Teamsters Local 896 (Anheuser-Busch)

TEAMSTERS LOCAL 896 (ANHEUSER-BUSCH) 565 Local Union No. 896, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Anheuser- Busch, Inc.) and Bonita Ilene Crow-Fisher. Case 20-CB-6220 23 June 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND JOHANSEN On 11 June 1985 Administrative Law Judge Joan Wieder issued the attached decision. The Respond- ent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the judge's decision. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order. 2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Local Union No. 896, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and repre- sentatives, shall take the action set forth in the Order. i The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 Absent evidence that employee Fisher's grievances were mentonous, Member Dennis finds the backpay award speculative and unwarranted for the reasons stated in her dissenting opinion in Rubber Workers Local 250 (Mack- Wayne Closures), 279 NLRB 1074 (1986) Jane Lawhon and Christopher Roberts, Esqs., for the Gen- eral Counsel. Franklin Silver, Esq. (Beeson, Tayer & Silbert and Rosen- thal & Leff, Inc.), of San Francisco, California, for the Respondent. DECISION STATEMENT OF THE CASE JOAN WIEDER, Administrative Law Judge. This case was tried at San Francisco, California, on 14, 15, 16, 19, and 20 November 1984. On charges timely filed by Bonita Ilene Crow-Fisher (Fisher), a complaint was issued alleging that Local Union No. 896, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Respondent or the Union) violated Section 8(b)(1)(A) of the National Labor Relations Act, by refusing to process grievances concerning a reprimand and discharge of Fisher; by withholding information that was relevant and necessary for the pursuance of the grievances; and by handling these matters arbitrarily and in a perfunctory manner for reasons that are unfair, arbitrary, invidious, and a breach of its fiduciary duty to the employee. Respondent denied violating the Act. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally,' and to file briefs. Briefs, which were timely filed by the Union and the General Counsel on 8 February 1985, have been careful- ly considered. On the entire record,2 including especially my obser- vation of the witnesses and their demeanor, I make the following FINDINGS OF FACT A. Background The Union is the exclusive bargaining representative for all the employees in an appropriate unit3 at An- heuser-Busch, Inc. (Employer or Company).4 The Employer opened its Fairfield plant in 1976 and has had a collective-bargaining relationship with the Union from the inception of operations. The Union has its principal office in Los Angeles, California, and main- tains Branch No. 1 in Oakland, California, to represent about 1000 Northern California members. Respondent's secretary-treasurer, Guy Lewis, primarily works out of the Los Angeles office. The Oakland office is managed by Bob Windsor, a business representative. Windsor is assisted by a business agent. Ken Mathison is vice presi- dent of the Union and its chief steward in the Company's beer packaging and shipping department (bottle shop). Doug Batz is recording secretary. The Employer and the Union have a well-established collective-bargaining history. The contract defines a tem- porary employee as one who has not worked 150 straight-time shifts5 in a 1-year period after their hire i Oral argument was waived 2 The General Counsel's unopposed motion to correct the transcript is found to be meritorious and is granted. The following is the admitted description of the appropriate unit All production and maintenance employees employed by the Em- ployer at its Fairfield, California, brewery in the brewing, packaging and shipping, laboratory, maintenance and utilities departments; ex- cluding all managerial, professional , sales, clerical, and confidential employees , as well as guards and supervisors as defined in the Act 4 Jurisdiction is not in issue The Respondent admits, and I find, that the Employer meets the Board's $50,000 direct outflow standard for the assertion of jurisdiction. The Respondent also admits that at all times ma- terial herein it is a labor organization within the meaning of Sec. 2(5) of the Act The Employer has an office and a place of business in Fairfield, California, where it is engaged in the manufacture and nonretad sale and distribution of beer and related products s "Straight time" refers to work performed on Monday through Friday, exclusive of holidays All weekend and holiday work is compen- sated at a higher pay rate 280 NLRB No. 76 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD date or in any successive anniversary year . A temporary employee who works 150 straight-time shifts during the described 1-year period becomes a permanent employee. B. The 1981 Contract Negotiations In August 1981, the Union and Employer modified ar- ticle 37 of the collective-bargaining agreement by alter- ing the method of scheduling temporary employees. Under the 1978 contract, as implemented in the quality assurance department (lab), the temporary employees were called to work in order of seniority. They could have been called at any time for the plant runs 24 hours a day, 7 days a week. The lab had a signoff sheet that permitted temporary employees to indicate they were not going to be available for certain shifts on a weekend. The temporary employees were informed if they were scheduled to work weekends and were so informed, either on Thursday afternoon or Friday. If they were not scheduled, they did not have to be available. 6 According to article 37, section 2(3), of both the cur- rent and 1978 agreements, the temporary employee loses recall rights if unavailable for work for three assignments within a 9-month period unless he or she presents a valid excuse. The contract does not define the terms "unavail- ability" or "recall." The Employer interprets the term "unavailability" as not answering the telephone when called and/or declining to report for work when request- ed. The term "recall" is defined by the Employer as dis- charge. The "unavailability" rule was not strictly en- forced under the 1978-1981 agreement. It is undisputed that some temporary employees were unavailable 20 to 30 times and were not disciplined. In contemplation of the expiration of the agreement on 28 February 1982, the Employer and the Union engaged in negotiations for a new contract in August 1981. One proposal agreed on was the implementation of a new system of calling temporary employees whereby they would be assigned to only one shift, or "home shift," and could be called for work only 2 hours before or one-half hour after that shift commenced. George Logan, the manager of employee relations at the Fairfield facility, advised the union negotiators, Mathison and Windsor, that the Company was going to enforce the "three un- availability rule" more stringently. The Union under- stood this statement to mean that the Company would no longer tolerate 20 to 30 absences but did not mean that after 3 unavailabilities within a 9-month period the em- ployee would be discharged. Logan and Lewis signed an undated letter of understanding reflecting this agree- ment.7 The agreement for the Fairfield plant differed from that entered into for similar Anheuser-Busch facili- ties in several respects.8 6 This description of the pre-October 1981 temporary system is based on the unrefuted testimony of Fisher and Walt Sylwesiuk. 7 As here pertinent, the letter of understanding contains a provision permitting the parties to mutually alter the temporary employee agree- ment to accommodate an "overlooked administrative detail " 9 The other plants of the Employer, referred to in the proceeding as the "new eight," according to Mathison 's unquestioned testimony, do not have a home-shift system and their temporaries need 175 straight-time shifts to become permanent employees , compared to 150 straight-time shifts at Fairfield The Union, at what were described as ratification meetings held around 25 August 1981 , explained the new "home shift" procedure for temporary employees, which immediately met with opposition because it eliminated or diminished the temporaries' seniority rights,9 diminished their opportunity to become permanent employees, and would lower the income of the most senior temporaries. The contract was implemented on 12 October 1981, and on that day the Company held two meetings with the temporary employees to explain the new system. At the meetings attended by Fisher and Sylwesiuk, the Company was represented by Logan, Pat Leyden, assist- ant personnel director, and John Brickman, assistant brewmaster.10 There was no union representative at the meeting. I 1 Logan explained the new "home shift" system for tem- porary employees and, according to Fisher's credited evidence, "[Logan] said that an unavailability from this point on would be a refusal, or if we did not answer our phone [for our home shift]." Sylwesiuk recalled Logan representing that the "home shift" system was plantwide and unalterable until it was tested and evaluated, after which changes may be made . Sylwesiuk also indicated that exceeding a certain percentage of unanswered tele- phone unavailabilities could lead to discipline as it did in the case of a coworker named Hammett. Logan told the temporaries that they had to come to work if called during the "2-1/2 hour window period" of their assigned shift but were free to refuse calls to work on any other shifts. The temporary employees again voiced their dis- satisfaction with the home-shift system. Logan distributed a written memorandum to all super- visors responsible for operating the new system. ' 2 In ad- dition to setting forth the availability obligations of the temporary employees, it also advised that The Company will strictly administer the provision of Article 37, Section 2(3) with respect to unavail- ability. Any reason for unavailability shall be charged under this provision unless waived due to a valid excuse. There is no contention this missive was shown to the temporary employees. C. The October 1981 Union Meeting The temporary employees' dissatisfaction with the new assignment system led the Union to hold a special meet- ing with them at the end of a regularly scheduled union meeting. Before the union meeting, the temporary em- ployees in the brewing department met and prepared a 9 Charging Party Fisher stated Windsor explained they would no longer have been available around the clock 1O Sylwesiuk was a temporary employee at the time. He is now a per- manent employee i i Logan asserted Windsor represented the Union at these meetings but his testimony was unsubstantiated and contradicted by several wit- nesses, including Fisher Logan admitted his memory was "fuzzy ." Wind- sor did not corroborate this testimony Logan's testimony is not credited based principally on demeanor. Also Logan frequently volunteered infor- mation and testified inconsistently. Respondent admits Logan was "appar. ently incorrect on this point " 11 G C Exh 20 TEAMSTERS LOCAL 896 (ANHEUSER-BUSCH) petition, an unsigned copy of which was presented to Windsor at the temporaries' special meeting.' 