Laborers Union No 324, Laborers International Union Of North America, Afl-Cio (Fluor Constructors)

128 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Laborers Union No 324, Laborers International Union of North America, AFL-CIO (Fluor Constructors) and David Herrera Northern California District Council of Laborers, Laborers International Union of North America, AFL-CIO and David Herrera Cases 32-CB- 2501 and 32-CB-2580 December 30, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On January 27, 1988, Administrative Law Judge Clifford H Anderson issued the attached decision The General Counsel filed exceptions and a sup porting brief, and the Respondents each filed cross- exceptions and answering briefs 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, I and conclusions2 and to adopt the recommended Order i The General Counsel has excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administra tive 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 re versing the findings Further to the extent that the judge relied on his assessment of the probabilities of certain testimony based on our review of the record we find that the General Counsel has not shown that the version of the events as testified to by Charging Party Herrera and Gen eral Foreman May is any more probable than that credited by the judge In sec III C 3 par 5 the judge found that Local Union Business Man ager Evans had not acted unreasonably at the arbitration in referring to the International s position on Herrera s grievance in his opening state ment because it was essentially certain and it in fact did occur that the Employer would raise the Internationals position to support its case and Evans sought to diminish the effect of this position on the arbitrator by noting it first The record does not support a finding that the Employer raised the Internationals position at the arbitration We nonetheless find that the judge drew a fair inference of Evans motive for making the opening statement particularly as the evidence shows the Employer was aware of International Representative Weatherl s previous statement uidi cating that he saw little or no merit in Herrera s grievance Further in sec III C 3 par 6 the judge found that the statement by the Employers representative Shoupe at the arbitration that the Union had indicated complete agreement with Herrera s discharge was a refer ence to the International s position on the grievance The judge further concluded that the union officials at the arbitration remained silent in the face of this statement because it was true Our review of the record mdi cater that Shoupe s statement was not a reference to the Internationals position but to a conversation with the Local s business agent Allen shortly after the Employer decided to discharge Herrera However it is not clear from the record whether Shoupe at the arbitration was stating that the Union had agreed with the discharge on its merits or had agreed that all the procedural requirements for a discharge had been met Thus contrary to the General Counsels assertion we do not find that the union officials silence indicated to the arbitrator that the Local agreed with the Employers reasons for firing Herrera 2 In agreeing with the judge s conclusion that International Representa tive Weatherl s statements fell within the discretion allowed union repre ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed sentatives in their handling of grievances we rely on precedent establish ing that at the early prearbitral stages of a grievance union representa tives are not held to the same duty of advocacy required at the arbitra tion stage See e g Hotel & Restaurant Employees Local 64 (HLJ Man agement) 278 NLRB 773 fn 3 (1986) Because we affirm the judge s conclusion that there was no violation of the Act we find it unnecessary to pass on his statement that [w]ere it necessary to do so he would have found that Respondent Local Union and Respondent District Council were joint representatives of the unit employees and his implication that if the alleged unfair labor practices had been established the Respondents would have been jointly liable Ariel Sotolongo Esq , for the General Counsel Paul D Supton and Victor J Van Bourg Esqs (Van Bourg Weinberg Roger & Rosenfeld), of San Francis co, California for the Respondents DECISION STATEMENT OF THE CASE CLIFFORD H ANDERSON Administrative Law Judge This matter was tried before me in Oakland, California on July 28 and 29 and August 17, 1987 The cases arose as follows On December 8, 1986 David Herrera an individual filed a charge docketed as Case 32-CB-2501 against La borers Union No 324 Laborers International Union of North America, AFL-CIO (Respondent Local, the Local Union, or Local 324) On January 30 1987 the Regional Director for Region 32 issued a complaint and notice of hearing against Respondent Local based on that charge On February 24, 1987 Herrera filed a charge docketed as Case 32-CB-2580 against the Northern Cali fornia District Council of Laborers Laborers Interna tional Union of North America AFL-CIO (Respondent District Council and, with Respondent Local Respond ents or the Unions) The Regional Director on March 4 1987 issued an order consolidating cases consolidated complaint and notice of hearing consolidating the allega tions of the latter charge with those of the previously issued complaint The consolidated complaint was amended by the Regional Director on May 29 1987 Timely answers were filed to the complaints In essence the consolidated complaint as amended al leges that Respondents owed a duty of fair representa tion to Herrera in his employment with Fluor Construc tors which duty was violated More particularly, the complaint alleges that Respondents failed and refused to properly investigate Herrera s grievance concerning his discharge by Fluor and further failed to properly