyer testified, however, that his tardiness was attributable to a rescheduling which was not conveyed to him. He testified further that a notice concerning this incident was posted on the board by Della or Cunningham. Conclusions In agreement with the General Counsel, I find that the Company and the Union violated the Act in the manner alleged in the complaint , as amended. Initially, I find upon established precedent that the Company violated Section 8(a)(1), (2), and (3) of the Act and the Union violated Section 8(b)(1)(A) and (2) of the Act by entering into and maintaining a collective-bargain- ing agreement containing a union-security provision which, construed separately or together with the related seniority provision of the contract, did not allow the mandatory 30- day grace period for attaining union membership.21 The Act has been authoritatively construed as not requiring the signification of advance intent on the part of new employees to perfect union membership , and it is, accordingly, unlawful for the parties to enter into and maintain a union-security arrangement requiring employ- ees to either apply for union membership in less than the mandatory 30-day grace period or to attain that status.22 Moreover, separate and apart from the illegality of the union-security provision of the contract , the interrelation- ship of the union-security and seniority provisions of the agreement herein is such as to have the possible operative effect of requiring membership in the union to be perfected in less than the 30-day period provided by the Act. This is so because new employees are required by the agreement to apply for union membership upon completion of the second day of employment and because, at the option and discretion of the Union , an employee is acceptable into membership upon attaining seniority which accrues at the completion of 18 days' employment . The record reveals that a segment of the unit employees work a 5-day workweek . It is thus highly probable, if not totally predictable, that seniority would accrue to a new employee 21 See, e g , Red Star Express Lines of Auburn, Inc, 93 NLRB 127, affd 22 Argo Steel Construction Company, 122 NLRB 1077, 1082, enfd in 196 F 2d 78 (C A 2), Imperial Wire Company, Inc, 118 NLRB 775, 777, pertinent part 289 F.2d 491 (C A. 6), Philadelphia Sheraton Corporation, 136 Gottfried Baking Company, Inc, 103 NLRB 227, 244, 1 Oscherwitz and Sons, NLRB 888, 889, affd 320 F 2d 254 (C A 3) 130 NLRB 1078, 1079. 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employed upon such a work schedule before the expiration of a 30-day period and that said employee would be accepted into membership by the Union in less than 30 days. Accordingly, I find the embodiment of the aforesaid scheme in the collective-bargaining agreement of the parties deprives employees of the right guaranteed to them under the Act to be free to engage or to refrain from engaging in collective-bargaining activities, except as permitted by the proviso contained in Section 8(a)(3), and was, accordingly, violative of that section and of Section 8(b)(2). Moreover, the same conduct of the parties had, I find, the effect of coercing and restraining employees in violation of Section 8(b)(1)(A) and Section 8(a)(1) of the Act.23 The conduct of the parties in entering into and maintaining the aforesaid unlawful union-security arrange- ment finds no refuge in the savings clause of the agreement because the clause is not one which endeavors specifically to modify the union-security provision but serves merely to postpone until future litigation the determination of the legality of any unspecified provision of the contract.24 Moreover, the unlawful effect of the conduct of the parties is not alleviated in the circumstances here defined by the asserted failure of the contracting parties to give effect to the tainted provisions of the agreement 25 Applicable here is the observation of the Board in the Pantlind case: ... there is no evidence-nor is a claim asserted- that this deviation [from compelling employees to loin the union within 30 days of hire] from the writing resulted from any modifying agreement between the parties. Rather, it appears that the Respondent Em- ployer unilaterally followed a practice which did not accord with an unambiguous writing, although it was purportedly pursuant to that writing. While the Union did not protest the practice, that itself does not constitute an agreement to amend. [Citations omitted.] In the instant case, the evidence of record relating to the purposes and intentions of the parties in modifying the previously lawful union-security provisions reveals not an amendatory attitude, but a disposition toward a militant policing and enforcement of the union-security arrange- ment. I additionally find that the terms of the collective- bargaining agreement containing the unlawful union-secu- rity provisions were in effect on December 30 when Ronald Sawyer was terminated and that his termination was violative of Section 8(a)(1) and (3) and Section 8(b)(I)(A) and (2) of the Act. My conclusion that the agreement was in effect at the time of Sawyer's termination is based on the finding, which I make, that prior to December 30 the agreement had become legally binding upon the parties by virtue of agreement achieved at the bargaining table on and before November 3 and as a result of the ratifying vote of the membership that transpired on November 6. Subsequent to November 6, but prior to December 30, a meeting of the minds was achieved between Della and Ybarrolaza on subsidiary issues which had not been resolved prior to December 6 and as a consequence thereof, as of December 30, when Sawyer was terminated, only two subsidiary provisions of the agree- ment were left to be resolved. Beyond this only the ministerial act of affixing signatures to the document embodying the agreement of the parties remained. The subsidiary issued upon which agreement was achieved after November 6 were not submitted by the Union to the membership for ratification and there is no showing in the record that any term agreed on by the parties prior to November 6 was modified or deleted. In contradistinction there is conclusive record evidence establishing that the wage provisions of the new agreement were given effect prior to December 30 and there is reason enough for concluding that, as of that date, neither contracting party could have refused to execute the agreement then under preparation for printing without breaching its bargaining duty and incurring legal liability. Stated otherwise, it is reasonably apparent from the record that the two bargaining issues upon which Della and Ybarrolaza reached accord in January were not at any time treated by them as conditions precedent to the consumma- tion of an agreement. Concomitantly, there is scant basis for concluding that absent agreement on those provisions either party would have sought to abrogate the terms which had been ratified by the membership of the Union, or to rescind the new wage terms which were manifestly operative. Upon the foregoing considerations, I conclude and find that the Company and the Union agreed to be bound by the product of their negotiations which transpired on and before November 3; that the mutuality of their assent was conclusively manifested by their conduct, including the Union's ratification of the terms and the Company's implementation of the wage provisions; that there existed on and before December 30 corresponding and correlative obligations on the part of each contracting party to honor and abide by all of the terms of the agreement which had been to that point in time negotiated; that the remaining act of affixing signatures was ministerial in character; and that the two minor provisions agreed to by the parties after December 30 were supplemental in nature and were not considered by the parties during the course of the negotiations as prerequisites to a binding collective-bar- gaining agreement.26 With the terms of the new agreement binding upon the parties, Ronald Sawyer was terminated by the Company. The evidence requires a conclusion that Sawyer was terminated, at least in part, because he failed to transfer his membership to Local 70. The record maintained by the Company as well as the explanation proffered by Cunning- ham leaves little room for doubt that this failure on Sawyer's part was a moving cause in his termination, and that his deficiencies as an employee were subordinate to 23 In the described circumstances, it is unnecessary to determine whether unit employees working on the basis of a 4-day workweek would similarly be affected in their statutory rights It is sufficient that the collective- bargaining agreement would have this impact upon some of the employees whose terms and conditions of employment are governed by the agreement in question Cf Ferro Stamping and Manufacturing Company, 93 NLRB 1459 24 See N L R B v News Syndicate, 365 U S 695, Perry Coal v N L R B, 284 F 2d 910 (C A 7), Building Material Teamsters v. N LR B, 275 F.2d 909 (C A. 2). 25 Pantlnd Hotel Company, 175 NLRB 815 26 See 17 Am Jur 2d §§ 18-30. WENTCEL, INC. the principal consideration relating to Sawyer's nonmem- bership in the Union. There is evidence sufficient to establish that Sawyer was not faultless in the performance of his work, and the Act makes no inroads upon the freedom of an employer to terminate an inefficient employee for cause. However, the Company's explanation that Sawyer was an indifferent and inefficient employee whose conduct had generated complaints is not so well documented as to establish that Sawyer's work deficiencies constituted the sole moving cause of his termination. In any event these indications of shortcomings on Sawyer's part may not stand as authoritative explanation in the face of preponderating evidence to the contrary evolving as it were, from official company sources. I thus reject as a pretext the Company's explanation advanced at the hearing that Sawyer was terminated solely for cause. I additionally find that the General Counsel adduced evidence requiring a finding that the Union caused the Company to terminate Sawyer's employment. There is, to be certain, no direct evidence that Ybarrolaza or any official of the Union demanded the Company to terminate Sawyer. There is, however, convincing evidence that in the period proximate to Sawyer's discharge Ybarrolaza on behalf of the Union was seeking to more effectively police the union-security provisions of the collective-bargaining agreement. To this end, as found, Ybarrolaza had been successful in securing company acquiescence in union- security provisions which were unlawful under the Act. The agreement containing these unlawful provisions was in effect when Sawyer was terminated. In coordination with the emergence of these unlawful provisions, and just prior to Sawyer's termination, Ybarrolaza spoke with Della concerning three company employees who had not transferred membership and, for his part, within a period of a few days Della instructed his principal supervisor, Cunningham, to terminate Sawyer, giving as one reason Sawyer's failure to transfer to Local 70. Then in a virtually contemporaneous manner, on the very day of Sawyer's termination, at the instructions of Cunningham, another nonmember of Local 70, employee Goble, went to the Local 70 union hall and completed the necessary steps to transfer to and obtain work clearance from Local 70. In pursuing this course of action, Goble learned that his visit had been anticipated by the union functionaries and that his name was one of three on the list of employees so expected. In the circumstances, and considering both the previous efforts of Ybarrolaza to persuade Sawyer to transfer to Local 70, and the attitude of indifference, if not hostility, manifested by Ybarrolaza and other officials of the Union to Sawyer after his dicharge, it would strain credulity to find that the Union had remained neutral in the matter and had played no role in bringing about Sawyer's termination. It is, rather, imperative to find that Ybarrolaza was bringing his policing efforts to full focus upon the three members of Local 287 who had not transferred to Local 70; that Sawyer was among the three with respect to whom the Union was acting; and that the 27 N L R B v Jarka Corporation, 198 F 2d 618 , 621 (C A 3) 28 Id 29 N L R B v Local 776, Theatrical Stage Employees & Moving Picture Machine Operators [Cascade Pictures Co of California], 303 F 2d 513 (C A 9), enfg 124 NLRB 842 839 Company acted with respect to both Sawyer and Goble in light of union instructions. It is essentially a question of fact in each case what has caused an employer to discriminate unlawfully against organized or unorganized workers.27 "This relationship of cause and effect, the essential feature of Section 8(b)(2), can exist as well where an inducing communication is in terms courteous or even precatory as where it is rude and demanding." 28 Direct proof of union complicity in an unlawful termination is not essential if the sum of the evidence supports the finding that the employer acted upon the demand of the union.29 I am not persuaded that this is a case wherein an employer for cause decided to terminate a unit employee and the union forewarned merely washed its hands of the matter. Despite Della's disclaimers which were not credible and which were designed to give credence to his own assertion that the termination of Sawyer was one wholly for cause, I am convinced that the Union's persuasive efforts held partial sway in Sawyer's termination. Accordingly, I find that the Union caused or attempted to cause the Company to terminate Ronald Sawyer within the meaning of Section 8(b)(2) of the Act, construed in light of Section 8(a)(3) of the Act. Because I find that the moving cause in the termination of Sawyer was his failure to transfer his membership to Local 70, in implementation of the unlawful union-secunty provisions contained in the new collective-bargaining agreement between the Company and the Union, which, as found, was in effect at the time of the Union's demand and Sawyer's actual termination, I find that neither Respon- dent finds defense to its actions deriving merely from the fact that Sawyer had been in the employ of the Company for a period in excess of the 30-day statutory grace period. A collective-bargaining agreement which contains an unlawful union-security provision may not serve as a defense to a discharge.30 It is also clear that, as the union- security clause did not comply with Section 8(a)(3) of the Act, Sawyer's termination could not be predicated on that clause.31 Rather, his termination for failing to transfer his membership to Local 70 violated Section 8(b)(2) and Section 8(a)(3) of the Act.32 Moreover, in agreement with the General Counsel, I find that the Union violated Section 8(b)(1)(A) of the Act by failing and refusing to assist Sawyer in his attempt to press a grievance relating to the failure of the Company to serve written notice upon him 5 days prior to his discharge as required by the collective-bargaining agreement to which the Company and the Union are parties.33 In Vaca v. Sipes, 368 U.S. 171, the United States Supreme Court stated: It is now well-established that, as the exclusive bargaining representative of the employees in [the] bargaining unit, the Union had a statutory duty fairly to represent all of those employees, both in its collective bargaining . . . and in its enforcement of the resulting collective-bargaining agreement . . . . Under this doctrine, the exclusive agent's authority to repre- 30 Panihnd Hotel Company, 175 NLRB 815. ii id "i2 Id 33 The predecessor agreement between the Company and the Union contains an identical requirement 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with good faith and honesty and to avoid arbitrary conduct ... . It has long been Board doctrine that a union violates Section 8(b)(1)(A) of the Act by failing to represent all employees in the bargaining unit impartially, and by discriminating against umt employees in the acceptance and processing of grievances on which its aid has been requested by employees it represents34 This duty imposed upon a union under the Act extends to grievances of discharged unit employees seeking to grieve their termina- tion35 and proscribes union refusal based on the lack of membership on the part of the grievance.36 It follows from the foregoing precedent and from the evidence of record that the Union here violated Section 8(b)(1)(A) of the Act. Thus, evidence reveals that the Union refused to in any manner assist, process, or represent Sawyer in pressing his grievance arising from his discharge and relating to the failure of the Company to advise him in advance in writing as required by the contract. Moreover, the evidence of record establishes that the Union's reason and motivation for refusing to assist Sawyer was his membership in Local 287 and his lack of membership in Local 70. Contrary to the Union, I do not perceive any inconsis- tency in the theory of the General Counsel in alleging union complicity in Sawyer's termination while at the same time charging a breach of statutory duty on the part of the Union in refusing to assist Sawyer in his efforts to grieve his discharge. The Union adduced no evidence suggesting it had a colorable basis for refusing to process Sawyer's grievance and it is apparent in seeking to grieve his discharge Sawyer was utilizing the grievance machinery of the collective-bargaining agreement which the Union had negotiated on behalf of all unit employees. In a circum- stance such as that here prevailing wherein the Union by its own conduct has rendered itself vulnerable to charges of unlawful conduct and has no objective ground for withholding its services, its plea of self-prosecution must fail on principles of estoppel. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Company set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 34 Peerless Tool and Engineering Company, III NLRB 853, enfd sub nom NLRB v Die and Tool Makers Lodge No 113, I A M, 231 F 2d 298 (C A 7), cert denied 352 U S 833, District 50, Local No 13366, United Mine Workers of America (Stubmty Green Corporation), 117 NLRB 648, cf Selwyn Shoe Manufacturing Corporation, et al, 172 NLRB No 81 (TXD), and case cited therein , Coca Cola Bottling Corporation, 153 NLRB 1425, 1435-36, The Youngstown Cartage Company, 146 NLRB 305, 308-309 as Local 485, International Union of Electrical Radio & Machine Workers, AFL-GO (Automotive Plating Corp), 170 NLRB 1234, 183 NLRB No 131 V. THE REMEDY Having found that he Respondents have engaged in certain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Company unlawfully terminated the employment of Ronald Sawyer in violation of Section 8(a)(3) and (1) of the Act, and that the Union violated Section 8(b)(2) and Section 8(b)(1)(A) by unlawfully causing or attempting to cause Sawyer's termination, I shall order that Respondents cease and desist from such unlawful conduct and post appropriate notices. I shall further order that Respondents, jointly and severally, make Ronald Sawyer whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of money equal to that which he would have earned as wages from December 30, 1970, to March 17, 1971, the date of Sawyer's reinstatement, less his net earnings during said period, in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest in accordance with the policy of the Board as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. I shall order the Union to notify Ronald Sawyer in wasting, with a copy to the Company, that it has no objection to his continued employment consistent with the union-security provisions of the collective-bargaining agreement, as presently modified. Finding that the Respondents are jointly and severally liable for backpay and being of the opinion that in the circumstances of this case Ronald Sawyer will be made entirely whole for the loss of wages which he incurred as a consequence of his termination, effectuated by the Compa- ny but caused by the Union, I find it unnecessary and inappropriate to make any additional assessment of backpay against the Union.37 Nor do I, in the circumstances of this case, order the Respondents to process or otherwise entertain a grievance relating to Sawyer's termination or the conformity of the Respondents' actions in discharging Sawyer to the provi- sions of article IX, section 2(a) and (b), of the current and applicable collective-bargaining agreement.38 The combi- nation of a make-whole and cease-and-desist order here serve both to eradicate the effects of the unlawful conduct of the Respondents relating to Sawyer's termination and to preclude a recurrence of such activity against Sawyer or any other employee. The evidence of record reveals that the Company and the Union have, in writing, amended the union-security provisions of the current collective-bargaining agreement in a manner conforming to the requirements of the Act, and have, by and through this amendment, effectively obviated the possibility that employees who have attained full seniority will be required to attain union membership .16 Port Drum Company, 170 NLRB 555, 180 NLRB No 90, M Eskin & Son, 135 NLRB 666, 670. enfd in pertinent part 312 F 2d 108 (C A 2). 17 Cf Local 485, International Union of Electrical, Radio & Machine Workers, AFL-CIO (Automotive Plating Corp), 183 NLRB No 131, and cases cited therein at In 2 'N Cf Local 485, International Union of Electrical, Radio & Machine Workers, AFL-CIO (Automotive Plating Corp), 170 NLRB 1234, Port Drum Company, 170 NLRB 555 WENTCEL, INC. 841 in less than the statutory grace period. I find unnecessary an affirmative order requiring the Respondents to excise the predecessor union-security or seniority provisions initially included in the current contract. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Wentcel, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7). 2. Brotherhood of Teamsters & Auto Drivers, Local No. 70, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. By entering into, maintaining, and giving effect to a collective-bargaining agreement containing an unlawful union-security provision the Respondents have engaged in conduct in violation of Section 8(a)(1), (2), and (3) and Section 8(b)(1)(A) and (2) of the Act. 4. By terminating Ronald Sawyer because of his nonmembership in the Union, the Company has engaged in and is engaging in unfair labor proactices within the meaning of Section 8(a)(3) and (1) of the Act. 5. By causing or attempting to cause the Company to terminate Ronald Sawyer because Sawyer was not a member of the Union, the Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 6. By refusing to process Sawyer's grievance relating to the procedural conformity of his termination by the Company to the requirements of the collective-bargaining agreement between the Company and the Union the Union engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 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: 39 ORDER A. Respondent, Wentcel, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Including, maintaining, or continuing in its collective- bargaining contract with Brotherhood of Teamsters & Auto Truck Drivers Local No. 70, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, or any other labor organization, a clause which requires, as a condition of employment, that new employees within 2 days of being employed make application for union membership; clauses which provide both for the attainment of seniority after the completion of 18 days of employment in any 30-day period and for eligibility for union membership upon attainment of seniority; or which otherwise require membership in a labor organization as a condition of employment, except as authorized by Section 8(a)(3) of the Act. (b) Discriminating against employees in regard to their hire or tenure of employment, or any term or condition of employment, except to the extent permitted by Section 8(a)(3) of the Act. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Jointly and severally with the Union make Ronald Sawyer whole for any loss of pay he may have suffered as a result of his termination, in the manner set forth above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying all payroll records, social security payment records, timecards, personnel records, and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (c) Post at its Oakland, California, place of business, and at all other places where notices to employees are customarily posted, copies of the attached notice marked "Appendix A,"40 Copies of said notice to be furnished by the Regional Director for Region 20, shall, after being duly signed by a representative of the Company, be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (d) Mailed to the Regional Director for Region 20, signed copies of "Appendix A" for posting by the Union at its office and other appropriate places. Copies of said notice, on forms provided by the Regional Director, shall, after being duly singed by a representative of the Company, be forthwith returned to the Regional Director for such posting. (e) Notify the Regional Director for Region 20, in writing, within 20 days of the receipt of this Decision, what steps the Company has taken to comply herewith.4i B. Respondent, Brotherhood of Teamsters & Auto Truck Drivers, Local No. 70, International Brotheroood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Including, maintaining, continuing in its collective- bargaining -contract with Wentcel, Inc., or any other employer, a clause which requires, as a condition of 39 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 40 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 Relations Board" shall read "Posted Pursuant to a Judgment of the United Sates Court of Appeals Enforcing an Order of the National Labor Relations Board - 4i In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith " 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment, that new employees within 2 days of being employed make application for union membership , clauses which provide both for the attainment of seniority after the completion of 18 days of employment within a 30-day period and for eligibility for union membership upon the attainment of seniority, or which otherwise require mem- bership in the above labor organization as a condition of employment, except as authorized by Section 8(a)(3) of the Act. (b) Causing or attempting to cause Wentcel, Inc., to discriminate against employees in regard to their hire or tenure of employment, or any term or condition of employment except to the extent permitted by Section 8(a)(3) of the Act. (c) Refusing to institute, process, or handle a grievance of an employee in the collective-bargaining unit because said employee is not a member of the Union. (d) In any like or related manner restraining or coercing employees of Wentcel, Inc., or any other employer, in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Notify Wentcel, Inc., in writing, with a copy to Ronald Sawyer, that the Union does not object to Sawyer's continued employment in accordance with the union- security provisions of the collective-bargaining agreement. (b) Jointly and severally with the Company make whole Ronald Sawyer in the manner set forth in the section of this Decision entitled "The Remedy." (c) Post at its business office and meeting halls copies of the attached notice marked "Appendix B."42 Copies of said notice, on forms provided by the Regional Director for Region 20, shall, after being duly signed by an official representative of the Union, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, on conspicuous places, includ- ing all places where notices to members are customarily posted. Reasonable steps shall be taken by the Union to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail or deliver to the Regional Director for Region 20 signed copies of the attached notice marked "Appendix B" for posting by Wentcel, Inc., in places where notices to employees of the Company are customarily posted. (e) Notify the Regional Director for Region 20, in writing, within 20 days of the receipt of this Decision, what steps the Union has taken to comply herewith 43 42 See fn 40. 43 See fn 41 APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial at which all sides had the chance to give evidence, a Trial Examiner of the National Labor Relations Board found that we violated the National Labor Relations Act, and ordered us to post this notice. The National Labor Relations Act gives all employees the right to get or keep a job even if they are not members 'of a union, except under certain conditions. Unless these 'conditions are met, the requirement to join a union in order to keep ajob is illegal. The specific conditions which ,make that requirement lawful include: (1) The requirement tojoin the union must be pursuant to a lawful collective-bargaining contract. (2) The contract involved must give the employees at least 30 days after they are hired before they can be required to join the union. However, employees who work in the building and construction industry have only 7 days to join. The Act also protects an employee from a union's ;causing, or attempting to cause, his being fired for not joining the union-if the requirement to join does not meet the above conditions. The Act also requires a union serving as the exclusive ,collective-bargaining representative of employees to fairly represent all employees in the bargaining unit whether or not they are members of the union. Therefore, when requested by an employee in the unit to undertake to process his grievance we may not refuse to do so merely because the employee is not a member of the union. A Trial Examiner of the National Labor Relations Board found that we violated your legal rights under the above- described provisions of the National Labor Relations Act. Specifically, the Board found that we maintained a contract which did not meet the above requirements of the law; that we caused the discharge of an employee pursuant to that illegal contract; and that we thereafter refused to process his grievance relating to that discharge. Accordingly, we give you the following assurances: I. As to your rights as employees: WE WILL NOT enter into, maintain, or otherwise give effect to a collective-bargaining contract whose provi- sions require you to make application for membership in the union within 2 days of being employed; provide that you will attain seniority after completion of 18 working days in a 30-day period and, in conjunction therewith, permits the union to accept you into membership upon attaining full seniority; require new employees to fill out applications for membership in our union before 30 days follow- ing their hire have elapsed; or unlawfully discriminate against employees as to WENTCEL, INC. their hire or tenure of employment, or any term or condition of employment. II. As to the employee we caused to be fired WE WILL notify Wentcel, Inc., in writing, that we have no objection to Ronald Sawyer's continued employment consistent with the revised union-security provisions of our contract. WE WILL also send a copy of this letter to Ronald Sawyer. WE WILL, together with Wentcel, Inc., make up any pay Ronald Sawyer lost, with 6-percent interest, between December 30, 1970, when he was unlawfully discharged, and March 17, 1971, when he was reinstat- ed. III. As to our refusal to process a grievance WE WILL NOT in an unlawful manner refuse to institute or process a grievance of an employee in the bargaining unit which we represent because he is not a member of our union. Dated By 843 BROTHERHOOD OF TEAMSTERS & AUTO TRUCK DRIVERS LOCAL No. 70 INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN & HELPERS OF AMERICA (Labor Organization) (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 compliance with its provisions may be directed to the Board's Office, 13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 556-3197.