3 Tom Ste- vens admitted he wrote the petition and presented it to Windsor.' 4 The accounts of when the meeting was held and what occurred vary significantly. 115 The credited testimony of Sylwesiuk and Fisher is that the employees requested a return to the old system of being called to work by seniority. 1 6 Mathison and Windsor stated that under the collective- bargaining agreement they could not alter the home-shift system except for weekends.'? There was no discussion during the meeting that the possible or probable result of the employees' request was that they would be subject to a 2-1/2-hour "window period" for all six weekend shifts. No vote on the proposal was taken. There was apparent- ly no opposition to the request that temporaries be called by seniority. Windsor and Mathison said they would go back to the employer and see what they could do. Later Sylwesiuk tried to determine from Windsor whether this request was going to bear fruit and, when it appeared to him there was no result, he sent the employee petition to Lewis. is The petition requested reversion to the pre-1981 agreement system by abolition of the "home shift" system. The following amendments to the collective-bargaining agreement were also requested A) Section #2, para #3 unavailability for work for three (3) as- signments within one (1) month period, unless he or she presents a valid acceptable excuse. B) require that we present two (2) hours prior to a work shift and one half (1/2) hour after a work shift be added to Article #37 C) manipulation or not answering the telephone for a shift on behalf of any employee should reflect in a letter of reprimand, moved to the bottom of the seniority list, or terminated after repeat- ed offences D) a total of twelve (12) temporary employees behald on em- ployeed [sic] files, with the exception of two (2) alternates for two (2) temporary employees out for prolong [sic] periods of disability 14 Mathison incorrectly alleged that Sylwesiuk wrote the petition and presented it to Windsor, which indicated poor recall by Mathison. 15 Fisher correctly testified it was held on Tuesday, 27 October 1981, while Mathison and Windsor stated it must have been on a Sunday Fisher consistently exhibited superior facility to recall events, adding cre- dence to her testimony 16 No minutes were kept of this meeting. Mathison initially testified that the temporary employees wanted to return to availability around the clock by seniority , but in subsequent testimony admitted that no employ- ees said they wanted to be available for all six shifts on weekends, that around-the-clock availability was his interpretation of the request. This witness showed unwarranted pique over the questions asked by counsel for the General Counsel, further indicating lack of candor and unwilling- ness to give a clear and accurate account of the events. Further, Mathi- son said that due to the passage of time , he could not recall some discus- sions Portions of his direct testimony were elicited by leading questions, which also adversely impacts on his credibility Finally, Mathison's de- meanor and his manner of "construing" intent indicates that he was tai- loring his testimony in support of Respondent 's litigation theory In sum, Mathison's testimony is not credible. The witnesses were sequestered However, Windsor was present in the courtroom thoughout the hearing to assist Respondent's counsel. Wind- sor's rendition of the meeting is found not as credible as that of Stevens, Fisher, and Sylwesiuk based on demeanor . Windsor admitted poor recall and exhibited a tendency to tailor his testimony . For example, he indicat- ed initially that the temporary employees asked to be available for all shifts during weekends, but later admitted all they sought was to be called by seniority In fact, there is no showing that any employee's re- quest was limited to weekends 17 Windsor's basis for this understanding of the contract was request- ed; he was unable to provide this information It is not alleged that the Union's actions in this regard were violative of the Act 567 D. Change in Scheduling Windsor and Mathison negotiated with Logan and, several weeks after Sylwesiuk mailed the petition to Lewis, the Company started assigning temporaries to weekend shifts by seniority. The Company and Respond- ent reached agreement in mid-November 1981.111 Logan and Windsor agreed to implement the provisions of his 18 November 1981 letter to Logan on some unspecified date. Neither the Union nor the Company explained this new system to the employees. How the November agreement was implemented is a matter of dispute. The temporary employees in the lab were either scheduled or listed as available for weekend work. Apparently the Company did not give its supervi- sors any written instructions' 9 regarding the resumption of scheduling of temporaries by seniority for weekend work, with the retention of the window periods for calls to work when not scheduled. Mathison's testimony that he posted a draft of the 18 November 1981 letter20 is not credited. In addition to the above-stated reasons, Mathison's testimony is not credited because it contains inconsistencies, is uncorro- borated, and is credibly refuted. He testified that he posted the document on the BP&S bulletin board "right outside the lunchroom at Anheuser-Busch, Fairfield.1121 Not one employee testified that they saw the posting de- spite the testimony of several witnesses that they regular- 18 The exact date of this agreement is not discernible from the record because no signed document was executed Windsor testified that Lewis refused to sign the document because of the petition sent by Sylwesiuk, but why the petition constituted an impediment to execution is unex- plained. A letter to Logan from Windsor dated 18 November sets forth Windsor's understanding of the new temporary employee program as fol- lows: It is my understanding, with respect to the new temporary em- ployee program, that, effective the weekend of November 21 and 22, the following changes in scheduling procedure will take place 1. Temporary employees will be frozen on their shift Monday through Friday. 2 The assignment of weekend and holiday work will be in recall denionty [sic] order The first shift to be scheduled will be Saturday midnight shift, followed by the Saturday day shift, etc Sunday will follow in like sequence 3. In scheduling Sunday, you will start at the top of the seniority list against 4. If there is a conflict between a straigh -time and a weekend or holiday shift because of the back to back shift rule, the temporary employee will be assigned the straight-time shift rather than the overtime shift 5. If the situation described in Item 4 occurs, that employee will be assigned the next available shift. 6. I understand your concern for temporary employees not sched- uled for the weekend being unabailable [sic] for call under this system. It is my intent to discuss any problem in this regard with you at the time it occurs In the meantime, it is my understanding that, although you will be keeping track of weekend unavailability, you do not intend to count it as strictly as you do for weekday un- availability 7 When not scheduled on the weekend, it is agreed the temporary employees are still subject to being called, but you will call them during the two and one-half hour period designated for each shift 19 The record is not clear how supervisors were informed of the new method of scheduling temporary employees on weekends or whether they were made aware of par 6 of the 18 November 1981 letter 20 The draft letter was dated 16 November 1981, 21 Tr 412 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly check the bulletin boards.22 Mathison later testified that if he has a document "that pertains to all employees, the stewards from each individual department receive a copy for their own bulletin board. The only copies that are posted on my bulletin board that the other stewards do not have copies of for their bulletin board refer to BP&S only." Mathison did not claim he sent a copy of the letter to the lab steward for posting, contrary to his admitted established practice. The reason for the claimed alteration in the routine of posting the November letter is unexplained and not credible. The understanding of the supervisors and employees how the weekend system worked differs from that con- tained in the 18 November 1981 letter. For example, David Joe Davis started working as a temporary in the lab during November 1981. He was hired by Dorian Watts, whom he described as the brewing boss. The home-shift system was explained to him during his em- ployment interview in October 1981. He was not told during the 10 months he was a temporary employee in the lab that he was required to be by his telephone for the window period during all six weekend shifts. He un- derstood his obligation on weekends "that if we weren't scheduled to work the weekend, you weren't liable to work-to be disciplined for not being available on the weekend." If he saw a chance of getting called on a weekend, he remained available to optimize his opportu- nities for work. Davis estimated that between November 1981 and September 1982 he was out of town 10 week- ends and was told by supervisors that they had tried to reach him on 5 occasions, but he does not know how many of those occasions were on weekends. He was never informed that an "unavailability was recorded for his failure to answer the telephone." Similarly, Rick Horsma was interviewed by Ted Ran- gell, the "head manager of the lab," in early December 1981 for employment as a temporary in that department. Rangell told Horsma: that the temp system was-okay, there were three shifts each day and each temp had a preferred shift and you were obligated to stay by the phone for that shift. And if you wanted to, you could stay by the phone for the other shifts but you didn't have to. And on the weekends, if you were scheduled, you would be scheduled. If you were scheduled, you worked. If you weren't scheduled, you didn't have to stay by the phone unless you wanted to. And that's about it. Rangell23 never informed Horsma that he was required to stay by his telephone during the window period for all six weekend shifts or on holidays. Horsma's understanding of his weekend obligation was that if he was not scheduled, he was not obligated to stay by the phone, and between December 1981 and No- vember 1983 he did not stay at home, he was away many Saturdays and "easily 3 out of 4 Sundays." During the 2- year period he was told by his parents at least three to 22 For example , see the testimony of Carmen Campos, Fisher, Rick Horsma, and Sylwesiuk 23 Rangell did not testify five times that the Company had called him. He does not know if the telephone calls occurred during the window period. Horsma was never told that he should have been available during the window period for all six weekend shifts or was subject to discipline for his