E. L. Mustee & Sons, Inc.

E. L.- MUSTEE & SONS, INC 203 E. L. Mustee & Sons, Inc. andJerry Wayne Williams International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Teamsters, Local Union 507 and Jerry Wayne Williams., Cases 8-CA-8168 and 8-CB-2297 December 3, 1974 DECISION AND ORDER' By CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On July 23, 1974, Administrative Law Judge George J. Bott issued the attached Decision in this proceeding. Thereafter, Respondent Union filed exceptions and a supporting 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 at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions2 of the Administrative Law Judge and to adopt his recommended Order. ORDER Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Teamsters Local, 507,,herein called Union or Respondent-Union, the General Counsel of the National Labor Relations Board issued complaints against said Respondents on March 29,'1974, alleging that they had engaged in unfair labor -practices in violation of the National Labor Relations Act, as amended, herein called the Act. Respondent filed answers denying the commis- sion of any unfair labor practices. Pursuant to an order consolidating cases and a notice of hearing, a hearing was held before me, in Cleveland, Ohio, on May 8 and 9, 1974, at which all parties were represented: Subsequent to the hearing, General Counsel, the Company and the Union filed briefs which have been considered. Upon the entire record in the case and from my observa- tion of the witnesses, I make the following:' FINDINGS OF FACT I JURISDICTION OF THE BOARD The Company is engaged in the manufacture of shower stalls and laundry trays in Cleveland, Ohio. In the course of its business operations, the Company each year receives pro- ducts valued in excess of $50,000 at its Cleveland, Ohio, facilities, directly from points located outside the State of Ohio. The parties concede, and I find, that Respondent- Employer is an employer engaged in commerce within the meaning of the Act. Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondents, E. L. Mustee & Sons, Inc., Cleveland, Ohio, its officers, agents, successors, and assigns, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Teamsters Local Union 507, Cleveland, Ohio, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. 1 Respondent Union has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibil- ity unless the clcar preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (CA 3, 1951) We have carefully examined the record and find no basis for reversing his findings 2 In several instances in his Decision, the Administrative Law Judge speaks of Sec 8(b)(1)(B) of the Act In each instance, he clearly means Sec 8(b)(1)(A), and we hereby correct his inadvertent and nonprejudicial error DECISION STATEMENT OF THE CASE GEORGE J. BOTT, Administrative Law Judge: Upon charges of unfair labor practices filed by Jerry Wayne Williams on February 8, 1974, against E. L. Mustee & Sons, Inc., herein called Company or Respondent-Employer, and International II THE LABOR ORGANIZATION INVOLVED Respondent-Union is a labor organization within the meaning of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Respondent-Employer's Alleged Violations of Section 8(a)(3) and (1) of the Act 1. The facts The Company and the Union are parties to a collective- bargaining contract dated November 13, 1971, and expiring October 31, 1974, covering the Company's Cleveland, Ohio, facilities, which, inter alia, established wage rates for various classifications of employees, with yearly increments of 40 cents per hour effective on the anniversary date of the agree- ment. At the time the pertinent events in this case took place, Jerry Williams was the union steward at the Company's Junc- tion Road warehouse.' On November 13, 1973, which was the day that all employees were due to receive a wage increase of 40 cents an hour under the terms of the collective-bargain- ing contract, Roy Mustee, supervisor at the Junction Road plant, told Williams and others that there would be a meeting ' General Counsel's unopposed motion to correct the transcript is hereby granted 2 Approximately 25 persons were employed at Junction Road at the time Respondent has another facility at Loraine Avenue, Cleveland, Ohio, known as the Loraine plant, where approximately 50 employees work 215 NLRB No. 35 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of all employees that day at the Company's main plant on Loraine Road. After the employees assembled at the main plant, they were addressed by John Trunzo, one of Respondent-Union's busi- ness agents, who was accompanied by two other business agents. According to the credited testimony of Williams, Trunzo advised the employees that the Company was in fi- nancial trouble and could not afford to pay the scheduled increase. Trunzo then stated that the purpose of the meeting was to take a vote on whether or not to accept a cut in the amount due them. According to the credited testimony of employee Shaw, who was corroborated by employee Cole- grove, Trunzo informed the employees that the Company desired a 25-cent reduction in the upcoming increase, but the Union had agreed to a 20-cent reduction, and that was what he recommended. Before the vote was taken, Williams spoke against taking a cut. He questioned whether the Company was actually unable to afford an increase, and he asked why the Com- pany's attorneys were not present as they were the previous year.' Trunzo replied that lawyers were unnecessary be- cause the Company was in financial trouble according to their records and there was no need to check the Company's records.' Williams responded that the employees would be willing to hire their own attorney to check the Company's claim, but Trunzo commented that the Company would have to lay off a substantial number of employees on the following Monday if it