Diversified Contract Services, Inc.

DIVERSIFIED CONTRACT SERVICES Diversified Contract Services, Inc and Industrial, Technical and Professional Employees Division, National Maritime Union, AFL-CIO and Maureen V Johnson Industrial, Technical and Professional Employees Division, National Maritime Union, AFL-CIO and Maureen V Johnson Cases 20-CA-20703, 20-CA-20951, and 20-CB-7207 January 19, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On July 12, 1988, Administrative Law Judge Joan Wieder issued the attached decision The Re spondent Union filed exceptions' and a supporting brief, and the General Counsel filed a brief in re sponse 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,2 and conclusions only to the extent consistent with this Decision and Order 3 The judge found that the Respondent Union breached its duty of fair representation and violat- ed Section 8(b)(1)(A) of the Act by treating the harassment and discharge grievances of the Charg ing Party, Maureen Johnson, in a perfunctory manner For the reasons set forth below, we dis- agree The facts are fully set forth in the judge's deci- sion In summary, Maureen Johnson was hired by the Company on January 4, 1986,4 and elected union steward in April On December 16, Johnson 1 No exceptions were filed to the judge s finding that the Respondent Employer violated Sec 8(a)(1) and (3) of the Act when it issued the writ ten warning of September 23 1986 required Johnson to provide a doc tor s certificate in October to verify an illness reduced Johnson s work ing hours on October 20 issued the disciplinary letter of October 30 and discharged Johnson on December 16 2 The Respondent has excepted to some of the judge s credibility find rags 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 3 The judge s recommended Order combined the Order against the Union and the Employer Because we have dismissed the complaint against the Union we have set forth a new Order against the Employer In addition we have included cease and desist language applicable to each separate 8(a)(3) violation found by the judge Backpay will be corn puted as prescribed in F W Woolworth Co 90 NLRB 289 (1950) 4 All dates are in 1986 unless otherwise indicated 603 was terminated for four violations of the Compa ny's tardy and unexcused absence rules 5 Johnson was an active steward On June 9, Re- spondent Employer's vice president John Miller wrote Union Representative Maria Curtis a letter informing the Union that the Company was trou- bled by Johnson's activities as shop steward In his letter, Miller expressed concern that Johnson was soliciting or fabricating employee problems On September 23, Miller wrote Union Representative Robert George complaining again about Johnson's performance as steward Johnson, in the meantime, was not satisfied with George's performance as union representative In June, Johnson and Chief Shop Steward Maureen Baird met with George and Curtis in San Francis co Baird told George he was not doing a decent job Baird and Johnson also made phone calls and wrote to an official of the International Union in New York complaining about George Johnson was ill on October 13 At 9 am, well before her 11 15 shift was to begin,6 Johnson tele phoned Gerald Dormandy, the project manager, to tell him that she would be out the rest of the week because of excessive bleeding and that she was under a physician's care Johnson testified that Dormandy told her to be sure to phone back in a week Johnson called again around 9 a m on Octo- ber 15 and spoke to her supervisor, Elfriede De Fi- lippo, who asked about her health Johnson told De Filippo that the doctor had taken a biopsy and that she was awaiting the results In addition, John son reported that the doctor wished for her to stay out of work for 1 month, but if the biopsy was benign she would return to work on the following Monday Supervisor De Filippo told Johnson that everything was all right Johnson also called the Union to tell them she was ill On October 19 or 20, Johnson received a letter from Miller that accused her of not communicating her absence on October 14 and of a late or short- notice call in on October 15 After reading the letter, Johnson told Dormandy that Miller's accusa tions were incorrect as she had called Dormandy 5 According to the February 9 1987 letter from the Company s direc tor of human resources Johnson violated the Company s policies as fol lows 1 October 14 1986-did not appear for scheduled duty 2 October 15 1986-short notice call in 3 October 29 1986-short notice call in 4 December 16 1986-short notice call in s According to Baird s undisputed testimony the Company s rules re quire employees to inform Diversified Contract Services at least I hour prior to their scheduled worktime that they will be late or that they will not be able to report for work that day The employees also understand that after three short notice call ins the employee will receive a 14 day suspension and after a fourth short notice call in the employee could be discharged 292 NLRB No 62 604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD earlier to tell him that she would be out. She also informed Dormandy that she had spoken to her su- pervisor before 9:45 a.m. on October 15, which would mean that there was no short-notice call-in or failure to inform management of her absences. Johnson then called the Union, and Union Repre- sentatives George and Curtis told her that she was being harassed and to disregard the vice president's letter because it was not on a reprimand form. Johnson did not file a grievance over the Miller letter. 7 On October 27, the Union filed a charge in Case 20-CA-20703 with the National Labor Relations Board alleging that the Company was harassing union stewards and other union activists because of their union activities. On October 30, Johnson received an employee performance report for a violation of the attend- ance rules on October 29.8 The report also noted that this was Johnson's third violation of the attendance/tardiness rules. Johnson testified that on October 29, her daughter who regularly drove her to work phoned Johnson to inform her that the car's tire blew out on the freeway. Johnson claims to have called her supervisor at 9 or 9:15 a.m. (more than 1 hour before she was to start work that day) to report the car trouble, and that she was told not to come in for the rest of the day. However, Johnson did not file a grievance over the October 30 report. On December 8, Johnson filed a grievance claim- ing that her supervisor was harassing her because she was a shop steward. This particular incident arose when Johnson clocked out and remained to speak with various employees who wished to speak with her as shop steward. Although under the col- lective-bargaining agreement, shop stewards were allowed on the Company's premises in order to attend to union business, De Filippo ordered John- son to leave. In her grievance, Johnson asserted that she addressed about 95 percent of her union business while off the clock because the Company would not permit members to speak to her during work hours, and that De Filippo harassed any member that came to her on union matters. On December 16, Johnson was discharged for a fourth violation of the absenteeism/tardiness rules. Johnson testified that a friend who was to provide a car failed to do so in a timely manner, and that ' Under the collective-bargaining agreement, employees are required to submit all grievances in writing to the project manager within 7 days of receipt of a reprimand. 8 The report stated that Johnson was late for duty at I I a.m., that at 10:37 a.m. Johnson phoned in to say that she was having transportation problems, and that she would be late for duty and possibly not be in to work at all. The report then stated that Johnson did not report for duty for her entire shift. she phoned her supervisor to explain that she would be late. De Filippo told her to come in when the car arrived, and Johnson was about 10 minutes late. De Filippo then told her that she was off the clock and was to go home. Johnson testified that she went home, called the Union, and told them she was late because of a problem with a friend's car. The Union told her that she was being harassed and that she should file a grievance. The Union had a meeting planned for December 22 to consider various collective-bargaining issues. Before the meeting began, Johnson handed her dis- charge grievance9 to Union Representative George who signed and dated it. George then gave the grievance to Union Representative Curtis, who told Johnson that she would file the grievance. Johnson claims that she did not discuss the merits of the discharge grievance with either George or Curtis. On December 29, representatives of the Union and Company met in Oakland to consider John- son's discharge grievance and other employee mat- ters. The judge credited Johnson's testimony that she was not informed that her discharge grievance would be considered during the December 29 meeting. Neither Johnson nor Chief Union Steward Baird was present at this meeting. Employee complaints that management harassed employees when they engaged in concerted pro- tected activity were addressed at the December 29 meeting. However, these harassment claims were not resolved and another meeting was set for Janu- ary 14, 1987. George also reviewed Johnson's per- sonnel file and examined Johnson's reprimands re- garding her tardiness. Miller denied that any of the reprimands were issued as harassment or in ill will toward shop stewards. George then decided that Johnson's termination was justified. Although he had not completed his investigation of the harass- ment allegations, George felt Johnson's discharge grievance had been investigated and resolved at the December 29 meeting. He testified that he did not consider the December 8 grievance and Johnson's termination as part of the alleged harassment. On December 30, George wrote Johnson a letter that stated that the Union concluded that the Company did not violate the collective-bargaining agreement when it discharged her. With regard to Johnson's December 8 harass- ment grievance, George investigated the harass- ment claims concerning De Filippo by going to an- other military base where De Filippo previously 9 Specifically, Johnson's discharge grievance states in part: "On the Dec. 16th issue, I called Mr Dormady [sic] and told him I was sick and that I would be out of work and under my doctor's care." DIVERSIFIED CONTRACT SERVICES had worked and speaking with her former employ- ees On January 21, 1987, George resolved the har- assment complaints about Supervisor De Filippo by telling the Company that after investigation he had found De Filippo to be a perfectionist, and that there was no evidence that she was guilty of har- assment There was no evidence that Johnson was informed of the resolution of this grievance The judge found that the Union treated John- son's termination and harassment grievances in a perfunctory manner thereby breaching its duty of fair representation in violation of Section 8(b)(1)(A) Examples of the Union's perfunctory treatment of Johnson's grievances included the Union's failure to discuss the Company's position with Johnson or Baird before the December 29 meeting, the Union's failure to inform Johnson of the December 29 meeting or that her harassment grievance was to be considered at any date, the Union's lack of investigation of both grievances that precluded Union Representative George from making a favorable presentation to the Company, and the Union's failure to advance a reason the dis- charge grievance and harassment grievance could not have been discussed on the same date The judge found that "simultaneous discussion of these two grievances was the most logical manner of handling given their patent interrelationship " The judge also found that the Union's actions rose above mere mismanagement, negligence, or inepti tude and that George gave the grievances perfunc tory treatment out of animus against Johnson be cause she complained about him The judge went on to find that even absent animus, the Union treat- ed Johnson's grievances in a perfunctory manner thereby breaching its duty of fair representation in violation of Section 8(b)(1)(A) of the Act It is well settled that a union breaches its duty of fair representation when it engages in conduct af- fecting employees it represents, which is arbitrary, discriminatory, or in bad faith Vaca v Sipes, 386 U S 171, 178 (1967) It is also well settled, howev er, that the negligence or nonaction of a union by itself will not be considered to be arbitrary, irrele- vant, invidious, or unfair so as to breach the duty of fair representation Something more is required Teamsters Local 692 (Great Western Unifreight), 209 NLRB 446, 448 (1974) Although the Union's conduct surrounding John son's discharge and harassment grievances is far from model union grievance handling, we find, contrary to the judge, that the Union did not engage in a pattern of conduct so egregious as to warrant finding a breach of its duty of fair repre- sentation 605 Although Johnson believed that she was unjustly disciplined, she failed, on many occasions, to file grievances over these instances, save the discharge grievance and the harassment grievance of Decem- ber 8 As a shop steward, Johnson knew that the collective-bargaining agreement required that all grievances be in writing and submitted within 7 days of receipt of a reprimand Johnson was clearly aware of the procedures for filing a grievance and knowingly chose not to exercise her right to file a grievance The Union's failure to pursue matters other than the discharge and December 8 harass ment grievances would not, accordingly, support a finding of breach of the duty of fair representa- tion 10 As to the discharge grievance, the Union was faced with two problems in arguing its merits to the Company First, Johnson had been disciplined on three prior occasions for tardiness or absentee- ism within a little more than 2 months of her dis- charge As noted above, Johnson had chosen not to grieve any of these prior disciplinary actions Second, the Union had problems concerning John son's credibility and the true reason she was late for work on December 16 Johnson testified that she told the Union she was late on December 16 because of a problem with a friend's car However, in the discharge grievance Johnson gave Union Representative George on December 22, she stated that on December 16 she called Dormandy and told him that she was sick and under her doctor's care Johnson's inability to give a consistent ac count of what had happened on December 16 left the Union with little to support Johnson's conten- tion that exigent circumstances actually existed on December 16 Because the inconsistencies came from Johnson herself, there was little in the way of investigation that the Union could do to strengthen her case In sum, the discharge that the Union was asked to contest on behalf of Johnson was based on three incidents that Johnson had never grieved and one incident about which she produced conflicting explanations Finally, although, as the judge found, the simul taneous discussion of the discharge and harassment grievances would be the most logical manner of their handling, a union does not commit an unfair 10 Johnson asserts that she was unjustly disciplined and/or harassed on the following occasions On September 23 Vice President Miller wrote a letter to Union Representative George concerning adverse reports from the Air Force on Johnson s work performance around October 5 John son was required to obtain a doctor s certificate before she could return to work after an illness Johnson was given an employee performance report for being 4 minutes late on October 19 and on October 30 John son received an employee performance report for insubordination on Oc tober 28 Johnson failed to file a grievance over any of the above mci dents 606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD labor practice by making good-faith, nondiscrim- inatory errors of judgment in processing griev- ances. See, e.g., Groves-Granite, 229 NLRB 56, 62- 63 (1977); Castelli v. Douglas Aircraft Co., 752 F.2d 1480 (9th Cir. 1985). George's decision not to dis- cuss the two grievances together because he did not consider the harassment allegation to be con- nected with Johnson's termination is understand- able in light of the fact that the harassment griev- ance was limited to one specific harassment inci- dent that occurred on December 8. Although this decision may be seen by some as an error, it was at most an error of judgment and not evidence of breach of the duty of fair representation. Findley v. Allegheny Corp., 639 F.2d 9:53 (3d Cir. 1981). Fur- ther, the record does not support a finding of animus. Thus, though Johnson with others had com- plained about the Local to the International, there was no evidence that George harbored any ill will toward Johnson. Instead, he had filed charges at the NLRB on her behalf when she alleged harass- ment and had sympathized with her complaints when she called to complain about what she viewed as unjust treatment:. Though George did not act on every complaint she made, Johnson did not file grievances over many of these incidents. We find that the Union's failure to discuss the Company's position with Johnson before the De- cember 29 meeting, its failure to inform Johnson of the two meetings at which the grievances were to be discussed, and the lack of a full-scale investiga- tion into both grievances do not under the circum- stances of this case demonstrate an unlawfully per- functory handling of Johnson's grievances. Rather, they suggest only possible mismanagement on the Union's part which we cannot equate with action that is arbitrary, irrelevant, invidious, or unfair. Rainey Security Agency, 274 NLRB 269 (1985). Accordingly, we shall dismiss the complaint al- leging that the Respondent Union failed in its duty of fair representation in violation of Section 8(b)(1)(A) of the Act. AMENDED CONCLUSIONS OF LAW Delete Conclusion of Law 4 and renumber the subsequent paragraph. ORDER The National Labor Relations Board orders that the Respondent, Diversified Contract Services, Inc., Sacramento, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discriminating against employees in any aspect of their employment, because they join, sup- port, or assist a union or because they engage in any other activity protected by Section 7 of the Act. (b) Discharging employees because they joined, supported, or assisted the Union, engaged in con- certed activities for the purpose of collective bar- gaining or other mutual aid or protection, and in order to discourage employees from engaging in such activities for the purpose of collective bar- gaining or other mutual aid or protection. (c) Imposing more onerous and rigorous terms and conditions of employment on employees be- cause they engaged in union or protected concert- ed activity. (d) Issuing written warnings to employees be- cause they engaged in union or concerted protect- ed activity. (e) Reducing employees' working hours because they engaged in union or concerted protected ac- tivity. (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) Offer Maureen V. Johnson immediate and full reinstatement to her former position, or, if that po- sition no longer exists, to a substantially equivalent position, without prejudice to her seniority or other rights and privileges previously enjoyed. (b) Make Maureen V. Johnson whole for any loss of earnings that she may have suffered by reason of the Respondent's unlawful discharge of her as set forth in the remedy section of the judge's decision, and make her whole for any loss of earn- ings and other benefits she suffered by reason of the unlawful discrimination practiced against her including lost hours to leave work and secure a doctor's certificate, and the reduction of scheduled hours about November 1, 1986. (c) Remove from its personnel records all refer- ences to the above unlawful discrimination and notify Maureen V. Johnson in writing that this has been done and that those records and references will not be used as a basis for future personnel action against her. (d) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay and other amounts due under the terms of this Order. (e) Post at its facility in Sacramento, California, copies of the attached notice marked "Appen- DIVERSIFIED CONTRACT SERVICES dix " I I Copies of the notice, on forms provided by the Regional Director for Region 20, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply IT IS FURTHER ORDERED that the complaint in Case 20-CB-7207 is dismissed I I 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 EMPLOYEES 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 discriminate against employees in any aspect of their employment with us because they join, support, or assist a union or because they engage in any other activity protected by Section 7 of the Act WE WILL NOT discharge employees because they joined, supported, or assisted the Union, engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and in order to discourage employees from engaging in such activities for the purpose of collective bar gaining or other mutual aid or protection WE WILL NOT impose more onerous and rigor ous terms and conditions of employment on our employees because they engaged in protected con certed activity WE WILL NOT issue written warnings to employ- ees because they engaged in union or concerted protected activity WE WILL NOT reduce employees' working hours because they engaged in union or concerted pro- tected activity WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer 607 case of the rights guaranteed you by Section 7 of the Act WE WILL offer Maureen V Johnson immediate and full reinstatement to her former position, or, if that position no longer exists, to a substantially equivalent position, without prejudice to her se- niority or other rights and privileges previously en joyed and WE WILL make her whole for any loss of pay she may have suffered by reason of our dis crimination against her, with interest WE WILL remove from our files any references to the discriminatory actions including warnings, reductions in hours, and all indicia of discipline found to have been imposed for discriminatory rea- sons, including Maureen V Johnson's discharge, and shall notify her in writing that this has been done and that evidence of these unlawful discipli- nary warnings and discharge will not be used as a basis for future personnel actions against her DIVERSIFIED CONTRACT SERVICES, INC Christine A Rails Esq, for the General Counsel Andrea Ford Roberts and Major Williams Jr Esqs (Alex ander Millner & McGee), of Oakland California for the Respondent Sidney H Kalban Esq (Phillips Cappiello Kalban Hof mann & Katz P C) , for the Union DECISION STATEMENT OF THE CASE JOAN WIEDER, ADMINISTRATIVE LAW JUDGE These consolidated cases were heard before me on various days in July and October 1987 ' On a charge filed in Case 20-CA-209512 by Maureen Johnson an individual on December 16 it is alleged she was discriminatorily terminated by Diversified Contract Services (DCS or Company) because of her union ac tivities as a union shop steward, in violation of Section 8(a)(1) and (3) of the National Labor Relations Act Johnson filed another charge on March 31, 1987 in Case 20-CB-7207 alleging that Industrial Technical and Pro fessional Employees Division, National Maritime Union AFL-CIO (the Union) breached its duty of fair represen tation in its handling of her complaints of harassment and discrimination and the processing of her grievance over her termination On a charge filed October 27 by the Union in Case 20-CA-20703 it was alleged that Diversified Contract Services harassed shop stewards and others for engaging in union activities, in violation of Section 8(a)(1) and (3) of the Act Region 20 deferred these charges on the par ties agreement to attempt resolution under their collec tive bargaining agreements grievance procedure The I All dates are in 1986 unless otherwise indicated 2 Originally the charge was numbered Case 32-CA-8636 but was re numbered when transferred to Region 20 608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD consolidated complaint reflecting the charges of unlawful termination and breach of duty of fair representation was issued on April 30 1987, and amended at hearing Since these allegations encompassed some of the issues de ferred in Case 20-CA-20703 Region 20 revoked deferral of this charge on May 29 1987, and issued a complaint based on this charge on May 29, 1987, which was also consolidated with the other charges for hearing The complaint in Case 20-CA-20703 alleges that DCS unlaw fully disciplined Johnson, disparately reduced her hours, and imposed onerous and rigorous terms and conditions of employment The Respondents deny that they engaged in any un lawful conduct and move for dismissal of the consolidat ed complaint Rulings on these motions were deferred for disposition in this decision I deny these motions for the reasons stated post On the entire record in this case and from my observation of the witnesses I make the following FINDINGS OF FACT I JURISDICTION The Company is a California corporation with an office and place of business at Mather Air Force Base (MAFB), Sacramento, California, where at all times ma terial it has been engaged in the provision of food serv ices DCS contracts to provide a variety of services to the United States Government including operating ware houses and commissaries It admits that in the course and conduct of these operations it has performed contractual services valued in excess of $5 million for the United States Department of Defense The Respondents admit and I find that DCS is an employer engaged in com merce within the meaning of Section 2(2) (6) and (7) of the Act II THE LABOR ORGANIZATION It is admitted and I find that Respondent Union is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICE-THE FACTS A Background DCS is a government contractor providing food and warehouse services to various military bases In Novem her 1985 , it commenced the provision of full food serv ices for the military personnel at MAFB 3 There are four locations at MAFB where food services are provided by company employees the main dining hall, also called building 1226 in flight kitchen SAC Alert, and the crash kitchen also called the fire station Johnson worked in building 1226 the location with the greatest number of employees 3 Previously these services were provided by Moore s Cafeteria which lost the contract and the Government operated the facilities for a period using some of Moore s former employees as temporary civil service em ployees Moore s Cafeteria had a contract with the Union The supervisors were John Miller, vice president of operations Gerald Dormandy project manager and his assistant project manager, Elfriede Eppie or Effie De Filippo 4 Only Miller had the authority to fire em ployees De Filippo scheduled the employees for the three shifts in building 1226 De Filippo and Dormandy tried to work different shifts so that one or the other was present most of the time and could oversee the oper ations The service contract required a 24 hour a day op eration It was DCS first full food service contract uti lizing the most employees in all its operations and admit tedly it experienced several problems in commencing op erations The Union and DCS have a long collective bargaining history and DCS was found to have been a successor to Moore s Cafeteria in a proceeding before the Department of Labor DCS had hired many of Moore s former em ployees The question of successorship is not an issue in the instant proceedings They executed a contract cover ing the MAFB employees on February 3 As here perti nent, the union representatives assigned to MAFB were Maria Curtis and Robert George B Johnson s Employment and Discharge Johnson was hired by the Company on January 4 and started working on January 5 She was hired as a mess attendant, specifically cashier Subsequently she became a line server, the position from which she was fired on December 16 Johnson was terminated according to documents prepared by DCS for four violations of its tardy and unexcused absence rules Johnson and the General Counsel claim she was fired as part of a scheme to harass union stewards and other union activists The Company and the Union assert she was properly dis charged for cause According to a letter dated February 9 1987 written by Melva Watts DCS director of human resources during the last quarter of 1986 Johnson vio lated the company policies as follows 1 October 14 1986-did not appear for scheduled duty 2 October 15 1986-short notice call in 3 October 29 1986-short notice call in 4 December 16, 1986-short notice call in Because the General Counsel asserts Johnson s discharge was part of a pattern of harassment of union activists her entire work history must be examined According to Johnson prior to attending her first union meeting she complained to Dormandy about not receiving her 10 minute break At a union meeting held in April, she was elected a union shop steward for build ing 1226 There was only one union steward for the main dining room even though it utilized the vast majority of employees and had the majority of problems The other shop stewards elected in April were Baird chief shop steward who works at SAC Alert and the in flight kitchen stewards Cornish and Adams Beverly Fisher later became a shop steward at the in flight kitchen * DCS had other supervisors below these including in building 1226 Holt Alexander Jones Iva Krauts Tonia Lopez and Smith DIVERSIFIED CONTRACT SERVICES where she had far fewer problems to address as shop steward than Johnson Prior to being elected a union steward Johnson re ceived one disciplinary notice called an employee per formance report dated February 6, for failure to clock out on time The notice was signed by Toma Lopez After explaining that the rule violation was occasioned by Johnson s inability to find supervisors to give her a form that had to be completed at the end of the workday and to accept receipt of her cash drawer, the notice was placed in her personnel file for a number of days and she was cautioned to clock out on time Johnson sought the assistance of the Union and George undisputedly told her the Company would tear up the report because it was management s fault she clocked out late Respondent Company claims this notice was not considered in the decision to terminate Johnson 1 Events of September 23 and related matters Johnson was admittedly a very active union steward On June 9 Miller wrote Curtis a letter informing the Union the Company was experiencing problems with Johnson s activities as a shop steward The letter relates an incident where Johnson informed management of a complaint by an employee who later stated she had no such complaint In a subsequent meeting, Johnson told the employee, Sun Chae Rollins that she had previously given her different information Johnson then left the meeting, which Miller considered unprofessional An other incident related in the letter involved the work schedule of Vanessa Brown Brown indicated to manage ment that Johnson encouraged her to complain even though she was satisfied with her current schedule and that Johnson gave Brown incorrect information regard ing her bumping rights Miller expressed concern that a shop steward was soliciting problems or fabricating em ployee problems and considered these actions as repre senting an attempt to impede this employers contrac tual requirements to the government Curtis and thus the Union were aware at this early date that Johnson believed she was being harassed by the Company because of her activities as a union steward De Filippo and Dormandy did not let Baird and Johnson perform many of their duties as stewards while they were on the clock and there were incidents were John son was not permitted to conduct union business when she was off the clock contrary to the collective bargain ing agreement Johnson filed a grievance on August 12 claiming the Company was harassing her because of her activities as a steward and denied employees access to the shop steward On September 22, Johnson represented an employee Isolde Gallant at a meeting about a written reprimand Gallant received for not wearing a hairnet Johnson in formed management that Gallants hairnet came off on a piece of equipment a frequent occurrence the Company usually kept a box of hairnets for replacements in just such circumstances The Company informed Gallant that they did not have any hairnets left they were not going to supply any more replacements Gallant was also repri manded for arguing with another employee Gallant complained that the other employee was not similarly 609 reprimanded When Johnson reported this apparent in equality to management the other employee, Bedgood, was also reprimanded, but the document was never signed by management On September 23 Miller wrote a letter to George complaining about Johnson and the chief shop steward, Baird The letter states Since contract inception at our food service project Mather Air Force Base, I as well as our DCS management staff have listed concerns re garding Ms Maureen Baird and Ms Maureen John son Problems relating directly to these two specific employees have been ongoing, as you must be aware It is my personal opinion that employee problems have been solicited by at least one (1) of these two (2) union stewards This assumption has been based upon comments offered by members of our employ ee staff, a fact of which you are aware Additional ly the previous and current actions of shop stew ards illustrate intentions to impede and/or interrupt services to our military customers Obviously I can not allow such a problem to continue Enclosed is a statement offered by Mr Robert Gogstad DCS Corporate Quality Assurance Based only upon heresy [sic] I understand that Ms Baird had made similar statements in the past However this is the only time that this office can actually sub stantiate such statements Ms Baird has indicated that our firm, as well as your union are involved in unprofessional and posse ble illegal activities I firmly believe Ms Baird has hereby made accu sations against this employer which are of no merit Therefore, I expect Ms Baird to provide your union as well as this office, proof of her accusations are [sic] an immediate retraction of her enclosed statements to all union members at Mather Air Force Base In the event you are unable to resolve this prob lem from within the union community I will re solve this specific problem permanently It is still obvious that your appointed shop stewards are not aware of employer rights Our firm has always at tempted to adhere to all employee rights at all DCS projects Therefore our union/corporate problems have been minimal We at DCS have encountered more problems in ten (10) months at Mather than during the previous ten (10) years at all our other projects combined, again, a fact of which you are aware It is statements similar to these current com ments by Ms Baird that have in the past caused and/or added to employee problems I once overlooked Ms Baird s abusive negative and profane comments directed toward a member of our Corporate management staff However, I will not accept in any form Ms Baird s adverse accusa tions against this firm A second and continuing problem involves the shop stewards attempt to dictate policy to our on site management staff The most recent problems in 610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD volves Ms. Johnson's attempt to dictate employees' scheduled days off. You are personally aware of other and/or past problems regarding this same sub- ject. The Mather Shop Stewards have apparently elected to act as union area representatives rather than on-site representatives. Regarding performance evaluation I consider Ms. Baird to be only an average employee. Certainly, when rated with her contemporaries Ms. Baird re- mains below average in the areas of cooperation and tact. Ms. Johnson's performance is considered below average. This particular employee has caused our firm to receive two (2) official adverse notices from the Food Service Officer at Mather. Both notices were presented in the form of a Contract Monitor- ing and Surveillance Report on August 28, 1986, and again on September 12, 1986. Copies of both re- ports are enclosed for your information. I intend to provide Ms. Johnson with an official notice of these specific performance problems. I expect her to perform her future duties in a satisfac- tory manner, in order to avoid the requirement to enforce a more permanent solution. Mr. George, I would like to again point to the fact that your union and my office continue to ad- dress employee rights at a number of projects of which, Mather is only one. During our ten (10) year association with the I.T.P.E., we have encountered very few employee problems. Again, it is my honest opinion that various problems at Mather have in certain instances been fabricated and/or solicited. Also, I believe that Ms. Johnson and Ms. Baird are as equally concerned with disrupting this employ- er's operation at Mather as they are interested in protecting members' rights. I am available at anytime to address these prob- lems with your office in any manner you recom- mend. Baird, a current employee of DCS, has worked in food services at MAFB since 1974 and has been a shop stew- ard for at least 7 years. She and Maureen Johnson are friends. Baird works at SAC Alert which has about eight employees. The matter relating to Gogstad referred to in Miller's letter is an employee comment for the record which stated: While sitting at the table at SAC Alert, Mrs. Baird made the following statement: "She bloody well was going to see about getting Bob George re- placed because he is to wish washy [sic]. He tells Diversified Contract Services, Inc. one thing and the union shop stewards another. Bob George in- formed her by telephone that another union member could not supervise the other union person- nel." She also stated, "that she would take no orders or instructions from Miss Freeman," who is designated the First Cook. At this time she asked all other employees if they were going to take instruc- tions from Miss Freeman, in which they replied, no they were not. At this time, I informed Mrs. Baird and the remaining employees that they would take all orders that were given to them by Miss Freeman until further notice. Mrs. Baird then replied, "You might as well bloody well fire me, because I am not going to take any orders from a fellow union member." At that time I informed Mrs. Baird that I would not be firing her on the statement she just made. Then I repeated, regardless of which you just told me, she would take instructions from Miss Freeman until further notice. At that time Mrs. Baird said that she was going to call New York and talk to the head of the union to see about getting Bob George thrown out, because it looks like "he is rubbing noses with DCS." Miller did not identify in his September 23 missive the employees who claimed that Johnson and Baird solicited grievances. The parties did not adduce evidence as to the supervisory status of Gogstad but his directing Baird to follow Freeman's orders indicates some agency relation- ship to the Company and his comments were not a com- plaint by a line employee. Miller did express concern that Baird claimed the Union was a bedfellow with DCS. The second incident involved a grievance being filed by a Ms. Rawlins; when management approached her, she allegedly became upset claiming she did not want to file a grievance. Rawlins did not appear and tes- tify. Her absence was not explained. The Gogstad and Rawlins' incidents, Miller claims, verified rumors that stewards were soliciting grievances and complaining the union was not representing them but was a bedfellow with the Company. Miller also testi- fied that he did not believe that relations with the em- ployees deteriorated or became more strained as the con- tract progressed; rather, he opined, employee problems decreased as the project became operational. This opin- ion was not reconciled with the claim in the letter that DCS had more problems at MAFB in 10 months than during the past 10 years at all their other projects com- bined. Miller explained his reference to resolving the "prob- lem permanently" as indicating that if the rumors persist- ed he would resort to legal recourse. The reference to performance problems was informational, indicating that if Johnson did not improve, "a more permanent situation [sic], would be a termination or a suspension." He could not recall how many performance reports or reprimands Johnson had received as of September 23. Admittedly, the Company was receiving a greater number of employ- ee grievances at MAFB. Baird and Johnson were dissatisfied with the perform- ance of George as their union representative, which was indisputably the basis of Gogstad's report. Baird and Johnson went to San Francisco and met with George and Curtis around June. Baird told George he was not doing a decent job and George asked for a little time. They gave him 1 week and told him they were then "going to New York with this. He said go, do it." Johnson and Baird made telephone calls to an official of the International union in New York, Shannon Wall and, after these calls were not returned, wrote him a letter. The letter, according to Johnson's notes, repre- sents that the shop stewards at MAFB: DIVERSIFIED CONTRACT SERVICES have severe problems with regards to our Union Rep Mr Robert George The Company con sistently violates the Union contract for what its worth from Article 1 to Article 30, our Rep Mr George continually defers to the Company not the Union Contract As a result of this action our mem bers are under great stress and are bitterly disap pointed with The Union They feel this is a Compa ny Union, this in turn makes the job for all shop stewards extremely difficult We even took a trip to S F San Francisco main union office for the purpose of filing twenty two grievances We were requested to let Mr George handle it his way They expressed satisfaction with the efforts of Curtis when she was allowed" to assist them They also in formed Wall that the only other choice of receiving as sistance was turning to the Board, as suggested by George Specific complaints were the contract was not being observed, seniority was ignored cooks were being used as supervisors, managers were performing unit work and paid union dues health insurance, health and welfare benefits, and pension plan contributions and were work ing on the clock, and, union members hours were being reduced The notes also indicate that the International was informed that whenever these violations were raised with management the shop stewards were told they were troublemakers who were causing problems The Union does not claim the letter was not received or Johnson s notes not reflective of the missive Also on September 23, Miller wrote a letter to John son referring to her unsatisfactory performance based on criticisms contained in the contract monitoring and sur veillance reports, submitted by a food service officer on August 28 and September 12 as related to him by Dor mandy at some unspecified time5 Johnson received this letter shortly after she represented Gallant in the previ ously described matters regarding Gallants argument with Bedgood and her loss of a hairnet The reports were signed by a military inspector sever al routinely monitor DCS performance and if they find something they do not like, it is noted on these reports Dormandy routinely gets the reports signs them, and 5 The letter stated This offi'e is in receipt of two (2) adverse performance notices fur rushed in the form of a Contract Monitoring and Surveillance Report submitted on August 28 1986 and September 12 1986 Both reports were furnished by the Mather Food Service Officer and both reports are directed at your service Copies of these reports have been fur coshed to your Union Area Representative I recommend that you again read my letter presented to you on May 2 1986 regarding your requirement to perform employee duties in a satisfactory manner even though you are a Union Shop Steward On September 22 1986 your Project Manager informed you of his decision to remove you from the serving line to another facility duty station However I have informed Mr Dormandy that he will not remove you from the serving line Simply you will correct the per formance problems as directed by our one site [sic] management staff In the event DCS encounters any future problem regarding your performance on the serving line you may be assured that I will enforce a more positive and permanent corrective action You may address any questions regarding this reprimand to me per sonally on September 24 1986 and/or your Union Representative this is your decision 611 tosses his copy in the circular file The report goes to the contracting officer and is used to determine if the com pany should be monetarily penalized for poor perform ance under the contract In Dormandy s experience, em ployees other than Johnson have been reprimanded when the Company can identify the individuals responsi ble for the negative rating Dormandy testified that on the specific occasions of the reports relating to Johnson, he accompanied the inspector and observed the same de ficiencies noted in the reports According to Dormandy, he did not single out John son, he had spoken to other employees who were cited for deficiencies in similar reports when he could identify them The September 18 report noted several deficien cies, only one item related to Johnson, who was noted as serving food in a sloppy manner The report also criti cized the lack of pastries available, which was not John son's responsibility, the individual responsible for that function was not reprimanded or counseled This failure was unexplained Another item mentioned in the report referred to deficiencies of the individual performing the duties of the vegetable girl,' and two other criticisms involved the cook There is no evidence that the 'vege table girl" or the cook was reprimanded or counseled for these failings The decision to reprimand only Johnson and not the other employees whose deficiencies were noted in the report was unexplained Dormandy did not claim he could not identify these other employees who were criticized in the report On September 24 both Baird and Johnson were given copies of Miller s September 23 letters They met with Miller, Dormandy and De Filippo Baird asked Miller to show her the surveillance and monitoring reports and after reviewing them told him it was harassment cause they had to dig low to get these after a month He [Miller] banged his fist on the table and he told me it was not harassment He said he had-he d never had so much trouble in all the 11 bases he had until he came to Mather And we were nothing but troublemakers "s When Baird discussed the letter with George she said it was a bunch of bull and George agreed with her Also during the meeting De Filippo admitted, according to Johnson s testimony, that she was a good worker George corroborated Johnson s testimony that De Fi lippo admitted during this meeting that Johnson was a good worker Baird also told Miller she thought manage s Both Johnson and Baird accused Miller of often referring to them as troublemakers including during several mandatory employee meetings Miller s denial is not credited based primarily on demeanor I also note that the asserted reference is consistent with the tenor of the September 23 letter discussing his concerns regarding Baird s and Johnson s activi ties The notes for the Johnson and Baird letter to the International union also refers to the practice of calling shop stewards who raise ostensible contract violations troublemakers which convincingly corroborates their claim Another consideration is that Miller volunteered information and otherwise appeared to be tailoring his testimony to meet DCS litiga tion theories rather than attempting to be forthright and candid In fact on occasion he failed to reply to questions but instead volunteered infor mation Accordingly Miller s testimony will be credited only where it is uncontroverted or creditably corroborated I also note in making my credibility resolutions that the witnesses were not sequestered 612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment was harassing Johnson and Miller denied that was their intent. Johnson and Baird did not consider the letter regard- ing the surveillance and monitoring report to be a repri- mand because it was not given on the customary form. Johnson claimed that she was told by the Union's repre- sentatives to ignore the letters and that they were not reprimands. Also on September 24, George met with Johnson and Baird to inform them of their obligations as stewards. He wrote Baird a letter, dated September 25, with copies to all stewards which stated, as here pertinent: Section B of Article XII of our CBA states plainly that the shop steward shall not interfere with the management of the business or direct any work of any employee, but may advise the Company of any violations of the Agreement and of the employee participating therein. For example-you cannot tell the Company that Jane Doe should work here and not there, nor can you tell Jane Doe to work here and over there, Jane works where assigned to by the Company. In plain language-if you see or hear of a viola- tion you have the right to inform-1. the company, 2.-the employee involved. This does not mean that you drop what you are doing, to report such an action, but, at the appropriate time you make the report. Section E of Article VIII-Grievance procedure simply states that you have the right to investigate, discuss and present grievances on COMPANY TIME, however, such time shall be kept to a mini- mum. Section C Article XII further states that shop stewards will request permission from the supervi- sor prior to leaving their work stations and WILL NOT LEAVE the work area during rush hours.... Above all, when handling a grievance do not tell the worker that you can and will win the case. When talking to management do not raise your voice and get angry, do not threaten, but do not hesitate to state you will follow the grievance pro- cedure.. . . In your day to day activities on the job your su- pervisor and managers exercise certain authority over you as a worker for that company, however, when your [sic] are discussing, investigating and presenting grievances you are an official representa- tive of the Union and, should be treated as such. You have equal status to the representative of the Company. . . 2. Discipline of Johnson in October In early October, Johnson was a couple of minutes late because she had a flat tire. Lopez, a supervisor, did not issue a reprimand. Later that same week, on or about October 5, Johnson was ill and left work early after in- forming Lopez she was sick. She missed the next day's shift, and telephoned to inform the Company she would not be in the next day. She spoke to Dormandy who, when told she would probably not be in the next day, informed her he might require her to bring in a doctor's certificate. Johnson replied that she had to be out 2 days before she was required to bring in a doctor's certificate but said "okay." She then called the Union to relate the conversation to Curtis who agreed she was not required to bring a doctor's certificate until she was absent 2 days7 and opined Johnson was being harassed by the Company. Curtis then checked with the Company and telephoned Johnson the same day informing her "they're being adamant about this, they are going to ask you for the doctor's certificate." Curtis asked if others were simi- larly required to present a doctor's certificate after only 1 or 2 days' absence and, if not, to get their written state- ments. When she returned to work, she was informed that she could not return to work without a doctor's certificate. Johnson was required to leave work and obtain the cer- tificate before she would be allowed back to work. The medical certificate was obtained and given to the Com- pany when she next returned to work. No grievance was filed with management concerning the Company's re- quirement that she obtain a doctor's certificate before being permitted to return to work. Johnson got employ- ee statements indicating the Company's failures to simi- larly require them to present doctors' certificates on their return to work. She gave the Board the originals of these statements and sent copies to the Union.8 Curtis inquired about the requirement and Miller, by letter dated October 14, informed the Union that DCS management has discretion to require a doctor's certifi- cate as they deem necessary. Johnson had read and signed a copy of the policy on January 31.9 Miller testi- fied that he was informed that the management at MAFB decided to require a doctor's certificate in each instance an employee was absent because of illness. The company policy statement that Johnson had signed, pro- vides, in part: "An employee may be required to submit a certificate of notification from a doctor as proof of ill- ness before receiving sick pay." De Filippo claims that she required doctors' certifi- cates explaining absences due to illness in all cases, that it was a company requirement. She testified she required all employees who were out sick to bring a doctor's cer- tificate, without exception.' ° 7 The Company altered the rule in the collective-bargaining agreement under a management-rights clause. There is no contention this alteration violated the Act or was probative of proscribed motive. 6 Johnson's testimony is corroborated by Miller who testified that he understood from Curtis that employees had submitted statements that they were not required to provide doctors' certificates when returning from illnesses and she was to supply copies of these statements . Miller never received copies of these statements. If the Union had provided these statements he claims all the documentation on the matter would have been rescinded and all references to the matter removed from John- son's file. As here pertinent, Miller's letter stated: It is my position that a physician's release be required specifically whenever an employee becomes ill while on duty. I consider this action a safeguard for both the employee and the employer. Simply, if an employee must depart work prior to the end of his/her shift, we should know the reason for the illness. 10 De Filippo later changed her testimony, and claimed only those em- ployees who were out sick a day or more were required to provide a doctor's certificate, not those who went home from work ill and returned the next day. DIVERSIFIED CONTRACT SERVICES Initially, she testified that she was responsible for in suring the Company s rules were enforced but later as serted that she was not responsible for enforcing the policies for all the employees at MAFB, only at building 1226 Freeman was the supervisor at sac alert and gon zales at the in flight kitchen She then admitted that as assistant project manager, she was responsible to ensure all supervisors follow the Company s rules and one such rule is that they require all employees who are off sick to provide a doctor s certificate, even though the rule indi cates the requirement is discretionary The evidence , contrary to De Filippo s testimony, is that many employees were not required to provide doc tors certificates under circumstances similar to Johnson s and not one was required to clock out leave work and obtain a certificate before he or she was permitted to resume his or her employment Johnson was the only employee who lost pay to get a doctor s certificate De Filippo explained this disparity of treatment as attributa ble to her failure to check if the other supervisors fol lowed company policy and required the submission of doctors certificates of the employees they supervise In practice , I find there was no consistent application of a policy requiring employees to submit doctors certif icates when absent due to illness for 1 day or more There is no evidence that any other employee was sent home and told he or she could not return to work with out a doctor s certificate DCS did not claim that John son s illness was different or required different treatment for any reason Johnson went home ill with the flu and several other employees were ill with the flu at about the same time There was no evidence regarding how these other employees were treated De Filippo admitted that according to company records there were a number of employees she super wised who were out 1 or more days sick and DCS did not have doctors certificates for them The absence of doctors certificates is not solely attributable to lost or misplaced documents, for a number of employees testi feed they were not asked for such certifications , some of whom worked in building 1226 Others were required to provide such certificates This asserted management policy of requiring doctors certificates in all instances of absence due to illness was never claimed to have been related to the employees 11 Johnson was again ill on October 13 According to Johnson she telephoned Dormandy around 9 00 a in well before the start of her scheduled workday which was to commence at 11 15 to inform him she would be out the remainder of the week Dormandy inquired i 1 For example Martin Cornish a current employee testified that he went home ill 1 day did not come in for several days and when he re ported to work was never asked for a doctor s certificate Cornish worked at a different building than Johnson his supervisor was Freeman Cornish admitted being informed by Freeman that Dormandy required the employees to bring in such certificates when they were out sick for I or more days but he was not asked for one Stoakley another current employee who works at building 1226 understood employees had to pro vide doctors certificates only on a supervisors request Stoakley had oc casion to leave work because he was ill and when he called to report he would be out ill the next day was informed that he would have to pro vide a doctor s certificate He obtained one but was never asked to submit it to DCS 613 about the nature of her illness and she told him it was excessive bleeding and she was under a doctors care She claims Dormandy said okay, Maureen Just be sure and call back in a week I said okay I will She again called on October 15 around 9 00 a in and spoke to De Filippo who inquired about Johnson s health Johnson reported that the doctor had taken a biopsy and was awaiting the results to determine if surgery would be necessary, that the doctor wanted her to stay out of work for one month but if the biopsy was benign, she would return to work the following Monday De Filippo indicated that everything was fine Johnson as was her practice, then called the Union and told them she was ill On October 19 or 20, she received a letter from Miller dated October 16 The letter accused her of failing to communicate an absence on October 14 and late or short notice call in on October 15 12 On reading the letter , Johnson told Dormandy the as sertions were incorrect because she called him earlier to tell him she would be out and was under a doctor s care She also told Dormandy that she talked to De Filippo on October 15, earlier than 9 45 am, and there was no fail ure to inform management She further informed Dor mandy that even if she had called in at the time alleged in the Miller letter, she still had another 1 1/2 hours before her shift commenced and so she was not guilty of a short notice call in13 or failure to inform management 12 The letter provides You[r] Project Manager Gerald Dormandy has informed me that you personally contacted him on MONDAY OCTOBER 13 1986 and stated that you would not be present for duty on this date due to illness You neither informed Mr Dormandy that you intended to consult a physician nor that you would not be available for sched uled employment on TUESDAY OCTOBER 14 1986 You simply did not appear for scheduled duties On WEDNESDAY OCTOBER 15 1986 you finally contacted Mr Dormandy and informed him that you would not be available for duty for the remainder of the scheduled duty week You estab lished contact with Mr Dormandy at approximately 9 45 a in which was approximately 45 minutes before you scheduled duty shift began Your actions on Tuesday October 14 1986 were in direct conflict with this firm s employee absenteeism policy This is a policy which you are totally familiar with as a Union Shop Steward Simply no person except for yourself was aware that you would not be avail able for employment duties on this date It is necessary to establish the fact that I have discussed your con versations on the above dates with Mr Dormandy thoroughly I ac complished this action based upon our previous communication problems involving other subjects Additionally Mr Dormandy was concise in retention of your telephone conversation It remains with out question that you did not indicate or communicate the fact that you would not be present for your duty shift on Tuesday October 14 1986 If you have any comments to offer in your behalf you should direct them to the Vice President Operations 8201 Capwell Drive Oakland CA 94621 no later than five (5) calendar days after receipt of this notice If you have any questions please do not hesitate to contact me 13 According to Baird s uncontroverted testimony the Company s rules require employees to inform DCS at least 1 hour prior to their scheduled worktime that they would not be able to report for work that day or would be late It was also generally understood that after three short notice call ins the employee would automatically receive a 14 day suspension and after a fourth short notice call in the employee could be terminated There was no claim that Johnson was not aware of or did not appreciate the requirements of the attendance rules including short notice call ins 614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD She then requested the presence of the chief shop stew- ard, which was denied, as usual. Johnson then called the Union and both Curtis and George informed her she was being harassed and to disregard the letter because it was not on a reprimand form. Johnson did not file a griev- ance about the Miller letter. Dormandy had informed Miller of the events which Miller addressed in his October 16 letter to Johnson. Ac- cording to Miller, Dormandy did not call him to report each instance an employee breaches the Company's ab- sence rules, rather he was called by Dormandy only when action needed to be taken; when there was a loom- ing suspension or termination. This testimony calls into question Respondent's actions in this instance, because there was no looming suspension or termination at the time Dormandy telephoned Miller. There was no expla- nation why routine was not followed in this instance. The Company's timesheets do not indicate that John- son had unexcused absences fo:r October 13 through 18; these records indicate she was not scheduled to work those days. DCS did not explain why her timesheet did not denote she was sick or absent without excuse for the days in question. Interestingly, Johnson asserts that she produced a doctor's certificate on her return from this illness but it was not in her personal file. In contrast to Johnson's detailed testimony, Dormandy initially admitted she telephoned him on October 13 but he could not recall the time. He claims Johnson did not inform him she would not be available to work the next day and he expected her to report for work on October 14. He also initially testified he recalled she told him she was seeing a doctor but does not recall being informed why or that she was experiencing excessive bleeding. Dormandy noted there is no written company rule re- quiring employees to notify the Company daily when absent due to illness. There was no evidence that the em- ployees or Johnson in particular was informed of an un- written company rule requiring such daily reports during an illness of more than 1 day, particularly in these cir- cumstances where the employee is found to have report- ed they would be absent the entire week. The company log for October 13 noted that Johnson called and reported that she was unable to work that day because of stomach cramps. De Filippo wrote the note in the logbook, even though Johnson reported her illness to Dormandy. Dormandy then testified that he could not recall if he was the supervisor that took Johnson's call that day. This poor recall and :inconsistent testimony im- pairs his credibility. De Filippo also wrote an entry in the logbook for October 14 indicating that Johnson did not call in or report for work although she was sched- uled for duty from 10:30 to 19:00. Other than the log- book, Dormandy had no independent recollection of Johnson's duty hours on October 14, but he did admit they varied, as Johnson claimed. De Filippo did not tes- tify how she acquired the information she recorded in the logbook under the date October 13. Neither Dor- mandy nor De Filippo claimed they informed Johnson that she was required, under the circumstances, to call in every day she was out sick. Based primarily on demeanor, I credit Johnson's ver- sions of the October 13 and 15 telephone conversations. In support of this finding is Johnson's demonstrated su- perior facility to recall the events and Dormandy's in- consistent testimony and admitted lack of recall. Similar- ly, De Filippo failed to demonstrate clear recall of these events. Johnson was next reprimanded for being 4 minutes late on October 19. October 19 was Johnson's first day back at work after her illness that commenced October 13. Johnson claims, without refutation, she was not late, but on arriving at work and before clocking in, was called into Dormandy's office. Thereafter, she forgot to clock in and was reminded by Lopez of this failure. Johnson then went to clock in and did so 4 minutes late. Two days later, Johnson was given an employee per- formance report, signed by De Filippo. The report states she failed to meet the schedule by being 4 minutes late because she was held up at the gate for not having the necessary documentation for her car. Johnson checked the box on the form indicating she agreed with the Com- pany's statement. She explained that she checked the box for she did clock in 4 minutes late. Dormandy approved the reprimand. When she was given the reprimand, Johnson's request for a steward was denied. Dormandy admitted routinely denying Johnson's re- quests for a union steward, which was contrary to the provisions of the collective-bargaining agreement. He reasoned she was a union steward herself, and apparent- ly, therefore, did not need representation. Also, he said the only other steward available was Baird who worked at SAC Alert. He claimed Johnson knew she could bring Baird at a time Baird was not working, as long as the time was mutually agreeable. He never claimed he made this offer to Johnson or how she had gained this assumed knowledge. Johnson called the Union on receipt of the reprimand and states she was again told she was being harassed. She never grieved the issuance of this reprimand. The is- suance of a reprimand under these circumstances was not claimed or shown to be the result of disparate treatment. The Company, in its position paper to the Region dated February 9, 1987, asserts that this tardiness was not relied on as one of the four violations of the absence rules that led to their decision to terminate Johnson. On October 20, Miller informed Curtis by letter that the Company was reducing a shift's hours, and specifical- ly mentioned by name only Johnson, as steward, would be affected and offered her the opportunity to exercise her bumping rights. Johnson did complain to the Union about the reduction in her hours. The General Counsel argues that this action is indicative of proscribed motive for only Johnson's hours were shown to have been re- duced while other employees on the same shift worked the same number of hours as they had prior to the letter.14 Dormandy could not name any employees who 14 The General Counsel also argues that the letter, by only mentioning Johnson by name, is further indication of proscribed motive. This argu- ment is not convincing because Johnson was the only steward claimed to be involved and there was no demonstration that any other employees were in a situation where they held bumping rights. I note Johnson also claimed that her hours were reduced after she became shop steward. The Company argues that the timesheets for April through May fail to sup- Continued DIVERSIFIED CONTRACT SERVICES similarly had their hours reduced during the same time period and there was no documentation introduced by the Company that indicates the General Counsel was in error claiming only Johnson s hours were reduced at this time The Company s assertion that other employees on the shift were similarly affected was unsupported This bare claim is unconvincing The timesheet for November 1-15 shows Johnson working only 52 hours, which was less than most other employees on the shift, even though the collective bargaining agreement required her as stew and to be considered the most senior employee In con trast, the timesheet for September 15-30 showed Johnson working a total of 85 hours, more than any other em ployee on the exhibit 15 The Company failed to explain why only Johnson s hours appeared so greatly affected, while less senior employees worked about the same number of hours during these periods Respondent Com pany, on brief only asserts that it notified the Union of the potential impact of a shift wide manning reduction there was no explanation why Johnson was the most ap parently and greatly impacted by this asserted change I find this obvious lapse indicative of proscribed motive I find support for this determination in Dormandy s testimony that there was never any across the board re duction on any shift in October Dormandy could not ex plain the reduction in Johnson's hours on November 1 There were no demonstrated shift changes or other non discriminatory event in October that would explain the noted reduction in Johnson s hours On October 30 Johnson received two written warn ings The first warning was for insubordination on Octo ber 28 According to the employee performance report prepared by De Filippo, Johnson failed to follow prior instructions to not leave the serving line to get a drink of water unless properly relieved and to not drink the water on the line When approached by the supervisor on this matter, you became loud, crude and rude Your voice was unnecessarily loud, especially in the presence of other customers Johnson refused to sign the report Dormandy approved the issuance of the report When Dormandy attempted to give Johnson the report she re quested a shop steward and he refused her request John son told him Miller said he would permit shop stewards to be present in these situations but Dormandy again re fused her request so Johnson informed him she would not further discuss the matter with him Johnson asserts she did not sign the notice for it was incorrect and she was not permitted to be represented by the requested union steward Johnson said she was told by the Union she was not to receive any reprimands without the repre sentation of a union steward Johnson testified that she had gone to get a glass of water and was near the cash register when she was ap port this claim There is no evidence that Johnson actually worked 12 hours l week shortly after she was elected a union steward However De Filippo did not refute Johnson s testimony that she was scheduled to have her hours cut to 12 hours and after complaint to the Union and De Filippo her hours were restored Accordingly I do not find the failure of the timesheets to demonstrate a cut in hours a complete refutation of Johnson s testimony that the Company intended to cut her hours shortly after it learned she was elected the union steward for building 1226 15 See G C Exhs 83 and 84 615 proached by De Filippo who told her she could not drink out of a container, that there was a water faucet in the kitchen Johnson replied that all the other employees drank out of either cups or glasses while working on the line De Filippo told her she did not want Johnson to drink from a container and to return to work Johnson took the glass to the dishwashing area and consumed the drink The Charging Party maintains that she was not loud and abusive or otherwise insubordinate and did not consume the drink in the area of the line, rather she went to the dishwasher area to drink the water She asserted, without refutation, that her duty station encompassed both sides of the line and so did not leave her work sta tion to get the water According to Johnson, there was another employee assigned to the line performing similar work Johnson admitted that one of her duties was to ensure the line was running efficiently De Filippo s version of the incident is that Johnson left her duty station while there was a long line of customers to get a glass of water According to De Filippo, John son was the only employee assigned as line server and her absence left customers without service 16 Another difference in testimony is that De Filippo avers that when she told Johnson she was not allowed to drink the water while on the job and she was not to leave her area, Johnson replied loudly that she did not like De Ft lippo s instructions and continued to walk through the line while dunking the water and went to the dishwasher room, not following instructions The reference to loud and abusive, according to De Filippo, is Johnson assertedly replied to her instructions thusly Jesus Christ, I can t even get a drink It s very hot in here And you are always after me And she was mumbling something as she was walking away All right you could not hear what she was mumbling 17 According to De Filippo s uncontradicted testimony for sanitation reasons drinking beverages on the line was against Air Force regulations that state that the only time they could drink on the job was at the water pump in the kitchen area De Filippo estimates that Johnson was away from the serving line for approximately 3 min utes Baird who had worked at building 1226 for 3 months, confirmed that there was a rule against drinking behind the food line but asserted convincingly that it was not enforced She observed a cook who had been an employ ee for 7 years dunk coffee every morning while working behind the line The cook was supervised by De Filippo and Dormandy and she worked a regular shift from 5 am to 1 p in when De Filippo was present Baird when informed of Johnson being reprimanded for drink 1e De Filippo who was responsible for scheduling employees asserted that the infraction occurred during dinner hour when the other mess at tendants (the chow runner vegetable service and a pastry server) were not on the serving line for they had fewer customers for dinner than for lunch However De Filippo could not recall who else was scheduled on the same shift as Johnson on October 28 No company records were proffered to support De Filippo s claim 17 De Filippo did not reconcile her claim that Johnson was loud crude and abusive with her testimony and that she could not hear most of what Johnson said because she was mumbling De Filippo also failed to relate any crude and rude statements 616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mg water behind the line telephoned Curtis and in formed the Union of the event Curtis told Baird that the Union would definitely file a grievance asserting harass ment Baird s testimony was unrefuted and based on her demeanor which appeared candid and forthright, is credited I credit Johnson s version of the incident based primar ily on demeanor Johnson appeared to be testifying in an open and honest manner In contrast, De Filippo ap peared less than forthright, not answering questions di rectly at times, but volunteering information not ad dressed in questions to ensure certain statements were in cluded in the record Also her rendition of the incident appears confusing at the least for the alleged violation is drinking water from a glass when Johnson allegedly left a busy serving line where she was the only server for about 3 minutes to get the glass of water Also as de tailed above her testimony about Johnson s statements is inconsistent with the claim of loud, rude, and abusive re joinders and inability to hear her because Johnson was mumbling The anomaly of this claim is increased by the failure to refute Johnson s claim that other employees also regularly consumed beverages while working on the line without being thus disciplined This incident was not used as a basis to discharge Johnson, but the General Counsel argues that because the Company raised the incident in a position paper it is an example of the Company s animus Also on October 30, Johnson received an employee performance report for a violation of the attendance rulesi8 on October 29 The report noted that this was Johnson s third violation of the attendance/tardiness rules Johnson refused to sign this report for she was again refused the presence of the chief shop steward when Dormandy approached her with the discipline Johnson s attendance sheet indicates that she was not scheduled to work on October 29 This anomaly was un explained She could not recall if she was to work that day Also on October 30 Miller wrote Johnson a letter concerning her unsatisfactory performance The letter re ferred to October 1 correspondence which supposedly listed employer policies Johnson had violated Miller then wrote On October 29 1986, you performed a short notice call in to report that you would not be present for your scheduled duty shift Apparently, you reported that an immediate family member was utilizing your personal automobile As you are aware, our published absenteeism policies outline that it is each employees responsibility to provide his/her own transportation Simply, transportation to your place of employment is a responsibility that is your own and not this employers Furthermore you were not able to comply with the excusable ab Specifically the report states You were scheduled for duty at 11 00 AM [sic] at 10 37 AM [sic] I received a call from you stating that you had a problem with trans portation You told me that you would be late for duty and it was possible that you would not be in to work at all You did not report for duty your entire shift senteeism procedure regarding transportation (veri fiable repair and/or towing) as listed in our policies On October 28 1986, you departed your work station during a customer meal period in order to obtain a glass of water You were observed by your Assistant Project Manager Mrs De Filippo in formed you that you could not return behind the meal serving line with any beverage container Also she informed you that a water fountain was available behind the serving line wall for employees while on duty, a fact of which you were aware You responded to your manager with the following comments in a loud and abusive voice in the pres ence of other co workers and customers Other employees do it and You always have something to say to me Additionally, you continued to ignore Ms De Filippo s directive and continued to drink as you walked through the kitchen area to the dishwashing room Your above actions were in direct violation of three (3) Corporate policies You displayed outward insubordination towards a member or your manage ment staff you failed to comply with a lawful di rective of your manager and you departed your work station during a customer meal period without authorization Ms Johnson, your actions on October 29, 1986 dictate an employee suspension of 14 normal work days You are totally aware of this action as con tamed in the DCS Absenteeism Policy However I do not intend to impose this suspension at this time I do not feel that a suspension will correct the many problems I have encountered with your ongoing performance at Mather It is essential that you fully understand my following comments and if you have any questions you must contact me immediately IF DURING THE NEXT SIX (6) MONTH PERIOD THIS EMPLOYER ENCOUNTERS ANY PROBLEMS REGARDING YOUR ABILI TY TO COMPLY WITH ANY PUBLISHED EMPLOYEE PROCEDURE YOUR FUTURE EMPLOYMENT WITH OUR FIRM WILL BE TERMINATED The letter also referred to an incident involving the injury of another employee where Johnson was consult ed, by an employee about disability claims The employ ees claim which was related to the Union was that the Company did not take the employees to the hospital in a timely manner According to Johnson s uncontroverted testimony, pursuant to George s instructions she amica bly related the incident to De Filippo Johnson who did not have a drivers license was driven to work by her daughter, who also used the car to go to and from her own employment Johnson repre rented that on October 29 her daughter telephoned her to report the cars tire blew out on the freeway After obtaining a friend s assistance she went to the car and the tire was replaced Johnson claims she called De Fi lippo at 9 or 9 15 a m to report the blowout and was in structed not to come in the rest of the day The call was more than 1 hour before she was to start work that day DIVERSIFIED CONTRACT SERVICES She was not instructed to get verification of car repairs Regarding Miller s reference to an October 1 letter, she could not locate or recall getting the letter She claims Miller s letter is replete with inaccuracies Johnson un derstood Miller s reference to ongoing performance problems to her continued union activities because she had no bad reports about her work De Filippo who wrote the report, logged the call in pursuant to company policy She also reported the matter to Dormandy Her testimony was not detailed about the incident She vaguely recalled Johnson calling in and saying she would be late for work or might not report at all due to transportation problems, but De Fi lippo definitely claims she did not excuse Johnson from work that day, although she had the authority to tell her not to report for work Johnson did not show up at 11 15 a in Again, De Filippo s demeanor was not convincing and she had to be instructed to answer questions Miller testified he wrote the October 30 letter to inform Johnson that she had a number of violations and to afford her an opportunity to correct her performance The reference in the letter to his October 1 correspond ence was an error he may have been refering to the Oc tober 16 letter Although admitting that this third violation of the absenteeism/tardiness rules normally would dictate a 14 day suspension he did not suspend Johnson for he deter mined it was not the answer to correcting her problems, that in similar circumstances he gives the employee a set period of time to correct his or her performance prob lems In Johnson s case he gave a 60 day probationary period At the time Miller made this determination not to sus pend Johnson he did not know if she had been taken off the schedule on October 29 or had been given the oppor tunity to verify that she had a problem with her car on that date 19 He also did not know whether Johnson was directed to report the incident involving the employee who Johnson understood had a hairline fracture He did not explain what, if any part, her activity as a union steward which was commented on in the letter, played in his determination to issue the letter imposing a broad and long probationary period He did not explain why his probationary letter referred to any future rule viola tions resulting in termination rather than a fourth viola tion of the absence policy Johnson did not file a grievance over the discipline re ferred to in Miller s October 30 letter She explained that she wrote a grievance after receiving two letters from the Company and having contacted the New York office of the International she did not again contact the local office in San Francisco I note that her affidavit does not state she contacted the Union after receipt of the Octo ber 30 letter or that she was informed by Curtis to disre gard the letter even though she testified to those events The affidavit was not introduced into evidence and it is not possible to access if these failures were caused by the 19 By the time Miller sent this probation letter the Union filed the charge alleging the Company was harassing union stewards and other union activists because of their union activities This charge in Case 20- CA-20703 was filed on October 27 and served on DCS on October 28 617 affidavit focusing on the discharge and not the allegation that the Union breached its duty of fair representation Accordingly no inferences will be drawn from these failures 20 Johnson credibly claimed she informed the Union each time she was disciplined by the Company but filed only one greivance claiming harassment and one concerning her discharge Curtis admitted receiving numerous tele phone calls from employees about asserted contract vio lations or problems at MAFB and if she thought she could resolve the matter, would immediately contact the Company She did not claim to have done so in any of the matters concerning Johnson, this failure was unex plained However, based on Curtis testimony I find that the Union had a practice of accepting informal griev ances and attempted to resolve them as a matter of course 3 Events occurring in December a Discharge of Johnson Johnson was discharged on December 16 for a fourth violation of the absenteeism/tardiness rules A few days earlier, her car broke down and she and her daughter relied on a friend to provide a car The friend failed to provide the car in a timely manner on December 16 and she telephoned DCS informing De Filippo that she would be late De Filippo told her to come in when the car arrived Johnson was about 10 minutes late and she was told not to clock in De Filippo wanted to speak with her first De Filippo informed her she was off the clock and was to go home 21 Johnson asked why she was instructed to report De Filippo replied she had not been thinking that she called the home office and was directed to send her home Johnson went home and called Baird and the Union The Union instructed her to file a grievance and either George or Curtis, she was not sure which, told her she was being harassed The union agent also informed her that the Union had already filed the harassment charge Later in the day Baird telephoned and informed John son that she had been terminated for being tardy John son then called the Union and told George she wanted her check and anything else owed to her and asked him to ensure everything was ready when she went to MAFB the base the following day On the morning of December 17 Johnson attempted to place a collect call to the Union however the local refused to accept the charges Johnson then telephoned the International office in New York spoke to an individual she believed was Elwood Hamton, who told her to stay on the line and they contacted the local and assured her that the local would accept her call and assist her in protesting her dis charge She does not know who at the local refused her call, but stated it was not either George or Curtis 20 I also note that Johnson asserts that her affidavit is incorrect in stat ing that her car broke down on December 16 her car blew up 4 days prior to that date 21 I note that the Company s timesheet for Johnson does not indicate that she was absent or guilty of a short notice call in on December 16 618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Also on December 16, Miller sent a letter to Johnson, which provided, as follows As you are aware, I have personally addressed your performance on a number of separate occa sions More important, I provided you correspond ence on October 30, 1986, which specifically ad vised you of the following First, your performance through the date of my [sic] October 30, 1986, did dictate a 14 day suspen sion of employment However, this suspension was not enforced based on my personal belief that such suspension would not correct your performance problems Secondly, you were specifically informed that any performance problems during the next six (6) month period would result in your termination of future employment with DCS On December 16 1986, you again failed to report on time for your scheduled employment duties Also, you again performed a short notice call in (shift scheduled to begin at 11 00 a in -management was contacted at approximately 10 55 a m) and stated you would not be present for duty due to transportation problems This was the excuse that you offered for your absenteeism on October 29, 1986 I now find it necessary to inform you that effec tive upon your receipt of this notice your future employment with DCS is hereby terminated This decision on my part is directly in accordance with my previous notice Therefore, I am of the opinion that you were provided sufficient advance notice in an attempt to offer you the opportunity to correct your performance You are offered the opportunity to appeal this action However any comments submitted on your behalf must be submitted in wasting within seven (7) calendar days after your receipt of this notice If you have any questions please do not hesitate to contact me On December 17 Johnson went to MAFB and with Baird met with Dormandy Dormandy gave her the Miller letter dated December 16 and a form indicating she was terminated for tardiness Johnson objected as serting she was not tardy four times so Dormandy crossed off the check mark next to the tardiness box on the form and wrote see attached letter This was a reference to Miller s letter of December 16 Johnson never contacted Miller or used the company appeal process referred to in Miller s letters This letter and the other company documents given Johnson on or about December 17 and therafter do not specify the dates and/or incidents relied on in the decision to discharge her This failure was not alleged by the Company to be a standard practice Miller testified he terminated Johnson for perform ance problems ' He could not recall the exact basis for the decision but understood it was solely based on four violations of the absenteeism policy He notified the Union in advance but could not recall if he consulted anyone in the Company before determining to terminate her Dormandy testified he telephoned Miller s office to report Johnson was absent for a fourth time, pursuant to his standard practice When Miller was recalled he was much surer in his testimony He explained the process of appeal, that the employee could give the Company a statement explain ing his or her absence such as a receipt from a garage or service station in the event of a vehicle breakdown Johnson was not asked by De Filippo or Dormandy for such documentation No such documentation was prof fered by Johnson to the Company or by the General Counsel during the course of the trial The General Counsel asserts that the decision to terms nate Johnson was patently pretext For example, Miller s letter claims Johnson said she would not be present for duty, but she did report for work, late Also the dis charge after four violations of the absenteeism/tardiness was not followed in all cases and thus was additional evidence of disparate treatment Miller routinely issued 14 day suspension letters in most cases and in these let ters he threatened termination if the employee again vio lated the attendance rules (emphasis added) 22 b Johnson s termination grievance The Union had a meeting scheduled for the evening of December 22 to consider collective bargaining issues, in cluding the claim the Company was harassing union stewards and/or activists and to elect a shop steward to replace Johnson The principal purpose of the meeting was to prepare for a planned meeting with DCS manage ment to be held on December 29 where the scheduled discussion was of recurring employee complaints As is the case concerning the other events on which this deci sion rests, the testimony is contradictory and credibility resolutions will be determinative of whether there were any violations of the Act In preparation for the meeting George and Curtis ar rived on the afternoon of December 22 Baird met them at MAFB at about 1 45 p in Baird was with the union representatives about one half hour during which time she informed them that Johnson would be at the meeting that evening to file a grievance over her discharge Ac cording to Baird whose testimony is credited they all left together 23 At some point the Johnson grievance was included in the agenda of the December 29 meeting 22 For example see the letters issued to Mark Becker Louise Cooper Stephanie Cnspi James Harris Suzette Harass William Jefferson De lores Kyle Juanita Moreno Lawrence Murphy and others where the at tendance or other specific performance problems were mentioned in the threatened discharge for future violations 22 George claimed he briefly left Curtis and Baird and telephoned Miller to place the Johnson grievance on the agenda for the December 29 meeting the Union had scheduled with DCS Miller did not corrobo rate George s testimony but Curtis did I do not find George s testimony or Curtis corroboration convincing They both did not appear to be at tempting to present all the facts regardless of the impact on the case They both did not answer questions asked by counsel for the General Counsel having to be directed to respond at times and they volunteered information George admitted to poor recall and was notably unrespon sive as a witness he did not appear to be attempting to be helpful in de veloping the record Both were patently reticent to give testimony they perceived as antithetical to the Union s interests Accordingly their testi mony is not credited if it is not an admission against the Union s interests or is not credibly corroborated DIVERSIFIED CONTRACT SERVICES 619 Before the union meeting began on December 22, Johnson handed her discharge grievance to George who signed and dated it and then he handed it to Curtis who told Johnson she would hand" (sic) it in She did not discuss the merits of the grievance with either George or Curtis and convincingly claims that she never discussed the merits with George Baird, Curtis, Melvin Stoakley, and Johnson testified that George never mentioned that the Johnson grievance was to be discussed during the December 29 meeting with the Company 24 Two employees, Martin Cornish and Fisher testified that George announced Johnson s grievance would be considered during the December 29 meeting with the Company Fisher took notes in pencil during the meet ing, as was her custom Because the notes were written with a pencil, Fisher could not read half what I wrote There was a reference to Johnson's discharge and a car blowing up-in the same sentence she refers to a meeting with the Company on December 29 Fisher had no independent recall of the events and could not confirm that the reference was to Johnson's grievance The purpose of the December 22 meeting was to prepare for the Union's meeting with the Company on December 29 to consider the employees problems including such matters as scheduling during holidays, forthcoming nego tiations, seniority, equal opportunity, safety equipment, and heavy duty assignments These subjects were the an nounced reasons for the December 22 and 29 meetings 25 I credit Johnson s testimony that she was not informed that her discharge grievance would be considered during the December 29 meeting with the Company Johnson did not attend the meeting and, considering her activism on both her own and others behalf, it appears highly un likely she would not have attended if she had known the meeting with the Company would include consideration of her discharge grievance Also, the announcement of a meeting to consider her grievance is a fact Johnson would likely recall Baird was also not in attendance on December 29, claiming convincingly based on demean or that she was not informed of the inclusion of John sons discharge grievance in the meetings agenda and she was not invited to assist in representing Johnson 26 24 Stoakley is a current employee of the Company who has no interest in the outcome of this case He was recently promoted by the Company His position of disinterested witness in addition to his demeanor leads me to credit his testimony Although he admits to leaving halfway through the meeting Fisher claims that her notes indicate the announce ment concerning Johnson s discharge grievance would have to have been made at the beginning of the meeting Her testimony is discussed post Thus Stokeley s departure before the conclusion of the meeting does not diminish the reliability or convincing nature of his testimony 25 As support for this finding I note that George s missive to the mem bets dated December 30 relating the subjects discussed at the December 29 meeting does not mention Johnson s grievance The union service report George prepared after the meeting does not mention Johnson s discharge grievance being included in the December 29 meeting Add] tional support for this conclusion is contained in George s testimony where he claimed he informed Johnson of the inclusion of her grievance in the agenda for the December 29 meeting in a telephone call placed the afternoon of December 22 and prior to the commencement of the meet ing not during the meeting as Fisher claimed I also note that Miller testified he could not recall meeting with the Union concerning Johnson s termination 25 Baird testified without contradiction that in the processing of the grievance of another employee, Kyle Baird went to building 1226 to assist in the representation of the employee but was told by George that Baird had a 1 week vacation after the December 22 meeting, she was at home that week George could not recall if he told Baird that Johnson's grievance would be discussed at the December 29 meeting George testified that the evening of December 22, he talked to Johnson about her grievance before the meet ing started According to George, Johnson made various and contradictory statements about why she was late on December 16 George told her, after asking which was the correct version, it was alright they would sort it out later One version he recalled was that Johnson men tioned her car blew up while her daughter was driving it and she and a neighbor had to go get her and the neigh bor was to bring her to work but then she realized she would be late George never asked for verification that her car broke down, nor is there any convincing evi dence he discussed all the incidents relied on by the Company with Johnson either before or after the De cember 29 meeting In fact, there was no clear showing George knew which incidents the Company relied on in determining to terminate Johnson George then asserts that they discussed different as pects of her grievance, and he mentioned the December 29 meeting was to commence at 9 a in, in Miller s office in Oakland Because Curtis did not confirm these repre sentations, for the reasons previously given I do not credit these self serving statements However even if they are credited there is no claim by George that he announced during the meeting that Johnson s grievance was to be considered during the December 29 meeting, contrary to Fisher s testimony 27 In contrast is Curtis testimony, which is more con vincing because it is contrary to her former Employer s interests Curtis testified that George merely told John son he was going to call Miller to see if the discharge grievance could be handled during the December 29 meeting c The December 29 meeting Neither Baird nor Johnson attended the December 29 meeting where the Union and Company discussed John son s discharge grievance The Union did not call either Baird or Johnson before commencing consideration of the Johnson discharge grievance I find this failure is fur ther affirmation that neither was informed of the meeting he would be present and she could not attend the meeting Accordingly there appears to be a pattern where George deemed it unnecessary to have the chief shop steward present during grievance meetings with the Company if he was present This undisputed precedent lends additional credence to Baird s and Johnson s testimony 27 George s testimony was inconsistent and confusing For example he testified that he arrived at MAFB at about 12 50 p in In a letter to union counsel dated May 4 1987 he asserts he arrived at the base at 11 a m and talked to De Filippo and Dormandy about Johnson s termination and then telephoned Miller to see if the matter could be discussed on Decem her 29 Miller did not assent until later in the day about 2 30 p in George then claims he telephonically notified Johnson of the meeting that was to commence on December 29 at 10 am He testified he told Johnson that the meeting was to commence around 9 a in These incon sistencies were never reconciled George merely claims the letter is more accurate than his testimony Baird claimed she met with George and Curtis after I p m and Curtis claimed they amved between 12 30 and 1 pm 620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and was not expected to attend 28 George was aware that Johnson considered at least some of the reprimands a form of harassment in retaliation for her union activi ties as an active shop steward He was not aware that she considered all the reprimands part of the Company s campaign of harassment against her shop steward activi ties 29 This admission indicates that George did not speak with Johnson about her discharge grievance, in corroboration of Johnson's claims I also note neither George nor Curtis testified that they consulted one another about the harassment and dis charge grievances, although Curtis testified that George was in and out of the office between December 22 and 29 Curtis knew Johnson felt she was being harassed be cause she was an active shop steward, but there is no in dication that she participated in any manner in the De cember 29 resolution of Johnson s discharge grievance The meeting also addressed employee complaints that management harassed them when they engaged in con certed protected activity In George s report to the mem bers concerning the results of the meeting he wrote Our complaint that when members complain to man agement or go to the Union about grievances, that retali atory action is taken against them such as undeserved reprimands and harassment was flatly denied We were told to give specific instances, and remedial action would be taken George also informed the members that they should consider arbitration of the harassment complaints, even though the harassment charge that the parties mutually agreed to arbitrate was not resolved George when he addressed the employees claim that De Filippo in par ticular harassed the employees did not have any MAFB shop stewards present The harassment claims were not resolved at the December 29 meeting and another meet ing was scheduled for January 14 1987 Rather than determine if the shop stewards or employ ees at MAFB had specific instances illustrative of their claims of harassment George went to another military base where De Filippo formerly worked He chose this course of action to verify DCS claims about De Filip po s style of management and determined that her former 28 Baird was sent an agenda of the meeting on or about December 23 but due to the difficulties surrounding Christmas mail delivery credibly testified that she did not receive the notification until January after the meeting This claim is confirmed by a return receipt dated January 3 1987 This agenda does not mention Johnson s discharge grievance Thus it appears that Curtis who prepared the agenda did not know that the Johnson discharge grievance was to be considered at the meeting There is no corroboration of George s claim that he and Miller had agreed to discuss the grievance at the meeting Thus I conclude that neither John son nor Baird was informed that the meeting would include consideration of Johnson s discharge grievance I also find that the Union admittedly accepted responsibility for presentation of this as well as the harassment grievance 29 When George was asked You were aware weren t you that some of the instances of discipline meeted out to Maureen Johnson were the subject of the [harassment] charge that Effie De Filippo was harassing the unit members weren t you ? George replied Not positively Thus I find that George admitted that at the very least he did not understand the full nature and scope of the grievances he was handling George claimed he did not have any responsibility for handling that charge but he failed to explain how he then handled the discussions of the harass merit issues during the December 29 and any other meeting concerning the harassment grievance This confusing and somewhat conflicting testi mony further erodes George s credibility employees found her very strict but fair The employees of this other base were also represented by the Union George concluded that De Filippo was simply strictly adhering to the rules He considered this a complete in vestigation of the harassment charges On examination by the union attorney, George testi fled somewhat differently, claiming that he spoke to the majority of the employees at MAFB and some indicated De Filippo showed favoritism to employees He then went back and talked to the same employees and deter mined that they felt that although she was very strict, required complete adherence to the company rules and her rules, that they felt she was fair He did not claim to have attempted to reconcile the different views of the employees or to determine why any may have changed their opinion George concluded after speaking to the employees at the other military base that De Filippo was very strict and the employees at MAFB misinterpreted her actions and statements as harassment, that there was no indication De Filippo harassed employees because of their union activities On or about December 8, Johnson filed a grievance claiming harassment of her as shop steward by De Fi lippo The incident arose when Johnson, after her shift ended, clocked out and remained to speak with employ ees who had requested the opportunity to consult her as shop steward She was ordered to leave by De Filippo even though she informed De Filippo that she was a] lowed on the premises to meet her obligations as a shop steward Johnson asserted in the grievance that she ad dressed about 95 percent of her union business while off the clock because the Company would not permit mem bers to speak to her during working hours She also claimed that De Filippo harasses any member that comes to me on Union matters There was no indication Johnson was present at the meeting addressing this grievance This failure further substantiates her claim that she was never informed the December 29 meeting would include consideration of her discharge grievance George did not indicate he in vestigated this grievance or talked to Johnson before re solving it with DCS Apparently George had followed his established practice and handled both of her griev ances without consulting her about the basis for her grievances George considered Johnson s discharge grievance as having been completely investigated and resolved at the December 29 meeting, even though he had not complet ed his investigation of the harassment allegations George testified as follows I did not consider the grievance and her termination as part of the alleged harassment ' Al though not detailing the measures agreed on by the Company and the Union George noted as the disposi tion of the grievance that procedures were adopted to improve investigation by the shop stewards He informed Dormandy that the collective bargaining agreement re quired the Company to afford shop stewards time while they were on the clock to perform investigations They agreed to permit such time for investigations if the shop stewards notified their supervisor The record is silent DIVERSIFIED CONTRACT SERVICES whether George notified the stewards of this resolution of Johnson s harassment grievance In preparing for the discharge grievance portion of the December 29 meeting George knew Miller was sched uled to leave for Alaska shortly and that he would be gone until February George admitted the only discus sion he had with Johnson was at the December 22 meet ing even though he told her he would get back to her recognizing that he did not clearly understand her posi tion On December 29 he asked and was permitted to review Johnson s personnel file After examining all her reprimands relating to tardiness and Millers denial that any were issued as harassment or ill will toward shop stewards, which George considered an honest response he determined Johnson s termination was justified There was no indication he asked Dormandy or De Filippo whether they felt any ill will toward Johnson or other shop stewards because of their union activities There was no indication that Miller or any other corn pany representative indicated to Johnson and/or George which reprimands were relied on in the determination to discharge Johnson George had been present when Miller Dormandy, and De Filippo discussed the repri mand issued to Johnson concerning the surveillance monitoring report that alleged performance deficiencies and when the supervisors were asked by Johnson about her work, they admitted she was a good worker con trary to Millers September letter George never com mented on this apparent inconsistency He did not indi cate that this information was considered in assessing the Company s decision to terminate Johnson or his treat ment of the harassment claims On December 30 George wrote Johnson a letter in forming her that the Union concluded that the Company did not violate the collective bargaining agreement when it terminated her employment 30 The letter is further in dication that George did not inform Johnson of the meeting for it states the site of the meeting and lists the attendees as if she did not know This reference to meet ing site and attendees was not claimed to be routine The letter does not mention any evidence or facts presented by Johnson Baird or any other person who may have been consulted on Johnson s behalf It was only at the trial that George claimed he did not credit Johnson be cause she gave confused versions of the December 16 late call in when he talked to her on December 22 He 30 Specifically the letter states As a result of the above reference a meeting was held at Diversi fled Contract Services Inc Oakland California on the 29th of De cember 1986 Present at this meeting were the following For the Union Robert J George ITPE representative Maria H Curtis Administrative Assistant For the Company John Miller Vice President Operations G Dormandy Site Manager [sic] Mather AFB Ms Melba Watts Director of Human Resources Jack Hall Manager The Company presented documented evidence portraying your work performance (absenteeism) and attitude while at work We therefore find that the Company did not violate any of the articles of our Collective Bargaining Agreement in the termination of your employment If I can be of any further assistance please do not hesitate to con tact this office 621 did not mention this as a reason in his December 30 letter This failure is unexplained and is found to be evi dence that the reason is an afterthought On January 21 1987, George resolved the harassment complaints about De Filippo by informing the Company she is found to be a perfectionist and there was no evi dence she was guilty of harassment that would or could be characterized as discouraging Union Membership or interfering with Union Management There is no evi dence or claim that George informed Johnson of the res olution of this grievance George admitted he did not inform Johnson of any meeting concerning this griev ance there is no claim he discussed any matters relating to the grievance with her IV ANALYSIS AND CONCLUSIONS A Alleged Discrimination As indicated above, the complaint asserts that Re spondent Employer committed several violations of Sec tion 8(a)(3) and (1) of the Act Section 8(a)(1) of the Act makes it an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exer cise of the rights guaranteed in section 7 of the Act Section 8(a)(3) of the Act makes it an unfair labor prac tice for an employer by discrimination in regard to hire or tenure of employment to encourage or discour age membership in any labor organization In determining if DCS violated Section 8(a)(3) and (1) of the Act the Board in Wright Line, 251 NLRB 1083 1089 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert denied 455 U S 989 (1982), approved in NLRB v Trans portation Management C o r p, 462 U S 393 403 (1983) adopted a causation test based on employer motivation Initially the General Counsel must make a prima facie showing that protected activity was a motivating factor in Respondent Employers decision to take the allegedly discriminatory action Once the General Counsel has made this showing the burden of persuasion shifts to the employer to show that the employee would have received the discipline or other claimed discrimma tory action in any event because of unprotected con duct Champion Parts Rebuilders v NLRB 717 F 2d 845 849 fn 6 (3d Cir 1983) These statutory standards are applied to the individual interrelated allegations of discriminatory action consid ered herein 1 The written warning of September 23 The General Counsel argues that the issuance of the September 23 written warning was motivated by dis criminatory considerations for it was the only reprimand issued to a MAFB employee based on a contract mom toring and surveillance report Miller admitted he did not routinely receive such reports and DCS was able to identify only one other employee, Gates who received written discipline based on deficiencies mentioned in a contract monitoring and surveillance report 31 The 3i Gates received an unsatisfactory performance letter from Miller based on three employee performance reports issued in less than a 6 Continued 622 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD letter, dated August 21, 1987 cautioned Gates against any additional violations of employee work requirements during the next 60 days An additional violation could result in your suspension If you have any questions re garding your work requirements and/or procedures, please ask your Supervisor There were no similar disci plenary actions adduced for receipt of unsatisfactory re ports from the military prior to Johnson s discharge Dormandy sought to have Johnson removed from the position of line server and given another assignment-a request Miller denied Dormandy testified he made the request because he previously talked to Johnson about deficiencies in her performance This bare assertion was not complemented by any details of any asserted previ ous conversations or the specifics of the employees per formance deficiencies on these occasions He also made the bare claim that he spoke to the other employees men tioned in the contract monitoring and surveillance re ports, but he failed to identify these individuals or supply any details concerning these talks There was no expla nation why these other employees were not similarly dis ciplined As noted above, Dormandy, based principally on de meanor, was not found to be a credible witness I also note that he testified that he spoke to the individuals he could identify who were also referred to in the contract monitoring and surveillance reports that led to disciplin ing Johnson Dormandy testified he followed the inspec tor around and could not explain any failure to identify any particular employee whose deficiencies were men tioned in the reports Thus, the basis for the Company s failure to similarly treat the other miscreants is disingen uous at the least The Company s failure to substantiate Dormandy s claim that it was not singling out Johnson or otherwise explain the apparent disparate treatment in dicates the discipline levied the same day Johnson vigor ously represented another unit member, was for pro scribed reasons This conclusion is further supported by the finding that Dormandy s claim that he wanted Johnson removed from the serving line because of asserted prior similar performance problems is also pretext Johnson s corrobo rated testimony is that Dormandy and De Filippo admit ted Johnson was a good worker This testimony was not specifically refuted by either Dormandy or De Filippo Dormandy s testimony which I find is dissembling fur ther supports the conclusion of unlawful motive Dormandy has not requested, and except for Gates notice Respondent Company had not issued any other employee performance reports or imposed other disci pline for alleged service deficiencies noted in monitoring and surveillance Yet Respondent failed to show that it requested reassignment of other employees similarly criticized by military inspectors This apparently unusual request is another indication of disparate treatment of Johnson This conclusion is buttressed by Dormandy s admission that he normally throws away the monitoring and surveillance reports-an action dispelling any asser tion these reports were of major import Another indication of motive is the verbiage chosen by Miller in his September 23 letter Johnson was warned of greater disciplinary action after receiving only one repri mand for performance problems on the serving line Re spondent has not adduced any evidence of similar warn rags being issued to other employees who committed similar infractions On this same date Miller wrote the letter to George asserting that Baird and Johnson were causing the Company problems in their actions as shop stewards and also asserting, without details, Johnson s performance is considered below average Again this as sertion is contradicted by the unrefuted and corroborated testimony of Johnson that both Dormandy and De Fi lippo admitted on or about September 23 she was a good worker The infractions noted on the contract monitoring and surveillance report was the asserted basis for the claim her performance was below average Assuming this is the basis, for it is the only discipline levied for her per formance as of this date, the reference to a more perma nent solution in the event she does not perform her future duties in a more satisfactory manner, infers dis charge (suspension does not arguably effect a more per manent solution') 32 I find this inference and the resort to pretext establish a prima facie case This conclusion is reinforced by my earlier finding that Miller often re ferred to Baird and Johnson as troublemakers which is often used as a pseudonym for union activists There was no other personnel file placed in evidence that contained a letter with the threat of termination for the first per formance or other initial rule infraction This apparent disparity in method and severity of discipline was not ex plained Also unexplained was the delay between the receipt of the contract monitoring and surveillance reports and the issuance of the Miller letters This delay conjoined with the concomitance of the issuance of the letters with Johnson s actively representing another unit member and Miller s complaints to the Union about her activities as a shop steward is another indication of proscribed motive and refutes any assertions of mere coincidence This in ference is rendered even more persuasive by Dormandy s reaction of seeking Johnson s reassignment even though she was considered a good worker by De Filippo a judgment he did not contradict Dormandy did not ad vance any reason for this unusual request it was not demonstrated to be work related Accordingly I find that the General Counsel has made a prima facie case of proscribed motive I further find that Respondent Employer failed to bear its burden of proving it would have issued the letter absent Johnson s concerted protected activities DCS argues that the contract monitoring and surveillance re 22 The only other discipline meted out to Johnson as of this date was month period One report was for clocking out late on August 10 an in February for failing to clock in on time This infraction was not other was for clocking out late on July 28 and the third for failing on claimed as either a basis for any of the statements made by any represent April 22 1987 to time and date fruit salad he placed in the walk in re ative of DCS on or about September 23 or any subsequent actions I also fngerator which resulted in the receipt of an unsatisfactory report from note that this February incident does not contain any reference to any the military inspector performance deficiencies while working on the serving line DIVERSIFIED CONTRACT SERVICES ports could have led to adverse action against them by the military This assertion is not disputed, but Dor mandy admitted he usually threw them out which indi cates the threat of adverse action was not very great DCS did not dispute that they frequently get such re ports and they have only shown one other instance where an employee was disciplined by the issuance of an employee performance report, an action taken well after Johnson was discharged The Company's failure to similarly discipline other employees occurred at a time, according to Dormandy, when the military was frequently inspecting their oper ation,33 and that at the time of trial there were fewer in spections The mention of an employee in the reports was not asserted to be an uncommon occurrence, yet there is no evidence of another employee being similarly disciplined Respondent DCS did not establish nor even claim that the Johnson incidents differed from those in volving other employees The failure by DCS to estab lish that it had a practice on or about September 23 of disciplining employees if they were the subjects of com ments in one or two or more contract monitoring and surveillance reports, or any other basis for their disparate action, leads to the conclusion that they engaged in dis parate treatment for discriminatory purposes in violation of Section 8(a)(3) and (1) of the Act 2 Requiring a doctor s certificate The General Counsel argues that DCS treated John son differently when it required her to leave work and lose pay to get medical verification of an illness Re spondent rejoins that De Filippo always required an em ployee returning from sick leave to provide a doctor s certificate In fact, Miller in a letter to the Union dated October 14, claimed it was his policy to require all em ployees who left work because they became ill to pro vide a physician s release as a safeguard Respondent Company also argues the meets of its rule There is no claim that the rule is without merit, only that it had never been applied in a similar manner and was imposed on Johnson in a manner that made it an onerous working condition There was no question that several employees had been suffering from flu before Johnson also reported she was leaving work because she too had caught the flu There was no claim by De Filippo that Johnson s par ticular illness was the basis for sending her home when she returned to work Respondent failed to demonstrate that any other employee was similarly sent home to ac quire a doctor s certificate even though several employ ees, according to its records did not provide doctors certificates Sonny Cornish was not required to provide a doctor s certificate when he was out ill, even though he was told that all employees could be required to supply one 34 33 Baird testified without refutation that the Air Force frequently in spected DCS operations as often as two to three times a day This testi rnony is undisputed at the times here pertinent There was no claim that note of individual deficiencies was singular or otherwise warranted un usual action 34 Stoakley as previously indicated left work ill and was called by a supervisor and instructed that he needed a doctor s certificate before he 623 Respondent Company also argues that it explained its policy in its October 14 letter and the Respondent Union never claimed that DCS was improperly enforc mg its rules Curtis did not convincingly disclaim telling Johnson, when she informed the Union that she was sent home to get the doctor s certificate the Company was harassing her Also, the rule was not in question and whether the Respondent Union raised the propriety or manner of enforcement is not probative of whether DCS imposed more onerous working conditions on Johnson Inasmuch as De Filippo was responsible for managing the entire facility this disparity in requirements no less singling out Johnson as the only employee sent home and forced to lose pay to provide a document some em ployees were never required to provide, under the cir cumstances here present I find establishes a prima facie case that Respondent imposed more onerous working conditions on Johnson for discriminatory reasons Also, as indicated post, Cornish was told Dormandy wanted doctors certificates from all employees who were out ill for 1 day and Miller indicated in his letter to the Union that all employees who became ill at work were required to present doctors' certificates on their return to work The claim of such a broad policy does not explain why some employees were never required to present doctors certificates to DCS on their return to work, or why the policy was only occasionally enforced Respondent failed to bear its burden of proving that Johnson would have been required to clock out and remain barred from working until she obtained a doctor s release even if she was not an active and effective union shop steward That other employees were required to provide doctors certificates is not persuasive here where at least one was informed prior to his return to work that he would have to bring the document prior to returning to work, but was never asked for it 35 The Re would be permitted to return to work Stoakley went to the expense of getting the certificate yet when he returned to work no one asked him for it it was not required as a condition precedent to his being permitted to return to work 35 Respondent Employer argues on brief that Cornish testified he was required to bnng in a doctor s certificate after he left work for a doctor s appointment for high blood pressure Cornish testified as follows Q Have you had any problem receiving sick leave? A Oh I was-taken off one day I hadda leave early cause I was sick And I was taken off the next day Let s see-was in 86 around sic about June or July at 10 00 in the morning Well I have a blood pressure problem and I have taken treatment from a doctor So I was taken sick on a-on a Monday morning I think it was And I went home went to my doctor I came back-and I called in that Tuesday and didn t come to work And I came back that Wednesday morning on my job Q And what happened when you got back to work? A Well nothing really happened I just went on to work and did my job Q Were you ever required to produce verification of the fact that you were sick? A No one asked me for any proof but I had my medicine medi cation and stuff like if they asked for proof But no one asked for any Cornish also went home ill in 1987 and was not asked for any verification he was sick when he returned to work the following day Cornish later testified that he knew of the requirement to bung a doc tor s excuse and he had one but no one asked him for it A supervisor Continued 624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD spondent Employer did not indicate the circumstances under which it obtained other certificates, but none were similar to these applied to Johnson. Also, Respondent Company failed to require the submission of such certifi- cates from Cornish who left work ill. DCS did not present any evidence that it knew Cornish had in fact come to work with a doctor's certificate. Cornish was al- lowed to return to work without presenting a doctor's slip even though he was advised he could not return without one. There are other employees who were out sick and were not required to obtain certificates. The parties stip- ulated that there were no doctor's certificates for at least 10 employees who worked in building 1226 and who were absent because of illness. Respondent Company failed to explain the absence from the Company's files of medical slips for these employees. De Filippo, Dor- mandy, and Miller also failed to describe what mecha- nisms they instituted to ensure that their variously de- scribed policies for providing doctor's certificates were followed. These apparent dissimilarities in treatment were not convincingly explained by any other policies or the testimony of DCS representatives. I find that this singular and unusual treatment of John- son was an attempt to discourage her from her intense pursuit of her duties as shop steward and the reasons of- fered by DCS were pretexts. Thus, I conclude that the General Counsel has made a prima facie case that DCS has not convincingly rebutted and that by its discrimina- tory actions DCS has violated Section 8(a)(1) and (3) of the Act. 3. Alleged discriminatory reduction in hours The General Counsel argues that DCS failed to adduce evidence that other employees' hours were simi- larly reduced.36 Further, the Company's suggestion that she had bumping rights to other shifts, which had fewer employees, would significantly reduce the number of em- ployee grievances she would address as a shop steward. Respondent Employer claims the reduction in John- son's hours was not discriminatory, that she was in- informed him Dormandy required them to bring "an excuse if we were out sick for one day. We had to bring an excuse for that." Respondent failed to show that Johnson was similarly informed of the policy that all employees had to bring in doctors ' certificates as a matter of course if they went home sick or were out ill for 1 day. Miller testified during the resumption of the hearing that DCS has the discretion to ask for such a certificate , not that it will be required in all instances or cer- tain specified instances of illness . In contrast De Filippo testified: "Any employee that showed up for work but went home because he or she didn't feel well was not asked for a doctor slip by me to bring in for that remaining day. It only was the employee that stayed out a whole day, never showed up to work that were asked to bring in a doctor slip .." The shifting and contradictory testimony by Respondent's agents on this issue lead me to conclude that their explanations are pretexts. 36 The General Counsel also argues that the Company offered no ex- planation why Johnson was the only employee named in the notice the Company sent the Union . This argument , as noted above, is found to be unpersuasive for Johnson was the only shop steward, thus the most senior employee on the shift at building 1226 under the parties ' collec- tive-bargaining agreement . This status could very well explain why Re- spondent noted its concern for the protection of her rights and mentioned her by name. formed when hired her hours would fluctuate.37 The Company failed to demonstrate through the production of demonstrative evidence, apart from self-serving testi- mony, that the exercise of her bumping rights would have resulted in Johnson avoiding a reduction in her hours. Respondent Company claimed that the need to reduce hours resulted from the need to improve produc- tivity. DCS failed to adduce any details supporting this claim of need to effect operating efficiencies or even show that reducing Johnson's hours would create operat- ing efficiencies. Further, there was no evidence that by asserting her bumping rights, Johnson would not have suffered a reduction in hours. Her present shift was the largest and, thus inferentially, the most active requiring at least equal man-hours to the other shifts. There was no assertion the other shifts or projects Johnson could bump into were not also subject to the same needed pro- ductivity changes. Respondent DCS also failed to adduce any details concerning the overall reduction in hours or other particulars that would affirm the claimed reduction of all the employees' hours on the shift. No other employees in building 1226 were shown to have been similarly affected on or about October 20. When asked, Miller specifically could not identify another em- ployee whose hours were reduced one-half hour per day other than Johnson.38 Also considered is Dormandy's testimony that there was never an across-the-board reduction in employee hours in October 1986 and he could not explain why Johnson's hours were affected or why the documentary evidence fails to support DCS's claim that there was a "shift-wide manning reduction." Also considered, as noted above, was Dormandy's inability to explain the re- duction in Johnson's hours on November 1 while other 37 Johnson claimed her hours were also to have been reduced shortly after she was elected shop steward in April, as previously noted. This as- serted reduction in hours is not alleged to be a violation of the Act. As Respondent Company commented, her hours fluctuated and actually in- creased immediately after she was elected shop steward. Her hours were never reduced to 12 per week as she testified was the threatened action. Johnson's testimony on this point, as found above , does not require the discrediting of all her testimony. There is a difference between a threat, as she claims, and an actual reduction in hours. Assuming her testimony was erroneous, this one instance of engaging in hyperbole does, however, requires the close scrutiny of her testimony . "Nothing is more common than to believe some and not all of what a witness says ." Edwards Trans- portation Co., 187 NLRB 3-4 (1970), enfd. per curiam 437 F.2d 502 (5th Cir. 1971); Wilco Energy Corp., 246 NLRB 851 fn. 1 (1979). In general, I still find Johnson's testimony more credible than that of DCS's witnesses who appeared hesitant and not as forthright, candid, and straightforward as Johnson's. 38 Johnson testified that she brought the reduction in hours to the Union's attention and sought its assistance in gaining relief from what she considered continuing harassment because of her activities as shop stew- ard. Curtis could not recall if Johnson filed a grievance concerning the reduction in hours but admitted discussing the matter with her, including the filing of a grievance, that there were many discussions of the matter. Curtis did not refute Johnson's testimony that when she discussed the re- duction in her hours with Curtis , Curtis told her she was filing charges with the Board for harassment . "[I]t is settled law that where a witness's testimony is not contradicted , a trier has no right to refuse to accept it." NLRB Y. Ray Smith Transport Co., 193 F.2d 142, 146 (5th Cir, 1951). This holding is not without limit but on this record there is no basis to ques- tion Johnson's version of this conversation . Cf. NLRB v. Howell Chevrolet Co., 204 F.2d 79, 86 (9th Cir. 1953); Plasterers Local 394 (Burnham Bros.), 207 NLRB 147 in. 2 (1973). DIVERSIFIED CONTRACT SERVICES employees on the shift worked substantially more hours than she I conclude that the reduction in Johnson s hours was based on a proscribed motive The Company s failure to provide any records demon strating that other employees on Johnson s shift received similar reductions in their scheduled hours, leads me to conclude that the General Counsel has presented a prima facie case that Johnson was singled out for disparate treatment, and given the history of her employment at DCS including references to her as a troublemaker and the other previously stated reasons I find this treatment was motivated by animus occasioned by her activities as a shop steward I further find that Respondent Company s failure to demonstrate through documents that it has in its posses sion that the less senior employees on the shift were semi larly affected requires a finding that it has failed to dem onstrate that Johnson s hours would have been reduced absent her protected concerted activity In fact, the time sheets refute DCS claim Accordingingly I conclude that Respondent Company violated Section 8(a)(1) and (3) of the Act by reducing Johnson s hours on or about October 20 for discriminatory reasons 4 The October 30 letter As was the case with the other allegations considered, determination of this issue also rests on my credibility resolutions, consideration of all the other indications of proscribed motive, and the existence of nondiscrimina tory reasons for the issuance of this letter The General Counsel avers that the substance of Mil ler s October 30 letter supports the conclusion it was issued in retaliation for Johnson s activities as a shop steward The General Counsel notes that Dormandy and De Fillipo admitted the facts they testified to occurring on October 13-15 were different than those they report ed to Miller Several factors according to the General Counsel are illustrative of the discriminatory motive in the issuance of the letter including not only complaining about Johnson s work performance but also the refer ences to her activities as a shop steward in the same letter The failure to issue an employee performance report for Johnson s asserted failure to report on October 14 or asserted short notice call in on October 15 was support for Johnson s claim she did not commit these in fractions and thus is indicative of prejudice because of Johnson s shop steward activities It is also argued by the General Counsel that the fail ure of Miller to routinely suspend Johnson after her al leged third violation of the Company s attendance/ tardiness rules is a deviation from the Company s system of progressive discipline and thus strongly suggestive of unlawful motive DCS did not impose a 14 day suspen sion in all cases as part of its system of progressive disci pline The General Counsel argues that the only other times DCS did not impose 14 day suspensions involved employees with many violations of the Company s poli cies and rules The General Counsel failed to adduce evi dence showing that there was a clear and cognizable dis tinction between the treatment of Johnson and the other employees who were not suspended for infractions of the 625 rules Therefore, the failure to suspend Johnson, standing alone, does not support a finding of unlawful motive DCS argues that the facts do not support the allega tion of discriminatory motive claiming concern that Johnson had committed an infraction of the rules on Oc tober 26 with a short notice call in shortly after receiv mg a warning about absenteeism and failing to report on October 16 This argument might have been persuasive if advanced by Miller, but all that Miller provided in way of explanation for his decision not to suspend Johnson was the amorphous and unspecific conclusion that she would not benefit from a 14 day suspension Specifically, when Miller was asked why he decided to depart from standard procedures by failing to impose the usual 14 day suspension he testified I will, rather than suspend-because suspension is not always the answer to correcting performance- give them the opportunity to continue their work and at the same time inform them that they have had a number of violations or a number of per formance problems, and I expect these all to if you will, improve The tenor of this reply is at great variance from the tone of the letter which explained the failure to impose the usual 14 day suspension because I do not feel that a suspension will correct the many problems I have en countered with your ongoing performance at Mather The letter did not reflect the reason Miller proffered in his testimony for his decision not to suspend Johnson The raising of this reason only after her discharge at the hearing is indicative of unlawful motive Another basis advanced by DCS for issuing the letter was the drinking water incident Johnson left her duty station, got a glass of water that she continued to con sume when she returned to her duty station where she also was alleged to have been insubordinate to De Fi lippo The many problems mentioned in the October 30 letter were not detailed Management had previously admitted Johnson was a good worker thus the vague reference to many problems appears to evidence Miller was, at the very least exaggerating Other indicia that Respondent was disingenuous in this action, as detailed previously include Baird s undisputed testimony that when she worked at building 1226 for 3 months a cook regularly consumed coffee while work ing behind the line There was no evidence the cook was ever reprimanded or instructed to refrain from such ac tivity much less disciplined for it Johnson s testimony that other employees frequently drank beverages behind the line was also undisputed Respondent Company and particularly De Filippo did not claim ignorance at what has been described as frequent patent violations of the rule De Filippo said Johnson was absent from the line for 3 minutes yet this assertedly blatant action was not mentioned in the disciplining notice Also De Filippo claimed Johnson was loud and abusive, yet when asked what she said, claimed she could not hear her because she was mumbling Thus, she admitted she was not loud and if she could not hear what was being said the char 626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD acterizing of the unheard comments as abusive cannot be credited and is found as pretext for imposing discipline Respondent Employers claim that the letter was war ranted because it reflects valid Employer concerns would be persuasive if their witnesses were credited However the noted disparities and contradictions in DCS s case and principally their demeanor require me not to credit their testimony Also, Johnson was not even scheduled to work on October 29 according to DCS s attendance sheet, another unexplained evidentiary anomaly Johnson s claim that she called in and was told not to report was recited in a manner that bespoke clear recollection compared to De Filippo s testimony, which was hesitant unresponsive at times, and admittedly sub Ject to poor recall on occasion My conclusion that the letter was issued, at least in part, because of DCS dissatisfaction with Johnson s ac tivities as a shop steward is buttressed by the statement in the letter that termination would follow any violation of the Company s rules, rather than a fourth violation of the absenteeism/tardiness rules Miller failed fully to ex plain why such a broad threat was included in the letter This is another failure to fully, hence, persuasively, ex plain the basis for claimed nondiscriminatory action and again evidences proscribed motive In sum, I recognize that facially it appears easier to find that Respondent Company was warranted for bust ness reasons in taking the various allegedly discriminato ry actions against Johnson However, after closely ob serving the demeanor of the witnesses and considering the failure of DCS to convincingly refute the General Counsel's prima facie cases, I conclude that Respondent again violated Section 8 (a)(l) and (3) of the Act by issu ing the disciplinary letter of October 30 5 Termination of Johnson on December 16 The General Counsel argues that Johnson s discharge was done in a precipitous manner indicative of unlawful ness Specifically, the General Counsel notes no employ ee performance report was prepared for the alleged late call in of December 16 instead Miller was immediately contacted by Dormandy Johnson, although she reported to work was sent home and her termination letter was drafted the same day contrary to the treatment other similarly situated employees received The General Counsel asserts that [n]o other DCS employee was treated as summarily as Johnson as a review of the record demonstrates Only one other employees termina tion letter issued the same day as his final rule violation and this other occasion occurred after Johnson s termina Lion The General Counsel also argues there is additional evidence that Johnson was treated disparately After summanzing employee personnel records, the General Counsel notes that 12 employees were given 14 day sus pensions to cure their attendance problems Ten of them were subsequently terminated after further infrac tions Six of these employees had more violations of the attendance rules than Johnson allegedly had, yet they were not terminated on the fourth violation (Cooper Gallant, Harris, Jefferson, Kyle, and Pullum) Three employees had both attendance and performance prob lems but received raises during their tenures after receipt of discipline In conclusion the General Counsel contends that, even if it is assumed December 16 was Johnson's fourth violation of the absenteeism rules, she was treated dif ferently and harsher than similarly situated employees In particular, the personnel records of Gallant, Kyle and S Harris, who were terminated for multiple violations of the attendance rules, show that they had numerous per formance problems I find this argument unpersuasive because there was no evidence adduced concerning the decisions to terminate these other employees For example, Kyle had three vio lations of the absenteeism rules between April 8 and August 21 when she was suspended for 14 days She was then tardy on October 6 when no employee per formance report was issued After her next attendance problem on October 8, an employee performance report was issued and Miller wrote her an unsatisfactory per formance letter She again had infractions of the attend ance rules on January 3 and 7, 1987 for which no em ployee performance reports were issued but Miller sent her a termination letter dated January 12, 1987 She also had three employee performance reports for disobedi ence from October 27 to December 19 and one for work quality in June Gallant was tardy or had attendance rule infractions on July 4 and September 17 and 20 Employee perform ance reports were issued for each infraction Also May 31 and August 11 she received employee performance reports for work quality and May 31 she received an em ployee performance report for `uniform Miller on September 23 wrote her an unsatisfactory performance letter and on October 3, a 14 day suspension letter She was terminated by letter dated November 3 Harris received two employee performance reports for work quality on March 13 and 14 and another report for eating without paying on May 21 On June 4 Biller wrote her a letter about her unsatisfactory performance She received another employee performance report for work quality on December 4 On July 7 and 29 and Feb ruary 18 1987, she received employee performance re ports for tardiness No 14 day suspension or other disci phne was imposed on her until March 16, when an em ployee performance report was issued for taking food without paying and on March 17 1987 Miller transmit ted her termination letter The record was not developed regarding how DCS calculated the 6 month period contained in the absentee ism rule or the basis DCS used in determining the van ous disciplines imposed on Harris, Gallant, and Kyle, the exemplars relied on by the General Counsel to demon strate disparate treatment The question of mitigating car cumstances in any of these examples was not explored Another consideration is that Miller travels frequently and there was no evidence adduced concerning his avail ability to draft termination letters or make the decision to discharge at the time the terminated employees com matted their last rule infractions Thus there was no indi cation of his availability to act on the day of their last rule violation DIVERSIFIED CONTRACT SERVICES 627 There were other disparities in the treatment of em ployees that were unexplained For example, William Jefferson was terminated in late August 1987 after re ceiving five employee performance reports for tardiness between April 6 and July 22, 1987, two employee per formance reports for work quality and a Miller letter about unsatisfactory performance in July 1987 In con trast, Stephanie Lewis was suspended after three viola tions of the attendance rules between September 18 and October 24, 1986, and terminated on April 3, 1987, after the fourth violation of the attendance rules that occurred on April 1, 1987 No employee performance report was issued for her fourth violation that was a failure to report or call There was no explanation for these apparent dif ferences in the application of Respondent's disciplinary policies Another argument posed by the General Counsel is that Dormandy testified Johnson was terminated accord ing to established policy and he bore the responsibility for documenting the basis for her discharge According to the General Counsel, Dormandy knew on December 16 that Johnson had not received four reprimands for violations of the attendance rules or a 14 day suspension even though he knew others were not automatically ter minated on the day of their fourth rule infraction Also in support of her position, the General Counsel avers that by the close of the instant hearing, no shop steward had replaced Johnson at building 1226 DCS argues that the General Counsel failed to estab lish a prima facie case, that pretext was not involved in its decision to terminate Johnson, rather, Johnson was fired for legitimate business reasons In support of this argument, DCS claims they and the Union had a long and successful bargaining history and that the collective bargaining agreement at MAFB was quickly negotiated Thus the General Counsel failed to prove the necessary element of antiunion animus in its disciplinary and dis charge decisions and that any animus was caused by the personally fractious relationship 39 between De Filippo and Johnson In the alternative, DCS argues that even if the General Counsel presented a prima facie case it per suasively demonstrated that Johnson would still have been discharged for reasons unrelated to union consider ations that she was continuously warned about work at tendance problems that she was afforded the opportune ty to avoid the reduction in hours and that given the benefit of the doubt she was not suspended 40 The termination claims DCS was for valid business reasons, Johnson repeatedly violated the Company s absenteeism/tardiness policy as reflected in the employee performance reports and Miller s letters Johnson was of forded the opportunity to challenge the claims of rule violations and/or present verification of car problems but failed to do so by filing a grievance or other response 41 39 Citing Lucky Stores 275 NLRB 1438 at 1439 (1985) 40 I find this argument specious Miller never claimed he was giving Johnson the benefit of the doubt in determining not to suspend her The letter explains his decision was based on the determination she would not benefit from a suspension so he placed her on 6 months probation 4 i I have found above that Johnson consulted with the Union about each violation and refuted the validity of at least most of the disciplinary actions with representatives of DCS at the time the employee perform DCS also argues Johnson s union status is not a shield of fording protection from discipline or discharge for rule violations It contends it merely reasonably and patiently attempted to uniformly enforce its policies, as it tries to do in all cases It avers that it was not unreasonable for it to disbelieve Johnson's excuses DCS admitted that on occasion there may have been administrative error42 re garding the number of violations but that was not the case regarding Johnson The question to be determined is the causation of Johnson s termination The test is whether Johnson's ac tivities as a shop steward were a substantial motivating factor in DCS s decision to discipline and discharge her and, if so, has DCS demonstrated that it would have taken the same action had it not been for her activities as shop steward Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982) See also NLRB v Transportation Management Corp, 462 US 393 (1983) In determining Respondent s motivation, the various comments and attitudes of Re spondent Company s representatives that testified Miller, Dormandy, and De Filippo, have been examined For ex ample, Dormandy, who recommended Johnson s dis charge, exhibited poor recall of the events assertedly the basis for his recommendation and Miller s action Miller's statements about Johnson and his references to her as a troublemaker demonstrate that DCS knew Johnson was an extremely active shop steward and took umbrage to her zeal I find based on these and the other considerations dis cussed, that the General Counsel has made a prima facie case that DCS discharged Johnson because of her activi ties as a shop steward Miller s letters of September 27 and October 30 patently demonstrate that he was very displeased with Johnson s activities as the building 1226 shop steward The Company attempted to reduce John son s hours offering the possibility of relocating her to another shift with fewer employees or even to another base As found above, no other employees were shown to have their hours similarly reduced even though John son, as shop steward was the most senior employee on the shift In fact, the timesheets demonstrate other em ance reports and/or letters were issued Johnson not only asserted she was being harassed but the Union considered her claims had sufficient ment to file an unfair labor practice charge reflecting these claims of har assment There was no evidence that Johnson was ever asked for proof of car problems and in the case of the flat tire there was no indication or reasonable expectation that documentary proof existed Regarding the asserted rule violations when Johnson was ill I found above that her ver sions of the incidents were the most credible and that she related to van ous company representatives that she would be absent and why 42 The claim of administrative error was made only on brief as noted above there was no evidence indicating the basis for the differences in treatment of the various employees as previously detailed This bare claim that the differences were solely attributable to administrative error is found to be unsubstantiated and without ment I also note that the var sous supervisors for the in flight kitchen fire station and Sac alert did not appear and testify in support of DCS s inferences that apparent dis crepancies in treatment was attributable at least in part to different su pervisors making the decision This argument also overlooks De Filippo s admission that she had overall responsibility for supervising the entire base as did Dormandy which would include eliminating any apparent disparities in the application of any rules and policies 628 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployees were working substantially more hours than Johnson. Thus, I have found the offer to permit Johnson to bump into another shift or location disingenuous and not evidence of lack of animus. This was clear evidence of disparate treatment of a shop steward deemed by DCS to be over zealous. I find that the reason propounded by DCS for this action is a pretext. As held in Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966) : "if [the trier of fact] finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that he can infer that the motive is one that the employer desires to conceal-an unlawful motive-at least where, as in this case, the sur- rounding facts tend to reinforce that inference."43 Once the General Counsel has established a prima facie case of a violation, the burden then shifts to the em- ployer to prove that it would have taken the same action absent the employees concerted protected activity. Still, the General Counsel retains the burden of proving the unfair labor practice by a preponderance of the evidence. I conclude that DCS has not overcome the General Counsel's prima facie showing and has not demonstrated it would have terminated Johnson if' she had not been an active and effective shop steward.44 I find the Employer's defenses only superficially per- suasive and consideration of the credited evidence re- quires the conclusion that Johnson was discharged for her activities as shop steward. Johnson was a highly visi- ble and active shop steward, insistent on the Employer's compliance with the collective-bargaining agreement. There was no evidence that the Employer experienced, much less tolerated, such zeal by any other shop stew- ard. The chronology of events previously detailed pre- dicts the discharge of Johnson for unlawful reasons. At the outset was Miller's September 23 letter, complaining stridently about Johnson's actions. The predicates for Miller's complaints were never substantiated on the record. This failure was unexplained. Within 3 months of this opening campaign, Johnson was discharged. Moore Business Forms, 288 NLRB 796 (19813). The Employer's animus was also reflected in its con- sistent refusal, contrary to its contractual obligations, to afford Johnson the right to have the chief shop steward present when she was given disciplinary notices. Re- 43 Another persuasive indication that Respondent Employer's stated basis for Johnson 's discharge is merely a false device is that at the outset, Miller claimed Johnson had performance problems although her supervi- sor, De Filippo, at the same time, admitted she was a good worker. Also there was only one disciplinary action occasioned by her performance that was the subject of the letter. There were no prior performance prob- lems detailed by any witness. Dormandy's vague reference to other un- specified problems fails to establish the existence of prior problems. The reference to problems thus appears as the initial step to establish a pretext to discharge an active shop steward. 44 In reaching this determination , I have also considered my prior find- ings that Respondent, moved by hostility toward Johnson's very active efforts as shop steward, had discriminatorily: (1) given a warning letter on September 23; (2) required her to leave work, clock out, and lose pay, in order to acquire a doctor's slip; (3) imposed a reduction in work hours on October 20; and (4) issued the written warning of October 16. In reaching these conclusions, I have also found that at least some of the rule violations on which DCS based Johnson's termination were fabricat- ed or based on exaggerated renditions of the events in efforts to quell Johnson's shop steward activities. spondent did not claim that the various disciplinary ac- tions could not be timed to afford Baird the opportunity to be present and represent Johnson. Baird testified with- out contradiction that she was, at least at times, afforded the opportunity to be present and represent other em- ployees receiving discipline during nonwork hours. This disregard of their contract in those instances Johnson was disciplined is in contrast to its claims of rigid adher- ence to contractual and other policies as the basis for ter- minating Johnson. Such disparate reasoning and treat- ment is indicative of unlawful motive in terminations. Quality Inn Albany, 283 1146 (1987). Contrary to DCS' argument, the Union never claimed it declined to commit itself to prosecute the grievances when Johnson filed them; on the contrary, it argues it fully investigated them. Further in this instance, the Union is not the final arbiter of the question and its ac- tions or inaction does not exculpate DCS. The Respondent Employer did adduce evidence that some employees were discharged for similar violations; however, I find that at least some of the asserted John- son violations were fabrications or the result of the dis- parate application of company rules or policies, such as the medical certificate and drinking water incidents. I further find that Johnson did tell her supervisors in October that she would be out for 1 week due to illness and that she was not required to call in daily to avoid discipline. That she called in on October 15 does not weaken this finding; considering her situation it would be reasonable for her to exercise caution and keep her su- pervisors informed. Also, assuming DCS did not fabri- cate or disparately apply its rules to Johnson, I have considered the fact that there are some unexplained dis- parities in DCS's reasons for terminating Johnson. In as- sessing DCS's claim that Johnson would have been dis- charged absent her shop steward activities, I have con- sidered that Respondent did not discharge all employees immediately on their fourth violation of the absentee- ism/tardiness rules, and it failed to clearly and convinc- ingly distinguish Johnson's situation from those employ- ees that were retained after their fourth violation of the same rules. Only DCS would have this information and, I assume, it would have been presented if it was exculpa- tory. Assuming DCS may have had valid grounds for termi- nating Johnson, such a finding is not dispositive that the termination was lawful NLRB v. Texas Independent Oil Co., 232 F.2d 447, 450 (9th Cir. 1956). A respondent vio- lates the Act where it is established that, despite the ex- istence of a valid reason or reasons for discharge, the evidence shows that the employer has resorted to such reason or reasons as the basis for building a case against an employee, as here, due to their union activities. United Aircraft Corp. v. NLRB, 440 F.2d 85, 92 (2d Cir. 1971); NLRB v. Lipman Bros., Inc., 355 F.2d 15, 21 (1st Cir. 1966); Blue Bell, Inc., 238 NLRB 555 (1979). In addition to the lack of uniformity in the application of the progressive discipline system, I note that within approximately 1-1/2 months from Miller's September 23 letters, Johnson received numerous disciplinary actions, including four asserted violations of the absentee- DIVERSIFIED CONTRACT SERVICES 629 ism/tardiness rules Johnson s employment record prior to Miller s letter of September 23 was almost unblem ished, with only one employee performance report issued in early February for late checkout 45 From the incep tion of its case building, DCS threatened Johnson with discharge, contrary to its demonstrated practice of pro gressive discipline After fully considering all Respondent Company s ex planations for its actions I conclude that its decision to terminate Johnson was not based on good faith assess ments of her performance and attendance record but was part of an orchestrated plan to rid the Company of a shop steward who tried to ensure adherence to the col lective bargaining agreement Respondent has failed to convincingly demonstrate the employee would have been discharged in any event because of unprotected conduct Champion Parts Rebuilders Inc v NLRB, 717 F 2d 845, 849 fn 6 (3d Cir 1983) Accordingly, I find that Respondent has not overcome the General Counsel s prima facie case, and I conclude the Johnson s discharge violated Section 8(a)(3) and (1) of the Act The Board held in Service Employees Local 579 (Beverly Manor), 229 NLRB 692, 695 (1977) [s]o long as it exercises its discretion in good faith and with honesty of purpose, a collective bargain ing representative is endowed with a wide range of reasonableness in the performance of its duties for the unit it represents Mere negligence, poor judg ment or ineptitude in grievance handling are insuf ficient to establish a breach of the duty of fair rep resentation The Board further explained in Glass Bottle Blowers Local 106 (Owens Illinois Inc), 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 or other invidious considerations B Alleged Breach of the Unions Duty of Fair Representation To determine if there has been a violation of Section 8(b)(1)(A) of the Act it is helpful to understand the basis for this duty The Board and the Courts have imposed an obligation on unions to fully and fairly represent those employees for whom they are the exclusive representa tive as a concomitant to the exclusive representation rights given labor organizations in Section 9(a) of the Act In Vaca v Sipes, 386 U S 171, 177, 190 (1976), the United States Supreme Court held It is now well established that as the exclusive bargaining representative of the employees the Union [had] a statutory duty fairly to represent all of those employees [This duty] includes a stat utory obligation to serve the interests of all mem bers without hostility or discrimination toward any, and to avoid arbitrary conduct A breach of the statutory duty of fair representation occurs only when a union s conduct toward a member of the collective bargaining unit is arbi trary discriminatory or in bad faith Thus represented employees are protected from arbi trary, irrelevant or invidious discrimination by their ex clusive representative by virtue of this duty to fairly rep resent them This duty extends to the investigation and representation of employees in the processing of griev ances However, the Board and the Courts have afforded the unions substantial latitude in their representational decisions 45 It is not necessary to show illegal motivation behind each employee performance report or unsatisfactory performance letter where as here I find a pattern of disparate treatment and inconsistent application of rules conjoined with patent animus toward Johnson s concerted protected activities as shop steward Elects Flex Co 228 NLRB 847 (1977) enfd 570 F 2d 1327 1334-1335 (7th Cir 1978) cert denied 439 U S 911 (1979) The relative merits of a grievance may bear directly on the arbitrariness of a union s failure to process it, but proof of actual merit is not essential to the establishment of a breach of the union's duty of fair representation Glass & Pottery Wokers (Owens Corning Fiberglass) 282 NLRB 1296 1300 (1987) In determining whether a union breached its duty of fair representation the applicable standard requires a broad inquiry including a finding that the union s con duct was arbitrary or based on irrelevant, invidious or unfair consideration A finding of negligence standing alone, does not constitute arbitrary conduct The Gener al Counsel must demonstrate more than mere negligence to justify finding a violation of Section 8(b)(1)(A) of the Act Office Employees Local 2, 268 NLRB 1353 (1984) affd sub nom Eichelberger v NLRB, 765 F 2d 851 (9th Cir 1985) The General Counsel avers that the Union breached its duty of fair representation in its handling of Johnson s harassment and discharge grievances She deems ineffec tive and unpersuasive the Union s defenses 46 The Gen eral Counsel argues that the Respondent Union proc essed both of Johnson s grievances in a perfunctory manner The filing of the harassment charge does not abrogate the Union's responsibility to investigate Johnson s griev ance that she was being harassed The Union failed to in vestigate Johnson s complaints , even though George by Miller s September 23 letter was on notice the Company was dissatisfied with Johnson s activities as a shop stew and and criticized her performance despite admittedly 46 The specific defenses mentioned by the General Counsel are (1) Johnson did not file formal grievances on any of the allegations in the complaints other than her termination (2) Johnson s complaints regarding the harassment in September and October were not clearly covered by the unfair labor practice [charge] filed by Curtis (3) George did not think the complaints of harassment were connected with Johnson s terms nation and (4) the Company s evidence against Johnson was more credi ble [than Johnson s evidence] 630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD hearing from De Filippo that she was considered a good employee. When Johnson claimed to the Union that the criticism over the contract monitoring and surveillance reports was unwarranted and extraordinary, the Union presented no evidence it sought to determine if the other employees mentioned in these reports were similarly in disciplined; or whether the Company had a practice at that time of discipling employees because of adverse comments made in these reports. Johnson notified the Union of what she claimed was the discriminatory application of the doctor's certificate requirement. Curtis commented that the Company was harassing Johnson and directed her to obtain employee statements confirming her claim the requirement was dis- criminatorily applied. Johnson obtained these statements and sent the originals to the Board with copies to the Union. The Respondent Union's claim that it never re- ceived these copies is not believed based on my previous credibility findings. However, even if the Union's claim had merit, it failed to explain why it did not seek to see and/or obtain copies of the originals held by the Board; the General Counsel argues these failures constitute com- pelling evidence of the perfunctory manner in which the Union investigated Johnson's harassment grievance. George did not investigate the basis for Johnson's ter- mination as he claimed, and the General Counsel argues that he merely accepted the Company's position. For ex- ample, there was no claim by the Respondent Union that George raised Miller's October 30 letter at the December 29 meeting, even though he knew that Johnson was not suspended for 14 days but threatened with termination for any future violation of any company rule, a deviation from established company practice. George also failed to contact and interview witnesses such as Baird. In fact, I note, there was no indication that he talked to Curtis about the grievance, even though it was Curtis who filed the unfair labor practice charge asserting that the Com- pany was harassing shop stewards, including Johnson. The General Counsel argues that similar to his han- dling of the harassment grievance, George failed to in- vestigate the discharge grievance. He failed to meet with Johnson before the December 29 meeting, did not pre- pare by examining documents before the meeting, and failed to raise Miller's letters of September 23 and Octo- ber 30 as indications of unlawful motive or at least animus toward Johnson because of her activities as shop steward. The General Counsel also avers that even assuming the Union informed Johnson of the December 29 meet- ing, it should not have proceeded with consideration of her discharge grievance without her. The Union did not advance any reason the grievance meeting could not be rescheduled. Inasmuch as Johnson was one of the Union's shop stewards, there was no reason it could not have given her the benefit of the doubt when she failed to attend the meeting and at least asked for deferral of consideration of her grievance until she could attend rather than proceeding without even determining the reason for her absence . This manner of conducting his duties, the General Counsel claims, "is potent evidence of George's attitude toward Johnson." The Respondent Union asserts it did not breach its duty of fair representation; the General Counsel failed to prove it acted in bad faith or in an arbitrary or discrimi- natory manner. As noted above, the Union observed that Johnson never filed a grievance regarding the September 23 letter or that the matters raised in the letter played any role in her discharge. Johnson as shop steward knew that under the collective-bargaining agreement she was required to submit all grievances in writing to the project manager within 7 days of receipt of a reprimand. Her failure to file a grievance, the Union claims, left it with, "no action the NMU could take on her behalf."47 The Union denies advising Johnson to ignore the Miller letter because it was not a proper reprimand, and further argues that even if they gave such advice, it should be classified as "mere negligence." Equally unconvincing is the Union's argument that Johnson never filed a grievance about being required to obtain a doctor's certificate and her reduction in hours. The Union claims General Counsel's Exhibit 27 shows all the employees working the same shift as Johnson also had their hours reduced by one-half hour, but Johnson was offered the opportunity to bump into another shift.48 This exhibit is merely the Company's letter to the Union informing it of the asserted reduction in hours for all employees on the shifts. It does not demonstrate that any other employee on the shift actually had his or her hours reduced nor does it demonstrate that Johnson could have worked more hours if she exercised her bumping rights. Regarding the discharge grievance, the Union initially argues, even assuming Johnson was given notice of the meeting, the Union is not required to have the grievant present; particularly here where it would be reasonable to have Johnson absent "[g]iven the hostility between Ms. Johnson and members of management which Gener- al Counsel is asserting herein." The Union claims the dis- charge grievance was fully investigated and George de- termined it lacked merit. It comments that Johnson never availed herself of the opportunities afforded by DCS to present exculpatory documentation regarding her claimed car problems or otherwise convincingly refuted the propriety of the various disciplines she received. The Union did not claim that it attempted to determine if such exculpatory evidence existed or that Johnson had an affirmative duty to avail herself of the appeal right of- fered by the Company prior to the Union instituting an investigation or incurring any other obligation to the unit member. °' This argument is found to be without merit. It fails to address Curtis' testimony that she told Johnson she would raise some of the inci- dents that resulted in discipline with the Company and she had the estab- lished practice of handling similar complaints by other members with the Company. This testimony clearly refutes the Union's claim that it could do nothing absent grievances, because it had the practice of handling in- formally at least employees' verbal grievances. The Company did not claim it would not consider resolving these matters without a grievance. 48 Johnson claimed she filed a grievance concerning the October 30 letter but admitted not giving a copy to the project manager. Curtis and George claimed they never saw this grievance. There is no indication and it is not argued that the Union breached its duty of fair representa- tion with regard to this grievance. DIVERSIFIED CONTRACT SERVICES George claimed he was told various stories' by John son, as she gave differing renditions to the Board for ex ample her affidavit said her car broke down and while testifying she claimed her car blew up several days before her discharge on December 16 and a friend she was relying on to provide transportation was late This and other inconsistencies were unexplained and thus the Union had good reasons to give credence to DCS s ver sions of their basis for Johnson s discharge I note that most of the asserted inconsistencies and inaccuracies mentioned by the Union were not arguably cognizable to Respondent Union and, in particular George until the instant hearing In sum, the Respondent Union argues it sufficiently in vestigated Johnson s grievances and if it is found defi cient such deficiency is only mere negligence It as serts that all the Company was found to have done was follow the agreement by discharging an employee for four clear violations of the valid absentee policy I find, after examining all the surrounding circum stances, the Union engaged in a pattern of conduct de monstrative of perfunctory handling of Johnson s griev ances warranting a finding of a failure in its duty of fair representation Johnson complained to the Union about George and his actions, or lack thereof The Union failed to present a persuasive reason the December 29 meeting was sched uled to include consideration to Johnson s discharge grievance without prior investigation as to its merits The Company s position was not determined and dis cussed with Johnson and Baird before the meeting There is no evidence the Union knew which alleged rule violations the Company considered in its termination de cision There is no claim Johnson pressed for expedition If the harassment grievance could be discussed on Janu ary 14 there was no reason advanced why the discharge grievance could not have been discussed on the same date I find simultaneous discussion of these two griev ances was the most logical manner of handling given their patent interrelationship I do not credit George s declaration that he did not consider the grievances inter related he had a lot of experience as a union representa tive and there is no basis on the record to find him as obtuse as he claims George admitted in his testimony about his December 22 conversation with Johnson that he did not understand her version of the events leading to her discharge and also admitted he recognized the need for further discus sions and so informed her He failed to explain why he did not meet this recognized need Regarding Johnson s harassment grievance as distinguished from the harass ment charge there was no evidence presented that George investigated this matter in any manner This fail ure is unexplained Even assuming that George felt unable to rely on Johnson s rendition of events he did not detail why he did not ascertain a clear understanding of her position before reaching this decision Also unex plained is his failure to talk with Baird who as chief shop steward, may have had information about the merits of these grievances Having committed itself to prosecuting a grievance a Union is under a duty to present it most favorably Aaron 631 Kesner v NLRB 532 F 2d 1169 (7th Cir 1976) affd sub nom Teamsters Local 705 (Associated Transport), 209 NLRB 292 (1974) Miller could not even recall if George raised the issue of Johnson s discharge grievance at any meeting and it would appear a favorable presentation would provoke at least some memory of the event How ever, the lack of any investigation into the grievances I find precluded George from making any favorable pres entation even if he was so disposed Other indicia of this failure was the lack of notice to Johnson and Baird that the discharge grievance was to be considered on December 29 George admitted that he did not notify Johnson that her harassment grievances were to be considered on any date This lack of notice, I find is a more accurate reflection of George s method of handling Johnson s grievances and adds credence to her claim that she was not informed of the December 29 meeting I also note that I credited Johnson s testimony that the Union repeatedly told her she was being har assed by the Company when informed by her of the var ious disciplines she received, yet when her grievances were filed they were not considered together and she was not afforded the opportunity to give the Union in formation, much less participate in the grievance meet rags Another consideration giving weight to Johnson s as sertion that she did not know of the December 29 meet ing is that George admittedly knew Johnson had trans portation problems but never raised the issue of whether she could get to Oakland for the meeting The Union usually held grievance meetings at MAFB to permit the grievant the fullest opportunity to participate Miller made no claim he was unable to come to MAFB for a meeting on Johnson s discharge grievance This course of action is telling for the Union indicated it credited her claim of harassment sufficiently to file an unfair labor practice charge Thus I conclude that the Union s actions rise above mere mismanagement mere negligence or ineptitude George s contradictory and un convincing testimony about his efforts to pursue John son s grievances at best, loudly bespeak a willful indif ference I find that George gave the grievances perfunc tory treatment for he held animus against Johnson be cause she complained about him, including complaints to the International union However, even absent such animus, the Union treated her grievances in a perfuncto ry manner thereby breaching its duty of fair representa tion in violation of Section 8(b)(1)(A) of the Act CONCLUSIONS OF LAW 1 Respondent Diversified Contract Services Inc Sacramento, California, is an employer engaged in corn merce or in industry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Respondent Industrial, Technical and Professional Employees Division National Maritime Union AFL- CIO is a labor organization within the meaning of Sec tion 2(5) of the Act 3 Respondent Diversified Contract Services has vio lated Section 8(a)(1) and (3) of the Act by engaging in the conduct described in the above decision 632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 Respondent Industrial , Technical and Professional Employees Division, National Maritime Union AFL- CIO has violated Section 8(b)(1)(A) of the Act by failing to fairly represent Maureen V Johnson in their handling of her grievances 5 The above unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that Respondent Employer engaged in unfair labor practices proscribed by Section 8(a)(3) and (1) and Respondent Union Section 8(b)(1)(A) of the Act, I recommend that they cease and desist and that they take certain affirmative action designed to remedy the unfair labor practices and to effectuate the policies of the Act Having found that Respondent Company discrimina torily discharged Maureen V Johnson I recommend that it offer her immediate and full reinstatement to her former or substantially equivalent position without prey udice to seniority or other rights and priveleges Further having found Respondent Company violated Section 8(a)(1) and (3) and Respondent Union Section 8(b)(1)(A) of the Act I recommend that they be ordered to jointly and severally make Maureen V Johnson whole for any loss of earnings she may have suffered by reason of their discrimination and lack of fair representation All back pay provided herein shall be computed with interest in the manner provided in New Horizons for the Retarded 283 NLRB 1173 (1987) 49 [Recommended Order omitted from publication ] 49 In accordance with our decision in New Horizons for the Retarded 283 NLRB 1173 (1987) interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to January 1 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) See generally Isis Plumbing Co 138 NLRB 716 (1962)