failure to be available at these times. Dan Higgins commenced working for the Company as a temporary in the lab on 3 November 1982. He was interviewed for the job around October 1982 by Winna Simpson24 and Ron Kelichner, the lab manager.25 Ke- lichner told Higgins that if he were scheduled to work weekends, he would have to be available to work those weekends. If he was not scheduled to work a weekend, he did not "have to worry about being by my phone. . . . If [Kelichner] told me that I had to sit by my phone three times a day on Saturday, Sunday and holidays, I wouldn't have taken the job." Prior to 4 January 1984, it was not his practice to stay by the phone on the weekends and holidays he was not scheduled to work. 26 Higgins was told at least twice that the Company had attempted to call him to work.27 He was not told either time that he failed to meet an obliga- tion or that the incidents would be counted as unavaila- bilities. On 23 January 1984 Higgins wrote a letter to Windsor stating that he and the other lab temporary em- ployees did not know of any regulation requiring them to be available for all shifts on the weekends. Respondent argues that the temporary employees knew their weekend and holiday obligations under the new scheduling program; noting the Company imple- mented the system of calling temporaries by seniority by issuing schedules, which either listed for each shift the temporary employees as scheduled for a specified shift or as "available." The General Counsel rejoins that when the Company resumed scheduling temporary employees by seniority on weekends, they did not also resume use of the weekend signoff sheets. The significance of listing employees on a schedule or as "available" was not ex- plained or understood to connote the necessity of being by their telephones during the window periods for all shifts. Permanent employees who were not scheduled to work but had volunteered for weekend assignments were listed ahead of the temporaries as being available. The availability obligations of the permanent employees under these circumstances were not the subject of any testimony. Respondent also argues that Fisher indicated a correct understanding of her weekend obligations when she filed 24 Simpson did not testify 26 Higgins' testimony is credited based principally on demeanor Also considered , secondarily, was his candor, inherent probabilities, and clarity of recall Kelichner became quality assurance manager in April 1982 26 In January 1984 Higgins received a reprimand for "unavailabilities " Higgins told Kelichner he did not know of the rule and Kelichner claimed he told him about it during his interview for employment Hig- gins rejoined that he was never informed of the requirement and if he had been he would not have taken the job Kelichner did not dispute Higgins' account of the conversation 27 Art Lim, a lab supervisor, informed him on a Monday that the Company tried to call him on 5 March , a Saturday, to work the midnight shift on Sunday On 19 August 1983 Ken Sybyst, another lab supervisor, told him, also on a Monday, that the Company had tried to call him at 7 p m on Friday to work Saturday midnight TEAMSTERS LOCAL 896 (ANHEUSER-BUSCH) 569 a grievance on 8 July 1982 because she was not called by seniority for the Fourth of July holiday. Fisher testified that she filed the grievance based on her understanding that she had to be called even though she could refuse to work the involved shift. Although `the record is clear that there was a- change in the method of assigning weekend and holiday work to temporary employees, there is no indication that these workers clearly understood their responsibilities to be by their telephones during the shift window periods., These employees also knew that some coworkers were disci- plined for extreme abuse of the unavailability rule in No- vember 1980.28 However, there was no clear explanation to the employees or a clear showing that they under- stood and appreciated how the hybrid system implement- ed in November or December 1981 affected their obliga- tions to be available during weekends and holidays on shifts they were not assigned to work.29 Kelichner ad- mitted that another temporary, Judy Lerseth, was un- aware of or confused about her weekend responsibilities on 1 November 1983. Adding to the confusion, the Company and the Union further modified the weekend assignment system in the brewing department about 1 July 1982 by allowing a cer- tain number of temporary employees to "sign off for Sunday work." On 27 January 1983 further negotiations between the Company and the Union resulted in a changed method for scheduling temporary employees in the bottle shop. A call-in procedure was implemented whereby if the temporary employee was not scheduled, he did not have to be available by his telephone. Mathi- son posted the new procedure on the BP&S bulletin board, which was by the lunchroom and read by many of the employees.30 The posted material did not clearly state that it was applicable solely to the bottle shop. The notice instructs the temporary employees to call oper- ations control for their work schedules. The lab employ- ees did not call operations control. No lab employee tes- tified that they ever called operations control. A similar arrangement was not implemented in the lab until 15 June 1985.$1 Mathison, recognizing the potential for con- fusion, took the notice down a few days after it was posted. A new notice limiting this system to BP&S tem- poraries was prepared 32 and circulated to BP&S tempo- raries, but was not posted. The lab temporaries knew of the changes in the BP&S system but whether they also appreciated its limited application is unclear. Mathison admitted that he never gave the lab temporaries a de- scription of the six-shift weekend availability rule and never posted notices delineating their weekend and holi- day responsibilities. 28 Cheryl Lewis was fired for numerous unavailabilmtres. 29 Fisher's husband worked in the brewing department and has been a union steward since mid-1983 There was no evidence about any discus- sions they might have had about the system of assigning temporaries and there is no other basis to surmise that any such conversations occurred and/or led to a greater understanding of the system 30 This appears to be the same bulletin board on which he claimed he posted the November 1981 changes in scheduling temporaries The No- vember material pertained to all temporaries. 81 Currently, lab employees can sign off on a first-come, first-serve basis and their names would not appear on the weekend schedule s2 This notice is dated 4 February 1983 E. The 14 November 1983 Reprimand of Fisher On 14 November 1983 Kelichner issued a reprimand to Fisher for unavailabilities on 21, 28, and 31 October 1983.39 According to Kelichner, after the 18 November agreement was implemented, the three unavailability rule was not strictly enforced. In April 1983 he instructed that an extrapolation of the yellow log34 be maintained of all telephone calls to the temporary employees. At some unspecified time, Kelichner was told he was too le- nient about the unavailabilities and he commenced strict- er enforcement of the unavailability rule.35 Kelichner de- cided to reprimand Fisher for she had three unavailabili- ties within a short period of time38 and five unavailabili- ties within 9 months. In mid-1982 Kelichner disciplined Judith Lerseth, an- other temporary employee, for excessive unavailabilities. Lerseth was given a warning and claimed in a grievance dated 22 September 1982 she was not required to be by her telephone on weekends when not scheduled for work. In denying the grievance, Kelichner did not dis- pute her claimed lack of knowledge of the requirement to be available during the window periods when not scheduled for weekend work. When Kelichner similarly disciplined Fisher a couple of months later, Fisher also asserted that she did not have to remain by the telephone on weekends or on holi- days when she was not scheduled for work. The Charg- ing Party also told Kelichner she had a valid medical excuse for 21 October. According to Fisher, whose testi- mony is credited, 37 Kelichner told her that temporary employees "always had to be available for the weekend . .. that the temporaries had requested to be on call for all six shifts, and the union and company were in agree- ment.... [Kelichner] told me that this rule change had been requested specifically by me . . . I told him no, it had not been." Fisher refused to sign the reprimand which, under the collective-bargaining agreement, automatically invoked the second step of the grievance procedure. Fisher filed two additional grievances over the reprimand.38 38 The 21 and 28 October incidents involved telephone calls for Satur- day midnight shifts, and the 31 October incident was for not being avail- able for an assigned shift. 94 The yellow log is a record the foremen keep to note most items pertinent to personnel matters, including phone calls to temporary em- ployees The extrapolation was called the "black book." The black book admittedly contained inaccuracies 36 Prior to this asserted need to tighten up the program, Kelichner stated that until the end of 1983 he had few occasions to call temporary employees for weekend work, generally a sufficient number of permanent employees signed up This inherent contradiction between asserted laxity with lack of need to call is typical of Kehchner's testimony, which was not credible This conclusion is also based on his demeanor, tendency to volunteer information, lack of recall, lack of candor, and failure to re- spond directly to questions. 36 Kehchner stated he felt the three most recent unavailabilities were "solid" so he did not want to throw in the other two because it might jeopardize his case with the Union 37 Fisher exhibited a straightforward demeanor and good recall. 