Pacific Intermountain Express Co.

588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pacific Intermountain Express Co. and Charles Rich- ard Nixon International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , Local 497 and Charles Richard Nixon. Cases 8-CA-8106 and 8-CB-2268 December 13, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY Local 497, attempted to cause Respondent Employer, herein referred to as PIE, to terminate the employment of Nixon and that PIE in collaboration with or at the insistence of Local 497 terminated Nixon because Nixon opposed ratification of a collective-bargaining agreement negotiated between Re- spondents and was instrumental in a complaint over the con- duct of Local 497's business agent made to a superior union officer The complaint further alleges that Local 497 failed and refused to afford Nixon fair representation in the process- ing of grievances. PIE and Local 497 have filed answers denying the commission of any unfair labor practices. On June 10 and 11, 1974, a hearing was held before me at Cleveland, Ohio, at the conclusion of which oral argument was waived, and the parties were given leave to file briefs. Briefs have been received from all parties. On August 21, 1974, Administrative Law Judge Da- vid S. Davidson issued the attached Decision in this proceeding. Thereafter, each of the Respondents 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 briefs 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 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 Respondent Pacific Intermountain Express Co., Rich- field, Ohio, its officers, agents, successors, and assigns, and Respondent International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, Local 487, its officers, representatives, and agents, shall take the action set forth in the said recom- mended Order. i The Respondents have 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 clear 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 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE DAVID S DAVIDSON, Administrative Law Judge: Pursuant to charges filed by Charles Richard Nixon, an individual, on January 7, 1974, a consolidated complaint issued on April 30, 1974, alleging that Respondent Union, herein referred to as FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE EMPLOYER PIE, a Nevada corporation, is engaged in interstate trans- portation of goods and materials by trucks. Its principal office is in Oakland, California, and it has terminal facilities at various locations in the United States including Richfield, Ohio, the sole facility involved in this proceeding. Its annual gross revenue from interstate transportation of goods exceeds $50,000. The parties concede, and I find, that PIE is an employer engaged in commerce within the meaning of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. 11 THE LABOR ORGANIZATION INVOLVED Local 497 is a labor organization within the meaning of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Background For approximately 9 years, Local 497 has represented cer- tain clerical employees at PIE's Richfield, Ohio, facility, commonly referred to as the Akron terminal, and has had a series of collective-bargaining agreements with PIE covering those employees. The Akron terminal is headquarters for what is known as the Akron district which consists of 10 terminals in Ohio and Pennsylvania. The Akron office em- ployees handle rating and billing functions for all the Akron district. Charles Richard Nixon, referred to as Dick Nixon by his fellow employees, started to work at the Akron terminal in 1959 and worked there, with one short break in service, until November 28, 1973, when he was discharged. At the time of his discharge and for a considerable period before that, Nixon was a senior rate clerk As such, Nixon received bills of lading, applied the correct charges to. them, and gave them to a billing clerk to be billed and processed Nixon also took telephone calls from customers concerning rates and handled customer complaints over rates 215 NLRB No. 113 PACIFIC INTERMOUNTAIN EXPRESS 589 Around June 1973, Nixon became Local 497 job steward for the PIE clerical unit and served in that capacity until his discharge In 1971, when Nixon was not a steward, he was suspended for 7 days for participating in an unauthorized work stop- page. At that time, Nixon and a number of other night shift employees refused to cross an unauthorized picket line placed at the terminal by another Teamsters Local representing ga- rage and dockworkers. Nixon did not participate in the pick- eting, but he and a number of others were suspended for refusing to cross the picket line. 2. The 1973 negotiations On June 30, 1973,' the collective-bargaining agreement between PIE and Local 497 expired, and negotiations com- menced. By oral agreement of the parties the terms of the expired agreement were continued in full force and effect without any hiatus pending execution of a new agreement. A single negotiating meeting was held between management representatives and a Local 497 committee consisting of Busi- ness Agent and Secretary-Treasurer James Wykle, and em- ployees Nixon, Bob McCartney, and Karen Newport. Wykle was in charge of the negotiations, but Nixon presented em- ployee proposals and did most of the talking in support of them. Following the single negotiating meeting, a meeting of the bargaining unit employees was held at which Wykle advised the employees of the benefits that PIE was willing to offer, and told them that they would receive everything the Interna- tional had received and that it was a good contract. Wykle then turned the floor over to Nixon who spoke against signing the contract offered by PIE. The principal basis of Nixon's opposition was that 3 years earlier the employees had agreed to a contract before negotiations in other parts of the country were concluded, that he believed they were promised that any further wage incyeases gained elsewhere would be given them, and that a 75-cent additional increase gained elsewhere was not given the PIE employees. Following Nixon's statement in opposition, the employees present voted unanimously to reject the PIE offer and to seek authorization from Teamsters Joint Council No. 41 for a strike. Thereafter, strike authorization was refused, no strike occurred, and no further negotiations were held. The em- ployees continued to work under the expired contract, and Wykle from time to time urged employees individually to accept the PIE offer. 3 The alleged work stoppage At the end of each month, PIE attempts to complete all its billing for shipments made during the month so that it may have an accurate measure of its monthly business September 29 and 30, 1973, fell on a Saturday and Sunday, and the office clerical employees were aware that weekend work would be necessary to achieve PIE's objective of completing all Sep- tember billing before the end of the month. Normally PIE seeks volunteers to work overtime and per- form necessary weekend clerical work. Each week a sheet is All dates which appear hereafter were in 1973, unless otherwise stated posted for employees to sign if they wish to perform such work In the event that not enough employees volunteer for such work, PIE has the right under its contract to require employees to work in inverse order of seniority Approximately a week before the weekend of September 29 and 30, Larry Zvara, who was then a rate clerk, approached Nixon and suggested that it would be a good idea if office employees did not sign up for work on the following weekend Zvara proposed such action as a means of getting doubletime pay for Sunday work and getting something else through negotiations. Nixon's initial reaction was negative.' It is dis- puted whether Nixon ever subsequently joined with Zvara and others in promoting a slowdown.' According to Zvara, Nixon subsequently reraised the matter, and the outcome of their discussion was a decision to move forward with the plan. According to Nixon, he never agreed to promote a slowdown and did not participate in it. There is a considera- ble amount of disputed evidence as to whether a slowdown occurred and, if so, whether Nixon took an active part in it. Some office clerical employees did sign up and work as dock clerks and billing clerks on September 29 and 30, but Nixon and Zvara, who were the only two full-time rate clerks at the terminal, did not sign up, nor did any but one of the casual rate clerks who occasionally worked weekend over- time for Respondent ° In order to accomplish its objective of having all billing completed by midnight September 30, Respondent at extra expense brought five supervisors in from other locations to perform rating functions over the weekend, and Tim Wood, a casual employee, worked and did some rating work on one of the two weekend days. PIE did not attempt to require Nixon, Zvara, or any other of its regular clerical employees to work on the weekend. 4. The suspension of Nixon On October 8, Nixon was called into the terminal office and, with Wykle present, Terminal Manager Roberts charged Nixon with being responsible for a work stoppage on Septem- ber 29 and 30, thereby violating the contract Nixon asked Roberts to be more specific as to his involvement in the work stoppage and questioned whether in fact there had been one. Roberts referred to a conversation between employee Gladys Dougherty and Nixon on September 29, saying that Nixon had approached Dougherty in regard to the slowdown. Nixon said he was being falsely accused and that he had no part in it. Nixon was told that he was being suspended for 7 days and was sent a letter to that effect, dated October 9, 1973, and signed by William J Quine, district office supervi- sor, who was Nixon's immediate superior. A copy of this letter was sent to Business Agent Wykle. This letter read- 2 Zvara and Nixon both so testified 3 Witnesses and parties to this proceeding uniformly used the term "slow- down" to describe the refusal of employees to sign up for weekend overtime This usage will be followed herein for convenience Max Heeman, Joe Fazek, and Carl Kollert were casual rate clerks Heeman and Kollert informed management representatives that they would be unable to work prior to the weekend Fazek testified that he believed he did work, but Fazek appeared confused as to actual dates, and his testimony indicates he was referring to a later weekend I credit other testimony that he did not work 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This letter is to confirm the action taken against you by Pacific Intermountain Express at a hearing held on your behalf on October 8, 1973, at the P I.E. Richfield Termi- nal. Present were Mr. Al Roberts, Terminal Manager, Mr. Bill Quine, District Office Supervisor, Mr James Wykle, Business Agent Local #497, and yourself. It has been determined that you be suspended for a period of one week (7 days) effective October 8th, 1973, through October 15th, 1973, and return to your normal shift at 1630 on October 16th, 1973. This action is being taken under violation of Article XVIII of the labor agreement between Teamsters Cleri- cal Union #497 and Pacific Intermountain Express, from which I quote the second paragraph: "Job stewards and alternates have no authority to take strike action, or any other action interrupting the Em- ployer's business, except as authorized by official ac- tion of the Local Union. The Employer recognizes these limitations upon the authority of job stewards and their alternates, and shall not hold the Union liable for any unauthorized acts. The Employer in so recognizing such limitations shall have the authority to impose proper discipline, including discharge, in the event the shop steward has taken unauthorized strike action, slowdown or work stoppage in violation of this Agreement." Nixon did not work his next 3 scheduled workdays, but on October 12, Quine went to District Manager Donald Mayor- as and told Mayoras that he was having difficulty getting rate clerks and had a great deal of rating to be done Quine asked if Nixon could be recalled, and Mayoras told Quine that he could. Quine called Nixon and told him he was needed at the office because of an overload of work and that they were reducing his suspension from 7 days to 3 days. Quine also prepared a letter dated October 12 which was given to Nixon upon his return to work on October 12 A copy was sent to Wykle. This letter read: This letter is to reference my letter of October 9th, 1973, Certified # 126871, in which you were suspended for a period of one week (7 days) from October 8th, 1973, through October 15th, 1973. I am amending the second paragraph of that letter to read the following: "It has been determined that you be suspended for a period of three (3) days, effective October 9th, 1973, through October 11, 1973." Per our phone conversation at 11:55 a.m October 12th, 1973, you were informed of this change and are expected to report for the 1630 shift October 12th, 1973, and honor the sign up sheet for which you signed for work Saturday, October 13th, and Sunday, October 14th, 1973. The first three steps of the grievance procedure set forth in the contract were either bypassed or deemed as having been followed as a result of the October 8 meeting with Roberts The fourth step of the grievance procedure calls for presenta- tion to an area grievance committee consisting of an equal number of employer representatives and union members from various trucking companies under contract with Local 497 other than the company directly involved. In the event a majority of the committee votes to settle a dispute, that deci- sion is final and binding on both parties and there is no right of further appeal. In case of a deadlock in this committee, a grievance may be taken to arbitration. No immediate action was taken with respect to Nixon's grievance, but a hearing before the area grievance committee was set for November 30 5. Nixon's meeting with management When Nixon returned from suspension, he requested a meeting with PIE Eastern Region Vice President Sywassink about the contract. A meeting was arranged and held on October 17. In the interim, Roberts had left as terminal manager, and Michael Schwartz transferred from Cleveland and became manager of the Akron terminal on October 17 The meeting was attended by Sywassink and Schwartz for PIE and by Nixon, McCartney, Newport, and Zvara for Local 497. Wykle was not present and was not invited or informed of the meeting.' Nixon told Sywassink that they were there to discuss the contract, that all other means of settlement were exhausted, and that he wanted Sywassink to relate the employees' feelings to Helvey, the PIE labor rela-' tions manager, in Denver. Sywassink told Nixon that he was not there to discuss a contract and that as far as he was concerned the employees had received all the benefits they were going to get. Sywassink in effect rejected Nixon's re- quest. 0 6. The employees' complaint to the Teamsters In late October or early November, Nixon met with Wykle and James Cross, attorney for Local 497. They told Nixon that they felt there was no further action that the employees could take on the contract. Nixon told them he had been encouraged by employees to send a letter to Frank Fitzsim- mons, president of the International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, and asked for permission to write a letter to Fitzsimmons Wykle and Cross agreed, but Cross suggested that Nixon leave Wykle's name out of the letter because it would dis- credit him. Following this meeting on November 6, Nixon sent Fitz- simmons the following letter, signed by 22 employees includ- ing Nixon- Due to the extreme dissatisfaction with our local union representation and apparent exhaustion of all other al- In the meantime on October 11, Nixon had filed a written grievance protesting his suspension as without just cause and lacking in supporting evidence. 5 Nixon testified that it was his purpose to have Sywassink serve as' an intermediary between the employees and PIE officials to renew negotiations and that he intended to including Wykle in the negotiations but didn't think it necessary to include him in the meeting PACIFIC INTERMOUNTAIN EXPRESS 591 ternatives, we are soliciting your assistance in the inves- tigation of events prompting the writing of this letter. Teamsters in Chicago had not yet settled their demand for an additional seventy-five cents in wages, when we were negotiating our 1970 contract. During the negotia- tions, it was suggested a clause be added to our contract providing our members with any benefits derived through the Chicago demands . Mr. James Wykle (Secre- tary-Treasurer and Business Agent of Teamsters Local #497) immediately replied to our request with the fol- lowing statement: "I have it from a very good source, Chicago will not get the additional increase". This sub- ject was not discussed again during the negotiations. When the negotiations ended , our committee requested their presence at the summation of our agreement be- tween Mr. Wykle and Mr. H. A . Helvey (Labor Rela- tions Representative for Pacific Intermountain Express). Mr. Wykle agreed to our request , but held the summa- tion the following day in the absents [sic] of our commit- tee Mr. Wykle then called a meeting of our members to vote on the ratification of our tentative agreement. Prior to the voting, Mr. Wykle again assured the members that he had it from a good source, Chicago would not receive any additional increase in wages, but in the event they should, Mr Helvey had given his word that our mem- bers would receive proportionate increases. Our agree- ment was ratified under this assumption. We did not receive the seventy-five cents as promised, and Mr Hel- vey denied any knowledge of any agreement between Mr. Wykle and himself. We have now negotiated our 1973 contract, and once again we were refused the seventy-five cents lost in our last contract. This, and the refusal of other reasonable benefits ehanced [sic] a unanimous vote for a sanctioned strike. Our strike sanction was denied We then asked Mr. Wykle to arrange a meeting with our committee and Mr. William Pressor, and requested this meeting to be held prior to the signing of our contract. Although Mr. Pressor has agreed to meet with our com- mittee, it has been four months since our contract has expired, and numerous requests for a more specific date and time have proven fruitless. It now appears we may never accomplish this meeting. These are but a few examples of the unorthodox methods used to persuade us to accept a contract with only a minimum in benefits. Mr. Fitzsimmons, with the incredible cost of living in- creases now confronting us, it is imperative we be com- petitive with other workers across the nation. Trusting you will respect the importance we are placing on this situation, we hope to gain your support in upgrading our local representation Understanding this letter may seem somewhat confusing and not wishing to complicate things more, or consume more of your valuable time, we are requesting that you send a representative to investigate this matter. If you should see fit to do so, information can be obtained through our Union Steward, Mr. Charles R. Nixon, 682 Reed Avenue, Akron, Ohio 44306, residence telephone number 773-1155. 7. The solicitation of an affidavit from Gladys Dougherty Around November 1, Larry Zvara became office manager replacing Quine. Shortly thereafter Zvara approached em- ployee Gladys Dougherty and asked her for a statement to the effect that Nixon had talked to her and told her not to work on the September 29 and 30 weekend. Dougherty was reluctant to give such a statement, and Zvara repeated his request to her. In mid-November, Dougherty found that she couldn't work because of emotional strain6 and took a cou- ple of days off. On November 19, while she was off, Zvara called and asked if he could come to her house to see her. She told Zvara that she was planning to return to work that night, but Zvara said that his visit had a different purpose. That afternoon Zvara and Schwartz arrived at her house, bringing with them a prepared statement which they asked her to sign. The prepared statement said that Nixon had approached Dougherty and asked her not to work on the weekend of September 29 and 30. Dougherty asserted that the statement was not true and refused to sign it. Schwartz and Zvara said they would make up a new statement for her to sign and they discussed what should go in it. Dougherty told them that before the weekend of Septem- ber 29 and 30 she had been approached by an employee other than Nixon who told her that the employees were going to try not to work over the weekend in the hope of getting something done about the contract 7 Dougherty did not sign up for weekend overtime apparently because of uncertainty. over whether she would work. However, later she told Acting Office Manager Dave Studer that she would work on Satur- day. When Dougherty reported for work at midnight Satur- day, Nixon, who was still at the terminal working overtime on his Friday shift told her he had not seen her name on the sign-up sheet. She said she had called in to state her availabil- ity for weekend work. Nixon then said something to the effect that people should sign up on the sheet and should not call in and have the boss sign for them. Dougherty told Nixon not to get smart. After Dougherty recounted these facts, Zvara typed the following statement on a typewriter which Dougherty had at her house: AFFIDAVIT I, Gladys I Dougherty, was approached by one of my co-workers and advised none of the office employees of PIE at Richfield, Ohio, were going to work in a protest of the Company not granting double time pay for Sun- days and in order to get the pending contract wrapped up. 6 Dougherty's husband had recently died 7 Dougherty identified Charles Rice as the employee who spoke to her Rice, who admitted speaking to many employees, denied that he spoke to Dougherty about the slowdown 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I did not follow this advice but in fact did come to work on that Saturday , September 29 Subsequently I was approached by Mr. Richard Nixon, Union Steward , and asked why I worked on that weekend . To my knowledge this is the only weekend I have ever worked that I was questioned by the steward as to why I worked When Dougherty read the new statement , she protested that the last paragraph was still not true, and she still did not want to sign it Schwartz told her , "that is close enough. You are not implicating Nixon that he approached you. A co- worker approached you, so it clears Nixon." Dougherty then signed the affidavit. Although the affidavit contained a jurat and Zvara was a notary, the statement was not notarized by Zvara at Dough- erty's house, but was taken by Zvara to John Baker , another notary who is also an employee of PIE, and Baker then signed his name as Notary Public.' 8. The termination of Nixon On November 28, when Nixon reported for work, Schwartz called him to his office Schwartz told Nixon that due to an extensive investigation into his involvement in the September 29 and 30 slowdown , PIE had decided to change his suspension to a discharge . Nixon asked Schwartz to be more specific as to the charges , but Schwartz only identified the article of the contract that Nixon was charged with violat- ing and said that Nixon knew of or was responsible for the slowdown . Nixon again asked Schwartz to be more specific, and Schwartz replied that without a union representative present he did not feel that he was required to tell him any more. Schwartz gave Nixon a letter dated November 28, which showed that a copy was sent to Wykle. Nixon asked Schwartz if Wykle had been notified . Schwartz said that if he hadn't he would receive a copy of the letter and would know of the discharge immediately . The letter stated. With reference to your suspension from October 9th, 1973, through October 11th, 1973, for violation of Arti- cle XVIII of the Labor Agreement between Teamsters Clerical Union #497 and Pacific Intermountain Ex- press The Company has extensively investigated the circum- stances surrounding your participation in the activities of September 29th and September 30th, 1973. It has been confirmed that you planned and caused a severe work slowdown in direct violation of the Contract , and as a 8 These findings as to the circumstances of the taking of Dougherty's affidavit are based on the testimony of Dougherty which I have credited Although Schwartz and Zvara both testified, only Schwartz was asked about the affidavit According to Schwartz , after Dougherty refused to sign the first draft affidavit, she dictated a new affidavit which she signed after a couple of questions, which he answered Schwartz differed with Dougherty as to other details surrounding the visit to her house With respect to the notarization, Schwartz explained that he originally intended to have Zvara notarize the statement but decided that as Zvara was instrumental in getting the statement, it would be better if someone else notarized it For reasons set forth below, I have not credited Schwartz' testimony with respect to the affidavit result, the Company is amending its previous action against you to a discharge, effective immediately. 9. Nixon's grievance over his discharge By letter dated November 30, Nixon grieved his discharge, repeating the contentions made in his earlier grievance The two grievances were combined for presentation to the area grievance committee on November 30, the date originally set for a hearing on Nixon 's initial grievance . According to Nixon, he received one telephone call from Wykle , in which Wykle expressed his sympathy , between the time Nixon learned of his discharge and the grievance meeting, and Wy- kle did not otherwise talk or meet with him in preparation for the grievance meeting. 10. The grievance meeting At the area grievance committee meeting Wykle and Nixon were present for Local 497, and Schwartz was present for PIE.' At the outset , Nixon asked Committee Chairman Goff, an employer representative , for permission to have his attorney present and to tape record the proceedings. Both requests were denied . Nixon asked permission to have Karen Newport, who was present at the hearing site with several other employees, sit in as his representative or steward. Goff told Nixon that Wykle was his representative , and Wykle said Nixon was still steward until there was a decision on his discharge Goff received and read the papers relating to the grievance, and it was agreed that the Company would present its case, first. Schwartz read testimony indicating that Nixon was re- sponsible for the September 29 and 30 slowdown and pre- sented the affidavit he had obtained from Mrs. Dougherty on November 19, as well as an affidavit signed by Zvara which stated that Nixon had agreed with Zvara a week before Sep- tember 29 and 30 to contact numerous employees within the office to cause a work slowdown Wykle then read a statement on Nixon 's behalf, and Nixon was permitted to speak. Nixon objected to the fact that he was originally suspended for 3 days only to be discharged 2 days before the hearing He said that he was handicapped in his preparation and felt there was extreme injustice in handling the entire matter. Either at this point or earlier in the hearing a letter from Schwartz to Wykle was read . The letter bore the date October 13, 1973, and indicated that like other letters sent by PIE which were introduced in evidence in this proceeding, it was sent by certified mail. The letter did not show that any copy was sent to Nixon, and was signed by Freight Operations Supervisor Richard D . Platt. It stated. With regard to our letter to Charles R. Nixon, dated October 12th, 1973, Mr. Nixon's suspension was re- duced to three (3) days to limit Company liability while further investigating the circumstances of the case. 9 These findings are based on the testimony of Nixon , whose version of the meeting was more comprehensive than that of any other witness and was not contradicted in any material respect Wykle's version differs principally in adjectives used by him to describe the character of his participation, i e , that he made a "rather long drawn out statement " in Nixon's behalf and represented him "vigorously " PACIFIC INTERMOUNTAIN EXPRESS 593 This is to advise you that the Company considers Mr. Nixon's apparent activities a most serious violation of the contract. We are continuing to investigate carefully all the facts in the case. Should we verify Mr. Nixon's involvement, we will amend our action at a later date and take more severe disciplinary measures. In fact, this letter was received by Wykle on November 28, the day on which Nixon was discharged, and the evidence shows that it was typed and mailed a day or two earlier.10 When the letter was read at the hearing, Nixon expressed surprise and asked if his rights had not been violated in that he had not received the letter earlier and was not aware of it. Goff said it was not necessary to include him in this corre- spondence. Nixon turned to Wykle and asked him why he was not advised of the letter or given a copy Wykle replied by asking, "Oh, didn't I give you a copy?" Nixon then presented affidavits from several employees indicating that they had been contacted and asked by Zvara not to work on September 29 and 30. Nixon also presented an affidavit signed by Dougherty in which she denied the second paragraph of the affidavit she gave to Schwartz and supplied her corrected version of that paragraph. After the affidavits were read by the committee, Goff asked Nixon about his involvement in the contract negotiations Nixon said he wasn't prepared to discuss the contract because he didn't think it would come up. Wykle then spoke and said they had received benefits comparable to those received by the International and the subject was dropped. Goff asked if anyone wanted to call witnesses to give live testimony. Although several employees had appeared and were outside the hearing room at Nixon's request, he stated that he was content to rely on his affidavits, and no witnesses were called. At the conclusion of the hearing, Goff asked those who were not members to leave the room and indicated that the committee would have an answer shortly. A little while later, Goff came out and told Wykle that there would be a decision in his office in 10 days Thereafter, the area grievance com- mittee unanimously rejected Nixon's grievances, and Nixon was so notified by Wykle. Nixon asked Wykle to submit his discharge to arbitration, and Wykle replied that because of the provisions of the contract this request was denied. 11 The alleged admission attributed to Platt Sometime after Nixon's discharge, Freight Operations Supervisor Platt asked employee Betty Staats whether she heard if Nixon had taken his discharge to the NLRB. She replied negatively and asked if Platt knew why Nixon was discharged. Platt said that it was because Nixon had caused some trouble." According to Platt, she asserted that she felt Nixon was discharged because he was the only one who worked in the office who stood up to the Company Platt testified that the conversation ended at the point Staats testi- fied that she asked Platt whether Platt meant that Nixon caused trouble because he stood up for the employees as 10 Schwartz's secretary testified that she typed the October 13 date be- cause that was the date on the handwritten draft which she copied and which was given to her on the day that she typed it 11 To this point, the versions of Platt and Staats are in basic agreement steward According to Staats, Platt replied, "No, he was a troublemaker for someone outside of the Company." She testified that she asked if it was Wykle and Platt replied that he was not saying and left. 12. Manager Schwartz' explanation for Nixon's discharge and the "October 13" letter At the time of Nixon's original suspension, Terminal Manager Roberts was on vacation. Roberts finished his vaca- tion and resigned. During an unspecified interim period preceding Schwartz' arrival at the Akron terminal, Freight Operations Supervisor Platt was in charge of the terminal According to Schwartz, within 2 days after Schwartz became terminal manager, Platt spoke to him about Nixon. Platt told him that there had been a refusal to work on the part of the entire rate department for which Roberts and Quine felt that Nixon was responsible. Platt informed Schwartz that Nixon had been suspended, that his grievance would probably be heard at the end of November, and that Schwartz would probably want to review the case because it would be his responsibility to present management's side. According to Schwartz, Platt also said that he had looked into the matter and that personnally he felt that Nixon's actions warranted discharge or at the very least a more thorough investigation than had then occurred. Schwartz told Platt that he would look into it but didn't have time to get into it at that point. Platt gave Schwartz the Nixon file containing relevant papers at which Schwartz did not look at at that time, but which he put in his desk with the intention of reviewing it as soon as more important duties were taken care of. Schwartz testified that within about a week he looked at Nixon's file and that, at about the same time in a phone conversation with Wykle about another matter, Schwartz mentioned to Wykle that he was looking further into the Nixon case, that he felt that the suspension was not severe enough, and that if they could determine that there was more hard evidence they might amend their action later. According to Schwartz, Wykle protested that he did not think it was legal under the contract, to which Schwartz replied that there was ample precedent for amending a previous disciplinary action until it was heard by the area grievance committee to make it either more or less severe. Schwartz testified that there was further conversation back and forth about the precedent for amending disciplinary action. According to Schwartz, he told Wykle he would send him a letter stating that the investigation was continuing, and Wykle may have asked him at that time to send him such a letter, but Schwartz did not remember specifically Schwartz spoke to Wykie fairly regularly thereafter by telephone and in person about various problems. Schwartz never informed Nixon that fur- ther disciplinary action against him was being considered. Initially, Schwartz testified that after he spoke to Wykle he asked Platt to draft the letter. However, a few minutes later, also on direct examination, Schwartz described that tes- timony as "absolutely in error," and testified that, "In fact, Mr. Platt had drafted a letter which he pointed out to me when he gave me Nixon's file." However, Schwartz did not have the letter sent at that time. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Schwartz testified further that when he looked at the file about a week after Platt gave it to him he discovered a record of Nixon's previous suspension for a "similar offense,"12 and the handwritten draft of Platt's letter. Again, Schwartz took no action with respect to the letter at that time. According to Schwartz, he intended to have the letter sent but but forgot. Schwartz testified further that the letter "stayed in the file until I had an opportunity later on, as I previously testified, to get in my personal investigation in depth." His testimony continued. Q And then what did you do with regard to this letter if anything? A. Well, when I picked up the file and determined through our investigation that people hadn't worked, that statements had already been given to that effect, and there was definite cause, I had assumed that the letter had been sent I know I had already spoke to Mr. Wykle and advised him that we were, and I was surprised to find the letter of the draft still here. I gave it to my secretary and told her to send it out. According to Schwartz, it was November 26 when he gave the letter to his secretary, and it was typed directly from the handwritten draft which Platt had previously prepared. Schwartz testified that he had assumed his secretary would correct the date on it and was not cognizant that it went out with an October 13 date on it He also testified that the letter was a courtesy not required by contract and that he didn't get too concerned about it. Schwartz testified that he did not review the language of the letter before it went out, but that he had read it and approved of it when Platt handed him the file on his first or second day at the terminal, and when he rediscovered it later he gave his secretary the file and told her it should have been sent out. Schwartz testified that he made a thorough investigation in an attempt to recreate what took place on the weekend of September 29 and 30 by going over sign-up sheets to deter- mine who had failed to work among the regular and casuals and by developing the patterns of work frequency on other weekends of those who did not work on that weekend. At around the same time that Schwartz first looked at Nixon's file and spoke with Wykle, he also interviewed Larry Zvara with a view to making him office manager in place of Quine who was leaving the terminal. At that time, Schwartz testified, Zvara told him "he was an active participant along with Mr. Nixon in attempting to keep employees from signing up for overtime on Saturday and Sunday, and that he himself did not work and considered their joint attempt as successful, therefore damaging to the Company." Schwartz told Zvara he appreciated his honesty and promoted him despite what Zvara had told him. Schwartz obtained a written statement incorporating what Zvara had told him, and, according to Schwartz, sought through Zvara to obtain statements from any willing employees with direct knowledge of Nixon's role in the slowdown. The only other signed employee statement obtained was Dougherty's which is set forth above. Schwartz spoke directly to only one other employee, Max Heeman, a casual rate clerk, and asked him why he had not worked. Heeman initially said he had plans to spend the weekend in Pennsylvania and wasn't involved in any slow- down However, according to Schwartz, when Heeman in- dicated that he knew more but didn't want to implicate any- one, Schwartz-told Heeman he believed he was already aware of the facts, and Heeman then said that Zvara had asked him not to work." Schwartz testified that he made the ultimate decision to discharge Nixon based on the circumstantial evidence that there was a slowdown, Nixon's 1971 suspension, and the direct statements of Zvara and Dougherty that Nixon had violated article XVIII of the contract. Schwartz testified that he did not discipline Zvara because his investigation showed that several other employees were also involved and the contract article under which he acted against Nixon applied only to stewards. He testified that if he had decided to rely on any other article to discipline Zvara or any other employee he would have had to move against all those involved. He testified, "In other words, if I took action Mr. Zvara, I would then have to take similar action against Mr. McCartney, against Charlie Rice, and anyone else who had admitted that they took part. I was really not desirous of firing everybody in the office, quite frankly." 13. Business Agent Wykle's testimony concerning his role in Nixon's discharge and the processing of his grievance According to Wykle, on or about October 17 he received a call from Schwartz in which, among other things, Schwartz advised him that due to the seriousness of the situation that he had elected to continue the investigation. Wykle testified that he "vigorously told him to cool it. The people are upset over the contract. It would be very unwise to continue any kind of investigation, and I tried to talk him out of going forward with his investigation " Schwartz told him that he would be hearing from Schwartz. Wykle testified that he talked to Schwartz on more than one occasion about the investigation. Wykle testified that he did not remember when he received the letter dated October 13 signed by Platt. He conceded that, in an affidavit given during the investigation of this case, he stated that he had received the letter on or about October 13, but testified that at the time he gave the statement he relied on the date which appeared on the letter and was not aware at that time that there was a discrepancy between the date on the letter and the date it was mailed. Wykle testified that after he received notice of Nixon's discharge he proceeded to represent Nixon as best as he could. He testified that one of them contacted the other, and Nixon came to his office to discuss the problem. According to Wykle, Nixon advised him that he was going ahead with private counsel and that he was getting some documents prepared in his defense. Wykle testified that they were in communication thereafter, Nixon would call him and he would call Nixon. 12 This referred to Nixon's 1971 suspension for refusing to cross a picket 11 Heeman's version of this conversation was slightly different, but in line described above neither version is there any indication that Heeman implicated Nixon PACIFIC INTERMOUNTAIN EXPRESS 595 Wykle testified that he represented Nixon "vigorously" at the grievance hearing, and did everything he could to repre- sent Nixon as effectively as he was able. He described his representation as follows We had a copy of the labor agreement and,a copy'of the grievance, and Mr. Nixon and I proceeded to present the Union's case After a rather long drawn out state- ment I recommended that Mr. Nixon be put back to work immediately with full back pay. Wykle did not testify, however, as to the content of his statement , nor did he testify at all as to the discussion of the October 13 letter at the grievance hearing. Wykle denied that he did anything to cause the discharge of Nixon He conceded that he felt that his relation with Nixon was strained and that Nixon was one of the ringleaders in opposition to ratification of the contract . He also conceded that he was suspicious that Nixon had violated the contract However, he denied that this affected his representation of Nixon. B. Concluding Findings 1. Credibility a. The slowdown There are two basic areas in which credibility issues have been raised. The first concerns whether or not there was a slowdown and the extent of Nixon's involvement in it. The second concerns the explanations of Schwartz and Wykle of the Nixon discharge and the handling of the grievance. Although a number of witnesses were called to testify about the slowdown and Nixon's role in it, I note that the complaint does not allege any impropriety in the October 8 or 12 disciplinary actions, and there is no contention made that employees were engaged in protected concerted activity on September 29 and 30 Therefore, resolution of these credi- bility issues is useful more to provide background against which later conduct can be measured than to provide any element essential to ultimate conclusions in this case. With- out setting forth all the testimony, there first appears to be little basis for doubt that there was a concerted refusal to sign up for overtime on September 29 and 30. In addition to Zvara, Charles Rice and other employees testified that an effort was made to induce employees not to sign up for over- time, and the testimony of Rice and McCartney makes it clear that, whatever other reasons they advanced for not working that weekend , a principal consideration was the desire to bring pressure on PIE by not working With respect to Nixon's role, the evidence is more in con- flict Although Zvara testified that out of his conversations with Nixon there was a decision to move forward with the plan, he had no specific recollection of what was said in that regard, and testified, "Perhaps a better wording would be that no decision was ever reached not to do it rather than to say a decision was reached to continue with it." The testimony of casual employee Tim Wood was somewhat more affirma- tive, that Nixon telephoned him and said he would appreciate it if Wood would be unavailable in the event he was called to work by PIE that weekend. These were the only two wit- nesses to, testify that Nixon became directly involved in the slowdown . While other witnesses denied that Nixon ever spoke to them about the slowdown," and two testified that Nixon in effect told them that it was up to them as individuals to decide whether to work , 15 Nixon failed to deny Wood's testimony unequivocally , and the testimony of McCartney indicates that Nixon did not separate himself completely from the attempt to induce the slowdown Thus, Nixon de- nied that he called Wood to ask him not to come in, in the event he was called to work by PIE, but when Nixon was asked if he had no contact with Wood , Nixon replied, "That is not my testimony I did have contact with him. I did not ask him not to report to work for the 29th and 30th." While Nixon described the substance of some conversations he had with Wood, he did not rule out contact during the week before the slowdown or the possibility that there was some discussion with Wood short of a direct request that he not work which Wood might have construed as a request to be unavailable . McCartney , a witness for the General Counsel, testified with some reluctance that Nixon was present on one occasion when McCartney was discussing the slowdown with Rice, and Nixon commented that he could get in real trouble because he was a steward but that if no one else worked he might stay out . From all of the evidence , it appears that Nixon played a somewhat ambiguous and equivocal role dur- ing the week preceding the slowdown, remaining in the back- ground for the most part , aware of what was happening without interfering or disapproving , but giving "proper" re- sponses when confronted directly by employees seeking ad- vice b. The testimony of Schwartz (1) The "October 13" letter signed by Platt Although Schwartz explained the failure to send the "Oc- tober 13" letter until November 26 and its misdating at that time as the product of multiple inadvertences, the evidence persuades me that the likelihood that the series of oversights and errors described by him occurred is much less than that the letter was deliberately misdated to hurdle an obvious procedural barrier. to discharging Nixon in late November for an offense which occurred 2 months earlier, for which he was suspended 7 days on October 8, and for which the suspension was reduced on October 12. If the "October 13" letter had been sent on October 13, it would have been possible to argue that the reduction of the suspension on the previous day was intended as conditional, pending further investigation . But, of course, it was not sent on October 13, and I find ample reason to believe that it was not even conceived on October 13, let alone drafted, and left to languish unsent in a file on Schwartz' desk from October 19 until November 26. District Manager Mayoras, who was consulted about the reduction of Nixon 's suspension , said nothing about further investigation or conditioning Nixon 's return on further inves- tigation. The letter to Nixon signed by Quine on October 12. with a copy to Wykle, says nothing about further investiga- tion Platt, who was allegedly in charge of the terminal on 14 Joe Fazek, Max Heeman, Gladys Dougherty, Lila Fay Smith, Gregory Smith, Pauline Jacobs, and Charles Louis Smith 15 Michael Thomas Manning and Colleen Margaret Waskowski 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD October 13, appeared as a witness and testified to rebut an alleged post-discharge admission attributed to him, but he was asked nothing about the "October 13" letter or the cir- cumstances of its preparation despite its critical importance to this case and the claim that he originally wrote it. No testimony was offered to explain why, if he had prepared a handwritten draft, he did not send it immediately himself to protect PIE's position in the event that further investigation turned up cause for more severe discipline Even assuming Platt as interim manager had limited authority, the letter would have done no more than preserve Respondent's posi- tion, and if he prepared a draft for his own signature presum- ably he had authority to send it. Moreover, as Quine wrote the two previous letters, it remains unexplained why Platt did not merely ask Quine to write a further letter, clarifying Quine's October 12 letter.16 Also unexplained was why, un- like the two previous letters, the "October 13" letter was addressed to Wykle with not even a copy to Nixon. Schwartz' testimony as to the letter only raises further questions. First, as set forth above, he initially testified that he asked Platt to draft the letter and then branded his own testimony an absolute error. Such an absolute error with respect to such a critical matter is a puzzling mental lapse unless Schwartz inadvertently spoke the truth and then re- canted when he realized that the handwritten draft could not have been properly dated October 13 if he told Platt to write it necessarily some time after October 17 Assuming, how- ever, that Schwartz' absolute error was only the product of a mental lapse, his testimony begs the questions why the letter wasn't sent (a) when Platt allegedly first pointed it out to him a day or two after October 17, (b) when Schwartz spoke to Wykle and allegedly said he would send it about a week after October 17, (c) when Schwartz first looked at the file around the same time, and (d) until November 26 when the investiga- tion was complete and Schwartz was about to discharge Nixon. Schwartz' explanation that he overlooked it and wasn't overly concerned about the letter is hardly convincing. Although Wykle had nothing to do with the preparation of the "October 13" letter, he was its addressee. However, his testimony, as discussed below, does nothing to bolster the testimony of Schwartz, but in fact adds to the cause to dis- believe their testimony concerning the letter. PIE contends that, despite everything else, there is one overriding fact which supports Schwartz' explana- tion-that PIE sent the letter by certified mail PIE contends that anyone seeking to concoct a story would not through the use of certified mail provide the means of its unraveling but would have used ordinary mail I have consid- ered this fact and it does have some weight, but not enough. For one thing, Quine's letters indicate routine use of certified mail relating to disciplinary matters, and no one may have been thinking beyond the grievance procedure when this let- ter was sent. But beyond that, as will be seen below, my disbelief of Schwartz is general and rests on other factors as well as circumstances of the sending of the "October 13" letter. (2) The Dougherty affidavit Schwartz also told an incredible tale concerning the notari- zation of Mrs. Dougherty's affidavit. Although Zvara, a no- tary public was with him at Dougherty's house, Schwartz testified that he decided that it would be better if someone else notarized the affidavit because Zvara participated in getting it. Somehow, according to Schwartz, it seemed more appro- priate to Schwartz to have Zvara take Dougherty's statement to John Baker," another company employee who is also a notary, and have Baker falsely certify that Dougherty's state- ment was sworn to and subscribed to before him Even as- suming that Dougherty would have been willing to swear to the affidavit, it would be difficult to understand Schwartz' reasoning. But Dougherty testified that she objected even to the second affidavit and signed it only after she was told that the difference was immaterial and that the affidavit cleared Nixon. Her testimony rather than Schwartz' illogic offers the only ready explanation for the gross impropriety chosen by Schwartz as the better way. Since Dougherty still did not agree to the contents of the affidavit, it was better not to ask her to notarize the statement while Schwartz was at her house and to use a notary other than Zvara, who had heard her object to signing it. I conclude that Schwartz grossly abused PIE employee Baker's commission as a notary in knowingly utilizing it to obtain false notarization of Dougherty's state- ment. These considerations cause me not only to discredit Schwartz' version of the circumstances under which Dough- erty's statement was given but also to question Schwartz' regard for the oath taken before me and his veracity other- wise. (3) Schwartz' reason for discharging Nixon As set forth above, Schwartz testified that he discharged Nixon on November 28 because of circumstantial evidence showing that there was a slowdown, Nixon's past record, and the statements of Zvara and Dougherty. Yet, if Schwartz is to be believed, within a week after Schwartz arrived at the terminal Schwartz knew as much as he was going to learn about the slowdown and Nixon's involvement. Schwartz tes- tified that he looked through the file and learned of Nixon's record about a week after his arrival at the terminal. At about the same time, Schwartz interviewed Zvara for the vacant office manager's job and was told by Zvara that Zvara and Nixon were active participants in keeping employees from signing up for overtime on Saturday and Sunday It is dif- ficult to see how this information differed from what Roberts believed when Nixon was originally suspended, but, assuming that Zvara disclosed greater participation by Nixon than PIE originally believed, after Zvara spoke to Schwartz, Schwartz learned nothing else which could make Nixon's conduct ap- pear more egregious. Certainly the statement from Dough- erty added nothing. Its first paragraph did not meet Schwartz' advance expectations, and she insisted that the second paragraph was untrue even though she signed the statement. Schwartz spoke to only one other employee, Hee- man, who did not implicate Nixon. The only other evidence 16 It should be noted that by November 26 Quine was no longer employed at the terminal, and Platt was the highest official who was there both on October 13 and on November 26 17 Zvara, who testified, was not asked about the affidavit and Baker was not called as a witness There is thus only Schwartz' testimony that Zvara took the statement to Baker for notarization PACIFIC INTERMOUNTAIN EXPRESS 597 on which Schwartz testified he relied was an analysis of work patterns. The record is silent as to when the analysis was made, but that analysis in fact added nothing to what Zvara had already told Schwartz , that the refusals to work weekend overtime were more than coincidence Thus, it appears that for a full month before Nixon 's discharge Schwartz knew as much about Nixon 's role in the slowdown as he knew on November 28. That Schwartz waited until November 28 sug- gests that other intervening causes and not the facts so long known to Schwartz led to the discharge. That Schwartz did not regard the slowdown so seriously is further indicated by his promotion of Zvara without any discipline and his failure to take any action against Rice, McCartney, and others whom he also had learned were active in promoting the slowdown . Schwartz testified that he distin- guished Nixon from the other proponents of the slowdown because as a steward Nixon had a special contractual duty different from others. However , he testified if he disciplined one of the others he would have had to discipline all of them equally. Schwartz explained, "I was really not desirous of firing everybody in the office, quite hardly ." But that was not Schwartz' only choice. Suspension or warning were also available . Schwartz did nothing, giving rise to strong doubt that the refusal to work overtime was viewed as seriously as Schwartz alleged. ' When one puts all of the above together-the inadequately explained misdated letter to paper over the procedural crack in the case against Nixon, the fraudulently notarized affidavit of Dougherty obtained with the representation that it would help Nixon but used for the contrary purpose, the inade- quately explained hiatus between Nixon's suspension and dis- charge, and the unconvincing explanation for taking no disci- plinary action of any kind against other known participants in the slowdown-the conclusion is compelling that Schwartz' explanation for Nixon's discharge cannot be be- lieved and indeed that Schwartz' testimony as a whole is worthy of little credit. c. The testimony of Wykle Wykle, at least theoretically, was not in a position to testify as to the preparation of the "October 13" letter. But his testimony as to its receipt was no more convincing than Schwartz' testimony concerning its preparation and supports the conclusion that the true facts concerning this letter were suppressed by both Schwartz and Wykle Professing at the hearing not to remember when he received the letter because he has voluminous correspondence, Wykle conceded that, in an affidavit given during the investigation of this case, he stated that he received the letter on or about October 13. He testified that in so stating he merely relied on what appeared on the face of the letter and was not then aware of the discrep- ancy between the date on the face of the letter and the date when it was mailed . This testimony would be plausible but for Nixon's uncontradicted testimony about what happened before the area grievance committee . For it was there that Nixon first heard about a continuing investigation and the "October 13" letter. When Nixon protested that he knew nothing about the letter, the chairman of the committee said it was sufficient that Wykle received a copy. Nixon then asked Wykle why he wasn 't advised of the letter or given a copy. Wykle's only reply was, "Oh, didn't I give you a copy?" But, if in fact Wykle had received this letter on November 28, as the return receipt shows, he knew on November 30, two days later, that he hadn't given Nixon a copy, and he knew that he and PIE were leaving Nixon with a false impression that the letter was sent on October 13 Having dissembled then , it is not credible that at the time he gave his affidavit Wykle forgot what this letter represented and when he re- ceived it, and I also disbelieve his testimonial claim made at the hearing in the face of the return receipt and a stipulation as to when the letter was sent that even then he had no recollection of when he received this letter. , There is also reason to discredit Wykle as to the contact between him and Nixon after Nixon was discharged and Wykle's efforts in behalf of Nixon. Wykle claimed that after Nixon was discharged, Nixon came to his office to discuss the problem and advised Wykle that he was going ahead with private counsel and getting some documents . According to Wykle they were in communication thereafter with each call- ing the other . Nixon testified that he had no meeting with Wykle concerning preparation of his case, and had only one telephone conversation between his discharge on November 28 and the grievance hearing on November 30. Given the short interval of time, Wykle's failure to tell Nixon of the "October 13" letter, the total lack of evidence that Wykle did anything to prepare for the area grievance committee hearing, and the strained relationship between Wykle and Nixon, I credit Nixon. In sum, I do not credit Wykle's testimony as to his role in the discharge of Nixon and the processing of Nixon's grievance. d. The statement by Platt to Stoats As set forth above, employee Betty Staats testified that after Nixon's discharge Platt told her that Nixon was dis- charged because he made trouble for someone outside the Company, and Platt declined to answer when she asked if it was Wykle. Although post-discharge statements in the nature of admissions must always be viewed with caution, I am convinced that Staats testified truthfully and should be cred- ited . She remained an employee of PIE at the time of the hearing, and whatever interest she may have had to aid Nixon was balanced by her interests as a continuing employee. While Platt's testimony was brief and he was subjected to a minimum of cross-examination , his interests were clearly al- lied with PIE's against Nixon. Finally, as between the two versions , I find it more plausible that Staats explored what Platt meant by his reference to unspecified trouble caused by Nixon than that she followed that reference with a simple terminal declaratory statement . I have credited Staats. (1) The alleged unfair misrepresentation of Nixon by Local 497 The complaint alleges that Local 497 through Wykle and others failed and refused to afford Nixon fair representation in the processing of his grievances because Nixon opposed Wykle with respect to ratification of a new agreement and wrote to International Brotherhood President Fitzsimmons complaining about Wykle. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The duty of fair representation requires that a union serve the interests of all bargaining unit employees fairly and in good faith, and without hostile discrimination against any of them on the basis of arbitrary, irrelevant, or invidious distinc- tions. To establish that the duty has been breached, however, it is not sufficient to establish that a union has been negligent or exercised poor judgment, for the interest of effective ad- ministration of contractual grievance machinery requires that a union be afforded a broad range of discretion in deciding what grievances to present and how to present them.18 But a union representative presenting a grievance is required to represent the grievant as an advocate and to present his griev- ance in a light most favorable to the grievant. 19 Of several grounds in support of the contention that there was unfair representation in this case most compelling is the evidence that Wykle failed to disclose to Nixon what he knew of the "October 13" letter thereby obstructing a substantial defense which should have been available to Nixon and made on his behalf. The evidence has already been set forth in detail above. When Nixon complained that he had no notice of the "October 13" letter and that the procedure was unfair, Wykle concealed what he knew, that he received the letter on the same day as Nixon's discharge, professing a false uncertainty as to whether he had given Nixon a copy. Thus, Wykle per- mitted the area grievance committee to believe that the letter was sent on October 13 and undercut Nixon's assertion that he had no notice by answering Nixon's question to him with his question to Nixon. Wykle's omission was not immaterial Had he disclosed that he received the letter only 2 days earlier it would have revealed a substantial crack in PIE's case against Nixon which might well have changed the result before the committee and certainly would have given Nixon a strong case for arbitration if the committee and Local 497 permitted the grievance to reach that stage. For it is a widely accepted principle in grievance arbitration that after an em- ployee has been punished once for an offense he may not be subjected to additional and more severe penalties for the same offense unless it is made clear that the initial penalty is subject to the possibility of further discipline. Borrowing from crimi- nal law, such dual punishment is termed double jeopardy and is eschewed.20 In these circumstances, Wykle's concealment of material facts from Nixon and the area grievance committee can hardly be viewed as falling within the limits of good-faith representation of Nixon. Wykle was not merely negligent, but knew what he was doing and must have done it deliberately and with knowledge that he was deceiving both Nixon and the committee. Even without an apparent cause related to Nixon's union activity, under the cases cited above the evi- dence would be sufficient to establish a breach of the duty to represent Nixon fairly in violation of Section 8(b)(1)(A). Here 18 Vaca v Sipes, 386 U S 171, 190 (1967), Local 575, Packinghouse Division, Amalgamated Meat Cutters and Butcher Workmen (UPWA), AFL-CIO (Omaha Packing Company), 206 NLRB 576 (1973), Teamsters and Chauffeurs Local Union No 729, IBT(Penntruck Co, Inc), 189 NLRB 696 (1971) 19 Truck Drivers, Oil Drivers and Filling Station and Platform Workers Local No 705, IBT (Associated Transport, Inc), 209 NLRB 292 (1974) 20 See Stauffer Chemical Co, 59 LA 414, 416, Rite Beverage Co, 59 LA 380, 382, Hi-LifePacking Co, 41 LA 1083, 1085-87, Ross Gear & Tool Co, 35 LA 293, Olin Mathieson Chemical Corp, 35 LA 95, 100-101, Interna- tional Harvester Company, 16 LA 616 there is an apparent union related cause which may readily be inferred from the consistent opposition of Nixon to ratifi- cation of the contract with PIE and his complaint to Interna- tional President Fitzsimmons. I find that through Wykle, Local 497 failed to provide Nixon with fair representation in the presentation of his grievance on November 30, thereby violating Section 8(b)(1)(A) of the Act. (2) The alleged discrimination against Nixon by PIE and Local 497 The complaint alleges Local 497 attempted to cause PIE to discharge Nixon and that PIE discharged Nixon in col- laboration with and/or at the insistence or request of Local 497. There is no direct evidence that Wykle asked PIE to discharge Nixon or that Local 497 and PIE worked together to achieve that result. But there is evidence from which an inference may be drawn that there was an understanding between them pursuant to which they collaborated toward that end. Once again, the "October 13" letter is of major signifi- cance, for, having rejected the testimony of Schwartz and Wykle concerning this letter, the evidence stands as showing that on November 26 PIE sent a predated letter to Wykle which was then utilized before the area grievance committee to show that Local 497 had timely notice of PIE's continuing investigation of Nixon. Not only did Wykle conceal the truth about this letter from the committee, but Schwartz also mis- led the committee by presenting this letter without further explanation. That Schwartz presented it and Wykle remained silent gives rise to a strong inference that Schwartz and Wy- kle had communicated in advance about this letter21 and had an understanding that it would be utilized by Schwartz without objection by Wykle Such an understanding could only have had as its purpose an attempt to discharge Nixon in such a way that his prior suspension for the same offense could not be raised as a bar to the discharge before the area grievance committee. In short, there is reason to conclude that Wykle had an understanding with Schwartz, the purpose of which was to carry out Nixon's discharge. The fact that the reasons given for the discharge cannot be believed itself supports an inference that the true reason could not be disclosed without revealing unlawful motivation.22 Moreover, as set forth above, the fact that Schwartz knew everything he needed to know about Nixon's record and his role in the slowdown a month before the discharge, taken with the belated concoction of the October 13 letter, indicates that some later event rather than the slowdown caused the discharge. The one intervening event which appears and ex- plains both the discharge and Wykle's collaboration with Schwartz in the effort to make it stick before the area griev- ance committee is Nixon's continuing conflict with Wykle and his November 6 letter to Fitzsimmons.23 Finally, al- 21 Both testified that they were in frequent communication Schwartz of course also testified that he told Wykle he would send the letter about a month before it was sent For reasons set forth above, I have not credited that testimony 22 Shattuck Denn Mining Corporation v NLRB, 362 F 2d 466, 470 (CA 9, 1966) PACIFIC INTERMOUNTAIN EXPRESS 599 though not chargeable as an admission against Local 497, the statement by Platt, the signer, of the "October 13"'letter, to employee Staats that Nixon was discharged because he was a troublemaker for someone outside the Company gives added support to the conclusion that PIE discharged Nixon because Nixon was making trouble for Wykle From all of the above, I conclude that Nixon was not discharged by PIE because of his participation in the Septem- ber slowdown but because of his continuing opposition to Wykle and his letter of complaint to Fitzsimmons. I find that PIE thereby violated Section 8(a)(3) and (1) of the Act. Fur- thermore, while there is no direct evidence that Wykle re- quested or instigated the discharge, the evidence warrants the conclusion that Wykle and Schwartz collaborated and had an understanding as to the "October 13" letter so as to achieve Nixon's discharge and rejection of Nixon's certain grievance. Accordingly, I also find that Local 497 by virtue of that understanding violated Section 8(b)(2) and 8(b)(1)(A) of the Act.24 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of PIE described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that Respondents violated Section 8(a)(3) and (1) and 8(b)(2) and (1)(A) of the Act, I shall recommend that they cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act As I have found that Local 497 through Wykle entered into an understanding with PIE to achieve the discharge of Charles Richard Nixon and the rejection of his grievance because of his union activities, I shall recommend that Local 497 be ordered to notify PIE, in writing, with a copy to Nixon, that it has no objection to his immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges I shall also recom- mend that PIE be ordered to offer Nixon immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. I shall further recommend that Respondents be ordered jointly and severally to make Nixon whole for any loss of earnings he may have suffered as a result of the discrimina- tion against him by payment to him of the amount he nor- mally would have earned from the date of his discharge to the dates set forth hereafter, less net earnings, to which shall be added interest at the rate of 6 percent per annum, in accord- ance with the formula set forth in F W. Woolworth Company, 23 While PIE may have had no independent reason to protect Wykle, it had a clear interest in the outcome of the issue over which Nixon's conflict with Wykie arose, and its interest was aligned with Wykle's 24 Walter J Barnes Electrical Co, Inc, 188 NLRB 183, 186 (1971) 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In the case of the Union, its backpay liability shall terminate 5 days after it notifies PIE and Nixon that it has no objection to his reinstatement, as provided above. In the case of PIE, its backpay, liability shall terminate on the date that Nixon is offered reinstatement. Upon the basis of the above findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1 Pacific Intermountain Express Co. is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 497, is a labor organization within the meaning of Section 2(5) of the Act. 3. By failing and refusing to afford Charles Richard Nixon full and fair representation in the processing of grievances because of his union activities, Respondent Union has en- gaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(b)(1)(A) and 2(6) and (7) of the Act 4 By entering into an understanding with Respondent Employer for the discharge of Charles Richard Nixon be- cause of his union activities, Respondent Union has engaged in and is engaging in unfair labor practices affecting com- merce within the meaning of Sections 8(b)(2) and (1)(A) and 2(6) and (7) of the Act. 5. By discharging Charles Richard Nixon because of his union activities, Respondent Employer has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the Act. Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER25 A. Respondent Pacific Intermountain Express Co., Rich- field, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from- (a) Encouraging membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 497, or in any other labor organization, by discharging, or in any other manner discriminating against any employee in regard to hire or tenure of employment or any term or condition of employment except to the extent that membership may be required by an agreement as a con- dition of employment, as authorized in Section 8(a)(3) of the Act as modified by the Labor-Management Reporting and Disclosure Act of 1959. 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 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Charles Richard Nixon immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges. (b) Jointly and severally with Respondent International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 497, make Charles Richard Nixon whole for any loss of earnings suffered as a result of the discrimination against him in the manner set forth in the section of the Decision entitled "The Remedy " (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records relevant and necessary to a determination of compliance with paragraphs (a) and (b) above (d) Post at its Richfield, Ohio, place of business copies of the attached notice marked "Appendix A."26 Copies of said notice on forms provided by the Regional Director for Region 8, after being duly signed by Respondent Employer's repre- for any loss of earnings he may have suffered as a result of the discrimination against him in the manner set forth in the section of the Decision above entitled "The Remedy " (b) Notify Pacific Intermountain Express Co., in writing, that it has no objection to Nixon's employment and requests them to offer him reinstatement, and furnish Nixon with copies of such notification (c) Post at its office copies of the attached notice marked "Appendix B."27 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by an authorized representative, shall be posted by it immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Deliver to the Regional Director for Region 8 signed copies of said notice in sufficient number to be posted by Pacific Intermountain Express Co., the Employer willing, in all places where notices to employees are customarily posted (e) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith sentative, shall be posted by it immediately upon receipt 27 See fn 26, supra thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Employer to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith B. Respondent International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 497, its officers, representatives, and agents, shall 1. Cease and desist from. (a) Causing or attempting to cause Pacific Intermountain Express Co. to discriminate against any of their employees in violation of Section 8(a)(3) of the Act (b) Failing and refusing to afford employees full and fair representation in the processing of grievances because of their union activities (c) In any other manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights are affected by an agree- ment requiring membership in a labor organization as a con- dition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2 Take the following affirmative action which is necessary to effectuate the policies of the Act (a) Jointly and severally with Respondent Pacific Inter- mountain Express Co make Charles Richard Nixon whole APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT encourage membership in International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local 497, or any other organi- zation, by discharginb, or in any other manner dis- criminating against our employees in regard to their hire or tenure of employment or any other condition of em- ployment, except to the extent that membership may be required by an agreement as a condition of employment as authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959 WE WILL NOT in any other manner interfere with, re- strain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act WE WILL offer Charles Richard Nixon immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position with- out prejudice to his seniority or other rights or privileges, and WE WILL make him whole for any loss of earnings he may have suffered because of his discharge, with interest at 6 percent per annum. 26 In the event the Board's Order is enforced by a Judgment of the 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 " PACIFIC INTERMOUNTAIN EXPRESS CO PACIFIC INTERMOUNTAIN EXPRESS 601 APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Pacific Inter- mountain Express Co to discriminate against Charles Richard Nixon or any other employee in violation of Section 8(a)(3) of the Act. WE WILL NOT fail or refuse to afford any employee full and fair representation in the processing of grievances because of his union activities. WE WILL NOT in any other manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights are affected by an agreement requiring membership in a labor organization as a condition of employment, as au- thorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL notify Pacific Intermountain Express Co., in wasting, that we have no objection to the employment of Charles Richard Nixon and request his reinstatement, and WE WILL furnish him with a copy of such notifica- tion WE WILL make Charles Richard Nixon whole for any loss of earnings suffered because of his discharge, with interest at 6 percent per annum. INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL 497