General Motors Corp.

GENERAL MOTORS CORP 705 General Motors Corporation, Truck and Coach Divi sion and Otis Miracle Local 594, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW and Otis Miracle Cases 7- CA-21531 and 7-C13-5695 28 September 1984 - DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 5 December 1983 Administrative Law Judge Phil W Saunders issued the attached decision The Respondents filed exceptions and supporting briefs, and the General Counsel filed an answering brief to the Respondents 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 1 and conclusions and to adopt the recommended Order as modified We agree with the judge's findings of violations of Section 8(b)(1)(A) and (2) and Section 8(a)(3) and (1) as to the Respondents The evidence in this case manifests Respondent Local 594's discrimina tory motivation and Respondent Truck and Coach Division s acquiescence and cooperation in the Local s retaliatory plan Concerning the judge's 8(a)(3) finding which we have adopted the record shows that when the Union initially approached Winkler, the Respondent Employer s labor rela lions manager it demanded that the starting time of benefits representative Miracle be changed to 4 p m On investigating the situation Winkler found that there were two benefits representatives start ing at 2 p m —Miracle and Code Winkler testified that he refused at that time to single out Miracle at the Union s request However the Respondent Employer s subsequent treatment of Miracle is in stark contrast to its treatment of Code Within a week after the Respondent Employer changed the official starting time for the benefits representatives to 4 p m Winkler called Code into his office Code told him that he had continued to start work at 2 p m and that he had been docked pay for his 2 to 4 p m hours He also told Winkler that Miracle 1 The Respondents have excepted to the judge s analysis and rejection of Respondent Local 594 s defense that the discnnunatees in this case had not exhausted all internal union remedies before charges were filed with the Board As noted by the judge this contention was not raised until after the hearing We decline to review this issue on the merits because of its untimeliness Therefore in reaching our decision here we find it unnec essary to rely on the judge s substantive analysis of the defense had also continued to start work at 2 p m Winkler changed Code s official starting time back to 2 p m and immediately reimbursed him for his docked pay However, Winkler did nothing with regard to Miracle s official starting time and beginning a few weeks later and continuing for 6 weeks thereafter the Respondent Employer docked Miracle s pay for his 2 to 4 p m hours while paying Code for those hours The Respondent Employer s settle ment of Miracle s grievances concerning the with held pay also evidences disparate treatment by the Employer of Miracle Thus, the Respondent Em ployer declined to reimburse Miracle for any of the 2 to 4 p m hours he had worked unless Miracle could demonstrate that he had been attending pres cheduled benefits meetings This factor was not used in the earlier reimbursement of Code In these circumstances we are satisfied that it was reasona ble for the judge to infer that the Respondent Em ployer knew that the Respondent Union s demands were motivated by a desire to discriminate against Miracle that the Respondent Employer knowingly acquiesced to the Respondent Union s discriminato ry motive and that the Respondent Employer s at tempts beginning in August 1982 to align the offi cial starting times of the two benefits representa tives constituted a coverup for the Respondent Employer s discriminatory treatment of Miracle However, we disagree with the judge s conclu sion concerning the extent and continuation of the pattern of discriminatory conduct The record shows that a number of meetings took place in late 1982 and early 1983 in which the participants at tempted to resolve the dispute concerning the ben efits representatives starting time There were meetings between the discriminatees and officials of the Respondent Local 594 between the discnmina tees and officials of Respondent Truck and Coach Division, and between the discriminatees and offi cials of both Respondents As long as those imme diately involved in the retaliatory plan participated in these meetings it is clear that the discriminatory pattern continued However at the final meeting in early February 1983 representatives of the Interna tional Union and the General Motors Corporation assumed responsibility for resolving the dispute They collectively decided that the benefit workers must start work at the time of their regular shift in order to comply with the terms of the national col lective bargaining agreement There is nothing in the record which would justify imputing to the representatives of the International Union and the General Motors Corporation the retaliatory moti vation and acquiescence which marked the han dling of the dispute by Local 594 and Truck and Coach Division We conclude that the pattern of 272 NLRB No 110 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discriminatory conduct ended effectively in early February 1983 when ,the International Union and General Motors Corporation replaced the Re spondents as the primary actors in the resolution of the starting time dispute Accordingly we find that the reinstatement re quirement of the judge's recommended order is im proper Backpay for the effects of discriminatory conduct which has now terminated is a sufficient remedy in this case Therefore we will modify the Conclusions of Law and the remedy and Order sections of the judge's decision as set forth below AMENDED CONCLUSIONS OF LAW Delete the phrase and are engaging in from Conclusion of Law 4 AMENDED REMEDY Substitute the clause 'until Respondents discon tinued their unlawful discrimination in early Febru ary 1983" for until such time as Respondents dis continue their unlawful discrimination" ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set out in full below and orders that the Respondents shall take the action set forth in the Order as modified A The Respondent Union, Local 594, Interna tional Union, United Automobile, Aerospace and Agricultural Implement Workers of America, its officers, agents and representatives, shall 1 Cease and desist from (a) Refusing to adequately represent Otis Miracle in its handling of his grievances and in arbitrarily withdrawing all but one of them (b) Causing the Respondent Employer to dis criminate against Miracle and Code by failing and refusing to pay them for certain hours they worked as benefit representatives prior to the start of their regular shift because of their engaging in activities protected by Section 7 of the Act (c) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces sary to effectuate the policies of the Act (a) Jointly and severally, with the Respondent Employer, make Otis Miracle and Marvin Code whole for wages not paid to them as a result of the conduct set forth herein, and in the manner provid ed for in the section of this Decision entitled The Remedy" (b) Preserve and, on request, make available to the Board or its agents for examination and copy ing, all hiring hall records, dispatch lists referral cards, and other documents necessary to analyze and compute the amount of backpay due under the terms of this Order (c) Post at its main hall or office, and its meeting places for members, copies of the attached notice marked Appendix "2 Copies of the notice, on forms provided by the Regional Director for Region 7, after being signed by the Union's repre sentative, shall be posted by the Union immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to members are customarily posted Reasonable steps shall be taken by the Union to ensure that the notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent Union has taken to comply B The Respondent Employer General Motors Corporation, Truck and Coach Division, Pontiac, Michigan, its officers agents, successors, and as signs, shall 1 Cease and desist from (a) In concert with Respondent Union discnmi nating against Otis Miracle and Marvin Code by failing and refusing to pay them for certain hours they worked as benefit representatives prior to the start of their regular shift because of their engaging in activities protected under Section 7 of the Act (b) In any like or related manner interfering with, restraining or coercing employees in the ex ercise of the rights guaranteed them by Section 7 of the Act ' 2 Take the following affirmative action neces sary to effectuatei the policies of the Act ' (a) Jointly and severally with Respondent Union make Otis Miracle and Marvin Code whole for any loss of e'arnings they may have sustained because of the discrimination against them backpay to be computed and to bear interest as provided in the section of this Decision entitled The Remedy (b) 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 due under the terms of this Order (c) Post at its appropriate offices and plants in Pontiac, Michigan, copies of the attached notice 2 If this Order is enforced by a Judgment of a United States Court of Appeals the words in the notice reading Posted by Order of the Na tional Labor Relations Board shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation al Labor Relations Board GENERAL MOTORS CORP 707 marked Appendix 3 Copies of the notice on forms provided by the Regional Director for Region 7 after being signed by the Respondent Employer s representative shall be posted by the Respondent Employer immediately upon receipt and maintained for 60 consecutive days in conspic uous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent Employer to ensure that the notices are not altered defaced or covered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent Employer has taken to comply S f 2 b APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT refuse to adequately represent Otis Miracle in our handling of his grievances and in arbitrarily withdrawing all but one of them WE WILL NOT cause General Motors Corpora tion Truck and Coach Division to discriminate against Otis Miracle and Marvin Code by failing and refusing to pay them for certain hours they worked on benefit representations prior to the start of their regular shift because of their engaging in activities protected by Section 7 of the Act WE WILL NOT in any like or related manner re strain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL jointly and severally with the Re spondent Employer make Otis Miracle and Marvin Code whole for wages not paid to them as a result of the discrimination against them plus interest F i LOCAL 594 INTERNATIONAL UNION UNITED AUTOMOBILE AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA i APPENDIX B 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 in concert with Local 594 Inter national Union United Automobile Aerospace and Agricultural Implement Workers of America dis criminate against Otis Miracle and Marvin Code by failing and refusing to pay them for certain hours they worked as benefit representatives prior to the start of their regular shift because of their engaging in activities protected under Section 7 of the Act WE WILL NOT in any like or related manner interfere with restrain or coerce you in the exer cise of the rights guaranteed you by Section 7 of the Act WE WILL jointly and severally with the Union make Otis Miracle and Marvin Code whole for any loss of earnings they may have sustained because of the discrimination against them plus interest GENERAL MOTORS CORPORATION TRUCK AND COACH DIVISION DECISION STATEMENT OF THE CASE PHIL W SAUNDERS Administrative Law Judge Based on initial charges filed by Otis Miracle (the Charging Party) on December 14 1982 a consolidated complaint in Case 7 CA 21531 was issued on January 31 1983 g nst G 1 Motors Co porat o Tr ek ad Co h Division (Respondent Employe ) nd n Case 7 CB 5695 against Local 594 International Union Un t d Automobile Aerospace and Agricultural Implement Workers of America UAW (the Union) Respondent Un on or Local 594 and collectively Respondents al leging violations of Sections 8(a)(1) and (3) and 8(b)(1)(A) and (2) of the Act Respondents filed answers denying t had engaged in the alleged matter and all the parties filed briefs in this matter On the entire record in the case and from my observa tion of the witnesses and their demeanor I make the fol lowing FINDINGS OF FACT I THE BUSINESS OF RESPONDENT EMPLOYER Respondent Employer is a corporation duly organized under and existing by virtue of the laws of the State of Delaware and at all times material has maintained its principal office and place of business in Detroit Michi 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gan but maintains plants in various other States Re spondent Employer is and has been at all times material engaged in the manufacture nonretail sale and distnbu tion of automobiles trucks and related products Re spondent Employer s plant located at 660 South Boule yard East Pontiac Michigan is the only facility in volved in this proceeding During the year ending December 31 1982 which period is representative of its operations during all times material Respondent Employer manufactured sold and distributed at its Pontiac Michigan plant products valued in excess of $100 000 which were shipped from said plant directly to points located outside the State of Michigan Respondent Employer is now and has been at all times material an employer engaged in commerce within the meaning of Section 2(2) (6) and (7) of the Act Ii THE LABOR ORGANIZATION INVOLVED Respondent Union and the International Union United Automobile Aerospace and Agricultural Implement Workers of America UAW are and have been at all times material herein labor organizations within the meaning of Section 2(5) of the Act III THE UNFAIR LABOR PRACTICES It is alleged that since about April 27 1982 and con tinumg to date Respondent Union by its agents Donald Douglas Jay Campbell and Ron Krieger through meet ings and conversations with representatives of Respond ent Employer has requested that Respondent Employer discontinue its past practice of allowing the Charging Party and another employee Marvin Code to begin functioning in their capacity of benefits representative prior to the start of their regular shift at 4 p m that since on or about June 15 1982 and on various dates and for various periods since Respondent Employer pursuant to Respondent Union s request described above has required the Charging Party and Marvin Code not to report to work prior to 4 p m unless they had a prear ranged meeting with Respondent Employer s benefits representatives and which requirement deviated long standing past practice in such regard It is further set forth that on various dates during the summer and early fall of 1982 pursuant to the grievance procedure the Charging Party filed several grievances to protest Respondent Employer s conduct described above and that about December 14 1982 Respondent Union through its agent Carl Forester entered into a grievance settlement with Respondent Employer whereby he par tally settled only one of the grievances described above and then withdrew the remaining grievances Finally it is alleged that Respondent Union engaged in the above conduct because of and in retaliation for the Charging Party s stated opposition to Respondent Union s position concerning Respondent Employer s new time and attend ance program Otis Miracle and Marvin Code have been long term benefit representatives of the Respondent Union Each has been responsible for representing employees at the Respondent Employer s Pontiac plant with respect to contractually provided fringe benefits such as retirement insurance and supplemental unemployment benefits (SUB) and between them are responsible for represent ing approximately 3000 employees on the second and third shifts Otis Miracle has served as a benefit repre sentative since the early 1970s while Marvin Code has been a benefit representative since about 1977 The ma jonty of the employees represented by Miracle and Code work from 4 p m until 12 30 a m 1 As a part of their duties in representing employees concerning their contractual fringe benefits claims Mira cle and Code frequently have had to meet in the admin istrative offices with the Respondent Employer s repre sentatives who are also responsible for administering like benefits and together they review files and documents in these offices almost daily but most of the Respondent Employer s personnel so involved in administering these fringe benefit programs only work until 4 p m and those that stay on with few exceptions work only until 5 p m Because of the above factors and circumstances a practice developed which was in existence for 3 to 4 years whereby benefit representatives Miracle and Code would report for work at 2 p m and work until 10 30 p m and on certain occasions they would work over time after 10 30 p m in accordance with the provisions of the bargaining contract but only if the department to which they were assigned or their equalization group worked overtime It appears that Miracle and Code spent the time between 2 and 4 p m representing their employ ee constituents by meeting with the Respondent Employ er s representatives in the benefit offices and by examin ing the records with respect to those benefits which were then made available to them as aforestated The collective bargaining agreement (G C Exh 2 at 123) provides in pertinent part 7 The time available to a local union benefit repre sentative and alternate with respect to a Benefit Plant district may not exceed eight (8) regular working hours of available time in a day (a) On his/her regular shift and without loss of pay a local union benefit representative(s) may accom pany the management benefit representative for a mutually agreeable joint off site visit to a local hospital an impartial medical opinion clinic of a health maintenance organization or other similar type Joint ventures with respect to benefit plan matters ' 1 During all times material the International Union United Automo bile Aerospace and Agricultural Implement Workers of America UAW (the International Union) has been the exclusive collective bargaining representative within the meaning of Section 9(a) of the Act of Respond ent Employer s production and maintenance employees at its various plants throughout the United States including the production and main tenance employees employed at its Pontiac plant and this relationship has been embodied in successive collective bargaining agreements and the most recent of which is still in effect The Respondent Union Local 594 services the collective bargaining agreement for the International Union at Respondent Employer s Pontiac plant and bargains with local manage ment with respect to terms and conditions of employment for bargaining unit employees at the plant The collective bargaining agreement includes a grievance arbitration procedure GENERAL MOTORS CORP 709 (b) A local union benefit representative attending a scheduled Management Union Benefit Plan meet ing on a shift other than his/her regular shift will be paid for time spent in such meeting (c) The time spent in such off site visits or Manage ment Union Benefit Plan meetings will not result in additional hours which exceed regularly sched uled shift hours overtime premiums or an increase in representation time being furnished as a result of the representative(s) not working a full shift on his/her regular shift However as pointed out the Respondent Union and Respondent Employer in practice for several years had not abided by the literal wording of these provisions in the collective bargaining agreement In fact it' is undis puted that prior to the week ending June 20 1982 Otis Miracle and Marvin Code were paid for the hours they worked between 2 and 4 p m Moreover the testimony of these two witnesses as well as that of General Motors Labor Relations Manager Leroy (Lee) Winkler established that there was no enforced requirement that in order to We paid for the time worked between 2 and 4 p m the meetings attended by the benefit representatives had to be scheduled or be prearranged 2 It appears that objections to Miracle starting at 2 p m and being paid for the hours he worked between 2 and 4 p m did not commence until the spring of 1982—after he began complaining about a new absenteeism program of General Motors which had been supported by the Re spondent Union Miracle testified that he complained about the new absenteeism program at a meeting held during the end of March 1982 attended by Local 594 President Donald Douglas and where the Respondent Union announced the new program , Miracle testified that he also complained about the new absenteeism pro gram to his fellow union representatives to employees in the plant and to members of management and stated that on April 30 1982 Donald Douglas approached him and said I hear you have been chopping the program talking about the absenteeism program Miracle re sponded that he had given his opinion to several people and then Local 594 President Douglas stated Ill get even for that Miracle asked What do you mean by that? Douglas said That s all Ill get you Donald Douglas testified that shortly following the meeting of the Union explaining the implementation of the new absenteeism program he encountered Miracle in the plant and then asked him about some rumors he had heard that Miracle was telling the membership that em ployees would not be allowed the right to file a griev ance if any penalty were affixed under the new absentee program Douglas stated that Miracle admitted making such statements and upon this verification he then told Miracle it was very unfortunate that he would do something like this and that he (Douglas) would like to explain the new program to him in detail if he did not understand it Douglas testified that he was upset with 2 The consolidated claims of Otis Miracle here involved seek payment for hours worked on certain dates between June and August 1982 Code s prayer is for hours worked between January 19 and January 31 1983 Miracle because he was not telling the facts like they were but that he never informed Miracle that he would get even with him or any words to that effect Miracle testified that in about the same time period (late April 1982) Ron Kreiger Chairman of the Union s Shop Committee called him and asked what time he started work Miracle informed him that he started work at 2 p m and Ron Kreiger then told Miracle that he was going to change this Kreiger also told Miracle that he was working overtime and he was going to change that as well Ron Kreiger testified that several weeks prior to the above events a committeeman in the plant had stopped him and complained about Miracle working overtime hours different from the normal shift and said that short ly thereafter he also received a similar complaint from two mechanics in the plant and that he then relayed these messages to Donald Douglas Douglas testified that Kreiger passed on these complaints to him It appears that in late April 1982 about the time Douglas had his encounter with the Charging Party as to what Miracle was saying about the new absenteeism pro gram Donald Douglas Ron Kreiger and another local union official asked Respondent Employer s superintend ent Art Watkins to see Otis Miracle s overtime records and also asked about his starting time Supervisor Wat kins advised that Miracle s starting time was 2 p m and then brought in the overtime records but a review of the overtime records indicated that Miracle had done noth ing improper Miracle only worked overtime when he was supposed to in accordance with the current bargain ing agreement While Douglas and Kreiger could not recall the exact date of this inquiry the testimony of Labor Relations Manager Lee Winkler establishes that it occurred about April 30 1982 Miracle stated that later the same evening he again spoke with the chairman of the shop committee Ron Kreiger and testified that Kreiger told him We got the information they wanted Miracle then asked What do you mean? and Kreiger said that they had just seen Art Watkins and they had received the information they wanted Miracle then asked Kreiger what he was after and Kreiger replied I am t after nothing I m just doing what Douglas tells me to do That same night Superin tendent Art Watkins called Miracle into his office and in formed him that Donald Douglas and Ron Kreiger had been in his office checking on his starting time and his overtime but Watkins told Miracle that he was not going to change anything until he was directed to do so by labor relations This record shows that by letter dated May 1 1982 Local 594 President Donald Douglas sent Otis Miracle a letter questioning his starting time and questioning the amount of overtime he worked 3 Respondent Employer s labor relations manager Lee Winkler testified that in early May 1982 Douglas also complained to him that the Union had received com plaints that Otis Miracle was working overtime improp erly and that he was starting at 2 p m rather than 4 p m 3 See G C Exh 4 710 DECISIONS OF NATIONAL .LABOR RELATIONS BOARD and Winkler then agreed to look into the matter. Winkler stated that in accordance therewith, he hadi one of his subordinates, Don Robinette, look into these alle- gations, and Robinette reported to him that Otis Miracle had properly worked overtime in accordance with the contract, and that both second-shift benefit representa- tives Miracle and Code had been reporting at 2 p.m. rather than 4 p.m. Winkler admitted that l.having the ben- efit representatives start at 2 p.m. had been a practice of 3 to 4 years' standing. Shortly after, again in early May 1982, Lee Winkler telephoned Douglas and advised him of the results of the investigation, that Miracle had been properly working overtime and that both benefit representatives had been starting at 2 p.m. Winkler then explained to, Douglas that he was not going to single Otis Miracle out and ,change his starting time without changing ,Marvin Code's start- ing time, but Winkler then agreed .to change both Code's and Miracle's starting times from 2 to 4 p.m.; about May 14, 1982, Miracle and Code were advised that their start- ing time would be 4 p.m. effective Monday, May 17, 1982. About May 17, 1982, Otis Miracle and Marvin Code went to Labor Relations Representative Don Robinette, and asked Robinette if he had given Superintendent Art Watkins a direct order for them to start at 4 p m. Robin- ette said that he and Miracle then asked him to put it in writing, but he refused to do so. Miracle further testified that, on hearing that Robinette had received orders from Labor Relations Manager Winkler, he and Code then went into Lee Winkler's office, and Miracle asked Winkler if he had given a direct order for him to start at 4 p.m. Winkler replied that he had. Miracle asked that he put it in writing, but Winkler refused. Otis Miracle said that he would not start at 4 p.m., and it appears that both Miracle and Code continued to start work at 2 p m. and work until 10:30 p.m., and testified that they did so be- cause they felt it was necessary in order to carry out their benefit representative functions and responsibilities. Around May 24, 1982, Marvin Code reported to Su- pervisor Winkler concerning his continuing to report at 2 p.m. rather than at 4 p.m. Winkler testified that he called Marvin Code into the office—Code had apparently been docked several hours pay that week because he did not work the 4 p.m. to 12:30 a.m. shift—but on this occasion Code showed Winkler his personal notes which indicated that he had been attending meetings at the benefit offices between 2 arid, 4 p.m. and, as a result, Winkler then agreed that Code could continue to start at 2 p.m., and also agreed that he would be paid for such hours and for the hours he had been docked Yet Winkler admitted on cross-examination that in reviewing Code's notes he was not concerned whether the meetings that Code had been attending at the benefit offices between 2 and 4 p.m., were prearranged or prescheduled. Marvin Code also told Winkler during this conversation that Otis Miracle had been 'continuing to start work at 2 p.m. After his dis- cussion with Marvin Code, Supervisor Winkler then tele- phoned Union President Douglas, and informed Douglas of his discussion with Code and his decision to move Code's starting time back to 2 p.m. Douglas admitted that he knew that Marvin Code continued to start work at 2 p.m., and he assumed that Code was paid for 'those hours.4 Marvin Code recalled that in June 1982, after , his dis- cussion with , Winkler in which Winkler approved chang- ing his 'starting time back to / p.m, he was called down to 'Respondent Union's hall to speak with' Local 594 Presideht Douglas and Chairman of the Shop Committee Kreiger. Douglas asked him what time he had been start- ing work' and Code said, "2:00 p m" Douglas then said it was 4 p.m. Douglas also told Code that he was not after him for anything, but was then further told, by either Douglas or Kreiger, that Otis Miracle was the only one that they were' after'. Code testified that he was also in- formed that if he said' anything about this meeting, they—Douglas ,and Kreiger—would deny it. In contrast to the treatment afforded Code, Otis Mira- cle who, like Code, continued to start work at 2 p.m., was not paid for the hours he worked from 2 to 4 p.m. for a period of about 7 weeks—from about June 15 through July 30, 1982—and even though during this period he was using the hours between 2 and 4 p.m to attend meetings with the Respondent Employer's benefit representatives—some of these meetings were presche- duled and some were not On July 30, 1982, Lee Winkler received a telephone call from Beech Hall, a supervisor of Respondent Em- ployer's Corporate Benefits Section. Hall indicated to Winkler that he had received a call from Solidarity House (UAW World Headquarters) regarding the change in the starting time of one of the• second'- shift benefit representatives, and based on that conversation, Winkler decided that effective August 2, 1982, the start- ing times for both .Miracle and Code would be 2 p.m. Winkler testified that around late August 1982 he k met with Douglas, Kreiger and John Powers (labor relations) to discuss the starting time of second shift benefit repre- sentatives. Douglas and Kreiger indicated that the Union wanted the starting times changed back to 4 p m in com- pliance with paragraph 7 of the GM-UAW Agreement. Respondent Employer took no position on the issue at this meeting, opting instead to continue with the 2 p.m. starting time. Don Douglas, elected president of Local 594, testified that he never tried to intimidate Miracle in any fashion, and that he became aware of the problem associated with benefit representatives not being on the floor of the plant at the close of the second shift and the beginning of the third shift, through his own investigation ,of com- plaints received about Otis Miracle allegedly abusing overtime. 5 It was through the investigation of the cur- rent complaints about Otis Miracle that he learned of the specific contract provisions relative to benefit representa- tives' hours, and he then took appropriate steps to change the situation. 4 Labor Relations Manager Winkler did not call Otis Miracle into his office to inquire as to what he was working on between 2 to 4 p m, nor did he at that time officially approve the change in Otis Miracle's starting time from 4 back to 2 p m 5 Miracle had been fired some years back for irregularities associated with his timecard on hours worked GENERAL MOTORS CORP 711 Counsel for Local 594 and the Respondent Employer point out in their arguments that several meetings took place in December 1982 and January and February 1983 in an attempt to resolve the question of hours for the benefit representatives but that Otis Miracle consistently refused to cooperate and that it was not until .'ebruary 1983 when Otis Miracle began ,coming in to work at 4 p m after being informed that management would take disciplinary action against him if he did not comply with the 4 p m starting hours It is further pointed out and argued that Douglas correctly investigated allegations of misconduct on the part of Otis Miracle and took appro pnate measures to determine the truth of the allegations and in so doing discovered that Miracle and Code were not on the floor of the plant at the time of their constitu ents regularly scheduled shifts and accordingly Doug las took proper steps to improve the situation which in his opinion as elected president of the local membership was required—the testimony in part indicates Q What in essence was your motivation to' re quest a change in hours for either Mr Code or Mr Miracle? ' A It was my request to comply with the national agreement and alleviate any suspicion of wrongdo ing and to have the people on the floor in compli ance with the agreement Moreover it is also pointed out that Douglas wrote to Otis Miracle and specifically outlined his concerns before doing anything relative to the hours worked by the bene fit representatives and Miracle never responded to the letter but to the contrary stomped out of the office of the Labor Relations Manager when he was told to modify his hours Furthermore when his foreman told him that timecards for activity prior to 4 p m would not be processed he responded by telling that management representative I was going to start at 2 00 p m Final Conclusions Turning first to the alleged violation of Section 8(b)(1)(A) and (2) of the Act The credible evidence in this record clearly establishes that Local 594 President Donald Douglas and Shop Committee Chairman Ron Kreiger sought to retaliate against Otis Miracle because of the statements Miracle had been making in the plant against the new absentee ism program and thereby causing the Respondent Em ployer to change his starting time from 2 to 4 p m and Douglas threat to Miracle on April 30 1982 that he would get even with Miracle for chopping or cnti cuing the new absenteeism program fully evidences the Respondent Union s unlawful motivation I am also in agreement that equally damning was Kreiger and Doug las telling Marvin Code in June 1982 that his starting time might have to be changed to 4 p m but that they were not after him—rather they were after Miracle as aforestated 6 6 It should be noted that all facts found herein are based on the record as a whole upon my observation of the witnesses The credibility resolu lions herein have been derived from a review of the entire testimonial record and exhibits with due regard for the logic and probability the de As indicated the discriminatory motive of the Re spondent Union is also established by the timing of Douglas and Kreiger s request to review Miracle s over time records and the timing of the inquiry about his start ing time These inquiries suddenly began about the same time that Douglas threatened to get even with Otis Miracle Moreover the practice of benefit representa tives including Miracle and Code starting at 2 p m up until this time had been in effect for several years with out any complaints having been made and such circum stances were fully recognized as acceptable deviations from the contractual provisions As further pointed out the Respondent Union sought to explain this sudden interest in Miracle s overtime and his starting time by contending that they had received complaints from certain employees about the overtime Miracle had worked but the Respondent Union never substantiated such contention with any specific evidence showing that any such complaints were actually made or that these complaints had any merit In fact a review of the records in Art Watkin s office by Douglas and Kreiger faded to establish any overtime violations and a subsequent investigation conducted by Labor Relations Manager Winkler at Douglas request did not unco■ter any unauthorized overtime for Otis Miracle as aforestat ed Indeeel the testimony in this record establishes that Miracle like Code only worked overtime when they were entitled to it Thus the Respondent Union seized on these unmeritorious purported complaints as pretexts to disguise its unlawful motivation Several other factors and circumstances as more fully set forth by the General Counsel must also be noted— that Donald Douglas was seeking to ensure the collec live bargaining agreement was being enforced 'a7nd seek ing to ensure that the employees were receiving proper representation after 10 30 p m —is belied by the fact that Douglas specifically sought to single out Otis Miracle and while Douglas denied that he sought any different treatment for Miracle the evidence on the record !, is to the contrary First as the testimony of Winkler estab lishes it was only the overtime practices and the starting time of Otis Miracle that Douglas complained about to Winkler in early May 1982 Secondly after Winkler re viewed the matter and discovered that Miracle had not worked overtime improperly and that both Code and Miracle had been starting at 2 p m Winkler and not Douglas suggested that the requested change in starting from 2 to 4 p m be applied to Code as well as to Mira cle Next as also pointed out if Douglas was interested in having the specific contractual provision applied equally to both benefit representatives he would not have agreed with Winkler as he did on May 24 1982 to meanor of the witnesses and the teaching of NLRB v Walton Mfg Co 369 U S 404 As to those witnesses testifying in contradiction of the find ings herein their testimony has been discredited either as having been in conflict with the testimony of reliable witnesses or because it was in and of itself incredible and unworthy of belief All testimony has been reviewed and weighed in the light of the entire record In essence I have found the testimony of Miracle and Code to be candid and straightforward as both of them repeatedly revealed an open and honest demeanor while on the witness stand and therefore I have credited their recollections and state ments in instances where the testimony is in conflict 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have Marvin Code s starting time moved back until 2 p m Similarly on August 2 1982 when Winkler notified Douglas that he was changing Otis Miracle s starting time back to 2 p m because Code and Miracle should have been treated equally Douglas objected and raised the argument that the Respondent Employer should comply with the terms of the collective bargaining agreement Furthermore Local 594 knowingly acqui esced when the Respondent Employer paid Marvin Code for the hours he worked between 2 and 4 p m during June and July 1982 regardless of whether he attended prearranged meetings with management and on the other hand the Respondent Union agreed with the Re spondent Employer when Otis Miracle was not paid for the hours he worked between 2 and 4 p m during a summer period in 1982 because the meetings he attended were not prearranged I am also in agivement that Marvin Code s credible testimony to the effect that in June 1982 Douglas and Kreiger told him that his starting time might have to be changed to 4 p m but they were not after him that they were after Miracle as aforestated proves that any at tempt by the Union to treat Miracle and Code equally was only an effort to disguise its unlawful activity Douglas admitted calling Miracle into the office in June 1982 but he denied telling Code that he Twas out to get Miracle Rather he contended that he called Marvin Code into his office to explain to him that he would be subject to the same 4 p m starting time as Miracle How ever if Douglas contention is true why did he agree with Winkler on May 24 1982 that Code could start at 2 p m This hardly bespeaks an effort to ensure equal treatment Douglas also testified that he told Code that there was a problem with Miracle s overtime but not with Code s overtime As of June 1982 there is no record evidence to establish that Douglas had any proof that Miracle had worked overtime Improperly To the contrary Douglas own review of the records and Winkler s investigation each of which had been conduct ed by that time indicated that Miracle had not improper ly worked overtime Thus as further indicated the credible evidence estab lishes that the Respondent Union successfully caused the Respondent Employer in May 1982 and again upon the settlement of the grievance on December 14 1982 effec live in January 1983 to move the starting time of Otis Miracle from 2 to 4 p m in retaliation for Miracle having criticized the new absenteeism program supported by Local 594 It is well established that a union violates Section 8(b)(1)(A) and (2) of the Act when motivated by its hostility for an employee s protected concerted ac tivity causes or attempts to cause the employer to dis criminate against that employee with respect to his terms and conditions of employment Certainly in this case the Union s conduct had the effect Of causing the Re spondent Employer to deny employees certain starting hours which over the years had been deemed necessary and fully acceptable in order for them to properly carry out their duties and responsibilities In fact Winkler openly admitted that as far as management was con cerned it really did not make any difference what time the benefit representatives reported 7 The evidence set forth above also establishes that to the extent the Union concurred with changing Marvin Code s starting time to 4 p m for a short period in May 1983 and since January 1983 it did so in an effort to dis guise its unlawful treatment of Otis Miracle The Board has long held that discriminatory treatment of another employee under such circumstances is also violative of the Act Accordingly the Respondent Union further vio lated Sections 8(b)(1)(A) and (2) with respect to its par ticipation in the change of Marvin Code s starting time fromi 2 to 4 p m In the final analysis the General Counsel established a prima facie case of unlawful motivation on the part of Local 594 and' at this point the burden of proceeding shifted to the Union to demonstrate that in tlie absence of the protected activity it would still have challenged and changed their starting hours The Union has failed to meet this burden 8 Turning now to the issue of whether the Respondent Union violated Section 8(b)(1)(A) of the Act in its al leged perfunctory handling of Otis Miracle s grievances and in its withdrawal of all but one of his grievances Otis Miracle filed several grievances in the summer of 1982 to protest the nonpayment for the hours he worked between 2 and 4 p m and on September 5 1982 he filed a grievance for his being treated disparately from Marvin Code 9 Miracle initially filed his grievances with committee man Pete Steger but subsequently they were passed on to zoneman Carl Forester the next step in the grievance procedure and Miracle testified that he talked with Carl Forester several times giving him information on his grievance and relating to the management people he had met with during this period (from June 15 to August 2) Miracle testified that after he had gone over 3 or 4 weeks of his schedule in connection with his duties as a benefit representative Forester then informed him That s enough I can win it on this Ill get back with you if I need any more information Miracle places one conversation with Forester during the first part of October 1982 when he was informed that he (Forester) would give the grievances to Ron Kreiger chairman of the Shop Committee which was the next step in the procedure Miracle testified that he had another conversation with Carl Forester on December 14 1982 and on this occa sion Forester informed him that he had withdrawn the grievances when Ron Kreiger had returned them to him Miracle then asked Forester on what basis did he with draw the grievance and Forester replied Because I wanted to Miracle then informed Forester that he had It is well established that an employee s right to engage in intraunion activities in opposition to the incumbent leadership of his union is also concerted activity protected by Sec 7 of the Act See Highway City Airfreight Drivers 250 NLRB 1127 at 1130 (1980) 8 Wright Line 251 NLRB 1083 (1980) See also Plasterers Local 121 264 NLRB 192 (1982) 9 See G C Exhs 5(a)-(f) In these gnevances Miracle maintained that he should have been paid for the hours when he came to work prior to 4 pm between June and August 1982 GENERAL MOTORS CORP 713 asked him to process the grievances through the gnev ance procedures but Forester stated I don t care what you asked They are mine now and I will do what I want to with them About this time Forester mentioned that he had settled one of them (G C Exh 5(d)) by paying Miracle 3 hours of straight time and 1 hour at time and a half It appears that around December 21 1982 Miracle had a meeting with management people about getting necessary information prior to 4 p m and on this occa sion Lee Winkler informed him that the settlement of the grievances was betWeen the Union and General Motors and that Miracle was not to go to work or get any infor mation in his capacity as a benefit representative before 4 p m and that Miracle would have to have prearranged meetings with management people Carl Forester testified that he received the grievances here in question that he solicited information about them from Miracle as to which of the meetings were in con junction with management people and then he took up these matters with Lee Winkler In so doing it was de termined that except for one such meeting the others had not taken place on a prearranged basis and as a result the remaining grievances were then withdrawn without prejudice because they lacked merit and that it was his (Forester s) decision to withdraw the grievances Supervisor Winkler testified that only on one date had there been a prearranged meeting with Miracle and therefore he told Forester to only pay on that one gnev ance 1° Counsel for the Union argues that while Miracle was unsatisfied with the fashion in which his grievances were processed nevertheless his record of conduct through the course of this entire transaction establishes a consist ent pattern of disregard for any reasonable attempts to deal with him and in addition failed to prove that his grievances were handled inappropriately I concur that Respondent Union s processing of Otis Miracle s grievances concerning the change in his start ing time and not receiving pay for the hours worked was clearly a continuation of the Union s discriminatory treatment of Miracle The handling of the grievances was perfunctory and shows that it was designed to vali date the unlawful conduct of Local 594 President Doug las in originally requesting that Miracle s starting time be changed from 2 to 4 p m The Respondent Union contends that in settling the grievances on December 14 1982 by withdrawing all but one of them and by obtaining pay for only one meeting which the management agreed was prearranged that it was merely complying with the terms of the col lective bargaining agreement However as pointed out the credible testimony of Miracle establishes that at the time the grievances were referred to Forester there was no real investigation on his part as to whether the meet ings attended by Miracle were prearranged Miracle was only asked what meetings he attended and with whom " Code testified that on January 10 1983 his foreman told him not to come in to work under any circumstances before 4 p m yet he did so anyway between January 19 and January 30 1983 and is seeking pay for 17 hours during that period Code indicated that he wrote a grievance for the time but does not know what happened to it he met Moreover in abruptly and summarily settling the grievances Carl Forester admitted that he accepted Winkler s word that only one of the meetings for which Miracle claimed payment was prearranged but the testi mony of Miracle establishes as does his notes 11 that he attended several prearranged meetings between 2 and 4 p m during the time period covered by his grievances Furthermore Winkler admitted that when he checked into the grievances here in question he was not at this time even concerned whether or not there was a prear ranged meeting as generally neither Code nor Miracle had prearranged meetings More importantly in supposedly settling the gnev ances of Miracle on December 14 1982 by withdrawing all but one of them Carl Forester did not take into ac count the disparity in treatment between Code and Mira cle It is undisputed that Marvin Code was paid for the hours between 2 and 4 p m during the same time period covered by the grievances here in question regardless of whether the meetings he attended were prearranged with management Douglas in fact approved the change in Code s starting time from 4 to 2 p m on or about May 24 1982 and he admitted that he knew Code was being paid for the hours between 2 and 4 p m during this period Carl Forester also admitted that he knew of the disparity in treatment between Miracle and Code before he settled the grievances Moreover it is well established that prior to May 14 1982 when Code and Miracle were first ordered to start at 4 p m rather than at 2 p m there was a longstanding practice of having the benefit representatives start at 2 p m They had been paid for the hours between 2 and 4 p m as aforestated but despite this longstanding past practice and the disparity in treat ment between Miracle and Code Forester settled the grievances of Otis Miracle by entering into an agreement with the Respondent Employer that it pay Miracle for attending only one prescheduled meeting before 4 p m and by otherwise withdrawing the grievances I am also in agreement that the reason for the perfunctory han tiling of Miracle s grievances can only be explained as a continuation in Respondent Union s plan and specifically Donald Douglas to punish Miracle for opposing the new absenteeism program Of course a union s refusal to ade quately pursue grievances because of animus towards an employee due to his engaging in protected concerted ac twines constitutes a breach of the duty of fair represen tation in violation of Section 8(b)(1)(A) of the Act A union s duty of fair representation requires it to serve the interests of all the employees it represents fairly and in good faith and without hostile discnmina tion based on unfair arbitrary irrelevant or invidious distinctions 12 In the performance of this duty however the effective administration of a contract requires that a union be afforded discretion in deciding what grievances to pursue and the manner in which they should be han dled Mere negligence or poor judgment is insufficient to establish a breach of the duty of fair representation " See G C Exh 8 and in particular the specific dates of 6-28-82 7- 6-82 7-8-82 7-9-82 7-12-82 7-13-82 7-14-82 and 7-28-82 12 Vara v Sipes 386 U S 171 (1967) Glass Bottle Blowers Assn Local 106 (Owens Illinois) 240 NLRB 324 (1979) 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Applying the above principles to the instant case and the particular events and circumstances as previously noted I have concluded that the Union did not afford Miracle the fair consideration of his grievances to which he was entitled and in bad faith withdrew in an arbitrary manner all but one of his grievances Counsel for the Union also maintains and argues that the instant record fails to establish that either Code or Miracle properly processed their available internal reme dies as a condition precedent to bringing the instant action that they did not exhaust their internal appeals before turning to the Board as the UAW constitution re quires 13 This defense and argument was not raised at the hearing and the various transmittal letters and docu ments now relied upon by the Union are not included within the official exhibits However there is a reference by Miracle in his testimony to the effect that he did con tact the UAW International during 1983 and in so doing was ultimately advised to report to work at 4 p m until this matter was worked out It appears that by letter dated February 11 1983 Mir acle filed an appeal under article 33 of the UAW consti tution protesting the decision of Carl Forester in denying his grievances 14 It is further pointed out by counsel for the Union that by letter dated March 7 1983 Miracle was informed by Local 594 that his presence was required on March 11 1983 to meet with the Union s Shop Committee regard ing his appeal but on March 11 1983 Miracle advised Local 594 by letter that he had been present at the union hall on the above date to meet with the Shop Commit tee but no one at the hall knew what time the meeting would take place and so he left the premises It further appears that by letter dated April 4 1983 Miracle notified the International Union to the effect that under the International constitution he had appealed the denial of his grievances to the Local s executive board but had not been granted a hearing 15 ,2 The 1980 UAW constitution art 33 sec 5 provides Section 5 OBLIGATION TO EXHAUST INTERNAL UNION REMEDIES It shall be the duty of any individual or body if ag grieved by any action decision or penalty imposed to exhaust fully the individual or body s remedy and all appeals under this Constitu non and the rules of this Union before going to a civil court or gov ernmental agency for redress Art 33 also sets forth what may be appealed and the levels of appeal see sec 1 and 2 14 The original charges in this case were filed by Miracle with the Board on December 14 1982 and first amended charges were filed by him on January 28 1983 15 The letter by Miracle to the International stated as follows I am wnting in regards to a problem I am having receiving repre sentation I have made an attempt to go through the appeal proce dure under the International Constitution I appealed to the Local Executive Board and was denied a heanng I was told by the Executive Board on February 11 1983 that it should have been appealed to the Shop Committee in which I did at that time Recording Secretary Roger Coats notified me in a letter dated March 7 1983 of a meeting Friday Marclill 1933 at 10 00 AM which I did attend I arrived at 9 56 A M and remained until 10 32 A M and spoke to several members of the Shop Committee After being informed that no one knew exactly what time the meeting was to begin I left On March 13 1983 I requested a heanng at the regular Member ship Meeting in which I heard the appeal It was denied (49 for-67 against) It is further pointed out that by letter dated April 18 1983 the International Union by its President Douglas Fraser notified the recording secretary of Local 594 that in order for the appeal of Miracle to be determined Local 594 would have to advise the International of whether the appeal had been timely processed within Local 594 in accordance with article 33 section 3(d) of the International constitution and that Local 594 would also have to submit the following information i 1 All records in the Local Union pertaining to the matter from which the member(s) desire(s) to appeal 2 Copies of membership meeting minutes where any action has been taken by the membership on the appeal and underline in red that portion which deals with this particular appeal 3 Copies of any transcripts or testimony 4 A detailed statement setting forth the reasons which caused the Local Union to take the action in connection with the member s appeal 5 Copy of appellant s grievance and management dis position of the grievance at all steps of the grievance procedure 6 Date the grievance was withdrawn ,• 7 How and when was the grievant notified of the set tlement i 8 Any other documents or material relative to the matter and/or statements the Local Union may wish to present on its behalf in answer to the appeal In Glover v St Louis San Francisco Railway 393 U S 324 (1969) the respondents argued that the complaint should be dismissed because of the petitioner s failure to exhaust their remedies under the bargaining contract the union constitution and the Railway Labor Act relying on Republic Steel Corp v Maddox 379 U S 650 (1965) and Vaca v Sipes 386 US 171 (1967) However the Supreme Court has made it clear that the exhaustion requirement is subject to a number of ex ceptions Thus in Vaca supra the Court went on to specify at least two situations in which the suit could be brought despite the failure to exhaust the contractual remedies—one situation where the effort to proceed would be wholly futile In Clayton v Auto Workers 101 S Ct 2088 (1981) the U S Supreme Court set forth a three part test to deter mine if the exhaustion of internal union appeals would be futile [C]ourts have discretion to d /ecide whether to re quire exhaustion of internal union procedures In ex cercising this discretion at least three factors should be relevant first whether union officials are so hos tile to the employee that he could not hope to obtain a fair hearing on his claim second whether the internal union appeals procedures would be in adeqUate either to reactivate the employee s griev ance or to award him the full relief he seeks under Sec 301 and third whether exhaustion of internal procedures would unreasonably delay the employ ee s'opportunity to obtain a judicial hearing on the I am now appealing to the International Executive Board Any as A %stance you may give me at this time will be appreciated GENERAL MOTORS CORP 715 merits of his claim If any of these factors are found to exist the court may properly excuse the employ ee s failure to exhaust 16 Counsel for Local 594 argues that in the instant pro ceeding the complaining parties did not establish hostility by union officials to the extent that either Miracle or Code could not reasonably expect a fair hearing on their claims that the General Counsel did not establish that the internal procedures are or were inadequate to assist nor did the proofs establish that exhaustion of internal procedures would delay their opportunity to obtain a ju dicial hearing on their claims indeed the Union estab lished that Miracle s grievances were properly investigat ed at the shop level and that he has filed a protest 4 through the International union In making my final conclusions it appears quite clear to me that Otis Miracle made considerable efforts to in ternally resolve the differences on his grievances Marvin Code also signed a grievance for hours worked but no pay received from January 19 through January 31 1983 (from 2 to 4 p m) Code wrote this grievance with a committeeman in the plant but testified that he did not think it even went to the first step in the grievance procedure In the final analysis Miracle appealed to the Interna tional and in turn the International notified Local 594 that in order for the parent body to determine this matter Local 594 would have to submit specific informa tion as aforetated However there is nothing in this record to show that such material or documents were ever submitted by Local 594 to the International and certainly Local 594 cannot now successfully maintain that the Charging Party did not first exhaust his internal appeals before filing with the Board when in reality Local 594 was the party who apparently stopped any further consideration of the grievances by the Interna tional when they failed to supply the requested informa tion and there is nothing in this record or in the attach ments to show otherwise In fact the concluding para graphs in the letter of April 18 1983 from the Interna tional to Local 594 stated as follows , It is imperative that the information requested be compiled by the Local Union and sent to my office WITH AN ORIGINAL AND FIVE (5) COPIES (six copies in all) WITHIN TEN (10) DAYS FROM RECEIPT OF THIS LETTER As soon as this information is received the Interna tional Union will advise the member and the Local Union of the status of this appeal 16 See also Operating Engineers 148 NLRB 679 (1964) and in which the Board in part stated Considenng the overriding public interest involved it is our opinion that no private organization should be permitted to prevent or regu late access to the Board and a rule requiring exhaustion of internal union remedies by means of which a union seeks to prevent or limit access to the Board s processes is beyond the lawful competency of a labor organization to enforce by coercive means While the validity of rules requiring exhaustion of internal union remedies has generally been recognized by the courts the effect of such rules is to create a defense which may be utilized by a labor organization in an action brought against it by a member While Marvin Code did not follow up on his griev ance with any appeals nevertheless it is obvious from this overall record when considering all respects and background in relationship to such grievance that there was no desire of any kind on the part of Local 594 to settle or hear such matters with any finality and this be comes quite evident when considering the type of re sponses delays and runarounds Miracle was getting as aforestated and the fact that Marvin Code s protest did not even reach the initial grievance step is further Indic ative of negative reactions and the utter uselessness of further pursuits In the instant case I have found that union officials at least on the local level were so hostile that the claimants could not hope to obtain a fair hearing Moreover that the internal union appeals procedure would be mad equate to award them the full relief they seek—backpay from Respondent Employer for hours worked between 2 t and 4 p m on certain dates—and certainly the exhaus tion of internal procedures would unreasonably delay the opportunity to obtain a judicial hearing on the merits Indeed this delay factor is quite obvious in that there is no showing whatsoever that Local 594 has even coin plied with the International s request made months ago for certain documents in relation to the grievances filed by Miracle and the only suggestion made to Miracle by the International was that he report at 4 p m until the matter 4 is taken care of but there is not even an estima tion as to when that might be Even accepting and assuming the premise that this ar gument and contention now raised by counsel for the Union is relevant and timely and that the documents in volved are all authentic and properly before me there is still an inadequate basis under the circumstances of this case for any finding that Code and Miracle first had to exhaust their internal appeals before turning to the Board and in accordance with the above I have rejected this defense and contention Turning now to the allegation in the complaint and the contention by the General Counsel that the Respondent Employer violated Section 8(a)(1) and (3) of the Act when it acquiesced in the Respondent Union s demand and changed the starting time of the benefit representa tives from 2 to 4 p m The Respondent Employer points out that important to this case is the absence of any evidence that General Motors had any knowledge of or reason to believe that the Respondent Union s request to have Miracle and Code start at 4 p m was made in bad faith—that even if certain statements were made by officials of Local 594 to the effect that they were out to get Miracle over his remarks about the new absenteeism program—still the Respondent Employer had no knowledge of these con versations Moreover in an effort to resolve the confu sion over the starting time for second shift benefit repre sentatives joint meetings were held between Respondent Employer and representatives from the Respondent Union but both Code and Miracle continually exhibited recalcitrance and chose to reject any attempt to resolve the starting time issue 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Counsel for General Motors further points out that what had begun as a matter of privilege in starting at 2 p.m. was ultimately construed by Miracle as a matter of an absolute right—that the so-called past practice of al- lowing second shift benefit representatives to start 2 hours prior to their regular shift, arose out of a private arrangement between Otis Miracle and his supervisor and not from any intentional waiver of paragraph 7 in the bargaining agreement, and points out that Miracle even admitted he was well aware of the contract provi- sion in question Furthermore, argues the Respondent Employer, when Local 594 President Donald Douglas approached management demanding compliance with the bargaining agreement, the Respondent Employer was then placed in the untenable position of having to get in- volved with an internal union concern solely because of the refusal by Miracle to discuss the matter with his local union president, and ignoring the demands of the Union would have exposed the Respondent Employer to an 8(a)(5) charge Moreover, by responding to the Union's demand only meant returning to the days where second shift benefit representatives started work with their regular shift, an arrangement that had worked in the past, and under such circumstances management acted properly and reasonably—thus the General Coun- sel's contention that Respondent Employer was acting in collusion with the Union to retaliate against the Charg- ing Party due to his "phantom" protected activities is un- supported by the record. Furthermore, a good-faith in- terpretation of a contract by an employer does not vio- late Section 8(a)(3) and (1) of the Act. In making my findings here, it is, of course, well rec- ognized that an employer violates Section 8(a)(3) and (1) "if it knowingly acquiesces in the union's action" Frum- Colnon Corp. v. NLRB, 227 NLRB 59 (1976), or partici- pates in what it knows is an unfair labor practice on the union's part. I concur that the evidence in this record establishes that Respondent Employer's labor relations manager Lee Winkler yielded to the pressure of Local 594 President Douglas to change the starting times of the benefit repre- sentatives under circumstances where he must have known that Douglas was trying to single out Otis Mira- cle for arbitrary and personal reasons. As indicated, Winkler may not have known the precise reason as to why Douglas harbored animus against Miracle and as a result sought to have his starting time changed, but the circumstance and events conclusively show that the Re- spondent Employer knew that Douglas was attempting to single out and punish Miracle. Supervisor Winkler must have realized that Douglas' assertions that he now wanted management to comply with the provisions in the collective-bargaining agreement, and that he now wanted to ensure that the second- and third-shift employ- ees were properly represented, were pretextual reasons for discriminating against Miracle As pointed out, when Douglas first made the request to Winkler in early May 1982 that Otis Miracle's starting time be changed from 2 to 4 p.m. Winkler, after investi- gating the matter and discovering that both Miracle and Code had been starting at 2 p m for quite a period of time, must have then suspected that Douglas was at- tempting to single out Miracle because Winkler told Douglas "that he was not going to single out Otis Mira- cle and change his starting time without touching Code's." However, on May 24, 1982, a little more than a week after he had ordered both Miracle and Code to start at 4 p.m., Winkler then authonzed 'Code to change his starting time back to 2 p.m. As suggested by the General Counsel, if Winkler did not know the motives of the Union by then, he must have known when he called Douglas and told him the overtime hours of Miracle were legitimate, and Douglas then agreed to change Code's hours back to 2 p.m. Furthermore, on July 30, 1982, after several weeks in which Miracle had not paid for the hours he had worked between 2 and 4 p.m., and Marvin Code had been paid for these hours with the ap- proval of management and the Union, Winkler then must have assumed that the contractual arguments and other factors mentioned in favor of better union representation advanced by Douglas in support of changing Miracle's starting time, had only been a disguise. In fact, Winkler admitted that he was told by management Supervisor Beech Hall that he had no good reason for the change in Miracle's hours or for treating Miracle and Code differ- ently, and Winkler agreed with him. Moreover, on August 2, 1982, Winkler informed Douglas that he would no longer treat the two men differently and he was changing Miracle's starting time back to 2 p.m., and Douglas again objected, supposedly based on the provi- sion in the contract. I concur that Winkler surely knew by then that Douglas was seeking to arbitrarily single out Miracle. Finally, at the time the grievances were al- legedly settled on December 14, 1982—that is when It was decided between the Respondent Union and Re- spondent Employer that Miracle would only be paid for one prearranged meeting and would not otherwise be paid for the hours he worked between 2 and 4 p.m during June 15 and July 30, 1982—the Respondent Em- ployer again endorsed the Union in their attempt to single out Miracle as Winkler entered into this settlement admittedly knowing that Marvin Code had been paid for the hours he worked between 2 and 4 p.m. during the same period regardless of whether the meetings he had attended were prearranged. In the final analysis, even though the Respondent Em- ployer and the Respondent Union ultimately changed both Winkler's and Code's starting time back to 4 p.m., effective in January 1983, nevertheless, as indicated, it is obvious by the pattern of events from April 30, 1983, onward, that the purpose of the Respondent Union insist- ing on the change in the starting time was to arbitrarily single out and punish Otis Miracle, and it is also quite obvious that the Respondent Employer knowingly acqui- esced in this plan, and after the instant unfair labor prac- tice had been filed—having the change in starting time belatedly applied to both Code and Miracle—were only attempts to disguise the unlawful motivation. Thus, for the reasons set forth above, it is found that the Respond- ent Employer violated Section 8(a)(1) and (3) of the Act. GENERAL MOTORS CORP 717 CONCLUSIONS OF LAW I. General Motors, Inc is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. At all times material, the Union has been the exclu- sive collective-bargaining representative of the employ- ees involved herein. 4. By engaging in the conduct described in section III, above, the Respondents have engaged in and are engag- ing in unfair labor practices within the meaning of Sec- tions 8(b)(1)(A), 8(b)(2), and 8(a)(1) and (3) of the Act. THE REMEDY Having found that Respondents have engaged in cer- tain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Union unlawfully caused the Respondent Employer to discontinue allowing Otis Mira- cle and Marvin Code to begin functioning as benefit rep- resentatives prior to the start of their regular shift, and as a result were refused pay on certain dates while working prior to their regular 4 p.m. shift, I shall recommend that Respondents, jointly and severally, make Miracle and Code whole for any loss of earnings suffered as a result of the discrimination against them by payment to them of a sum of money equal to that which they normally would have earned as wages from the dates of the dis- crimination against them until such time as Respondents discontinue their unlawful discrimination. All backpay provided herein shall be computed with interest on a quarterly basis, in the manner described by the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), and with in- terest thereon computed in the manner and amount pre- scribed in Florida Steel Corp., 231 NLRB 651 (1977). See also Isis Plumbing Co., 138 NLRB 716 (1962). The exact amounts owing by Respondents can be readily ascer- tained and determined at the compliance stage of this proceeding. [Recommended Order omitted from publication.]