'B One grievance alleged that the reprimand was not issued within 5 days after the infraction, contrary to art. 5, sec 1, of the collective-bar- gaining agreement. The other grievance alleged disparate treatment as an- other female temporary employee received a counseling for the same in- fraction. The parties stipulated at hearing that Respondent 's processing of Continued 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The step 2 meeting on the reprimand was held 8 De- cember. Present were Pat Leyden" and Kelichner for the Company, and Windsor and Bob Sauer40 for the Union. Eventually Mathison and Tom Softa4 t joined the meeting. The morning of the meeting, Windsor tele- phoned Fisher and told her that if she was at work that day, he would be at the plant and they would hold the step 2 meeting.42 During the meeting, Fisher asserted she had never been advised of the rule change requiring her to be avail- able for all six shifts on weekends. Kelichner said she knew of the rule change. Windsor said she had been no- tified about the altered rule. Mathison also claimed she received notification of the charge. Mathison and Wind- sor told Fisher the temporary employees requested they be on call for all six shifts and voted on it at the union meeting. Fisher disputed that the request was made and voted on. Windsor advanced the argument that Fisher received disparate treatment for others had much worse records of unavailabilities, which the Company denied. Kelichner said the Company was tightening up the pro- gram. The Union noted that she had a medical excuse for one unavailability and asked that the reprimand be removed from her record. Both Kelichner and Leyden responded negatively to the suggestion. During the meeting Fisher and the union representa- tives caucused and she asked Windsor to take her repri- mand and the grievance to arbitration , asserting that the reprimand was untimely under the contract.45 The Com- pany offered to reduce the reprimand to a counseling. Fisher again requested arbitation. Windsor again refused her request and advised she could appeal his decision to the Local's executive board (E-Board). Windsor agreed to the Company's offer and accepted the counseling. There is no indication that the terms of the counseling were discussed at this or any other time. A counseling, according to Windsor, is a reminder about a particular rule and it does not lead to a discharge. It was Windsor's opinion that it is not proper procedure to take a counseling to arbitration because it is only an ad- visory. He did not explicate further the basis for this opinion. Windsor also stated, "I had no reason to believe at that time, that they were going to treat Bonnie [Fisher] any different than anybody else at the plant."44 these additional grievances is not encompassed within conduct allegedly violative of the Act. 99 Supervisor of plant personnel. 40 A shop steward in the lab 41 A shop steward. 42 Fisher's testimony of what occurred at the meeting is credited. She recalled the events in great detail . Kelichner admitted he has no distinct recollection of the meeting Windsor had admitted lapses in his recollec- tions of the meeting and exhibited subsequent uncertainty regarding some of the events and statements . Therefore when Windsor's testimony is contradicted by Fisher 's, Fisher has been credited 42 The grievance alleging discrimination was not discussed at the con- ference because it was under investigation. The Union requested the Company provide information regarding all the lab temporaries ' unavail- ability records for a 9-month period. 44 Shortly after the step 2 meeting, the Company posted a notice ad- vising that temporary employees were required to answer their tele- phones during the 2-1/2-hour window period for all weekend and holi- day shifts. The union understanding reached during the 1981 con- tract negotiations, that the Company would not strictly enforce the unavailability rule, and a similar agreement reflected in paragraph 6 of the 18 November 1981 agree- ment, was not raised during this second step meeting. Leyden sent Windsor a letter dated 12 December 1983 and date stamped by Respondent 16 December 1983, which provided: Bonita Crow Fisher The 11/14/83 reprimand for unavailability for work assignment is reduced to a counseling, with the un- derstanding that further instances of unavailability without a valid excuse will result in more severe disci- pline, up to and including discharge. [Emphasis added.] If you are in agreement with the above, please sign and return the attached copy of this letter. On 14 December 1983, Windsor sent Fisher a letter which stated: After a careful investigation of your grievance number 01783S, which this Local Union has suc- cessfully reduced from a reprimand to a counseling at a Step 2 meeting, at which you were present, it has been decided not to process this grievance to arbitration. Fisher wrote Lewis on 16 December 1983 requesting arbitration of the counseling.45 The request was consid- ered at an E-Board meeting held about 30 January 1984. Windsor delayed signing and returning the counseling due to the pendency of the E-Board hearing, and he so informed the Company by letter dated 21 December 1983. Windsor did not give Fisher a copy of the pro- posed counseling until well after the E-Board proceed- ing,46 Windsor did not indicate any reaction to the caveat in the counseling that further infractions could result in discharge, even though it was antithetical to his understanding of a counseling and was a possible indica- tion that Fisher was being treated differently than other temporary employees. The E-Board was not apprised of this caveat in the proposed counseling. Windsor executed and returned the counseling to the Company in February 1984. Fisher's testimony that she did not receive a copy of the counseling until after the E -Board meeting is cred- ited. Windsor testified that he determined the counseling to be inappropriate for arbitration because he believed the Company could prove Fisher knew and understood the 45 Appended to this letter was a petition signed by three other tempo- rary employees of the lab wherein they expressed their lack of awareness of the weekend and holiday availability requirements. 44 Windsor's claim that he discussed the provision with Fisher is not credited Fisher's assertion that she was not informed of the terms is credited for the reasons stated above as well as the inherent probabilities raised by the testimony indicating the language of the counseling was never raised before the E-Board Further, Windsor subsequently testified that he was not sure he discussed the verbiage of the discipline with Fisher before or after his decision to accept the counseling TEAMSTERS LOCAL 896 (ANHEUSER-BUSCH) system based on a grievance she filed" and conversa- tions he had with her and her husband. The content and other particulars about these conversations were absent from his testimony. As indicated above, Windsor was not a credible witness. Further, the record is devoid of any evidence that the temporary employees were privy to the details of the agreement reached by the Union and Company in November 1981, and there is no other clear and convincing basis for imputing such knowledge. On the contrary, all the temporary employees who testified, as well as the information in Lerseth's grievance, clearly indicate that they did not know the terms of the Novem- ber 1981 agreement, and it is so found. F. The Executive Board Meeting The executive board meeting that heard Fisher's appeal included Lewis, Mathison, Recording Secretary Batz, and three trustees. Fisher's position before the E- Board was that she wanted the counseling totally re- moved from her record or taken to arbitration because she was never informed of her obligation to be by the telephone for all weekend shifts. Windsor48 replied that the agreement he made with the Company had been mailed to all temporary employees,49 apparently refer- ring to a document he held in his hand.SO Windsor also accused Fisher of writing a letter to Charlie Klare in Chicago. Fisher was not sure what position Klare held with the Union. Lewis instructed Windsor to give Fisher a copy of the agreement since she apparently did not re- ceive one. Windsor claimed that he had only one copy. Lewis instructed Windsor to mail Fisher a copy of the agreement. s t Lewis told Fisher, "the reprimand is reduced to a counseling and the counseling stands as is, unless you want to beat this thing to death," that if he took a coun- seling to arbitration he would be laughed out of the State, "that [the] reprimand was reduced to a counseling and it would stand as such." According to Mathison and Windsor, Lewis then advised Fisher that she could appeal the decision to the Teamsters Joint Council No. 7 for Northern California. Fisher testified that she had no knowledge of the appeal process and had never received a copy of the Union's bylaws or the "International Con- stitution." The only documents given her by the Union when she became a member was an excerpt from the collective-bargaining agreement. Fisher's claim that she never received these documents nor was informed she could request them is unrefuted. The letter sent to Fisher " The grievance only indicated she believed seniority was the predi- cate for calls to work, not that there was a concomitant obligation to be available for all weekend and holiday shifts during the window periods 4B According to Mathison, Windsor spoke in opposition to Fisher's complaint. 49 This assertion is refuted by all temporary employees who testified at the hearing There was no cover letter or other evidence supporting this bare assertion. Windsor's claim is not credited and is found to be a mis- representation An E-Board member, Flo Chapman, confirmed Windsor's assertion Chapman did not appear and testify and the basis for this con- firmation is unexplained. bO Windsor did not deny he had a copy of the November 1981 agree- ment in his hand He recalled having something in his hand s' Fisher never received an exact copy of the agreement, as detailed hereinafter 571 by Windsor on 16 February 1984 officially stating the Local's decision to not take her grievance to arbitration did not mention any right of appeal . Based on the above credibility discussions, Fisher's version of the events is credited. Several days after the E-Board hearing, Fisher re- quested Windsor send her a copy of the agreement be- cause it had not been received. Windsor had a modified copy of the agreement typed and sent to Fisher. The en- velope is postmarked 16 February 1984. The document Windsor sent to Fisher had a changed heading to indi- cate that it had been sent to quality control temporaries on 18 November 1981. Admittedly, it was not. The origi- nal was sent to Logan on that date. Another alteration was the deletion of paragraph 6 from the copy sent Fisher. As indicated above, paragraph 6 of the 18 No- vember 1981 agreement indicated weekend unavailabili- ties would not be counted strictly as weekday unavailabi- lities. The document sent Fisher did not note that there were alterations and deletions. Windsor admitted that the document sent to Fisher was typed in 1984. His claim, that the date of 18 Novem- ber 1981 was retained to reflect when it was originally put into effect, is found to be specious for there was no need to change the addressee to accomplish that goal. The original agreement applied to all temporary employ- ees. The copy sent Fisher incorrectly indicated it was mailed only to lab temporaries. Also, 18 November 1981 was not shown to be the effective date of the agreement. At some unspecified time after the 18 November docu- ment was prepared, Windsor told Logan that Lewis would not sign the document but would approve its im- plementation. The actual date of implementation, accord- ing to Mathison, was late November or early December. Windsor's explanation for the deletion of paragraph 6, that it would result in misinterpretation by someone who would get in trouble because he and Logan had discus- sions about the provisions, is also found to be specious. Lewis, his superior, instructed him to make sure Fisher had a copy of the agreement, not an expurgated version, which indicated that two of her three unavailabilities