Coca-Cola Bottling Co.

46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coca-Cola Bottling Company, Indianapolis, Incorpo- rated I and William D. Grimes Midwest Vending and Bottling Employees Union and William D. Grimes. Cases 25-CA-4493-2 and 25- CB-1247 September 14, 1972 DECISION AND ORDER BY MEMBERS JENKINS , KENNEDY, AND PENELLO On June 13, 1972, Trial Examiner George L. Powell issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent Employer filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings ,2 and conclusions and to adopt his recommended Order .3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. i The name of the Employer appears as amended at the hearing 2The General Counsel has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear pre- ponderance of all of the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F.2d 362 (C A 3). 7 Members Kennedy and Penello find it unnecessary at this time to pass on the question decided in Miranda Fuel Co, 140 NLRB 181, enforcement denied 326 F.2d 172 (C A. 2), since the conduct here was not, in their view, either arbitrary , irrelevant, unfair, or unlawfully motivated Member Jenkins subscribes to the principles enunciated by the Board in Miranda Fuel Co, supra However, he agrees with his colleagues that the evidence in the instant case is insufficient to support a finding that the Respondent Union's han- dling of the grievance violated Section 8(b)(I)(A) of the Act TRIAL EXAMINER'S DECISION I PRELIMINARY STATEMENT GEORGE L. POWELL, Trial Examiner: Presented are questions as to whether Respondent Employer discharged employee William D. Grimes because of his union activities and whether Respondent Union refused to process a griev- ance relating to Grimes' discharge because of his union activities in violation of its duty of fair representation. Also involved is a question whether Respondent Employer's su- pervisor made a statement which unlawfully interfered with, restrained, or coerced its employees. Section 8(a)(3), (1), 8(b)(1)(A), and 8(a)(1) of the Act (National Labor Relations Act, 29 U.S.C. Sec. 151 et seq.) are respectively involved. Grimes filed charges alleging these violations against both Respondent Employer and Respondent Union on Au- gust 25, 1971. The complaint based on these charges and an order consolidated cases and notice of hearing was issued on October 28, 1971, by the Regional Director for Region 25. In their duly filed separate answers, the Respondent Employer and Respondent Union denied the commission of any unfair labor practices. Pursuant to notice, a trial was held before me in Indian- apolis, Indiana, on January 18, 19, 20, and 21, 1972, where the parties were present, were represented by counsel, were afforded full opportunity to be heard by examination and cross-examination of witnesses, and were permitted to pre- sent oral argument and file briefs. The parties gave oral argument and briefs were duly filed (after an extension of time granted at the request of General Counsel and the Respondent Union) by Respondent Employer on February 17, 1972, and by Respondent Union and the General Coun- sel on March 6, 1972. On the entire record of evidence, and from my observation of the witnesses as they testified,' and on due consideration of the briefs, I find, for reasons herein- after set forth, that the General Counsel has failed to estab- lish by a preponderance of the evidence that the Act has been violated as alleged in the complaint by either Respon- dent Employer or Respondent Union and I will recommend that the complaint be dismissed in its entirety.2 FINDINGS OF FACT II PARTIES Respondent Employer, Coca-Cola Bottling Company, Indianapolis, Indiana, is an Indiana corporation engaged at its place of business at Indianapolis, Indiana, in making and wholesaling soft drinks. Respondent Employer, during the 12-month period preceding issuance of the complaint, made, sold, and shipped from its Indianapolis facility goods valued in excess of $50,000 to points outside the State of Indiana and purchased, transferred, and delivered to its facility goods and materials valued in excess of $50,000 directly from States other than the State of Indiana. I find Respondent Employer is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I find that Respondent Union, Midwest' Vending and Bottling Employees Union, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES As noted above, the basic issue in this decision is whether the discharge of William D. Grimes on July 16, i Cf Bishop & Malco, Inc, 159 NLRB 1159, 1161. 