had to pay the full increase. A discussion followed about the method of voting. A standing vote was taken and the employees voted unani- mously not to accept a reduced increase. Later that day, the Company posted a notice announcing a layoff of approxi- mately 45 employees. Subsequent to the meeting and prior to-the announcement of the layoff, Williams initiated and circulated a petition which the Junction Road employees signed in the appropriate column to show whether or not they were willing to take a cut All but two of them indicated opposition to it. It was Williams' intention to have this document circulated at the main plant and to present it to an attorney for his advice. He testified without contradiction that Supervisor Mustee was nearby when the petition was being signed. He also testified without contradiction that when he returned to the Junction Road plant after the vote, Roy Mustee asked him how the vote turned out, and he replied, "We won." On Friday, November 16, 1973, Roy Mustee informed the Junciton Road employees that another meeting would be held at the main plant that day. At this meeting, Trunzo again, accompanied by two other business agents, presided and in- formed the employees that there would be another vote be- cause the Company was in dire financial straits and would have to lay off numerous employees if they did not vote to accept a cut. According to the credited testimony of Williams,' he again protested taking a vote, this time point- ing out that the employees had already turned the proposition down and indicating that a second vote was "illegal." He said ' When a similar vote was taken a year earlier, the employees voted to accept less than the contract provided A It was never made clear who made these representations to the Union or on what facts and records they were based 5 Basically corroborated by employees Shaw and Colegrove. Trunzo replied that the vote would nevertheless be taken. Trunzo asked the stewards to supervise the vote and sug- gested how it be conducted. Williams opposed the proposal, indicating that it might be vulnerable to ballot box stuffing. With the support of the employees, he demanded that the ballots be dropped into a hat in view of all the employees, and this method was adopted. Before the actual balloting took place, Williams continued to argue with Trunzo, insisting that the Company's books should be inspected by an attorney, but Trunzo stated that it was the Union's responsibility to represent the employees and they did not need a lawyer. He reiterated that Respondent had financial problems and that a layoff was imminent if a cut were rejected. William asked Trunzo if the Union's bylaws did not cover the situation the employees were confronted with. He said Trunzo replied that bylaws had nothing to do with the case and that he got his orders from his "boss." According to Williams' uncontradicted testimony, he asked the same question of another business agent who became "bitter" and began "yelling." Before the discussions ended and the balloting began, Williams announced that he did not care if it cost him his job, but he was still against taking a cut. The exchanges between Trunzo and Williams were "heated," according to employee Shaw, and at one point Trunzo told Williams that "you'll get in trouble" according to employee Colegrove. Williams also testified that Trunzo was "angry" and told him that if he did not "shut up," he would be in "trouble." Trunzo could not remember making such a re- mark and was inclined to deny it, although he conceded that he may have told Williams to shut up because he was monopolizing the debate. Although the "get in trouble" re- mark does not appear in Williams' affidavit given the Board during the investigation of the case, I credit his and Cole- grove's versions The vote was taken and this time the employees voted to accept the cut. I credit Williams' uncontradicted testimony that after the results were announced he continued to protest to Trunzo and the other business agents present that the second vote was unfair. When Williams returned to the Junc- tion Road Plant, Supervisor Mustee asked him what the re- sult was, and he replied, "We lost." Williams testified that on or about December 5, 1973, he was approached in the plant by Supervisor Roy Mustee who started a conversation by commenting that he had heard that Williams was going to retire. Williams said he was taken by surprise by the question and asked Mustee what he meant. According to him, Mustee stated that the Company did not "want people working for [it] that make waves and you make waves." Williams testified further that Mustee then walked him to another area of the plant while continuing to talk about retirement. During the conversation, according to Wil- liams, Mustee told him that if he did not resign, things could "get rough" for him and Mustee could assign him dirty and difficult jobs. According to Williams, the jobs which Mustee then proceeded to list as examples were tasks that he did not normally perform. Williams also testified that Mustee told him that Robert Mustee, the Company's vice president in charge of production, had told him "to get" Williams no matter "how long it takes . ..." Williams refused to quit, he said, and asked Roy Mustee for a few days to consider the matter, and Mustee agreed. E. L. MUSTEE & SONS, INC. On December 6, after consulting an attorney, Williams wrote to the Union and stated that because of his "status as a shop steward, and because [he] opposed the cut in . . pay," Roy Mustee had demanded his resignation and threat- ened to harass him until he did. He never received a reply to his communication. On December 7, when Williams returned to work, Roy Mustee asked him for his resignation, but it was not forth- coming. When Mustee adked him if he ever intended to re- sign, Williams said he might at some future date. He said that Mustee indicated that he would give him a few more days to make up his mind, but that he never gave Mustee the response that he wanted, and shortly after Mustee's last request, Mus- tee assigned him to the dirty job of cleaning dock plates, a job he had never previously done. On January 7, 1974, a box fell on Williams and injured him slightly. I credit this testimony, which was corroborated by employee Shaw, that Roy Mustee learned of this incident. I also credit Williams' testimony that because of the injury he stayed at-home on January 8, but had his wife telephone Roy Mustee at the plant and explain to him why he was off work.' Upon reporting for work on January 9, 1974, Williams was discharged by Roy Mustee. During the course of their con- versation about the discharge, Williams said that Mustee told him that he must have known that he was "going to be fired sooner or later for [his] activities." Williams said Roy Mustee added that if he wanted to do anything about it, he would have to talk to Robert Mustee. Williams filed a grievance over his discharge, which states in part that his discharge was for "too much time off," and which refers to his absence on January 7 because of an injury. He also telephoned Robert Mustee and asked him why he had been fired He said that Mustee at first informed him that the reason was because of too much time off, but that during the conversation, Mustee told him that "we could hear every- thing that you were saying that day in the office, and you got the Union pretty mad at you." According to Williams, Mus- tee went on to explain that, "We don't want people making waves around here. We want people for the Company._ Be- sides, you wrote up a grievance and any time somebody writes up a grievance, we get rid of them. The Union may stick up for you once, but not twice, and that's when we get them." Williams said he asked Mustee to rehire him but that Mus- tee said he would have to talk with Roy Mustee first and for Williams to call back. Williams telephoned Mustee again on the next day, but Mustee told him that he would not be rehired. Supervisor Roy Mustee denied that he had told Williams that he "made waves," that the Company did not want per- sons "who make waves," or that Robert Mustee told him "to get" him no matter how long it took. He also denied threaten- ing him in any way or reprimanding him for anything other than absenteeism. With respect to conversations about Wil- liams' quitting, he said he had had "friendly" conversations with Williams over a long period of time because Williams had told him on a number of different occasions that he was thinking about going into business or joining the armed ser- vices. This uncertainty on Williams' part, he said, cause him 6 Mrs Williams testified credibly that she made the call 205 to inquire about his plans occasionally, because he had to know ahead of time whether he would need a replacement for him. Roy Mustee also denied that Mrs. Williams telephoned him on January 8 and told him that her husband would not report that day. According to him, he had reprimanded Wil- liams earlier for absenteeism , and on January 8, in a conversa- tion with Robert Mustee, he commented that Williams was absent again. He said Robert Mustee directed him to termi- nate Williams. Robert Mustee testified that Williams had a long record of absences, which he was aware of, and that he had previously decided to terminate him and had so advised the Union, but he was persuaded to change his mind by the intervention of Trunzo, the Union's business agent . On January 8, Williams was absent again Roy Mustee commented on Williams' absence-something that he had already observed from com- pany absentee reports-and so he told Roy to terminate Wil- liams. He admitted that Williams telephoned him more than once after his discharge and talked with him, but he said he told Williams that he had been fired for taking too much time off, and he denied that he threatened him. I do not credit Roy and Robert Mustee in regard to the various threats or other remarks that Williams attributed to them. Roy Mustee's version of how he might have mentioned retirement to Williams in late 1973, or at some other indefi- nite time, appeared contrived and a convenient explanation for pressing Williams for his resignation not long after Wil- liams had opposed the proposed reduction in the scheduled wage increase. He also appeared not to be fully recounting his contacts or conversations with Williams, and I was particu- larly unimpressed by his weak denial of Mrs. Williams' tes- timony about her telephone call to him. I have, on the other hand, carefully considered Williams' testimony and his de- meanor, as I recall it, as well as the contentions of respond- ents and the matters they have brought to my attention as bearing on his credibility, and I conclude that those defects are relatively insignificant.' I credit Williams over Roy Mustee, and I find that the latter told Williams on December 5, 1973, that he "made waves" and the Company disapproved of it;' asked for his resignation and threatened him with re- prisals if he did not submit it; and told him that Robert Mustee had instructed him to get him no matter how long it took. I also find that Roy Mustee told Williams when he fired him on January 9, 1974, that he should have known it was coming because of his prior "activities."' ' For example, the testimony in regard to the noise level at the point where Williams and Roy Mustee started their December 5 conversation was unclear, somewhat inconsistent and unpersuasive in addition, Williams, like most witnesses, was inclined at times to remember the strong points in his case more quickly than he recalled the weaker ones, but, in my opinion, this does not materially affect his credibility Other items, such, as discre- pancies in time, distance, or location, such as in Williams' and Shaw's versions of where they were when Roy Mustee opened the December 5 conversation with Williams, are the normalt inconsistencies found in the testimony of witnesses who observe the same scene 8 Williams is corroborated in this instance by employee Shaw ' Although I am inclined in the direction of finding that Roy Mustee assigned Williams the dirty work of cleaning the dock plates after their conversations about Williams ' resigning in order to show him that he meant business, I find it unnecessary to resolve this question or the issue of whether or not Williams was, contrary to past practice, assigned a variety of jobs after he refused to resign, because I am convinced that Williams honestly believed that he was being harassed in this area because of his position on the wage increase, and also because I am unpersuaded by anything in the record to (Continued) 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Robert Mustee's testimony about his conversations with Williams after his discharge is generally sketchy and impre- cise, and it is•practically incomprehensible in regard to what Williams or he said about the filing of grievances. Mustee was also inclined to ramble in his testimony and to tend to evade direct questions. He also appeared confused and somewhat embarrassed. Although Williams' account of Mustee's de- tailed revelation during their talk of what really motivated him to discharge Williams might seem at first glance a reck- less and, therefore, an unlikely confession for a sophisticated executive to make when questioned about it by the employee involved, my observation of Mustee as a witness has led me to believe that he is not experienced in these matters and could very well have unburdened himself to Williams. I credit Williams' version of their conversations. With respect to absenteeism on which Respondent- Employer relies as an explanation for Williams' discharge, the record shows as follows: Williams was absent 27 times from January 1, 1973, through January 8, 1974. On Septem- ber 20, 1973, Supervisor Roy Mustee gave him a written warning for taking too much time off, and, on December 7, 1973, after Williams had been absent on other occasions, he repeated the warning. On December 10 the Company wrote to the Union stating that it contemplated discharging Williams for absenteeism. According to the uncontradicted testimony of Robert and Roy Mustee and Union Business Agent Trunzo, Trunzo tele- phoned the Company and insisted that it not fire Williams. Robert Mustee agreed not to go forward with the discharge. In 1973 seven employees, including Williams, who had poor attendance records were fired by the Company. The record also shows, however, as will appear in greater detail below, that in each of the six other cases the employee was fired for a combination of circumstances, including absences in prior years, short term employment and other factors. An exhibit in evidence shows that no person presently employed by the Company had more unexcused absences than Williams in 1973. Robert Mustee testified that the Company attempts to hold the number of unexcused absences an employee may incur without discharge to 20 per year, but he also described the policy as flexible. Mustee also indicated that an employee who missed more than 20 days in any year was subject to discharge and that absences may be carried over to.the next year However,' as will be discussed below, the examples he gave of carryovers were in the cases of new employees hired in the middle of a year, and Roy Mustee, Williams' supervi- sor, contradicted him by testifying that in the case of an employee who had beeh employed for more than a year, the slate is normally wiped clean of absences at the end of the calendar year. As found earlier, Williams was discharged on January 9, 1974, after having been at home on January 8 because he injured his back on the job on January 7. Respondent- Employer knew of the injury and the reason for the absence. the contrary, and there is very little, that a reasonable man would not also have believed as Williams did 2.. Analysis, additional findings and conclusions in Williams' case Shop Steward Williams engaged in union and other pro- tected concerted activities by opposing the reduction in the scheduled pay increases provided for in the collective-bar- gaining contract and by vigorously taking a position on that and other subjects contrary to the Union's business agents at the November 16, 1973, meeting. The issue of the reduction in the upcoming pay raise was important to the Company, and it disapproved of and re- sented Williams' leading of the opposition to the cut and told him so. I have found, for example, that Roy Mustee accused him of "making waves" and sought to force him to quit not long after the November 16, 1973, meeting, and then told him after his discharge that he must have known that he was going to be fired at some time because of his activities. In addition, when he subsequently spoke with Robert Mustee, Williams was reminded of the November 16, 1973, meeting, and his heated opposition to the Union's recommendation to take a wage cut, which Mustee described as "making waves," and he was then told that his filing of a grievance about Roy Mustee's treatment of him was another reason to get rid of him. On the basis of these clear admissions of Respondent's real motivation in discharging Williams, a finding of a viola- tion of the Act is practically compelled unless Respondent- Employer has introduced persuasive evidence of valid busi- ness considerations sufficient to overcome the General Counsel's case. I find that it has not and that its reliance of Williams' record of absenteeism is pretextual in order to con- ceal the real reason for his discharge. Respondent, contending that six persons were fired for absenteeism in 1973, relies heavily on these discharges in an attempt to demonstrate that it treated Williams evenhand- edly. Robert Mustee conceded, however, that in each of the cases in question, the number of absences in 1973 was not the sole reason for the discharge. In the case of Elsie Brown, who was absent on 70 days in 1972 and 38 days in 1973, Mustee admitted that the fact that she lied about when her doctor would permit her to return to work was a contributing factor in the decision to fire her. Mustee agreed that it was the combination of 2 years' absences that resulted in Cynthia Edward's discharge in Au- gust 1973, after 19 absences in 1973. Edwards was absent 28 days in 1972, but there is no letter to the Union in her file indicating that Respondent intended to discharge her. In Robert Henry's case, his file shows that he was absent 26 days in 8 months of'employment in 1972 without dis- charge, and in the first 5 months of 1973, he was absent for 43 days, but 29 were excused. The Union grieved Henry's discharge, and in a reply to the grievance, Mustee set out the employee's 12-year absenteeism record "over such a short period of time" as well as his record of "poor cooperation," and on cross-examination he conceded that it was this combi- nation of factors that caused the Company to fire him. Jesse Landers and Lawrence Muldrew were short-term employees who were employed for 4 months and 11 months respectively and who accumulated absences of 14 and 30 E L. MUSTEE & SONS, INC. days, respectively ." Mustee clearly indicated that their re- cords of absences, considered in the light of their short-term employment, was the reason they were discharged. Employee Hazel Boggs Stiffler was absent on 28 days in 1973 and was discharged , but Mustee admitted that in her case, too, it "was a combination of factors . . . over and above the sheer volume of her absences" that caused her discharge. Her file also shows that she was rehired after her discharge in 1973. Company records also show that employee Wagner, who had 23 absences in 1973 , plus 63 excused absences because of an injury, is still employed , even though Mustee admitted that he has engaged in serious infractions of company policy, such as, refusing to work a job, disregarding safety rules, insubordination, leaving his job without permission, and fighting with another employee. It appears from the above analysis that there is no compnay rule that 20 unexcused absences result in an employee's dis- charge, nor are absences in 1 year necessarily carried over into the next, as Robert Mustee indicated. The policy is "flex- ible," as he described it, and liberal . It is clear that length of tenure, number of absences over a number of years and other factors are considered before the decision to terminate an employee is made. If an employee is otherwise satisfactory, it appears, as Roy Mustee testified , that his absences in 1 year are forgiven at the commencement of the next . Moreover, discharge for absenteeiim is no bar to reinstatement. On the basis of this summary of employment policy, it appears that Williams' case is not like the cases of the six other employees fired in 1973 . He was not a short -term em- ployee, since he had been employed for almost 3 years, and there is, in any case, no evidence that his absences in previous years were abnormal . In addition, he was discharged after only 1 day of absence in 1974, and this despite his being off because of an injury suffered on the job . Moreover, he applied for rehire and was refused , although another employee had been rehired under no more unfavorable conditions . Finally, the record shows nothing of any significance indicating that Williams was not otherwise a satisfactory employee, but another employee who had a record of absences as bad as his was kept , despite his poor attitude, but Williams was fired. I can readily believe, as Robert Mustee stated in the cases of the other employees fired in 1973, that other circumstances, not merely the number of days off in a given time , determine whether or not an employee is terminated, and since the principal circumstance which distinguishes Williams from all other employees, past or present, was his militant opposition to a reduction in a scheduled pay increase , I conclude that such circumstance is a more reasonable explanation for his termination than his 27 absences. I conclude that Respondent -Employer was substantially motivated to discharge Williams because of his union and other protected concerted activities . By such conduct, Re- spondent-Employer violated Section 8 (a)(3) and (1) of the Act." I also conclude that Respondent-Employer violated Sec- 10 Mustee admived that Co Exh 6 showing 27 absences for Muldrew was inaccurate 11 Bunney Bros Construction Company, 139 NLRB 1516 (1962), New York Trap Rock Corporation, 148 NLRB 374 (1964), Interboro Contrac- tors, Inc, 157 NLRB 1295, enfd 388 F 2d 495 (CA 2, 1967) 207 tion 8(a)(1) of the Act by Roy Mustee's threat to Williams to engage in reprisals against him until he quit , and by Robert Mustee's statement to him that the Company gets rid of employees who file grievances against it. B. The Union 's Alleged Violation of Section 8(b)(1)(B) of the Act 1. The facts The complaint alleges that Respondent -Union violated Section 8(b)(1)(B) of the Act when Business Agent Trunzo threatened Williams at the November 16, 1973, meeting with "trouble" if he did not cease his opposition to the Union's position on a reduction in the upcoming wage increase prov- ided for the collective-bargaining contract, and by refusing to process his grievance concerning his discharge. I have found in greater detail about that during a heated exchange between Williams and Trunzo at the November 16 meeting, in which Williams vigorously questioned taking another vote on the issue of accepting less of an increase in wages than due under the contract, Trunzo angrily told Wil- liams to shut up or he would be in trouble . I