for which she was disciplined were not to be counted as strictly as the third for which she had a medical excuse. Windsor admittedly did not follow instructions. If Wind- sor was concerned about misinterpretation, he could have prepared a cover letter warning of the possibility. Considering the changes in the agreement sent to Fisher, it is found that they were designed to support incorrect representations made by Windsor and to mislead Fisher in her understanding of pertinent events and portions of the agreement under which she was disciplined. G. Fisher's Discharge On 5 May 1984, a Saturday, Fisher was late returning home from a dinner to celebrate her birthday and missed a telephone call to work during a window period. Logan testified that Kelichner telephoned him to inform him that Fisher was unavailable the previous Saturday and that her previous discipline included a warning that the next unavailability would be her last. Logan agreed with 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kelichner's recommendation that Fisher be discharged, and she was that day. Under the grievance and arbitration provisions of the collective-bargaining agreement, the discharge was the subject of a step 2 meeting. It was held in Logan's office. Present for the Company were Kelichner, Leyden, and Logan. The union representatives were Mathison, Wind- sor, and Tim Ridosh.52 Prior to the step 2 meeting, Fisher, Bellicci, and Ridosh prepared a list of questions to be asked during the meeting. Windsor became aware of the list and Fisher gave him a copy at his request. She also told him that if the matter went to arbitration, she wanted to be represented by her own attorney. Windsor informed her she could not have an attorney, he was her representa- tive. According to Ridosh's and Fisher's credited testi- mony, what constituted unavailability was discussed. Logan insisted that the employees were aware of the rule change. Windsor agreed with Logan' s claim that the rule change had been posted. Ridosh told them he had worked for the Company approximately 7-1/2 years, 7 days a week, 52 weeks a year, 8 hours a day, and had never seen a notice to that effect. Windsor again asserted that the agreement had been mailed to Fisher. She in- quired if he was referring to the February 1984 mailing, and Windsor replied that he was. Windsor also said, "You wouldn't be here today, Bonnie, if it wasn't for the letter that Walt Sylwesiuk wrote to Charles Klare in Chicago. He's the one who requested that the temporar- ies be on call for all six shifts."53 Ridosh responded that Sylwesiuk did not want that system, all he wanted was to protect the seniority system. The Company did not re- instate Fisher, so her discharge was set for arbitration. H. The Arbitration Preparatory to the arbitration, Fisher and Windsor had several conversations. 54 The first such conversation oc- curred 23 May at the union hall. Windsor told Fisher he would raise two issues at the arbitration, timelinessb5 and her employment record.56 Fisher inquired if Windsor was going to discuss her 14 November reprimand or the "backdated" letter he sent her; he said no. The Charging Party told Windsor she thought it was very important to raise her lack of knowledge of the new rules at the time she was disciplined in November 1983 since those two unavailabilities were counted in the decision to terminate her. Windsor said he would not discuss that issue, that he had a conversation with a company representative, Franklin Silver,57 and they agreed the only issues were 12 Ridosh worked at the plant since it opened and served as chief and assistant shop steward for portions of that employment. His demeanor was forthright; he demonstrated clarity of recall and candor in his testi. mony, and I find his testimony credible sa Windsor admitted he was concerned about who sent the letter to lUare and attempted to find out the culprit 64 As indicated above, Fisher's rendition of the involved events is the more credible and was relied on to make the findings of fact where there is controverted testimony. 66 The Union argued that the Company did not give Fisher a copy of her termination papers in the manner prescribed in art. 5 of the contract. se No other temporary employee was discharged with only three una- vailabilities. 84 Silver did not testify. timeliness and disparate treatment. Windsor advised her to look nice and smile at the arbitrator.58 The following day, 24 May, Windsor telephoned Fisher and ingeminated his decision to discuss only time- liness and her employment record; that there would be absolutely no discussion of her prior discipline or the backdated letter if he represented her. She again indicat- ed that she felt her lack of knowledge and the backdated letter were important to her position at the arbitration. She was told by Windsor that if she insisted on raising the reprimand or the backdated letter, he would not rep- resent her; she and Ridosh could handle the arbitration themselves; he would either sit in the corner of the room or absent himself. Windsor further warned her that if she raised those subjects during the arbitration, he would walk out of the room.59 Fisher told him she would like to make some telephone calls and would call him back. Later that day, Fisher telephoned Windsor and advised him she "would do it his way." It was during these prearbitration conversations that Fisher learned that the copy of the agreement she received was retyped in 1984 and backdated to 18 November 1981. Windsor explained at trial his refusal to argue lack of knowledge as a defense because: (1) Leyden80 told him before the arbitration that if that claim was made, they would counter by presenting two grievances Fisher had filed which claimed another temporary was called to work before her, clearly evincing knowledge of the weekend availability rules and the company work sched- ules listed her as available; and (2) he had such a strong case of disparate treatment, that the discharge decision was improper and she had a legitimate reason for the latest unavailability, that it would not be wise to raise the issue, he did not think the arbitrator would credit her as- sertion that she did not know the system. The arbitration was conducted on 25 May 1984. Prior to the commencement of the session, Windsor asked Fisher if she was sure she wanted him to represent her and if she knew the terms. She said yes, she "was aware" of the terms. At the arbitration, the Union's first exhibit was the 18 November 1981 letter from Windsor to Logan, with spe- cific reference to paragraph 6. Windsor's opening argu- ment raised the issue of timeliness and disparate treat- ment. A question by the Company relating to the repri- mand was the subject of an objection by Windsor which was sustained. Although the issue of lack of knowledge was studiously avoided during the evidentiary phase of the arbitration, surprisingly Windsor in his closing argu- ment stated: Because of people not being clear on the pro- gram, the previous violations, the one in October, were reduced to a counseling, and because of that we feel that there was nothing in the record for 58 Windsor testified Batz was present during this conversation. Batz did not testify 69 Windsor testified that he told her that if she presented the case her- self, she could have anyone she wanted from the Union present at the arbitration, and Local 896 would represent her, but they would say noth- ing 80 Leyden did not appear and testify TEAMSTERS LOCAL 896 (ANHEUSER-BUSCH) 573 January, and I objected to any mention of that being made, because there is nothing there. The arbitrator rendered a bench decision, finding: so far as this record is concerned, it seems to me that the grievant knows the system. .. . ... that in the past, the grievant has been given opportunities, there was no three and out... . And I'm now making this bench award, namely, that you will be returned to employment whenever the schedule provides, without back pay but with credit for all of your seniority; that you are going to be back to work with two unavailabilities on your record as of this date that you return to work, which means that if you have a third one for which there is no acceptable excuse, then under the terms of the agreement and my award you would be sub- ject to discharge. So the only question that could be taken up would be whether or not on the third case, if it occurs, you have an acceptable excuse and the com- pany rules otherwise, then you will all come back to me and I will have to decide on that one point alone, but you're not going to be back and give you another chance as to the application of the agree- ment as it's written. Respondent argues on brief that: "[a]lthough Kagel's decision does not explain his rationale, it is evident that he accepted Windsor's arguments concerning disparate treatment." Analysis and Conclusions 1. Respondent's position The Union, in its first amended answer to the com- plaint, as well as on brief, argues as an affirmative de- fense that the complaint should be dismissed for the Charging Party failed to exhaust internal union remedies. Another affirmative defense is that the 25 May 1984 arbi- tration proceeding before Kagel is conclusive on some or all other issues. Respondent argues that it fulfilled its duty of fair representation when it determined not to ar- bitrate the 14 November 1983 reprimand and it did not withhold information. Arguing in the alternative, it claims that even if a breach of the duty of fair represen- tation is found, no affirmative remedy should be ordered. 2. Arbitration Respondent did not identify which, if any, of the issues involved herein was appropriate for deferral to the arbi- trator's award. In Olin Corp., 268 NLRB 573 (1984), the Board adopted the following standard for deferral to ar- bitration awards: We would find that an arbitrator has adequately considered the unfair labor practice if (1) the con- tractual issue is factually parallel to the unfair labor practice issue, and (2) the arbitrator was presented generally with the facts relevant to resolving the unfair labor practice.6 In this respect, differences, if any, between the contractual and statutory stand- ards of review should be weighed by the Board as part of its determination under the Spielberg stand- ards of whether an award is "clearly repugnant" to the Act. And, with regard to the inquiry into the ',clearly repugnant" standard, we would not require an arbitrator's award to be totally consistent with Board precedent. Unless the award is "palpably wrong,"? i.e., unless the arbitrator's decision is not susceptible to an interpretation consistent with the Act, we will defer. 