Highway and Motor Freight Employees, Loc. 667

398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Highway and Local Motor Freight Employees Local Union No. 667, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Owens-Cor- ning, Fiberglas Corporation) and Linda J. Smith. Case 26-CB-1 158 February 23, 1977 DECISION AND ORDER BY MEMBERS FANNING, PENELLO, AND WALTHER On December 8, 1976, Administrative Law Judge Claude R. Wolfe issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and the General Counsel filed a reply brief. 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 attached Decision in light of the exceptions and the brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. 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 Administrative Law Judge and hereby orders that the Respondent Union, Highway and Local Motor Freight Employees Local Union No. 667, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and represen- tatives, shall take the action set forth in said recom- mended Order. DECISION STATEMENT OF THE CASE CLAUDE R. WOLFE, Administrative Law Judge: This case was heard before me at Jackson, Tennessee, on August 18 and 19, 1976, pursuant to charges filed on April 20 and May 26, 1976, and a complaint issued on May 27 and amended on June 4, 1976, and again amended at the hearing. The complaint alleges that Highway and Local Motor Freight Employees Local Union No. 667, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called Respondent or the Union, by its agents violated Section 8(b)(IXA) of the Act by telling employees of Owens- Corning Fiberglas Corporation, herein called the Company or the Employer, that it would not represent or process grievances for employees who were not union members, 228 NLRB No. 52 that Respondent could require nonmembers to pay for the processing of their grievances, that nonmembers could not retrieve lost overtime pay, that nonmembers could be fired for filing grievances, and that nonmembers could not file grievances. It is further alleged that Respondent refused to process grievances for employees because they were not union members. Respondent denies the commission of any unfair labor practices and affirmatively pleads that it has at all times fairly represented all the members of the bargain- ing unit involved herein regardless of their union member- ship or lack of it. The General Counsel and Respondent filed able posthearing briefs which I have carefully consid- ered. Upon the entire record, including my observation of the witnesses, and after due consideration of the parties' briefs, I make the following: FINDINGS AND CONCLUSIONS I. JURISDICTION The complaint alleges, Respondent admits, and I find that at all times material Owens-Corning Fiberglas Corpo- ration has maintained an office and place of business at Jackson, Tennessee, where it manufactures Fiberglas, and has, during the past 12 months, purchased and received at said location products valued in excess of $50,000 directly from points outside the State of Tennessee, and sold and shipped products valued in excess of $50,000 from said location directly to points outside the State of Tennessee. The Employer is, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. U. THE LABOR ORGANIZATION The Union is a labor organization within the meaning of Section 2(5) of the Act. III. AGENCY The following named individuals, at all times material, occupied the union positions set forth after their names: Womack Johnson, steward and member of business com- mittee; Jim Alexander, steward and member of business committee; Gaylon Meals, steward and member of busi- ness committee; George Droke, steward ; Barney Anderson, steward; Bill Maness, steward; John Mitchell, president; Billy Latham, assistant business agent. Respondent concedes that these persons occupied these positions, but denies that they are agents of Respondent within the meaning of Section 2(13) of the Act, and contends that the actions of the stewards complained of, if they in fact occurred, should be properly viewed as actions of rank-and-file employees not acting in any capacity as union agents at the time of the unfair labor practices allegedly committed by them. At the opening of the hearing I requested counsel for Respondent to elucidate the Union's position on this agency question, to which he responded, in substance, that union stewards are also employees who can make state- ments as individuals and still not be acting as union agents. HIGHWAY AND MOTOR FREIGHT EMPLOYEES, LOC. 667 399 Respondent did not further amplify its position on agency in its brief. John Mitchell is, and has been since March 17, 1975, the admitted president and business manager of Respondent and is therefore, as its chief officer and managing agent, an agent of Respondent within the meaning of Section 2(13) of the Act. Billy Latham has occupied the position of assistant business agent of the Union since March 17, 1975, and represents the Union in the administration of the contractu- al grievance procedure, beginning at step two of the procedure and continuing through arbitration. I therefore conclude that Billy Latham is, and has been since March 17, 1975, an agent of Respondent for the implementation of the grievance procedure. Although his title indicates further union responsibilities, they are not precisely spelled out in the record, but it appears from the evidence that he is the highest ranking official of Respondent regularly visiting the Employer's premises for the purpose of administering the existing collective-bargaining agreement. The collective-bargaining agreement between Respon- dent and the Employer provides that the Union may be represented by departmental stewards appointed by the Union and the authority of these stewards will be limited to the handling of grievances. It further provides that the steward and the aggrieved employee will be present whenever a supervisor writes in an employee's record concerning disciplinary measures, and the steward will sign the record and has,the option of expressing his own opinion concerning the matter in the same record. The contractual grievance procedure requires that a steward will be present at the first step of the grievance procedure when the aggrieved employee verbally confers with his immediate supervisor for adjustment of the matter, and, if the grievance is not settled in the first step, it will be reduced to writing by the employee and the steward and be presented to the employee's department head for discussion and settlement. Thereafter, if the grievance is not settled at this second step, the union business agent conducts the presen- tation and discussion of the grievance with higher manage- ment. The official grievance form utilized in the procedure contains a specifically designated space for the steward's signature, and of the 43 written grievances submitted into evidence by Respondent each was countersigned by a steward. Stewards Anderson, Johnson, and Alexander and Assistant Business Agent Latham testified that it was the responsibility and the practice of the stewards to accompa- ny and represent employees in the initial oral stages of the grievance procedure and to write and process grievances for aggrieved employees. Union President Mitchell confirmed the duties of the stewards as agents of Respondent to represent grievants, by his testimony that he personally instructed the business agents and the stewards to represent nonunion