2 Accordingly, it is unnecessary to rule on the motions made by Respon- dent Employer and Respondent Union to dismiss the complaint 199 NLRB No. 9 COCA-COLA BOTTLING COMPANY 1971,3 violated the Act, and whether Respondent Union failed without reasonable cause to process the grievances relating to the discharge in violation of its duty of fair representation. The independent violation of Section 8(a)(1) relates to an alleged statement by Supervisor William H. Wigley. William D. Grimes Bill [William D.] Grimes was hired by the Respondent Employer on August 18, 1969, as a junior salesman in the full service department and joined Respondent Union 30 days thereafter. On February 9, 1970, he transferred to the job of junior salesman in the sales department. While mov- ing some cases of bottled Coca-Cola on a handtruck in March 1970, he slipped while backing up some wet cement stairs and while off balance caught and attempted to hold the handtruck from spilling the cases of bottled Cokes weighing over 200 pounds. The double hernia resulting from this accident was operated on causing his absence from work from March 16, 1970, to April 21, 1970. On June 22, 1970, he was assigned a job as route salesman where he sold and delivered the bottled product until he reinjured himself on October 13, 1970. This time he slipped while backing up on a 9-inch wet concrete step with the handtruck again loaded with cases of the bottled products, and the handle of the handtruck struck him in the groin causing another hernia. He was off 12 days because of this accident but continued to work until he was operated on for this hernia on April21, 1971. He was off work from this operation until his discharge on July 16. He believes that he was fired for his union activities but Respondent Employer denies this maintaining he was fired for cause. As much of his case depends upon the independent allegation of coercion, it will be taken up first. The Alleged 8(a)(1) Violation During the few months immediately preceding April 21, 1971, and for 5 or 6 weeks thereafter, the Respondent Employer and the Respondent Union were engaged in ne- gotiations for a new contract. Neither Bill Grimes nor his brother Phil Grimes were working or involved in any kind of activities after April 21 during this contract negotiation inasmuch as Bill Grimes went to the hospital for a hernia operation and Phil Grimes went to the hospital with viral pneumonia, as will be detailed later. Accordingly only the union activities of Bill Grimes before April 21, 1971, are involved. Bill Grimes according to Phil Grimes, did not attend the union meeting in April 1971. The record, howev- er, clearly establishes that during the months immediately preceding April 21 the union membership engaged in open and vigorous debate concerning the contract negotiations. In the opinion of Phil Grimes, he and his brother Bill "were the most vocal or most active in criticizing the contract and the conduct of the [bargaining] negotiations"; until April 21, 1971, Bill was "just as loud and just as open" as he, Phil, was and they were "on a par." Phil also testified that he and Bill were known as the "hell raisers" and the "troublemak- 3 All dates are in 1971 unless otherwise indicated 47 ers." But Bill Grimes identified others 4 who spoke up and objected to the contract and opposed the negotiations as did he and his brother Phil. These others discussed their dissat- isfaction with the conduct of the negotiations in the sales- room and in the check-in room in front of managerial employees. The specific alleged violation of Section 8(a)(1) rests solely upon the testimony of Phil Grimes. Phil's testimony on this point, on direct examination, is as follows: Q. Where did this conversation [with supervisor William H. Wigley] occur? A. I believe on that day that he went with me on my route. I had a downtown route at that time. If I'm not mistaken, it was in the truck while we were out on the route. Q. And do you recall any date any more specifical- ly than April of 1971? A. No, sir. Just-it was around the first part of April. - Q. All right, will you tell me what he [Wigley] said and what you said? A. He stated to me that my brother, Bill, had been doing absolutely too much hollering about the contract in the sales room, and too much hollering about things in general. He was disrupting the men. I was also, and to tell him to hold it down, and if we didn't we would be fired. Q. All right, now, did you report this conversation to your brother? A. No, sir. I told my brother to hold it down. Things were pretty hot at that time. My brother was quite upset and I'm-I was afraid at that time we prob- ably would have gotten fired. Supervisor Wigley testified on direct examination with respect to the alleged conversation with Phil Grimes as fol- lows: Q. Did you ever have any conversation with Phil Grimes concerning the contract negotiations? A. No, sir. Q. Did you ever [hear] Phil Grimes complain about the negotiations? A. Yes, sir. Q. Did you ever tell him how he should conduct