6 This approach is supported by Board precedent . See, e g., Kansas City Star Co, 236 NLRB 866 ( 1978), and Atlantic Steel Co, 245 NLRB 814 (1979) 7 International Harvester Co, 138 NLRB 923, 929 (1962), affd sub nom Ramsey v. NLRB, 327 F 2d 784 (7th Cir. 1964), cert denied 377 U S 1003 (1964), quoted in former Member Penello's dissenting opinion in Douglas Aircraft Co., 234 NLRB 578, 581 (1978), enf denied 609 F 2d 352 (9th Cir 1979) In this proceeding, there are no contractual issues and the facts in issue here were not presented generally to the arbitrator. There is no showing that the contract has a provision specifically addressing the Union's duty of fair representation or that the grievance arbitration pro- cedures encompassed the issues raised in the instant pro- ceeding. Even assuming arguendo a contractual issue, the facts dealing with Respondent's representation of Fisher and its provision of information to her were not present- ed to the arbitrator.61 The question of Fisher's knowledge of the new week- end availability obligations was studiously avoided during the arbitration proceeding save for Windsor's closing comment. The arbitrator found that "it seems to me that the grievant knows the system," but, as admitted by the Respondent on brief, this holding was not based on any evidence adduced during the arbitration proceed- ing nor was the question of when Fisher acquired such knowledge, for no evidence was offered on this issue. The Union's failure to provide information on the rule change is an alleged unfair labor practice. The Union's representation of Fisher during the grievance proceed- ings, including arbitration, was not "presented generally" to the arbitrator. Thus it is concluded that the arbitrator was not presented with contractual and statutory issues which are factually parallel to the unfair labor practice allegations. Respondent has failed to show that an arbi- tration concerning the instant matters has already oc- curred. Chemical Leaman Tank Lines, 270 NLRB 1219 (1984). Further, as noted in Laborers Northern California Council (Baker Co.), 275 NLRB 278 (1985), deferral to arbitration is inappropriate in an 8(b)(1)(A) case when, as here, the member and union have conflicting interests and there is no evidence that the interests of the member and employer are harmonious or even similar or that the employer would be willing to represent the member during the arbitration proceeding. Deferral under the doctrine of Spielberg Mfg. Co., 112 NLRB 1080 (1955), 81 There was no showing or allegation that the Company and the Union were in privity through the collective-bargaining agreement 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and Olin, supra, is not appropriate in these circum- stances. 3. Exhaustion of internal union remedies Respondent argues that the complaint should be dis- missed because Fisher did not first exhaust her internal union remedies before "suing" the Union. Citing Clayton v Auto Workers, 107 LRRM 2385 (1981); Scoggins V. Boeing Co., 742 F.2d 1225 (9th Cir. 1984); Hayes v. Rail- way Clerks, 734 F.2d 219 (5th Cir. 1984); Monroe v. Auto Workers, 723 F.2d 22 (6th Cir. 1983). The cited cases in- volved suits brought under Section 301 of the Act against the union . These cases did not address the issue of whether filing charges with the Board alleging viola- tions of Section 8(bXl)(A) of the Act similarly requires the employee to exhaust internal union appeals proce- dures established by the union constitution. In Clayton, ibid., the Court specifically limits the applicability of its criteria to Section 301 cases.82 The Court, in the Clayton decision, supra, did not ad- dress the issue nor did it directly or obliquely override its decision in NLRB v. Shipbuilders, 391 U.S. 418 (1968), in which it held at 424: Section 10(b) of the Act, 61 Stat. 146, 29 U.S.C. § 160(b), forbids issuance of a complaint based on conduct occurring more than six months prior to filing of the charge-a provision promoting prompt- ness. A proceeding by the Board is not to adjudi- cate private rights but to effectuate a public policy. The Board cannot initiate its own proceedings; im- plementation of the Act is dependent "upon the ini- tiative of individual persons." Nash Y. Florida Indus- trial Comm'n, 389 U.S. 235, 238. The policy of keeping people "completely free from coercion," ibid., against making complaints to the Board is therefore important in the functioning of the Act as an organic whole. A restriction such as we find in § 5 of Article V of the International's constitution is contrary to that policy, as it is applied here. A healthy interplay of the forces governed and pro- tected by the Act means that there should be as 62 The Court found, at 2387, "We hold that where an internal union appeals procedure cannot result in reactivation of the employee's griev- ance or an award of the complete relief sought in his § 301 suit, exhaus- tion will not be required ..." Also Respondent failed to meet the di- rective that during the course of this trial they address the internal reme- dies they claim should have been exhausted and any time limits attendant to pursuing those remedies. (See Tr. 27.) Art. XIX, sec. 12(a) and (d) of the Union's constitution provides: Section 12(a). Every member, officer, elected Business Agent, Local Union, Joint Council or other subordinate body against whom charges have been preferred and disciplinary action taken as a result thereof, or against whom adverse rulings or decisions have been ren- dered or who claims to be aggrieved, shall be obliged to exhaust all remedies provided for in this Constitution and by the International Union before resorting to any court, tribunal or agency against the International Union, any subordinate body or any officer or employ- ee thereof. (c). The appeals procedure provided herein is also available to and must be followed by any member, or former member, who is ag- grieved by any decision, ruling, opinion or action of the Local Board, including collective bargaining matters In the case of collec- tive bargaining matters, there shall be no appeal from decisions of the Joint Council. great a freedom to ask the Board for relief as there is to petition any other department of government for a redress of grievances. Any coercion used to discourage, retard, or defeat that access is beyond the legitimate interests of a labor organization. That was the philosophy of the Board in the Skura case, Local 138, International Union of Operating Engi- neers, 148 NLRB 679; and we agree that the over- riding public interest makes unimpeded access to the Board the only healthy alternative, except and unless plainly internal affairs of the union are in- volved. [Footnotes omitted.] Here, the issues also go beyond "plainly internal affairs of the union," ibid. The issues include allegations that improper handling of Fisher's grievance could result in jeopardizing her job by maintaining two unavailabilities against her record. This is not the subject of the Lan- drum Griffin proviso requiring exhaustion of internal union remedies. Cf. Boilermakers Local 37 (Delta Mainte- nance), 272 NLRB 326 (1982), and District Council of Carpenters (Commercial Industrial Constructors), 259 NLRB 541 (1981). The request for dismissal is found to be without merit and is denied. The failure of Fisher to exhaust her inter- nal union remedies does not preclude consideration of the General Counsel's consolidated complaint or the ren- dering of any findings based on the evidence adduced with regard to that complaint. 4. Did the Union breach its duty of fair representation? a. General principles In considering whether Respondent violated Section 8(b)(1)(A) of the Act, the following principles are ap- plied. When a union is acting in a statutory representa- tive capacity, it is prohibited from taking action against any employee on consideration or on the basis of classifi- cations that are irrelevant, invidious, or unfair. Miranda Fuel Co., 140 NLRB 181 (1962). In the application of this principle, it is recognized that a wide range of rea- sonableness must be allowed the statutory bargaining representative in serving the unit it represents, subject to complete good faith and honesty of purpose in the exer- cise of its discretion. Ford Motor Co. v. Huffman, 345 U.S. 330, 337-338 (1953). Consequently, Section 8(b)(l)(A) does not proscribe every act of disparate treatment or negligent conduct, but only those which, because motivated by hostile, in- vidious, irrelevant, or unfair considerations, may be char- acterized as "arbitrary, discriminatory or bad faith con- duct."83 Vaca v. Sipes, 386 U.S. 171 (1967). Section 8(b)(1XA) prohibits unions from restraining or coercing employees in the exercise of the rights guaranteed in 88 The Court, in Vacs, further defined the union's duty in its enforce- ment of the collective-bargaining agreement "to serve the interests of all members without hostility or discrimination toward any. To exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct." (Emphasis added.) Id at 682, citing Humphrey v. Moore, 375 U S. at 342. TEAMSTERS LOCAL 896 (ANHEUSER-BUSCH) Section 7 of the Act, subject to the proviso not here per- tinent that unions may prescribe their own rules "with respect to the acquisition or retention of membership therein." As the Court recognized in the above-cited cases, the Act does not guarantee the quality of representation, and the need for effective operating of grievance machinery requires that a union be afforded a broad range of discre- tion in deciding which grievances to pursue and how they should be pursued. Cf. King Soopers, 222 NLRB 1011 (1976). b. Did Respondent's conduct breach its duty of fair representation Essentially, in this proceeding the General Counsel argues that Respondent failed in its duty of fair represen- tation toward Fisher resulting in her being disciplined and eventually discharged. Respondent argues that it processed Fisher's grievance in a manner consonant with its duty of fair representation, which does not require that a grievance be arbitrated or a particular defense be advanced. In essence, it defends principally on the ground that it acted in good faith. One of the key allegations in this case is whether the Union provided information to the Charging Party be- cause its actions in this regard are indicative of whether it acted in good faith.64 Respondent argues that Windsor sent a document to Fisher that reflected the 18 Novem- ber 1981 agreement in all material respects.65 Fisher first raised the defense to her discipline of lack of knowledge when she was told on 14 November 1983 she would be reprimanded for being unavailable for weekend shifts that were not her "home shifts." The requirement of "fair dealing" owed members by their union representatives includes the duty to inform employees about the terms and conditions of the agree- ment that would affect their employment. Taxi Drivers Local 3036 (En Operating Corp.), 204 NLRB 427 (1973). This duty to inform is not limited to circumstances in- volving union-security clauses. King Soopers Inc., supra; Western Conference of Teamsters (California Cartage), 251 NLRB 331 (1980);86 Plumbers Local 392 (Kaiser Engi- neers), 252 NLRB 417 (1980); Operating Engineers Local 406 (Ford, Bacon & Davis Construction Corp.), 262 NLRB 50 (1982).67 The credited evidence of record clearly es- tablishes that Respondent failed to inform its members of the 18 November changes in the agreement, which clear- ly affects