P.P.G. Industries Inc.

P.P.G. INDUSTRIES INCORPORATED P.P.G Industries Incorporated' and Edward Ponkow Glaziers Union Local 1204, AFL-CIO 2 and Edward Ponkow. Cases 30-CA-3711 and 30-CB-975 May 17, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On January 19, 1977, Administrative Law Judge Eugene George Goslee issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions, 3 the General Counsel filed excep- tions and a supporting brief, and the Respondents each filed a brief in answer to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,4 and conclusions of the Administrative Law Judge only to the extent consistent herewith. 1. The complaint in Case 30-CB-975 alleges that the Respondent Union violated Section 8(b)(1)(A) of the Act by failing to represent adequately Joseph and Edward Ponkow in the presentation of their griev- ances concerning riding time and mileage to the Employer's jobsite, and by refusing to proceed to arbitration on those grievances for arbitrary, irrele- vant, and invidious reasons. The complaint in Case 30-CA-3711 alleges that the Respondent Employer violated Section 8(a)(1) and (3) of the Act by refusing to recall the Ponkows to work because they engaged in union and/or protected concerted activities. In his Decision, the Administrative Law Judge found that the Respondents had not engaged in any unfair labor practices and therefore recommended that the complaints herein be dismissed in their entirety. We I Herein called Respondent Employer or PPG. 2 Herein called Respondent Union. 3 In his exceptions, the Charging Party contends that the Administrative Law Judge "was completely unfair in his decisions of the cases." After a careful examination of the entire record, we are satisfied that this allegation is without merit. There is no basis for finding that bias and partiality existed merely because the Administrative Law Judge resolved important factual conflicts in favor of the Respondents' witnesses. As the Supreme Court stated in N.L.R.B. v. Pittsburgh Steamship Company, 337 U.S. 656, 659 (1949), "IT)otal rejection of an opposed view cannot of itself impugn the integrity or competence of a trier of fact." 4 The General Counsel 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 credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products. 229 NLRB No. 107 find merit in the General Counsel's exceptions to the Administrative Law Judge's Decision. 2. Turning first to Case 30-CB-975, the relevant facts can be summarized as follows. The Respondent Employer is engaged in the distribution and installa- tion of glass and related products from its facility located in Milwaukee, Wisconsin. Both Joseph and Edward Ponkow had been employed by the Respon- dent Employer for 16 or 17 years, but their jobs were terminated in 1970 when PPG closed its branch facility in Oshkosh, Wisconsin. In July or August 1975, Joseph Ponkow telephoned PPG in Milwaukee, stated that he knew that they had been awarded the glazing contract on the Lutheran Aid building in Appleton, Wisconsin, and inquired about the availability of work. Approxi- mately 5 or 6 weeks later, PPG contacted the Ponkows and told them to report to the Lutheran Aid jobsite on October 14, 1975.5 After the Ponkows received their first paycheck, they determined that they had not been paid for riding time and mileage which they believed they were entitled to on the ground that the driving distance from the Oshkosh court house to the Appleton jobsite was 27-1/2 miles, or 2-1/2 miles in excess of the "Free Zone" specified in article VIII of the collective-bargaining agreement then in effect between the Respondent Union and PPG. 6 This agreement, which apparently covered other employ- ers as well, applied to work performed in both the southern and northern areas of the State of Wiscon- sin, and provided a separate wage scale for each area. It appears from the record that the issue of the Ponkows' entitlement to riding time and mileage turns on whether, under article VIII, PPG was a southern area employer, in which case mileage and riding time could technically be claimed from Milwaukee to the jobsite in Appleton, or a northern area employer, in which case riding time and mileage could only be claimed if the jobsite was outside the "Free Zone," defined as "a twenty-five (25) mile radius of the City Hall of the Employer's warehouse city." The record also reveals that if PPG was a 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. In this connection, we note our agreement with the General Counsel's contention that the Administrative Law Judge erred in finding in sec. lI.B, par. 16 of his Decision that in Joseph Ponkow's initial testimony he "vehemently denied that he ever talked to Frank Hudson." Nevertheless, we find a sufficient basis for affirming the Administrative Law Judge's finding crediting the testimony of Hudson concerning the contents of the conversation in question. I As discussed infra, the Administrative Law Judge found, on the basis of his credibility resolutions, that in these initial conversations the Ponkows agreed to the condition imposed by PPG that there would be no payment for riding time and mileage to thejobsite. R Art. VIIIl is set forth in part in sec. II,A, par. I of the Administrative Law Judge's Decision. 713 DECISIONS OF NATIONAL LABOR RELATIONS BOARD northern area employer under the contract a ques- tion arises as to whether Appleton or Oshkosh was the proper "warehouse city." In short, we agree with the Administrative Law Judge's statement that "a valid question did exist as to the interpretation of the bargaining agreement" in relation to the Ponkows' claim. In late October 1975, the Ponkows telephoned Joseph Sofio, business manager of the Respondent Union, and informed him that they were not receiving riding time and mileage. Sofio contacted Branko Stanich, PPG's glazing superintendent for the Lutheran Aid project, and was told by Stanich that the matter of riding time and mileage was between the Ponkows and Frank Hudson, PPG's branch manager in Milwaukee. Sofio then informed Edward Ponkow of his conversation with Stanich and told Ponkow to contact Hudson. No further developments occurred with regard to this matter until June 5, 1976,7 when the Ponkows reduced their claims to writing and presented two grievances to Business Manager Sofio. On June 8, Sofio forwarded a copy of the grievances to Branch Manager Hudson of PPG. 8 The Administrative Law Judge found that on three occasions during the month of June Sofio discussed the Ponkows' grievances with Hudson. In each conversation with Sofio, Hudson maintained that the Ponkows' grievances were not meritorious, primarily because the Ponkows had agreed at the time of their hire that they would not be paid for riding time and mileage. And, on all three occasions, Sofio expressed his agreement with Hudson that the grievances had no validity. Thus, the Administrative Law Judge found that on June 14 Sofio told Hudson that the Ponkows "did not have a valid claim"; on June 22 Sofio "again stated that he felt that the Ponkows did not have a legitimate claim to riding time and mileage"; and on June 28 Sofio "again agreed that the Ponkows had no legitimate claim, and told Hudson to take no further action until he heard further from Sofio." Respondent's executive board considered the Ponkows' grievances on July 219 and unanimously 7 All subsequent dates herein are in 1976 unless otherwise indicated. s The parties' collective-bargaining agreement contained basically a two- step procedure under which grievances were first presented to the Employer, followed by arbitration at the request of either party in the event the grievance was not satisfactorily adjusted. 9 The Administrative Law Judge, apparently by inadvertence, found in sec. I[,B, par. 13, of his Decision that the executive board considered the Ponkows' grievances on July 31. °o In finding no 8(bXIXA) violation, the Administrative Law Judge also relied on the fact that the grievances on their face claimed mileage for both Ponkows, while only one automobile had been driven. Citing the testimony of Joseph Ponkow that Sofio had cautioned him in October 1975 that double mileage could not be claimed if only one car was driven, the Administrative Law Judge concluded that "the grievance they filed with the Respondent Union was not only in error, but was a purposeful attempt to agreed not to take the grievances to arbitration. The minutes of the meeting reveal that the executive board's action was based on the following considera- tions: I. Had the Business Manager secured employ- ment for the Ponkows they would have received mileage and riding time. 2. Only one member has riding time coming (ART 9). 3. The Board cannot justify the delay in time from Oct. 28, 1975 to June 5, 1976. 4. The expense is too great to go to arbitration. 5. Article 8 is discriminatory toward the Em- ployer. Thereafter, Sofio notified the Ponkows of the board's decision and substantially reiterated the reasons set forth in the minutes of the meeting. Thus, Sofio informed the Ponkows that "[i]t would have been the Business Manager's responsibility, provided he se- cured the employment for the men." In a letter to a Board agent dated August 24, Sofio stated that one of the reasons why the Union did not take the Ponkows' grievances to arbitration was that "[t]hey secured their employment on their own and made the conditions." The Administrative Law Judge concluded that the Respondent Union had not breached its duty of fair representation by the manner in which it processed the Ponkows' grievances or by its refusal to proceed to arbitration. The Administrative Law Judge noted that Sofio discussed the grievances with PPG on several occasions and when PPG objected to the grievances, Sofio presented the matter to the execu- tive board. On the basis of credibility resolutions, the Administrative Law Judge found that the Ponkows were informed by PPG at the time of their hire that travel time and mileage would not be paid and that this condition of employment fully explained their 7- month delay in filing the grievances.10 Although we affirm the Administrative Law Judge's factual obtain moneys to which the Ponkows were not entitled." Contrary to the Administrative Law Judge, we do not believe that the record will support any inference of fraudulent intent on the part of the Ponkows. The source of this problem lies in the fact that the grievances were set forth on one sheet of paper signed by both Ponkows. See sec. II,B, par. 7 of the Administrative Law Judge's Decision. Grievance I involved riding time which concerned both Ponkows, while grievance 2 involved mileage. In the testimony cited above, upon which the Administrative Law Judge relied, Joseph Ponkow also stated that he told Sofio that he, Ponkow, knew that mileage could be claimed for only one car: "We made that definitely clear, that the mileage would be split. There was no mention of each one getting mileage. The mileage was to be split, because my brother took his car one week, I took it the next week." Although the minutes of the Union's executive board meeting gave as one of the reasons for not proceeding to arbitration the fact that 'o ]nly one member has riding time coming" (apparently intended as a 714 P.P.G. INDUSTRIES INCORPORATED findings, we disagree with the legal conclusions drawn therefrom. It is well settled that a bargaining agent must serve the interests of all bargaining unit employees fairly, in good faith, and without hostility or discrimination against any of them on the basis of arbitrary, irrelevant, or invidious distinctions." The test is whether the union's conduct toward a unit employee is "arbitrary, discriminatory, or in bad faith." 12 Thus, a union breaches its duty when it arbitrarily ignores a meritorious grievance or processes it in a perfunctory fashion.'3 In Associated Transport,14 we held that once a union undertakes to present an employee's grievance to an arbitral committee it is obliged to act as the employee's advocate, and present his grievance in the light most favorable to him. Accordingly, we found there that the union breached its duty of fair representation by openly stating before the commit- tee that the grievance was without merit. In sustain- ing our unfair labor practice finding, the court of appeals noted that although "a union may in good faith refuse to process a member's grievance alto- gether .... [i]t is venerable tort law that purporting to take action where duty is nonexistent creates in itself certain duties." 15 We are not prepared to say that the Union's obligation here, where it was presenting a grievance at the initial stage of the procedure, is synonymous with its duty to act as advocate for the grievant where, as in Associated Transport, it was representing an employee before an arbitral forum.16 But, under the principles stated above, the Respondent Union was obligated to exercise its considerable discretion in good faith, with honesty of purpose, and free from reliance on impermissible considerations. We find that the totality of Respondent's conduct failed to satisfy that standard. In this case, the Ponkows filed two grievances seeking to determine whether they were entitled to certain benefits under an ambiguous provision in the collective-bargaining agreement. Although the Union agreed to process the grievances, it conceded, during the first communication with the Employer, that the Ponkows did not have a valid claim. On two reference to mileage rather than riding time), this consideration was omitted entirely from the subsequent letter to the Ponkows, and the letter to the Board agent characterized the grievances as only containing "mistakes." Under these circumstances, we are persuaded that the so-called claim for double mileage was nothing more than an inadvertent error which could have been easily corrected by the Union, if it had been willing to do so. "1 Vaca v. Sipes, 386 U.S. 171 (1967); Miranda Fuel Company, Inc., 140 NLRB 181 (1962), enforcement denied 326 F.2d 172 (C.A. 2, 1963). 12 Vaca v. Sipes, supra at 190. i3 Id at 191, 194. Truck Drivers, Oil Drivers and Filling Station and Platform Workers Local No. 705, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers ofAmerica (Associated Transport, Inc.), 209 NLRB 292 (1974), petition for review denied 532 F.2d 1169 (C.A. 7, 1976). subsequent occasions, the Union repeated this view in discussions with the Employer. Yet the following month, the Respondent's executive board, in unani- mously agreeing not to take the grievances to arbitration, concluded that "[h]ad the Business Manager secured employment for the Ponkows they would have received mileage and riding time," thus indicating that the claim itself was meritorious under the collective-bargaining agreement. We disagree with the Administrative Law Judge's interpretation of this reason as constituting "only an acknowledgment that the Ponkows had set their own conditions of employment." The statement on its face refers only to the manner in which the Ponkows obtained their employment. Similarly, the Union's letter to the Ponkows did not state that they had set their own conditions of employment but claimed only in this regard that "[li]t would have been the Business Manager's responsibility, provided he se- cured the employment for the men." Since the parties' collective-bargaining agreement did not contain an exclusive hiring hall provision, the fact that the Ponkows did not secure their employment from the Union is clearly an irrelevant consideration in processing their grievances, and adverse union action against them for that reason is impermissible under the Act.17 Furthermore, even assuming that this statement was a reference to the agreement which the Adminis- trative Law Judge found that the Ponkows had made with PPG at the time of their hire, i.e., not to be paid for riding time and mileage, we are not persuaded that the two considerations are separable. Thus, the Union's letter to the Board agent a month after the decision had been made not to proceed to arbitration claimed that one of the reasons therefor was that the Ponkows "secured their employment on their own and made the conditions." Nor do we believe that a waiver by some unit employees at the time of their hire of specific benefits under the collective-bargaining agreement may properly form any basis for their representative's refusal to process their claim to those benefits. Over 30 years ago, the Supreme Court, in holding that individual employment contracts could not be relied i5 532 F.2d at 1175. 16 See Service Employees International Union, Local No. 579, AFL-CIO (Convacare ofDecatur d/b/a Beverly Manor Convalescent Center), 229 NLRB 692, fn. 2 (1977). 17 Thus, it has been held that where there is no hiring hall agreement in existence at the time of an employee's hire a union violates Sec. 8(bX2) and 8(bXI)A) by causing the employee's discharge because he had not been referred to the employer by the union and had not received union clearance. N. LRB. v. Teamsters Local Union No. 676, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [Tellepsen Petro-Chemical Company ], 419 F.2d 1274 (CA. 3, 1969). Accord: Laborers' International Union of North America, AFL-CIO, Local No. 83 [Fry, Inc.] v. N.LR.B., 497 F.2d 1337 (C.A. 6, 1974). 715 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on to forestall collective bargaining, stated that "since the collective trade agreement is to serve the purpose contemplated by the Act, the individual contract cannot be effective as a waiver of any benefit to which the employee otherwise would be entitled under the trade agreement." J. I. Case Company v. N.L.R.B., 321 U.S. 332, 338 (1944). The Court reasoned that "[t]he very purpose of providing by statute for the collective agreement is to supersede the terms of separate agreements of employees with terms which reflect the strength and bargaining power and serve the welfare of the group. Its benefits and advantages are open to every employee of the represented unit, whatever the type or terms of his pre-existing contract of employment." Significantly, the Court quoted this passage in its historic Steele decision and added the following: "The purpose of providing for a representative is to secure those benefits for those who are represented and not to deprive them or any of them of the benefits of collective bargaining for the advantage of the representative or those members of the craft who selected it." '8 Analogously, Respondent's purpose is to secure the benefits of the collective agreement for all unit employees and not to exclude individuals from whom the Employer exacted a waiver at the time of their hire, thereby limiting the enjoyment of such collective benefits to those who were referred through the Union. In view of the foregoing, we conclude that in processing the Ponkows' grievances the Respondent Union based its actions in substantial part upon irrelevant and arbitrary considerations in violation of the Ponkows' "right to fair and impartial treatment from [their] statutory representative." Miranda Fuel, 140 NLRB at 188. Accordingly, we find that by this conduct the Respondent Union violated Section 8(b)( )(A). 3. Concerning the 8(a)(3) allegation of the com- plaint, the facts can be summarized as follows. The Ponkow brothers reported to the jobsite on October 14, 1975, and, except for a short layoff, continued working until December 31, 1975. After a layoff of a week, they were recalled on January 6 and worked steadily until April 16 when they were again laid off. The Ponkows were recalled for part of a workday on May 3, and this was their last employment on the Lutheran Aid job. Their grievances were filed with the Union on June 5, and forwarded to the Respondent Employer on June 8. On June 22, Branch Manager Hudson handed Business Manager Sofio a written response to the "' Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192, 201 (1944). i9 For example, at one point Hudson testified as follows: Q. [By counsel for Respondent Union ] Who were you making that Ponkows' grievances, stating, inter alia, that the information in the Ponkows' grievances was incom- plete and inconsistent with the facts, "thus causing you to erroneously question PPG's trustworthiness and which we feel amounts to harassment." At another point in the letter Hudson referred to "an attempt . . . to harass us into paying a premium eight months after the fact," and stated that the Company "question[s] the ethics of this request." The Administrative Law Judge found that in discussing the grievances with Sofio on June 22 "Hudson also made some comment about harass- ment of P.P.G. while negotiations were in progress," but the Administrative Law Judge stated that the testimony was in conflict as to whether Hudson's accusation was directed at the Ponkows or at the Respondent Union. 19 On July 7, when operations at the Lutheran Aid project resumed after the May 3 layoff, the Ponkows were not recalled to work. Rather, PPG hired five employees from the Hoffer Glass Company, only two of whom had been previously employed on the Lutheran Aid job. On September 2, after the filing of the instant unfair labor practice charges, Glazing Superintendent Stanich telephoned the Ponkows and offered them work on the Lutheran Aid project, but he testified that he told Edward Ponkow that "we would pay no mileage and traveling time." The Ponkows declined the offer. In concluding that the Respondent Employer's failure to recall the Ponkows was not violative of Section 8(a)(1) and (3), the Administrative Law Judge relied on two factors. First, he found that PPG had a "commitment to use the employees of Hoffer Glass Company on the Lutheran Aid project, to the extent Hoffer's employees were available." Second, he found that the Respondent Employer needed a "matched crew capable of performing the work required" of installing large sections of plate glass. Contrary to the Administrative Law Judge, we do not believe that the Respondent Employer's decision was motivated solely by lawful business considera- tions. The record demonstrates that the alleged commit- ment justification advanced by PPG is wholly pretextual. Thus, Phillip Hurst of Hoffer Glass Company testified that this "commitment" consisted of a request on his part to Hudson prior to the start of the project to "keep us in mind, to try to keep our men working." Most significantly, Hurst testified that he could have provided men to Hudson in January, February, March, April, and May 1976, but claim-take a look at that letter, and read it carefully. Were you saying that the Union was harassing you, or the Ponkows? A. No. I would say, in this letter, the Ponkows were. 716 P.P.G. INDUSTRIES INCORPORATED the record reveals that during this entire period PPG chose instead to utilize the services of the Ponkows. It was not until the Ponkows filed their grievances in June that this "commitment" sprung to life after being dormant throughout the first 5 months of the year. The second factor relied on by the Administrative Law Judge was the Respondent Employer's alleged need for a matched crew which could install large sections of glass. However, Glazing Superintendent Stanich, who made the decision to hire the Hoffer employees, testified that he did not even inquire as to whether the Ponkows were capable of performing this type of work. When this fact is considered in the context of the pretextual "commitment" justification proffered by the Respondent Employer, the timing of the refusal to recall, and particularly PPG's docu- mented hostility toward the Ponkows for claiming riding time and mileage, it is clear that the decision not to recall the Ponkows was motivated principally by their grievance activity.20 Contrary to the Admin- istrative Law Judge, we do not believe that PPG's accusations against the Union and the Ponkows of harassment and unethical conduct can be dismissed as "certainly not unjustified." For, it is well estab- lished that "the filing of grievances pursuant to a contractual grievance procedure is protected by Section 7 of the Act, and that discipline of an employee therefor tends to interfere with, restrain, and coerce employees in violation of Section 8(aX1) and discourages union activity in violation of Section 8(a)(3)." 21 As there are no circumstances here which would remove the Ponkows' grievance activity from the protection of the Act,22 we conclude that the Respondent Employer's discrimination against them because of that activity violated Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. The Respondent Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By failing to process the grievances of Edward and Joseph Ponkow in a fair and impartial manner, the Respondent Union has violated Section 8(b)(1)(A) of the Act. 4. By refusing to recall Edward and Joseph Ponkow on July 7, 1976, because they filed grievanc- es pursuant to a contractual grievance procedure, the 20 Therefore. even if lawful considerations did play a role, a violation must still be found. 21 Mrs. Baird's Bakeries. Inc., 189 NLRB 606 (1971). enfd. 457 F.2d 512 (C.A. 5. 1972): Hunter Saw Division of Asko, Inc., 202 NLRB 330 (1973). Respondent Employer has violated Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have engaged in certain unfair labor practices, we shall order that they cease and desist therefrom and take certain affirmative actions necessary to effectuate the poli- cies of the Act. We shall order the Respondent Employer to offer reinstatement to Edward and Joseph Ponkow, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of Respondent Employer's unlawful refusal to recall them. Backpay is to be computed in a manner consistent with Board policy as set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest thereon at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). The uncertainty as to whether the Ponkows' grievances would have been found to be meritorious and the uncertainty as to whether an attempt now to proceed to arbitration would be considered timely are direct products of the Respondent Union's unlawful action. Where, as here, resolution of that uncertainty is required for the determination of monetary responsibility, it is proper to resolve the question in favor of the injured employees and not the wrongdoer. King Soopers, Inc., 222 NLRB 1011, 1020 (1976); Local Union No. 2088, International Brotherhood of Electrical Workers, AFL-CIO (Feder- al Electric Corporation), 218 NLRB 396 (1975). Accordingly, for the purposes of remedy, we shall presume that the Ponkows' grievances, if fairly and impartially processed, would have been found to be meritorious and would have resulted in payment to them of riding time and mileage. Therefore, we shall order the Respondent Union to make the Ponkows whole for this loss which they suffered as a result of the Respondent Union's unlawful action, with interest thereon at the rate of 6 percent per annum as set forth in Isis Plumbing, supra. 