repre sent Herrera at an arbitration hearing concerning this grievance The consolidated complaint alleges this con duct by Respondents was based on Herrera s intraunion political activities and/or for other arbitrary and bad faith reasons and further alleges that such conduct vio lates Section 8(b)(1)(A) of the National Labor Relations Act Respondents deny both the alleged acts of miscon 292 NLRB No 25 LABORERS LOCAL 324 (FLUOR CONSTRUCTORS) 129 duct and the legal conclusion that a violation of the Act would result from the conduct alleged All parties were given full opportunity to participate at the hearing to introduce relevant evidence, to exam the and cross examine witnesses , to argue orally and to file posthearing briefs On the entire record, including my observation of the witnesses and their demeanor as well as the posthearing briefs submitted by Respondents and the General Counsel , I make the following FINDINGS OF FACT I JURISDICTION At all times material, Fluor Constructors Inc (the Employer or Fluor), a Delaware corporation with an office in Irvine, California , and a construction jobsite at Rodeo, California has been engaged as a general con tractor in the building and construction industry Fluor annually in the course and conduct of its business oper ations, purchases and receives goods and services valued in excess of $50,000 directly from suppliers located out side the State of California As a consequence, the Em ployer is, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II LABOR ORGANIZATIONS Laborers Union No 324 Laborers International Union of North America, AFL-CIO has at all times material been a labor organization within the meaning of Section 2(5) of the Act Northern California District Council of Laborers, Laborers International Union of North Amer ica AFL-CIO has at all times material been a labor or ganization within the meaning of Section 2(5) of the Act Laborers International Union of North America AFL- CIO has at all times material been a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Relationship Between the Employer and Respondents The constitution of Respondent District Council at ar title II, section 2, Powers, subparagraph (d), empow ers it To negotiate, bargain for and enter into understand ings and agreements with employers for and in behalf of its affiliated Local Unions and to enforce and police the observance thereof by employees and employers Local Union and their members Respondent Local is empowered by the project agree ment to appoint union stewards on the jobsite and at rel evant times has done so As set forth in greater detail infra, regarding the Herrera matter, officials of both Re spondents were involved in arranging the arbitration The costs of the arbitration apportioned to labors side were borne equally by Respondents 2 Arguments analysis and conclusions The General Counsel contends Respondents jointly represented Herrera and other project agreement unit employees or at the very least if either was the sole rep resentative, the other was an agent of the representing Respondent Respondents argue that the District Council was nei ther the representative of project agreement employees nor played an active role in the events at issue here Re spondents emphasize the minor role Respondent District Councils agent Thomas had in the events and his igno rance of Herrera s intraunion activities In view of my conclusions respecting the conduct of Respondents infra it is not necessary to resolve the dif ferences respecting the specific identity of the employ ee s representative for purposes of collective bargaining Were it necessary to do so, I would agree with the Gen eral Counsel that the project agreement itself, to which both Respondents are signatory , constitutes recognition by Fluor of Respondents as joint representatives The fact that the District Council may not have taken an active role in representing employees is immaterial to a determination of joint representative status where as here the District Council had the power to assume such a role 1 Facts Commencing in 1985 and extending into 1987, the Em ployer was engaged in the construction of a steampower plant isomerization unit for Union Oil Company of Cali forma at its Rodeo California refinery (the Rodeo site) The Employer entered into a project agreement with various local unions, district councils, and trade councils Included among the labor organization signatories to the project agreement were both Respondent Local and Re spondent District Council The project agreement at article 10 2 states The Contractor recognizes the Building Construc tion Trade Council and the National or Internation al and their affiliated Local Unions signatory hereto as the sole and exclusive collective bargaining rep resentatives for its craft employees employed on the project B The Events Involving Herrera 1 Background David J Herrera has been a member of Respondent Local 324 for several years He unsuccessfully sought local union office in 1981 and 1984 ultimately succeed ing in his quest after the events in question here in 1987 Throughout the relevant period he has been identified with a group or faction within the local union that was opposed to Respondent Local s incumbent officials in cluding the officials involved here In 1983 Herrera felt himself to be constructively dis charged by an employer His termination and the termi nation of other employees at that time were the subject of an initial arbitration on the merits of a grievance and a second arbitration concerning the quantification of the remedy ordered in the original arbitration Although on 130 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD this record there is no suggestion that either the initial arbitration or the subsequent proceedings were other than successfully concluded, it is clear that Herrera did not fully comprehend the