terms and conditions of employment. I find that the evidence supports a finding that Re- spondent breached its duty of fair representation by acting in bad faith. Demonstrative of this conclusion is the preparation by Windsor of the document he sent Fisher as a copy of the agreement. The document was 64 Par 5(d) of the complaint asserts that "Since on or about November 15, 1983, and continuing to date, Respondent has withheld information from Crow-Fisher which was relevant and necessary for her to pursue the grievance described above in subparagraph 5(b) " 66 Respondent, in its argument, does not dispute that the 18 November 1981 document reflects a change in the collective-bargaining agreement 66 Intentional and willful misrepresentation 67 Failure to give timely notice of significant changes in referral proce- dures 575 purposely altered to give the erroneous impression that all temporary employees working in the lab were sent copies of the agreement on 18 November 1981.68 This alteration was effected after Windsor and Mathison agreed with the Company during the step 2 grievance meeting on Fisher's reprimand that Fisher had knowl- edge of the new rules. The union representatives agreed to the company contention without investigating the matter or discussing it with the grievant. This, at the least, was perfunctory. Respondent's agents knew of Fisher's contention of lack of knowledge as a critical ele- ment in her defense from the inception of the grievance process. See Pacific Intermountain Express, 215 NLRB 588 at 598 (1974).89 As held in Steelworkers (Interroyal Court), 223 NLRB 1184 at 1185 (1976), "With good will," the veracity and viability of the lack of knowledge defense "should have easily been clarified." In contrast, the Union "preemp- tively refused her explanation" and readily sided with the Company. In the case of Lerseth, Kelichner permit- ted her additional infractions of the unavailability rule because she was not clear about her obligations on the weekends7O as of 1 November 1983. That the Bashears case, id., involved the union's failure to take a grievance to arbitration does not alter its appli- cability to the instant proceeding. As the Board held in Bottle Blowers Assn. Local 106 (Owens-Illinois), 240 NLRB 324 (1979): Where, as here, a union undertakes to process a grievance but decides to abandon the grievance short of arbitration, the finding of a violation turns not on the merit of the grievance but rather on whether the union's disposition of the grievance was perfunctory or motivated by ill will, In the instant proceeding, Windsor did not claim to have investigated Fisher's grievance before the step 2 grievance meeting or his decision not to take the matter to arbitration. See Brown Transport Corp., 239 NLRB 711 (1978). If an investigation was held, it would have deter, mined the import of the lack of knowledge defense from the 1 November 1983 memorandum from Kelichner to Leyden regarding Lerseth, which stated there was a need "to clarify her responsibilities as a temporary in being available for work both during the week and on weekends." 88 Instead of the addressee being Logan, it was "Dear Quality Control Temporary," and the first paragraph of the Logan letter was replaced with the following language - "Below is set forth the current scheduling program you are working under " e° This case held that "a union representative presenting a grievance is required to represent the grievant as an advocate and to present his grievance in a light most favorable to the grievant " In E. L. Mustee & Sons, 215 NLRB 203 (1974), it was found that "[T]he duty to fairly repre- sent includes 'the duty to act as an advocate for the grievant ' Failure to discuss the case with [the grievant] was not mere negligence , it was a reckless disregard of his rights" See also Sargent Electric Co , 209 NLRB 630 (1974) 40 See G C Exh 23 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Also indicative of the temporaries' lack of knowl- edge71 is the letter Higgins wrote' Windsor on 12 Janu- ary 1985, which stated, "I had no knowledge of a regula- tion making it obligatory for lab temporaries to be on stand-by for all shifts on Saturday and Sunday." (See G.C. Exh. 19.) The alterations in the agreement sent Fisher, including salutation, the first paragraph and deletion. of paragraph 6, are found to be by design and intended to mislead the employee. Windsor's explanations for the alterations are not credited based on demeanor and inherent probabil- ities derived from his false and misleading statements. There was no need shown for altering the addressee and first paragraph. Respondent did not send Fisher a cover letter indicating that the agreement was modified to re- flect it was sent to all quality control temporary. employ- ees to advise them of a change in the scheduling pro- gram as of 18 November 1981. Fisher did not learn of the alterations until the arbitration of her discharge. The E-Board was incorrectly informed that such a missive was sent and assumed that she had not received the mail- ing. This deliberate misrepresentation may have influ- enced the E-Board in this decision against Fisher and be- speaks bad faith by Windsor. These deliberate misrepre- sentations precluded fair consideration of the grievance by the Company and the E-Board. An earlier misrepresentation by both Mathison and Windsor is when they told Fisher and the Company the employees requested they be available for all six shifts on the weekends and voted on it at a union meeting. Both admitted in their testimony that there was no such vote. These misrepresentations further supported the Compa- ny's position and undermined Fisher's defense. The fair consideration of Fisher's defense, as well as her preparation for both the E-Board hearing and arbi- tration proceedings were further undermined by Wind- sor's failure to inform her and the E-Board of paragraph 6 of the agreement and the proposed terms of the coun- seling. Paragraph 6 of the 18 November 1981 agreement provides: 6. I understand your concern for temporary em- ployees not scheduled for the weekend being una- bailable [sic] for call under this system. It is my intent to discuss any problem in this regard with you at the time it occurs. In the meantime, it is my understanding that, although you will be keeping track of weekend unavailability, you do not intend to count it as strictly as you do for weekday un- availability. Windsor insists he deleted the paragraph from the doc- ument he sent Fisher because he feared misunderstanding to the employee's detriment. Logan maintained the para- graph meant the Company would be more lenient re- specting excuses for unavailabilities on the weekend than during the week. Logan disclaims that the paragraph 71 Respondent's argument, that the grievances filed by Fisher betoken her knowledge of the rule, is found unpersuasive for it only reflects an imprecise and erroneous understanding of the use of seniority in calling temporaries, not their obligations to be available for all six weekend shifts evinces an intent to be more lenient on the number of unavailabilities. This issue of contract interpretation may very well have induced the E-Board to take Fisher's counseling to arbitration. The failure of Respondent to give Fisher or the E-Board a copy of the agreement prior to or during the E-Board meeting precluded con- sideration of the matter. The deletion of this paragraph also deprived Fisher of a potentially effective argument before the arbitrator. Windsor's claim, that his decision not to arbitrate the "mere" counseling of Fisher was based on a good-faith assessment of the circumstances, is belied by his failure to inform Fisher and the E-Board of the terms of the counseling. The E-Board gave as a reason for its support of Windsor's decision not to arbitrate that such a deci- sion would be subject to ridicule for bringing a counsel- ing to arbitration. The fact that the decision may have been based on its assessment of the discipline as not jeop- ardizing future employment was caused by Windsor's failure to give Fisher and the E-Board the information. The nature of the proposed discipline was unknown and unappreciated at the time the E-Board rendered its deci- sion. Fisher could not argue the point for she was unin- formed. It was clear from the E-Board's announced position that it did not appreciate the potential impact of the counseling on Fisher's future employment. Yet Windsor did nothing to disabuse Fisher or the E-Board of the in- correct assumption. As the Company pointed out, tempo- rary employees were not subject to suspension as a disci- pline for such action was antithetical to the purpose of the temporary employee program. Windsor did not claim ignorance of this company practice. Thus the potential of loss of employment by Fisher based on the caution in the counseling was great and it is found Windsor knew and should have appreciated and related this threat. I find that Windsor had an affirmative duty to inform Fisher and the E-Board of the potential loss of employment from one more unavailability within a 9-month period. If the potential discipline was explained to her, she might have been more assiduous in her actions. Also, if the E- Board was informed, it might have rendered a different decision. See King Soopers, Inc., supra, 222 NLRB at 1019, and Groves Granite, 229 NLRB 56 (1977). Respondent's bad faith continued in its representation of Fisher at the arbitration. Windsor insisted that she not raise the issue of lack of knowledge and deliberately mis- informed her about the contents of the agreement to pre- clude the raising of a potentially persuasive defense, paragraph 6. To ensure that the defense was not raised, Windsor threatened withdrawal of union representation at the arbitration. Windsor admitted that the representa- tive would be silent. He did not explicate how a silent representative could be an advocate for a member during the arbitration. This threatened withdrawal of represen- tation further hindered Fisher in the presentation of his position at the arbitration. Fisher's eventual acquiescence to Windsor's representation of her at the arbitration was not alleged nor is it found to constitute a waiver of her right to fair representation. The arbitrator assumed Fisher knew of the six-shift weekend availability rule, TEAMSTERS LOCAL 896 (ANHEUSER-BUSCH) denied her backpay, and retained the two October 1983 unavailabilities on her record. The deliberate misleading of the disciplined and eventually discharged employee, Fisher, violates the Union's duty of fair representation. In Teamsters Local 282 (Transit-Mix Concrete), 267 NLRB 1130 (1983), the Board held at 1131 "that a union's duty of fair representation imposes on it the duty not to purposely keep employees uninformed or misin- formed concerning their grievances or matters affecting employment." Citing Auto Workers Local 417 (Falcon In- dustries), 244 NLRB 527 (1979). This holding was reaf- firmed recently by the Board in Painters Local 1310 (Toledo Scale), 270 NLRB 506 (1984). The Union sets forth