22 As discussed supra, the Ponkows' acceptance. at the time of their hire, of the condition imposed by PPG that there would be no payment for riding time and mileage cannot be effective as a waiver of any benefit to which they would otherwise be entitled under the collective-bargaining agreement. 717 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. Respondent Employer, P.P.G. Industries In- corporated, Milwaukee, Wisconsin, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recall or otherwise discriminating against an employee because of his union or protected concerted activities. (b) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights under the National Labor Relations Act, as amended. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer Edward and Joseph Ponkow immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination practiced against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Post at its jobsite in Appleton, Wisconsin, copies of the attached notices marked "Appendix A" and "Appendix B."23 In the event the Respondent Employer is no longer working at the Appleton jobsite, said notices shall be posted at its place of business in Milwaukee, Wisconsin. Copies of Appen- dix A, on forms provided by the Regional Director for Region 30, after being duly signed by the Respondent Employer's representative and copies of Appendix B, after being duly signed by the Respon- dent Union's representative, shall be posted by Respondent Employer immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent Employer to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps the Respondent Employer has taken to comply herewith. B. Respondent Union, Glaziers Union Local 1204, AFL-CIO, Milwaukee, Wisconsin, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Failing to process employee grievances in a fair and impartial manner. (b) In any like or related manner restraining or coercing employees in the exercise of their rights under the National Labor Relations Act, as amend- ed. 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Make Edward and Joseph Ponkow whole for the losses they suffered as a result of the Respondent Union's unlawful action against them in the manner set forth in the section of this Decision entitled "The Remedy." (b) Post at its business offices and meeting halls copies of the attached notice marked "Appendix B." 24 Copies of said notice, on forms provided by the Regional Director for Region 30, after being duly signed by an authorized representative of the Respondent Union, shall be posted by Respondent Union immediately 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. Reason- able steps shall be taken by the Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. Additional copies of said Appendix B shall be duly signed by an authorized representative of the Respondent Union and furnished to the said Regional Director for transmission to the Respondent Employer for post- ing by the Respondent Employer in accordance with the Order directed to the Respondent Employer above. (c) Notify the Regional Director for Region 30, in writing, within 20 days from the date of this Order, what steps the Respondent Union has taken to comply herewith. 23 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 24 See fn. 23, supra. 718 P.P.G. INDUSTRIES INCORPORATED APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to recall or otherwise discriminate against an employee because of his union or protected concerted activities. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under the National Labor Relations Act, as amended. WE WILL offer Edward and Joseph Ponkow immediate and full reinstatement to their former positions or, if such positions no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, and WE WILL make them whole for any loss of earnings they may have suffered as result of the discrimination practiced against them. P.P.G. INDUSTRIES INCORPORATED APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fail to process employee griev- ances in a fair and impartial manner. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights under the National Labor Relations Act, as amended. WE WILL make Edward and Joseph Ponkow whole for the losses they suffered as a result of our unlawful action against them. GLAZIERS UNION LOCAL 1204, AFL-CIO DECISION STATEMENT OF THE CASE EUGENE GEORGE GOSLEE, Administrative Law Judge: These consolidated cases came on to be heard before me at Appleton, Wisconsin, on December 16, 1976, upon com- plaintst issued by the General Counsel of the National Labor Relations Board and answers filed by P.P.G. Industries Incorporated and Glaziers Local Union 1204. ' The complaint in Case 30-CA-3711 was issued on September 15, 1976, upon a charge filed on July 16, 1976, and duly served on the Respondent Employer on the same date. The complaint in Case 30-CB-975 was issued upon a charge filed on July 16, 1976. and duly served on the Respondent The issues raised by the pleadings relate to whether or not P.P.G. Industries violated Section 8(aXl) and (3) of the Act, and whether or not Glaziers Union Local 1204 violated Section 8(b)(X)(A) of the Act. Briefs have been received from the General Counsel and the Respondent Employer, and have been duly considered. Upon the entire record in these proceedings, and having observed the testimony and demeanor of the witnesses, I hereby make the following: FINDINGS OF FACT I. PRELIMINARY MATTERS (COMMERCE, JURISDICTION AND LABOR ORGANIZATION) The complaints allege, the answers admit, and I find that (I) P.P.G. Industries, hereinafter sometimes called the Respondent Employer, is engaged in the distribution and installation of glass products from its facility at Milwaukee, Wisconsin; (2) its purchases of goods and materials in interstate commerce are sufficient to satisfy the Board's standards for the assertion of jurisdiction; and (3) the Respondent Employer is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The complaints also allege, the answers admit, and I find that Glaziers Union Local 1204, hereinafter sometimes called the Respondent Union, is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES ALLEGED The complaint in Case 30-CB-975 alleges that since on or about July 5, 1976,2 the Respondent Union violated Section 8(bXIX)(A) of the Act by failing to adequately represent Joseph and Edward Ponkow in the presentation of a grievance they had filed concerning riding time and mileage at the Respondent Employer's Appleton, Wiscon- sin, jobsite. The complaint in Case 30-CB-975 further alleges that the Respondent Union also violated Section 8(b)(IXA) of the Act by failing to proceed to arbitration on the Ponkows' grievance. As to Case 30-CA-3711, the complaint alleges that, on or about July 7, the Respondent Employer violated Section 8(aX)() and (3) of the Act by refusing to recall Joseph and Edward Ponkow to work on its Appleton job because the Ponkows had engaged in union "and/or" protected concerted activities. By their answers the Respondents generally deny that they have engaged in any unfair labor practices, and for the reasons related below I find that the Respondents' prayers for dismissal of the respective complaints should be granted. A. Background For some years past, P.P.G. and the Respondent Union have been signatories to collective-bargaining agreements. At the time the Ponkow brothers were hired for the Union on that date. On November 17, 1976, the Regional Director issued and served on the parties an order consolidating cases. 2 All dates recited hereinafter are in 1976, unless specified to the contrary. 