Graphic Communications International Union, Local 388

1128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Graphic Communications International Union, Local 388, affiliated with Graphic Communications International Union, District Council No. 2 (Georgia Pacific Corporation) and Patrick J. Gallagher, Jr. Case 32-CB-2691 29 January 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On 30 September 1987 Administrative Law Judge Frederick C. Herzog issued the attached de- cision. The Respondent filed exceptions and a sup- porting brief. 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 brief and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order as modified. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Graphic Communications International Union, Local 388, affiliated with Graphic Commu- nications International Union, District Council No. 2, Modesto, California, its officers, agents, and rep- resentatives, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(b). "(b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the attached notice for that of the administrative law judge. ' 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 While we agree with the judge's conclusion that Grievance Commit- tee Member Ken Stanfill was an agent of the Union, we do not rely on those cases cited by the judge in sec I11,13, par 6 of his decision In- stead, we rely on Teamsters Local 886 (Lee Way Freight), 229 NLRB 832 (1977), enfd mem 589 F 2d 1116 (D C Cir 1978) 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 ordered us to post and abide by this notice. WE WILL NOT threaten employees with reprisals, or less than fair representation in the processing of future grievances, on -account of employees having filed charges against us with the National Labor Relations Board, or because employees have called into question our internal election procedures or re- sults. WE WILL NOT in any like or related manner re- strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, instead, represent all employees fairly and fully, basing our representation on consider- ations which are free from arbitrary, capricious, or invidious factors. WE WILL process further grievances of Patrick J. Gallagher Jr. and all other members in accordance with the standard set forth above. GRAPHIC COMMUNICATIONS INTER- NATIONAL UNION, LOCAL 388, AF- FILIATED WITH GRAPHIC COMMUNI- CATIONS INTERNATIONAL UNION, DISTRICT COUNCIL No. 2 Barbara D. Davison, Esq., for the General Counsel. Deane Western, Esq., of La Habra, California, for the Re- spondent. DECISION STATEMENT OF THE CASE FREDERICK C HERZOG, Administrative Law Judge This case was heard in trial before me in Ceres, Califor- nia, on 1 September 1987, and is based on a charge filed by Patrick J. Gallagher Jr (Gallagher) about 3 June 1987 alleging generally that Graphic Communications International Union, Local 388, affiliated with Graphic Communications International Union, District Council No. 2 (Respondent) committed certain violations of Sec- tion 8(b)(1)(A) of the National Labor Relations Act (the Act). About 9 June 1987 the Regional Director for Region 32 of the National Labor Relations Board (Board) issued a complaint and notice of hearing alleging violations of Section 8(b)(1)(A) of the Act. Respondent filed a timely answer thereto. All parties appeared at the hearing, all except Galla- gher through counsel, and were given full opportunity to participate, to introduce relevant evidence, to examine 287 NLRB No. 107 GRAPHIC COMMUNICATIONS LOCAL 388 (GEORGIA PACIFIC) 1129 and cross-examine witnesses , to argue orally , and to file briefs Based on the allegations of the parties as amended at the trial, the record, my consideration of the briefs filed by counsel for the General Counsel and counsel for Respondent, and my observation of the demeanor of the witnesses, I make the following grievances would secure no help from the Union, and that, several months later, in June or July 1987, Re- spondent imparted to employees that it would exact re- prisals against an employee who had earlier filed a charge against Respondent with the Board . Respondent denies all such contentions FINDINGS OF FACT I. BUSINESS OF THE RESPONDENT The complaint alleges, the answer admits , and I find that Georgia Pacific Corporation (the Company) is a Georgia corporation with an office and place of business in Modesto, California, where it has been engaged at all relevant times in the nonretail manufacture and sale of paper boxes ; that during the 12 months preceding the is- suance of the complaint , the Company has, in the course and conduct of its business operations, purchased and re- ceived goods and services valued in excess of $50,000 di- rectly from suppliers located outside the State of Califor- nia, and that the Company has been and is, by virtue thereof, at all times material , an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. It. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits , and I find that Respondent is now, and at all times relevant, has been, a labor organization within the meaning of Section 2(5) of the Act. III THE ALLEGED UNFAIR LABOR PRACTICES A The Act's Provision Section 8(b)(1)(A) of the Act states, in relevant part, that: "It shall be an unfair labor practice for a labor or- ganization or its agents-(1) to restrain or coerce (A) employees in the exercise of the rights guaranteed in Section 7 . . Section 7 of the Act provides that- Employees shall have the right to self-organiza- tion, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection , and shall also have the right to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as au- thorized in section 8(a)(3). B. Contentions of the Parties Counsel for the General Counsel contends that in March 1987 Respondent, through an agent, told employ- ees that other employees were troublemakers , were filing invalid grievances, and, because thereof, would not get representation in future grievances; that a few days later Respondent , through an agent, imparted to employees that employees who sided with other employees in filing C The Facts The parties are in agreement that Respondent and the Company are currently parties to a collective-bargaining agreement covering a unit of employees employed by Respondent at its facility in Modesto , California. Obvi- ously that agreement contains a grievance procedure, be- cause the parties are in further agreement that one Ken Stanfill (Stanfill), acting on behalf of Respondent at the facility, occupied the position of Respondent 's grievance committee member at all times material . Evidently this position coincides with that set forth in section 25 of the collective-bargaining agreement, introduced into evi- dence, which refers to members of a "shop committee," these being members of the employee complement elect- ed by other employees to represent employees for the specific purposes stated within the collective -bargaining agreement. Gallagher testified that he is an employee of the Com- pany, having worked there for 11 years, and is currently a member of the Union He testified that there was an election in January 1986 to elect members of the shop committee and that Stanfill is one such committee person. Following the January 1986 election , Gallagher drew up and circulated a petition , so he testified , challenging the validity of the election At some point in 1987, he filed and subsequently withdrew a charge relating there- to with the National Labor Relations Board. Employee Patrick Gillis testified that sometime in March 1987 he was present at a conversation between Stanfill, Harry Wheeler (another shop committee member who works as a mechanic ), and possibly one other employee named Bruce Fountain According to Gillis, he entered a room and overheard a conversation between Stanfill and Wheeler, in which Stanfill com- mented that Gallagher and another employee named Joe Fernandez were troublemakers, that they were filing "no-account grievances," and that the next time they filed grievances they would not get any representation. According to Gillis, he had heard Stanfill state that Gal- lagher was a troublemaker on other occasions as well. Employee Vito Paxia testified that while working during March 1987, he was present at a supervisor's office around 10 30 one evening. Also present were two supervisors named Davidson and Jones, as well as Stan- fill While there Paxia observed another employee named Pasad walk into the office and complain about being pulled off a machine and put onto another machine Paxia recalled jokingly remarking to Pasad, "Well, why don't you file a grievance?" According to Paxia, Stanfill responded by saying , "Yeah. Go ahead and file a griev- ance and you might get something done out of that." Paxia recalled rejoining to the effect that Pasad should file a grievance and see how far he got. He recalled 1130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Stanfill then stating, "Yeah, why don't you ask Pat Gal- lagher and see how much help you are going to get" According to Paxia, the Gallagher remark was accompa- nied by profanity in reference to Gallagher. Paxia also recalled that in May or June 1987, he once again overheard Stanfill refer to Gallagher in a conversa- tion. The conversation was in the same place, evidently the supervisor's office. According to Paxia, someone named Censio came in, seemingly happy, telling another employee, Skip Powell, that Gallagher had dropped the case (evidently referring to his unfair labor practice charge) and "that they were going to make an example out of Gallagher for messing with the Union " During cross-examination and redirect it became unclear just who Paxia thought had been talking to Powell, Censio, or Stanfill In any event, Paxia stood by his testimony that Powell made the statement to the effect that an ex- ample was to be made out of Gallagher and that Stanfill agreed with this position stated by Powell. Stanfill testified that during March 1987, he never had any conversation with Wheeler regarding grievances having to do with Gallagher or Fernandez However, he did recall that he was later present in an office with Da- vidson, Jones, and Paxia and that Pasad complained about being taken off of a machine and Paxia suggested to him that he file a grievance. Although no grievance was ever filed according to Stanfill, Paxia told Pasad to go ahead and file a grievance and the Union would "screw him around like they did him." Stanfill testified that he then rejoined that that would happen if Pasad had Gallagher as a witness, as Paxia had He denied saying anything threatening about Gallagher Stanfill denied stating during another conversation that he would see to it that the Union, in effect, unfairly denied Gallagher opportunity to work overtime. Stanfill recalled that toward the end of May or early part of June, he was in an office when Powell walked in. He recalled that Powell complained about the Union spending money on matters he considered nonmeritor- ious, evidently referring to Gallagher's unfair labor prac- tice charge. According to Stanfill, he responded mildly only to the effect that it was his understanding that the matter had been dropped Stanfill denied generally ever having threatened Galla- gher in any way as far as processing of any grievance that he might file D Analysis and Conclusions Notwithstanding the fact that much about this case seems unclear, possibly even trivial, I must deal with it because I have determined that the testimonial demeanor of Gillis and Paxia was superior to that of Stanfill. Ac- cordingly, I have determined to credit the testimony of Gillis and Paxia where it conflicts with that of Stanfill. It follows that I accept as true that on two occasions in March 1987, and on one other occasion in late May or early June 1987, one or more employees overheard Stan- fill make remarks concerning Gallagher. Gallagher had theretofore become involved in contro- versy with the Union. This grew out of his concern that a union election had not been conducted properly or that its results had not been counted properly Gallagher thereafter filed a charge, albeit one that was subsequently withdrawn, with the Board against the Union Thus, I am inclined to agree with counsel for the General Coun- sel's position that the Union and its agents may well have had reason during early and mid-1987 to view Gallagher with some animosity But even if this was not true, a union fails in its statu- tory duty if its actions fall short of representing all its employee-members in a fair and impartial manner The standard for the finding of such violations of the Act is that a union is not free to deal with a member's griev- ance in an arbitrary, discriminatory, or less than good- faith fashion. Vaca v. Sipes, 386 U S 171 (1967); Miranda Fuel Co, 140 NLRB 181 (1962). And, regardless of whether a grievance is processed or is proceeding toward a path leading to arbitration, a union is obliged to deal with it, and with members, in a manner free from invidious, arbitrary, or discriminatory motives. A union's refusal, or threat to refuse, to process a grievance be- cause the grievant engaged in protected activity that the union considered disloyal is a breach of the duty of fair representation because the processing of the grievance is not free from discriminatory motives Plumbers Local 58 (Columbia Mechanical), 250 NLRB 75 (1980); Electrical Workers IUE Local 485 (Automotive Plating), 170 NLRB 1234 (1968). Thus, it is readily seen that the fact that Gallagher prepared and circulated a petition calling into question the validity of a union election constituted protected ac- tivity, and may well have provoked animosity toward himself among officers or agents of the Union. But, if there were such animosity, and if such animosity were to have been evidenced in the Union's further dealings with Gallagher, the impediment on employees' rights under Section 7 would be clear In any event, having determined to credit the testimo- ny indicating that Stanfill made statements in which there was the express or implicit threat to refuse to fairly process future grievances filed by Gallagher or others, in order to make an example of Gallagher for "messing with the Union" constitutes an immediate and direct re- straint and coercion of Gallagher, and others, in the ex- ercise of their rights guaranteed by Section 7 The same considerations apply with respect to testimony concern- ing Stanfill's threat to retaliate because of Gallagher's having filed a charge against Respondent with the Board All this is predicated on my view, and finding that Stanfill was sufficiently vested with apparent authority by the Union to serve as basis for my finding that he was serving as agent It seems to me that counsel for the General Counsel's argument is well taken to the effect that the position occupied by Stanfill is one which is suf- ficiently linked to Respondent to warrant a finding that Stanfill was reflecting to employees the Respondent's policy and was speaking on Respondent's behalf Air- borne Freight Corp., 263 NLRB 1376 (1982), Season-All Industries, 276 NLRB 1247 (1985), Bristol Textile Co., 277 NLRB 1637 (1986). GRAPHIC COMMUNICATIONS LOCAL 388 (GEORGIA PACIFIC) 1131 Accordingly, I find that counsel for the General Coun- sel has sustained the burden of proving the allegations of the complaint, as amended. CONCLUSIONS OF LAW 1 The Company is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3 By threatening to process grievances or otherwise to represent employees in a manner not free of arbitrary, capricious, and invidious considerations, Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed' ORDER The Respondent, Graphic Communications Interna- tional Union, Local 388, affiliated with Graphic Commu- nications International Union, District Council No. 2, Modesto, California, its officers, agents, and representa- tives, shall 1. Cease and desist from (a) Threatening to fail and refuse to represent employ- ees in processing their grievances, free from arbitrary, capricious, and invidious considerations, or in an attempt to make an example of employees because they have filed charges with the Board against the Union or have called into question the Union's internal election proce- dures (b) 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) Process grievances fairly for all employees and give no consideration to arbitrary, capricious, or invidi- ous factors, such as whether employees have filed charges with the Board against the Union or have called the Union's internal union election procedures into ques- tion. (b) Post at its facilities and meeting halls, copies of the attached notice marked "Appendix."2 Copies of the notice, on forms provided by the Regional Director for Region 32, 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. (c) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. All outstanding motions that are inconsistent with the terms of this Order are overruled If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec 102 48 of the Rules, be adopt- ed by the Board and all objections to them shall be deemed waived for all purposes 2 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 "