no rational basis for its failure to inform Fisher of the negotiated agreement or its actions, which misinformed her concerning her defense to disci- plinary actions and undermining her presentation of her defense during grievance and arbitration proceedings. There is no need to find animus related to Fisher's union activity to establish a breach of duty to represent her fairly. Pacific International Express, supra. However, there is background evidence of hostility and personal malice held by Windsor against Fisher.72 Windsor admit- ted he tried to determine who filed the petition with Lewis for contract changes, thus bypassing Windsor, which may indicate the basis for Windsor's perfunctory, arbitrary, and bad-faith method of handling Fisher's grievance and arbitration proceedings and altering the document. Bottle Blowers Assn. Local 106 (Owens-Illinois), 240 NLRB 324 (1979). Windsor's view of Fisher clearly tainted his handling of her grievances and the arbitration, and his action ex- ceeded arbitrariness amounting to lack of good faith. Even though the evidence of personal animosity is cir- cumstantial, it warrants a finding of ill will based on his belief that Fisher was an active opponent of the original temporary program agreed to by the Union who vocifer- 42 For example, during the 8 December step 2 grievance meeting, after Fisher raised the defense of lack of knowledge, Mathison joined the as- semblage, and Windsor, without any apparent cause, said that someone spoke Mathison's name in vain, an allegation Fisher felt constrained to deny Also, immediately after the 8 December 1983 union meeting, Fisher asked Windsor for a copy of the minutes of the October 1981 meeting of temporary employees and the just-completed union meeting. Windsor said there were no minutes of the 1981 meeting and she would have to ask Batz , who was standing next to Windsor, for the other min- utes She then asked Batz for a copy Batz replied that he worked for Windsor and if he said no, then his answer was no . Windsor did not dis- pute this testimony nor did he explain why he gave Fisher a runaround instead of directing Batz to provide her a copy of the minutes for the just concluded union meeting These statements demonstrate attitudinal dispo- sitions clearly indicating vindictive disposition toward Fisher Further, Windsor's personal animosity was reflected in statements he made to Ridosh about a meeting that occurred on 8 March 1984, which resulted in about 10 employees receiving reprimands. Windsor, according to Ridosh's credited testimony, accused Fisher of being the ringleader who set up the meeting Ridosh told him it was not true and accused Windsor of "always [wanting] to jump on Bonnie or me for problems " Windsor did not recall mentioning Fisher's name but admitted anger over the incident and thinking Fisher "might have been the one who set up the meeting " Finally, according to Sylwesiuk's undisputed testimony, the rumor among the employees was that the Union wanted to know who sent the petition to Klare, "because they were very mad " Fisher's outspoken op- position to the 1981 agreement reflected in the original contract would make her a prime suspect and, as noted by Ridosh, Windsor had a tend- ency to blame Fisher 577 ously protested that provision by filing a petition with Klare. Bottle Blowers Assn. Local 106 (Owens-Illinois), id. It is concluded from the above that Respondent violat- ed Section 8(b)(1)(A) of the Act by refusing to fully and fairly process Fisher's grievances; failing to provide rele- vant information directly contributing to her loss of em- ployment and threat of withdrawal of representation. The General Counsel included in its brief the following quote from Kesner v. NLRB, 532 F.2d 1169 (7th Cir. 1976), cert. denied 429 U.S. 1022: It is one thing for a grievant to attempt to pursue his remedy without [union] assistance and opposed only by one adversary. When that situation is com- pounded by two opponents, one of whom is sup- posedly his "own people," the bearing on the likeli- hood of his success assumes substantial significance. When one's own representative . . . proclaims a lack of merit, it is indeed likely to be a coup de grace to the claim. [Id. at 1175.] In this case, the employee was much more disadvantaged by the willful misstatements and misrepresentations of her assumed "advocate." In sum, it is found Respondent, Local Union No. 896, International Brotherhood of Teamsters, has engaged in unfair labor practices affecting commerce within the meaning of Sections 8(b)(1)(A) and 2(6) and (7) of the Act. CONCLUSIONS OF LAW 1. Anheuser-Busch, Inc. is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent, Local Union No. 896, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor orga- nization within the meaning of Section 2(5) of the Act, and at all times material herein has been the exclusive representative of certain employees of the Employer for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 3. By processing Fisher's grievances in a perfunctory and arbitrary manner, and by failing to provide Fisher pertinent information and misinforming her about con- tractual provisions and other relevant facts, Respondent acted arbitrarily and in bad faith, thereby breaching its duty of fair representation in violation of Section 8(b)(1)(A) of the Act. 4. The foregoing unfair labor practices affect com- merce within the meaning of the National Labor Rela- tions Act. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices in violation of Section 8(b)(1)(A) of the Act, I recommend that it cease and desist there- from and take certain affirmative action designed to ef- fectuate the policies of the Act. Respondent, by its actions, has raised uncertainty whether that grievance pertaining to the reprimand prior to Fisher's discharge would have been found to be meri- 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD torious and there is uncertainty whether an attempt di- rected now to proceed with the grievance would be con- sidered timely. These uncertainties are due to Respond- ent's past failure to provide full, fair, and conscientious representation; because the reprimand, which was re- duced to a counseling, was the underpinnning for her discharge, and to find otherwise may relieve Respondent of all monetary responsibility. When, as here, the uncer- tainty has been caused by the Union's unlawful action and when, as here, such an uncertainty requires restitu- tion for the purposes of determining monetary responsi- bility, the question is resolved in favor of the wronged, not the wrongdoer. See King Soopers Inc., supra at 1020; Laborers Local 89, 230 NLRB 638 (1977). It will be pre- sumed that the grievance about the reprimand would have been found to be meritorious and would have re- sulted in the removal of those unavailabilities from Fish- er's personnel record or the permitting of more than one more unavailability before disciplinary action was taken. Thus I also recommend that Respondent ask the Compa- ny, Anheuser-Busch, Inc., to remove from its files any documents or references to Fisher's reprimand of 14 No- vember 1983 and her discharge on 2 May 1984 and the basis for these actions. Because Respondent's actions also tainted the arbitra- tion proceedings, which resulted in Fisher's losing 2 weeks' pay, it is assumed Fisher's grievance would have been found meritorious and she would have been rein- stated with backpay. The failure of the record to indicate if the backpay remedy utilized in arbitration included in- terest requires deferral of this issue to the compliance proceeding. Respondent will be required to post the ap- propriate notice. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed73 ORDER The Respondent, Local Union No. 896, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Failing to fully inform members in the unit it repre- sents of the changes in the collective-bargaining agree- ment it regulated with Anheuser-Busch, Inc. (b) Willfully failing to inform Bonnie Crow-Fisher and other union representatives about the terms and condi- tions of a proposed resolution of grievances. (c) Willfully misinforming Bonnie Crow-Fisher or any other employee or entity regarding the terms and condi- tions contained in the aforesaid modification of the con- tract. (d) Interfering with, restraining, and coercing Fisher in the arbitration of her discharge grievance by preclusion 73 If no exceptions are filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses of presentation of defenses by willful misrepresentation and threat of withdrawal of representation. (e) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Make Bonnie Crow-Fisher whole for all loss of earnings resulting from the failure of fair representation by payment to her of a sum of money to which she is entitled as set forth in the remedy section of this deci- sion. (b) Remove from its files and ask the Employer to remove from its personnel records any references to Fisher's reprimand of 18 November 1983, which was re- duced to a counseling, and her discharge of 7 May 1984. (c) Post at its offices and meeting halls copies of the attached notice marked "Appendix."74 Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to members are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Furnish signed copies of the notice to the Regional Director for Region 20 for posting by Anheuser-Busch, Inc., the employer being willing, at all locations where notices to employees are customarily posted. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 04 If 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 Nation- al 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 " APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. WE WILL NOT fail or refuse to afford any member full and fair representation in the processing of grievances by acting arbitrarily, perfunctorily or in bad faith. WE WILL NOT fail to duly inform employees we repre- sent of changes or modifications in the collective-bar- gaining agreements we have with Anheuser-Busch and WE WILL NOT Willfully misrepresent that such employees were informed of these changes. WE WILL NOT deliberately misinform our members, the Employer or other agents and representatives of the TEAMSTERS LOCAL 896 (ANHEUSER-BUSCH) Union about terms and conditions of employment con- tained in the collective-bargaining agreement we have with Anheuser-Busch. WE WILL NOT fail to inform our members and other union representatives of the terms and conditions of pro- posed resolutions of grievances. WE WILL NOT in any like or related manner restrain or coerce our members in the exercise of rights guaranteed by Section 7 of the Act. WE WILL notify her that we have removed from our files, and have asked Anheuser-Busch to expunge from 579 its records all references to Bonita Cr iw- Fisher's repri- mand of 14 November 1983 and her discharge of 7 May 1984. WE WILL make Bonita Crow-Fisher whole for the wages and other benefits she lost due to our conduct. LOCAL UNION No. 896, AFFILIATED WITH INTERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA