Coca-Cola Bottling Corp.

National Labor Relations Board - Board Decisions

Jul 13, 1965

153 N.L.R.B. 1425 (N.L.R.B. 1965)

COCA-COLA BOTTLING CORPORATION 1425
All our employees are free to become or remain members of the above-named
Union or any other labor organization.
TENNESSEE PACKERS, INC., FROSTY MORN DIVISION,
Employer.
Dated- ------------------ By-------------------------------------------
(Representative ) ( Title)
NoTE.-We will notify the above -named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis , Tennessee , Telephone No.
535-3161, if they have any questions concerning this notice or compliance with its
provisions.
Coca-Cola Bottling Corporation and William N. Waite
Cleveland Local Union No. 235, International Union of the United
Brewery, Flour, Cereal , Soft Drink and Distillery Workers of
America, AFL-CIO and William N. Waite. Cases Not. 8-CA-
3515 and 8-CB-824. July 13,1965
DECISION AND ORDER
On April 6,1965, Trial Examiner Harold X. Summers issued his De-
cision in the above-entitled proceeding, finding that Respondents had
not engaged in the unfair labor practices alleged in the complaint and
recommending that the complaint be dismissed in its entirety, as set
forth in the attached Trial Examiner's Decision. Thereafter, the
Charging Party filed exceptions to the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error has been committed.
The rulings are hereby affirmed. The Board has considered the Deci-
sion, the exceptions, the brief, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders that
the complaint herein be, and it hereby is, dismissed in its entirety.
153 NLRB No. 123.
796-027-66-vol. 153-91
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
This case was heard upon the consolidated complaint 1 of the General Counsel of
the National Labor Relations Board, herein called the Board, alleging that Cleveland
Coca-Cola Bottling Company,2 herein called the Company or Respondent Employer,
had engaged in and was engaging in unfair labor practices within the meaning of
Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, herein
called the Act; and that Cleveland Local Union No. 235, International Union of the
United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America,
AFL-CIO, herein called Local 235, herein called the Union or Respondent Union,
had engaged in and was engaging in unfair labor practices within the meaning of
Section 8(b)(1)(A) and (2) of the Act. Respondent Employer and Respondent
Union filed answers to the consolidated complaint, admitting some of its allegations
and denying or disclaiming knowledge of others, in effect, they denied the commis-
sion of any unfair labor practices. Pursuant to notice, a hearing was held before Trial
Examiner Harold X. Summers at Cleveland, Ohio, on September 23 and 24, 1964,
at which all parties were afforded full opportunity to examine and cross-examine
witnesses , to argue orally, and to submit briefs. Briefs filed by the General Counsel,
by Respondent Employer, and by Respondent Union have been fully considered.
Upon the entire record 3 in the case, including my evaluation of the witnesses based
upon the evidence and my observation of their demeanor, I make the following:
FINDINGS OF FACT 4
1. COMMERCE
Respondent Employer, the correct name of which is Coca-Cola Bottling Corpora-
tion, is a Delaware corporation licensed to do business in the State of Ohio. At all
relevant times, Respondent Employer has been engaged, in Cleveland, Ohio, under
the name Cleveland Coca-Cola Bottling Company, in the manufacture, sale, and
distribution of nonalcoholic beverages or soft drinks. Each year, in the course and
conduct of its operations at Cleveland, Ohio, Respondent Employer has caused
goods and materials valued at in excess of $50,000 to be purchased, transferred, and
delivered to its Cleveland plant directly from States of the United States other than
the State of Ohio; and, among the products it has manufactured, has sold and
furnished products valued at in excess of $50,000 respectively to, among others,
Pick-n-Pay Super Markets, Kroger Super Markets, and Fisher Food Super Markets,
each of which enterprises itself, in the course of its business operations, annually
receives from outside Ohio goods valued at in excess of $50,000 and annually sells
and distributes products the gross value of which exceeds $500,000.
I find that Respondent Employer is an employer engaged in commerce within the
meaning of the Act .-5
IT. THE UNION
Respondent Union is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and chronology of events
At all relevant times, Local 235 has been recognized by the Company as the
exclusive bargaining agent of the Company's nonsupervisory employees engaged in
'The complaint was issued July 9, 1964 . The charges initiating the proceeding were
filed on May 19, 1964 , by William N . Waite.
2 The caption of the case is here corrected to reflect the actual name of Respondent
Employer.
30n or about November 24, 1964, after the close of the hearing, the parties submitted
a stipulation correcting the name of the Company and containing certain information
about said Respondent . It is hereby ordered that this become part of the record as Trial
Examiner 's Exhibit No 1
4 Unless otherwise indicated, the facts and circumstances recited herein are based upon
credited and uncontradicted oral or documentary evidence in the record.
In so finding , I place no reliance on the allegation in the complaint , admitted by
Respondent Employer, that Respondent Employer annually receives , at its Cleveland plant,
goods and materials valued at in excess of $50,000 from other enterprises which them-
selves had received said goods and materials directly from outside Ohio . In the absence
of evidence that the value of such goods and materials, originating outside Ohio, exceeded
$50,000 in the case of each such enterprise, I find no relevance in this fact.
COCA-COLA BOTTLING CORPORATION 1427
bottling and shipping , maintenance , and other related operations . The collective-
bargaining agreement covering the work conditions of these employees during the
period involved herein was effective , by its terms , from June 1, 1960, until May 31,
1965, unless automatically renewed thereafter.
Late in December 1962, a number of the Company's employees were laid off,
assignedly for lack of work. Shortly thereafter, Local 235 filed a grievance on
behalf of six of the laid-off employees-John Albergo, Joseph Bartko, Joseph
Giordano, Louis Koch, William Waite, and Mike Zavada-claiming that the Com-
pany, by laying them off and retaining another employee, had violated the provision,
in the contract relating to the effect of seniority on selections for layoff.
After a number of meetings between company and union representatives failed to
resolve the subject of the grievance , the parties took the initial steps toward setting
up a board of arbitration as provided for in the current collective -bargaining agree-
ment. On January 25, 1963, Local 235 designated an attorney, A Richard Valore,
as its representative on the board and, 5 days later, the Company designated Attorney
Morton M. Stotter 6 as its representative . These two , under the contract, were
charged with the responsibility of selecting a third member as the arbitration board's
chairman.
During or about the second week in February 1963, union representatives asked
the six grievants to come to the union hall on a given evening , telling some or all
of them that attorneys would be present to investigate the circumstances surrounding
the layoff. Each of them did so report, and, while a membership meeting was going
on elsewhere in the building , they were interviewed by and gave statements to three
attorneys , all of whom were associates of Valore.
Time passed, and the grievants were unaware of the progress made, if any, toward
the adjustment of the grievance.? In point of fact, however, the parties' respective
representatives on the arbitration board, in the course of their efforts to choose a
third member, engaged in discussions of the merits of the controversy Finally-
and there is no evidence herein as to the date-the Company (through Stotter)
agreed to pay a lump sum of $1,920 in full satisfaction of the grievance in return for
a commitment by the Union (through Valore) to agree to a change in the seniority
provision of the contract to insure that what the Company considered to be an
ambiguity in the provision would be eliminated. One condition of the "settlement
agreement " was that the payment -over of moneys would await the signing of
"releases" by the grievants and the submission of a suitable contract change by
the Union.
Just prior to the holding of the regular October or November 1963 meeting 8 of
the membership of Local 235, the grievants were asked to attend the meeting; in
effect, they were told that there would be news of the 1962 layoff giievance.i At the
meeting itself , Anthony Sapienza , Local 235's business agent and financial officer,
and Charles Saranita , its assistant business agent,'° explained that there had been a
settlement of the layoff grievance ; that, although $ 10,000 had originally been
requested , the sum of $ 1,920 had been agreed upon . There was no final disposition
of the matter at this meeting; indeed, the evening ended on a sour note-papers dis-
playing the basis for the settlement were not made available for inspection , contrary
to an announcement made earlier in the meetmg . ii The testimony as to other things
said in the course of the meeting, and during the period immediately following the
meeting, calls for a number of credibility resolutions , which resolutions are made
at appropriate places hereinbelow.
6 Stotter acted as counsel for Respondent Employer in the instant proceeding
7 Meanwhile , it appears those laid off were recalled by the Company . On this record,
at least two of the six, and perhaps all, had returned to work by May 1963
8 There is conflict in the testimony as to the date of the meeting . Joseph Giordano
and William Waite, witnesses called by the General Counsel , fix the meeting as the one
in October , although Waite , in testimony as to another incident, creates a doubt as to
the accuracy of his own timefixing . ( Having testified to a conversation he had with the
shop steward before the meeting in question , he later testified to another conversation with
union representatives which took place, according to hint, "around December , a week
or two , maybe three weeks [after the conversation with the shop steward] . . maybe
two weeks [ prior to his termination-on December 30].") Charles Saranita , a sitness
for Respondent Union, testified that the meeting in question occurred in November In
the context of this case , a resolution of the difference is unnecessary
6 One of them was told by Local 235 ' s shop steward for the Company 's employees, "You
fellows have a bundle of money coming."
10I find Sapienza and Saranita to be agents of Respondent Union.
11 The findings in this paragraph thus far recited are derived from the testimony of the
several witnesses to the event ; there were no conflicts in meaningful detail.
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 30, 1964, William Waite-one of the group of grievance above
referred to-was discharged by Respondent Employer. The circumstances of the
discharge, and its aftermath, are discussed in detail infra.
On or about January 28, 1964, Saranita called each of the grievants-including
Waite, no longer employed by the Company-and told them to go to Attorney
Valore's office next day. The group gathered there at the time indicated. Valore
told them he had release forms for their signatures, upon receipt of which the Com-
pany would remit the amounts due. The details of distribution were discussed,12
and Valore said that his fee of one-third of the amount collected would be withheld
by him from sums due them. Bartko, Koch, and Zavada signed their releases, but
Waite and Giordano did not; they protested that they had not hired Valore and that
they felt themselves under no obligation to pay him a fee.
By letter dated April 30, 1964, Miss Violet Tarcai, an attorney acting on behalf
of William Waite and, perhaps, others of the grievants,13 protested Valore's imposi-
tion of a fee upon the grievants in the absence of an agreement thereupon, and took
the position that all responsibility for processing the grievance, including the meeting
of expenses, lay with Local 235. In reply, on April 30, Valore, voicing disagreement
with Tarcai as to the validity of his claim agamst the grievants, nontheless said that
Respondent Union's representatives had now agreed to pay the total fee, in his
opinion mooting the question. He did take the position, contrary to that expressed
by Tarcai as her understanding, that the sums due the grievants were payable at and
through his office.
The instant charges were filed on May 19, 1964. Also, allusions in this record
establish that a State court proceeding, bearing upon Waite's share of the moneys
due as a result of the 1962 layoffs, has been instituted.
As of the date of this hearing, none of the grievants has received any money
arising out of the 1962 layoff; in the absence of signed releases from all the grievants,
the Company has expressed an unwillingness to distribute any funds.
B. Waite's discharge
The consolidated complaint alleged that, on or about December 30, 1963, Respond-
ent Union caused or attempted to cause the Company to discharge William Waite
because of his complaints about internal operations of the Union and about its
handling of the layoff grievance above referred to and because of his demands for a
copy of the current collective-bargaining agreement; and that, on or about the same
date, Respondent Employer, pursuant to the Union's request, did discharge Waite
and thereafter refused to reinstate him. In further elucidation at the hearing, counsel
for the General Counsel argued that Waite was persona non grata with the Union
because of (1) his continued demands for a copy of the current collective-bargaining
agreement between Local 235 and the Company, (2) his complaints about Local 235's
failure to elect a steward for the second shift, and (3) his agitation over the way
the Union was handling the 1962 layoff grievance; 14 and that, because of this, Local
235's representatives asked or demanded that the Company discharge him. The
Company-the General Counsel further argued-thereupon discharged Waite in
compliance with or in capitulation to the Union's request/demand and for no
other reason.
Respondent Union, in its answer, denied the pertinent allegations of the com-
plaint and, at the hearing, took the position that, as far as it was aware, Waite was
discharged by the Company for cause, including his violation of company rules, and
that, far from requesting or demanding his discharge, Respondent Union resisted
the action and sought a review thereof.
Respondent Employer also denied the pertinent allegations of the complaint
insofar as it was affected. At the hearing, it pointed out that Waite was discharged
for cause unconnected with unions or concerted activities of any kind; also that, in
discharging Waite, it was acting on its own-contrary to the request of Local 235.
In the interests of clarity, the General Counsel's affirmative case will be dis-
cussed first.
12 Under the formula used-prorating the total amount according to the hours of which
each grievant was deemed to have been deprived at his hourly rate of pay-Albergo was
scheduled to receive nothing ( unless the others should choose to give him some of their
shares ) ; Bartko was scheduled to receive a gross amount of $432 93 ; Giordano , $225.91 ;
Koch, $18 90; Waite, $978.71 ; and Zavada, $263.55.
13 She represented Waite, that Charging Party, in the instant proceeding.
14 The reference is to his expressed dissatisfaction over the nature and progress of the
proceedings , not the imposition of an attorney's fee described earlier herein. That
occurred subsequent to Waite's discharge and is separately treated infra.
COCA-COLA BOTTLING CORPORATION 1429
Waite had worked for the Company since September 9, 1959, at which time he,
had been referred for employment there by the Union. (He had been a member
of Local 235 during a prior 4-year period of employment elsewhere; upon being hired
by the Company, he rejoined, and he was still a member at the time of the discharge
which is a subject of these proceedings.) During the latter half of 1963, lie worked
on the production line.
Waite's last day of work was December 27, 1963. On Saturday, December 28,
he failed to report for work although he had been instructed by management to do
so. When he arrived at the plant on Monday, the 30th, he found that his timecard
had been removed from the card rack. He was told to wait, and he did so, until 10
o'clock, at which time he was taken to the personnel office. Present, beside Waite,
were Walter Leonard, the Company's production manager, Roland May, assistant
production manager; Andrew Halco, personnel manager, 15 and Kenneth Tehoke,
vice president of Local 235's executive board and shop steward for the Company's
employees.'(; According to Waite's version of the meeting,17 Leonard said Waite
was being discharged for not reporting for work on Saturday. Waite protested that
he had told May on Friday that he could not work Saturday. May conceded that,
when he gave the instruction on Friday, Waite had said something, but that he had
not understood what was said; and he also conceded that, on Saturday, Louis Koch,
a fellow employee of Waite, told May that, the day before, Waite had told Koch he
might have to take his daughter to a hospital-or, perhaps, to a doctor-about an
injured finger. (In addition to speaking to May and to Koch on Friday, Waite had
also asked Tehoke if, under the contract, Saturday work was optional with the
employee, and he was given an affirmative answer.) Despite his protests, and
despite the absence of any prior warnings or reprimands about absenteeism, Leonard's
decision to discharge Waite still stood at the meeting's end
On this record, it is clear, and I find, that Waite did, prior to his discharge, take
steps toward procuring a copy of the collective-bargaining agreement between
Respondent Employer and Respondent Union.18 He made requests for Shop Steward
Tehoke for a copy on from two to four occasions between October 1 and Decem-
ber 30, 1963, but there is dispute as to the exact nature of the requests. Waite testified
that, on each occasion-the date of which he was unable to fix-he asked for a copy
of the contract to be given him; that, on one occasion, Tehoke said he was "too busy,"
on another, Tehoke said that he (Waite) "couldn't get a contract," and, on another,
under circumstances clearly indicating that Waite was seeking Government assistance
in securing a copy of the contract.19 Tehoke let him read a copy of the contract,
without, however, relinquishing his hold on the document; and, finally (Waite
testified), Saranita, taking note of his efforts to get a copy of the contract, told him
he could have one if he came to the Union's offices for it. Tehoke, on the other
hand, testified that Waite asked him for a copy to keep, only once, and asked to see
a copy on a number of occasions; that, as for the request for a copy to keep, he
told Waite that he had but one copy and that Waite would have to ask at the union
hall for one of his own; and that, as for the other requests, he gave Waite his copy
to read on "a couple of occasions," each time "let[ting] him hold" the contract. In a
case where, in my opinion, both Waite and Tehoke displayed a "looseness" with
respect to details on what appears to me not to have loomed important to either
at the time of the events in question, I here make findings which, not wholly con-
sistent or inconsistent with the testimony of either, most comport with the inherently
probable. I find that, during or about October 1963, Waite asked Tehoke for a
copy of the contract and was told that Tehoke, having only his personal copy, had
none to spare; that, on at least two, perhaps three, more occasions prior to Decem-
ber 30, Waite asked Tehoke for a copy of the contract to keep or at least to read, on
none of which occasions either aspect of the request was complied with, that, in
December, at a time when Waite was seeking Government help in securing a copy
161 find Leonard, May, and Halco to have been supervisors for and agents of Respondent
Employer at all pertinent times.
111 find Tehoke to be an agent of Respondent Union.
17 There are a number of conflicts as to what was said and done at this meeting. For
the purpose of laying a foundation for further discussion, the account appearing above,
that of Waite, is being adopted for the time being.
IB His reason, given at this hearing: because be wanted to ascertain details on "layoffs
out of seniority" (note that the 1962 layoff grievance was then pending) and about the
election of union stewards ( of which, more infra).
>e According to Waite, he was in a telephone booth at the time, calling an official of the
Bureau of Labor and Management Reports of the Department of Labor.
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the contract, Tehoke permitted him to read a copy; 20 and that, in December,
Saramta, displaying an awareness that Waite had been seeking a contract copy, told
him he could procure one if he came to the Union's office.21
Earlier, in July or August, Waite had learned, in a conversation with Tehoke, that
one Bob Arz had been appointed union steward on the Company's night shift.
Waite questioned the fact that Arz was appointed rather than elected, in response to
which Tehoke said that stewards were appointed by Sapienza and Local 235's execu-
tive board. Waite expressed disagreement with the validity of the method but, not
familiar with the terms of the contract,22 he did not argue the point extensively;
he merely suggested-and here either Waite or the transcript demonstrates con-
fusion-that he (Tehoke7) post a notice on the bulletin board announcing that he
was resigning and that Arz was filling out his term "or they would have to elect a
new steward."
There is no doubt, and I find, that Waite, more than once during the last few
months of his employment with the Company, expressed his dissatisfaction with the
way the 1962 layoff grievance was being handled by Local 235 On one occasion,23
he asked Tehoke about the grievance proceeding; when Tehoke said that "they were
taking care of it," Waite asked if and where any meetings were being held; to
Tehoke's comment that (Company Counsel) Stotter was "a hard man to deal with,"
Waite said that, irrespective of that fact, it seemed to him that it was only necessary
to rely on the contract, and he ended the conversation with a sarcastic "Where do
you hold your meetings-in a bomb shelter?" At the October (or November) 1963
union meeting, Waite again raised his voice: he protested the amount announced as
the basis for settlement and he expressed an unwillingness to pay any attorney's
fee; 24 he pointed out that he alone had lost in wages as much as the total amount
for which a settlement was being made and that he had not hired any lawyer in
this matter.25 Finally, on a date uncertain but probably in mid-December (on the
occasion, described earlier, in which Saranita told Waite he could get a copy of the
contract at the union hall), there was some discussion of the layoff grievance- Waite
said the Company had violated the contract six times, not once; Saranita asked Waite
20 To the extent that it is material herein, I find that, while so doing, Tehoke did not
actually retain physical possession of the document , on the other hand , he did not leave
while Waite was reading , and he made it clear that he was not giving up more than tem-
porary possession
21 This is the sum and substance of the matter as it unfolded prior to Waite's discharge.
Subsequent to the discharge, there were a number of related developments. (1) At a
postdischarge meeting of company and union representatives on January 6, 1964, Waite
asked a company representative for a copy of the contract so that be could study its
vacation provision ; he was given a copy by the company official, who thereafter displayed
some impatience as Waite read it (2) Shortly prior to February 20, 1964, Waite did
go to the Union's office for a copy, only to be told that all copies were locked in the office
of an out-of-town official (3) Finally, late in February 1964, through the offices of the
Bureau of Labor and Management Reports , Waite did procure a copy of the agreement
from Local 235.
23 As earlier indicated , this was one of the reasons he wanted to see a copy of the con-
tract. In point of fact, the contract contains no provisions about the selection of stewards.
za My findings as to this incident are based on Waite's credited testimony , except with
respect to his dating the conversation as having occurred in December, at the same time
as he was permitted by Tehoke to read the contract . ( See the phone booth incident,
supra.) In context , it could only have occurred prior to the union meeting at which a
settlement of the grievance was announced ; therefore, I find that it occurred on a date
between the latter part of May and mid-October or mid-November 1963
Si In this connection , I now make certain findings with respect to this meeting which
were reserved earlier herein . My reconciliation of the several versions of what happened-
and, in context , I believe that each version contained some distortions , if not misrepre-
sentations-is that the amount of money involved ($1,920 ) was announced but that
details of distribution had not been finalized ( tentatively, there was a suggestion that
there be an equal distribution among the six grievants), and that the fact that an at-
torney's fee would be involved, without further details, was also announced
25 I reject Saranita ' s conclusion , contained in his testimony , that this was not a coinplannt
by Waite ( He testified that, in his opinion, no one was "dissatisfied " at the close of the
meeting.) Indeed, I believe, and find, that the unhappiness voiced by Waite, among
others, changed the course of the meeting: but for the attitudes expressed , further details
of the settlement would have been aired at the meeting and the working papers upon
which the settlement was based would have been displayed to the grievants.
COCA-COLA BOTTLING CORPORATION 1431
if he knew more than "the lawyers" did; Waite's reply took the form of a similar
question put to Saranita ; and when Saranita answered in the negative , Waite said,
"Then you don 't belong [as] our business agent." 26
This is the substance of the General Counsel's case. I have gone to some lengths
in setting it forth, because he labored under the obvious difficulty of proving, by
circumstantial evidence, that one respondent made a request or demand upon the
other and that action was taken by the second respondent in compliance or in
capitulation therewith. Based upon my analysis of the case-before measuring the
verity and weight of the evidence against that adduced on behalf of the respondents-
I find that there is at least prima facie support for the General Counsel's propositions.
Thus, the picture of Waite which emerges from the foregoing recital is that of a
person who, both as a member of Local 235 and as an employee being represented by
the organization, displayed a degree of discontent which might serve to mark him as
a target of retributive action.27 This , combined with the timing of events herein
(note, the discharge followed Waite's last "argument" with a union representative by
no more than 2 weeks), the fact that the cause assigned for the discharge lacks
plausibility (based on the foregoing account only, it does smack of the implausible),
and, finally, the fact (if it was a fact-see infra) that Local 235 refused to process a
discharge-grievance for Waite , constitutes a foundation which, in my opinion, would
support the conclusions urged by the General Counsel.
We now turn to the defense.
In effect, I have already discounted testimony by witnesses for Respondent Union 28
that they were unaware of any basis for friction between Local 235 and Waite. I
have found, and here reaffirm, that he voiced complaints and that he was known to
union representatives to have voiced complaints with respect to internal union affairs.
On the other hand, to the extent that it may contribute to the final conclusions in
this matter, I find that ( 1) Waite's complaints were limited in nature and degree to
the instances specifically found above, and (2) his complaints with respect to the
handling of the 1962 layoff grievance appear to have been no more vociferous or
persistent than those of at least one other fellow employee.29
Union representatives who testified denied having discussed with company repre-
sentatives the differences, if any, between them and Waite, let alone having requested
or demanded that the Company discharge him. As has been indicated, the sole
basis for discrediting these denials , if there is one, is circumstantial evidence . Resolu-
tion of this problem will answer the question of whether Respondent Union has
violated the Act in the respect under discussion ; and I shall postpone such resolution
until my analysis of all the facts has been set forth.
(This much , though, needs be said at this time: ( 1) In the face of Tehoke's
denial, I do not credit Waite's testimony that, after Waite's exit interview on
December 30, Tehoke , referring to Waite's history of complaining , suggested that
28 Saranita , testifying , recalled no conversation with Waite in which his knowledge of
the layoff grievance was compared with that of an attorney . If it did occur , he said, it
was mere "bar talk ," taking place , perhaps, in the Union ' s barroom at the conclusion of
the union meeting above referred to. The findings in the text are based on Waite ' s credited
testimony.
27 Supportive of this conclusion is Waite's testimony , if credited, that, after the dis-
charge meeting of December 30, Tehoke reminded him that he had been complaining about
the method of selecting a night steward and about the handling of his layoff grievance
and suggested that if he went to Sapienza and Saranita and apologized he might get his
job back.
21Tehoke and Saranita.
29 Joseph Giordano , one of the employees involved in the 1962 layoff grievance, wrote
a letter to Local 235 shortly after his return to work for the Company in May 1963, con-
firming his claim to backpay due under Local 235 's contract with the Company , at least
three times between May and the end of the year , he asked Saranita about the progress of
of the grievance proceeding ; at the October ( or November ) union meeting , he was among
those who ( unsuccessfully ) asked to see the papers explaining the grievance settlement;
during the first week in December, he asked Shop Steward Tehoke about his backpay ; at
the meeting of January 28, 1964, between Attorney Valore and the grievants, be, along
with Waite, refused to pay any attorney ' s fee ; and, at the close of this meeting, he called
Saranita to tell him of the imposition of the fee and his refusal to pay it, in the course
of which conversation he complained that his $ 7 monthly dues were giving him no "pro-
tection" and he spurned Saranita ' s invitation to come to the union hall to discuss the,
situation with the remark "There is nothing to talk about."
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an apology to Local 235 officials might serve to get his job back; 30 and (2) as for
the asserted failure or refusal of Respondent to process a grievance over Waite's
discharge, I find it to be contrary to the fact 31)
The defense of Respondent Employer begins with its averment, and its witnesses'
testimony in support thereof, that it was unaware of any differences between Local
235 and Waite, that its representatives had never discussed any differences with
representatives of Local 235, and, finally, that Local 235 had not asked or demanded
that Waite be discharged. (Quite the contrary-the argument continues-the action
was taken over the protest of Local 235.) Although this is corroborative of certain
testimony offered by Respondent Union on which I have earlier reserved judgment,
here again a resolution of the question depends on a full analysis of the matter;
and I therefore withhold forming my conclusion in this respect 32 at this time.
But the defense on which Respondent Employer relies most heavily is that its
discharge of Waite was for cause, untinged by factors related to unions, union
requests, employee complaints, or any activity with which the Act is concerned.
The discharge, assignedly, was triggered by Waite's failure to report for work on
Saturday, December 28. The specific label attached by the Company to the basis
for the discharge is, in effect, "Insubordination-failure to report for work contrary
to instructions and without notice or good cause."
In 1963, Christmas Day fell on Wednesday, and no work was performed at the
Company's plant that day. On Friday, the 27th, under instructions from Production
Manager Leonard, his assistant, Roland May, went around notifying employees that
next day, Saturday, would be a workday. Among those he notified was William
Waite. According to Waite, he told May that he "could not make it," at which May
"looked straight at him" but turned away without comment; according to May, Waite
made no reply to the announcement except to mutter something under his breath.
In view of my ultimate disposition of this matter, I do not regard the question of
what, if anything, Waite replied to May on December 27, as the earthshaking issue
to which the parties addressed themselves so acidulously and exhaustively. To the
extent, however, that a resolution of the problem may, at some future stage of this
proceeding, be considered to be relevant, I find that, whatever Waite may have said,
he said it inaudibly-and purposely so. Accepting his own version, he was not given
a reason for not reporting, he was merely saying he could not report. Under the
circumstances prevailing,33 I do not find plausible, in the absence of some other
explanation, his expressing his intent not to report without giving a reason therefor.
I believe that he purposely sought to lay the foundation for a claim that he had been
excused from work the next day,34 a conclusion only bolstered by his testimony-
30 I was favorably impressed by Tehoke as a witness ; in my opinion , his testimony was
free of embellishment or distortion, even with respect to a number of areas in which he
must have known the testimony he was giving might run counter to his interests Waite,
in general , also appeared to be a truthful witness, but he was not convincing in some of
his testimony-for example , that surrounding the circumstances of his discharge ; and,
with respect to the item in question, I am asked to believe that (based on Waite's own
testimony) Tehoke's suggestion that an apology was in order came in the midst of a
conversation in which (1) Tehoke expressed agreement with Waite that the discharge
appeared to violate the contract, and (2) Tehoke said he would notify Saranita of the
discharge . In this direct conflict , I credit Tehoke.
31 See infra.
sa Except with respect to whether the Union went through the motions of protesting,
I find-infra-that it did.
33 Quickly to dispose of a number of questions to which the parties gave extended at-
tention, I make the following findings about Saturday work. I find (contrary to a con-
tention made by the Company) that the collective- bargaining agreement did not make
Saturday work mandatory in a week containing a holiday ; the contract only dealt with
the nature of the pay to be given therefor-"regular time" only for such work. On the
other hand, when scheduled in advance as a "bottling day," work on a Saturday was
mandatory in the following sense: an employee's presence would be expected in the absence
of good cause shown in advance , if such cause were shown, the employee would be
excused, and the problem met either by securing a replacement or, if enough employees
had good cause for not reporting, by eliminating one of the bottling lines. I find further
that, while Local 235's steward did not regard Saturday work as mandatory in any real
sense, he would not, and did not, advise any employee to follow his advice to the extent
of "bucking" the policy above described.
34 During 1963, Waite had never worked on a Saturday of a holiday week. Keeping in
mind that such work was compensated by regular , not premium , pay, I believe that Waite,
with or without good cause , did not wish to work on December 28.
COCA-COLA BOTTLING CORPORATION 1433
otherwise completely self-serving-that (1) the same afternoon he told Shop Steward
Tehoke that he had informed May that he could not come in next day because he
might have to take his daughter to a hospital (about an injured finger), and (2)
that evening he told a fellow employee that he might have to take his daughter to a
hospital the next day.
Waite did not report on Saturday. (He did not take his daughter to a hospital or-
see infra-to a doctor, and, to the extent it is material, he had no good cause for
his failure to work.) He was the only one of approximately 63 expected employees
who was absent, and his absence was noted by Leonard, who, because Waite "took
more time off" (again, see infra), was watching for him; he asked May about it,
but May, other than saying he had informed Waite of the Saturday work, could offer
no explanation. Upon inquiry, it was learned from Koch what Waite had spoken
to Koch the previous night, as earlier reported herein. Leonard called Personnel
Manager Halco's attention to Waite's absence and, the day ending with no sign of
Waite, pulled his card from the timerack, determined to get an explanation on
Monday.
The testimony as to the events of Monday, December 30, demonstrates a state of
confusion as to what took place. My findings constitute an attempt to dispel the
confusion by adopting those parts of each witness' version which ring most true,
both as respects demeanor in testifying and contextual plausibility 35
When Waite reported at 7:40 or 7:45 a.m., he found his card pulled, and he was
told by May to wait for Leonard. When the latter arrived, he asked Waite why he
was absent Saturday; Waite's answer-that on that day he had taken his daughter
(1) to a doctor to remove her stitches or (2) to a hospital.36 Leonard, making no
comment at the time, had Personnel Manager Halco call Dr. Hartman, who, accord-
ing to information received by the Company a week earlier, had treated Waite's
daughter when she was first hurt. Hartman advised Halco that he kept no Saturday
hours and had removed no stitches that day. Leonard then told Shop Steward
Tehoke (who had already been advised by Waite of the pulling of the card) that
there would be a meeting about the matter in Halco's office.
Present at the meeting were Leonard, May, Halco, Tehoke, and Waite. There was
some discussion as to whether Waite had given May advance notice of his intention
not to work Saturday: Waite insisted that he had, May insisted that he had not.
Then, Leonard raised the subject of the reason for the failure to report, and he con-
fronted Waite with the information earlier conveyed to Halco by Dr. Hartman.
Waite insisted that his daughter had visited Dr. Hartman, and Halco again called
Dr. Hartman,37 who, this time, added the information that he had, indeed, removed
the daughter's stitches on Sunday. Waite subsided into silence and Leonard announced
that he was "through."
Waite left the meeting with Tehoke (who had taken no active part). Waite said
he had believed Saturday work to be optional; Tehoke said, "So did I. I don't see
how they can fire you for an infraction of [that] work rule." He said that Waite
should report at the union hall and, meanwhile, he would notify union officials of
the occurrence38
Next day, Waite went to see Saranita at the union offices. He gave few details
of the discharge, only suggesting that Saranita communicate with Tehoke, who had
sent him there39 Saranita tried to call Halco to set up a meeting to discuss the
'-,To the extent that my findings herein constitute a rejection of Waite's version-and
they do, in relevant part-I base my resolution (in addition to factors of plausibility)
upon the fact that, in this area, Waite, as a witness, appeared nervous and evasive;
significantly, at this juncture, he conceded that he had made pretrial statements contrary
to his present testimony.
25 Because of what subsequently transpired, the difference has a surface relevance But,
whichever he actually said, Leonard believed (I find) that Waite said "doctor" not "hos-
pital." Only this can explain his subsequent actions.
az Halco testified that, to the best of his recollection, he called Dr. Hartman but once
that morning. Helco, no longer with the Company, struck me as an inherently disinter-
ested witness who, however, was quite hazy in his recollection of details.
I have earlier rejected Waite's testimony that, in this conversation, Tehoke referred
to Waite's history of complaining and suggested that he apologize to union officials.
° The findings contained thus far in this paragraph are based substantially on Waite's
testimony, as against Saranita's testimony that the visit took place on the same day as
the discharge and that, on this occasion, Waite said he had been discharged for saying
he had taken his daughter to a doctor on Saturday whereas he had actually taken her on
Sunday. To the degree it has significance , I regarded Saranita as fuzzy on details and
as inclined to over- or under -state as it suited his purposes
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharge. He was unsuccessful at that time, but subsequently a meeting was
arranged for January 6.
The meeting of January 6 was attended by Leonard, Halco, Saranita, Tehoke, and
Waite. The subject was Waite's discharge. Halco explained that Waite had been
discharged for failing to work on Saturday, December 28. Waite again pointed out
that he had informed May in advance, and he suggested that employee Mike Zavada
might have been close enough to hear him. Zavada, called in and questioned, said he
did not hear Waite say anything. Halco reminded those present of Waite's story
that he had taken his daughter to a doctor on Saturday and of Dr. Hartman's refuta-
tion. Waite asked if he had been discharged because he might have taken his daugh-
ter to a hospital; no, he was told, he was discharged for failing to work that Saturday.
In response to Saranita's query, Waite denied he had taken his daughter to a doctor,
but he avoided answering Saranita's question as to why, in fact, he did not work.
Obviously, no progress was being made, and Saranita asked that, regardless of the
circumstances , Waite be given "another chance." 40 Leonard refused-Waite, he
said, "had lied about too many things." At the close of the meeting, there was no
change in Waite's status, and when they left, Saranita told Waite he could do nothing
for him.
Whether or not, at the January 6 meeting, company representatives annotated
Leonard's remark that Waite would not be given another chance because he "had
lied about too many things," 41 it is clear, and I find, that company officials considered
Waite to have lied to them on a number of occasions in the past. The first such
incident occurred in May 1962, when, allegedly, Waite asked for time off to get a
police report on an accident in which his son was involved. Gone over 2 hours, his
story on his return "did not sound right," and Halco checked police stations in vain
for evidence that he had visited one of them 42 Thereafter, company officials sought
to check out excuses Waite gave them for taking time off There were two more such
occasions in 1962: according to some confused and confusing testimony, company
efforts to get information from the U.S. Army with respect to an alleged
statement by Waite that he needed time off because he had volunteered for Army
duty and from the Federal Bureau of Investigation when he allegedly said he needed
to visit the FBI about a forged check met with total failure.43 In late July 1963,
Waite allegedly asked for time off to take his wife to a hospital, but he failed to give
the name of the hospital; upon being questioned, Waite's brother-in-law, also a
company employee, told a company official there was nothing wrong with Mrs.
Waite.44 It was the Company's position, as supported by Leonard's testimony, that,
on one or more of these occasions, Waite had been confronted with the accusation
that he had lied, union agents had been notified, and reprimands had issued.45
Whether or not, on the information available, the Company was warranted in
attributing to Waite a record of lying in order to get time off, it is clear that it did
40 At one point, Waite borrowed a copy of the contract from Halco to ascertain his rights
to vacation pay. Upon reading the contract, he asked, "How about reprimands?" (Article
11(a) of the contract provided for the immediate dismissal of any employee for five named
causes, including insubordination, while article 11(c) provided, inter aiia, that, for minor
infractions , an employee receives a reprimand on the first occasion , a 3-day layoff in the
second, and a grievable discharge on the third.)
41 And only Saranita, of those present, testified that they had.
42 Waite's explanation-given at this hearing-was that his son had been struck by
an automobile emerging from a garage and that he asked permission to investigate, his
only reference to the police being that , if he got no satisfaction , he would go to the
police ; having ascertained that the garage owner would pay all damages , he had no
occasion to go to the police
4s Waite did not testify as to these Incidents.
44 Waite's explanation at this hearing , his wife had been operated upon in 1961 but
not afterwards "as I recall" ; he may have been away from work In July 1963 but not
to take her to a hospital-and he had not given this as an excuse For what It may be
worth, I find that company officials did check with the brother-in-law and-contrary to
his testimony ; I regarded him as a loquacious , evasive witness who prefaced most of his
testimony with "to the best of my knowledge " or Its equivalent-he did verify that, as
far as he knew, nothing was wrong with his sister -in-law.
45 On one or more of these occasions , union agents had suggested that Waite be given
a disciplinary layoff ! Leonard, however, had not acted on the suggestion, because he was
not sure of a replacement and because he did not want to deprive Waite's family of the
wages which would be lost
COCA-COLA BOTTLING CORPORATION 1435,
make such attribution. And now came the incident of December 28, 1963. Justly
or unjustly, I find that Waite was discharged for the reason assigned by the Company,.
as the culmination of the series of "causes" just described46
It follows, and I find, that the discharge was not effectuated at the behest of
Local 235. Moreover, I now find, on all the circumstances, that Local 235 made
no such request or demand 47
In summary, I find that the General Counsel has failed to prove by a preponder-
ance of the evidence that Respondent Union caused or attempted to cause the Com-
pany to discharge Waite because of his complaints about internal operations of the
Union and its handling of his layoff grievance, because of his demands for a copy of
the current collective-bargaining contract, or for any other reason, and that he has
likewise failed to prove that Respondent Employer discharged Waite pursuant to
any union request or demand or for any other reason connected with unions or
concerted activities.
C. The refusal to handle Waite's grievance
The complaint alleged, as coercion upon and restraint of employees in their exer-
cise of a self-organizational rights, the refusal by Respondent Union to accept, file,
or process a grievance for Waite covering his discharge of December 30, 1963, for
the same reasons ( see opening paragraph of the preceding subsection of this Decision)
as had prompted it to seek his discharge.48 Respondent Union, joining the issue,
takes the position it did in fact press a grievance based on Waite's discharge and
that, unsuccessful in the early stages thereof, it decided not to go to arbitration in
view of the weakness of the case on its merits, and for no other reason.
In my findings covering the conversation between Tehoke and Waite which took
place immediately after the discharge meeting of December 30, I omitted, and I here
specifically discredit, Waite's statement, offered at a late stage of his testimony, that,
in this conversation, he asked for and was denied a grievance slip. I have found,
instead, that Tehoke referred him to the union office and himself notified Local 235
(through Saranita) of Waite's discharge. Thereafter, as I have found, Saranita set
up a meeting to discuss the discharge with company representatives. At the meeting,
held on January 6, there was an airing of the merits of the company action; as has
been found, Saranita unsuccessfully sought reinstatement for Waite; and, at the close
of the meeting, Saranita told Waite (outside the presence of company representatives)
that there was nothing more he could do for Waite.49 I find further that, when
Waite visited the union hall on January 7, 1964, no mention was made of grievance
action, either on a new or renewed basis; 50 and that, when Waite-perhaps a month
later-did ask for action, either in the form of pressing a grievance or of going to
arbitration, Saranita, in effect, refused the request, saying, "What chance do we
have when we didn't have a chance at the office ... with your own witness?"
The grievance provision of the current collective-bargaining agreement does not
call for the reduction of an employee' s grievance to writing, and in the dealings
between Respondent Union and Respondent Company, written grievances were the
exception rather than the rule. "Gripes" were handled directly by Local 235's
business agent or his assistant , each of whom devoted almost his full time to the
activity. The procedures employed were loose and flexible and, even after a
grievance discussion was concluded, no written record was made.
"I credit the testimony of company witnesses to the effect that, had Waite been able
to present good cause for his Saturday absence, he would not have been discharged
47 The General Counsel, in his brief, cites Emmadine Farms, Inc, 138 NLRB 1098, as
authority for a finding of a request or demand by the Union for Waite's discharge. The
facts there, superficially similar to the ones at hand, led clearly to the conclusion that a
request had been made; also, it should be noted, the reason for discharge assigned by
the employer there was clearly pretextual I regard the case as inapplicable.
41 Because he sees this as restraint and coercion , the General Counsel ' s conclusion is
that it violates Section 8(b) (1) (A). He does not allege that there is a refusal to represent
fairly, amounting to a violation of Section 8 (b) (3) ; cf. Independent Metal Workers Union,
Local No. 1 (Hughes Tool Company), 147 NLRB 1573.
191 do not credit Waite's testimony that, at this time, he again asked for a grievance
slip and that Tehoke, after exchanging looks with Saranita, said he had none
n Waite went there to pay his January dues, but Saranita said that unemployed mem-
bers need not pay dues (This opened up a new line of inquiry, on the basis of which I
find that Waite had paid, and Saranita had accepted, Waite's dues for the months of his
layoff in early 1963 )
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under the circumstances, I find that, solicited or no, Local 235 did grieve over
Waite's discharge. The meeting of January 6, in my opinion, constituted a protest
over, and an attempt to secure reconsideration of, the personnel action. It is not
for me to measure the vigor expended or the ingenuity displayed in pressing the
matter, except to the degree-and this does not appear here-that the circumstances
might brand the Union's action to be a sham to cover inaction.51 Nor is it significant
that Local 235's efforts were not crowned with success; obviously (absent sham
action) success or failure in a grievance proceeding depends, mainly, on the merits
of the matter and, secondly, on the tactics employed by the litigants.
With respect to Local 235's refusal to take the case to arbitration, I am unable to
infer that it had any motivation other than that which it asserted-the grievance's
lack of merit.52
I conclude that the General Counsel has not proved, by a preponderance of the
evidence, that Respondent Union refused to accept, file, or process a grievance for
Waite concerning his discharge of December 30, 1963, either for the reasons alleged
or for any other reasons.53
D. The imposition of the attorney's fee
The complaint alleged that the attempt of Valore, as agent for Local 235, to
collect as a fee from the grievants one-third of the amount secured in the 1962
layoff grievance proceeding described earlier herein constitutes coercion and restraint
by Respondent Union upon employees in the exercise of rights guaranteed them
under Section 7 of the Act. At the hearing (and in his brief), the General Counsel
argued that the applicable collective-bargaining agreement called for the Union, not
individual employees, to process grievances; that, moreover, in this instance, the dis-
position of the grievance resulted in a contract change-i.e., a benefit to the Union
as a whole-in addition to individual backpay awards, and that under the circum-
stances, the levying of costs of processing the grievances was "unfair, arbitrary,
and invidious."
The response of the Union to this aspect of the complaint in effect took a number
of different forms: (1) the imposition of the fee had nothing to do with and did not
affect the grievants' employment; (2) alternatively, Valore, in his capacity as a
member of the board of arbitration, was acting as attorney for the grievants as well
as for Local 235 and, therefore, he had the right to charge them for services rendered
them; and (3), finally (in the nature of an affirmative plea), at any rate, the charge
for the fee upon the grievants had been dropped prior to the institution of this
proceeding.
In reply to the third point, the General Counsel called attention, in his brief, to
the fact that the "withdrawal" of the claim for fees was not in fact a withdrawal; 54
that, as of the date of the hearing, no bill had been submitted to Valore to the
Union and the fee had not been paid by the Union; and that, even assuming a with-
drawal of the demand, a violation of the Act still existed.
In connection with Local 235's contention that the imposition of an attorney's fee
had nothing to do with and did not affect the grievants' employment, I asked the
parties, in their briefs, to comment on the applicability of the Wisconsin Motor
decision,55 wherein the Board held, in effect, that internal union disciplines were not
among the restraints intended to be encompassed by Section 8 (b) (1) (A) of the Act
and that, even if they were, the proviso to that section would serve to insulate, from
m A union's duty, in this respect, is "to exercise fairly the power enforced upon it in
behalf of those from whom it acts, without hostile discrimination against them " Steel v.
Louisville d N.R Co., 323 U S. 192, 203. Ford Motor Co. v. Huffman, 345 U.S. 330, 337.
11 "A union's right to screen grievances and to press only those it concludes should be
pressed is a valuable right, and on balance it benefits all employees." Ostrofsky v. United
Steelworkers of America, 171 F. Supp. 782, 790, quoted in Black-Clawson Co , Inc. v. In-
ternational Association of Machinists, 313 F. 2d 179.
ca Thus, it becomes unnecessary to discuss whether a union's failure to handle a
grievance constitutes coercion or restraint upon an employee in his exercise of section 7
rights. The General Counsel, on this proposition, cites Emmadine Farris, supra; but I
note that, at footnote 2 thereof, the Board specifically found it unnecessary to reach the
question.
54 This, despite a record concession by the General Counsel that Valore "withdrew his
demand after objections."
w Local 283 , United Automobile, Aircraft and Agricultural Implement Workers of
America, UAW, AFL-CIO (Wisconsin Motor Corporation), 145 NLRB 1097.
COCA-COLA BOTTLING CORPORATION 1437
the reach of the section, a union's imposition of a fine for a member's breach of a
union rule, on the ground that this type of action was encompassed within the mean-
ing of the term "rules with respect to the acquisition of retention of membership."
Having given the matter full consideration, I find Wisconsin Motor to be inapplicable
to the instant case, but not for the reasons urged by the General Counsel.56 I find that
the imposition of a fee upon individual union members for services rendered to them
is not within the area of internal union discipline as contemplated by Wisconsin
Motor. Moreover, in the instant case, I find that employment was affected; the fee,
if paid, would come out of back wages.57 Assuming the presence of all other ele-
ments of an 8(b) (1) (A) violation, the proviso to the section would not provide any
protection; I do not perceive that the imposition of a charge for services rendered
(other than initiation fees and dues) falls among "rules with respect to the acquisi-
tion or retention of membership."
Nevertheless, under the facts of the instant case, I am not persuaded that the
Union has coerced or restrained employees in their exercise of rights guaranteed by
Section 7 of the Act.58 It is clear, and I find, that the Union, through its agent
Valore,59 sought to change a fee for services in connection with the handling of a
grievance. But, in the absence of any contention or proof that the charge was being
discriminatorily assessed as between employees represented by Local 235 66 or that
the amount of the fee being charged was so unconscionably high as to create sus-
picions that it amounted to something more than compensation for services ren-
dered,61 and where the fee-charge was withdrawn prior to the filing of the instant
unfair labor practice charge,62 I find no coercion upon or restraint of employees in
their exercise of self-organizational rights.63
66
For example, he found the case distinguishable because there, unlike here, union
membership was a matter of choice among employees (Here, the contract contains a
union-security clause. ) However , he overlooks the fact that the principle of Wisconsin
Motor was followed in Local 248, United Automobile, Aerospace and Agiocultural Im-
plement Workers of America, AFL-CIO (Allis-Chalmers Manufacturing Company), 149
NLRB 67, wherein union membership was compulsory.
67 In his brief, counsel for Respondent Union characterized the backpay as "additional
paid vacations."
63 While the General Counsel 's theory has not been fully explicated , I deem his con-
tention to be that the Section 7 rights involved are the right to grieve and the right to be
fully represented In a grievance by a bargaining agent; and that the imposition of an
extra fee inhibits employees in their resort to either right.
69I have no difficulty in concluding that Valore, in all of his acts surrounding the
handling of the 1962 layoff grievance , was acting as Local 235's agent. But , in view of
my disposition of the matter-infra-I find it unnecessary to determine whether, as
urged by Respondent Union, there was an attorney-client relationship between Valore and
the grievants or whether , under any theory, he might have been able to support a cause
of action against them for services rendered.
60 Cf. Hughes Tool Company, 104 NLRB 318.
611 do not regard as meaningful the General Counsel's argument that Valore's efforts
benefited not only the grievants but also the Union, in that they resulted in a contract
change. Aside from the fact that a limitation on its contractual rights-and that Is
what the change amounted to-is hardly of benefit to the Union, I note that the successful
prosecution of a given grievance normally carries with it at least potential benefits to the
unit as a whole and to the union which is its agent.
62I do not adopt Respondent Union 's argument that this "moots" the matter and, of
itself, calls for a dismissal of the pertinent allegation of the complaint ; I believe that-
all other elements of a violation being present-the withdrawal of the fee -charge would
furnish no assurance against a recurrence . On the other hand, I do not agree with the
the General Counsel that the withdrawal was so "ambiguous" as to be ignored; the rea-
sonable interpretation of Valore 's letter of April 30, 1964 , is that, in view of Local 235's
agreement to pay the fee, he was dropping all claims against the grievants. (The fact
that , as of the date of the hearing , the fee had not yet been paid, has no significance.
Saranita , as a witness , acknowledged the indebtedness and said it would be paid when a
bill was rendered.)
63 In the context of this case , I perceive no necessity to engage in a philosophical dis-
cussion as to whether a labor organization , faced with expenses ( including those incurred
In pressing grievances ), must meet them out of its general treasury even if It means an
increase in dues or may Impose costs on individuals commensurate with work done or
benefits achieved for them. As I must, I base my conclusions on the facts of this
case alone.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing factual findings and conclusions , I come to the following:
CONCLUSIONS OF LAW
1. Respondent Employer is an employer engaged in commerce within the meaning
of Section 2(6) and ( 7) of the Act.
2. Respondent Union is a labor organization within the meaning of Section 2(5)
of the Act.
3. Neither Respondent Employer nor Respondent Union has engaged in or is
engaging in any unfair labor practices as alleged in the consolidated complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, I recom-
mend that the consolidated complaint be dismissed in its entirety.
Eugene Simpson & Brother, Inc. and Laborers' District Council
of Washington, D.C., and Vicinity, affiliated with the Interna-
tional Hod Carriers ', Building and Common Laborers' Union
of America , AFL-CIO. Case No. 5-CA-3035. July 14, 1965
DECISION AND ORDER
On May 10, 1965, Trial Examiner William J. Brown issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in certain unfair labor practices within the meaning of the
National Labor Relations Act and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, as amended,
the National Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel [Chairman McCulloch
and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and the entire record
in this case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders that
the Respondent, Eugene Simpson & Brother, Inc., its officers, agents,
successors, and assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
1 See O.S. Van and Storage , Ine., 127 NLRB 1537, 1539, enfd. 297 F . 2d 74 ( C.A. 5).
153 NLRB No. 127.