719 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Employer's Lutheran Aid job at Appleton, a bargaining agreement was in effect for the years 1974 to 1976, applicable to P.P.G., and apparently other employ- ers, for work performed in both the Southern and Northern areas of the State of Wisconsin. At some unspecified time in 1976, the 1974-76 agreement was superseded, and P.P.G. became signatory to a new bargaining agreement applicable only to work performed in the northern area, which included the Lutheran Aid job at Appleton. Under the terms of the prior bargaining agreement a separate wage scale applied to work performed by members of the bargaining unit in the nothern area, and the contract also provided for the payment of riding time and mileage under certain specified conditions. The provision concerning riding time and mileage is set forth in article VIII of the 1974-76 bargaining agreement, and provides in parts pertinent to this proceeding as follows: ARTICLE VIII When employees are told to report to a single job site, within the employers normal work area, there shall be no riding time or mileage paid. When employees, after reporting to their initial job site are directed by the employer to report to another job site or job sites, mileage, per car, will apply between all succeeding job sites. The normal work areas (Free Zone) are as follows. NORTHERN AREA EMPLOYERS: Within a twenty-five mile radius of the City Hall of the Employer's warehouse city. Each Employer shall choose which normal work area he is going to operate in for Free Zone purposes, but each Employer shall be restricted to only one Free Zone. Any work done outside this area is then covered by the riding time and expense provision of this Agreement. Each Employer agrees to advise the Union of the Free Zone area he wishes and any changes due to relocation of facilities or other reasons shall be negotiated between the Union and the Employer involved. According to Frank Hudson, the Respondent Employ- er's branch manager at Milwaukee, it is P.P.G. policy, when performing contracts outside the Milwaukee area, to send out its own working foremen, but to otherwise man the job with employees from the local area. The bidding for the Lutheran Aid job at Appleton began in 1974, but was delayed for various reasons and the contract did not become final until 1975. In early 1975, while the contract was still in the process of negotiations, Hudson received a telephone call from a Phillip Hurst of Hoffer Glass Company in Appleton. Hurst reported that he projected a very slow year, and asked if Hudson would consider using some of Hoffer's employees on the Lutheran Aid job. Hudson agreed to use Hoffer's employees, and two employees from the Company, plus two working foremen from P.P.G.'s Milwaukee facility began the Lutheran Aid job in July 1975. Both Joseph and Edward Ponkow were previously employed by the Respondent Employer for 16-17 years, but their jobs were terminated in or about 1970, when P.P.G. closed its branch facility at Oshkosh, Wisconsin. Joseph Ponkow testified that he heard that P.P.G. had been awarded the glazing contract for the Lutheran Aid job, and in July or August 1975 he called P.P.G.'s Milwaukee office and asked to talk to Mr. Ken Hoffmeyer. Hoffmeyer was not available, but Joseph Ponkow talked with some other person, otherwise unidentified in his direct testimony. Ponkow related his prior employment with P.P.G., ex- pressed knowledge of the Lutheran Aid job, and asked if there was an opening. Ponkow did not testify to any reply received, but stated that he left his name and a telephone number where he could be contacted in Oshkosh. Approximately 5 or 6 weeks later Joseph Ponkow received a call from Branko Stanich, the Respondent Employer's glazing superintendent for the Lutheran Aid project. Stanich reported that he was then employing men from Hoffer Glass Company, but could put Ponkow to work. According to Joseph Ponkow, Stanich called him a second time on the same day and stated that he could also use Edward Ponkow on the Lutheran Aid job. The Ponkow brothers reported to the jobsite on October 14, and continued working until October 24, 1975. After a short layoff the Ponkow brothers returned to work on November 17 and continued to work until December 31, 1975. Joseph and Edward Ponkow were again recalled on January 6, 1976, and continued to work steadily until April 16. The Ponkow brothers were recalled for a part of a workday on May 3, and this was their last employment on the Lutheran Aid job. B. The Alleged Refusal To Adequately Represent Joseph and Edward Ponkow worked on the Lutheran Aid job until they collected their first paychecks, and then determined that they had not been paid for driving time and mileage, which they contend was due them on grounds the driving distance from the County Court House at Oshkosh to the jobsite was 27-1/2 miles, or 2-1/2 miles in excess of the Free Zone specified in article VIII of the collective-bargaining agreement. Admittedly, neither dur- ing their initial week of employment nor at any time thereafter did the Ponkows claim payment for riding time or mileage, notwithstanding that space was provided for such claims on the weekly timesheet they were required to complete for P.P.G. Nevertheless, sometime in October Edward Ponkow called Joseph Sofio, business manager of the Respondent Union, and apparently Joseph Ponkow was a participant in the conversation on an extension telephone. The Ponkows reported that they were employed by P.P.G. on the Lutheran Aid building and were not receiving time and mileage even though it was a distance of 27-1/2 miles from the Oshkosh Court House to the jobsite. According to Edward Ponkow, Sofio answered that he would relay the message to Frank Hudson of P.P.G. In addition, Joseph Ponkow testified that in the October conversation Sofio cautioned the employees that they could not both claim mileage because they used only one car. 720 P.P.G. INDUSTRIES INCORPORATED On further examination Edward Ponkow testified that he again talked to Sofio a day or so later, and Sofio reported that he had discussed the riding time and mileage with Frank Hudson, and Hudson had replied that there was no way he would pay riding time and mileage to the Ponkows and would hire laborers before he did so. Joseph Sofio acknowledged in his testimony that about October 28, 1975, he was called by one of the Ponkows with a complaint they were not receiving pay for driving time and mileage from P.P.G. Sofio asked what arrange- ments had been made at the time of hire, but received no reply. Sofio did agree, however, that he would call Branko Stanich about the matter. Sofio did call Stanich, reported the conversation with the Ponkows, and was told by Stanich that the matter of riding time was between the Ponkows and Frank Hudson. Within the next couple of days Sofio also reported the matter to Frank Hudson. Hudson told Sofio that he had told the Ponkows before the job started that there would be no riding time or mileage paid. Sofio cautioned Hudson that he better look into the matter, and that he didn't want another "Playboy Club." 3 Sofio called Ed Ponkow, told him of his contact with Branko Stanich, related that Stanich had advised that the Ponkows contact Frank Hudson, and cautioned that Ponkow be sure to do so. According to Sofio's testimony, which I credit, he heard no more from the Ponkows until June 5, when they filed a written grievance concerning the failure of P.P.G. to pay riding time and mileage. As concerns the October conversations between the Ponkows and Joseph Sofio concerning the driving time and mileage claim, I generally credit the version related by Sofio. It is clear from all of the testimony that Sofio acknowledged the grievance reported by the Ponkows and agreed to check the matter out with Branko Stanich. Sofio did talk to Stanich about the grievance and contends he talked to Frank Hudson. As Joseph Ponkow acknowl- edged, Sofio called the employees back and instructed them to get in touch with Hudson and discuss the matter with him. The Ponkows disregarded Sofio's instructions, made no contact with either Hudson or Stanich, and made no further complaint about the matter until June 5. The record reflects that between October 28, 1975, and June 5, 1976, the Ponkow brothers attended two union meetings which Local 1204 held for its members in the Oshkosh area. At neither of these meetings did the Ponkows raise the issue of their alleged grievance against P.P.G. for its failure to pay riding time and mileage. Nevertheless, at a third union meeting held on June 5, Edward Ponkow read a grievance pertaining to the matter, and later gave a copy of the written grievance to Sofio. Sofio's only comment, or question, related to the amount of time elapsed between the date on which P.P.G. allegedly 3 Referring to a prior job where a large number of employees claimed riding time and mileage after the project was completed. 4 There is a good deal of conflicting testimony in the record as to when and how both charges in this matter were developed and filed. Joseph Ponkow originally testified that he and his brother talked to a representative of the Region before they filed the grievance of June 5. and that the Region's representative made out the CB charge and suggested to the employees that they should file a grievance. Subsequently, Joseph Ponkow changed his testimony, and testified that the charges were filled out after the grievance was filed. and the suggestion of the Region's representative was failed to pay riding time and mileage and the date of the grievance. There is also evidence, which I credit, that one of the Ponkows threatened that, if no action was obtained on the grievance within 10 days, the Ponkows would go to the Labor Board.4 The grievance, which was signed by both Ponkows, contained attachments setting forth the details of their riding time and mileage claims, and recited as follows: I hear by [sic] direct the business agent of Local 1204 Milwaukee, Wis. (Brother Joe Sofio) two file two grievances against PPG Industries 11316 W. Rodgers Street, Milwaukee, Wis. regarding Lutheran Aid Bldg. Appleton, Wis. Grievance # I All riding time incurred on all working days between Oct. 14-1975 to and including May 3-1976, consisting of one hour per day; total 95 days. Grievance #2 Mileage to and from Oshkosh city hall to Lutheran Aid Bldg. Appleton, Wis. mileage one day 55 miles, total worked days 95 days. 5225 miles at 13 per mile. Riding time I hour each day - 95 days. On June 8, Business Manager Sofio sent a letter to Frank Hudson of P.P.G., enclosing a copy of the Ponkows' grievances, and requesting a meeting no later than June 24 to discuss the matter. On a composite of the testimony of Hudson and Sofio I find that the grievances were discussed first in a telephone conversation on or about June 14. Hudson told Sofio that he felt that there was no cause for the claim of riding time and mileage, that P.P.G. was working in the northern area, had a commitment to hire employees in that area, and that the Union did not have a case. Sofio agreed that in his opinion the Ponkows did not have a valid claim for riding time and mileage, and Hudson agreed that he would make further contact with Sofio. At a negotiations meeting about June 22, Hudson handed Sofio a written response to the Ponkows' grievanc- es, reciting, inter alia, that the Ponkows had been informed at the time of their hire that they would not be paid riding time and mileage, and that the Ponkows agreed to this condition. In a conversation which ensued, Sofio again stated that he felt that the Ponkows did not have a legitimate claim to riding time and mileage, and he also commented on the elapse of time between the date the alleged claims arose and the date the Ponkows filed their grievances. Hudson also made some comment about harassment of P.P.G. while negotiations were in progress, but the testimony is in conflict as to whether Hudson's that the employees wait to file the CB charge after it had been determined what action the Respondent Union took on the grievance of June 5. Whatever occurred, it is clear that the Region's representative typed out the CB charges, but left a blank for the date on which the 8(bXIXA) violations were alleged to have commenced. On July 6, Edward Ponkow signed the CB charge, after inserting the date of July 14. 1976, in the blank space. Similarly, the Region's representative prepared the CA charge, again leaving blank the date on which the 8(aXl) and (3) violations are alleged to have occurred, which was also signed by Ponkow on July 6, after he had inserted a date of July 14. 721 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accusation was directed, or understood by Sofio, at the Ponkows or at the Respondent Union. On June 25, Sofio sent a letter to Hudson, reciting that P.P.G. had failed to comply with certain provisions in articles IX and VIII of the bargaining agreement, and requesting a meeting no later than July I to select an arbitrator. Approximately 3 days later Hudson met with Sofio and repeated the contention that the Ponkows' claim was not meritorious. Sofio again agreed that the Ponkows had no legitimate claim, and told Hudson to take no further action until he heard further from Sofio. Sofio's testimony concerning his several conversations with Hudson does not differ materially from that adduced from Hudson. Sofio denied that he used the word "illegitimate," but conceded that he told Hudson that there was a problem in the interpretation of the bargaining agreement, and that Sofio felt he was being set up by the Ponkows. Sofio explained to Hudson that, read literally, article VIII of the bargaining agreement denominated P.P.G. as a southern area contractor and that technically mileage and riding time could be claimed from Milwaukee to the jobsite in Appleton. He further explained to Hudson that this was not the intent of the agreement. There was some discussion of whether Appleton or Oshkosh was the proper warehouse city for P.P.G. for the Lutheran Aid job. With the use of a map Sofio and Hudson measured the distance from the City Hall in Oshkosh to the Lutheran Aid jobsite, and determined that the distance was within 25-mile Free Zone specified in article VIII of the bargain- ing agreement. The Ponkows further testified in this proceeding to conversations they had with Business Manager Sofio after their grievances were filed on June 5. There is a consider- able degree of conflict in the testimony proffered by the two witnesses as to the number of the conversations, the dates on which they occurred, and the contents. Joseph Ponkow testified that, after he received a copy of Sofio's letter to P.P.G. of June 8, he and his brother called Sofio, and Sofio said that he would try to straighten the matter out with P.P.G. According to Joseph Ponkow there was a second telephone conversation with Sofio after the Pon- kows received P.P.G.'s response to the grievance, dated June 21. Ponkow told Sofio that the whole of P.P.G.'s reply was false, except for the statement that he had personally contacted the Company for a job. Sofio stated he would contact Hudson and try to come up with some kind of arbitration. The Ponkows again talked to Sofio a few days later, to ask what was happening, and Sofio replied that he had talked to Hudson and there was nothing to arbitrate. Sofio agreed, however, that he would present the grievance to the Union's executive board for evaluation and a determination of whether arbitration was warranted. There was one or more subsequent conversations between the Ponkows and Sofio with accusations by them of delay because of the unavailability of the executive board, and the Ponkows threatened to go to the NLRB in Milwau- kee-an action which the record reveals the Ponkows had already accomplished. Sofio presented the Ponkows' grievances to the executive board on July 31, and the executive board unanimously agreed not to take the grievance to arbitration. Upon Sofio's explanation, the board concluded that (1) had the business manager secured employment for the Ponkows they would have received riding time and mileage; (2) only one member has riding time coming under article IX; (3) the board cannot justify the delay in time from October 28, 1975, to June 5, 1976; (4) the expense is too great to go to arbitration; and (5) article VIII is discriminatory toward the Employer. Sofio was directed to notify the Ponkows in writing of the board's decision, which he subsequently did by a letter 5 with the following notice: The conclusion of the Executive Board is as follows. 1. The Business Manager talked to Ed Ponkow on October 28, 1975 about the riding time and mileage, that same evening he contacted Branko Stanich of PPG Industries, hearing no more from Ed or Joe Ponkow, he concluded that the problem was resolved. The Board cannot reason why nothing was said to the Business Manager between October 28, 1975 and June 5, 1976, at which time the grievance was filed. 2. The Union does not have the assets. 3. Portions of Article VIII of the Articles of Agree- ment are discriminatory and unenforceable. 4. It would have been the Business Managers respon- sibility, provided he secured the employment for the men. If you have any questions do not hesitate to contact me. The essential purpose of this proceeding as it pertains to the 8(b)(l)(A) allegations is not to determine finally whether the Ponkows' grievances were meritorious or nonmeritorious, but the purpose is to determine whether or not the Respondent Union's conduct was arbitrary and capricous, and therefore evaded the fiduciary obligation it owed to its members. Nevertheless, the merits of the Ponkows' grievances are inextricably intertwined with the issue of the Union's conduct and the reasons it recited in refusing to process the grievances to arbitration. Particular- ly at issue are the terms under which the Ponkows obtained employment from P.P.G., their failure to claim riding time and mileage on the weekly timesheets they filled out for the Company, their claim of mileage for both Ponkows when only one car was driven, and particularly the delay in their claims from October 1975 to June 5, 1976. Inherent in determining these precise issues also carries over to the question of what credibility should be accorded the Ponkows' testimony in those areas where the evidence is in conflict. Joseph Ponkow made the contact with P.P.G. seeking employment, and in his initial testimony he vehemently denied that he ever talked to Frank Hudson. In later testimony Ponkow admitted he did not know to whom he talked, and finally conceded that his conversation may have been with Hudson. Hudson testified in this proceed- ing and I find that he was the person to whom Joseph 5 The letter was inadvertently dated June 22, 1976. 722 P.P.G. INDUSTRIES INCORPORATED Ponkow spoke, and I further credit Hudson's testimony concerning the contents of the conversation. Hudson testified that he was called by Joseph Ponkow in late July 1975 and was told the Ponkow brothers were on hard times and needed a job. Hudson replied that he had a commitment to use employees from Hoffer Glass, but if Hoffer needed his men at any point he would rehire the Ponkows. Hudson told Joseph Ponkow that he would advise his glazing superintendent of the Ponkows' avail- ability, and Stanich would contact them if a need developed. Hudson further told Joseph Ponkow that there would be no expenses or riding time on the Lutheran Aid job and that the wage scale would be that provided for in the bargaining agreement for northern area contractors. At no time in his testimony did Joseph Ponkow specifically deny Hudson's testimony concerning the conditions of the job stated in the July conversation, and I credit Hudson's testimony. Hudson also testified that he had no notice of the Ponkows' complaint concerning P.P.G.'s failure to pay them riding time and mileage until he received Sofio's letter and a copy of the grievance in June 1976. This testimony conflicts with Sofio's statements concerning a conversation with Hudson shortly after the Ponkows' complaint on October 28, 1975, but on the whole of the record I credit Hudson and find that Sofio was mistaken or confused in his testimony in this respect. The finding is fully supported by the contents of Sofio's letter to the Ponkows advising them of the determination of the executive board, in which he related a conversation on October 28 with Branko Stanich but made no reference to any like conversation with Hudson. On the basis of this finding, I further find that at no time prior to June 5, 1976, did Hudson tell Sofio that he would hire laborers before he would pay the Ponkows' expenses for riding time and mileage. Branko Stanich confirmed in his testimony that some- time in the summer of 1975 Hudson gave him a slip concerning Hudson's call from Joseph Ponkow, and was instructed by Hudson to keep Ponkow in mind if employees were needed on the Lutheran Aid job. In October Stanich called Joseph Ponkow and offered the brothers employment on the Lutheran Aid job beginning on October 14. In the course of the conversation Stanich told Ponkow of Hudson's condition stated earlier that the Ponkows would not be paid for mileage or traveling time, and Joseph Ponkow stated that this was agreed. Stanich also testified that after the Ponkows began work he showed Edward Ponkow a copy of the timesheet and informed him that there would be no pay for travel time or mileage. Both of the Ponkow brothers deny that Stanich ever informed them that driving time and mileage would not be paid on the Lutheran Aid job. I do not credit the Ponkows' denial, and my resolution in this respect is predicated on the comparative demeanor and candor of the witnesses, as well as it is predicated on the whole background of how the Ponkows proceeded with their complaint against P.P.G. for travel and mileage pay. It is clear from the whole record that the Ponkows knew that space was provided on the weekly timesheets to claim time and mileage, as well as 6 The Ponkows admit knowledge of the provision in art. IX of the bargaining agreement, which provides that "Each employee shall submit an account of his daily expenses on a simple form provided by the Employer." they knew of their obligation to claim the expenses they now insist they were entitled to.6 Nevertheless, from October 14, 1975, through May 3, 1976, neither of the Ponkows ever gave P.P.G. any information concerning their claims for travel and mileage expenses, and each week they simply left the required information out of their timesheets. As an explanation the Ponkows first contend that, after they complained to Sofio on October 28, they understood that their claim to travel and mileage expenses was in the process of resolution and no claim to the Company was necessary. Considering the elapse of more than 7 months from October 28, 1975, to June 5, 1976, and further considering that the Ponkows abstained from making any inquiry of Sofio in the intervening 7-month period, I do not credit their explanation. Secondly, the Ponkows proffered the explanation that they abstained from claiming travel and mileage expenses on their timesheets out of fear that P.P.G. would terminate their employment. There is no credible evidence in the record to support such an explanation, and I reject the contention of their alleged fear of loss of employment as incredible. In arriving at a determination of the credibility attending the Ponkows' testimony, I have also taken into consider- ation their failure to file any grievance with the Respon- dent Union until June 5, and their claim for mileage for both brothers when only one automobile was driven. The Ponkows seek to justify the delay in the filing on the same grounds as they seek to justify their failure to claim expenses on their weekly timesheets; that is that they had complained to Sofio on October 28, and that further complaints would jeopardize their employment. The Ponkows' excuses, for the reasons related above, are rejected. As to the double claims for mileage, the Ponkows evinced full knowledge of the provision of the bargaining agreement and Joseph Ponkow testified that they were cautioned by Sofio that double mileage could not be claimed if only one car was driven. Assuming this evidence as fact, the finding is warranted that the grievance they filed with the Respondent Union was not only in error, but was a purposeful attempt to obtain moneys to which the Ponkows were not entitled. In summary I find that the Ponkows were informed by P.P.G. at the time of their hire that travel time and mileage would not be paid them on the Lutheran Aid job, and I further find that their awareness of this condition of employment fully explains their failure to claim travel and mileage expenses on their weekly timesheets, as it also explains the delay of over 7 months before the Ponkows filed their grievances. There remains the necessity to determine whether the Respondent Union failed in its duty of fair representation of the Ponkows. The General Counsel has cited an ample body of precedent, going back to Miranda,7 for the proposition that a labor organization is prohibited by the Act from "taking any action against any employee upon considerations or classifications which are irrelevant, invidious or unfair." As a general statement of applicable law I agree with the General Counsel's reliance on Miranda, supra, and related cases, as I also agree with his 7 Miranda Fuel Compan), Inc., 140 NLRB 181 (1962). 723 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contention that a labor organization's duty of fair represen- tation is a fiduciary obligation, and that when a union undertakes to represent an employee in the processing of a grievance it is obligated to represent the grievant "fully and fairly." 8 However, the contours of the law must be equated to the facts, and I am unable here to find any evidence that the Respondent Union breached its duty of fair representa- tion. It is not a breach of the collective-bargaining agent's duty of fair representation to take a good-faith position contrary to that of employees it represents,9 and the statutory bargaining representative is allowed, subject always to complete good faith and honesty of purpose, a wide range of reasonableness and discretion in serving the employees it represents.l? In the exact words of the Supreme Court of the United States: 11 Though we accept the proposition that a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion, we do not agree that the individual employee has an absolute right to have his grievance taken to arbitration regardless of the provi- sions of the applicable collective bargaining agreement. The facts here are that the Ponkows complained to Business Manager Sofio in October 1975 that they were not being paid for travel time and mileage. Sofio inquired of Branko Stanich, was told that the matter was between the Ponkows and Frank Hudson of P.P.G., and Sofio instruct- ed the Ponkows to contact Hudson. The Ponkow brothers ignored Sofio's instruction, made no attempt to contact Hudson, and made no further mention of the matter to any representative of the Respondent Union for a period in excess of 7 months. Sofio's testimony that he considered the matter to have been resolved must be credited, and the Respondent Union cannot be charged with bad faith because of the Ponkows' inaction. The Ponkows filed their belated grievances on June 5, 1976, and compounded the belatedness with a claim for expenses to which they were not entitled. Sofio forwarded the grievance to P.P.G. with a request for discussions, did discuss the grievance on several occasions, and when the discussions proved unfruitful he requested a further meeting to select an arbitrator. When P.P.G. objected to the grievance, Sofio presented the matter to the Union's executive board, and the board declined to proceed to arbitration. I find none of the reasons advanced by the Respondent Union for its refusal to proceed to arbitration to be arbitrary, capricious, invidious, unfair, irrelevant, or in any manner evasive of its duty of fair representation of the Ponkows. The Ponkows' grievances were filed more than 7 months after their alleged claims arose, and the belatedness was compounded by their failure to ever claim travel time and mileage from P.P.G., and their questionable claim for mileage which was not due them. As I have found above, nonpayment of travel time and mileage was a condition of employment imposed by P.P.G. and agreed to by the Ponkows at the time of their hire. Furthermore, a valid s General Truck Drivers Local 315 (Rhodes & Jamieson, Ltd), 217 NLRB 616(1975). 9 Humphrey v. Moore, 375 U.S. 335, 349 (1964). 'o Ford Motor Company v. Huffman, 345 U.S. 330, 338 (1953). question did exist as to the interpretation of the bargaining agreement, and there is no evidence to refute the Union's position that it was not the intent of the agreement to require southern area contractors to pay travel time and mileage from their southern area warehouse city tojobsites in the northern area. Finally, in consideration of all of the above factors, the Union's response of the expense of arbitration on a highly questionable grievance is no indication of a breach of its fiduciary obligation. The General Counsel contends, nevertheless, that two factors prove that the Respondent Union failed to fairly represent the Ponkows. First, the General Counsel argues that Sofio's statements to Frank Hudson concerning his doubts of the legitimacy of the Ponkows' grievances constitutes a breach of the Union's duty of fair representa- tion.12 Unlike the facts in Associated Transport, Soflo's comments on the likely lack of merit in the grievances were directed to Frank Hudson, not to the Ponkows, and occurred in the context of Sofio's attempts to resolve the grievances. Furthermore, Sofio's comments concerning the illegitimacy or lack of merit in the Ponkows' grievances must be construed in the context of the whole dispute, including the intent of the bargaining agreement, the belatedness of the grievances and the Ponkows' claim for mileage to which they were not entitled. In this context Soflo's remarks to Hudson prove nothing more than Sofio's acknowledgment of doubt that the grievances would survive an arbitration proceeding. As his second contention, the General Counsel argues that the Union's proffered reason for refusing to proceed to arbitration because the Ponkows secured their employment with P.P.G. without the assistance of the Union is evidence of bad faith. The record will not support the General Counsel's contention. Sofio testified that in presenting the grievance to the executive board he explained that it is his normal practice to place men on the job and to insure that issues such as travel time and mileage are spelled out and determined before the employee goes to work. Sofio's explanation is supported, moreover, by the testimony of Joseph Ponkow. After receiving P.P.G.'s response to their grievances, Joseph Ponkow talked with Sofio, and Sofio told him, inter alia, that the Ponkows had made their own contact with P.P.G., and had made an agreement with P.P.G. that they would not be paid travel time and mileage. Accordingly, I find that the Union's reference to the manner in which the Ponkows had obtained their employ- ment was not an expression of retaliation because they had not used the hiring hall provisions of the bargaining agreement, but, on the contrary, was only an acknowledg- ment that the Ponkows had set their own conditions of employment, and that this was a consideration in the Executive Board's decision not to proceed to arbitration. In summary, I find and conclude that the Respondent Union did not breach or evade its duty of fair representa- tion of the Ponkows, and the General Counsel has not proved any violation of Section 8(bX IXA) of the Act. ui Vaca v. Sipes, 386 U.S. 171, 191 (1967). See also E. Bond v. Local Union 823, 521 F.2d 5 (C.A. 8, 1975). 12 Citing Truck Drivers Local No. 705 (Associated Transport, Inc.), 209 NLRB 292 (1974), enfd. 532 F.2d 1169 (C.A. 7, 1976). 724 P.P.G. INDUSTRIES INCORPORATED C. The Alleged 8(aX3) Discrimination The employment history of the Ponkow brothers on the P.P.G. Lutheran Aid job is set forth above in the background section of this Decision, but requires some further explication. The record evidence reveals that after a layoff on December 31, 1975, the Ponkows were recalled to the Lutheran Aid job on January 5, 1976, and continued to work until April 16. In the interim, in late December 1975, the two employees from Hoffer Glass Company were needed by their employer and left the Lutheran Aid job, while the Ponkows were retained. By mid-April P.P.G. had not been paid for its services and materials on the Lutheran Aid job, all work was discontinued, and all of the employees were laid off. The Ponkows and the two working foremen were recalled by P.P.G. for I day on May 3 to unload and store some glass. Thereafter, except for one employee who worked on June 1, the job continued to be unmanned until July 7. On a composite of the testimony of Hudson and Stanich I find that in early July the factory released a shipment of large plate glass which had been held because of nonpay- ment to P.P.G. for work and materials. It was decided to unload the glass at the jobsite rather than store it in Milwaukee and incur additional costs for transshipment to Appleton. About the same time P.P.G. received payment for its past services and materials, and it was decided to man the job for 3 or 4 days while the large sections of plate glass were installed. Branko Stanich was responsible for manning the job to install the plate glass, and because of the size and weight of the plate glass panels he determined the need for a matched crew accustomed to handling large sections of plate glass with optimum skill and safety. Accordingly, Stanich manned the job with the two P.P.G. working foremen who were previously employed, and hired the remainder of the crew from Hoffer Glass Company. In all, Stanich hired five employees from Hoffer, including two who had been previously employed on the Lutheran Aid job. Two of the Hoffer employees worked less than a full week, and a third was laid off after approximately 2 weeks. On or about September 2, Stanich called the Ponkow brothers and offered them a return to work on the Lutheran Aid project. The Ponkow brothers declined the offer, having obtained other employment. In summary, I find and conclude that the General Counsel has not proved that the Respondent Employer violated Section 8(aXI) and (3) of the Act by failing to recall the Ponkow brothers when it resumed operations on the Lutheran Aid project on or about July 7, 1976. It is 13 The testimony of Phillip Hurst of Hoffer Glass Company, called by the General Counsel as a rebuttal witness, only confirms the agreement clear from the credited evidence in this proceeding that the Respondent Employer had made a commitment to use the employees of Hoffer Glass Company on the Lutheran Aid project, to the extent Hoffer's employees were available.' 3 When P.P.G. resumed operations at Appleton in July 1976, it had need for a matched crew capable of performing the work required. Branko Stanich made the determination to hire Hoffer employees, and not to recall the Ponkow brothers at this juncture. Stanich was aware, and had been aware since October 1975, that the Ponkow brothers had made claim to travel time and mileage expenses, which they had previously agreed, as a condition of hire, would not be paid. Proof of discrimination requires evidence of both motive and animus, and the essentials of both elements are lacking in this case. Stanich knew of the Ponkow brothers' claim to travel time and mileage which they had previously agreed to forego, but he continued to employ the brothers on the Lutheran Aid project from October 1975 through mid-April 1976. It is true, as the General Counsel contends, that there is evidence that P.P.G. accused the Union and the Ponkow brothers of harassment and unethical conduct. In the circumstances of this case, and considering all of the other relevant evidence, the Respondent Employer's accusations were certainly not unjustified, and considered in the entirety of the record do not prove unlawful motivation, and are not proof of animus. I find and conclude, accordingly, that the 8(a)(1) and (3) allegations should be dismissed. CONCLUSIONS OF LAW 1. The Respondent Employer, P.P.G. Industries Incor- porated, is an employer within the meaning of Section 2(2) of the Act, and is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Union, Glaziers Union Local 1204, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The General Counsel has not proved by a prepon- derance of the evidence that the Respondent Union has violated Section 8(bX )(A) of the Act. 4. The General Counsel has not proved by a prepon- derance of the evidence that the Respondent Employer has violated Section 8(aXl1) and (3) of the Act. [Recommended Order for dismissal omitted from publi- cation.] between P.P.G. and Hoffer to use the employees of Hoffer on the Lutheran Aid project, so long as Hoffer's employees were available. 725