Communications Workers Of America, Afl-Cio And Its Local 6320 (Ad/Vent Information Services, Inc.)

810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Communications Workers of America, AFL-CIO, and its Local 6320 (AD/VENT Information Services, Inc.) and Gertrude Smith. Case 7- CB-7223 June 8, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On September 28, 1988, Administrative Law Judge Lowell Goerlich issued the attached deci- sion. The Respondents filed exceptions and a memorandum brief to the Board, the General Counsel filed cross-exceptions, a motion to strike portions of Respondents' memorandum brief to the Board, and a motion to correct portions of the ad- ministrative law judge's decision, and the Respond- ents filed an answering brief to the General Coun- sel's cross-exceptions and motion to strike. On January 12, 1989, the Board issued an Order Remanding Proceeding to the administrative law judge in order to clarify his description of certain testimony and to make an important credibility de- termination. The Order granted the General Coun- sel's motion to correct portions of the judge's deci- sion and held the General Counsel's motion to strike in abeyance pending issuance of the judge's supplemental decision. On February 14, 1989, the judge issued the at- tached supplemental decision in which he made the required credibility resolution and reaffirmed his original decision and recommended Order. The Respondents filed exceptions and an addi- tional memorandum brief to the Board and the General Counsel filed a motion to strike portions of Respondents' memorandum brief.' The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision, the sup- plemental decision, and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondents violated Section 8(b)(1)(A) of the Act by treating Charging Party Gertrude Smith's grievance in a perfunctory ' The General Counsel's motions to strike refer to a March 18, 1988 letter sent by the General Counsel's Office of Appeals to Joseph P Touchstone This letter was attached to both of the Respondents' memo- randum briefs to the Board that also discussed the significance of the letter regarding Smith's 8(b)(1)(A) allegation We agree with the General Counsel that the letter was not introduced at the hearing and is thus not a part of the record in this proceeding. Accordingly, we grant the Gener- al Counsel's motion to strike the letter and any discussion of the letter from the Respondents' briefs manner and arbitrarily failing to process the griev- ance. We disagree. Gertrude Smith, Joe Touchstone, and Delano Johnson were account executives in Detroit en- gaged in soliciting advertisers for a telephone di- rectory. The employees worked under a collective- bargaining agreement between the Respondents and the Employer providing that all grievances had to be filed in writing within 45 days with the Employer's division level management. The divi- sion manager supervising the Detroit account ex- ecutives was located in Chicago. Thus, any griev- ance filed covering unit employees in Detroit had to be timely filed in Chicago. On December 12, 1986, Smith, Touchstone, and Johnson were dis- charged because they had failed to reach a sales quota. On the evening of December 12, Smith, Touch- stone, Johnson, and Respondents' steward, Allesia Daniels, met at an employee's home to discuss their discharges and the grievance procedure. Johnson filed a grievance with the Employer on December 30 and was reinstated with no backpay on January 26, 1987. Touchstone attempted to file his griev- ance some time on January 26, 1987, the last day of the contractual filing period. Smith presented her grievance to Daniels after 5 p.m. on January 26. Daniels informed Smith that because the Respond- ents' executive vice president had advised Daniels that Touchstone's grievance filed earlier the same day was untimely, Smith's grievance also was late. Daniels testified that the Touchstone and Smith grievances were not processed because it was too late for the Company to receive them in Chicago by January 26. At the hearing, Smith admitted that near the time of her discharge, she was aware of the 45-day grieving period. The judge found that the Respondents violated Section 8(b)(1)(A) because the Respondents had of- fered no explanation regarding why they did not attempt a delivery of either Smith's or Touch- stone's grievances, 2 except that the grievances were untimely. Although Touchstone's grievance was received by the Respondents on the 45th day, the Respondents' executive vice president made no effort to deliver the grievance to Chicago. The judge also noted that the collective-bargaining agreement does not provide for the method of de- livery. Thus, according to the judge, Touchstone's grievance could have been sent by telegraph or other device enabling timely delivery. Moreover, because Johnson's grievance proved to be well taken, it was reasonable to assume that Touch- 2 The Respondents' treatment of Touchstone's grievance is not at issue in this case 294 NLRB No. 68 COMMUNICATIONS WORKERS LOCAL 6320 (AD/VENT) stone's grievance had merit. The judge concluded that Smith's grievance was perfunctorily treated in the same manner as Touchstone's grievance, except that Daniels rather than the Respondents' executive vice president had arbitrarily failed to accept Smith's grievance. Contrary to the judge, we find that the Respond- ents did not treat Smith's grievance in an arbitrary manner. It is undisputed that the Respondents held a meeting to explain the grievance process to Smith, Touchstone, and Johnson and that on a date near that of her discharge, Smith knew she had 45 days to file her grievance. It is also undisputed that, in order to be properly filed, a grievance had to be in writing and received by the employer in Chicago on or before the 45th day. When Smith at- tempted to submit her grievance in Detroit after 5 p.m. on the last day of the filing period, the Re- spondents explained to her that the grievance was untimely. The Respondents had concluded that the grievance could not have been received by the Chicago division level management on the same day. Contrary to the judge, we find that the duty of fair representation does not require a union to resort to extraordinary measures to process griev- ances. Rather, a union's obligation is merely to re- frain from conduct that is arbitrary, discriminatory, or in bad faith. Vaca v. Sipes, 386 U.S. 171 (1967). We note in this connection that the General Coun- sel has not shown that the Respondents normally enlisted special means to ensure the timeliness of grievances. Thus, under these circumstances, we find that the Respondents acted reasonably in treat- ing the grievance as untimely. We also note that the Respondents offered Touchstone and Smith the same explanation for their refusal to process the grievances indicating the Respondents' impartial treatment of Smith's grievance. Staff Officers (Delta Steamship), 277 NLRB 1137, 1150 (1985). Moreover, as there is no claim of hostility, the fact that the Respondents processed Johnson's grievance suggests the Re- spondents' willingness to pursue Smith's and Touchstone's grievances had they been timely filed. Accordingly, we conclude that the Respond- ents did not treat Smith's grievance in a perfuncto- ry manner and we shall dismiss the complaint. ORDER The complaint is dismissed. Linda Rabin and Pennie Millender, Esqs., for the General Counsel William M. Franz, Esq., of St. Louis, Missouri, for the Respondent. Gertrude Smith, of Detroit, Michigan, pro se. DECISION STATEMENT OF THE CASE 811 LOWELL GOERLICH, Administrative Law Judge. The original charge in this case filed on June 12, 1987, by Gertrude Smith, the Charging Party, was served on Communications Workers of America on June 17, 1987, by certified mail. A complaint and notice of hearing naming Communications Workers of America, AFL- CIO, and its Local 6320 as the Respondent was issued on December 8, 1987. An amended charge filed February 5, 1988, was served on Communications Workers of Amer- ica on February 8 and 9, 1988, on Communications Workers of America, AFL-CIO, and its Local 6320 on February 8, 1988, and on Local 4013, Communications Workers of America on February 11, 1988, by certified mail. An amended complaint and notice of hearing was issued on May 27, 1988 The amended complaint alleges that the "Respondent Union, by its agents, willfully, arbitrarily and perfuncto- rily failed'to timely file with the employer and process the grievances" of the Charging Party and Michael Al- dridge in violation of Section 8(b)(1)(A) of the National Labor Relations Act. Timely separate answers were filed by Communications Workers of America, AFL-CIO (Respondent International) and Communications Work- ers of America, AFL-CIO, and its Local 6320 (Respond- ent Local), denying that either had engaged in the unfair labor practices alleged. This matter. was heard on July 20, 1988. Each party was afforded a full opportunity to be heard, to call, ex- amine, and cross-examine witnesses, to argue orally on the record, to submit proposed findings of fact and con- clusions, and to file briefs All briefs have been carefully considered. On the entire record in this case' and from my obser- vation of the witnesses and their demeanor, I make the following2 FINDINGS OF FACT, CONCLUSIONS, AND REASONS THEREFOR I. BUSINESS OF THE EMPLOYER AD/VENT Information Services, Inc., a subsidiary of Southwestern Bell Publications, Inc. (AD/VENT or Employer) is, and has been at all times material, a corpo- ration duly organized under, and existing by virtue of, the laws of the State of Missouri. At all times material, AD/VENT has maintained an office and place of business at 3600 Northwestern High- 'Respondent's motion to strike a portion of the General Counsel's Memorandum of Points and Authorities is denied 2 The facts found are based on the record as a whole and the observa- tion of the witnesses The credibility resolutions have been derived from a review of the entire testimonial record and exhibits , with due regard for the logic of probability, the demeanor of the witnesses , and the teachings of NLRB v Walton Mfg Co, 369 U S 404, 408 (1962) Regarding those witnesses testifying in contradiction to the findings , their testimony has been discredited either as having been in conflict with the testimony of credible witnesses , or because it was in and of itself incredible and un- worthy of belief All testimony has been reviewed and weighed in light of the entire record No testimony has been pretermitted 812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD way, Suite 100, in Farmington Hills, Michigan, its Farm- ington Hills place of business. AD/VENT maintains other places of business in various States within the United States of America . AD/VENT, is and has been at all times material , engaged in the solicitation , sale, and provision of telephone directory. advertising. The AD/VENT Farmington Hills place of business located in Farmington Hills, Michigan , is the only facility in- volved in this proceeding. During the year ending December 31, 1986, which period is representative of its operations during all times material, AD/VENT, in the course and conduct of its business operations, had gross revenues from its business operations in an amount exceeding $500,000, and pur- chased goods and services valued in excess of $50,000, which goods and services were transported and deliv- ered, and/or provided to its AD/VENT Farmington Hills place of business in Farmington Hills, Michigan, di- rectly from suppliers and points located outside the State of Michigan. AD/VENT Information Services, Inc., a subsidiary of Southwestern Bell Publications, Inc., is now, and has been at all times material , an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent International and Respondent Local are, and have been at all times material, labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES INVOLVED Delano Johnson, Gertrude Smith, Michael Aldridge, and Joseph Touchstone were employed by AD/VENT as account representatives engaged in soliciting advertis- ers in Detroit, Michigan, for the silver pages, a telephone directory tailored to senior citizens. All four employees were discharged on December 12, 1986, for similar rea- sons having to do with the charge that each had not reached the quotas required for their jobs. The employees worked under a contract between Communications Workers of America and Southwestern Bell Publications, Inc., dated October 26, 1986, and ex- piring by its terms on October 27, 1989. The four em- ployees named above were members of Respondent Local. The contract provided for a grievance procedure as follows: ARTICLE XX GRIEVANCES Section 1 . The Union3 shall be the exclusive rep- resentative of all the employees in the Bargaining Unit for the purposes of presenting to and discuss- ing with the Company grievances of any and all such employees arising from such employment; sub- ject always, however, to the provisions of this Agreement, the current Agreement of General Ap- plication between the Union and the Company and of any applicable law. Section 2. a. Any employee complaint (except those which contemplate treatment or proceedings inconsistent with the terms of a collective bargaining contract or agreement then in effect including proposals for the modification of, or addition to, any such con- tract or agreement) which is reduced to writing and delivered by a Union representative in accordance with Section 2.b. following, within 45 days of the action complained of shall be considered and han- dled as a formal grievance. b. The grievance procedure shall normally con- sist of three successive steps. Notice of grievances and appeals of decisions made at the first and second steps shall be forwarded in accordance with the following: Step Number-Company Representative Desig- nated to Receive Grievance 1-Division level management having superviso- ry authority over the conditions or circumstances which gave rise to the grievance . In the absence of a Division level, the notice of the grievance shall be forwarded to the District level manager having the supervisory authority.) Respondent Local, a local formed under the constitu- tion of the Communications Workers of America , repre- sented around 4000 employees and entertained jurisdic- tion over AD/VENT account representatives through- out the United States except for the State of Texas. Re- spondent Local had about 30 to 35 members in the De- troit area. ADVENT' ceased its operation in Detroit on January 6, 1988. All employees were laid off on May 6, 1988, at AD/VENT Information in Detroit. William R. Murphy was Respondent Local's executive vice president with offices in St . Louis, Missouri, where the Respondent Local was quartered. Murphy described the procedure under the contract for processing grievances as it applied to the Detroit em- ployees of AD/VENT. Two stewards were assigned for the Detroit employees , Allesia Daniels and Betsy Soma. An employee's grievance was given to one of these stew- ards and then forwarded to the chief steward in St. Louis where it ended up in Murphy 's hands. As stated by Murphy, "I would file the grievance on the yellow form that I gave you and I would give that then to the president of the local who would send the form . . . letter requesting a meeting [with the Employer]." The grievance was sent to Larry Furrow, the division level manager in Chicago. Under the contract the grievance, to remain a live grievance, must have been filed with the division level manager within 45 days. For the above- mentioned discharges the 45th day would have been Jan- In the contract , Union refers to Communications Workers of Amer- ica. 4 AD/VENT was a wholly owned subsidiary of Southwestern Bell Publications, Inc COMMUNICATIONS WORKERS LOCAL 6320 (AD/VENT) iiary 26, 1988 According to Murphy, if an employee in- sists, his grievance will be filed with the Employer.5 On the evening of December 12, 1987, dischargees Smith, Touchstone, Johnson, and Stewart Daniels met at the home of employee Shirley Wood where their dis- charges were discussed for 6 hours. Daniels "mentioned" that the employees "should grieve and that she would accept the grievances if [they] wanted to file." The pro- cedure for grieving was also discussed. Daniels telephoned Murphy on December 12, 1987, and advised him of the four discharges. Murphy told Daniels "to take all grievances on the matter." Daniels had taken notes during the discharge sessions that she had attended. Daniels forwarded these notes to Murphy. Murphy received a grievance for Johnson that was filed with the Employer on December 30, 1986. A grievance hearing was held on January 9, 1987, and resumed on January 21, 1987, at which time the grievance was re- solved. Johnson was reinstated with no backpay and re- turned to work on January 26, 1987. Murphy received no grievance forms from Smith, El- dredge, or Touchstone. Johnson's grievance was the only grievance Murphy ever presented to the Employer. Murphy "never personally informed Ms Smith or Mr. Aldridge that his or her grievance had no merit." A. Aldridge's Claim Against Respondent Local According to Aldridge, immediately after he was dis- charged on December 12, 1986,6 he told Daniels that he desired to file a grievance over his discharge. Daniels gave him a grievance form and her home address with instructions to fill out the form and send it to her, where- upon she would mail it to St. Louis.7 Aldridge testified that he filled out the grievance form within the next 2 days and placed it in an envelope ad- dressed to Daniels and dropped it in a mailbox. Aldridge made no copy of the grievance. Some time prior to Janu- ary 1, 1987, Aldridge reached Daniels by phone. He asked her whether she had receive this grievance, to which she answered, "No." In the last week of Decem- ber 1986, or the first week of January 1987, Aldridge went to the Employer's office at Farmington Hills for the purpose of cleaning "some stuff" out of his desk and ,,some accounts that some other representatives were working on that I was going to brief them on it." Ac- cording to Aldridge, he obtained a grievance form from Betsy Soma and "[w]rote out a brief grievance." Al- dridge made no copy. Aldridge approached Daniels, who was at her desk talking on the phone. Aldridge opened her desk drawer, "laid the grievance paper in the drawer, and said, `Here is my grievance. Please take care of it' in a very low tone of voice because. Mr. Ray was sitting in the next office." Daniels replied, "I'll take care of it." Later Aldridge called Daniels several times and 5 Murphy testified, "if the grievant, the employee, wants a grievance to be filed, it wasn't settled, the person really wants it to be filed, it would be filed at the first step " 6 At Aldridge's request Stewarts Daniels and Soma were present at his discharge ' Aldridge testified, "at that time she gave me her address so I could send her the grievance form because I wanted to take the time to think everything through to put it on paper " 813 asked her whether she had heard anything from St. Louis. Aldridge's affidavit read: After my termination, I received a-form and filed a grievance with my steward, Buckingham. I filed it within two weeks of my termination Buckingham apparently lost the first one and within days, I filed an identical grievance. . . . She said she lost the first one. Daniels testified that she had talked to Aldridge prior to the first of the year and advised him what he needed to do to file a grievance Aldridge advised Daniels that he should send the grievance to her home. Daniels re- ceived nothing from him. Testifying further, Daniels denied that Aldridge had slipped a grievance form in her desk drawer or had been present at her desk as claimed by Aldridge. Here is testimony of two witnesses that is contradicto- ry. Thus, I must decide whether to believe Smith or Al- dridge. I discredit Aldridge because of his demeanor (he was not a straightforward witness), his story that he slipped his grievance in Smith's desk drawer seems an implausible event under the circumstances, and there are certain inconsistencies in his testimony. Hence, the claim based on the Union's failure to proc- ess Aldridge's grievance is dismissed. B. Smith's Claim Against Respondent Local Smith, who was discharged on December 12, 1986, ob- tained a grievance form while at the meeting in the home of employee Woods. According to Smith, she completed the form on January 19, 1987, made a xerox copy of the original, and delivered it to Daniels at her home. Daniels told Smith that "according to ... [the] reps in St. Louis, it was not in a timely fashion, because . . . it was being handled locally and it was past the 30 day filing period." Daniels testified that the next time she saw Smith, after the meeting at employee Wood's home, was on Jan- uary 26, 1987, between 5 and 6 p.m., at Daniel's home. Smith wanted to file her grievance, but Daniels said, "Smith, I had learned earlier when the same situation of Joe Touchstone occurred that even though this was the 45th day, it's too late for the Company to respond to it." (Emphasis added.) Smith later, after prompting, changed it to "receive" the grievance. Daniel had contacted Murphy about Touchstone 's grievance . Touchstone had presented his grievance to Daniels on January 26, 1987. Murphy had also told Daniels that the grievance would now be handled locally by Communications Workers Local 4009, in Southfield. The contract between the employee and the Union provided that: "any employee complaint ... which is reduced to writing and delivered" to the division level manager within 45 days of the action complained of, "shall be considered and handled as a formal grievance." Thus, if Smith's grievance had been delivered to Larry Furro, the division level manager, in Chicago, Illinois, on January 26, 1986, the 45th day, it would have contin- ued to have been a live grievance. Murphy ruled Touch- stone's grievance that was given to the steward on the 814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 45th day was too late. Such ruling does not conform with the provisions of the contract, for the contract holds that the grievance is too late only if it is not in the hands of the division level manager on the 45th day. Thus, if Touchstone's or Smith's grievance had been de- livered to the division level manager on January 26, 1987, it would have been on time Moreover, the con- tract does not provide information concerning how, or in what form, or by what vehicle (except that the grievance be written), the complaint is to be delivered to the divi- sion level manager Hence, the complaint could have been delivered by telegraph or by some other mode, that could no doubt have put it in Chicago by midnight, Jan- uary 26, 1987. The Respondent Local offered no expla- nation regarding why it did not attempt a delivery of either Touchstone's or Smith's grievance, except that it was received by the Union too late. Murphy, who al- ready had knowledge of the nature of the grievance, was lax in his duty in not at least exhausting the probabilities that the complainant's grievance might have been deliv- ered on time. He ruled it too late before he investigated whether the complaint could have been kept alive. Moreover, in that Johnson's grievance proved to be well taken, it was reasonable for him to have believed that Touchstone's grievance had arguable validity. Because Smith's grievance was perfunctorily treated in the same manner as the grievance of Touchstone, except that it was the steward who scotched it based on Murphy's per- functory ruling, lack of appropriate fair representation seems obvious. Murphy's failure to process Touchstone's grievance or to even put forth a good-faith effort to get it to the Employer, which carried over to Smith's griev- ance, constituted a willful and perfunctory manner for processing the grievance and was an arbitrary failure or refusal to process Smith's grievance. Since our Miranda Fuel decision, we have consist- ently found that a union's arbitrary failure or refusal to process an employee's grievance, or a union's processing of a grievance in a perfunctory manner, violates the union's duty of fair representation and Section 8(b)(1)(A). [Rubber Workers Local 250 (Mack-Wayne), 290 NLRB 817 at 818 (1988) ] Accordingly, the Respondent Local and the Respond- ent International" violated Section 8(b)(1)(A). CONCLUSIONS OF LAW 1. The Employer is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondents are labor organizations within the meaning of Section 2(5) of the Act. 8 Respondent International filed a Motion for Summary Judgment, which motion "primarily was premised on the fact that the Respondent International had nothing whatever to do with this case " (R Memoran- dum Br p 4) Because the International Union was the contacting party and statutory agent, with the primary responsibility to process grievances under the contractual grievance procedure, it cannot be permitted to shirk that responsibility by hiding behind a local that fails to meet the demands of Sec 8(b)(1)(A) of the Act Respondent International 's motion is denied 3. By treating Smith's grievance in a perfunctory manner and by arbitrarily falling to process Smith's grievances on January 26, 1986, Respondent breached its duty of fair representation and thereby restrained and co- erced Smith in the exercise of rights guaranteed by Sec- tion 7 of the Act and thereby violated Section 8(b)(1)(A) of the Act 4 The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act, I will recommend that they be ordered to cease and desist and to take certain affirmative action de- signed to effectuate the policies of the Act Because it appears that Respondents have not elected to present evidence on the merits of the grievance in any event, and the General Counsel has sustained her burden of proof, I recommend the Board's remedy as set out in Rubber Workers Local 250, 279 NLRB 1074 (1986), and 290 NLRB 817 (1988) 9 [Recommended Order omitted from publication.] 9 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) Linda Rabin and Pennie Millender, Esq., for the General Counsel. William M. Franz, Esq., of St. Louis, Missouri, for the Respondent. Gertrude Smith, of Detroit, Michigan, pro se. SUPPLEMENTAL DECISION Lowell Goerlich, Administrative Law Judge. This matter' is before me on Order Remanding Proceeding to the administrative law judge in that the "judge mischar- acterized Smith's testimony when the judge stated that Smith testified that Daniels told Smith of the untimeli- ness of Smith's grievances on January 19," and for the purpose of "explicitly" determining the credibility of Charging Party Gertrude Smith and Union Stewart Alle- sta Daniels in respect to whether Smith submitted a grievance to Daniels on January 19, 1987. Smith testified that she filled out and signed a griev- ance on January 19, 1987, which she delivered to Dan- iels' home on the same date. According to Smith, Dan- iels' "reviewed it" and "mentioned that she would see what she could do." Smith further testified that "[a]pproximate[ly] a week afterwards," she conversed with Daniels by phone ' My original decision issued on September 28, 1988 (JD-219-88) The Board's remand Order issued on January 12, 1989 (not reported in the Board volume) COMMUNICATIONS WORKERS LOCAL 6320 (AD/VENT) to see exactly what the status of the grievance had reached, and she mentioned to me at that date that according to, again , her conversations with reps in St. Louis, it was not in a timely fashion , because then the-it was being handled locally and it was past the 30 day filing period And I asked her if that was the extent of it, had she talked to St. Louis, and she mentioned yes. That was the words she had gotten back from St. Louis After this conversation , according to Smith, she did not contact Daniels again nor any other representative of the Union. On the other hand Daniels testified that the next time she talked with Smith after December 12, 1986 (the date on which Smith was discharged and the date on which Daniels met with Smith and other discharges in respect to the filing of grievances) was on January 26, 1987, at which time Smith presented a grievance to her . Accord- ing to Daniels she told Smith , that she "had learned from Joe Touchstone's narrative of the same date that it was too late to send this to the Company . . [B]ecause it was the 45th day." Daniels further testified that she said to Smith, "Smith, I had learned earlier when the sme sit- uation of Joe Touchstone occurred that even though this was the 45th day, it's too late for the Company to re- spond to it " 815 According to Daniels she also exxplained to Smith that Bill Murphy had explained that on that date that I talked to him on January 26th that we would now be handled locally by CWA local in Southfield. I gave Smith the same information that I gave Joe Touchstone earlier that day, that this was 4009 in Southfield. It is obvious that the testimony of Smith and Daniels is contradictory. I credit Daniels' testimony2 and find that Smith presented her grievance to Daniels not before Jan- uary 26, 1987, and that she did not present her grievance to Daniels on January 19, 1987 3 Accordingly, I adopt and incorporate herein my find- ings of fact, conclusion, and reasons therefor4 and my Conclusions of Law, remedy, recommended Order, and notice set forth in my decision in this matter. 2 At the time I wrote my decision in this case, as between Smith and Daniels, I was convinced that Daniels was the truthful witness, however, it was my opinion at the time that a finding in this regard would have served no useful purpose in view of the findings and recommendations contained in my decision 3 It is of significance tht Delano Johnson, who was dicharged for the same cause as Smith , was reinstated on January 26, 1987 , his grievance having been resolved on January 21, 1987 4 As extended herein