technical aspects of the litiga tion and was not satisfied either with the amount award ed him or with Respondent Local s role in obtaining his recompense Herrera initially testified that he had filed an NLRB charge against the Union regarding those cir cumstances It was subsequently determined that rather, his brother in law, who had also been an employee in the grievance proceedings, had filed a charge only against the involved employer Herrera testified that during his contacts with the Local Union respecting these matters in 1983, the Local Union s business manager Charles Evans, told him that he was lucky that he received a favorable award because he had opposed the Local Union's incumbent leadership Evans denied making these remarks In April 1986, Herrera commenced employment as a general laborer for the Employer at the Rodeo site In August 1986 he was nominated by his fellow workers to be shop steward and was appointed to that position by Respondent Local s business manager Charles Evans Carter Allen business representative of Respondent Local 324 testified that in August 1986 Local Union member Booker Hall, then a foreman at the Rodeo site, came to the Local Union s offices to pay his dues and complained to Allen regarding Herrera s performance as a job steward at the Rodeo site Allen testified that Hall complained that Herrera was not being in the work place and not doing his duties Later that day or the following day, Allen went to the Rodeo site and after contacting Fluor s general foreman Jimmy May and Foreman Booker Hall, met with Herrera in the toolroom in the presence of Hall and May Allen s memory of the conversation was not complete but he testified that he stated to Herrera that his Steward badge didn t give him the right to do other than what the supervisor told him to do Herrera recalled that Carter Allen told him that he had received a complaint that since you became shop steward that you are not doing your job out here Jimmy May s recollection of the conversation was essen tially similar Herrera by all accounts simply responded that he was in fact doing hib job in a proper way and the meeting ended After the meetings participants dis persed, Herrera asked May why the meeting occurred and May told Herrera he guessed that Herrera s foreman Booker Hall had complained to Allen On October 31 Herrera was terminated by the Em ployer assertedly for unsatisfactory job performance and for not accomplishing his work in a timely manner In early October Herrera reported his termination to Business Manager Evans by telephone Herrera testified that he reported to Evans, and subsequently asserted in his affidavit to the Union that he felt that his foreman, Booker Hall held a grudge against him because of Hall s longstanding feud with other members of the Herrera family Evans arranged a meeting on the discharge with employer representatives ' All dates refer to 1986 unless otherwise noted On October 62 Evans and Respondent Local 324 Bust ness Representative Carter Allen met with Herrera at the entrance to the Fluor jobsite and then attempted to go onto the site The Employer s agents would not admit Herrera to the jobsite so Evans and Allen entered with out him and met with Employer Representative John Hartman 3 Allen and Evans asked Hartman about the Employers reasons for discharging Herrera Hartman called in Foreman Booker Hall who told the men that Herrera did not want to take orders and that Herrera had been smoking in restricted areas Evans testified that he then asked Hartman if he could walk around and talk -to some of the guys There was no objection and Evans and Allen walked around the jobsite where they met laborer employee Huey Roy Davis Evans and Allen asked Davis about Herrera s smoking on the job Davis corroborated the Employers contentions adding further that on numerous occasions Herrera was not at his workplace Allen and Evans continued their walk and met Jimmy May May simply told Allen and Evans that he did not know the circumstances of Herre ra s termination A third individual was contacted but, in Evans recollection He didn t give Herrera a good clear clearance either Evans and Allen returned to the Employers office and again spoke to Hartman and the job superintendent Evans asked the Employers repre sentatives to reinstate Herrera with full backpay The Employer declined The parties arranged to hold a later meeting with the participation of a Laborers Internation al Union representative After Allen and Evans left the premises they met with Herrera Evans informed Herrera of the situation and his plans to involve the Internation al s offices The second meeting was held on October 8 at the job site 4 Present on behalf of the Union were Herrera Evans Allen, and Aud Weatherl, representative of the Laborers International Union The Employer was repre sented by Hartman Foreman Hall and Superintendent Shoupe Booker Hall was again called on to report the reasons for Herrera s termination Hall recapitulated that Herrera was frequently not in his assigned work areas, that he was smoking in restricted areas that he did not follow directions, and that on one occasion he had im properly plugged up a catch basin Herrera denied any fault in the catch basin matter He stated that while he had smoked in the lunchroom so had many other em ployees including Hall Herrera denied both being mat tentive to his supervisors orders and being out of his work areas save under direction Following this exchange Aud Weatherl, in Herrera s recollection 5 suggested that s the way it is sometimes and informed Herrera in front of the other participants in highly idiomatic parlance that laborers were obligated to obey their foremen irrespective of the reasonableness of The date of the meeting is set forth on the face of the grievance The events following their entry onto the site are as testified to by Allen and Evans whom as discussed infra I credit in this regard * Although Evans in his testimony places this meeting as occurring on October 17 Herrera s recollection and Evan s recitation of events in his October 17 letter indicates the meeting occurred on October 8 6 Other versions of these events are not at significant variance i LABORERS LOCAL 324 (FLUOR CONSTRUCTORS) 131 such orders The meeting ended with the Employer con tinuing to reinstate Herrera As Evans, Weathers, and Herrera departed , Weather] told Herrera his case was very weak Weather] suggested they should attempt to have Herrera s termination changed to a layoff thus im proving his unemployment compensation status Herrera opposed this tactic stating he did not want to admit the accusations the Employer had made Herrera reasserted that he was fired because of Booker Hall s animosity to his family and asserted he could supply witnesses to that effect Evans suggested that Herrera s hopes respecting the willingness of witnesses to appear and testify in sup port of his claims would surely be disappointed Evans told Herrera that individuals often promise support and then do not show up at a hearing to testify Herrera again asserted to Evans his desire to press the discharge to arbitration and Evans told him it was his right to do so On October 13 Herrera phoned Evans and told him that he had decided he was willing to settle for having his termination changed to a layoff so that he could obtain state unemployment benefits Evans responded that he would check into it Later Evans and Herrera spoke again by telephone Evans informed Herrera that the Company had agreed to change the termination to a layoff 6 Herrera suggested, however that he had now reconsidered his request and that he would once again like to file a formal grievance rather than settle for a simple change in the type of separation notice issued by the Employer Evans told Herrera to come down to the union hall the following day The next day October 14 Herrera met with Evans at the union hall Herrera signed a written statement and a grievance Evans yeas serted that he believed Herrera s grievance was weak and that he had represented employees with grievances that he believed were stronger than Herrera s and had lost them Evans again told Herrera that it was his right to file a grievance and Herrera indicated a desire to proceed Evans subsequently contacted Archie Thomas, assist ant business manager of Respondent District Council, and sought his assistance in arranging an arbitration Thomas on October 21 19,86, reported to all parties that the arbitration was scheduled for November 11 and an arbitrator had been selected 7 The arbitration date was reported to Herrera Ap proximately a week before the arbitration Herrera spoke with Evans by telephone Herrera asked whether union attorney would be participating Evans informed Herrera that the Union would not use an attorney unless the Em ployer did Evans told Herrera that Evans would be han dling the case and that he had experience in thousands of grievances Later a day or two before the arbitra tion, Herrera contacted Evans and asked Evans if he could bring a witness to the hearing and how that would be accomplished Evans told Herrera simply to bring his witness to the arbitration and the conversation ended 6 Evans testified that he had obtained this agreement in a telephone call with the Employers representative 7 Thomas had arranged these matters by contacting both the Employer and an arbitrator On November 11, 1987, the arbitration was held in Re spondent District Councils offices in Richmond Califor nia Present initially were (1) the arbitrator William Riker, (2) the Employers representatives Shoupe Hart man, and Hall and (3) Union Representatives Evans Allen, and Thomas as well as Herrera and May, and la borer employee Dewitt Davis Versions of the opening of the arbitration proceedings differ Herrera testified as follows The first thing that happened the Arbitrator said This meeting will now come to order, and Charles Evans said, Excuse me, I would like for it to be known that the International of the Union has agreed with the decision to terminate Mr Herrera I then stood up and I told them that wasn't to my understanding that the International had agreed with the decision to terminate me I said, That s not true And the Arbitrator then told us to state to sit down, that we would all have our chance to talk So we did Jack Hartman said Chuck Shoupe had a statement that he would like to read and they allowed him to He read from the state ment that he said that after being notified on several occasions of Mr Herrera s work performance he then went to his boss, and they discussed it, and they could not come up with no other conclusion but to terminate Mr Herrera and they-so they then gave their 48 hour notice which was required by the Union to terminate Mr Herrera, and to Carter Allen which he gave his 100 percent ap proval Jimmy May testified as follows The first thing that I remember being said was Mr Charles Evans got up and said Mr Arbitrator, there is something I would like to say before we get started' And he said that Herrera s case had been brought up in front of International with Fluor and they had ruled for the company The Arbitrator said that he thought we should send the witnesses out while we discuss the matter Evans testified that it was initially determined that he should speak first and that he commenced his opening remarks saying that he had gone through steps 1 and 2 of the grievance procedure and didn t get a favorable answer At that point Herrera jumped up and chal lenged his opening remarks saying that they were wrong and that he did not like the way the case was being pre sented Evans recalled that Herrera said that because Herrera and Carter Allen were enemies and because Carter Allen was employed by Evans Herrera did not believe that Evans should be representing him Evans testified he then told the arbitrator it seems that this man wants to represent himself and don t want me to represent him " In Evans' memory, the arbitrator then asked Herrera if he wanted to speak and Herrera indicat ed that he did The arbitrator then told Herrera to put his case in your words the way you want it told and we 132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD are just going to listen to you On direct examination Evans explicitly denied saying to the arbitrator that the International had agreed with the Company Rather Evans indicated that he told the arbitrator that the Inter national had come and investigated and he was still looking for a favorable answer for his member Under cross examination Evans stated that he told the arbitrator that I brought in the International and I wasn t satisfied with the answer Carter Allen testified that he did not specifically recall the opening remarks at the arbitration save that when Evans commenced to speak, he was interrupted by Her rera who indicated that he wanted to speak but he didn t particularly care for the Union speaking for him During the arbitration the Employer called Foreman Booker Hall whose testimony was essentially a recapitu lation of his earlier reports discussed supra Evans did not cross examine Hall Rather at the conclusion of Hall s testimony, he called Herrera who testified in es sential contradiction to Hall explaining the allegations raised as he had before Herrera testified that as he con tinued his testimony at the arbitration to the effect that he did not understand how his work performance could be lacking because he had never received a warning, Carter Allen interrupted him saying, [D]idn t you re member when I went out there and told you you weren t doing your job right? 8 Thereafter, the Employer called Davis to testify, after which Jimmy May was called on behalf of the Union and examined by Herrera At the conclusion of the arbitration hearing Evans made a clos ing statement arguing that Herrera had been unjustly ter minated and sought his reinstatement and backpay The arbitrators decision issued on November 12 1986 The decision stated in part The grievant David Herrera Jr was present and represented himself as well as being represented by Charles K Evans business manager for Local 324 Fluors Contructors Inc was represented by Jack Hartman labor relations manager After having the opportunity of reviewing the entire record the arbitrator has determined that the grievant was discharged for just cause Sometime after the issuance of the arbitration decision Herrera was informed of that fact and went to Respond ent Local 324 s hall to pick up a copy of the decision He there had a conversation with Evans in the presence of Jesse Durant a business agent for Local 324 Herrera testified that Evans gave him a copy of the arbitration decision When Herrera commented that he could not believe the outcome Evans said, in Herrera s testimony If you hang around with losers you 11 always be a loser Herrera recalled the conversation then shifted to a photograph of a political opponent of Evans and Evans disdain for this individual Herrera testified that Evans asked if Herrera would join with Evans on a common political slate in the next union election Herre 8 Allen specifically denied stating at the arbitration that he had previ ously given Herrera a warning or anything to that effect ra declined Herrera left the office and in Herrera s recollection, Evans said to him as he left You even walk like a loser Evans denied seeing Herrera at the time Herrera picked up a copy of the arbitration award Evans further denied making any remarks to Herrera at anytime about being a loser Durant did not testify Herrera later telephoned the arbitrator The arbitrator sent Herrera a letter dated January 2 1987, with copies to all parties stating in part Specifically, you may recall that at the opening of the hearing when you charged that you were being treated unfairly because of a dispute with your union representative and that the foreman you worked for had a grudge against your family and was taking it out on you I gave you the opportu nity in addition to your union representative who was presenting your case, to make an opening state ment examine and cross examine witnesses and to make a final argument Since you have raised the charges, I was of the opinion that they had to be considered and reviewed The decision to deny your grievance was arrived at on the basis of whether or not the company, which had the burden of proof was able to justify their decision to terminate your services for just cause It was and is my considered opinion that the ter mination was for just cause and therefore the de cision was to deny your grievance C Analysis and Conclusions 1 The deferral issue Respondents sought deferral of this matter to the arbi tration decision as augmented by the arbitrator's subse quent letter I regard it sufficient to state that it has long been the Board s position that challenges to the fairness of the arbitral proceeding will be reserved to the Board Here where in effect the challenge to the fairness of the proceeding is the entirety of the General Counsels com plaint no deferral is possible If the conduct of Respond ents is improper the arbitration will not be deferred to If there is no improper conduct there is no violation of that Act and again no basis for deferral 2 Resolution of disputed evidence a General observations In resolving conflicting versions of events it is appro priate to examine the evidence on an event by event basis rather than making blanket determinations respect ing the credibility of any one witness or witnesses It is also true however that patterns or propensities may exist on the part of certain witnesses that may affect the en tirety of their testimony I find this to have been true with respect to two important witnesses in this case, Evans and Herrera First, it is clear that Herrera was not familiar with the technicalities of industrial relations generally or, more LABORERS LOCAL 324 (FLUOR CONSTRUCTORS) 133 particularly, the specific technical aspects of the gnev ance and arbitration process as it involved him over the years Thus, for example, his testimony respecting the specifics of the 1983 grievance arbitration and Board charge related to them was simply wrong Further I find that he simply misinterpreted the comments of the arbitrator in their telephone call I find that at no time did the arbitrator ever offer to or in fact send to either Herrera or the Board the notes he took during the arbi tration 9 Further I find that Herrera throughout his rela tionship with Respondents agents and certain members of Respondent Local tended to take a conspiratorial view of the actions and inactions of those individuals Thus, Herrera believed that his foreman Booker Hall, was engaged in a vendetta against him because of Book er s dislike for his family Herrera expressed similar anxi eties concerning Allen and Evans 10 Second Evans per haps as a result of the fact that he is regularly involved as a labor organization official in grievance and arbitra tion processing and other matters concerning represented employees was unable to accurately recall the chronolo gy of events" or able to describe completely or consist ently his conversations with Herrera A further factor in resolving the conflicting testimony is my evaluation of the probabilities that Respondents agents in their conversations with Herrera would have clearly revealed a blatant animus against him and, in effect, made a confession of the Union's bad faith in processing his grievance Based on this record as ap pears in greater detail infra I am not satisfied by the General Counsels arguments in this regard Rather I accept the contrary arguments of Respondents that it is inherently implausible that the Union s agents, who were allegedly intent on a scheme to subvert the claims of Herrera a while creating the impression that they were acting on his behalf would in such a direct manner confess to a plot against him Finally, in considering the demeanor of all the wit nesses, I conclude that no witness willfully misstated his evidence or did other than truthfully recite the events as he perceived them to have occurred Thus, I reject the arguments of the General Counsel that Evans and Allen lied by denying certain remarks attributed to them by Herrera In making this determination that no witness willfully misrepresented his evidence I also find that Herrera s evidence was honestly given b Specific disputes resolved' 2 Applying the above observations, I find that Herrera, during this period before the events immediately in ques 9 Herrera testified that the arbitrators notes were received by and in the custody of the General Counsel Counsel for the General Counsel as serted that no such notes were in his possession nor had he any cause to believe they had at any time come into the Governments possession 10 The merits of these fears need not be determined there is no doubt Herrera held such views 11 Thus for example as noted supra Evans testimony regarding the dates of grievance meetings was inconsistent with his own correspond ence 12 The bulk of the testimony was not at significant variance Where not otherwise noted the testimony of the witnesses is credited tion here, was not threatened or maligned by agents of Respondents as he testified In rejecting Herrera s test[ mony regarding the 1983 events I find that Herrera simply misperceived the events because of (1) a lack of technical understanding, and (2) of his tendency to view events that he did not understand as part of a concerted plan of action against him Respecting the events concerning Herrera s discharge from Fluor, his subsequent complaints to Respondents and the grievance and arbitration processing, while I take the chronology of events as most accurately por trayed by Herrera I credit Respondent Local s agent Evans respecting the actual events themselves More par ticularly I credit Evans and Allen both on demeanor grounds and on the basis of my general comments supra regarding their activities at the jobsite at the first griev ance meeting Herrera was not allowed on the premises and directly challenged only the amount of time Re spondents agents claimed to have spent on the site Thus I find that Evans and Allen did in fact consult with laborer employees on the site respecting Herrera and that the reports they received were as described At the arbitration I find consistent with the admission of Evans under cross examination and discrediting both Evans more general denials on direct examination and the stronger attributions made by May and Herrera in their testimony that Evans in his opening remarks to the arbitrator stated that the International had been brought into the grievance handling processes and that Evans, was not satisfied with the result I further find that this remark caused Herrera to take immediate and vocal um brage regarding Evans statement and that as a conse quence, Herrera became active in representing himself in the arbitration process as testified to by the parties and described in the arbitrators letter I also find, consistent with Herrera s testimony, that during his arbitration testa mony he claimed that he had never been warned by management and at that point Allen reminded him that there had been one occasion when Allen and Booker Hall did warn him Finally concerning Herrera s allegations respecting the postarbitration events I find that in fact meetings oc curred as testified to by Herrera The Evans denials are rejected based on the grounds stated supra that Herrera had a good memory of chronology and would be unlike ly to simply manufacture a meeting that had not oc curred Also consistent with my analysis set forth above however, I reject the testimony of Herrera concerning what occurred at these meetings to the extent his testa mony attributes to Respondents agents direct statements of animus or in effect, confessions that the Local or the Local s agents had or would in the future mistreat Herre ra or others because of their internal union political views Thus I find the postarbitration meeting occurred but did not include the alleged statements against Herre ra In summary then I have found that Herrera on the basis of his preceptions respecting the Union s actions in earlier times viewed the Union s efforts on his behalf suspiciously I further found no credible evidence to es tablish that at any time either before or during the events 134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD at issue here the Union acted against Herrera in any fash ion because of his intraunion politics or because of the union politics of his friends or relatives I have found that the Union investigated Herrera s grievance and brought his case to arbitration without any willful action taken to undermine Herrera s claims I further have found however that at the arbitration Evans in his opening remarks revealed that the Interna tional Union did not agree with the merits of the griev ance and that, during Herrera s testimony, Allen remind ed Herrera of a meeting between himself, Allen and Herrera, which, in effect, was inconsistent with Herrera s broad claims of employment free of criticism Finally I have found that after the arbitration there were no actions taken by Respondents inconsistent with their support of the grievants position at arbitration More particularly I have rejected Herrera s testimony that Evans challenged Herrera as a loser whose political affiliations were the cause of his difficulties 3 Analysis Both the General Counsel and Respondents have filed learned briefs discussing at great length Board and court cases dealing with the Union s duty of fair representation particularly during the grievance and arbitration process Much of this legal analysis is not in point as a result of the factual resolutions made supra Thus having found that the grievance was investigated consistent with the testimony of Evans, I reject the arguments of the Gener al Counsel that the grievance was investigated in a cur sory, perfunctory, or malignant manner The General Counsels theories in this respect hinged on factual con tentions rejected above and on the implicit argument that the entire process was a scheme designed to cloak Re spondents' plan to adversely affect Herrera I have spe cifically rejected that contention The extent of time ex pended by Respondent in investigating the grievance in pressing the Employer to reinstate Herrera, and in ob taming an employer agreement to change Herrera s dis charge to a layoff is more than sufficient to withstand any attack based on perfunctory efforts One action during that grievance investigation process is critical to the subsequent events but is not independ ently challenged by the General Counsel as an independ ent violation of the Act That is of course the graphic conduct of International Representative Weatherl in agreeing with the Employer that, in effect Herrera was obligated to obey the orders of his foreman even if they were absurd and bizarre and that, accordingly, Herrera was properly terminated This agreement, in effect by the International representative with the Employer in the presence of Evans and Herrera was a significant event Such an agreement would by the very nature of things stiffen the Employers resolve to resist the de mands of the Unions to reinstate Herrera Further, the Unions, in most circumstances could fairly expect the Employer to raise Weatherl s agreement with that as a defense to the reasonableness of its actions in any arbitra tion At the arbitration the Employer in fact did so I find Weatherl s concession to the Employer regard ing the merits of the grievance fatally weakened any chance of successful resolution of Herrera s claim either during the grievance process or in the arbitration Was this concession by Weatherl an action that independently violates the Act? The answer is no and I do not believe the General Counsel argues to the contrary First, there was no contention made nor evidence offered to suggest that Weatherl had any ulterior motive behind his con duct in the Herrera case Second it has been sufficiently well established to be without need of citation of author ity that a union need not take a grievance to arbitration if it does not reasonably believe the grievance has prova ble merit This doctrine seems sufficiently broad to allow agents of labor organizations to speak frankly to the em ployer during the grievance process respecting their view of merits of a particular grievance 13 At the arbitration the Union had to contend with Weatherl s statements during the grievance process Thus, Evans, in an attempt to diminish the effect that the Internationals concession would make on the arbitrator, raised the matter initially and, in so doing, triggered Her rera s ongoing suspicions respecting the enthusiasm of Respondent Local s agents in prosecuting his arbitration That suspicion, which manifested itself in Herrera s corn merits, activities, and advocative role during the arbitra tion, is not in essential dispute Indeed Evans and the ar bitrator, faced with Herrera s stated belief that he could not obtain fair representation by the Union, afforded Herrera an opportunity to represent himself The General Counsel advancing the argument that this conduct by Respondent Local was part of a plan to ensure Herrera s arbitration was lost asserts that Evans statement about the International before the arbitrator damaged beyond repair Herrera s chances for obtaining a favorable ruling Even assuming the General Coun sel s statement about the effect of this concession was true the Governments case is not persuasively made This is so because it was essentially certain, and it in fact did occur soon after that the Employer would raise at the arbitration the fact that the International had agreed with the Employer that Herrera s termination was not a violation of the contract This being so it was not neces sarily negligent nor evidence of malice that Evans raised the matter first thus attempting to diminish the conces sion s effect on the arbitrator Thus I find that once the International had taken the public position that the griev ance was without merit the actions of Evans at the arbi tration were not unreasonable and do not support an in ference of bad faith or negligence The General Counsel challenges two further events occurring at the arbitration and argues that they are also a basis for finding a violation here First was the fact that the union officials sat silent when Shoupe, as agent for the Employer at the arbitration, attributed to Allen s actions indicating complete agreement with the Employ er s position Based on my credibility analysis supra, I have determined that Shoupe in fact alleged that the International agreed with the Employer Since this state 13 Indeed the Supreme Court in Ford Motor Co v Huffman 345 U S 330 (1953) established the broader proposition that it may be appropriate for a union in the give and take of the grievance resolution process to trade off the meritorious grievances of certain individuals in order to obtain resolution of other grievances LABORERS LOCAL 324 (FLUOR CONSTRUCTORS) 135 ment was true, Allen was in no position to challenge that assertion directly or indirectly Second, the General Counsel argues that Allen s statement at the arbitration hearing during Herrera s testimony that Herrera had been warned is again evidence of bad faith because it un dermined Herrera s claims that he had not been warned The difficulty with the General Counsels argument here is that Herrera had in fact been warned and, as dis cussed, supra, it could be fairly expected by Allen and Evans that if Herrera was allowed to continue embellish ing the unsustainable assertion, it would soon be rebutted by the Employer with the result that Herrera s credibil ity would be even more significantly undermined Con sistent with my analysis of the other actions by Respond ent Local agents at the arbitration, I find that Allen's ac tions were not undertaken in bad faith and were not, in the unusual context of events here, negligent, unreason able or a violation of the Act The General Counsel further argues that the limited time and resources devoted by Respondents to the arbi tration, i e , the apparent failure to prepare witnesses or generally to marshal more resources and greater enthusi asm for the arbitration, is a breach of Respondents duty of fair representation I reject the General Counsels ar gument as being implicitly dependent on its earlier re jected theory that Respondents were acting to under mine Herrera to defeat his case rather than simply pro ceeding to represent him without animus or ill will The amount of time and resources spent by Respondent on this aspect of Herrera s case, as was true regarding the grievance stage was more than sufficient to meet the duty of fair representation It was perhaps not unreasonable for Herrera to react badly to Evans opening remarks at the arbitration and to become further convinced of the Union s bad faith when Allen mentioned his earlier warning during his testimo ny The General Counsel has attempted to weave these threads into a cloth sufficient to support a violation of the Union s duty of fair representation As noted howev er I have determined that, contrary to Herrera s evident ly sincere suspicion and fears Respondent Local did not act willfully or even negligently against his interests Rather it acted in a manner apparently consistent with its practice of (1) investigating grievances (2) seeking the assistance of International representatives, and, de spite the International representatives unfavorable eval uation of the merits of the claim, (3) offering the grievant the option to press the case to arbitration As noted above, the arbitration was a disaster for Her rera and ended unsuccessfully Yet, having found that the position taken by the International representative in the meeting with the Employer was not a violation of the Act I do not find the Union s unsuccessful efforts to deal that concession at the arbitration were improper or unreasonable even though those actions caused Herrera s strong reaction I find that those actions were explained by the unusual circumstances of the case and do not sup port the General Counsels theory of a violation Having found in essence no unreasonable conduct by Respondents throughout the entire grievance and arbitra tion process, I find no basis on which to sustain the Gen eral Counsel's contentions that Respondents violated the Act That being so, the General Counsel has failed to sustain his burden of proof respecting the allegations of the complaint and it shall be dismissed CONCLUSIONS OF LAW 1 The Employer is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act 2 Respondents are now and have been at all times ma tenal labor organizations within the meaning of Section 2(5) of the Act 3 Respondents did not violate the National Labor Re lations Act in their investigation of the grievance of David Herrera or in the processing of that grievance through and after the arbitration 4 Respondents did not violate the Act as alleged in the complaint On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed14 ORDER The General Counsels complaint shall be dismissed in its entirety 14 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