Oil, Chemical And Atomic Workers International Union, Local No. 5-114, Afl-Cio (Colgate-Palmolive Co.)

742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Oil, Chemical and Atomic Workers International Union, Local No. 5-114, AFL-CIO (Colgate- Palmolive Company) and Ronald A. Moody. Case 17-CB-3426 June 15, 1989 DECISION AND ORDER REMANDING BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On August 16, 1988, Administrative Law Judge Steven M. Charno issued the attached decision. The General Counsel and the Respondent filed ex- ceptions and supporting briefs, and the Respondent filed an answering brief to the General Counsel's exceptions. The National Labor Relations Board has delegat- ed its ' authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Decision and Order Remanding. The judge found that the Respondent Union vio- lated Section 8(b)(1)(A) of the Act in two respects alleged by the General Counsel, but that the Re- spondent did not engage in two other alleged 8(b)(1)(A) violations. As explained below, we adopt the judge's findings of the two violations but, for the reasons also described below, we reverse his dismissals. Further, we shall revise the judge's recommended remedy for certain of the violations he found to conform it with recent precedent. The Respondent represents a bargaining unit of approximately 600 workers at the Employer's Kansas City, Kansas facility, and the Respondent and the Employer are parties to a collective-bar- gaining agreement that contains a grievance and ar- bitration clause. At all relevant times, the Charging Party, Ronald Moody, was a unit employee but was not a member of the Respondent. On Novem- ber 4, 1986, Moody was involved in a fight with another employee. The Employer originally intend- ed to discharge both employees but, due to the Re- spondent's efforts, the Employer instead suspended both on November 18, 1986, for 90 days. The other employee accepted the discipline. Moody, howev- er, filed a grievance with the Respondent on No- vember 21, 1986. That grievance was denied by the Employer at each step of the grievance procedure preceding arbitration and was returned to Moody on August 11, 1987. On August 20, 1987,1 Moody asked the Re- spondent's vice president, James ' Starcher, how he could submit his grievance to arbitration. Starcher explained to Moody that the Respondent's mem- bership was required to vote to decide whether a grievance would go to arbitration. Starcher also told Moody that it had been the Respondent's practice for a grievant to present his grievance at a union membership meeting. Moody asked if he could do this, and Starcher responded, "[y]ou're not allowed in the Union hall without being a union member." Starcher asked Moody if there was anyone who would present Moody's griev- ance, and Moody asked Starcher if he would do so. Starcher refused, commenting "I tried to get you to belong to the union." Moody questioned Starch- er's meaning, and Starcher replied, "I tried to get you to join the union, then we wouldn't have this problem." Starcher told Moody he would check with the Respondent's president, Vern Dietz, on the matter. Later that day, Moody met with Dietz and Starcher. Dietz told Moody that Moody could send the Respondent a letter requesting arbitration and giving reasons for the request, and that the letter would be presented at a membership meeting. Starcher reaffirmed that Moody would not be al- lowed to attend the meeting. As a result of his conversation with the Re- spondent's officers, Moody prepared a statement of reasons for submitting his grievance to arbitration and included his 1986 statement concerning his grievance. Attached was a receipt with signature and date lines, and which provided that "[t]his statement is to be read in full by Vern Dietz at the next union meeting and voted on." On August 27, Moody offered the statements to Dietz and asked him to sign the receipt. Dietz re- sponded: No, I won't sign nothing for you. You're not a union member. I won't sign nothing for you ... other than what the law makes me, and that's because you're not a union member. When Moody gave the papers to Dietz, the latter stated: I'll present it for you, but . . . I won't give you my signature on anything, because I don't represent you. I'm not a legal attorney . . . those people I represent because I've been elected and they pay dues, but non-union members I don't do that for. ' All subsequent dates are in 1987 unless noted otherwise 295 NLRB No. 76 OIL WORKERS LOCAL 5-114 (COLGATE-PALMOLIVE CO.) On September 8, Moody filed the instant unfair labor practice charge against the Respondent. On September 16, the Respondent held three meetings for its members . After each meeting was called to order, the Respondent's officers presented reports. Included was one by Steward Joseph Stude on the status of grievances. Starcher then spoke briefly and Dietz gave a lengthy report. According to the Respondent's official minutes of the September 16 meetings, at the close of Dietz' presentation, "[t]he R. Moody grievance, arbitration and charges against the union were reported." The Respondent refused to read Moody's statements to its members and, though the statements were made available to the membership, the meetings were not recessed to allow the Respondent's members to review them.2 After various other reports and communications were read, motions were entertained, and a motion that Moody's grievance not be taken to arbitration was passed at each of the meetings . The next day, Starcher informed Moody of the outcome and indi- cated that Moody's statements had not been read at the membership meetings. The judge found that the Respondent violated Section 8(b)(1)(A) on September 16 by discrimina- torily refusing to permit Moody to attend the meet- ings of its members in order to seek their vote to arbitrate his grievance. We agree with this finding. In doing so, we note in particular that the Re- spondent's asserted "substituted but equivalent pro- cedure" for Moody's grievance fell far short of the procedure customarily provided to the Respond- ent's members especially given that the Respondent refused to read Moody's statements to its members and that there was no one to advocate arbitration of his grievance at the meeting . 3 This disparate 8 The judge found that unit employee Cathy GaMarsh had testified that Moody's grievance had been read by Chief Steward David Taylor, and the judge rejected GaMarsh's testimony because Taylor had testified that he had not attended any of the membership meetings GaMarsh actu- ally testified that the grievance was read by the chief steward , and that this could have been either David Taylor or Joe Stude . The record shows that the latter did in fact attend the membership meetings and re- ported grievances. Thus, we find that the judge's characterization of Ga- Marsh's testimony was erroneous. However, we do not reverse the judge's credibility finding concerning GaMarsh because , as he indicated at fn. 9 of his decision , she had a poor recollection of the September 16 membership meeting. 8 The judge found that Glass & Pottery Workers Local 15 (Owens-Corn- ing), 282 NLRB 1296 (1987), relied on by the Respondent, was inapposite because there was no evidence here that the Respondent's members were otherwise aware of the nature of Moody's grievance and request for arbi- tration. The Respondent contends that the judge himself had excluded such evidence We find that the Respondent's offers of proof were in any event insufficient to establish that the evidence would show that, as in Glass & Pottery Workers, the members who decided whether to proceed with the complainant's grievance were fully aware of the facts of the grievance Unlike Glass & Pottery Workers, the Respondent's offers of proof involved the knowledge of the facts of Moody 's grievance by only 2 of the 45 members who voted on the grievance, and there was no indi- cation what the source of these members' knowledge was and hence whether that source was comparable to the sources of knowledge of the 743 treatment of a nonmember was arbitrary and dis- criminatory, and was inherently destructive of im- portant employee rights and violated Section 8(b)(1)(A) of the Act as the judge found.4 The judge, however, found that Starcher 's earli- er statement to Moody on August 20 that "we wouldn't have this problem" if Moody were a union member did not violate Section 8(b)(1)(A). We disagree. In dismissing, the judge found that the statement was not made in the context of a re- fusal to process Moody's grievance, but in the course of seeking a solution to the "problems," purportedly shared by Moody and the Respondent, of Moody's nonmember status . As the facts clearly reveal, however, there is no indication in Starcher's comments that the Respondent was then seeking a "solution" to the perceived "problem." Rather, Starcher told Moody that : (a) the Respondent's practice was to allow grievants to present their grievances to the membership at a membership meeting but (b) because Moody was not a union member, he was not allowed in the hall to attend a membership meeting and (c) that Starcher himself would not present Moody's grievance to the mem- bership because Moody was not in the Union. In this context, Starcher's statement that no problem would exist if Moody were a union member rea- sonably would be understood as a direct rebuke of Moody's nonunion status, and would convey the impression that the Respondent intended to treat Moody disparately. Indeed, that is precisely what occurred subsequently.5 business committee in Glass & Pottery Workers We further find Glass & Pottery Workers distinguishable because in that case there was no evi- dence that the union had a practice of having grievants present their grievances to the business committee. ' The judge further found, and we agree, that the Respondent's an- nouncement of Moody's unfair labor practice charge against it at the same time that it informed its members that he sought arbitration of his grievance, during a portion of the meetings that was not appropriate to either announcement , was a separate violation of Sec. 8 (b)(1)(A). We find that this conduct additionally supports the conclusion that the Respond- ent violated Sec 8(bXl)(A) with respect to the presentation of Moody's request for arbitration of his grievance. 5 In view of the context in which the "problem" statement was made, we are not persuaded by our dissenting colleague's characterization of the August 20 encounter as one in which the Respondent was simply ex- ploring a good-faith solution to the "problem" in a nonthreatening manner. Because the focus of the encounter, taken as a whole, served to cast blame on Moody for instigating the "problem ," the coercive effect of Starcher's statement was not mitigated by his comment that he would check on the matter with the Respondent's president. Assuming that the Respondent was then seeking a solution to the per- ceived problem, Member Johansen further notes that the solution that the Respondent settled on-the manner of presentation of Moody's griev- ance-was rightly found a violation by the judge. In the context here of informing Moody that he could not attend the meeting while at the same time failing to afford Moody a substantially equivalent procedure for the presentation of his request for arbitration of his grievance , Member Jo- hansen finds on this basis also that the Respondent 's statement to Moody that he would not have that problem if he had "join[ed] the union" was likewise a violation of Sec 8(b)(1)(A). Continued 744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Finally, we disagree with the judge's finding that Dietz' statement to Moody on August 27 did not violate Section 8(b)(1)(A). In dismissing, the judge found that Dietz' statement that he would do noth- ing for Moody because he was not a union member was qualified by the phrase "other than what the law makes me," and that his statement "I don't rep- resent you" was made "in the context of profes- sional legal representation" and was coupled with a commitment to present Moody's statement at the membership meetings. We find, however, that Dietz' statement that he would do what the law re- quires did not vitiate the coercive effect of his statement that he did not represent Moody because Moody was not a member of the Union. 6 Further, contrary to the judge, it is clear that Moody's statement did not describe some aspect of "profes- sional legal representation" but was an indication that he would treat Moody disparately with regard to workplace grievances because of his nonunion status. Accordingly, we reverse the judge's finding and conclude that Dietz' statement violated Section 8(b)(1)(A) of the Act. REMEDY The Respondent has engaged in unfair labor practices, and we shall order it to cease and desist and to take affirmative action designed to effectu- ate the purposes of the Act. We have found that the Respondent committed various violations in the handling of Moody's grievance . We find that suffi- cient evidence has been presented to establish that Moody's grievance was not clearly frivolous.7 Thus, the burden of proof has shifted to the Re- spondent to prove that it lacks merit. See Rubber Workers Local 250 (Mack- Wayne), 290 NLRB 817 (1988) (Member Cracraft dissenting) (Mack-Wayne II). The Respondent may elect to do so either at the unfair labor practice stage or in a compliance proceeding. Accordingly, we shall remand this case to the judge.8 Should the Respondent elect to liti- Member Cracraft would not find the August 20 statements by them- selves to be violative of the Act. The Charging Party was told that the "problem" would be taken up with the Union's president. Absent an indi- cation on August 20 that there was no recourse , or solution, for the prob- lem, the fact that the subsequent "solution" was violative of the Act does not render the earlier, nonthreatening statements themselves violative. s See Trico Products Corp., 246 NLRB 514 (1979). 9 Moody claimed that he should not have been suspended for fighting because he had been defending himself and he had been the one who re- ported the incident to his supervisor . Given the testimony by the Em- ployer's supervisor of hourly personnel that the Employer's penalties for fighting are "based on the circumstances around the incidents ," Moody's claim that these factors warranted reducing his punishment was not clear- ly frivolous. e Member Cracraft would not remand the case and would not allow for the possibility of a backpay remedy . As stated in her dissent in Mack- Wayne II, the burden of proof rests with the General Counsel in the ini- tial unfair labor practice proceeding to show that the grievance in dispute was meritorious before the Board may award backpay The General gate the merits issue at the compliance stage, the judge shall issue an appropriate order based on this decision, including provisional make-whole and other remedies similar to those set out in Rubber Workers Local 250 (Mack-Wayne Closures), 279 NLRB 1074 (1986) (Mack-Wayne I), requiring the Respondent to (1) permit Ronald Moody to be rep- resented by his own counsel at the arbitration pro- ceeding, and (2) to pay the reasonable legal fees of such counsel. Should the Respondent elect to liti- gate the merits issue now, the judge shall convene a hearing for the purpose of taking evidence and, when the hearing is concluded, shall prepare and serve on the parties a supplemental decision. ORDER It is ordered that the record in this proceeding is reopened and remanded to Administrative Law Judge Steven M. Charno for the purpose of allow- ing the Respondent to elect whether to present evi- dence on the merits of the grievance at a hearing or at a subsequent compliance stage. If the Respondent elects to present evidence on the merits of the grievance at the compliance stage, then the judge shall recommend an appropriate Order based on this decision and that Order shall contain provisional make-whole and other reme- dies, including a cease-and-desist order. See Mack- Wayne I, supra. If the Respondent elects to present evidence on the merits of the grievance at this time, Judge Charno shall convene a further hearing for the pur- pose of taking evidence in accordance with this de- cision. On the hearing's conclusion, Judge Charno shall prepare and serve on the parties a supplemen- tal decision containing findings of fact, conclusions of law, recommendations, and an appropriate Order. Following service of the supplemental deci- sion on the parties, the provisions of Section 102.46 of the Board's Rules and Regulations shall govern. Counsel did not sustain such a burden of proof in this case. Additionally, as set forth in her dissent, she does not believe that the bifurcated pro- ceedings adopted by her colleagues are an appropriate utilization of the Board's resources. Stephen E. Wamser, Esq., for the General Counsel. John W. McKendree, Esq., of Denver, Colorado, for the Respondent. DECISION STATEMENT OF THE CASE STEVEN M . CHARNO, Administrative Law Judge. In response to a timely filed charge, a complaint was issued on October 22, 1987, alleging that the Oil, Chemical and Atomic Workers International Union, Local No. 5-114, AFL-CIO (Respondent) violated Section 8(b)(1)(A) of } OIL WORKERS LOCAL 5-114 (COLGATE-PALMOLIVE CO.) the National Labor Relations Act, by restraining and co- ercing employees in the exercise of rights guaranteed in Section 7 of the Act. Respondent's answer denied the commission of any unfair labor practice. A hearing commenced before me in Kansas City, Kansas, on December 17, 1987. On the second day of that hearing, I granted the General Counsel's motion to amend the complaint by inserting an additional allegation of behavior violative of Section 8(b)(1)(A) of the Act. At the close of evidence on December 18, I granted Re- spondent a continuance to allow it to prepare its defense to the amendment to the complaint.' The continued hearing took place on January 18, 1988. Thereafter, briefs were submitted by the General Counsel and Re- spondent under due date of February 19, 1988. FINDINGS OF FACT I. JURISDICTION Colgate-Palmolive Company (Employer) is a corpora- tion engaged in the manufacture , sale, and distribution of soap products with an office and place of business in Kansas City, Kansas. During the calendar year preceding issuance of the complaint, the Employer, in the course of its operations in Kansas , purchased and received goods valued in excess of $50,000 from points outside the State and sold and shipped goods valued in excess of $50,000 to points outside the State . It is admitted,2 and I find, that the Employer is an employer within the meaning of the Act. Respondent is admitted to be, and I find is, a labor or- ganization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent represents a bargaining unit of approxi- mately 600 workers at the Employer's Kansas City facili- ty3 and runs an ongoing "Close the Ranks" campaign to induce nonmembers to join the Union; all but 5 of the unit employees were members of Respondent in August 1987. Respondent and the Employer are parties to a col- lective-bargaining agreement which contains a grievance and arbitration provision. At all times relevant herein, Ronald Moody was a unit employee but was not a member of Respondent. On No- ' The continuance was also granted to allow effectuation of the parties' agreement to obtain and submit an expert evaluation of certain tape re- cordings which had been received in evidence . The expert selected by the parties did not file his report in a timely fashion and, at the conclu- sion of the continued hearing , the parties jointly moved to be released from their agreement to supply such a report . Although I had earlier in- dicated my willingness to receive the report as a joint exhibit after the close of the record, I granted the parties' motion. The parties' January 18, 1988 letter discharging the expert is identified as A.L.J. Exh. 4 and the expert's late-filed report, as A.L.J. Exh. 5. The former exhibit will be received in evidence and the latter rejected. Y Respondent made this admission through amendment of its answer at the outset of the hearing. a The bargaining unit is comprised of "all employees employed by the Employer at its Kansas City, Kansas facility , excluding plant directors of manufacturing, salesmen, buyers, department managers, professional and technical employees, foremen, watchmen, office employees and proba- tionary employees." 745 vember 4, 1986, he was involved in a fight with a fellow employee, Garrett Buckley. On November 18, the Em- ployer suspended both employees for a period of 90 days.4 Buckley accepted the discipline, while Moody filed a grievance with Respondent on November 21. That grievance was denied by the Employer at every step of the grievance procedure preceding arbitration5 and was returned to Moody on August 11, 1987.6 B. Events of August 20 On the morning of August 20, Moody called Respond- ent's hall and spoke with its vice president, James Starcher.7 When Moody inquired about the procedure for submitting his grievance to arbitration , Starcher ex- plained that Respondent's membership was required to vote on the matter. Moody inquired as to what he should do, and Starcher replied that it had been Respondent's practice for a grievant to present his grievance to the membership during a membership meeting. Moody asked if he could do so, and Starcher responded "[y]ou're not allowed in the union hall without being a union member." Starcher repeated that Moody would not be permitted to attend a meeting and promised to bring the matter to the attention of Vern Dietz, Respondent's president. Later in the conversation, Starcher asked if there was anyone who would present Moody's griev- ance, and Moody asked Starcher to do so. Starcher re- fused, commenting "I tried to get you to belong to the union." Moody questioned Starcher's meaning, and the latter replied "I tried to get you to join the union, then we wouldn't have this problem." Moody arranged to meet Dietz that afternoon, and the conversation ended. Later that day, Moody met with Dietz and Starcher at the Employer's facility. After explaining the contractual arbitration procedure, Dietz stated that Moody could send Respondent a letter requesting arbitration and giving reasons for the request . In response to Moody's query, Dietz indicated that the letter would be presented to Respondent's members at a membership meeting. Starcher reaffirmed that Moody would not be allowed to attend such a meeting . Dietz then informed Moody that Respondent's executive board would consider the matter on September 14 and make a recommendation at Re- spondent's membership meetings on September 16. C. The Events of August 27 As a result of his conversation with Respondent's offi- cers, Moody prepared a two-page statement of reasons for submitting his grievance to arbitration . Attached * It is uncontested that the Employer originally intended to discharge both employees and was deterred from doing so by Respondent's efforts on their behalves . The General Counsel does not contend that Respond- ent's representation of Moody prior to the imposition of discipline was violative of the Act, and I find that the quality of that representation is without relevance to the issues before me. The General Counsel does not allege that Respondent unfairly or in- adequately represented Moody prior to August 11, 1987 Again , the qual- ity of Respondent's representation during this period is irrelevant to the issues before me. 6 All dates hereinafter are 1987 , unless otherwise indicated. 7 All findings concerning conversations between Moody and Respond- ent's officers are based on tape recording transcripts. 746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD thereto was a receipt with signature and date lines, which provided "[t]his statement is to be read in full by Vern Dietz at the next union meeting and voted on." The receipt also noted that Moody's 1986 statement con- cerning the grievance was attached. On August 27, Moody offered the two statements to Dietz and asked the latter to sign the receipt . Dietz re- sponded: No, I won't sign nothing for you. You're not a union member. I won't sign nothing for you. I won't do nothing for you, other than what the law makes me, and that's because you 're not a union member. Moody asked whether the refusal was based solely on his nonmember status, and Dietz amplified that he was paid to represent dues-paying members and Moody didn't pay dues. When Moody gave the papers to Dietz, the latter stated: I, like I said, I'll present it for you, but as far as signing anything, why no, I won't give you my sig- nature on anything , because I don't represent you. I'm not a legal attorney , I uh, uh, those people I represent because I've been elected and they pay dues, but non-union members I don 't do that for. On September 8, Moody filed the charge against Re- spondent which resulted in this proceeding. D. The Union Meetings On September 16, Respondent held three meetings for its members. After each meeting was called to order, Re- spondent's officers delivered reports. Steward Joseph Stude reported on the status of grievances and an- nounced that the "Close the Ranks program has been very effective with only five non union employees in the plant." Starcher then commented briefly, and Dietz de- livered a lengthy report. At the close of Dietz' presenta- tion, "[t]he R. Moody grievance, arbitration and charges against the union were reported." While Moody's state- ments were made available, there is no indication that the meetings were recessed in order to allow Respond- ent's members to peruse them.8 Thereafter, the financial report was read and applications for membership were received. Following this, "communications" and the ex- ecutive board minutes were read . Finally, motions were entertained, and a motion that Moody's grievance not be taken to arbitration was passed at each of the meetings.9 6I find immaterial the fact that one of Respondent 's officers, David Taylor, read Moody's statements at the executive board meeting which preceded the membership meetings. B The foregoing findings are based on Respondent 's official minutes of the September 16 meetings . Although Respondent offered no evidence that these minutes were questioned or modified at any subsequent meet- ing, it attempted to discredit them through the testimony of three of its officers Each of these witnesses testified concerning a separate meeting, and none displayed an accurate or detailed recollection of what occurred on September 16. Thus, John Smotherman attributed the report on Moody to David Taylor; the latter's credited testimony that he did not attend any of the membership meetings is supported by the minutes. Brian Hannigan believed that the discussion of Moody occurred as a part of new business, rather than during the officers' reports Cathy GaMarsh could not recall making the motion that Moody 's grievance not be taken The following day, Starcher informed Moody of the outcome of the membership vote and indicated that Moody's statements had not been read at the membership meetings. 1 0 E. Discussion The General Counsel contends that Starcher's August 20 statement to Moody violated Section 8(b)(1)(A) of the Act. I disagree. After referring to Moody's inability to attend a membership meeting in order to request arbitra- tion of his grievance, Starcher commented "we wouldn't have this problem" if Moody was a member. This com- ment was not made in the context of a refusal to process Moody's grievance."" Indeed, the discussion surrounding Starcher's comment was concerned with finding a solu- tion to the "problem" shared by Moody and Respond- ent. t z For the foregoing reasons, I find that Starcher's statement was not coercive and, therefore , not violative of the Act. The General Counsel also contends that Dietz' com- ments on August 27 were violative of Section 8(b)(1)(A). Again, I disagree . Dietz' initial statement that he would do nothing for Moody because the latter was not a member was qualified with the phrase "other than what the law makes me." Dietz' subsequent statement "I don't represent you" was made in the context of professional legal representation and was coupled with an explicit commitment to present Moody's statement at the mem- bership meetings. I do not believe that either comment can fairly be read as a refusal by Respondent to repre- sent a nonmember unit employee as required by law or to process such an employee's grievance. i 8 Accordingly, I find that Dietz' August 27 statements did not restrain or coerce Moody in the exercise of the latter's Section 7 rights. The General Counsel alleges that the refusal to allow Moody to present his request for arbitration to Respond- ent's membership was discriminatory and violative of the Act. It is well established that a union may not process a grievance in an arbitrary or discriminatory manner. See Vaca v. Sipes, 386 U.S. 171, 190 (1967). This principle is to arbitration None of the witnesses recalled the recommendation of Re- spondent's executive board concerning the grievance . More significantly, Respondent did not present testimony by Dietz, who made the report on Moody, or by the individual who prepared the minutes , and I draw the adverse inference requested by the General Counsel from Respondent's failure to call either individual . For the foregoing reasons and based on my observation of the demeanor of the witnesses as they testified, I credit Respondent's official records over the testimony of its officers 1OCathy GaMarsh testified that Moody's grievance had been read by Chief Steward David Taylor . Because Taylor did not attend the meeting, I reject GaMarsh's testimony I I The three cases cited by the General Counsel in support of its con- tention that this conversation violated the Act each involved an explicit refusal to process a grievance because the grievant was not a union member in good standing. I therefore find that authority unpersuasive in resolving the issue before me. 12 The General Counsel's apparent contention that Moody was told that he had a problem is not supported by Starcher's use of the pronoun "we „ 18 The General Counsel appears to argue that Dietz ' refusal to sign the receipt, which contained a promise to read Moody 's statements, constitut- ed a refusal to read Moody's statements at the membership meetings. Since there is no evidence that Dietz read the receipt before refusing to sign it, I reject the General Counsel's argument. OIL WORKERS LOCAL 5-114 (COLGATE-PALMOLIVE CO.) 747 equally applicable whether or not the grievant is a union member. American Postal Workers (Postal Service), 277 NLRB 541 fn. 1 (1985). Respondent contends that Moody's treatment was not discriminatory because he was given "a substituted but equivalent procedure." Re- spondent's members may attend its meetings and urge its membership to vote to arbitrate their grievances. Moody, as a nonmember, was not allowed to attend a meeting, and there was no one to advocate arbitration of his grievance. Respondent even refused to read Moody's statements to its members.' 4 This substituted procedure falls far short of being equivalent , and I find the disparity of treatment afforded members and nonmembers to be in- trinsically arbitrary and discriminatory , as well as inher- ently destructive of important employee rights. Respond- ent's conduct is not insulated by the provision in its con- stitution and bylaws which prohibits uninvited non- members from attending membership meetings . Although a union's internal governance is generally beyond the scope of the Act, this is not the case when a union rule impairs a significant statutory labor policy , such as the nondiscriminatory handling of grievances . See Scofield Y. NLRB, 394 U.S. 423, 430 (1969). I therefore find Re- spondent's refusal violative of Section 8(b)(1)(A) of the Act. Finally, the General Counsel contends that Section 8(b)(1)(A) was violated by Respondent's announcement of Moody's charge against it at the very moment it in- formed its members that he sought arbitration of his grievance. Respondent advances two counterarguments. First, it asserts that its members could not have been biased by the announcement since "the evidence was manifest that Mr. Moody told other employees about the filing of the unfair labor charge." This assertion is with- out evidentiary support' 1 5 and is rejected . Respondent next argues that it's behavior was required by a valid union rule which mandates the "reading of communica- tions" at membership meetings. I reject this argument be- cause Respondent's minutes establish that its announce- ment of Moody's charge did not take place at the point during its meetings when "communications were read." Accordingly, I conclude that the validity of Respond- ent's internal rule concerning communications is without relevance to the issue before me. Neither Moody's charge nor his grievance was announced during the por- tion of the meetings appropriate to such an announce- ment.'s Instead, the two were explicitly coupled by Re- spondent's president . I infer from this wholly unneces- sary, and apparently abnormal, juxtaposition that Re- spondent's conduct was discriminatorily motivated. I 14 Because there is no evidence that Respondent 's members were aware of the nature of Moody's grievance and request for arbitration, I find inapposite the case cited by Respondent, Glass & Pottery Workers (Owens-Corning Fiberglass), 282 NLRB 1296 (1987) 15 Cathy GaMarsh testified that she heard and "disregarded" Moody's statement that he intended to file a charge against Respondent; she fur- ther testified that it wasn 't until "later" that she learned a charge had been filed. Brian Hannigan testified that his first certain knowledge of Moody's charge came from Dietz' announcement at a September 16 meeting Similarly, John Smotherman testified that he first learned of the charge at a September 16 meeting. 16 Steward Stude's report on outstanding grievances occurred at the outset of each meeting. therefore find that the manner of Respondent's presenta- tion of Moody's request for arbitration violated Section 8(b)(1)(A) of the Act. CONCLUSIONS OF LAW 1. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 2. Colgate-Palmolive Company is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By refusing to permit Ronald Moody to attend the meetings of its members in order to seek their vote to ar- bitrate a grievance concerning his suspension, Respond- ent has engaged in an unfair labor practice in violation of Section 8(b)(1)(A) of the Act. 4. By explicitly coupling its announcement that Moody filed an unfair labor practice charge against it with its consideration of his request that his grievance be carried to arbitration, Respondent engaged in an unfair labor practice in violation of Section 8(b)(1)(A) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. A preponderance of the credible evidence does not establish that Respondent has otherwise violated the Act. REMEDY Inasmuch as Respondent has engaged in unfair labor practices, I shall order it to cease those practices and to take affirmative action designed to effectuate the pur- poses of the Act. There can be no certainty that Moody could have convinced Respondent's membership to arbi- trate his grievance or that an arbitrator would have found in Moody's favor . Because these uncertainties are the direct result of Respondent's unlawful practices, it is appropriate to resolve them against Respondent. See Graphic Communications Local 4 (San Francisco Newspa- per), 272 NLRB 899, 900 (1984). Accordingly, the affirm- ative relief ordered herein shall require Respondent to ask the Employer to rescind Moody's suspension and make him whole for any loss sustained . If the Employer refuses to rescind the suspension, Respondent shall ask the Employer to waive the time limitations in the griev- ance provisions of the contract and, if the Employer agrees to waiver, Respondent shall promptly and dili- gently process Moody's grievance through arbitration. If the Employer refuses waiver, Respondent shall make Moody whole, with interest, for any loss he suffered due to his suspension . See General Teamsters Local 528 (Asso- ciated Grocers Co-op), 265 NLRB 415, 419 (1982). Back- pay will be calculated in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987)." Finally, the inclusion of a visitatorial provision, a remedy sought by the General Counsel, has not been shown to be necessary in order to ensure compliance 17 Under New Horizons, interest is computed at the short-term Federal rate for the underpayment of taxes as set out in the 1986 amendments to 26 U S C § 6621. 748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD with the Board's Order herein. See Cherokee Marine Ter- [Recommended Order omitted from publication.] minal, 287 NLRB 1080 (1988).