members just like they would a member. It is abundantly clear that Respondent has empowered its stewards to be its representative in the area of initiating and processing grievances, and that they are Respondent's agents for these purposes. Furthermore, even though Respondent may not have specifically authorized its stewards to make the alleged statements or take the alleged actions herein complained of, all of these occurrences are directly involved with the initiation and processing of grievances which is the general area within which the stewards may authoritatively act on behalf of Respondent by virtue of the authority conferred on them by Respondent and by the collective-bargaining agreement . It is obvious from the record that the stewards are the union representa- tives to whom employees look to represent them in filing and prosecuting grievances. The basic issues presented in this case are whether or not the stewards fairly represented nonmembers in the griev- ance procedure or restrained and coerced them in the use of that procedure. These matters arose in the exact area where the stewards clearly have express authority to act on behalf of Respondent. I conclude that Stewards Womack John- son, Jim Alexander, Gaylon Meals, George Droke, Barney Anderson, and Bill Maness were acting within the scope of their general authority as stewards, and as statutory agents of Respondent within the meaning of Section 2(13) of the Act when the acts and statements complained of occurred, if they occurred, and that Respondent may be held responsible for any of these acts and statements of its stewards that may be found to be unfair labor practices.' IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts Found2 and Conclusions Based Thereon 1. Background The Union and the Company have a collective-bargain- ing agreement covering all of the Company's hourly production and maintenance employees and all other hourly employees at the Jackson, Tennessee, plant. All of the employees involved in this case are members of that unit. The contract does not require union membership as a condition of employment. On October 31, 1975,3 30 employees submitted a joint petition to the Union with- drawing as dues-paying members. At the November meeting of the Union, some members asked if the Union had to represent nonunion members in arbitrations and if nonmembers could be made to pay for representation. President Mitchell credibly testified that he replied that the Union did have to represent nonmembers, that there was a legal question as to whether or not nonmembers could be made to pay for this service, and that the latter matter had been referred to Respondent's attorney for study. After the i International Longshoremen's and Warehousemen's Union, C.I 0, (Sunset Line and Twine Company), 79 NLRB 1487, 1508-09 (1948);,Umted Brother- hood of Carpenters & Joiners of America, Local Union No. 2067, AFL-CIO (Batterman Construction, Inc.), 166 NLRB 532, 539-540 (1967). 2 The facts set forth herein are based on a synthesis of the credited aspects of the testimony of all witnesses , the exhibits, and careful consideration of the logical consistency and inherent probability of the facts found. The testimony of any witness materially inconsistent with or contradictory of the facts found is discredited . I have rejected the thesis of General Counsel that testimony given at the hearing is suspect merely because it was not included in the witnesses' pretrial affidavit, for the simple reason that there is no showing, and some testimonial denials, that the same questions were asked on both occasions. Similarly, I do not base my findings, in whole or in part, on the circumstance that certain witnesses were not called by either party, although I note that certain witnesses who were called did not testify on matters of which they purportedly had knowledge. 3 All dates are in 1975, unless specifically noted otherwise. 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD public meeting, Mitchell held a private meeting with the members from Owens-Corning and told them that they must give equal representation to members. This instruc- tion did not sit will with some of the stewards. Steward Alexander admittedly told as many as "a hundred a day" that it made his blood boil when nonmembers asked for representation, and Steward Meals testified that both he and Alexander had said on several occasions to several employees in the break area that they could not understand how nonmembers could have the guts to ask the Union to process their grievances when they were not paying dues. It is within the general time frame of a number of withdrawals from membership, Union President Mitchell's November instruction, and the resentment of some stewards and members of the free representation afforded employees who were not members, that the incidents with which this case is concerned arose. 2. The Mary (Pinson) Forthman incident Mrs. Forthman, who was Mary Pinson at the time her complaint arose but has remarried, will be referred to herein, as she is in the record, as Pinson. Pinson is a 4-year employee who has never been a union member. According to Pinson, on an unspecified date in November Steward Anderson spoke with her in the break area and told her that a supervisor had been doing unit work, a grievance had been filed, and Pinson would be getting some money because she was the first employee on the call-in list. She continued that 2 or 3 days later she met Anderson in the canteen and asked when she was getting the money, to which he replied that she was not getting it. She asked why and Anderson replied "Because you don't belong to the Union." She protested that this made no sense to her, and Anderson again stated, "Well, you can't get the money because you don't belong to the Union." A couple of days later they again met in the canteen and Anderson explained to her that he had signed the grievance himself because other union members he had asked had refused to because they liked the supervisor. Pinson said that she would have signed the grievance if he had asked. Anderson replied that he could not ask her because she did not belong to the Union. She told him "that was against the law" and anyone could sign a grievance. Anderson reiterated that she couldn't sign because she did not belong to the Union. Pinson and Anderson met again in the canteen before work a couple days later. Anderson came in and sat with her and employees Hines and Crossman. At some point in their general conversation, a discussion ensued regarding the overtime matter previously discussed between them. Pinson does not recall how the topic was raised, except that she asked Anderson again if he was saying she could not sign a grievance, and he gave the same reply that she could not because she was not a union member. When she then stated that she was not going to get the money, Anderson agreed and claimed that whoever signs a money grievance get the proceeds. Pinson repeated her earlier comment that she would have signed if asked, and Anderson reasserted that he could not let her sign because she was not a union member. At this point, Hines a union member, asked Anderson if he meant to say that Pinson could not sign a grievance. When Anderson gave an affirmative reply, Hines told him to bring the papers to him and he would sign them. Anderson jumped up, told Hines to go to hell, and left. Hines testifies that the discussion of the