have also found that although Williams wrote a letter to the Union about Roy Mustee's insistence on his resignation and threat to harass him until he did, he never heard from the Union thereafter about the matter. On January 9, 1974, the Company discharged Williams, allegedly for absenteeism , a claim which I have found to be pretextual, and he immediately filed a grievance in which he noted that he had been off work the day before his discharge because of an accident on the job. No one from the Union got in touch with Williams to investigate this claim , which I have found to be valid. As a matter of fact, no one from the Union made any effort to talk with Williams after his discharge in order to get his version of the events preceding and following his discharge, which I have described in great detail earlier. The grievance arbitration procedure set out in the contract between the parties provides for a meeting of Company and Union representatives to discuss a grievance and attempt to settle it. If the grievance is not resolved , the next step is arbitration, but the Union's executive board has full authority to decide whether to process a grievance further at any stage in the procedure, "if, after a reasonable and fair exercise of the Board's judgment, it is concluded ... " that it lacks merit. 12 The Union did not meet with the Company on Wil- liams' grievance and the Union's executive board was not presented with the grievance. Not only was Williams not contacted for evidence as part of an investigation of the merits of his case, but he was never notified of the Union's decision to close the case as being without merit. Union Business Agent Trunzo testified that having re- ceived a letter from Williams in early December 1973, stating that Roy Mustee had demanded his resignation because he opposed the pay cut and had threatened to harass him until he quit, he telephoned Mustee and told him that he did not know the true facts, but if he was harassing Williams he ought to stop.' 3 12 Article XIV, G C Exh 2 13 Williams' letter was addressed to Harold Friedman, President of Re- spondent-Union, and in addition to reporting Mustee's conduct , the waster 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD When Ttunio was given the letter which' the Company wrote the Union on December 10, 1973, stating that it was considering firing +Williams because he had-been absent 24 days that year, he telephoned Robert Mustee. He testified that he advised Mustee that he saw no grounds-to justify a discharge and that, after some discussion about Williams' attendance record, Mustee agreed not to terminate him, but to give him one more chance. After Williams was discharged, his grievance was given to Trunzo by another business agent of the Union. Trunzo testi- fied that he telephoned Robert Mustee and "had a long tussel on the phone" with him about Williams, but Mustee was adamant and refused to reinstate him. He said he then let the matter "cool for a couple of days, . . . turned it over to another business agent." Later, according to Trunzo, when Business Agent Mascitti was talking to Robert Mustee on the telephone, Trunzo suggested that he mention reinstating Wil- liams, which Mascitti did, but without success." Prior to Mascitti's call, Trunzo had made another call to Mustee about Williams' vacation pay, which apparently had not been paid him when he was discharged Shortly thereafter, Wil- liams received what was due him." Trunzo said that during this conversation he asked Mustee if he would rehire Wil- liams, but Mustee's response was negative. During one of his conversations with Mustee, Trunzo asked him to send him Williams' absenteeism record, he said. When he got this document, he and Business Agent Mascitti presented Williams' case to the "officers of the Union," and after a discussion and a review of Williams' file," the offic- ers decided to close the case because it was not strong enough, Trunzo said." He did not inform Williams of the decision, and he could not remember exactly how Williams was sup- posed to learn about what had happened to his grievance 2. Analysis, additional findings and conclusions Business Agent Trunzo's testimony about his efforts to save Williams' job in December 1973, and the extent of the Union's intercession on Williams' behalf through himself and other business agents after Williams was fired was vague and unconvincing in substance and unimpr8sive in delivery." The witness' embarrassment when attempting to explain his and his colleagues' handling of the Williams case was evident. But even if it is granted that Trunzo or others from the Union made an effort to have the Company restore Williams to employment, the effort was halfhearted, in my view, and fell far short of the standards which govern a union's representa- tion of its members. asked Mr Friedman, "as President of our Union [to] explain to my brother employees the investigation that the Union made to recommend this pay cut to Union members " 14 Mascitti did not testify 15 Williams also talked to Mustee about his vacation pay in one of the conversations he had with him after his discharge i6 The "file was not Williams' personnel file but copies of warnings given to him by the Company 17 Trunzo's exact words about the officers were, "as far as they were concerned, it was closed " The officers did not testify 18 Robert Mustee's versions of what was said when Trunzo telephoned him were even more imprecise and seemed more superficial than Trunzo's, and they did nothing to inspire confidence in his credibility or help dispell the serious questions I have about the accuracy of what they said they talked about when Williams was discussed A labor organization violates its duty of fair representation if it is guilty of bad faith when it handles a grievance for a member or treats it in an arbitrary or perfunctory manner.19 An individual grievant has, however, no absolute right to have his grievance taken to arbitration, because a union must be allowed a considerable range of discretion in settling or abandoning, short of arbitration, those grievances which the union in good faith believes do not justify that costly and time-consuming final step.20 While I recognize, as the Union ably contends, that mere negligency or the exercise of poor judgment in the handling of a grievance does no[ automatically make out a case of unfair repre- sentation," each case must be decided on its own par- ticular facts, and union hostility and whether or not a griev- ance was processed on its own merits are factors to be consid- ered in judging the union's action.22 On the facts as I have found them, I conclude that the Union's total processing of Williams' grievance, including its failure to take it to arbitration, was motivated by union hos- tility generated by Williams' opposition to the Union's posi- tion on the scheduled pay increase, and was, therefore, in bad faith as well as arbitrary and perfunctory. If Trunzo is to be believed, he protested the Company's attempt to fire Wil- liams in December on the ground that his record did not justify it, yet with only one additional absence in January 1974, the Union closed the case without even talking to the grievant, and this despite the fact that he claimed in his written grievance that his absence was caused by a job-con- nected injury. If the Union had checked with Williams it would have discovered that employee Shaw was with him when he was hurt and that Supervisor Roy Mustee learned of it shortly thereafter. Trunzo's excuse for his inaction that there did not appear to be any company records to support Williams' claim is incredible. The duty to fairly represent includes "the duty to act as advocate for the grievant."23 Failure to discuss the case with Williams was not mere negli- gence, it was a reckless disregard of his rights. It was also in the same vein as the Union's treatment of his complaint about Roy Mustee's harassment of him, where, as set out above in greater detail, Trunzo, without talking to Williams, the Union's own representative on the job, merely telephoned the supervisor, who denied the charge. In his letter to the Union, Williams included a request that the Union's president "explain" to the membership what investigation the Union had made of the Company's claim of poverty before it had decided to recommend to the employees that they forego the full amount of a wage increase due them in November 1973, a proposal hardly designed to endear 19 Vacav Sipes, 386 U S 171, 190 (1967), Retinav Local 14, Apartment, Motel, Hotel and Elevator Operators Union, 453 F 2d 1018, 1023 (C A 9), Griffin v UA. W, 469 F 2d 181 (C A 4), 193 NLRB 223, 234, Miranda Fuel Company, Inc, 140 NLRB 181, 185 (1962) 20 Vaca V Sipes, supra, at 191-192 21 Bazarte v United Transportation Union, 429 F 2d 868, 872 (C A 3), Griffin v UA W, supra 22 Independent Metal Workers Union, Local No I (Hughes Tool Com- pany), 147 NLRB 1573, (1964), Local 485, International Union ofElectri- cal, Radio & Machine Workers (Automotive Plating Company), 170 NLRB 1573 (1968) 23 Truck Drivers, Oil Drivers and Filling Station and Platform Workers Local No. 705 (Associated Transport, Inc), 209 NLRB 292 (1974) E. L. MUSTEE & SONS, INC. 209 Williams to the Union's top officials. By ignoring him, the Union showed its continued disenchantment with his ideas. Additional evidence of lack of fair representation is the Union's failure to meet face-to-face with employer represen- tatives on the grievances or to present it to the full Union's executive board, as provided in the collective-bargaining con- tract. Viewed in the light of its initial failure to talk with Williams as part of its investigation of his case, The Union's subsequent neglect of its obligation to then confront the Com- pany with whatever evidence it had discovered to support Williams' claim and to then present this information to the Union's executive board on the question of going to arbitra- tion, if the case has not been previously settled on the merits, deprived Williams of the due process which is included in the concept of fair representation. Finally, the Union again ig- nored Williams' rights by closing his case without notifica- tion to him, a further indication that in addition to being arbitrary and perfunctory on its face, the Union's handling of his grievance was influenced by hostility to him. By failing to fairly represent Williams in the processing of his grievance, including taking his case to arbitration, because he had opposed the Union's policies and had otherwise exer- cised his rights under Section 7 of the Act, Respondent- Union violated Section 8(b)(1)(A) of the Act.24 I also conclude that Respondent-Union violated Section 8(b)(1)(A) of the Act by threatening Williams with reprisals because of his protected activities. IV THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, it will be recommended that they cease and desist therefrom and take certain affirmative actions de- signed to effectuate the purposes of the Act. It has been found that Respondent-Employer has violated Section 8(a)(3) and (1) of the Act by discriminatorily dis- charging Jerry Williams. I shall, therefore, recommend that Respondent offer him immediate and full reinstatement to his former job, or, if this job no longer exists, to a substantially equivalent position, without- prejudice to his seniority or other rights and privileges. I shall further recommend that Respondent make him whole for any loss of earnings he may have suffered as a result of his discharge by payment of a sum of money equal to that he normally would have earned from said date to the date of Respondent's offer of reinstatement, less net earnings, with backpay and interest thereon to be computed in the manner prescribed by the Board in F W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). On the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 2. The Union is a labor organization within the meaning of the Act. 3. By discharging Jerry Williams for engaging in union and concerted activities, Respondent-Employer engaged in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 4. By threatening employees with reprisals because of their union or concerted activities, Respondent-Employer violated Section 8(a)(1) of the Act. ' 5. By threatening an employee with a reprisal if he did not cease his opposition to the Union's position concerning a reduction in a scheduled pay increase provided for in the collective-bargaining contract , Respondent-Union violated Section 8(b)(1)(B) of the Act. 6. By refusing to process an employees' grievance because of his said opposition to the Union's position regarding the increase, Respondent-Union violated Section 8 (b)(1)(B) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of the Act. Upon the foregoing findings of fact, conclusions of law, upon the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER25 A. Respondent-Employer, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with discharge or other repris- als if they engage in union or other protected activities. (b) Discharging employees because they engaged in union or other protected activities. (c) In any other manner interfering with , restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action designed to effec- tuate the policies of the Act: (a) Offer Jerry Williams immediate and full reinstatement to his former job, or, if this job no longer exists, to a substan- tially equivalent position, without prejudice to seniority or other rights and privileges, and make him whole for, any loss of pay suffered by reason of the discrimination against him in the manner provided above in the section entitled "The Remedy." (b) Preserve and, upon request, make available to the Na- tional Labor Relations Board and its agents , for examination and copying, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to determine the amount of backpay due under the terms of this Order. (c) Post at its plants in Cleveland, Ohio, covered by the collective-bargaining contract, copies of the attached notice 1. The Company is an employer engaged in commerce within the meaning of the Act. 24 Local485, I UE, supra, fn 22 In Rossv Hayes International Corpora- tion, 84 LRRM 2922 (D C Ala, Oct 31, 1973), cited by the Union, the union made a full investigation of the employee 's claim, including asking him for evidence to support it 25 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 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,and marked "Appendix A."26 Copies of said notice, on forms provided by the Regional Director for, Region 8, shall, after being duly signed by Respondent, be posted by, it im- mediately upon receipt and be maintained for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to 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) Notify the Regional Director for Region 8, in writing, within 20 days from the date of receipt of this Decision, what steps it has taken to comply herewith. B. Respondent-Union, its officers, agents and representa- tives, shall: 1. Cease and desist from: (a) Threatening employees with reprisals because they op- pose the policies of the Union. (b) Refusing to process employee grievances because of their opposition to the Union's policies or because they en- gage in union or other protected concerted activities. (c) In any other like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action designed to effec- tuate the policies of the Act: (a) Post in conspicuous places in the Union's business of- fices, meeting halls, and places where notices to its members are customarily posted, copies of the attached notice marked "Appendix B."27 Copies of said notice, on forms to be prov- ided by the Regional Director for Region 8, after being duly signed by an authorized representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter in con- spicuous places, including all places where notices to mem- bers are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced or covered by any other material. (b) Notify the Regional Director for Region 8, in writing, within 20 days from receipt of this Decision and recom- mended Order, what steps it has taken to comply herewith. 26 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 27 See fn. 26, supra. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten to harass or discharge em- ployees because they engage in union or protected con- certed activities. WE WILL NOT discharge employees because they assert their rights under the collective-bargaining contract with International Brotherhood of Teamsters, Local 507, or because they engage in other union or protected concerted activities. WE WILL offer Jerry Williams immediate and full rein- statement to his former job, or, if this job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges, and we will make him whole for any loss of wages suf- fered as a result of our discrimination against him. WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act. E. L. MUSTEE & SONS, INC. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten that you will get in trouble be- cause you disagree with and express you opposition to the Union's positions or policies in regard to any particu- lar employer. WE WILL NOT fail to refuse to process employee griev- ances because they oppose the positions or policies of the Union in regard to any particular employer. WE WILL NOT in any other like or related manner re- strain or coerce you in the exercise of the rights guaran- teed you in Section 7 of the National Labor Relations Act. INTERNATIONAL BROTHERHOOD OF TEAMSTERS CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMERICA, TEAMSTERS LOCAL UNION 507