himself at a union meeting or any place else with re- spect-with respect to the Union? A. No, sir. Q. Did you ever tell him that he should not com- plain about the union activities? A. No, sir. Q. Or that he should tell his brother that is, Bill Grimes, that Bill shouldn't complain? A. No, sir. Q. There's been some testimony here that you were out in a truck with Phil Grimes and told Phil Grimes that he and his brother were complaining much too much about the union negotiations and the union contract. Now, is that true? Gillis Carroll, Charles Hines, Ray Meyer, Pete Brammell, Ed Davis, and James Anderson 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. That I told him that they were complaining too much? Q. Were you ever out in the truck with Phil Gnmes when you told Phil Gnmes that he and his brother were complaining too much about the contract and they should knock it off, or stop their complaining, or anything of that character? A. No, sir. Q. Did you ever threaten Phil Grimes, threaten to do anything to him, or get him fired, or demoted, or any other-let's say, punishment-on account of his activities in the Union? A. Phil Grimes you said? Q. Yes. A. No, sir. Q. Or on account of any of his conduct concerning union negotiations? A. No, sir. Q. Would the same thing be-well, did you ever make any threats to Bill Grimes about, with respect to any of his activities in the Union or with respect to the union negotiations? A. No, sir. Q. Do you know of any supervisory employee of the Company who made any threats toward any of the employees of the Company with respect to their union activities? A. No, sir. Q. Any time, any place. A. No, sir. Q. With respect to the 1970-71 negotiations, or with respect to anything else? A. No, sir. Q. Did you ever hear Bill Grimes complain about the Company in the sales room? Make complaints about the way the Company ran its business or was negotiating the contract? A. Yes, sir. Q. Did you ever hear him complain about the Union? A. Yes, sir. Q. Did you ever hear him complain about his brother? A. I don't believe so, sir. Discussion and Conclusion as to the Alleged 8(a)(1) Violations There we have it. Many identified employees, includ- ing both Bill and Phil Grimes, were known by Respondent Union and Respondent Employer to complain about the contract negotiations which were taking place between the two Respondents. After April 1971 there were no further complaints by the brothers Grimes as both went to the hospital. Phil Grimes testified to the one incident when Supervisor Wigley allegedly warned him and for him to tell Bill "to hold it down, and if we didn't we would be fired." Not only is this single instance alleged to be an independent 8(a)(1) violation but of necessity it is background evidence to show as a fact that Bill Grimes was discharged in July in furtherance of this warning and that the Union Respondent failed to properly represent him because of his outspoken- ness. I find that the alleged statement by Supervisor Wigley was not made. The statement was denied by Wigley whom I credit. On demeanor, Phil Grimes seemed to lean toward testifying in all respects in favor of his brother and thus appeared not to be as candid as Wigley and accordingly he is not credited over Wigley. The conclusion is that the alle- gation of independent violation of Section 8(a)(1) of the Act fails for lack of evidence and will be dismissed. Respondent Employer's Position as to the Discharge Bill Grimes was a driver-salesman. Driver-salesmen are required to report to work between 6:30 and 7 a.m., to be ready to leave the plant at 7 a.m. They pick up orders and special instructions in the salesroom prior to the time they leave the plant. A driver's truck is already loaded, but he must check it to determine if it is properly loaded. He leaves the plant, makes his route according to a route book, calling at each "stop" in its proper sequence, does the paper and physical work required, and at the end of the day accounts for the merchandise disposed of and checks in. The only time the driver has any help is when he has a trainee along for the purpose of instruction. The trucks used to transport the product are the 2-1/2 to 3 ton variety which carry ap- proximately 20,000 to 25,000 pounds gross weight. The trucks used have special bodies, so that the bays along each side can be loaded with pallets containing 30 to 42 cases of product, other than cans which can go up to 84 cases. On his job, the driver lifts the cases out of the bays, by hand, generally stacks them up outside the truck, and picks them up with his handtruck or carves them physically in his arms into a customer's premises. A driver salesman also handles cases of empty bottles, which are loaded back into the truck where the fulls have been, and sometimes empties are placed on top of the trucks. These are "thrown" up or physically hoisted in a marriage of skill and muscle power after climbing up the side of the truck. On the sales route assigned to Bill Grimes, he delivered, on the average, 175-200 cases a day, and, of course, he had to physically handle these, plus empties. All of the sales routes are part of the so-called "sales department" of Respondent Employer which is under the general supervision of a sales manager, Glen Chew. Under Chew, in the chain of supervision, is an assistant sales man- ager, Robert Miller, who supervises six route managers, including the aforesaid supervisor William Wigley. Bill Grimes was supervised by Wigley. There was general agreement at the hearing that Bill Grimes' job was an extremely demanding job, physically. Billy G. Smith, who was personnel manager at the time in question, testified that it is "extremely heavy work." Bill Grimes himself implied it was difficult work physically. His testimony was that Dr. Gard examined him in July 1971 and, orally, "cautioned me about ... [a return to my former job] ... like gangbusters .... He said that I should work myself up, more or less. Like if 1-normally before I took in six cases. I just piled them on and took them in. He said instead of doing this, take three each tip, make two trips. He said to work into it." COCA-COLA BOTTLING COMPANY 49 The Discharge There is no controversy as to Grimes' operations, for hernias. He had an operation before coming with the Re- spondent Employer, another one in March 1970, reinjured himself in October 1970, and was again operated for hernia in April, 1971. Sales Manager Glen Chew was called by Respondent Employer to testify as to the physical ability of Bill Grimes to do the job and credibly testified he told Smith in July 1971 he did not believe Bill Grimes had the physical ability to perform the work. He knew of Bill Grimes' three hernia operations and over the period of time he had been with Respondent Employer 5 he had seen "too many peo- ple" who could not handle that type of work after a hernia operation. He identified one man, Koers, who had been off once for a hernia operation but who was doing the same work. Bill Grimes himself, for that matter, had been still doing the job after two known hernia operations. But no one was working at this job with three hernia operations. Chew had tried to keep Bill Grimes off this job after his first hernia operation with Respondent Employer. Robert L. Miller, assistant sales manager for Respon- dent Employer, had been an employee of Respondent Em- ployer for 23 years. He credibly testified he talked to Smith in July 1971 about Bill Grimes' physical ability to perform the job of driver-salesman.6 His expressed opinion was that Bill Grimes "would be hindering himself" if he kept on the job as driver-salesman, as "he was physically unable to fully perform the job." He also credibly testified that at the time of the discharge there was no other job in the sales depart- ment available that he could have filled. There were discussions between Bill Grimes and Bill Smith about his physical condition prior to his 1971 opera- tion and with Chew and Miller. In February or early March he discussed his pains with Smith and broached the subject of a less strenuous job and later had similar conversations and even discussed with Smith the possibility of getting a supporter, whereupon Smith told him that if he bought a hernia support Smith would force him off a route. After Grimes' last operation he apparently had further conversations with Smith and was told, at least once, by Smith that "I don't think you're going to come back," and Grimes was advised to look for another job; and at the meeting between Smith, Grimes, and route salesmen Mc- Neely and Bear, when the Respondent Union made its first complaint about the discharge, Smith's view of Grimes was still solely related to his physical condition, in that he told the union group that he "didn't have anything available, that wouldn't hurt him any more than what a route does now." There is no question also but that Bill Grimes told Bill Smith that he didn't want any of the lower paying jobs. Bill Smith discharged Bill Grimes on Friday, July 16, 1971, in a face-to-face encounter at which time Bill Grimes says he accused Smith of firing him for his union activities he had engaged in earlier in the year. Smith denied this. Smith told Grimes he was physically unable to do the job 5 Chew had been employed by Respondent Employer approximately 32 years, 12 of which had been as a dnver-salesman . Hisjobs had been, seriatim, helper, driver-salesman, route manager, head route manager, area manager, cold bottle sales manager, and sales manager 6 He had 56 driver-salesmen under him. on the route, that they didn't need him any more, that they weren't going to pay for another hernia operation, and that there were no other jobs available. The facts against believing Bill Grimes were discharged because of his outspokenness (the alleged threat has been found not to have been made) are: (1) Neither he nor his brother Phil were outspoken after April 21, 1971, yet open and outspoken contract controversy continued between em- ployees and Respondent Employer and Respondent Union thereafter for some 5 or 6 weeks and no one was even reprimanded; and (2) Phil Grimes, who acknowledgedly was as outspoken as his brother Bill, was not discharged but on the contrary he was aided by the Respondent Employer and Respondent Union as to his leave and his insurance policy 7 and his job was held for him for 6 months for his full recovery from illness. I conclude that Bill Grimes was discharged for his physical disability and thus the discharge was for cause and not in violation of the Act. As to the theory that there were other jobs Bill Grimes could have been shifted to, the record is clear that there were no openings in any job he would take. Accordingly, I will recommend the complaint be dismissed as to all of its allegations against Respondent Employer. The Case Against Respondent Union The allegations of the complaint against Respondent Union are found in paragraph 9 as follows: 9(a) Since on or about February 25, 1971, and contin- uing to date, Respondent Union has restrained and coerced, and is restraining and coercing, the employees of Respondent Employer in the exercise of the rights guaranteed in Section 7 of the Act by the following acts and conduct: (b) Respondent Union, by its officers and agents, on or about July 28, 1971, failed and refused, and continues to fail and refuse, without reasonable cause and in violation of its duty of fair representation, to process a grievance relaing (sic) to the discharge of William D. Grimes. (c) Respondent Union engaged in the conduct set forth above in paragraph 9(b) because William D. Grimes was an outspoken critic of Respondent Union's officers and agents and their conduct during negotiation of the collective bargaining agreement described in para- graphs 6(b), (c) and 7(b) above, and because said em- ployee and others concertedly sought to change Respondent Union's attitude about particular collec- tive-bargaining proposals and negotiating positions. The Grievance Procedure The steps of the grievance procedure as provided for in the collective-bargaining agreement and controlled by it, are as follows: 7 Phil Grimes was off work about 6 months from April 23, 1971, to October 18, 1971, due to illness His sick leave ran out in 60 days and while off work the Respondent Union negotiated through the joint standing committee a special deal for him whereunder Respondent Employer paid his insurance premiums and his Blue Cross-Blue Shield premiums subject to later reim- bursement 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ARTICLE XX GRIEVANCES Section 1 . Union Committeemen. The employer recog- nizes the right of the Union to designate Grievance Committeemen and alternates from the regular em- ployees' list. Section 2. Authority of Grievance Committeemen. The Grievance Committeemen or alternates have no au- thority to take strike action, or any other action inter- rupting the Employer's business, except as authorized by official action of the Union. Any such action on the part of the Grievance Committeemen or any alternate, not authorized by the Union, will give the Company the right to impose appropriate disciplinary action de- termined by the Company, including discharge. Section 3. Joint Standing Committee. Immediately after the execution of this Agreement, the Company and the Union will each appoint two representatives and such four persons shall constitute a Joint Standing Commit- tee, with the rights and obligations herein set forth. In the event of a vacancy, or inability on the part of the named representatives to serve at any time, the party in whose representation there is a vacancy may appoint a temporary member to fill such vacancy, by giving the other party notice thereof. The Joint Standing Commit- tee shall meet, from time to time, not less often than monthly, to discuss the joint affairs of the Company and the Union, with the idea of avoiding differences and to keep open avenues of communication between the parties. The Committee will select, from time to time, a Chairman and a Secretary and will keep min- utes of its meetings. No supervisor or employee who is directly involved in a matter which is the subject of a grievance, as, for example, a supervisor who gave a reprimand or other punishment or employee who re- ceived the same, shall sit as a member of the Committee to consider the same, and the appropriate party hereto will appoint a substitute, when required, for any such case only. Section 4. Settlement of Disputes. Should differences apse between the Company and the Union, or any employee of the Company covered hereunder and the Company, as to the meaning or application of the pro- visions of this agreement, (including discharges and suspensions) such differences shall be settled in the following manner: Step 1. The aggrieved employee or employees shall record the grievance on a grievance blank (agreed upon, as to form, by the Company and the Union) and present the same to a member of the Union's Grievance Committee. The Grievance Committee will then attempt to settle the grievance with the foreman or the immediate supervisor of the con- cerned employees as soon as possible. Settlement under this Step must be effected within one (1) work- ing day following submission of the grievance as aforesaid. Grievances will not be accepted after the third working day after occurrence. Step 2. If no satisfactory adjustment is agreed upon in Step 1 , the grievance shall be referred to the Gnev- ance Committee member within five (5) days to the Joint Standing Committee . Said Committee shall have authority to act, by majority vote . It shall re- view the alleged grievance and the majority decision of such Committee shall be binding upon all con- cerned. The Joint Standing Committee shall make a decision, or notify the Union and the Company that a majority of the Committee is unable to agree, with- in two working days after receipt of the grievance. Step 3. In the event the Joint Standing Committee is unable to agree in Step 2, the grievance shall then be referred to the Union representative who shall dis- cuss the grievance with the General Manager, or some other executive officer of the Company, duly designated by the Company with authority to act. If settlement is not effected by such representatives of the parties within three (3) days, the matter shall proceed to Step 4, below. Step 4. If no satisfactory adjustment is made in Step 3, then the parties shall select an impartial arbitrator to determine the matter . His decision shall be final and binding on all concerned. If the parties are un- able to agree upon an arbitrator, then the parties will request the Federal Mediation and Conciliation Service to submit a panel of arbitrators and upon receipt of the same the parties will alternately strike names from said panel list until only one remains. The one so remaining shall be the arbitrator. The party which initiates the grievance shall strike first. If, for any reason , a person chosen as arbitrator does not serve, then a new arbitrator shall be chosen in like manner, whose decision shall be final and bind- ing upon the parties. The expenses of the arbitration shall be borne equally by the parties. Section 5. Waiver of time limitations . Any of the time limitations set forth in Step 2 and Step 3 , in Section 4 above, may be extended by agreement of the Union and the Company, evidenced by written memorandum executed at any time. Section 6. Pending Settlement Orders of Company Ef- fected. Pending settlement of any grievance , the orders of the Company shall be carried out and remain in effect, unless otherwise agreed by the Company and the Union. Processing the Grimes' Grievance As soon as Respondent Union's president, McNeely,8 learned of Grimes' discharge he arranged a meeting with Personnel Director Smith in an attempt to get the facts and solve the problem. The discharge was on Friday, July 16, 1971, and the meeting took place the following Monday, attended by Bill Grimes, Smith, and Respondent Union's representatives, McNelly and Bear? Smith told them he had fired Grimes because of his physical condition. Following this meeting, McNeely wrote a grievance for Bill Grimes (who came in and signed it) and filed it with 8 Truman McNeely was also a driver-salesman for Respondent Employer 9 Ralph Bear was also a driver-salesman He was vice president of Respon- dent Union and a member of the joint standing committee COCA-COLA BOTTLING COMPANY 51 Respondent Employer in accordance with step 1 of the grievance procedure. Smith denied the grievance (in step 1) after which it was referred to the joint standing committee. The joint standing committee met on July 28, 1971, with employees Ralph Bear and Charles Hines 10 repre- senting Respondent Union and Personnel Manager Smith and Industrial Relations Manager Ford Carmen 11 repre- senting Respondent Employer. Each member of the joint standing committee testified with there being no substantial variance in their testimony as to what happened in the meeting. The position of Re- spondent Employer was that Grimes was physically unable to perform the work. The grievance was fully discussed and for approximately 1-1/2 hours the Respondent Union's members refused to agree on his discharge on the basis of his physical condition but finally did agree to his discharge for failing to report a hernia operation prior to his employ- ment and thus having falsified his employment applica- tion.l2 There is no evidence that this grievance was not han- dled like any other grievance. There was another grievance concerning the discharge of a John Stinnett for falsification of his application which was considered the same day as the Grimes' grievance and was set aside until the Company produced proof of the falsification. In a subsequent meeting such falsification was proved and the union representatives agreed to the propriety of the discharge. The same thing happened to Bill Grimes. Discussion and Conclusion Even if the representatives for the Respondent Union had been wrong in agreeing to Grimes' termination, the General Counsel is still required to prove by a preponder- ance of the evidence that this action was a deliberate attempt to punish Grimes for his outspokenness. There is no evi- dence to support this contention. Charles Hines, an ally of Grimes who held views similar to Grimes and who was constantly mentioned as a "complainer and hell-raiser," was a member of the joint standing committee. He was not a regular member but was appointed as a substitute. Had there been any attempt by the Respondent Union officers to get rid of Grimes because of any part he played in the negotiations, it would be logical to assume that they would not have asked one of Grimes' friends and philosophical 10 Hines was a route salesman 11 Carmin had been employed by Respondent Employer for 40 years, working his way up in the company from a driver-salesman's position Thus, all members of the joint standing committee were familiar with the physical demands of the job of driver-salesman 12 Bill Grimes had failed to list his previous hernia operation on the em- ployment application in answer to the two-part question "20 What illness have you had during the past five years9" "When?" He left the question blank There is no ment to the position of the General Counsel that a hernia operation is not an "illness" and hence need not have been listed The members of the joint standing committee decided that the failure to list the hernia operation was a falsification of the employment application, and this is a reasonable interpretation. Respondent Employer did not discharge Grimes for this reason allies to sit on the joint standing committee. This one fact alone makes it clear that the Respondent Union harbored no ill will toward Grimes and in fact it processed the griev- ance exactly as the contract required. The General Counsel has not only failed to prove his case against the Respondent Union with a preponderance of the evidence, he has failed to prove even the suspicion of any discrimination against Williams Grimes. His best evi- dence indicates that Respondent Union is made up of a group of very individualistic members who speak freely about their opinions and feelings with regard to both the Respondent Employer and the Respondent Union. The evi- dence is that there were many individuals who complained about the contract negotiations both out of and in the pres- ence of representatives of management. There is absolutely no evidence of any attempt to squelch dissent and in fact each member was invited to attend the negotiating sessions and to speak out freely at the Respondent Union meetings. Accordingly, I will recommend that the complaint against Respondent Union be dismissed for failure of proof. CONCLUSIONS OF LAW 1. Respondent Employer is an employer engaged in commerce and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. William D. Grimes was discharged for cause, i.e., physical disability. 4. The alleged statement by William H. Wigley was not made. 5. The reason Respondent Union did not process the grievance beyond step 2 of the contract procedure was for cause, i.e., because he had falsified his employment applica- tion and not for the reasons alleged in the complaint. 6. The General Counsel has failed to carry his burden of proof in the matter.13 THE REMEDY Upon the foregoing findings of fact and conclusions of law and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:14 ORDER The complaint is dismissed in its entirety. 13 "The side that weights the less will not be satisfied, but that is the way things are, and it is better than violent death " The Georgetown Law Journal, Vol 55, 234 (Donald Meiklejohn, Professor of Philosophy and Social Sci- ence and Director of the Program in Public Affairs and Citizenship, Syracuse University ) 14 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 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