grievance was already going on when he entered the canteen, and that he heard Pinson say that she should have been able to sign the grievance. Hines does not recall who, but avers that someone4 in the conversation said that Pinson couldn't sign the grievance because it was already filed and that she couldn't file the grievance because she was "nonunion." According to Hines, he gave his opinion that the steward should have filed a grievance on her behalf. Anderson then told him to shut up and to go to hell and left. Hines claims that sometime before Anderson left, he ( Hines) brought up the fact that Tennessee is an open shop state and people did not have to belong to the Union. Anderson's alleged reply was that he could not see going around filing grievances for nonunion people. Hines places these events in late fall or early winter. Anderson's version of the Pinson matter, which he thinks happened in January 1976, is as follows: He was told by Steward Meals, who gave no evidence on this affair although testifying on other matters, that a supervisor had been caught working, whereupon Anderson asked the first two employees he encountered if they wanted to file a grievance. Both refused, and Anderson reported this to Meals who told Anderson to file the grievance on behalf of the Union. Anderson had never filed a grievance on behalf of the Union before so he completed and filed the grievance, signing the grievance as both the steward and the grievant, thinking that whoever was entitled to the money would get it. He did not look at the employee roster to see who was so entitled until after the grievance was filed. This was the first time he had ever asked anyone if they wanted to file a grievance because grievants always came to him with their complaints. After filing the grievance and checking the roster, Anderson concluded that Pinson was due the money and went and told her it looked like she would get 4 hours' pay. A couple of days later he found that he was going to get approximately $18 because the grievance was granted and he was the grievant .5 Anderson says he knew at the time he got the award that Pinson should have gotten it. Therefore, he went to Pinson and explained to her that he got the $18 because he filed the grievance. Pinson asked him why he had not asked her to file it, and he answered that she knew about the matter grieved and did not approach him to file a grievance and he did not have time to ask everybody because he filed it on the last day possible under the contract. He had had his conversation with Meals the day before the date of filing. Anderson generally denies telling any employee he would not represent them if they were not union members, or telling any employee they couldn't be compensated for lost overtime, or refusing to file a grievance for anybody. A copy of the grievance involved was not offered into evidence, and it appears from Anderson's testimony that an 4 I find that someone to be Anderson in view of the credence I gave parties in 1974, an award of overtime pay was made to the grievant rather Pinson's testimony. than to the employee who appeared to have the better claim but filed no 5 In an earlier arbitration award involving the Company and the Union as grievance. HIGHWAY AND MOTOR FREIGHT EMPLOYEES, LOC. 667 401 attempt to locate it was unsuccessful. I conclude from the testimony of Pinson and Hines that the grievance, and the discussion about it, took place in November because Pinson appeared more certain of the time than Anderson, and Hines recalled it as being in late fall or early winter. I am convinced from a careful examination of the three witnesses and my observation of them as they testified that Anderson filed the grievance not on behalf of the Union, as Meals had suggested to him, but on his own behalf. The award to Anderson was consistent with the arbitration award in the prior case involving substantially the same circumstances. I credit Pinson, over Anderson's general de iials, that he did tell her she could not sign a grievance because she was not a union member on their third and fourth meetings in the canteen in November, and that he did tell her during their second meeting that she was not getting the money because she did not belong to the Union. While Hines' testimony is somewhat vague, and there is considerable doubt that he was present throughout the conversation, I credit him to the extent that I find Anderson told him to shut up and go to hell when Hines said the grievance should have been filed on Pinson's behalf, and I further credit Hines' testimony that Anderson stated he could not see going around filing grievances for nonunion people. Accordingly, I conclude and find that Anderson failed and refused to fairly represent Pinson by failing to secure her signature on the grievance because she was not a union member.6 This conclusion is supported by my further finding that he restrained and coerced her in the use of the grievance procedure by telling her that she could neither sign a grievance nor collect money therefrom because she was not a union member. Anderson's irritation at Hines' intervention and his statement that he could not see going around filing grievances for nonmembers fully displayed his hostility toward any suggestion that he must represent employees who did not belong to the Union, and betrayed his motivation in failing to file on Pinson's behalf. Further, I do not believe that Anderson, an employee of 7 years, who has currently served as a steward for 1-1/2 years and previously as a shop steward and a member of the grievance committee of a predecessor union, was ignorant of the precedential arbitrator's award on which the award to him in the instant matter was apparently based. 3. The Rubie LaPointe incident of December 19757 Employee Greenway was assigned to do work out of her regular classification during the shift immediately preced- ing the shift on which she worked with LaPointe, and Greenway then continued to work on through her regular shift in her regular classification. This occurred on various occasions. Shortly before Christmas, LaPointe complained to Steward Womack Johnson that Greenway was being granted an inordinate amount of overtime work, and that LaPointe was not being called in to work the overtime. Overtime is rotated among employees working within a classification on each shift, but employees who are called to work out of classification at work in another classification for which they are qualified are not charged with overtime within their original department and, therefore, out-of- classification work does not affect their standing for overtime eligibility within their home department. There is no evidence LaPointe was qualified to do the out-of- classification work that Greenway performed on the earlier shift. Johnson investigated LaPointe's complaint and reported to her that Greenway had been working out of classification and that LaPointe did not have a legitimate complaint. LaPointe was not satisfied by his explanation. Johnson and LaPointe met with Supervisor Forgette on December 25. LaPointe repeated her complaint and received the same explanation Johnson had given her earlier. A monthly overtime roster, which shows who worked where and when but is not always accurate or up to date, is maintained in Forgette's office. The roster did not show that Greenway had worked overtime as LaPointe claimed. LaPointe was satisfied with neither the roster nor the explanation of out- of-classification work and asked that Greenway's timecards be checked. Johnson said he had no authority to do this, and Forgette refused on the ground that it was contrary to company policy to show an employee the timecards of another employee. Forgette further advised LaPointe that to obtain an examination of the timecards she would have to file a grievance and thereby get the Union to look at Greenway's timecards. Later in the day, LaPointe asked Johnson to file a grievance for her over Greenway's alleged excessive overtime. Her admitted purpose was to secure an examination of Greenway's timecards. Johnson refused to process her grievance. According to LaPointe, when asked why he refused, Johnson told her he would not fill out the grievance because she was not a union member. Johnson testified that he did not process the grievance because there was no contractual violation and the grievance would be without merit. Johnson denies saying employees couldn't file grievance unless they were union members. LaPointe admittedly became angry at Johnson when he refused to accept the grievance, told him to "take his Union and go to hell with it," and thereafter, on a daily basis for about 2 weeks and then about once every 2 months, LaPointe asked him to file a grievance for her which he refused to do. LaPointe concedes that these requests after December 25 were only for the purpose of harassing Johnson. She further concedes that there has not seemed to be any further overtime problems and has since turned down overtime work. Johnson impressed me as a far more credible witness than LaPointe. He was attentive, articulate, direct, and sponta- neous in giving his answers to questions posed, and a conscientious witness whose account of the LaPointe affair appeared completely honest. LaPointe, on the other hand, was not in anyway as impressive a witness and admittedly was given to harassment for the sake of harassment. I conclude that, in this instance, Johnson did not refuse to accept her grievance because she was not a union member, nor did he tell her that was the reason as she claims he did. 6 Anderson had ample time to solicit Pinson 's signature, as he did of the 7 The factual account herein is a synthesis of the credited aspects of the two union member employees who refused , because he did not sign and file it testimony of LaPointe, Steward Womack Johnson, and Supervisor Paul until the day after he solicited others. Forgette 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In fact, he did investigate her complaint and went with her to discuss the matter with Forgette . His conclusion that her complaint was without merit is supported by the credible evidence, and, in the circumstances, his refusal to process her grievance was not unreasonable. That LaPointe was not satisfied with the explanation of Johnson and Forgette, which appears to be consistent with the evidence, did not require Johnson to go further and file a grievance merely to satisfy her desire to know what was on Greenway's timecard. There is no showing whatsoever that the timecard would indicate anything contrary to the explanation given to her. 4. The Rubie LaPointe and Linda Smith complaint of April 12, 1976 On April 12, 1976, LaPointe and Smith went to Steward Womack Johnson with a complaint that their supervisor required his shift to work until 15 minutes of quitting time, whereas other supervisors were letting their shifts quit earlier. The two told Johnson they wanted to file a grievance on the matter against their supervisor, Bradford. LaPointe testified that Johnson refused and, when pressed for a reason, said "Because you are not in the Union." According to Smith, Johnson said they had no reason to file a grievance because the contract called for 7 hours and 10 minutes of work, but she and LaPointe said they wanted to file one anyway and he replied that he would not file one because they were not in the Union. Smith further testified that she and LaPointe said they were going to the Labor Board if he didn't file one, at which time he laughed and said he didn't cares Johnson claims that he told the two women that he could not tell any supervisor how to run his shift, and then went to Supervisor Bradford and asked in jest "How about letting Ruby (sic) and Linda leave an hour early." Bradford replied that they were going to work 7 hours and 10 minutes.9 Johnson concedes that he was not seriously contending to Bradford that the employees should be allowed to quit early because he believed the complaint had no merit. He denies telling employees they could not file grievances unless they were union members. Johnson further testified, without contradiction, that he represented Linda Smith on three or four occasions and on one of these occasions he interceded with her supervisor, Bradford, after he came upon her crying, and successfully arranged for her to leave work an hour early so that she could get a ride home. I conclude that Johnson, who is corroborated by Smith on this point,10 advised LaPointe and Smith that their complaint would not constitute a meritorious grievance. This does not, in view of the contractual provisions , impress me as an arbitrary or capricious action. b The original charge filed by Smith and LaPointe on April 20, 1976, alleges a refusal by Respondent to process their grievances but alleges no reason for this refusal. The amended charge filed by Smith on May 26, 1976, specifically alleges a refusal to file a grievance, concerning supervisory harassment, because of their lack of union membership. 6 The contract provides that employees are to have two 10-minute paid relief breaks and a 30-nunute paid lunchbreak during an 8-hour workday. 10 LaPointe did not mention it, and as I have previously indicated I do not credit her where her otherwise unsupported testimony contradicts that of Johnson. In assessing the testimony of the three as to whether or not Johnson told Smith and LaPointe that he would not file a grievance for them because they were not union members, I have carefully considered the hostility of some of the stewards against representing nonmembers ; the prior harassment of Johnson by LaPointe; the superior impres- siveness of Johnson on the witness stand when compared with that of Smith and LaPointe; the disparity between the testimony of Smith and LaPointe as to what was said; 11 the failure of Smith and LaPointe to allege in the original charge, which they filed within 8 days of April 12, that Respondent had refused to process their grievance because they were not union members, even though they now contend this reason was given by Johnson ; and the inherent lack of commonsense, which Johnson appears to possess in ample quantity, and logical consistency in positing a statement of the type complained of immediately following a straightforward denial of the grievance as lacking in merit on patently colorable grounds . Although the matter in not entirely free from doubt, all the foregoing factors, particu- larly the distinctly superior demeanor of Johnson as a witness, persuade me that Womack Johnson did not tell Rubie LaPointe and Linda Smith that he would not file a grievance for them because they were not in the Union.12 5. Statements of Billy Latham Martha Morriss signed the petition withdrawing from union membership on October 31, 1975. She testifies that she called Billy Latham on November 18 or 19 and told him that employees were not getting the representation they were paying for. She did not tell him she wanted to file a grievance. According to Morriss, Latham told her that if he was to represent her, she would pay him $11 a month by check directly to him. She refused. She further claims that Latham told Steward Evans to settle a later grievance she had or drop it. As to this Evans matter, her testimony is that Evans told her "I've either got to settle it or drop it," and she settled it herself with the department head . On cross- examination, she stated that Evans was not the steward on her shift. It developed later that he had handled her grievance or grievances as a committeeman in what appears to have been an entirely proper manner. Although Respondent submitted two grievances filed on her behalf on November 17, for which the parties stipulated she received payment, Morriss only acknowledged they were indeed signed by her and filed on her behalf after denying she filed them, stating she didn't remember, and considerable equivocation and evasion as to whether or not she filed or received payment for them. I fmd her a most incredible witness with a very unreliable memory. Her entire demeanor was one of uncertainty and evasion. I therefore discredit her testimony in its entirety. According- 'i LaPomte does not mention Johnson's explanation that their complaint was without merit. 12 That Johnson later jocularly informed Bradford that the two women wanted to leave an hour early is, in my opinion , irrelevant. Nor does it make the purported grievance of LaPointe and Smith any more valid that the Employer subsequently required all other employees to stay on the job later, for this afforded no relief for Smith and LaPointe but merely confirms the lack of validity in their basic complaint , when viewed as a contractual grievance, that they should be let off earlier. HIGHWAY AND MOTOR FREIGHT EMPLOYEES , LOC. 667 403 ly, I credit Latham's testimony, which was direct and to the point without indication of prevarication, that Martha Morriss never approached him about handling grievances, but, rather, offered to send him a check for $11 to stay in good standing in the Union which he refused. I further credit his testimony that he correctly instructed her on the proper method to follow in applying for reinstatement and the appropriate fees and dues required to support that application. Furthermore, I do not credit her claim that Latham gave Steward Evans instructions to settle her grievance or drop it, or that Evans so told her. There is no allegation that Evans in any way violated the Act and the complete incredibility of Morriss on the matter persuades me that his conduct did not occur as she alleges. 6. Statements of Jim Alexander Billy Webb, a union member, testified that shortly after the 30 members dropped out of the Union on October 31, he stopped Alexander in the lab, asked him what was going on, and commented that it didn't seem right not to represent nonmembers. Alexander's answer, according to Webb, was that Billy Latham had said that, due to some new legislation, the Union did not have to represent nonmembers, and that in order to get union representation these employees would have to join the Union and pay back dues. Billy Don Brown avers that, during the second week of October, in a conversation about a possible dues increase among employees, including himself and Stewards Alexan- der and Droke, employee Powell 13 said that he would withdraw if the dues were raised to $11, and Alexander stated that he would not represent anybody who did not belong to the Union. Brown claims that Alexander repeated this statement on several later occasions. Dorothy Cunningham, says that, during the last week in October at her work station, Alexander told her that if her supervisor harassed her Alexander would take care of him and then asked her when she was going to join the Union. According to Cunningham , she told him that she had seen nothing the Union had done to make it worth her while. This angered Alexander who said , "Well, we are not putting on any show. That makes my ulcer boil up . I can't stand statements like that." Alexander then told her that there was a short period of time during which she could join the Union at a reduced price and if she ever needed to write a grievance, or had any trouble, or needed help, "You needn't to call on us because we will not help you. We have previously been helping nonunion members but we are not going to anymore." Cunningham further testified that Alexander remarked that he was "tired of scabs riding free horses." Alexander denies ever telling any employee he would not represent them or that he ever refused to process a grievance. He denies ever having any conversation with her. He concedes that he may have told a 100 people a day that it made his blood boil when nonmembers asked for representation, and testified that this is how he felt about it. 13 Powell did not testify. 14 See N.L R.B. v. Walton Manufacturing Company & Loganville Pants Company, 369 U.S. 404, 408 (1962). Alexander also asserts that he told employees that he had heard that there was a rumor that a law had been passed permitting the Union to refuse to represent nonmembers and to charge them a fee for representation given to them, but denies telling anyone that Billy Latham had told him this, or that any union official ever told him he did not have to represent nonmembers. Alexander remembers no con- versations of any kind with Billy Webb , but concedes it is possible that he may have mentioned the rumors to him as he did anyone who asked him. Alexander is adamantly opposed to representing non- members, as reflected by his testimony, that of Gaylon Meals regarding statements made by Alexander to the effect he didn't see how nonmembers had the guts to ask for representation, and his entire demeanor while he testified. I am convinced that his hostility colored his testimony, and that he did make the statements to which Webb , Cunning- ham, and Brown testified. I do not believe his testimony that he never talked to Webb and Cunningham, who appeared to be testifying credibly without ulterior motive or intent to deceive, nor do I believe his testimony that he did not say to anyone that he would not represent nonmem- bers. His testimony was so incredible that it reinforced the truth of the testimony of Webb, Cunningham, and Brown.14 I do not conclude that Billy Latham did in fact make the statements reported by Alexander to Billy Webb. 7. Statements of George Droke Droke, Billy Don Brown, Alton Hart, and Billy Webb were in a conversation in the lab sometime shortly after October 31 .15 Lanny Powell and Lewis Wilkins were also present. Powell and Wilkins were no longer union mem- bers. A discussion of processing grievances ensued. Brown testified that Droke said he had been instructed by Union President Mitchell not to process a grievance for anybody that didn't belong to the Union and would follow this instruction until Mitchell rescinded it. Brown avers that this statement by Droke ended the conversation. Hart says that the men were joking with each other and somebody called Powell or Wilkins a "scab." He believes it was Powell, and that Powell said it was all right because he was not paying the $11 a month . Something about representation was said and Powell commented that Droke would have to represent him anyway. Droke replied, in a joking way, that he did not have to . Hart says that at the time this occurred there was a lot of jesting going on because of the petition signed by employees to withdraw from the Union, and that the conversation on this topic usually got started by someone calling another employee a "scab." Webb's version is that Hart, Brown, and Droke were telling Powell and Wilkins that they had better not get into any trouble "and all that they couldn't represent them." The thrust of his testimony is that all three told Powell and Wilkins they could get no representation. Webb is vague as to whether or not Droke said this on any other occasion for the asserted reason that he doesn't recall who said it at 15 1 place the date as after October 31 because Powell and Wilkins signed the petition withdrawing from membership on that date. 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD various times. Droke told Webb, after the charges were filed, that until he got something in writing to the contrary he would continue to represent nonunion people. Webb testified that Droke represents anyone who asks him to, and that everyone was poking fain at the people who had dropped out of the Union, but he doesn't know whether or not Droke was joking when he said he couldn 't represent Powell and Wilkins. Droke first denies he ever told anyone he would not represent them and testified that while the conversation was proceeding in a "joking way," Powell and Wilkins said they had got out of the Union and Droke still had to represent them like union members and that they were saving $11 a month being represented for nothing. Droke says that he responded that they should have to pay back dues if the Union represented them, but never said "we" would not represent them, and did say to them that if they had a grievance he would file it the same way he had in the past. On cross-examination, Droke first denied telling Powell and Wilkins at anytime that he would not represent them, but concedes telling them that he did not have to represent them. Droke then denied that Union President Mitchell told him that the Union did not have to process nonmem- bers' grievances but would if they were requested. When General Counsel showed him his pretrial affidavit wherein he says that Mitchell did make such a statement to which Droke replied that he would continue to represent employ- ees until he received something in writing that said he was not to do so, Droke - testified that he still did not remember Mitchell making that statement . I credit Droke's sworn and cross-examined testimony on this subject and, with all due regard to the care exercised by the Board agent taking the statement, would observe that it is not uncommon for one to misconstrue what another says and that it is not uncommon for persons to hastily read over important documents under the general impression that all is well therein without scrutinizing each jot and tittle of its contents. Thus, I place no importance on this variation between the pretrial statement and the sworn testimony. After a comparison of the foregoing testimony, with due consideration for the surrounding circumstances and the fallibility of the human memory, I conclude that Droke did tell Powell and Wilkins that he did not have to represent them. That he may have said this in a joking manner does not lessen its import for, as General Counsel contends, what may have been said in jest by one may be taken in earnest by another. I found Webb's testimony to be quite uncertain as to specifics and cannot on the basis of this shaky testimony conclude that Droke said he couldn't represent Powell and Wilkins . I do not credit Brown's claim that Droke said he was under instructions not to represent nonmembers because it is totally unsupported by the other witnesses to the conversation and is a statement of a type, invoking as it does the name of the highest union official, is I find it of no significance that Meals ' pretrial affidavit merely states that he told employees he "heard there was a law that just came out of the Supreme Court" that a union could require nonmembers to pay back dues for the processing of grievances, and does not contain the word "rumor." General Counsel's attempt to make much of this pretrial omission is, in my opinion, a naive exercise in semantics. IT I conclude, although the matter is not free from doubt, that Meals made this statement in late October, within 6 months of the charge, because that might be reasonably expected to impress itself on the memory of the hearers. 8. Statements of Gaylon Meals Employee Billy Don Brown claims that Meals, during a discussion sometime in October concerning the filing or processing of grievances, stated that he would not represent anybody that didn't belong to the Union. Meals denies making any such statement to any employee, but states that several employees asked him if it was true that nonmembers could be charged for any grievances they might wish to process. He further states that he told them he did not know and it was just a rumor that he had heard16 to the effect there had been a Supreme Court ruling that the Union could charge nonmembers back dues for the processing of grievances but there had been nothing in writing on it and all it was a rumor. Respondent, in its answer to the complaint , admits that Meals had informed employees that he had heard there was a decision from the Supreme Court that the Union could require nonmembers to pay dues if they wanted a grievance processed on their behalf. Meals' admission that he had called nonmembers "scabs" and had said several times to several employees that he did not see how nonmembers could have the guts to ask the Union to process their grievances when they were not paying dues, and his further testimony that he still felt that way about it, amply demonstrates his hostility toward representing nonmembers. With this in mind and consider- ing that I did not observe his demeanor to be superior to that of Brown, I credit Brown and conclude that Meals did tell Brown, in October,17 that he would not represent anybody that did not belong to the Union. I further conclude, as Meals and Respondent admit, that he did tell employees, in response to their question, that he had heard a rumor, which was only a rumor and not a definite fact, that the Supreme Court had ruled that unions could require nonmembers to pay for the processing of their grievances. 9. Statements of Bill Maness In February 1976,18 William Grantham and the six other employees in his classification complained to Steward Womack Johnson that their supervisor was harassing them by standing around and watching them. Grantham told Johnson that he wanted to file a grievance on the matter. Johnson expressed his opinion, after talking to the supervi- sor, that they had no legitimate complaint and the supervi- sor was paid to watch them, but Grantham still wanted to file the grievance. Johnson consulted with Billy Latham who told him to let them file. Johnson then wrote up the it appears from the record that the discussions of employees withdrawing from membership and their right to use the grievance procedure were intensified and became a common topic about the time 30 did withdraw on October 31, and it was in the context of these discussions that Meals made his statement. 18 Although Grantham places the time as February or March, I conclude It was February because he was a member at the time and testified he withdrew in February. HIGHWAY AND MOTOR FREIGHT EMPLOYEES, LOC. 667 405 grievance and took it around to all seven employees, two of whom were not members. Only four signed.19 Two subse- quently withdrew their names from the grievance and the remaining signers destroyed it. There is no allegation or evidence of impropriety by Johnson in handling this grievance. Grantham testified that after initiating the grievance with Johnson he went to Steward Bill Maness 20 and asked him if a nonunion member could sign the grievance. Maness purportedly told Grantham not to let the two nonmembers sign the grievance. I do not credit Grantham because Johnson credibly testified that it was he who took the grievance around to all employees to have it signed, and there is no evidence that Johnson barred anyone from signing. On the contrary, I believe his testimony that he did give everyone a chance to sign. It is incredible that Grantham would go to a steward other than the one already handling the grievance for advice, and then not report Maness' advice to Johnson who had not at the time, according to Grantham, even written up the grievance for signatures. In all the circumstances, including Grantham's rather confused and hesitant manner as he testified, I do not believe his testimony that Maness said not to let nonunion members sign, and the failure of Maness to appear and deny this testimony does not alter my conclu- sion.21 10. Miscellaneous Anderson testified, and I conclude, that he told several employees that he had heard a rumor that nonmembers could be charged for back dues if a grievance was filed on their behalf. It appears from the record that these remarks were prompted by employee questions.22 Cunningham testified that, in about November, she told Womack Johnson that another nonmember had told her that he had been told he would be fined up to $500 if he turned in a grievance, and asked Johnson if it was true nonmembers could not turn in a grievance, to which he replied "That's what they have told us to do." Johnson denies telling any employee that nonmembers could not file a grievance. Although I have heretofore found Cunning- ham credible on other matters, Johnson was far and away the most credible witness to testify before me in this proceeding, and I accordingly conclude that he did not say "That's what they have told us to do," as Cunningham claims. Grantham testified that he overheard part of a conversa- tion between employee Daniels and Steward Johnson wherein Daniels asked if a nonmember can file a grievance. Grantham claims he volunteered that they could not, and that Johnson said they could not unless they were planning to join the Union and they would have to pay back dues. 19 1 do not credit Grantham's testimony that he told the two nonmembers they couldn't sign, or that the two never saw the written grievance. 9 Maness and the other six potential grievants were not called as witnesses. 21 Respondent proffered, without contradiction, that Maness is no longer an employee of the Company and could not be contacted to testify. 22 As in the case of Meals, I find for the same reasons that the distinction between "heard" in an affidavit and "heard a rumor" on the witness stand is not material. 23 Daniels has since left the Company and moved out of State. She did not appear at the hearing. Johnson explains that Daniels had come to him and requested resignation from the Union because she was planning on leaving. He told her he wouldn't advise it because if she didn't go and wanted to rejoin she would have to pay $30 plus all back dues, which he later found out was in error because all that was required was $30 plus 1 month's dues. Johnson denies telling Daniels she would not be represented unless she paid back dues. I conclude that Grantham, who I have earlier discredited vis-a-vis his conversation with Bill Maness, only heard a small portion of the conversation and testified to a garbled version of what actually was said, confusing his own statement with that of Johnson. I credit Johnson's version and conclude he did not make the statement to Daniels 23 that Grantham claims he did. B. Concluding Findings It is so well settled as to render supporting citations superfluous that once a labor organization enters into a collective-bargaining agreement with an employer it is bound to fairly and equally represent all employees covered thereunder. Respondent has, by its agents, breached that duty and violated Section 8(b)(1)(A) of the Act in the following respects: 1. Steward Anderson failed and refused to fairly repre- sent Mary Pinson in November 1975 by deliberately failing to file and process a meritorious grievance on her behalf, and arbitrarily and unfairly deprived Mary Pinson of the proceeds of that grievance by filing it on his own behalf, all because she was not a member of the Union. 2. Steward Anderson plainly coerced Mary Pinson in the exercise of her right to refrain from joining the Union and threatened her with a deprivation of union representa- tion, to which she was entitled, unless and until she joined the Union by telling her that she could not sign a grievance because she was not a union member and could not receive the proceeds of a grievance because she was not a member. 3. Steward Alexander coerced employees in the exercise of their rights set forth above by (a) telling employee Webb, in early November 1975, that he had been instructed by the Union's business agent that Alexander did not have to represent nonmembers, and in order to get representation nonmembers would have to join the Union and pay back dues; (b) telling employees on several occasions after the second week in October 1975 that he would not represent anyone who didn't belong to the Union; 24 and (c) telling employee Cunningham, during the last week of October 1975, after she declined to join the Union and expressed her displeasure with it, that the Union would not help her with her problems and was no longer going to help nonmembers. 4. Steward Droke, in early November 1975, similarly coerced employees Powell and Wilkens by telling them he 24 Although I find that Alexander told employee Powell, during the second week of October 1975, that he would not represent anyone who didn't belong to the Union, I do not find this to be an unfair labor practice because the second week ended on October 11 and thus preceded the filing of the original charge by more than 6 months. This conclusion that the statement was made more than 6 months prior to the charge is based on the testimony of Brown that it happened then and that Powell was then considering withdrawing from the Union. Powell withdrew on October 31. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD did not have to represent them because they were not union members. 5. Steward Meals, in late October 1975, coerced em- ployee Brown in the same manner by telling him that he would not represent anybody that did not belong to the Union. These acts and statements of Respondent's agents coercively impressed on employees that unless they joined the Union they would receive no representation from it in the grievance procedure. This not only is in direct disregard of Respondent's obligation to represent nonmembers and members equally, it is in flagrant violation of the right guaranteed to employees by Section 7 of the Act to refrain from union activity, and the collective-bargaining agree- ment expressly permits them to refrain from, or to resign from, membership in the Union. I therefore conclude that Respondent by the actions and statements of its agents Anderson, Alexander, Droke, and Meals in each and every instance detailed above violated Section 8(b)(IXA) of the Act.25 The fact that Respondent has accepted and pro- cessed grievances for nonmembers does not mean that it will continue to do so and does not lessen the impact of the above-enumerated actions on employees' rights. Although the record clearly reveals that certain of Respondent's agents, notably Anderson, Alexander, and Meals, did tell numerous employees, in response to their questions, that they had heard rumors that Respondent need not represent nonmembers and might be able to charge them for back dues as a condition of processing their grievances, I do not find these recitations of rumors, clearly labelled as such, to be violations of the Act. That these responses to their questions may have made employees apprehensive I do not doubt, but I do not view them as coercive threats, as General Counsel suggests. I can conceive of no other reply, other than to stand mute, Respondent's agents could make . Furthermore, the answers were truthful and were not given as positive affirmation of the speculative content of the rumors related. I find that, apart from items 1 through 5 hereinabove found to be unfair labor practices, the General Counsel has not shown by a preponderance of the evidence that any other unfair labor practices occurred as alleged in the complaint. V. THE REMEDY In order to remedy the unfair labor practices found herein my recommended Order will require Respondent to cease and desist therefrom, and, in view of their serious nature which effectively deprived nonunion employees of access to the grievance procedure and directly obstructed employees in the exercise of their Section 7 rights, to cease and desist from infringing upon the employees' Section 7 rights in any manner. Additionally, my recommended Order will affirmatively require Respondent to post an 25 International Brotherhood of Electrical Workers, AFL-CIO, Local Union 1504 ( Western Electric Company, Inc.), 211 NLRB 580 (1974); International Association of Machinists and Aerospace Workers, Local Union No. 697, AFL-CIO (H.O Canfield Rubber Company of Virginia, Inc), 223 NLRB 832 (1976); United Steelworkers o(America, Local No. 937, AFL- CIO-CLC (Magma Coppper Commppaany), 200 NLRB 40 (1972); International Union of District 50 AUed and Technical Workers (Dow Chemical Company- Rocky Flats Division), 187 NLRB 968 (1971) appropriate notice to its members and all other employees in the form and manner described below, and make Mary Pinson Forthman whole for the 4 hours' pay of which she was deprived by Steward Anderson's action, with interest computed thereon at 6 percent per annum in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the above findings of fact and the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Owens-Corning Fiberglas Corporation is an employ- er within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent, at all times material herein, acted as collective-bargaining representative of the employees of the Employer, in an appropriate unit, including, among others, all employees named in this Decision. 4. Womack Johnson, Jim Alexander, George Droke, Gaylon Meals, Barney Anderson, Bill Maness, John Mitchell, and Billy Latham are and have been, with the sole exception of Bill Maness whose employment terminated some time after February 1976, at all times material agents of the Respondent within the meaning of Section 2(13) of the Act. 5. By the above-found statements and acts of Alexan- der, Droke, Meals, and Anderson, set forth under "Con- cluding Findings," Respondent has coerced and restrained employees of the Employer in the exercise of their rights guaranteed by Section 7 of the Act and thereby violated, and is violating, Section 8(b)(1)(A) of the Act. 6. Respondent has not committed any other unfair labor practices alleged in the complaint. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 26 The Respondent, Highway and Local Motor Freight Employees Local Union No. 667, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Failing and refusing to process grievances against the Employer on behalf of Mary Pinson Forthman, or any other employee, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employ- ment, because of nonmembership in Respondent. (b) Restraining and coercing employees in the exercise of their Section 7 rights by refusing or threatening to refuse to 26 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. HIGHWAY AND MOTOR FREIGHT EMPLOYEES, LOC. 667 represent them or to permit them to sign a grievance because they are not members of Respondent. (c) Threatening to refuse to represent employees unless they become members of Respondent and/or pay back dues to Respondent. (d) Processing and retaining the proceeds of grievances rightfully due employees because said employees are not members of Respondent. (e) In any other manner restraining or coercing employ- ees of the Employer in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the purposes of the Act: (a) Upon request, investigate and process grievances for Mary Pinson Forthman, or any other member of the bargaining unit, without regard to union membership of the grievant. (b) Make Mary Pinson Forthman whole for the loss of 4 hours' pay she incurred by reason of Respondent's failure and refusal to represent her in the grievance procedure because of her lack of union membership, in accordance with "The Remedy" herein. (c) Post at its business office and meeting halls copies of the attached notice marked "Appendix." 27 Copies of said notice, on forms provided by the Regional Director for Region 26, after being duly signed by the authorized representative of Respondent, shall be posted by Respon- dent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members and employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Furnish to the Regional Director for Region 26 signed copies of said notice in sufficient number for posting by Owens-Coming Fiberglas Corporation at its Jackson, Tennessee, location, if said Employer is willing to so post. 27 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading"Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 407 (e) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges unfair labor practices not found herein. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing in which all parties had an opportunity to present evidence, the National Labor Relations Board has found that we have violated the National Labor Relations Act and has ordered us to post this notice. WE WILL NOT fail or refuse to faithfully process any employee's grievances because he or she is not a member of this union. WE WILL NOT tell employees that their grievances will not be initiated or processed because they are not union members. WE WILL NOT tell employees that they must join the Union or pay back dues in order to get their grievances processed. WE WILL NOT in any other manner restrain or coerce employees in the exercise of their rights under Section 7 of the Act. WE WILL make Mary Pinson Forthman whole for the loss of 4 hours' pay she suffered because we did not file and process a grievance on her behalf. HIGHWAY AND LOCAL MOTOR FREIGHT EMPLOYEES LOCAL UNION No. 667, AFFILIATED WITH THE INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA