Douglas Aircraft

National Labor Relations Board - Board Decisions

May 15, 1992

307 N.L.R.B. 536 (N.L.R.B. 1992)

536
307 NLRB No. 95
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
2 The judge found that evidence concerning employee Wilbert
Sonnier’s verbal reminder and last chance agreement cannot be con-
sidered as background evidence because those events occurred out-
side the 6-month limitations period under Sec. 10(b) of the Act. We
disagree. While an unfair labor practice may not be found based on
evidence relating to events that occurred outside the 6-month limita-
tions period, such evidence may be used as background evidence
throwing light on unlawful conduct that allegedly occurred within
the limitations period. Storer Communications, 295 NLRB 72 fn. 3
(1989), petition for review denied sub nom. Stage Employees IATSE
Local 666 v. NLRB, 904 F.2d 47 (D.C. Cir. 1990). Therefore, we
find that evidence concerning Sonnier’s verbal reminder and last
chance agreement may be considered to determine whether the Re-
spondent Employer harbored any hostility towards Sonnier for en-
gaging in protected activity, and whether Sonnier’s termination was
motivated by that hostility. Upon consideration of this evidence,
however, we find, in agreement with the judge, that neither the
verbal reminder nor the last chance agreement demonstrates hostility
towards Sonnier for engaging in protected activity.
We correct the following inadvertent error of the judge, which
does not affect his conclusions. In sec. III,B,4, par. 20, of his deci-
sion, the judge inadvertently stated that on August 24, 1989, Human
Resources Branch Manager Rick Shultheiss asked Sonnier to explain
his version of the events that occurred the morning of August 12,
rather than the events that occurred the morning of August 21.
1 To the extent they were not opposed, the motions to correct tran-
script are granted. While there is opposition to 12 proposed correc-
tions, on the ground that they were substantive in nature, a review
of the record, the proposed corrections and my notes indicate that
the proposed corrections more accurately reflect the testimony that
was given and, accordingly, I grant the motion to make those pro-
posed corrections.
Douglas Aircraft Company, a component of
McDonnell Douglas Corporation and Wilbert
David Sonnier
United Automobile, Aerospace and Agricultural Im-
plement Workers of America, UAW, Local
Union No. 148 and Wilbert David Sonnier
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica, UAW and Wilbert David Sonnier Cases
21–CA–27267, 21–CB–10718, 21–CB–10782, and
21–CB–10721
May 15, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 18, 1991, Administrative Law Judge
William J. Pannier III issued the attached decision. The
General Counsel filed exceptions and a supporting
brief. The Respondents, Douglas Aircraft Company,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW, Local Union No.
148, and International Union, United Automobile
Aerospace and Agricultural Implement Workers of
America, UAW, each filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions1 and briefs and has
decided to affirm the judge’s rulings, findings,2 and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Neil A. Warheit, for the General Counsel.
Catherine H. Helm and Jack P. Lipton (Irell & Manella), of
Los Angeles, California, for Respondent Employer.
Robert A. Bush (Taylor, Roth, Bush & Geffner), of Los An-
geles, California, for Respondent Local.
Robert M. Dohrmann (Schwartz, Steinsapir, Dohrmann &
Sommers), of Los Angeles, California, for Respondent
International.
Wilbert Sonnier, of Inglewood, California, pro se.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Los Angeles, California, on October 25
and 26, 1990, and on January 7 through 10, 1991, based on
a second order consolidating cases, amended consolidated
complaint, and notice of hearing issued by the Regional Di-
rector for Region 21 of the National Labor Relations Board
(the Board), on May 15, 1990. That complaint is based on
four unfair labor practice charges—in Case 21–CA–27267,
filed on January 3, 1990; in Case 21–CB–10718, filed on
January 3, 1990, and amended on March 13, 1990; in Case
21–CB–10721, filed on January 4, 1990, and amended on
February 28, 1990; and, in Case 21–CB–10782, filed on
March 27, 1990—and alleges violations of Section 8(a)(1)
and (3) and Section 8(b)(1)(A) of the National Labor Rela-
tions Act (the Act). All parties have been afforded full op-
portunity to appear, to introduce evidence, to examine and
cross-examine witnesses, and to file briefs. Based on the en-
tire record,1 on the briefs that were filed, and on my observa-
tion of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Douglas Aircraft Company, a com-
ponent of McDonnell Douglas Corporation (Respondent Em-
ployer), has been a Maryland corporation engaged in the
manufacture of aircraft and related products at various loca-
tions in the United States, including at a facility located at
3855 Lakewood Boulevard in Long Beach, California, where
the alleged unfair labor practices had their genesis. In the
537DOUGLAS AIRCRAFT CO.
2 Unless stated otherwise, all dates occurred in 1989.
normal course and conduct of those business operations, Re-
spondent Employer annually sells and ships goods and prod-
ucts valued in excess of $50,000 directly to customers lo-
cated outside the State of California. Therefore, I conclude
that at all times material, Respondent Employer has been an
employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
At all times material, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW, Local
Union No. 148 (Respondent Local), and International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America, UAW (Respondent International, and
collectively Respondent Unions), have each been a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Issues
This case is more complex than the pleadings might sug-
gest. It involves a number of incidents underlying most of
the complaint’s allegations. There are a number of contradic-
tions among witnesses regarding what occurred in most of
those instances. Nevertheless, a sufficient number of undis-
puted facts exists to construct an overall framework within
which conflicting evidence can be presented and analyzed in
succeeding sections pertaining to various incidents on which
the complaint’s allegations are based.
At all times material, Respondent Employer had been
party to a collective-bargaining contract with Respondent
International ‘‘acting through its Locals No. 73, 148, 1093
and 1482’’ as the representative of employees employed in
classifications enumerated in that contract. Wilbert Sonnier
became one of those represented employees in May of 1985,
when he was hired by Respondent Employer as an aircraft
instruction service or structural mechanic. He worked con-
tinuously for Respondent Employer until August 25, 1989,2
when he was fired.
In late 1987 or early 1988, acting with the approval of Re-
spondent Local, Respondent Employer modified its em-
ployee-involvement program, introducing what is referred to
as a TEAM concept in Department 509. Application of that
program was then expanded gradually to other departments
and areas during ensuing months. TEAM’s significance in
this proceeding arises particularly from its designation of cer-
tain unit employees as facilitators, persons who serve, in ef-
fect, as leadpersons or mentors for other employees.
In August of 1988, Sonnier was elected steward for De-
partment 509. Three months later Respondent Employer pre-
pared a list of Department 509 structural mechanics whose
skills might be improved through additional training. Em-
ployees whose names appeared on that list were ones who
could be temporarily reassigned to a job training program
without impairing operations in Department 509. Once pre-
pared, that list was entitled ‘‘509 EXPENDABLES.’’
Shortly after its preparation, a copy of the expendables list
came into Sonnier’s possession. From its title he presumed
that it was a layoff list. He undertook an investigation to
confirm that presumption, speaking with supervisors and em-
ployees, including some whose names appeared on the list.
Not surprisingly, that investigation generated a certain
amount of apprehension among the employees in Department
509, especially among those whose names appeared on the
expendables list.
When Respondent Employer and Respondent Local
learned of Sonnier’s activity, they conducted a meeting with
him to ascertain from what source he had received the list,
as well as to clarify its purpose. Despite that explanation,
Sonnier filed grievances on behalf of some of the
expendables. In the end, Respondent Employer’s officials
apologized for the confusion and explained the true purpose
of the list to the employees. However, on Sunday, December
18, 1988, the Los Angeles Times published an article con-
cerning it. In that article, Sonnier was quoted as character-
izing the list as ‘‘a hit list’’ and, further, as asserting that the
list ‘‘could not have been compiled without the help of
facilitators, who are union members’’ and an integral compo-
nent of a program intended to ‘‘weaken the union and get
everybody fighting.’’ Also quoted in the article was then
president of Respondent Local, Douglas L. Griffith. He ac-
cused Sonnier of being antiunion by trying to resurrect old
internal disputes within Respondent Local and by ‘‘under-
mining the union’s new ‘cooperative approach’ to labor-man-
agement relations.’’
A verbal reminder was issued to Sonnier on December 12,
1988, as a result of an earlier verbal confrontation on the
floor of Department 509 between Sonnier and then Bar-
gaining Committee Co-Chairman Ned Scott, who was also
employed by Respondent Employer. The General Counsel ar-
gues that the verbal reminder had been motivated by the
expendables list incident. The circumstances leading to
issuance of the verbal reminder, as well as its effect on the
allegations in this proceeding, are discussed in subsection
III,B,l, infra.
Within Respondent Local there has been a practice of em-
ployees forming caucuses, similar to political parties. Each
caucus submits a slate of candidates whenever there are elec-
tions for officers of Respondent Local. During the period
material to this proceeding, the two largest caucuses were
PUSH and New Horizons. The officers of Respondent Local
during 1989 were members of the New Horizons caucus.
As 1988 progressed to conclusion, Sonnier’s expendables
list experience, and his opposition to unit employees serving
as facilitators, led him to form a caucus to serve as a base
of opposition to TEAM. He denominated that caucus ‘‘Union
Power’’ (UP), because, as he explained in a leaflet, ‘‘Power
is what the Union was built on, by the membership.’’ So far
as the evidence shows, none of Respondents became aware
of these activities during 1988. So far as the record discloses,
their first awareness of UP did not occur until its first leaflet
was distributed at the gates of Respondent Employer’s Long
Beach facility on January 10.
Thereafter, leaflets or fliers, almost all of which were
signed only by Sonnier, were periodically distributed at those
gates. Their messages regularly opposed any form of em-
ployee involvement program: ‘‘The Team Concept asks
workers to cooperate with management, but cooperation with
management, ever so subtly turns into competition with
one[’]s fellow workers.’’ They also criticized Respondent
Employer and its officials with accusations such as ‘‘attempt-
538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ing to undermine the unity and solidarity of the workers on
the plant floor.’’
The leaflet’s most strident criticism was reserved for Re-
spondent Unions and their officials because of their coopera-
tion in those programs. For example, the initial leaflet pro-
tested that they
[p]raise the company man, Jim Worsham. Our own
Union President says that we owe him a tremendous
vote of thanks for saving our jobs. . . . If we owe a
man like this a tremendous vote of thanks, then we owe
people like the Ayatollah Khommeni, Mr. Kaddafi and
Adolph Hitler also, for their contributions to the suf-
fering in the free world.
Now that Japan has come along, we fight for them
in the form of the Japanese style team concept, forget-
ting being ‘‘Americans.’’ We, as Americans, built
Japan before and after the war, now they teach Ameri-
cans. I plead, as an American that we stick together for
all our Union rights not just Japan[’]s rights to buy out
our country.
Similar refrains were voiced in succeeding leaflets, distrib-
uted on approximately February 14, March 14, May 23, and
July 4 and 11, with the final one before Sonnier’s termi-
nation being distributed on August 15:
UP is the only group in the plant that is 100% commit-
ted to the work force, therefore we are the only group
100% against TQMS. Don’t let both the company and
our company controlled Union brain wash and mislead
you out of a job when they invite you to meetings,
lunches, or their various other brain washing tactics.
The reference to TQMS should not pass unnoticed. It is
an acronym for a concept intended to improve operations by,
to the extent relevant here, restructuring from functional units
to organizational structural programs, thereby aiming for
greater work group autonomy so that lower supervisors
would be relieved of day-to-day activity involvement and
could, instead, concentrate more on ‘‘upstream problems.’’
The bottom line for TQMS would be reduction in the num-
ber of management levels and of the number of managers
populating them.
However, Respondent Employer did not introduce TQMS
until a manager’s meeting on February 13. As will be seen,
that date is significant in evaluating the testimony concerning
one of a number of comments purportedly made to Sonnier
by Respondent Employer’s officials with regard to his oppo-
sition to employee involvement programs. The testimony
concerning those asserted comments—ones on which the
General Counsel relies heavily to establish hostility toward
Sonnier for his concededly protected opposition to TEAM
and TQMS, as well as to establish the allegedly unlawful
motivation for Sonnier’s termination—is described in sub-
section III,B,2, infra.
As described in greater detail in subsection III,B,3, infra,
on March 30 Sonnier was suspended pending investigation
for insubordinately refusing to follow the direction of his im-
mediate supervisor: Department 509, Building 13 Section
Manager Sita Atafua. At a subsequent meeting with rep-
resentatives of Respondent Employer and Respondent Local,
Sonnier was told he would be allowed to return to work only
if he signed a ‘‘Last and Final Chance Agreement,’’ which
provided in pertinent part:
Mr. Sonnier agrees that he did fail to comply with
management’s request for him to report to his Super-
visor at the commencement of his regular shift and that
such conduct was insubordinate. As such, Mr. Sonnier
agrees that [Respondent Employer] could terminate him
for the aforementioned conduct and that such terminal
action would be for just cause. [Respondent Employer]
however has heard the petition made on Mr. Sonnier’s
behalf from his immediate Supervisor and his Union,
[Respondent Local]. Therefore, in lieu of discharge,
[Respondent Employer] offers this agreement under the
following terms and conditions.
The agreement then specifies six conditions under which
Sonnier could continue employment with Respondent Em-
ployer:
1. Mr. Sonnier agrees that he will promote an amica-
ble relationship between the parties.
2. Mr. Sonnier will be required for the next 180 cal-
endar days commencing 03–24–89 to have a signed
Union Activity Pass prior to conducting union business.
AT [sic] the completion of the aforementioned 180 cal-
endar days, management will review and determine
whether Mr. Sonnier needs to continue on the Union
Activity Pass procedure.
3. Mr. Sonnier will report to his immediate Super-
visor at the commencement of his regular shift. Mr.
Sonnier will be allowed to conduct union business that
he may have provided he is on an approved Union ac-
tivity Pass.
4. The period of time between 03–30–89 to 04–24–
89 will be considered as a Disciplinary Layoff for Un-
satisfactory Conduct. (No backpay is involved.)
5. Mr. Sonnier understands and agrees that should he
elect to violate Company Rule(s) in the future, he will
be subjected to immediate termination.
6. Finally, Mr. Sonnier and his Union, [Respondent
Local], understand and agree that the agreement rep-
resents Mr. Sonnier’s last and final chance for employ-
ment with [Respondent Employer].
Sonnier signed the agreement, although, as the price for
doing so, he attempted to have officials of Respondent Em-
ployer and Respondent Local sign a document that he had
prepared before their meeting. However, save for one alter-
nate steward, all of those officials refused to do so.
In essence, a union activity pass is a permit that allows
an employee who is a union official to leave his/her assigned
work location to conduct union business in some other area
of Respondent Employer’s Long Beach facility. The pass,
itself, is a printed form with designated spaces for writing in
the name and work location of the employee-official, the per-
son in another area to be contacted, signatures of the em-
ployee-official’s immediate supervisor and time of day that
the employee-official was signed out and back into his nor-
mal work area, and signatures of the contacted supervisor or
personnel representative and times that the employee-official
was signed into and out of the location to which that official
539DOUGLAS AIRCRAFT CO.
3 The union activity pass differs from an employee activity pass,
which is used whenever an employee who is not a union official
needs to leave his/her normal work area. However, the procedure
followed for both passes appears to be identical.
4 Schultheiss testified that, ‘‘I like to get statement[s] from people
so that I don’t interpret what they are telling me. They write their
own statements.’’ There is no evidence that in doing so, Schultheiss
proceeded any differently regarding Sonnier than he had done in
conducting other investigations of employee infractions.
went from his/her normal work location. Thus, before leav-
ing his/her work area, the employee-official obtains the sig-
nature of his/her immediate supervisor, who also writes the
time of signing on the pass. Upon arriving at the designated
location, the supervisor for that area signs the pass and, also,
writes down the time of doing so. When the employee-offi-
cial’s business is completed, the latter supervisor again signs
the pass and writes in the time of the official’s departure,
after which, upon arriving at his/her normal work location,
the official’s own supervisor collects the pass, signs it and
writes in the time of doing so, and then files the pass.3
Following Sonnier’s return to work, there were periodic
reports to human resources personnel that Sonnier had been
observed in areas other than those for which he had secured
union activity passes. However, those reports were never
verified. Thus, Sonnier continued to author and distribute UP
leaflets, and continued to work and act as steward, without
further incident, so far as the evidence shows, until August
21.
As discussed further in subsection III,B,4, infra, on that
day a sequence of events began to unfold that would lead to
his termination 4 days later. Here it need only be noted that
at 6:30 a.m. on August 21, Atafua signed a union activity
pass that permitted Sonnier to contact Tool Liaison Coordi-
nator Robert Rivera, an employee who then worked in a dif-
ferent section of Building 13, a large structure in which
Sonnier’s own work area was located. Sonnier was signed in
by Rivera’s immediate supervisor, Rick Cohen, at 6:35 a.m.
and would not be signed out by Cohen until 10:10 a.m.
Thus, from the face of the pass one would assume that
Sonnier had been conferring with Rivera in Building 13 for
3 hours and 35 minutes that morning. But, by Sonnier’s own
admission, that assumption would be incorrect. That is,
Sonnier and Rivera did not remain together for the entire
time between 6:35 and 10:10 a.m. on August 21. For, Rivera
had been summoned for an emergency job and had spent ap-
proximately an hour away from Sonnier that morning.
At some point between 9:40 and 9:50 a.m. on August 21,
then-Department 509, MD-80 Program Human Resources
Branch Manager Rick Schultheiss received a telephone call
from Mark John Curtin, who reported that he had just seen
Sonnier between Buildings 2 and 12. For approximately 6
months, until some date before August 21, Curtin had been
a human resources administrator for the MD-80 program in
Building 13, an admittedly supervisory position. It is undis-
puted that the above-described union activity pass that
Sonnier possessed to confer with Rivera did not allow him
to be in the location where Curtin had placed him during the
call to Schultheiss. Further, it also is not disputed that had
Sonnier, in fact, been at that location between 6:30 and 10:10
a.m. on August 21, it would have constituted a violation of
Respondent Employer’s rules and, in turn, of the last and
final chance agreement.
After Curtin’s call, Schultheiss ultimately went to
Sonnier’s normal work area, but Sonnier had returned to that
area by the time that Schultheiss arrived there. Nevertheless,
in light of Curtin’s report and of the restrictions of the last
and final chance agreement, Schultheiss initiated an inves-
tigation of Sonnier’s movements that morning. In the course
of that investigation, he obtained Sonnier’s union activity
passes for August 21 and, also, written statements from
Curtin, describing his observation, and from Cohen.4 To the
extent pertinent here, the latter’s statement recites: ‘‘I have
no knowledge of Mr. Rivera or Will [sic] Sonnier Leaving
the Department area, nor did I give Mr. Sonnier or Bob Ri-
vera permission to leave the dept. area.’’ In the first para-
graph of his statement, Curtin recites: ‘‘On Monday 8/21/89
at approximately 9:45 am, I observed Wil Sonnier standing
between building 12 and building 2. Wil was conversing
with another employee near building 12. I was sitting at the
bus stop waiting for the in-plant shuttle.’’
Based on this information, Schultheiss convened a meeting
on August 24 with Sonnier and representatives of Respond-
ent Local during which Sonnier was suspended pending fur-
ther investigation of his whereabouts during the morning of
August 21. Following that meeting, further investigation was
conducted. Schultheiss obtained a worklog showing that Ri-
vera had taken the emergency job on August 21 at 8:40 a.m.
Cohen submitted to Schultheiss a written statement from Ri-
vera who wrote: ‘‘I WAS ON CALL ON DATE 8/21 AT
8:40 A.M.’’ It is not disputed that, under the pass procedure,
when Rivera had returned to work, Sonnier should have re-
turned to his own work area and returned with a new pass
to that of Rivera only after the latter had again become avail-
able for consultation. As a result, the investigation disclosed
a second infraction of company rules.
On the basis of the information he had collected,
Schultheiss concluded that Sonnier should be discharged. He
made that recommendation to his own immediate supervisor,
Ronald Berger, general manager of human resources for MD-
80 program. Berger concurred. Thus, on August 25
Schultheiss convened a meeting with Sonnier, attended also
by bargaining committee Co-Chairman Scott and alternate
steward Nick Gallegos. During that meeting, Sonnier was no-
tified that he was being discharged. The reason listed on his
employee status change notice is ‘‘UNSATISFACTORY
CONDUCT.’’ The General Counsel alleges that the true mo-
tive for the discharge had been Sonnier’s union and/or pro-
tected activity.
On the day of his discharge Sonnier filed a grievance,
claiming ‘‘I WAS UNJUSTLY TERMINATED BY THE
COMPANY.’’ Attached to that grievance was a factsheet on
which Sonnier wrote his reason for filing the grievance:
This is a Grievance because the Company has har-
assed me because of my Union activities. They unjustly
suspended me on Mar. 30, 1989 and demanded that I
sign an untrue agreement to get my job back. That
agreement was protested at that time, but the Company
and my Union Representative Refused to sign my pro-
test. The Company also put me on Union Activity
Passes When in fact no other stewards are Required to
use Union Activity Passes. Since Then I have been con-
stantly harassed and intimidated by the Company. That
540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
day in question of my termination I was on a Union
Activity Pass with a grievant. A Human Resources Ad-
ministrator alleges that he saw me out of my AREA
when in fact I Never Left my AREA.
In addition to his own statement, Sonnier also appended to
the grievance a statement that he had obtained that same day
from Rivera. In pertinent part, Rivera had written:
It all started with a letter. . . . I showed Will
Sonnier the letter. So he called Frederica the Lady in
H.R. [W]e went to see her but I can’t tell you about
time cause I don’t know but we were there until after
Break. Then we were going back to our area and Will
went to the Rest Room[.] I Went to see Rick Cohen as
we have a line stopper[.] I logged in the logg [sic]
book, and left there for Bldg 16 . . . and Proceeded to
go to bldg 2. . . . I came back upstairs to my area, and
Will was filling some Papers there. [W]e Discussed
Somemore things about the case . . . then we went up-
stairs to talk to Rick Cohen. [H]e signed the . . . Pass
Will had. . . .
Under the collective-bargaining contract, type I grievances,
which encompass discharge ones, move immediately into
step 3 of the grievance procedure, referred to as the type I
hearing. At that level, evidence or witnesses may be pre-
sented and Respondent Employer is obliged to supply a writ-
ten decision afterward. If the grievance is not resolved by
that decision, a bargaining committeeperson and a representa-
tive of Respondent Employer meet to prepare a joint state-
ment of facts, essentially similar to proposed findings of fact
submitted in judicial proceedings, based on the evidence pro-
vided during the type I hearing. The grievance then pro-
gresses toward arbitration unless withdrawn.
The required type I hearing on Sonnier’s grievance was
conducted on September 6, as described in greater detail in
subsection III,C,1, infra. Respondent Employer refused to re-
verse its discharge decision and it so notified Respondent
Local. The needed joint statement of facts was prepared by
Schultheiss and Scott on September 28. Save for one item,
there was complete agreement between them on those facts,
the most relevant of which state:
3. On 4–17–89 Mr. Sonnier signed a Last and Final
Chance Agreement.
4. The agreement . . . required Mr. Sonnier to have
a signed union activity pass prior to conducting union
business.
5. Mr. Sonnier understood that should he elect to
violate company rule(s) and the terms of [the last
chance agreement], he would be subject to immediate
termination.
6. Mr. Sonnier accepted the conditions of employ-
ment outlined within [the last chance agreement] and
returned to gainful [sic] employment on 4–24–89.
The joint statement continues on to item 9, the single fac-
tual recitation to which Scott was unwilling to agree: ‘‘On
8–21–89 at approximately 9:45 a.m. Mark Curtin, Human
Resource Administrator, observed Mr. Sonnier walking to-
wards Building 13 between Building 2 and 12.’’ Then certain
facts pertaining to the type I hearing are stated:
14. At approximately l:00 p.m. on 8–24–89 Mr.
Sonnier was interviewed by Rick T. Schultheiss in the
presence of Ned Scott and Paul Velasco. Mr. Sonnier
was shown [the statements of Curtin and Cohen, as
well as the union activity pass for 6:30 to 10:10 a.m.
on August 21] and asked to explain his whereabouts
between 6:35 a.m. to 10:10 a.m. Mr. Sonnier indicated
that ‘‘He was working with Rivera the whole time.’’
Mr. Sonnier was offered an opportunity to write a state-
ment concerning his whereabouts on 8–21–89 and Mr.
Sonnier responded by stating ‘‘I’ll write one later. All
you have is Curtain’s [sic] word against mine.’’
21. During the grievance hearing Mr. Sonnier
claimed that he had proof concerning his whereabouts
between 6:35 a.m. to 10:10 a.m. Mr. Sonnier was in-
structed that the record of the grievance hearing would
remain open until the close of business on Friday, 9–
8–89. Mr. Sonnier did not provide any additional infor-
mation.
Two additional facts are referred to in the joint statement
and require further explication. As described above, Rivera
had mentioned the visit to Human Resources Representative
Frederica Weimer in the statement that he had given to
Sonnier and that Sonnier, in turn, had given to Respondent
Local, along with his grievance. During the September 6
hearing that visit was brought to Schultheiss’ attention.
Afterward, Schultheiss approached Weimer and, following
their discussion of what had occurred on August 21, she pre-
pared a statement describing her meeting with Sonnier and
Rivera that day. To the extent pertinent here, she wrote:
Wil and Bob arrived at approximately 7:55 am. . . .
Before the meeting ended I had asked Wil Sonnier to
help me get in touch with P Velasco and get a good
time for him to meet. . . . Our appointment ended ap-
proximately at break time—8:20 am Wil handed me his
Employee Activity Pass and I signed him in and out.
The joint statement took into account the meeting with
Weimer: ‘‘On 9–12–89 a statement . . . was provided by
. . . Weimer concerning the whereabouts of Mr. Sonnier and
Mr. Rivera on 8–21–89 between the Hours of 7:55 a.m. to
8:20 a.m. This statement was secured based on Mr. Sonnier’s
testimony at the 9–6–89 grievance hearing.’’
Second, prior to preparation of the joint statement, Larry
Miller, service representative for Region 6 of Respondent
International, had suggested to Sonnier that he obtain another
statement from Rivera that was more specific as to time than
the one that Sonnier had provided to Respondent Local. Prior
to preparation of the joint statement, Sonnier did so. In it,
to the extent pertinent here, Rivera stated:
WE CAME OUT OF THIS MEETING [with
Weimer] ABOUT 8:30–35. SONNER [sic] WENT TO
TAKE A PISS. I WENT TO CHECK MY LOG
BOOK[.] RICK COHEN SIGNED THE LOG BOOK,
AND I LEFT FOR MLO BECAUSE I HAD A HOT
JOB. . . . I CAME [back] UPSTAIRS ABOUT 9:20-
25[.] WILL [sic] WAS THERE[.] WE DISCUSSED
THE PROBLEM. FREDERICA HAD TOLD WILL TO
PICK UP ALL THE NAME[s and phone numbers of]
PEOPLE INVOLVED SO WE WENT TO BLDG 138
541DOUGLAS AIRCRAFT CO.
AND MIKE HAYNES [sic] WAS HAVEING [sic] A
MEETING. . . . THEN WE WENT UPSTAIRS AND
WE DISCUSSED THE PROBLEM SOME MORE.
THEN ABOUT 10:25 WE WENT UPSTAIRS TO 509.
I NEEDED TO CHECK THE LOG BOOK[.] RICK
COHEN WAS THERE, AND HE SIGNED WILL
SONNERS PASS.
With respect to that statement, item 17 of the joint statement
recites: ‘‘Mr. Rivera has indicated that on 8–21–89 at about
8:30 a.m.–8:35 a.m. Mr. Sonnier left him and that he did not
see Mr. Sonnier again until about 9:20 a.m.–9:25 a.m. . . .
This statement was provided by the union on 9/28/89.’’
After Scott signed the joint statement, his role in proc-
essing the grievance was completed and he forwarded the file
to Bargaining Committee Chairman Jesse Salazar for further
proceedings. However, as described in greater detail in sub-
section III,C,1, infra, the latter decided to withdraw it. He
notified Sonnier of that decision by letter, dated October 4:
‘‘Enclosed is a copy of your Grievance. It has been with-
drawn because we felt no reasonable expectation of it’s [sic]
success.’’ The General Counsel contends that this decision
had been unlawfully motivated by Sonnier’s internal opposi-
tion to Respondent Local’s acquiescence in Respondent Em-
ployer’s employee involvement programs, as reflected by his
formation of UP and by his adverse remarks in UP’s leaflets
concerning Respondent Local’s officers. In this respect, the
General Counsel alleges that Respondent International, as
well as Respondent Local, is responsible for this unfair labor
practice, as well as for the assertedly subsequent ones of Re-
spondent Local, because it is, at least, a joint bargaining rep-
resentative and, also, because its officials had actual knowl-
edge of Respondent Local’s purportedly unlawful activities
from October 4 through November 7.
Since Salazar’s notification letter was sent on October 4,
Sonnier was unaware of his grievance’s disposition when he
and four other members of UP visited the hall on that same
day. As discussed in subsection III,C,2, infra, they inquired
about the status of the grievance, but Salazar did not tell
them that a final disposition had been reached. Instead, he
said that he would be reviewing the file that night and, then,
would make a decision as to whether or not to pursue it fur-
ther under the contractual disputes resolution procedure. This
meeting concluded when Salazar threatened to call the police
if Sonnier and his group did not leave the office and when
the group did so.
On the following day, Sonnier was at Respondent Local’s
hall to attend a stewards council meeting. Salazar took him
aside and informed him of the decision to withdraw the
grievance. This set in motion a sequence of events, described
in greater detail in subsection III,C,1, infra, centered around
Sonnier’s demand for a copy of his grievance and Salazar’s
ultimate call to the police to have Sonnier removed from the
office. At least one official of Respondent International had
been present during the exchange that day. In addition, Grif-
fith had appeared briefly during it and, while there, had an-
nounced that Sonnier was no longer a member of Respondent
Local. In fact, Griffith repeated that statement during a gen-
eral membership meeting on October 26. As a result, it is un-
disputed, Sonnier was denied the right to be nominated as a
candidate for bargaining committee and was denied the right
to vote in the election on November 7 for Respondent
Local’s officers. The General Counsel alleges that Respond-
ent Unions violated Section 8(b)(1)(A) of the Act by virtue
of those actions.
As noted above, Respondent Local’s jurisdiction is con-
fined to employees working for Respondent Employer. Under
article 6, section 14 of the constitution, ‘‘members of the
Local Union are also members of [Respondent Inter-
national].’’ Moreover, under article 16, section 18, ‘‘A mem-
ber who had been laid off, is on leave of absence, or is dis-
charged . . . who is covered by check-off provisions . . .
shall automatically be considered as entitled to ’out of work’
credits.’’ [Emphasis added.] But, section 19 of that article
provides, ‘‘Any member who is entitled to ‘out of work’
credits . . . shall be presumed to continue to be entitled to
‘out of work’ credits and thus remains in continuous good
standing . . . for the first six (6) months of such layoff or
leave.’’ [Emphasis added.]
By letter dated November 12, Sonnier sought reinstatement
of his grievance by Respondent International’s executive
board. Carolyn Forrest, administrative assistant to the presi-
dent, replied by letter on December 7, acknowledging receipt
of Sonnier’s ‘‘letter dated November 12, 1989, postmarked
November 24, 1989,’’ and advising that,
If your grievance was resolved by the Local Union Bar-
gaining Committee as you indicate, you would have 60
days from the date you became aware of such settle-
ment to appeal such settlement to the Local Union.
Sonnier then wrote to Dorothy Blake, Respondent Local’s re-
cording secretary. She responded, in a letter dated January
11, 1990, that he was not a member in good standing, since
he had not paid dues after the preceding August, and his
grievance had been withdrawn.
While awaiting Blake’s response, on January 4, 1990,
Sonnier sought review of Forrest’s denial of his appeal by
Respondent International’s Public Review Board. Apparently
this attracted attention to Sonnier’s membership status in
light of the out-of-work credits’ provision in the constitution.
The Long Beach-based officials were notified that it applied
in the case of a discharged employee, such as Sonnier, and
that he was deemed a member in good standing, entitled to
appeal the withdrawal of his grievance to the general mem-
bership. By letter dated February 2, 1990, Blake informed
Sonnier that he would be recognized to do so at the next
general membership meeting.
Without unduly belaboring the matter, Sonnier was per-
mitted to make his appeal at that meeting, the membership
voted in his favor, and Respondent Local requested that Re-
spondent Employer allow the grievance to be revived in the
grievance process. Not surprisingly, the latter rejected that
request on the ground that it considered the matter settled.
For the reasons set forth post, I conclude that a preponder-
ance of the evidence does not support any of the allegations
in the amended consolidated complaint. Rather, a preponder-
ance of the credible evidence shows that a report of one type
of infraction had generated investigation that tended to sup-
port that report and revealed that another infraction, as well,
had been committed by an employee already, in effect, on
probation for a prior infraction. Consequently, he was termi-
nated for insubordination. After reviewing the facts, his bar-
gaining agent withdrew the grievance concerning that termi-
542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
nation, justifiably believing that it could not prevail if the
grievance were to be pursued to arbitration. Finally, inas-
much as union membership was contingent on unit member-
ship, Sonnier’s union membership was deemed terminated. In
the circumstances, that determination was legitimately
reached, though erroneous as it turned out. A preponderance
of the credible evidence does not support the allegations that
these acts, nor the more particularly derivative ones alleged
in the complaint, were unlawfully motivated or arbitrary.
In view of that conclusion, it is unnecessary to resolve the
relationship between Respondent Unions that would have
been posed had there been a violation of Section 8(b)(1)(A)
of the Act. However, it should be noted at this point that al-
though there is some undenied testimony, uncontradicted tes-
timony need not be credited if disbelieved. Plasterers Local
394 (Burnham Bros.), 207 NLRB 147 fn. 2 (1973). As he
testified, I believed that Sonnier was not being candid. As set
forth in succeeding sections, a review of the evidence rein-
forces that impression. Therefore, I do not credit his testi-
mony.
B. The Motivation for Sonnier’s Termination
Relying on essentially all of the pre-August 25 events cov-
ered in subsection III,A, supra, the General Counsel argues
that, collectively, they demonstrate Respondent Employer’s
hostility toward Sonnier for engaging in activity protected by
the Act and, further, that his termination had actually been
motivated by that hostility. However, analysis of each inci-
dent does not support that argument.
1. The expendables list and verbal reminder
The General Counsel argues that one motive for Sonnier’s
termination had been ‘‘because of his activities as steward.’’
As quoted in subsection III,A, supra, in his factsheet accom-
panying the grievance regarding his termination, Sonnier did
claim that he had been ‘‘constantly harassed and intimi-
dated’’ by Respondent Employer following his return to
work on April 24. Yet, when he testified, Sonnier did not re-
peat that assertion under oath and no evidence was presented
that would support an assertion that he had been harassed
and intimidated while performing his steward’s duties during
the 4-month period between that date and his suspension on
August 21.
The lone incident to which the General Counsel points to
support the argument of motivation by ‘‘activities as a stew-
ard’’ is the one involving the expendables list. There can be
no question that Schultheiss, specifically, and Respondent
Employer, in general, had been upset about its publication by
Sonnier. In fact, it is undisputed that after Sonnier had re-
fused to identify the individual who had given him the list,
during his meeting with Schultheiss concerning it,
Schultheiss had said that he should fire Sonnier for having
stolen the list and ‘‘deal with a lawsuit later on.’’ However,
it is uncontroverted that when Sonnier then asked if he was
being accused of stealing the list, Schultheiss had backed
down and had replied that he was not doing so.
Furthermore, that meeting had concluded with Sonnier
being requested merely to ask questions before disclosing to
employees information that puzzled him. Thereafter, even in
the face of Sonnier’s grievances on behalf of some ‘‘expend-
able’’ employees and of the Los Angeles Times article about
the list, there is no evidence that any of Respondent Employ-
er’s officials said anything to, or about, Sonnier regarding the
expendables list incident during the following 9-month pe-
riod preceding his termination. So far as the record discloses,
by the time of that termination, the expendables list incident
had passed into a forgotten corner of inconsequential history.
Nevertheless, the General Counsel argues that the verbal
reminder received by Sonnier demonstrates both that Re-
spondent Employer harbored ongoing hostility toward
Sonnier as a result of the expendables list incident and, fur-
ther, that it was disposed to retaliate against him because of
it. Of course this event occurred over a year before Sonnier
filed the charge against Respondent Employer that has been
consolidated in this proceeding. Accordingly, it involves an
act that occurred outside the 6-month statutory limitations
period of Section 10(b) of the Act. The General Counsel rec-
ognized that fact, but argues that the verbal reminder, and the
events surrounding it, can legitimately be considered as back-
ground evidence.
The difficulty with the General Counsel’s argument is that
its acceptance requires a determination that an unfair labor
practice had been committed in December of 1988. There is
no difference between reaching such a conclusion with re-
spect to the verbal reminder, for purposes of evaluating the
motivation for Sonnier’s termination, and making a deter-
mination that recognition had been unlawfully granted more
than 6 months before a charge’s filing for the purpose of
evaluating the legality of enforcement within the 6-month pe-
riod of the terms of a contract generated by that recognition.
The Supreme Court refused to allow the latter in Machinists
Local 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S. 411 (1960).
There seems no reason to conclude that it would not reject
the former, as well. In neither situation does the sheep’s
clothing of background evidence successfully serve to dis-
guise the wolf of an unfair labor practice determination per-
taining to an act outside the statutory limitation period.
Furthermore, the General Counsel actually had the oppor-
tunity to investigate and proceed to complaint concerning
Respondent Employer’s motivation for issuing the verbal re-
minder to Sonnier. On December 13, 1988, Sonnier filed the
unfair labor practice charge in Case 21–CA–26544, alleging
that he had been ‘‘harrassed [sic] and threatened’’ by Re-
spondent Employer. That charge was dismissed on January
31. The General Counsel argues that the dismissal poses no
bar to consideration of the underlying verbal reminder inci-
dent under the doctrine of res judicata. However, that is not
the point. Section 10(b) of the Act prevents a de facto deter-
mination of unlawful motivation. The existence and inves-
tigation of the charge serves only to dissipate any possible
argument that the General Counsel had no opportunity to
timely evaluate the evidence concerning Respondent Employ-
er’s motivation for the verbal reminder, because Sonnier had
been unaware that he could have filed a charge regarding it
and did not do so. He was aware of his right to file a charge.
He did so. The General Counsel investigated and dismissed
that charge. There is no basis for some form of lack of
knowledge exception to the statutory bar on resolution of
whether or not an unfair labor practice occurred in connec-
tion with the verbal reminder.
In any event, a preponderance of the credible evidence
will not support a conclusion that the verbal reminder had
been unlawfully motivated. Sonnier had been off work on
543DOUGLAS AIRCRAFT CO.
5 Reliance on the Regional Director’s factual findings as sub-
stantive evidence is allowed both as an admission under Fed.R.Evid.
801(d)(2)(A) and as a ‘‘factual finding[] resulting from an investiga-
tion made pursuant to authority granted by law.’’ Fed.R.Evid.
803(8)(C).
December 9, 1988. At 10 minutes before starting time on the
following day, he encountered Scott discussing work-related
problems with some employees in Department 509. Although
Sonnier was the steward for those employees, it is undis-
puted that Scott’s jurisdiction as bargaining committeeperson
encompassed that department. Nevertheless, believing that
his territory was being infringed by Scott, Sonnier testified,
‘‘I confronted him and asked him why he was filing griev-
ances in my area.’’ An argument ensued. Each man accused
the other one of having used profanity in the course of it.
Scott acknowledged having raised his own voice and testified
that Sonnier had done so, as well. Sonnier denied that asser-
tion. But his denial was somewhat diminished by his descrip-
tion that, ‘‘I was not aggressive in a violent sense of the
word, but as far as disagreeing with him on doing my job,
yes, I was [aggressive].’’
Scott broke off the confrontation long enough to call
Schultheiss who, about 5 minutes later, arrived in the depart-
ment where, he testified
there was a shouting match going on between Mr.
Sonnier and Mr. Scott in the lower balcony. . . . There
was [sic] approximately between ten to twelve employ-
ees had stopped working and Nick Gallegos[,] who is
the alternate steward when Mr. Sonnier’s not there, was
standing between Mr. Scott and Mr. Sonnier.
Although the confrontation had begun before starting time,
enough time had elapsed by the time that Schultheiss had ar-
rived that all employees should have been working. Thus,
Schultheiss separated Scott and Sonnier, after which he di-
rected the spectating employees to commence working.
Thereafter, he decided that verbal reminders should be issued
to Scott and Sonnier.
On its face, there is nothing in Respondent Employer’s
handling of this incident that would inherently show retalia-
tory treatment of Sonnier. However, in arguing to the con-
trary, the General Counsel points specifically to the stipu-
lated fact that no documents were found in Scott’s personnel
file when Respondent Employer attempted to comply with
the General Counsel’s subpoena for all discipline issued to
Scott between November 1, 1988, and September 1, 1989.
Respondent Employer was unable to explain the absence of
a verbal reminder in Scott’s file.
In some instances its absence might well be evidence that
it never existed. Yet, every witness interrogated about this
incident, including Sonnier, testified that Scott had been told
that he was receiving a verbal reminder. More importantly,
in her dismissal letter in Case 21–CA–26544, the Regional
Director made the specific factual finding that, ‘‘As a result
of the investigation’’ the evidence revealed ‘‘both [Sonnier]
and the other person involved received ‘verbal reminders’ for
engaging in that disruptive conduct.’’5 Consequently, regard-
less of what may have happened to the document embodying
Scott’s reminder following that investigation in Case 21–
CA–26544, its existence was revealed during the course of
that investigation and, accordingly, it cannot be concluded
that Scott had not received a verbal reminder, as did Sonnier.
Based on Scott’s November 1988 comment that he would
try to repair the damage in Department 509 caused by the
expendables list’s disclosure, the General Counsel argues that
‘‘Scott went to Sonnier’s area to take over his steward du-
ties’’ on December 10, 1988. Presumably, the inference to be
drawn from that argument is that Schultheiss should have
been aware that Scott did not belong in Department 509 that
day and should have disciplined only Scott, not Sonnier, as
the instigator of the ensuing argument, because he had been
in an improper location. Yet, even if true, Sonnier could
have resolved any disagreement through a less disruptive
course than ‘‘confront[ing]’’ Scott in the work area. More-
over, either man could have broken off the argument before
it became the spectacle that it turned out to be. Neither did
so. Both were equally at fault and each received identical
discipline as a result of it.
Furthermore, there is no basis for concluding that Scott
had been in Department 509 incident to some master plan to
relieve Sonnier as steward. Certainly, Scott’s statement,
about repairing the damage from the list’s disclosure, does
not supply that basis. Indeed, there is no evidence that Scott
had been acting improperly, at all, in being there on Decem-
ber 10, 1988. The collective-bargaining contract does provide
for stewards handling first-step type II grievances. But that
provision is not worded exclusively: it does not preclude, ex-
pressly or by implication, others from handling grievances at
that level. Not only was there undisputed testimony that bar-
gaining committeepersons could—and had—handled first-
step grievances, but some of that testimony was provided by
Sonnier, himself—at least, until it appeared to dawn on him
that his interests were not being advanced by such an ac-
knowledgement, at which point he began testifying dif-
ferently.
Initially, Sonnier testified during direct examination that
‘‘a bargaining committee[person] can initiate a grievance,
type two grievance, but it’s unusual when you have stewards
representing any area.’’ During cross-examination he admit-
ted that he had not been at work on December 9, 1988, and
that in his absence Scott had filed the grievance that had
concerned him (Sonnier) on the following day:
A. I got a copy of the grievance that he filed the pre-
vious day.
Q. So he had filed the grievance the previous day?
A. That’s correct, because I was not there the pre-
vious day.
Q. So on the day you were not there, Mr. Scott had
filed a grievance.
A. Right.
Of course, that testimony represents a concession that Scott
had merely been following through on a grievance that, in
the ordinary course of a steward’s absence, a bargaining
committeeperson would file on behalf of an employee.
Apparently it dawned on Sonnier that his answers were
not aiding his portrayal of Scott as being out to supplant him
(Sonnier) as steward, for he began to backtrack on the
above-quoted testimony, claiming that Scott had been ‘‘in the
process [of filing a grievance] when I caught him.’’ More-
over, he reversed field on his earlier testimony that, while
unusual, bargaining committeepersons could file grievances:
544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘my position is that if a steward or an alternate is present
then he does not have to do that.’’ However, pressed further
for an answer as to whether or not the contract allowed bar-
gaining committeepersons to do so, Sonnier backed away
from that assertion, admitting, ‘‘That’s a legal technicality
that will probably have to be looken into.’’ In short, on De-
cember 10, 1988, Sonnier had taken it upon himself to ‘‘con-
front’’ Scott for doing something that, at best, Sonnier had
no idea whether or not Scott was permitted to do under the
contract.
There is no evidence that Sonnier received the verbal re-
minder as a result of his union or protected activity. He did
not even begin action to form UP until during the same
month that he received the reminder. There is no evidence
that his activity in forming UP had come to the attention of
any of the Respondents until the following month. Further-
more, so far as the evidence shows, the expendables incident
had begun to pass into history after it had been concluded.
True, an article about it did appear in the Los Angeles
Times. However, that did not occur until a week after
Sonnier had received the verbal reminder and there is no evi-
dence that the reporter had been gathering the facts for it as
early as December 10, 1988. No basis exists for concluding
that Sonnier had been less culpable than Scott for the inci-
dent that led to the verbal reminders being issued. Both men
received identical disciplinary treatment. Therefore, a prepon-
derance of the evidence does not support an argument that
issuance of a verbal reminder to Sonnier had been motivated
by his prior activities as steward, specifically because of the
expendables list’s disclosure.
Nor does a preponderance of the evidence support the ar-
gument that, as a result of the expendables list incident,
‘‘Schultheiss chose to bide his time and retaliate later. From
that date forward, it was just a question of time before
Sonnier would be terminated.’’ True, Schultheiss had been
upset about the list’s disclosure. However, he is experienced
in labor relations and appeared to appreciate that disputes,
even heated ones, were only one aspect of working in the
field and, moreover, had to be forgotten, once over, if mean-
ingful labor relations were to be perpetuated. There is no di-
rect evidence concerning any references to the expendables
list incident during 1989 by Respondent Employer’s officials,
although if Sonnier is to be believed comments were made
about other protected activity in which he engaged. Nor is
there evidence, such as difficulties encountered by Sonnier in
handling grievances, from which it could be inferred that Re-
spondent Employer’s conduct toward him had been moti-
vated during 1989 by animus arising from the expendables
list incident. Indeed, if Schultheiss truly had been disposed
to retaliate against Sonnier because of the expendables list
incident, he simply could have fired him for theft of the list,
as he claimed he should do during their meeting regarding
the list, and ‘‘deal with a lawsuit later on.’’ But, Schultheiss
did not do so.
Therefore, I conclude that a preponderance of the evidence
does not support the argument that Respondent Employer
harbored ongoing hostility toward Sonnier because of the
latter’s activity in connection with the expendables list. Fur-
thermore, I conclude that a preponderance of the evidence
does not support the argument that Respondent Employer’s
August termination decision had been motivated, even in
part, by any of Sonnier’s ‘‘activities as a steward.’’
2. Comments attributed to Respondent
Employer’s officials
The other unlawful motivation attributed to Respondent
Employer for terminating Sonnier was his opposition to the
TEAM and, later, TQMS programs manifested through his
formation and operation of UP. As set forth in subsection
III,A, supra, Sonnier had formed UP as a result of his
expendables list experience and, beyond that, because of his
opposition to unit employees serving as facilitators under the
TEAM concept. Beginning on January 10, UP periodically
distributed leaflets expressing that opposition and, further, as-
serting that Respondent Local’s officials were compromising
union values by agreeing to implementation of employee in-
volvement programs. The General Counsel argues that those
activities generated hostility toward Sonnier which, in turn,
led Respondents to retaliate against him.
No doubt Sonnier believed that these activities inherently
generated hostility toward him by Respondent’s officials. Yet
that does not necessarily follow in the circumstances of this
case. Unlike Sonnier, a relative novice in labor relations and
a person who appeared to harbor antagonism toward anyone
who opposed his own positions, all of Respondents’ officials
were individuals with comparatively extensive experience in
union-management and internal union relationships. More
specifically, each one appeared to understand that dissenting
opinions inevitably accompany decisions concerning em-
ployee-employer relations and formulation of internal union
policies. And each of them appeared to be mature persons
unwilling to compromise his professional standing by formu-
lating and pursuing vendettas against such dissenters. Con-
sequently, based on the personalities involved, I find the pos-
sibility remote that Respondents’ officials, or any of them,
would embark upon a campaign of retaliation against some-
one simply because he/she opposed their programs and poli-
cies.
Furthermore, Sonnier had not been unique in opposing Re-
spondent Employer’s employee-involvement programs and
Respondent Unions’ policy of supporting them. It is undis-
puted that from the outset there had been opposition to
TEAM and, later, to TQMS among the ranks of both man-
agement and employees. As a result, Sonnier had not trav-
eled alone in his opinion regarding those programs. More-
over, his formation of a caucus was not a novel approach.
Like Democrats and Republicans in the political arena, New
Horizons and PUSH had been the two principal caucuses in
Respondent Local. However, it is uncontroverted that smaller
caucuses regularly formed to compete for membership votes
on platforms disagreeing with the policies of whichever
major caucus’ members happen to be the elected officers at
a particular time. It also is undisputed that those small cau-
cuses have regularly been quite graphic in their criticisms
and descriptions of those officers. Consequently, of them-
selves, Sonnier’s activities in opposing employee-involve-
ment programs were not so unique that it can be said that
they inherently would have attracted the attention of and gen-
erated animus by Respondents or any of their officials during
1989.
Of course, given the extent of dissent among employees
from Respondent Employer’s programs and Respondent
Local’s acquiescence in them, it is not implausible that such
animus might be generated by coordination of that dissent
into a seemingly successful campaign of opposition. How-
545DOUGLAS AIRCRAFT CO.
ever, based on the evidence, Sonnier’s campaign could hard-
ly be characterized as a successful one. He testified that UP
had 75 to 100 direct and 200 associate members at the end
of March. There is no evidence that those figures had not
been representative of UP’s membership throughout 1989, at
least prior to August 25. Conversely, at the end of 1989,
there were approximately 45,000 employees working at Re-
spondent Employer’s Long Beach facility, of whom approxi-
mately 19,000 to 20,000 were bargaining unit members.
Again, there is no evidence that these figures had not been
representative of the situation throughout 1989. Con-
sequently, UP’s membership amounted to less than 1 percent
of the Long Beach employee-complement and, approxi-
mately, only 2 percent of the bargaining unit employee-com-
plement. Moreover, there is no evidence whatsoever that UP
had generated or was receiving support from employees who
were not its members. Accordingly, the record does not sup-
port a conclusion that UP, and concomitantly Sonnier, had
posed any sort of threat to continuation of Respondent Em-
ployer’s programs and to the continued officer status of Re-
spondent Local’s officials, such that it might be said that Re-
spondents’ officials would likely be motivated to eliminate
him because his activities were gathering crescendo force. So
far as the evidence shows, only an insignificant number of
employees ever joined with Sonnier and there is no evidence
that any of Respondents’ officials ever viewed UP as being
significant.
Sonnier seemed to appreciate that fact and appeared to be
trying to plug that gap in his case by supplying evidence of
remarks purportedly made to him by Respondent Employer’s
and Respondent Local’s officials. However, as discussed in
this section with regard to the former and in subsection
III,C,1, infra, with respect to the latter, Sonnier’s testimony
served only to undermine his own credibility.
In advancing testimony concerning remarks by Respondent
Employer’s officials, Sonnier singled out four of its admitted
supervisors and agents: Schultheiss, Curtin, Atafua, and
Group Leader David Young. Chronologically, the first pur-
ported remarks occurred during a 1-week training course of
company and union officials early in January at Ventura,
California. During direct examination in the course of the
General Counsel’s case-in-chief, Sonnier testified that on one
occasion during that training course Young had commented
‘‘that they were going to start shaking this place up. Those
who don’t come on board with TQMS, they’re going to have
to get rid of.’’ When, testified Sonnier, he had ‘‘simply re-
sponded to him, ‘So you can’t be in opposition to a concept
and still work here,’’’ Young had bluntly retorted, ‘‘no.’’
According to Sonnier, after that training course and after
distribution of UP’s initial leaflet, Curtin had mentioned that
the leaflet ‘‘was pretty humerous [sic], like a soap opera,
couldn’t wait until the next one came out and . . . that
[Sonnier] was wasting [his] time putting these leaflets out be-
cause TQMS was here to stay. And I would go before
TQMS.’’ Two months later, testified Sonnier, Curtin had re-
ferred to a UP leaflet, asking why UP was opposed to TQMS
when New Horizons supported it and adding ‘‘we should
start going the same directions New Horizons is and—be-
cause if we didn’t—that was it.’’ Sonnier further testified
that between May 23 and 25 Curtin had warned ‘‘if we kept
putting these kind of leaflets out we would be fired.’’
Sonnier attributed remarks to Atafua pertaining to UP’s
fliers on two occasions: on May 24 when Atafua assertedly
‘‘told me that I was risking my job doing it, putting leaflets
out like this. And he advised that I cease doing it,’’ and,
later, purportedly warning ‘‘that my leaflets were very dam-
aging to myself and he had heard people in upper manage-
ment talking about it, and if I didn’t watch myself I was
going to get fired.’’ With respect to Schultheiss, Sonnier
claimed that in August,
I was dealing with Mr. Schultheiss on a grievance of
another employee and he warned me about myself. He
told me that you had better worry about yourself in-
stead of these employees. You’re the one in trouble.
If made, these statements would be strong evidence of an-
tagonism by Respondent Employer’s officials toward
Sonnier’s activities in connection with UP. However, Young
denied having ever told Sonnier that those who did not come
on board with TEAM were going to be gotten rid of or ter-
minated. Atafua denied ever having talked to Sonnier about
union activity or fliers. Schultheiss denied having ever told
Sonnier that he had better worry about himself instead of fel-
low employees because he was the one in trouble and, fur-
ther, denied having told Sonnier that he would be fired if he
passed out leaflets.
Not only were the denials of Young, Atafua, and
Schultheiss credibly uttered when each one of them testified,
but Sonnier’s descriptions of their purported remarks were
frequently inconsistent with objective considerations and, ul-
timately, were internally inconsistent. For example, as quoted
above, Sonnier claimed that Young’s Ventura threat had per-
tained to opponents of TQMS. Yet, after Sonnier had testi-
fied, the evidence showed, without contradiction, that TQMS
had not been even announced as a program until the fol-
lowing month, on February 13. In fact, it had been sprung
as a surprise announcement to all Long Beach personnel that
day.
The resultant inconsistency with Sonnier’s testimony had
not merely been a slip of Sonnier’s lip. He had demonstrated
a clear understanding of the differences between TEAM and
TQMS by describing the two programs when he testified ini-
tially. Further, when cross-examined during the General
Counsel’s case-in-chief, Sonnier testified without reservation
that Young’s comments had pertained to TQMS:
Q. And did he use the term TQMS? That’s what you
stated in your direct testimony if you want to check on
that.
A. I think he mentioned TQMS, yeah.
In delivering that answer, the tenor of Sonnier’s use of the
term ‘‘think’’ was one of certitude—as in ‘‘I affirm’’ or ‘‘I
claim’’—rather than one of hesitancy.
Called as a rebuttal witness, Sonnier attempted to repair
the damage caused by his above-quoted earlier testimony, in
light of the evidence that TQMS had not been announced
until February. He first attempted to portray himself as con-
fused about the programs: ‘‘we [Young and I] were discuss-
ing team concept, employee involvement, TQMS whatever
you want to call it.’’ In so doing, he retreated from the abso-
luteness displayed when testifying about those programs dur-
ing the General Counsel’s case-in-chief. Then, reversing the
546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
field of his above-quoted answer during cross-examination,
he claimed that Young had made his remarks with respect
to TEAM: ‘‘My conversation with Dave Young was about—
it was about that subject, team concept and he told me that.’’
Nor is Sonnier’s internally inconsistent testimony the only
criterion that reinforces the doubt raised by his unconvincing
description of remarks made by Young in Ventura during
early January. Later that same month he gave an affidavit in
support of his charge that the verbal reminder had been un-
lawfully issued to him during the preceding month. That affi-
davit was a relatively lengthy one that seemingly explored all
evidence that might support his charge. Yet, although
Sonnier testified that he had regarded Young’s purported re-
mark as ‘‘very important,’’ he never mentioned any remark
by Young when he described the events to the Board Agent
taking his affidavit. Asked for an explanation of an omission
of what would have been a quite recent exchange, Sonnier
lamely testified: ‘‘I was giving them a lot because it was a
fifteen page affidavit so I—it didn’t come up at that time.’’
Young testified that, in fact, during the Ventura training
course an exchange with Sonnier about TEAM had taken
place, although not the one described by Sonnier. Young tes-
tified that, one evening there, he had assisted Sonnier to his
hotel room because of the latter’s excessive alcoholic con-
sumption earlier that evening. In the course of doing so, tes-
tified Young, Sonnier had asked whether TEAM was in-
cluded in the collective-bargaining contract, to which Young
had replied that it was only an experiment that either would
or would not work out. Sonnier denied having drunk to ex-
cess while at Ventura and, also, having needed assistance in
getting to his hotel room because he had done so. However,
he admitted that it had been in his hotel room that he had
spoken with Young, but advanced no alternative explanation
for why Young—a stranger to Sonnier when the training
course had opened, so far as the record discloses—would
have gone there.
Nor was Sonnier’s accounts of remarks by Atafua and
Schultheiss consistent with objective considerations. Two in-
terpretations of those remarks can be derived from the de-
scriptions of Sonnier. First, that Atafua and Schultheiss had
actually been trying to intimidate Sonnier into abandoning
his activities in opposition to TEAM and TQMS. Yet, by the
time of these purported conversations, Sonnier had dem-
onstrated that he was not a likely candidate for intimidation.
In fact, he had filed two unfair labor practice charges against
Respondent Employer, protesting its treatment of him. If
nothing else, those charges showed that the words and ac-
tions of Respondent Employer’s officials could return to
haunt them. Neither Schultheiss nor Atafua impressed me as
being so naive as to ignore the potential consequences of
making threats to Sonnier—of being persons likely to bring
rope to their own hangings by providing evidence that could
support a further charge against Respondent Employer. Fur-
thermore, as concluded above, Sonnier’s opposition to
TEAM and TQMS was not such a significant matter that it
likely would attract intimidation efforts.
The second possible scenario that Sonnier may have been
trying to portray, through his testimony attributing remarks
to Atafua and Schultheiss, is that they had been attempting
to convey friendly advice to him based on remarks made to
them by higher management. Yet, again, Sonnier’s conduct
lacked sufficient significance to provoke Respondent Em-
ployer’s higher management into concern about him. More-
over, it is unrealistic to believe that Atafua would volunteer
any type of friendly advice to Sonnier. Since becoming
Sonnier’s immediate supervisor in March, Atafua had been
at loggerheads with Sonnier. So far as the evidence shows,
Sonnier resisted taking work directions from Atafua and
Atafua resented that resistance. It is simply inconceivable
that Atafua would suddenly try to aid Sonnier through any
form of friendly warning.
With regard to the remarks that he attributed to
Schultheiss, during direct examination Sonnier claimed that
they had been made during a meeting at which an employ-
ee’s grievance was being discussed. But he did not identify
that employee. Nor did he describe the grievance. In fact, he
did not deny that once a grievance reaches the level of
Schultheiss, the latter would ordinarily meet with a bar-
gaining committeeperson, not a steward.
Questioned more closely during cross-examination about
the purpose of his asserted meeting with Schultheiss, Sonnier
retreated somewhat from his earlier assertion about the object
of the meeting to a more vague account of its purpose: ‘‘I
was talking to [Schultheiss] about some other stuff. Some
other information.’’ Indeed, he even became suddenly vague
and defensive when interrogated about the location of that
purported meeting:
Q. The conversation with Mr. Schultheiss on August
15, where did that conversation take place?
A. In HR.
Q. What building?
A. 13.
Q. What part of the HR building 13?
A. In the office in HR.
Q. Whose office?
A. I don’t know whose office it was.
Q. Where was the office?
A. Where was it?
Q. Yes.
A. Building 13 in HR.
Q. Can you describe any better where it was other
than that? Whose office it was next to?
A. No.
Throughout this exchange Sonnier appeared to be more con-
cerned with avoiding an answer that might disclose too much
information—information that would enable Respondent Em-
ployer to check with other personnel who worked in any area
that he specified and, perhaps, to call some of them as wit-
nesses to refute his assertion of presence at that location at
that time.
Different considerations govern the comments attributed to
Curtin. He admitted having made several adverse remarks to
Sonnier about UP’s leaflets and Sonnier’s opposition to
TEAM and TQMS. However, there is no basis for con-
cluding that Curtin’s remarks to Sonnier represented Re-
spondent Employer’s attitude, as opposed to Curtin’s per-
sonal view of Sonnier’s activities. For, as he testified it be-
came increasingly clear that Curtin had been following his
own agenda during the spring and summer of 1989 and, fur-
ther, that he was pursuing a personal agenda as a witness.
Regarding the former, Curtin appeared to have been seek-
ing to advance as quickly as possible within Respondent Em-
ployer while it employed him. Like Sonnier, Curtin displayed
547DOUGLAS AIRCRAFT CO.
a preconceived view of labor relations, whereby management
would automatically welcome the opportunity to retaliate
against any employee opposing company policies. Moreover
he admitted that he personally did not like Sonnier: ‘‘[I]n my
opinion . . . Sonnier didn’t add a whole lot of value to [Re-
spondent Employer]. . . . In fact, he never worked on the
airplanes.’’ In short, it appeared that Curtin had felt that he
might be able to advance more quickly by reporting to his
superiors about Sonnier’s activities, while at the same time
trying to give Sonnier a hard time about UP’s leaflets.
However, by the time of his appearance as a witness,
Curtin had been laid off by Respondent Employer. He admit-
tedly was none too happy that he had been chosen for layoff,
given his self-described ‘‘number of skill capacities.’’ Con-
sequently, as he testified, it increasingly appeared that he was
trying to do so in a manner that would damage Respondent
Employer. However, his effort was a cautious one.
The most striking characteristic of Curtin’s testimony was
the certainty with which he generally asserted that Respond-
ent Employer’s officials had been hostile to Sonnier, coupled
with the ambiguity that he then demonstrated whenever
asked for details to support those generalized assertions.
Whenever the latter occurred, Curtin uniformly fell back on
purportedly implied thoughts and attitudes: ‘‘it had been im-
plied to me by my upper levels of management that Wil was
a threat,’’ and at another point, ‘‘It was implied that Wil
would slip up again . . . and then he would be legitimately
terminated one final time.’’ Following this approach, Curtin
was able to damage Respondent Employer’s interests while,
at the same time, avoiding giving any testimony that might
later be characterized as perjury.
That Curtin’s remarks to Sonnier had reflected his per-
sonal views, as opposed to those of his employer, was shown
most graphically by his own grudging admission regarding
an occasion when he had complained to General Manager
Berger about the strident language on one of Sonnier’s leaf-
lets. Curtin suggested to Berger that the discipline was war-
ranted because the leaflet ‘‘slander[ed] other company em-
ployees.’’ Ultimately, Curtin acknowledged that Berger had
disagreed, saying no more than that remarks in one caucus’
leaflets could not be treated differently from those appearing
in the leaflets of other caucuses. Yet, it was in connection
with this particular conversation that Curtin claimed that
Berger had ‘‘implied’’ that Sonnier could be terminated le-
gitimately when he ‘‘slip[ped] up again.’’ Asked for an ac-
tual account of Berger’s words, Curtin backed away from de-
scribing Berger’s precise words in favor of a generalized
characterization of them:
I don’t remember the exact conversation, but the
conversation is, ‘‘We can’t take action based on the
company rule that says thou shalt not slander other
company employees. Wil will violate’’—he was betting
that Wil would violate another company rule that would
be easier to pin information on.
I do not credit Curtin’s testimony that his superiors had
been saying that they would get rid of Sonnier because of
his opposition to employee involvement programs. A prepon-
derance of the credible evidence shows only that Curtin
spoke and acted in his own interests, without regard to Re-
spondent Employer’s actual attitude, anticipating that ad-
vancement might follow actions motivated by his own pre-
conceptions.
Aside from Sonnier, only one other witness attributed spe-
cific hostile remarks to Respondent’ Employer’s officials:
Joyce Mills. Her testimony pertained to remarks purportedly
made during meetings regularly conducted at a hotel among
Respondents’ officials, the so-called four-thirty team, to dis-
cuss aspects of the employee involvement programs. While
she did not personally attend those meetings, it is undisputed
that one of the participants, at least during August, had been
Thurron Mallory, then a bargaining committeeperson. Mills
testified that after one of those meetings,
[Mallory] told me that they were meeting at the hotel,
at the Marriott. That they—that the leaflet came out and
they were discussing Wil. The vice president wanted to
know who this guy was that signed the leaflets. They
wanted to go up to his department and find out who he
was and what he looked like and who he worked for.
And Mallory said, ‘‘And they said that they were going
to get this guy because nobody could totally go against
TQMS.’’
Mallory never appeared as a witness, with the result that
Mills’ account of his remarks is neither confirmed nor denied
by him. However, Respondent International’s Service Rep-
resentative Miller testified that he had attended ‘‘[p]robably
all of’’ the four-thirty team meetings. Howser, also its rep-
resentative, testified that he had attended ‘‘most of’’ them.
The former testified that, during those meetings, ‘‘I never
heard any discussion about [Sonnier or his leaflets or his
caucus]. In fact I probably would have objected if they had
of brought it up,’’ but, ‘‘There was no such conversation
when I was there.’’ Similarly, Howser testified that he did
not recall hearing any discussion, by any participant at any
of those meetings, about Sonnier or leaflets he distributed or
about the UP-caucus: ‘‘I might add that I would object to
that if I would have heard, just like Miller said. I heard noth-
ing.’’
Aside from these denials, there was inherent inconsistency
in Mills’ account of Mallory’s purported warning. In describ-
ing it, she testified that Mallory had alerted her to what had
been said ‘‘around about the first of August.’’ However, the
leaflet which assertedly generated the purported four-thirty
meeting remarks was not distributed until mid-August. More-
over, Mills did not stop by attributing comments to Mallory
on one occasion. She claimed that he had repeated his warn-
ings,
Every conversation that he had thereafter was at [sic]
the same thing—like, something was going to happen
to him about the leaflet and he better watch himself and
things like that.
He said that this was a discussion at all their meet-
ings that they were having at the company.
[I]t was a constant thing that Mal and I talked.
But only 10 days elapsed between distribution of the August
15 leaflet and Sonnier’s termination. Although the four-thirty
team met frequently, there has been no showing that, during
that 10-day period, it had met so frequently that there would
be opportunity for ‘‘all these meetings’’ at which ongoing
discussion of Sonnier would have been occurring.
548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Although characterized in the General Counsel’s brief as
‘‘unauthenticated attendance documents,’’ Stanger credibly testified
that these had been the records on which he had relied in March
and, in this regard, the significant factor is his state of mind at that
time.
Mills’ accounts of Mallory’s purported remarks also poses
an inherent inconsistency with the General Counsel’s entire
theory of unlawful motivation for Sonnier’s termination.
Under that theory Respondent Employer’s officials had been
watchfully waiting since November 1988 for an opportunity
to terminate Sonnier. However, Mallory’s description of the
asserted remarks of Respondent Employer’s officials portrays
them as individuals who were unaware of Sonnier’s identity:
of who he was, ‘‘what he looked like and who he worked
for.’’ Yet, If Respondent Employer had truly harbored ongo-
ing concern about Sonnier’s positions and activities, as the
General Counsel argues, it is hardly plausible that its offi-
cials would not even be able to identify him as late as Au-
gust.
Mills was not a disinterested witness. She was an ally of
Sonnier in UP. As described in subsection III,C,2, infra, she
became quite involved in the propriety of his termination
grievance and in his expulsion from union membership. Fur-
ther, by the time that she testified in this proceeding, she had
been terminated by Respondent Employer and had filed her
own unfair labor practice charge against it concerning that
termination. When she testified, she appeared sufficiently
perceptive to appreciate that her own case might be aided if
it were to be concluded that Respondent Employer had un-
lawfully discharged another employee at an earlier date.
Given her interest in the outcome of this proceeding and the
foregoing inconsistencies arising from her testimony, which
serve to illustrate the impression that she was trying to tes-
tify in a manner that would advance that interest, I do not
credit her accounts of Mallory’s purported August warnings.
In sum, therefore, there is no credible evidence that, save
for Curtin, Respondent Employer’s officials expressed hos-
tility toward Sonnier on account of activity protected by the
Act. And Curtin’s remarks reflected no more than his per-
sonal attitude toward those activities, rather than that of Re-
spondent Employer.
3. The last and final chance agreement
A crucial element in the General Counsel’s theory of un-
lawful motivation is the sequence of events that led Respond-
ent Employer to issue the last and final chance agreement to
Sonnier on April 14. Of course, like the verbal reminder dis-
cussed in subsection III,B,1, supra, a conclusion that the last
chance agreement had been wrongfully motivated is one that
effectively requires a determination that an unfair labor prac-
tice had been committed more than 6 months before the fil-
ing of the charge against Respondent Employer. Moreover,
as had been true with the verbal reminder, Sonnier filed a
charge concerning the last chance agreement, but it was dis-
missed following investigation. Yet, aside from these factors,
a preponderance of the credible evidence does not support
the argument that Respondent Employer acted unlawfully in
connection with this incident.
Two separate requirements are pertinent to the discussion
in this section. First, a steward needing to conduct union
business upon reporting for work is obliged, under the col-
lective-bargaining contract, to report that fact to his/her im-
mediate supervisor at the very beginning of the shift, after
which the steward is free to transact the necessary union
business. The second requirement is that employees in each
workarea are required by Respondent Employer to attend
three daily team meetings. The first such daily meeting oc-
curs at the very beginning of the shift, when work assign-
ments are lined out for that day.
By Monday, March 27, Atafua had become Sonnier’s im-
mediate supervisor. During the course of that day, Sonnier
was instructed by Atafua to show up at the first team meet-
ing each day. Atafua testified that, in connection with that
instruction, he had explained to Sonnier that if the latter
needed to transact union business, he would be immediately
released from the team meeting to do so. However, Sonnier
claimed that Atafua had wanted him to attend the entire team
meeting before being released. This, testified Sonnier, he re-
fused to do, because the contract entitled him to immediate
release after notification to his immediate supervisor of the
need to conduct union business.
As the day progressed on March 27, the dispute about re-
porting to team meetings was brought to the attention of
Atafua’s immediate supervisor, Department 509 Branch Man-
ager of Production Robert Patrick Stanger. Stanger had been
one of the individuals who had selected employees for inclu-
sion on what became the expendables list. However, there
has been no showing that he had been involved in any of
the events that occurred after employee selection. More im-
portant, there is no basis for inferring that he harbored ani-
mus toward Sonnier as a result of those postselection events.
He testified that by March 27, certain events had led him
to question whether Sonnier was performing any work what-
soever when not occupied by union business. Thus, Stanger
testified that he had received complaints from two mechanics
that Sonnier was taking advantage of Respondent Employ-
er’s, in effect, system of automatically clocking in employees
scheduled for work whenever those employees neglected to
do so. According to Stanger those two mechanics had re-
ported that Sonnier had been arriving late, but was being
compensated for a full workday, because he had been auto-
matically recorded as having reported at his scheduled start-
ing time, by virtue of being automatically clocked in.
In addition, Stanger had been told that while Sonnier had
been automatically clocked in on Saturday, March 25, and
had actually clocked out at the conclusion of work that day,
no one had seen him during the workday, even though Satur-
days are designated as working days and no union business
is to be transacted during Saturday. This report, made against
the background of the mechanics’ complaint, led Stanger to
review Sonnier’s attendance records for the proceeding 2 or
3 weeks.6 He testified, and it is not disputed, that automatic
entries are distinctively entered on attendance records and
that he discovered several automatic arrival entries for
Sonnier during that period. Stanger further testified that,
what I’ve seen in my time at [Respondent Employer]
is that people that are late for work won’t punch in.
And there’s a pattern to it . . . the people that are at
work every day are punched in every day. The people
that are late or have a habit of being late, have assumed
punch ins.
549DOUGLAS AIRCRAFT CO.
In light of Stanger’s investigation, it is undisputed that
Sonnier was denied compensation for his claimed work on
Saturday, April 25.
Against this background, on March 27 Stanger instructed
Sonnier that he must report his need to transact union busi-
ness at morning team meetings. Sonnier continued to insist
that he needed only to report that fact to his immediate su-
pervisor at shift’s commencement, without having to attend
team meetings. This argument led the disputants to Doris
Jones of human resources for an interpretation of what the
contract allowed or required. She told them that if Sonnier
had union business to transact, he could not be compelled to
forego transacting it in favor of attending team meetings, but
that he should try to attend those meetings and was obliged
to check in with his supervisor at 6 a.m. each morning when
his shift began.
This was not the last word on the matter. Stanger testified
that on the following day, Tuesday, March 28, Jones had ad-
vised him that Sonnier could be obliged to report to team
meetings and then should be excused if he needed to transact
union business. Stanger further testified that he had related
that answer to Sonnier on Wednesday, March 29 and, when
Sonnier still bridled at reporting to team meetings, had spe-
cifically directed Sonnier to report to the morning team meet-
ings. Sonnier disputed that account.
Sonnier admittedly did not attend the morning team meet-
ing on Thursday, March 30. But he testified that he had re-
ported to Atafua at the 6 a.m. shift commencement that
morning, although at Atafua’s desk and not at the team meet-
ing. Atafua denied that Sonnier had reported at all to him on
March 30. Certain objective facts support that denial.
Attendance records disclose that, rather than clocking in at
a location in Department 509 on March 30, Sonnier had cho-
sen to do so at 5:54 a.m. in building 35. He estimated that
it took approximately 10 minutes to walk from that building
to his assigned work location. Accordingly, it is unlikely that
he had been in Department 509 ‘‘at the start of the shift,’’
as he asserted he had been at 6 a.m. on March 30. Moreover,
that assertion was not consistent with his March 30 remarks
to Stanger about that subject.
Stanger testified that, as he had walked down a hallway
to attend a 6:15 a.m. meeting on March 30, he had seen
Sonnier coming from the other direction. When, testified
Stanger, he asked if Sonnier had attended the morning team
meeting, the latter replied that he had not done so and added
that ‘‘he was down at human resources.’’ At no point, so far
as the record discloses, did Sonnier tell Stanger at that time
that he (Sonnier) had made his required report to Atafua at
some location other than at the team meeting.
In light of Sonnier’s admitted failure to report to Atafua
at the morning’s team meeting, Stanger decided to suspend
him for insubordination. Stanger reported that decision to
Schultheiss. Schultheiss, in turn, met with Sonnier in the
presence of Union Representative Oley Gray, whose presence
had been requested by Sonnier, but who did not appear as
a witness in this proceeding. There is no evidence that
Sonnier had asserted during the ensuing meeting that he had
reported his need to transact union business to Atafua earlier
that morning. Instead, Sonnier confined his comments during
the meeting to assertions that he had been in the human re-
sources office that morning, although he presented no evi-
dence of the person there with whom he had conferred, and
that he could not be required to attend team meetings when-
ever he had union business to conduct. While offered the op-
portunity by Schultheiss to embody his explanation in a writ-
ten statement, Sonnier declined that invitation and was sus-
pended.
After investigating the matter further, Schultheiss con-
vened a pretermination arbitration board (P-TAB), in effect
a proceeding, in which Respondent Local participated, at
which the evidence was reviewed so that Respondent Em-
ployer could ascertain if discipline was warranted.
Schultheiss reached the conclusion that termination of
Sonnier was warranted on the ground of insubordination.
While disagreeing with that course of action, Respondent
Local’s officials doubted their ability to prevail in arbitration
if Sonnier were to be terminated. As a result, they decided
to pursue an alternative course to preserve Sonnier’s job.
Contact was made with both Schultheiss and General
Manager Berger in an effort to persuade them not to fire
Sonnier. Schultheiss was not particularly receptive to these
pleas, but Berger proved more sympathetic. As a result,
Berger refused to approve discharge of Sonnier and directed
Schultheiss to work out an alternative course with Respond-
ent Local. Several years earlier, before they advanced to the
positions they occupied in 1989 with their respective organi-
zations, Schultheiss and Salazar had developed the last and
final chance agreement. It is a means of affording an oppor-
tunity for employees, who otherwise would have been dis-
charged, to preserve their jobs by giving them a final chance
to correct their misconduct. Faced with Berger’s unwilling-
ness to approve termination, Schultheiss decided to propose
the last chance agreement to Respondent Local. But before
doing so, he decided to draft, ‘‘an absolute statement in the
agreement that would indicate that if Mr. Sonnier failed in
any aspect in the future on any point, he would be imme-
diately discharged, no frost on it whatsoever, immediately
discharged. I also wanted no provisions or limitations on the
union pass procedure.’’
Schultheiss met with Scott and Salazar. They were recep-
tive to the concept of a last chance agreement, but were not
enthusiastic about the stringency of the language proposed by
Schultheiss. Ultimately, language was negotiated and an
agreement was prepared, as quoted in pertinent part in sub-
section III,A, supra. The final event concerning this aspect
of the case occurred when they met with Sonnier to present
him with the option of signing the agreement or being termi-
nated.
That meeting occurred on April 17. Obviously Sonnier had
been aware of what would occur during that meeting, for
when he was presented with the last chance agreement, he
promptly produced his own typed ‘‘special agreement.’’
When presenting it, Sonnier said that he would sign the last
chance agreement if the officials of Respondent Employer
and Respondent Local would sign his agreement. That agree-
ment stated:
Due to the fact of a 16 day suspension, I am now
being brought back to the company by Special Agree-
ment. There were never any facts supporting the 16 day
suspension (and it was totally unjust) at which time I
now protest signing the Special Agreement dated 4–17–
89.
550 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I understand I have to sign this agreement to be rein-
stated within the Company, but it will be under protest
and further recourse shall be sought.
Schultheiss flatly refused to sign the special agreement and
said that he would withdraw the last chance agreement op-
tion if Respondent Local’s officials signed it. After confer-
ring separately with officials of the latter and with an official
of Respondent International, who had been present, Sonnier
signed the last chance agreement.
Sonnier testified that he had done so only after alternate
steward Gallegos, the lowest ranking union official present
that day, had signed his special agreement, even though
every other official had refused to sign it: ‘‘I assumed that
one signature would make this agreement binding as far as
the union was concerned. I was going to grieve this situation
at a later date.’’ Yet, while it is clear that Gallegos did sign
Sonnier’s special agreement, there is no independent evi-
dence that he had done so during the April 17 meeting, as
opposed to afterward when Sonnier recorded on the special
agreement the names of the representatives who had been
present and, further, the fact that they had refused to sign it.
Sonnier returned to work on April 24. When he reported,
he was met by Schultheiss and Stanger. The latter had pre-
pared a memorandum describing expressly what would be
expected of Sonnier under the union pass procedure imposed
by the last chance agreement. Significantly, that agreement
stated specifically that, ‘‘You will report to your immediate
supervisor at the commencement of your shift and imme-
diately after your lunch period.’’
Sonnier testified that, following his return, he had never
been compelled to forgo conducting union business by hav-
ing to attend team meetings. However, he did not testify that
he had been exempted from attending team meetings when-
ever he had no union business to transact and there is no
independent evidence that he had been excused from those
meetings whenever he lacked such a conflict. Further, there
is no evidence that after April 24 he did not make his reports
of need to transact union business at the morning team meet-
ings.
Sonnier did file a grievance concerning the last chance
agreement, protesting his ‘‘unjust[] suspension’’ and the
‘‘Agreement That Limits my UNION Activities As a Shop
Steward.’’ Scott processed that grievance to the third step of
the contractual grievance procedure before Respondent Local
abandoned it.
In an effort to escape the statutory limitation period, as
well as the Regional Director’s dismissal of the timely filed
charge concerning imposition of the last chance agreement,
it is contended that the foregoing events ‘‘demonstrate that
Sonnier’s discharge was not for just cause.’’ However, there
is some basis for doubting that the Board, as opposed to ar-
bitrators, can make determinations regarding ‘‘just cause,’’ as
opposed to a statutorily proscribed motivation, for termi-
nations. In the context of this case, a determination of the
former appears suspiciously identical to a determination of
the latter.
In any event, to the extent that there is a difference in sub-
stance rather than form, a preponderance of the credible evi-
dence will not support either conclusion. For, with regard to
this incident, the attempt to construct a case for Sonnier rests
entirely upon an effort to confuse the distinction between
two separate obligations: the obligation to perform work for
which Respondent Employer’s employees were entitled to
compensation and, secondly, the obligation to attend team
meetings at shift’s commencement. Stanger’s credible testi-
mony shows that to accomplish the former, he instructed
Sonnier on March 29 to do the latter. That is, because of sus-
picion that Sonnier had been utilizing his contractual excuse
from team meeting attendance as a means of disguising tardi-
ness in reporting for work, Stanger sought to prevent such
misconduct through the vehicle of required reporting at the
morning team meeting. At no point does the credible evi-
dence show that Sonnier was being obliged to be present for
the entirety of those meetings. To the contrary, once he actu-
ally reported to them—thereby demonstrating that he had re-
ported on time for work—he was to be excused from further
participation in the meeting whenever he explained that he
needed to transact union business. And the latter was ex-
plained specifically to Sonnier by both Atafua and Stanger.
Of course, Stanger’s particular solution to the suspected
tardiness problem was obviated by items 2 and 3 of the last
chance agreement. That is, Sonnier need not attend the morn-
ing team meeting whenever he had union business to con-
duct, so long as he ‘‘report[ed] to his immediate Supervisor
at the commencement of his shift’’ and secured a union ac-
tivity pass whenever his union business conflicted with per-
formance of his job responsibilities, including attending team
meetings. Indeed, as pointed out above, Sonnier did not
claim that he had failed to attend team meetings after April
24 whenever he had no conflicting union business to trans-
act. Accordingly, attendance at team meetings did not be-
come ‘‘a non-issue’’ after April 24. Instead, it remained very
much a continuing obligation for Sonnier.
With respect to the circumstances surrounding the incident,
itself, the General Counsel points out that Stanger admittedly
had not followed company policy by advising Sonnier, at the
time of directing the latter to report to team meetings, that
he could be discharged for failing to obey that direction. Yet,
Stanger’s explanation that he had not felt it necessary to take
that step because Sonnier was a steward, and thus knowl-
edgeable of the consequences of insubordination, is a logical
one. Moreover, it was one that was advanced in seeming
truthfulness. At that time Sonnier had been a steward for
over 6 months. He had been regularly occupied during that
half year with grievance processing, as shown by the fact
that, if nothing else, he rarely had time to attend team meet-
ings due to conflicting union responsibilities. Consequently,
it was not illogical for Stanger to assume that Sonnier would
understand that he could be discharged for failing to abide
by directions. In fact, Sonnier never denied that he had not
understood that such a consequence would follow its non-
observance. Moreover, Sonnier did not claim that such a spe-
cific warning would have influenced his conduct on March
30.
Also relied upon in connection with the unjust cause argu-
ment is a statement by Jones. It recites what occurred at the
March 27 meeting, but makes no mention of a second con-
versation with Stanger, on March 28, regarding Sonnier’s at-
tendance at team meetings. Yet, there is no evidence that, in
the ordinary course of affairs, Respondent Employer’s super-
visors memorialized in writing descriptions of conversations
among themselves, as opposed to conversations between one
or more of them and unit employees. Indeed, in contrast to
551DOUGLAS AIRCRAFT CO.
the latter category of conversations, it hardly seems purpose-
ful to do so concerning the former category. However, Jones’
memorandum does show that Respondent Employer had been
concerned about Sonnier’s attendance and, more specifically,
about whether he had been reporting for work on time and,
thereafter, engaging in activity for which he was entitled to
compensation.
It is argued that Sonnier was the only union steward re-
quired to observe a union pass procedure. But there is no
evidence that any other steward was, or ever had been, sus-
pected of habitual tardiness and had insubordinately refused
to at least show up for team meetings. Nor does the General
Counsel’s argument gather any force from the fact that
Atafua and Stanger were two of only three individuals from
Department 509 who could sign Sonnier’s passes. After all,
they were the supervisors for the department in which
Sonnier worked.
In sum, as set forth in the preceding two sections, a pre-
ponderance of the evidence does not support the contention
that Respondent Employer’s officials had harbored animus
against Sonnier because of his activities as a steward nor be-
cause of his opposition to employee involvement programs.
Further, a preponderance of the credible evidence shows that
Sonnier had been obliged to attend team meetings unless he
had union business to transact; that there was legitimate con-
cern that he had been abusing that attendance exception to
conceal his tardy reporting for work; and, that Stanger had
sought to prevent whatever abuse appeared to be occurring,
by directing Sonnier to attend morning team meetings and
then make his report of need to be excused to transact union
business, at which point he would be released to do so. In
the circumstances of his first encounter with Sonnier on
March 30, it was logical for Stanger to conclude that Sonnier
had disobeyed that direction. The preponderance of the cred-
ible evidence shows that conclusion to have been accurate,
notwithstanding Sonnier’s belated assertions that he had re-
ported to Atafua, but not during that morning’s team meet-
ing. As a result, there is no basis for contending that Re-
spondent Employer unlawfully or unjustly decided to termi-
nate Sonnier as a result of his perceived disobedience.
That conclusion is but reinforced by the fact that Respond-
ent Employer ultimately retracted that decision and agreed to
permit Sonnier to continue working, so long as he agreed to
sign and abide by the terms of the last chance agreement. Al-
though it is argued that Respondent Employer had chosen to
pursue this course because Berger ‘‘decided that it was too
risky to terminate a union steward based on sham facts,’’ the
evidence does not support the assertion of ‘‘sham facts’’ and
there is no basis for attributing a fear of risk to Berger. To
the contrary, Respondent Employer was fully prepared to ter-
minate Sonnier later, on April 17, if he had persisted in his
demand that his special agreement had to be signed. There-
fore, neither the last chance agreement nor the events leading
to its execution support the ultimate contention that Respond-
ent Employer had been unlawfully motivated when it termi-
nated Sonnier on August 25.
4. Sonnier’s termination on August 25
Shorn of any credible evidence that Respondent Employer
harbored or likely harbored animus toward Sonnier for en-
gaging in union or protected activity, the General Counsel is
left with the argument that the events of August 21 through
25 inherently disclose, by inference, that Respondent Em-
ployer had been unlawfully motivated when it terminated
Sonnier on the latter date. However, a preponderance of the
credible evidence does not support such a conclusion. There
is no evidence that Sonnier’s union and/or protected activity
had been even a factor in the termination decision and, fur-
ther, there is no evidence showing that Respondent Employ-
er’s officials would have reacted any differently had some
other employee violated a last chance agreement by failing
to observe restrictions on movement.
As set forth in subsection III,A, supra, at 6:35 a.m. on Au-
gust 21, Atafua had signed a union activity pass that allowed
Sonnier to contact and work with Rivera. Cohen, the latter’s
supervisor, had signed in Sonnier at 6:35 a.m. and would not
sign him out until 10:10 a.m. Sonnier gave the following ac-
count of his activities during that 3-hour, 35-minute interval.
After discussing Rivera’s problem for almost an hour, the
two of them had moved their discussion to the Weimer’s of-
fice. Like the work places of Sonnier and Rivera, Weimer’s
office is located in building 13. However, she was unable to
resolve the problem, saying that, to do so, Corrective Action
Center Supervisor Mike Haines needed to be consulted. She
suggested that Sonnier and Rivera go to Haines’ office in
building 138, approximately 10 to 12 feet from building 13,
and arrange for an appointment at a mutually convenient
time.
Leaving Weimer’s office at approximately 8:l5 a.m., testi-
fied Sonnier, the two men went to building 138, but Haines
was occupied and told Sonnier to call him later. Sonnier and
Rivera then returned to building 13, arriving ‘‘about 8:20’’
a.m.—‘‘it was break time’’—when the morning break com-
menced. Sonnier went to the restroom and, returning to
Rivera’s desk, discovered that Rivera had been assigned an
emergency job. He waited there until 9:20 a.m. when Rivera
returned. After discussing the problem further, Sonnier had
Cohen sign his union activity pass and gave it to Atafua
upon returning to his own work station. Sonnier denied ex-
pressly having been between buildings 2 and 12 at any time
on August 21 and, further, denied having left building 13 at
any time after 8:20 that morning.
The reliability of that seemingly straightforward sequence
of events loses its appeal when compared with the substance
of Rivera’s last two statements, quoted in subsection III,A,
supra. In the first one, appended to Sonnier’s grievance, Ri-
vera states that he and Sonnier had been with Weimer ‘‘until
after Break. Then we were going back to our area.’’ (Empha-
sis added.) His testimony at the hearing was consistent with
that account. This inconsistency about time of return to
Rivera’s work area was not the only point of contradiction
between Sonnier’s testimony and that statement by Rivera.
For, although the statement appears to recite all of the activi-
ties of the two men when together that morning, it makes no
mention of any visit to building 138 to see Haines.
In his final statement Rivera adheres to his position that
he and Sonnier had not returned from Weimer’s office until
after the morning break: ‘‘ABOUT 8:30-35.’’ He does, how-
ever, mention the visit to Haines. But he places it as having
occurred after his return from the emergency assignment,
over an hour after Sonnier claimed that it had occurred: ‘‘I
CAME UPSTAIRS ABOUT 9:20-25. . . . WE WENT TO
BLDG 138 AND MIKE HAYNES WAS HAVEING [sic] A
MEETING.’’ When he testified, Rivera, in effect, retracted
552 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that written account during direct examination, testifying, as
had Sonnier, that the two of them had gone to building 138
immediately after leaving Weimer’s office. During cross-ex-
amination this inconsistency was specifically pointed out to
Rivera. But, given the opportuinity to explain it, he flatly
claimed that there was no inconsistency:
MR. BUSH: That’s [the final statement’s account of
the point at which Rivera and Sonnier went to building
138] different than your testimony, isn’t that right?
A. No, it isn’t.
During redirect examination an effort was made to repair
that damage. At that point, Rivera testified that the events in
that statement were not recounted in the precise order of oc-
currence. Yet, such a claim of cavalierness is not consistent
with the circumstances that led to preparation of that state-
ment. As described more fully in subsection III,C,1, infra,
Respondent International’s Representative Miller had sug-
gested to Sonnier that there were deficiencies in the state-
ment of Rivera appended to Sonnier’s grievance. As a result,
Sonnier set out to obtain a revised version. That revised
version is the final statement with the account that conflicts
with the testimony of Sonnier and of Rivera. Given its pur-
pose, it seems unlikely that Rivera would not have recounted
the events accurately and, when he claimed during redirect
that he had not done so, he advanced no explanation for his
purportedly cavalier treatment of the sequence of events of
August 21. Equally significant, Sonnier had secured that
statement from Rivera at Miller’s suggestion. Its potential
importance had been made plain to Sonnier by Miller. Given
that fact, it hardly seems likely that Sonnier would simply
ignore any asserted disregard for the accuracy in which the
statement portrays the events of August 21.
When he testified Rivera at times balked at answering
questions straightforwardly. He appeared to be concerned
with providing answers that would aid Sonnier’s case against
Respondent Employer. His reason for doing so emerged in
answering a question involving another incident: ‘‘I started
thinking, Hey, Wil is going to be up for my case . . . I
didn’t want Wil to think that I copped out.’’ In other words,
Rivera felt responsible for Sonnier’s predicament, because it
had resulted from events arising in connection with his
(Rivera’s) problem. Thus, as Sonnier had tried to help him,
Rivera set out to testify in a fashion that would help Sonnier.
There is yet another plausible explanation for Rivera’s
lack of candor, one that explains Curtin’s observation. I felt
that Curtin, while not always consistent as to details, did tes-
tify honestly when he recounted having seen Sonnier and an-
other person between buildings 2 and 12 on August 21. In-
deed, all other considerations aside, it would be absurd to
make a false report of having seen someone at a particular
place if that person had not been there and might be able to
refute that report with evidence of where he/she had actually
been. Such a report would have caused Curtin to lose all
credibility and, from his own perspective, impair his reli-
ability with his own superiors.
Rivera testified that the emergency assignment had eventu-
ally led him to building 2 and that he had returned to build-
ing 13 by traveling through building 12: ‘‘I came out this
door [of building 2] and I headed out to building 12, the cen-
ter of building 12 and then back into 13.’’ Accordingly,
Rivera’s own testimony places him at one time that morning
in the vicinity of the location where Curtin reported having
seen Sonnier. Furthermore, Sonnier claimed that he had sat
at Rivera’s desk for the entire time that Rivera had handled
the emergency and, moreover, testified that numerous people
had passed while he sat there. Yet, Sonnier was unable to
identify even a single one of those people and not one person
appeared to corroborate Sonnier’s assertion that he had been
sitting at Rivera’s desk that morning. In short, it is not im-
plausible that, as time passed, Sonnier had become bored and
had gone looking for Rivera, encountering him as he was
walking from building 2 to building 12. As they met and
chatted, they were observed by Curtin.
Such a meeting would also tend to explain Rivera’s incon-
sistent efforts to explain what the two of them had done after
the emergency job had been completed. It is undisputed that
the union activity pass possessed by Sonnier did not allow
him to go to the location where Curtin had observed him.
However, at the time of giving his final statement, Rivera
had no basis for believing that a visit to Haines’s office
placed after completion of the emergency work would not
aid Sonnier by providing a plausible alternative location, out-
side of building 13, when observed by Curtin.
In fact, neither Sonnier nor Rivera testified with any speci-
ficity concerning what they had purportedly conferred about
following completion of Rivera’s emergency call. Indeed, it
is difficult to construct a need for further discussion between
them by that time. They had discussed it for almost an hour
before conferring with Weimer about it. They agreed that
they needed to meet with Haines before the subject could be
pursued any further. Accordingly, so far as the evidence
shows, the matter stood in abeyance by the time that Rivera
was dispatched for the emergency call.
On August 24 Schultheiss met with Sonnier in the pres-
ence of Scott. Schultheiss testified that Sonnier was asked
where he had been on August 21 between 6:35 and 10:10
a.m., to which he replied that he had been with Rivera that
entire time; was shown or read the contents of Curtin’s and
Cohen’s statements; and, was invited to submit a written
statement describing his whereabouts between those hours
that morning, to which Sonnier responded that he would sub-
mit one later, adding that, ‘‘All you got is my word against
Mark Curtin’s word.’’ Sonnier denied virtually all of
Schultheiss’ description of the August 24 meeting. Instead,
claimed Sonnier, he had been told essentially only about the
charge against him and that he was being suspended pending
further investigation. In fact, Sonnier was suspended at the
end of that meeting.
Nevertheless, certain factors tend to support Schultheiss’s
account of the August 24 meeting with Sonnier. A descrip-
tion of that meeting as recited by Schultheiss is contained in
paragraph 14 of the joint statement prepared by Schultheiss
and Scott, as quoted in subsection III,A, supra. That state-
ment became a formal document in the disputes resolution
procedure under the parties’ contract. At no point did
Sonnier specifically claim that any portion of that joint state-
ment inaccurately set forth any of the pertinent facts under-
lying the dispute arising from his termination.
More significantly, although Sonnier never submitted a
written statement to Respondent Employer following the Au-
gust 24 meeting, he did submit a statement of his position
in conjunction with his grievance. That is the statement writ-
553DOUGLAS AIRCRAFT CO.
7 To support the contention that Respondent Employer had been
seeking a pretextual excuse to discharge Sonnier, it is argued ‘‘that
after Curtin’s phone call, Schultheiss immediately left his office to
try and catch Sonnier returning to building 13.’’ Yet, that argument
is undermined by the fact that, after Curtin’s call, almost 30 minutes
elapsed before Schultheiss arrived in Department 509. It is further
undermined by the fact that Schultheiss went to that location, rather
than to the area between buildings 2 and 12, where the rules infrac-
tion had been taking place at the time of Curtin’s call, to ‘‘catch
Sonnier’’ violating the rules.
In like vein, had Respondent Employer truly been seeking legiti-
mate cause to pretextually discharge Sonnier, it seems likely that
Cohen would have more carefully watched Sonnier between 6:35
and 10:10 a.m. on August 21. Instead, so far as the evidence shows,
after signing in Sonnier at 6:35, Cohen went about performing his
own duties, oblivious to Sonnier and his activities until again pre-
sented with the latter’s pass for signature at 10:10 a.m.
ten on the factsheet, as quoted in subsection III,A, supra. His
explanation on the factsheet concerning his whereabouts on
August 21 is quite similar to the answer described by
Schultheiss when Sonnier had been questioned on August 24
regarding his whereabouts on August 12: ‘‘The day in ques-
tion of my termination I was on a Union Activity Pass with
a grievant.’’ Consequently, both the answer attributed to him
by Schultheiss during that meeting and his statement on the
factsheet portray Sonnier as having been working with Ri-
vera for the entire 3 hours and 35 minutes on August 12. In-
asmuch as Respondents knew from Rivera’s responses that
Sonnier had not been doing so, it was not illogical for them
to infer that Sonnier was concealing his true whereabouts for
at least part of that morning.
During a meeting on August 25 Schultheiss notified
Sonnier that he was terminated. By that time, Respondent
Employer’s investigation had disclosed that Sonnier had been
released from work on August 21 to conduct union business
with Rivera, that Rivera had been working away from
Sonnier for almost an hour of that period, that Sonnier had
not returned to his own work station during the period that
Rivera had been working, and that Sonnier had been ob-
served in an area where his union activity pass did not entitle
him to go. These were the crucial facts, according to
Schultheiss and Berger, that had led to the termination deci-
sion.
In contesting the lawfulness of Respondent Employer’s
motivation, the General Counsel points to a series of ancil-
lary aspects of the termination, arguing that they qualify as
indicia of a motivation that actually was an unlawful one.
However, in the circumstances, these asserted indicia do not
establish that conclusion. For example, no P-TAB was con-
ducted before Sonnier’s termination and P-TAB hearings are
ordinarily conducted prior to termination decisions. But that
had been the very point of the last chance agreement: ordi-
nary procedures would be bypassed in the event of any fu-
ture infractions in return for allowing Sonnier to preserve his
job in April.
Of course, Respondent Employer did not investigate to as-
certain the identity of the employee with whom Sonnier had
been speaking between buildings 2 and 12 on August 21.
Yet, Sonnier denied participating in that conversation and
Curtin had not known that employee’s identity. Given those
facts, the record suggests no means by which Respondent
Employer could have identified that employee. The General
Counsel does not suggest a means of doing so and, accord-
ingly, an argument faulting Respondent Employer’s failure to
ascertain that employee’s identity is an empty one.
Nor is Sonnier’s cause advanced by an argument that Ri-
vera also violated employee activity pass requirements on
August 21. There is no evidence showing a basis for Re-
spondent Employer to suspect in August that Rivera might
have failed to observe those requirements. In August,
Sonnier did not defend his own infractions by pointing to
similar misconduct by Rivera. Consequently, there was no
reason for Respondent Employer to launch an investigation
pertaining to Rivera’s conduct. After all, unlike Sonnier, Ri-
vera was not working under a last chance agreement.
Respondent Employer is faulted because Schultheiss con-
tinued investigating even after having gone to Sonnier’s
work area7 and discovering that Sonnier was present there.
However, Schultheiss was not without responsibilities. He
was not free to simply ignore the report that he had received
from Curtin, especially in light of the restrictions imposed on
Sonnier by the last chance agreement. Schultheiss was not
simply free of obligations such that he could ignore potential
employee misconduct. Sonnier’s presence at a proper loca-
tion at one point in time did not mean that he had not been
at an improper one earlier that morning. An argument to the
contrary is similar to arguing that a motorist’s observance of
stop signs two through four is conclusive evidence that
he/she did not ignore stop sign one.
Nor can it be said that Schultheiss somehow evidenced an
unlawful motive by conducting an investigation until August
24 before contacting Sonnier about his version of the events
of August 12. After all, the General Counsel’s own method
of investigating is to first collect the charging party’s evi-
dence before approaching the charged party for its evidence.
Of course, that allows determination of the points to which
responding evidence is needed, if at all, as opposed to simply
collecting whatever evidence a party might want to submit.
It constitutes meaningful investigation. Similarly, Schultheiss
investigated to verify Curtin’s report, and to obtain specific
information before approaching Sonnier. Had Schultheiss im-
mediately confronted Sonnier with Curtin’s verbal report in-
stead, I have no doubt that I would be confronting an argu-
ment that Schultheiss had acted with unseemly haste—that
Sonnier had been compelled to defend himself against
unconfirmed and uninvestigated accusations.
The fact that Sonnier had been suspended on August 24
pending further investigation does not advance the General
Counsel’s case. That seems to be Respondent Employer’s
regular practice, as illustrated by Stanger’s suspension of
Sonnier in March pending investigation of the latter’s insub-
ordination. Further, Schultheiss testified that he feared
Sonnier might become disruptive if allowed to remain work-
ing in August after having been told that his conduct was
being investigated. Given Sonnier’s prior outbursts—directed
at Scott and Salazar in December 1988 and during the last
chance agreement meeting, as well as on October 5 at Re-
spondent Local’s hall, as described in subsection III,C,2,
infra—that fear can hardly be characterized as unfounded. In
any event, of itself, Sonnier’s August 24 suspension did not
inherently facilitate discriminatory termination of Sonnier,
had Respondent Employer truly been so disposed. That is, in
the circumstances, it was not necessary to suspend Sonnier
554 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
before an unlawfully motivated termination could have been
effected. Rather, the suspension is an analytical nonissue.
Sonnier’s ‘‘Employee Status Change Notice’’ listed his
termination as being for ‘‘UNSATISFACTORY CON-
DUCT.’’ It is argued that such a phrase effectively fails to
notify an employee of the reason for termination, thereby
creating another indicia of unlawful motive. However, such
an argument disregards what had been told to Sonnier during
the August 24 meeting about Curtin’s report and the other
information collected to that point by Schultheiss. Con-
sequently, by August 25 Sonnier was well aware of the basis
for Respondent Employer’s dissatisfaction. Moreover, it is
undisputed that the phrase ‘‘unsatisfactory conduct’’ is regu-
larly one utilized on employee status change notices when-
ever an employee is terminated for improper conduct by Re-
spondent Employer. In these circumstances, its use in this
particular case hardly can be faulted as concealing the reason
for termination.
In subsection III,B,2, supra, I pointed out that Curtin dis-
liked Sonnier, primarily because he felt that Sonnier’s union
activities interfered with Respondent Employer’s work. I fur-
ther stated that it appeared to me, based on his personal per-
ception of hostility that he believed to be necessarily inherent
in union-employer relations, that Curtin had concluded that
he might be able to advance his own interests by antagonism
toward Sonnier. I have no doubt that this attitude led Curtin
to make his report about Sonnier’s location on August 12.
However, Curtin’s motivation for making that report does not
taint Respondent Employer’s decision to terminate Sonnier.
In the first place, there is no evidence that Curtin’s super-
visors had known about his personal attitude toward Sonnier
and his personal agenda. There is no evidence that Curtin
had ever spoken to them about it. There is no evidence from
which it can be inferred that they likely would have known
about it. Second, Curtin had merely reported a fact on Au-
gust 12. There is no evidence that he made any recommenda-
tion concerning disciplining Sonnier. Nor is there evidence
that, aside from writing a statement about his observation, he
had participated further in the sequence of immediate events
that led to Sonnier’s termination on August 25. The crucial
motivation is that of Schultheiss and Berger. And a prepon-
derance of the evidence does not show that they had been
influenced by any consideration proscribed by the Act.
Sonnier had been lawfully obliged to observe certain stand-
ards of conduct under company rules and, more particularly,
under the last chance agreement. He disregarded those obli-
gations. He was terminated solely for that reason. Therefore,
a preponderance of the credible evidence does not support
the allegation that his termination violated Section 8(a)(1)
and (3) of the Act.
C. The Unlawful Conduct Attributed to
Respondent Unions
1. Withdrawal of Sonnier’s grievance
In connection with the withdrawal of Sonnier’s termination
grievance, the General Counsel proceeds on two fronts: that
Respondent Unions acted arbitrarily by perfunctorily proc-
essing it and, in another theater, that Respondent Local’s of-
ficials withdrew the grievance in retaliation for Sonnier’s op-
position to them through the UP-caucus. A preponderance of
the evidence supports neither argument.
Sonnier described acrimonious exchanges with officials of
Respondent Local. For example, bargaining committee chair-
man Salazar had been present when Sonnier and Schultheiss
met concerning the expendables list, as described in sub-
section III,B,1, supra. In the course of that meeting, testified
Sonnier, he had been accused by Salazar of ‘‘restricting pro-
duction’’ and committing ‘‘a violation of company rule[s]
and that I could get terminated for that.’’ According to
Sonnier, Salazar had continued by warning, ‘‘Don’t ever get
terminated because I might not get [you] back.’’ While an
argument is made that Salazar did not deny having made
those remarks to Sonnier, page 1156, lines 22 through 23 of
the transcript show that Salazar did deny ‘‘ever [saying] any-
thing like that to Mr. Sonnier,’’ ever accusing Sonnier of re-
stricting production, and ever saying that he might not be
able to get Sonnier’s job back.
Sonnier testified that following his argument with Scott
the, as it turned out, ubiquitous Thurron Mallory had re-
ported that Scott ‘‘went to the bargaining committee room
and he was telling the people [there] that they were going
to try to get [Sonnier] decertified as union steward.’’ How-
ever, as discussed in subsection III,B,1, supra, Scott had not
acted improperly in processing employee grievances on the
day that he had been ‘‘confronted’’ by Sonnier. Given that
fact, and the further fact that Scott ended up with a verbal
reminder as a result of being ‘‘confronted’’ by Sonnier, it is
hardly surprising that he might have been upset at that time.
Nonetheless, even if Mallory actually did make such a report
to Sonnier, and even if that report had been accurate, there
is no basis for concluding that Scott’s words had been im-
proper. Sonnier was an official of Respondent Local. He had
no right to utilize that position as a means of barring other
officials form performing their own duties. They were enti-
tled to react negatively when Sonnier did so.
It is significant that Sonnier did not claim that Mallory
warned that Scott had said that he would attempt to have
Sonnier removed as steward. Instead, Scott is described as
having said that he would try to have Sonnier ‘‘decertified.’’
Such an ambiguous term could as easily mean an appeal to
the membership to vote for Sonnier’s removal as meaning
preemptory removal without such an election. But, an appeal
to the membership would not likely be unlawful. See Sheet
Metal Workers v. Lynn, 488 U.S. 347 (1989). That is, if a
majority of the membership voted for Sonnier’s removal as
steward, because of inappropriate conduct while serving in
that capacity, there would have been nothing unlawful in that
action, nor in the appeal for the membership to so vote.
The significant point regarding these purported remarks by
Salazar and Scott is that they pertain to incidents that, so far
as the record discloses, appear to have been forgotten, as
were the incidents that had assertedly provoked them, by Au-
gust. There is no evidence that Scott ever moved to decertify
Sonnier as steward. Salazar never again mentioned the
expendables list incident to Sonnier nor, so far as the record
discloses, to anyone else. Moreover, none of those asserted
remarks could have been provoked by Sonnier’s formation of
UP. For, there is no evidence of activity to form UP, nor
knowledge of Sonnier’s activities to promote its formation,
as early as December 12, 1988.
In that connection, much is made of the sincerity of Scott
in representing Sonnier in the latter’s subsequent difficulties
with Respondent Employer. Yet, while all of Respondent
555DOUGLAS AIRCRAFT CO.
Unions’ officials displayed concern as a matter of principle
about discipline of a steward, Scott appeared to have been
the most sensitive to the implications of stewards being dis-
ciplined. In fact, it appeared that, if he had his choice, Scott
would have taken a steward’s termination grievance to arbi-
tration as a matter of principle, no matter the likelihood of
success in doing so. Consequently, any predisposition on the
part of Scott in processing Sonnier’s grievances operated in
the latter’s favor, rather than to Sonnier’s detriment. There
is no basis for faulting Respondent Local because Scott han-
dled Sonnier’s grievances, as cochairman of the bargaining
committee.
On the other hand, consistent with his own apparent intol-
erance of those who disagreed with his own views, noted in
subsection III,B,2, supra, Sonnier quickly developed disdain
for Respondent Local’s officials, especially for Salazar. This
became obvious as early as December 12, 1988, when, due
to Scott’s involvement in the Department 509 confrontation,
Salazar had attended the meeting at which Sonnier actively
received the verbal reminder. He testified that when he had
tried to calm Sonnier during that meeting, he was told by
Sonnier to ‘‘shut the f— up. You ain’t telling me shit. I
don’t have to listen to you. Just shut the f— up. You can
get out of here if you want.’’ Called as a rebuttal witness,
Sonnier denied having made some remarks attributed to him.
But he did not deny having made those remarks to Salazar.
To the contrary, when testifying earlier, he admitted having
told Salazar, on that day, ‘‘I didn’t want his representation
and I asked him to leave.’’
Nor was that type of remark by Sonnier an isolated one.
For example, a similar remark, though denied, was attributed
to Sonnier during the April meeting in which the last chance
agreement was signed by him. As noted in subsection III,B,3,
supra, at one point Respondent Unions’ officials had met
separately with Sonnier to persuade him to abandon his in-
sistence that his special agreement be signed as the price for
his signing the last chance agreement. Howser, corroborated
by Salazar, testified that when he attempted to persuade
Sonnier of the wisdom of foregoing the special agreement,
Sonnier had retorted, ‘‘’Howser, all you got to do is stay
white and die,’ as if you know, don’t say anything, that’s all
you got to do.’’
Obviously, Respondent Unions’ officials were not pleased
by Sonnier’s remarks to them. Yet, in contrast to his attitude
toward them, it did not appear and there is no credible evi-
dence showing that they harbored ongoing hostility toward
him because of his remarks. More important, there is no
basis for concluding that they had been disposed to com-
promise their own professionalism by failing to try to prop-
erly represent Sonnier. In fact, it had been the pleas of
Salazar and Scott that had persuaded Respondent Employer
to continue employing Sonnier in April, despite the strength
of the case against him for insubordination.
That Sonnier disliked Scott and Salazar did not entitle him
to representation by officials other than the duly elected
ones. So far as the record discloses, there was no basis for
a belief that they would not try their best to represent him
in the same fashion as they represented other employees.
That is, there is no basis for concluding that they were in-
capable of according him the proper representation which
they were obliged by the Act to provide.
In a related area, despite Sonnier’s opposition through UP
to Respondent Local’s officers and their New Horizons cau-
cus, UP’s activities posed no threat to those officers and
there is no evidence that they perceived its activities as a
threat to their continued incumbency. Nor is there any evi-
dence that any of them harbored animus toward Sonnier be-
cause of his criticisms. As Griffith credibly testified, those
types of criticisms were neither novel nor particularly dis-
turbing, given the size of the bargaining unit and the ongoing
creation of minor caucuses whenever relatively small groups
of employees became disenchanted with incumbents’ deci-
sions and policies. In short, Sonnier’s opposition to the in-
cumbents was neither abnormal nor consequential, with the
result that they had no particular reason to become antago-
nistic toward him.
In an apparent effort to establish that animus against him
did exist, and did influence Respondent Local’s decision to
withdraw his termination grievance, Sonnier testified that on
October 5 Scott had said that he thought that Sonnier had ‘‘a
good grievance, that’s why he gave it to’’ Salazar. Of course,
if Scott had, in fact, made that statement, it tends to refute
any argument that Respondent Local acted improperly in al-
lowing Scott to process that grievance through its initial
stages. Such a statement shows obvious support for Sonnier’s
grievance.
Moreover, as stated above, I felt that Scott did display sin-
gular concern about grievances arising from the discipline of
stewards, as an institutional matter. That is, he appeared to
feel that even in situations where a union would be unable
to prevail in arbitration, it should never abandon a steward’s
grievance, no matter how meritless. To Scott, this should be
a paramount political practice of every union. As a result, it
is not surprising that he might, as he conceded, have told
Sonnier some months after August that the latter’s grievance
had been withdrawn for political reasons. As discussed
below, Salazar withdrew the grievance because he felt that
it could not be won. To Scott such a choice was not politi-
cally correct and it was to that point that he appeared to be
addressing the ambiguous ‘‘political reasons’’ when he later
spoke with Sonnier: in Scott’s view, Salazar had acted in the
interest of preserving union credibility in resolving disputes
when he should have acted to support a discharged steward.
There is no evidence that by that remark, Scott had been re-
ferring, or had intended to refer to, internal union politics.
In Scott’s sense of the phrase Salazar’s decision can be
characterized as having been a political—though not an un-
lawful—one. He testified that when he had gotten the file
from Scott, after the joint statement had been prepared and
signed, he had reviewed it. In doing so, he was not oblivious
to Scott’s view: ‘‘I was concerned about the employee in-
volved and the facts that were presented and the employee
was a union steward, an elected union steward.’’ Neverthe-
less, an obvious problem was presented by the contradiction
between Sonnier’s statement to Schultheiss that he had been
with Rivera for the entire 3 hours and 35 minutes on August
21 and, on the other hand, Curtin’s report and Rivera’s state-
ments refuting that statement by Sonnier. In short, Salazar
believed that Respondent Unions confronted a situation
where the grievance could not be won due to the grievant’s
own unreliability. The General Counsel faults him for ana-
lyzing the matter by accepting facts most favorable to Re-
spondent Employer. But those were the facts that Respondent
556 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Given the fact that Salazar testified candidly concerning his ac-
tual motive for withdrawing the grievance, I place no weight on
characterizations of that decision by former counsel for Respondent
Local.
9 This was not the lone conflict between Sonnier and Miller re-
garding this conversation. Sonnier claimed that Miller had promised
‘‘that if I had a statement that was—that could pinpoint the times
that he would probably have me back the next day.’’ Miller denied
Unions would have to confront were the grievance to be
processed further. Salazar could not simply ignore them.
However Salazar did not simply rely on his own evalua-
tion. He took the file to Griffith, Respondent Local’s presi-
dent. Before his election to that position, Griffith had been
bargaining committee chairperson. While serving in that po-
sition, he had achieved unusual success when processing
grievances against Respondent Employer. In reviewing the
file, testified Griffith, he had tried, as had Salazar, to ‘‘put
myself in the position of if I was sitting in front of an arbi-
trator how I would argue that case.’’ But, after doing so, he
concluded ‘‘there was no reasonable expectation of success.’’
He returned the file to Salazar, saying that he would with-
draw the grievance if it was his decision, but that the deci-
sion was Salazar’s to make as bargaining committee chair-
person.
Salazar did not content himself with his own and Griffith’s
opinion. He described the situation to Howser, Respondent
International’s representative. The latter listened and then
said that the decision was Salazar’s to make. But Howser
was not unaware of the view—espoused by Scott—that the
politically correct position would be to process a steward’s
grievance through arbitration, regardless of its merit. Thus,
he cautioned that Salazar should make his decision on the
merits of the grievance and should not simply buck it further
through the system, just to ‘‘get rid of’’ it.
After further reflection, Salazar decided on October 4 to
withdraw Sonnier’s grievance. He notified Sonnier of that
decision by letter sent on that same date. In explaining that
decision, Salazar testified:
I decided to withdraw the grievance because I felt
we couldn’t move forward with it.
. . . .
Because of what I’ve read in the joint statement of
facts and the witness’ testimony and the evidence the
company had against our employee.
. . . .
That we could not win this grievance in arbitration.
. . . .
Because by the steward’s own employee he was with
. . . he says, ‘‘the steward left him’’ and that’s just not
done at [Respondent Employer], unless the shift ends or
there’s a break or we just don’t have employees.
There’s no explanation for that.
Both Griffith and Howser appeared to be testifying hon-
estly about their advice to Salazar. Neither one appeared in-
fluenced by past experiences with Sonnier when they made
their recommendations. Salazar denied specifically that his
decision to withdraw the grievance had been influenced by
Sonnier’s caucus membership and opposition to TEAM and
TQMS. I credit the testimony of these three officials. In par-
ticular, Salazar impressed me as being sincerely committed
to proper performance of his responsibilities.8
Not only did Salazar credibly advance his explanation for
having withdrawn the grievance, but objective considerations
support his testimony. Sonnier’s initial assertion to
Schultheiss that he had been with Rivera for the entire 3
hours and 35 minutes on August 21 was contradicted directly
by Rivera’s statements. It is undisputed that under the union
activity pass procedure Sonnier should have returned to his
own station when Rivera returned to work. Consequently, of
itself, the latter failure constituted a separate violation of the
rules under which employee-union officials are released from
work, but continue to be paid for transacting union business.
The difficulty posed for Respondent Unions by these facts
was only compounded by Curtin’s report that Sonnier had
been seen in a location where, it is undisputed, his pass did
not entitle him to go that morning. Of course, Sonnier denied
that fact. But his denial compromised his own credibility by
creating a contradiction with Rivera’s statements. That is,
there was every objective reason for Respondent Local to be-
lieve that Sonnier’s lack of candor to Schultheiss would im-
pair the credibility of whatever other contradicted assertions
that he might make, such as denying having been between
buildings 2 and 12 at one point on August 21.
Of course, instead of trying to objectively evaluate the
likelihood of success in arbitration, Salazar could blindly
have pushed the grievance further through the contractual
disputes resolution procedure, as Scott appeared to favor as
a matter of political principle. However, so mechanical an
approach risks undermining the disputes resolution procedure
which, the Supreme Court pointed out in Vaca v. Sipes, 386
U.S. 171, 191 (1967),
contemplate[s] that each [party] will endeavor in good
faith to settle grievances short of arbitration. Through
this settlement process, frivolous grievances are ended
prior to the most costly and time-consuming step in the
grievance procedures.
Not only might such a mechanical approach deter parties
from ‘‘provid[ing] for detailed grievance and arbitration pro-
cedures of the kind encouraged by L.M.R.A. § 293(d),’’ Id.
at 192, but, of more immediate concern to Respondent
Unions, it could undermine Respondent Employer’s con-
fidence in their good faith when processing grievances, there-
by reducing their ability to retain Respondent Employer’s co-
operation in achieving early resolutions of future grievances
and, in turn, impairing their ability to ‘‘represent[] the em-
ployees in the enforcement of [their] agreement.’’ [Citation
omitted.] Id. at 191.
The General Counsel argues that Sonnier’s situation might
have been improved had Respondent Unions’ officials be-
come more actively involved, specifically by talking to
Sonnier and Rivera before withdrawing the grievance. Yet,
that argument is partially undermined by Sonnier’s own testi-
mony. He admitted that he and Miller had discussed the Ri-
vera statement that Sonnier had submitted with his grievance.
Moreover, he further conceded that Miller had criticized that
statement’s generality, particularly its failure to recite spe-
cific times. Although Sonnier claimed that their conversation
had not occurred until September 24, so late a date for it was
refuted by Miller’s testimony that he had been on vacation
from September 22 to late October.9
557DOUGLAS AIRCRAFT CO.
having made such a reckless representation, explaining, not without
logic, ‘‘I’ve been in this business long enough. I don’t guarantee
anything. I would never made a statement to any discharged em-
ployee that I’ll guarantee I’ll get your job back.’’
Miller credibly testified that the conversation described by
Sonnier had occurred ‘‘either real late [in] August or the first
part or a week or two in September.’’ More significantly,
Miller testified that Salazar had been ‘‘sitting there’’ during
that conversation. Accordingly, there obviously had been
conversation between Sonnier and Respondent Unions’ offi-
cials about the events underlying the grievance relatively
soon after it had been filed.
The General Counsel further contends that Respondent
Unions should have obtained the more detailed statement
from Rivera, as opposed to letting Sonnier do so. To support
that contention, the General Counsel argues that failure to do
so demonstrates a lack of proper attention to the grievance’s
investigation. Yet, Sonnier did not dispute Miller’s testimony
that after the latter suggested securing a more detailed state-
ment from Rivera, Sonnier had promptly said, ‘‘that he was
a friend or knew Rivera well and that he would secure that
statement or attempt to secure [it].’’ In light of that represen-
tation, it is not surprising that Respondent Unions would rely
on Sonnier, as the person best situated to obtain Rivera’s co-
operation, to secure a more detailed statement. In the cir-
cumstances, that reliance was hardly derelict. Indeed, had
one of Respondent Unions’ official decided to contact Ri-
vera, instead of Sonnier, I have no doubt that Sonnier would
now be complaining that they deprived him of the oppor-
tunity to obtain a more detailed statement from Rivera.
In the final analysis, short of trying to fabricate evidence,
there was little left for Respondent Unions to investigate by
the time that the grievance had been filed on August 25. Re-
spondent Employer already had Curtin’s report stating that
Sonnier had been at an improper location on August 21. In-
vestigation of that report had disclosed the further impro-
priety that Sonnier had not returned to his own work location
when Rivera had resumed working for approximately an hour
that morning. That further impropriety refuted Sonnier’s al-
ready made statement to Schultheiss that he had been with
Rivera for the entire time between 6:35 and 10:10 a.m. on
August 21. Consequently, by August 25 Respondent Unions
were confronted by a material contradiction of which Re-
spondent Employer was well aware. No further investigation
could repair that damage. ‘‘Because the inconsistenc[y] came
from [Sonnier] h[im]self, there was little in the way of inves-
tigation that [Respondent Unions] could do to strengthen
[his] case.’’ Diversified Contract Services, 292 NLRB 603,
605 (1989).
Neither the Board nor the courts have ever imposed a par-
ticular procedure that must be followed by bargaining agents
in investigating grievances. Accordingly, there is no basis for
concluding that Respondent Unions somehow violated the
duty of fair representation by failing to follow a particularly
prescribed procedure in processing Sonnier’s grievance. De-
spite the damaging contradiction, Salazar sought additional
opinions as to whether it could be won. But no approach was
suggested that that might yield a likelihood of success. Con-
fronted with that situation, Salazar withdrew the grievance.
Of course, Scott would not have done so and others, as well,
might characterize Salazar’s decision to do so as having been
erroneous. However, ‘‘[a]lthough this decision may be seen
by some as an error, it was at most an error of judgment and
not evidence of breach of the duty of fair representation.’’
Id. And in the final analysis, I conclude that Salazar’s deci-
sion was no error at all, but was a correct appraisal of the
grievance’s worth, given the last chance agreement’s provi-
sions and the clear inconsistency between Sonnier’s represen-
tation to Schultheiss and Rivera’s and Curtin’s statements.
A final aspect of the allegedly unlawful refusal to process
Sonnier’s grievance arises as a consequence of his exclusion
from membership, discussed more fully in subsection III,C,2,
infra. A grievant has the right to appeal the bargaining com-
mittee chairperson’s disposition of a grievance to the general
membership, at its monthly membership meetings. However,
that right exists only for grievants who are members of Re-
spondent Unions, and there is no allegation that restriction of
that appeal right to members is, of itself, unlawful.
Because Respondent Local’s jurisdiction—and, thus, its
membership—is restricted to employees of Respondent Em-
ployer, as described in subsection III,A, supra, once
Sonnier’s grievance was withdrawn, and he no longer had a
reasonable expectancy of employment by Respondent Em-
ployer, Respondent Unions’ Long Beach-based officials in-
terpreted his membership as terminated. That interpretation
turned out to be erroneous, although not unlawful, as de-
scribed in subsection III,C,2, infra. However, it did effec-
tively leave Sonnier unable to appeal withdrawal of his
grievance until early 1990, since, as a nonmember, he was
not allowed to attend membership meetings. However, a pre-
ponderance of the evidence will not support the conclusion
that such a delay in his ability to exercise that right arose
from action that violated the Act.
Sonnier described only one occasion when he had assert-
edly tried to make such an appeal. That occurred, testified
Sonnier, on October 26 when that month’s general member-
ship meetings occurred. It is undisputed that he attended both
sessions of the two meetings conducted that day, the first for
retirees and for second- and third-shift employees, and the
second for first shift employees.
Sonnier testified that when he had arrived at Respondent
Local’s hall that day, he had run into Griffith who inquired
why Sonnier had come to the hall, to which Sonnier replied
that he ‘‘came to appeal my grievance.’’ However, Griffith
testified that, in response to his question, Sonnier had replied
only, ‘‘I have a right to be here.’’ According to Griffith,
when he specifically pointed out that Sonnier did not ‘‘have
a grievance in the system . . . [and was] not a member any
longer,’’ Sonnier had retorted, ‘‘Well, I’m a guest.’’ Grif-
fith’s objection to Sonnier’s attendance at the meetings that
day, as discussed in subsection III,C,2, infra, was rooted in
concern that he might disrupt the meetings, in light of certain
conduct on October 4 and 5, also described in that section.
In the course of providing that explanation, Griffith specifi-
cally pointed out, ‘‘If he had been there to appeal the with-
drawal of his grievance, I would certainly have allowed that,
but his stated reason for being there was he was a guest.’’
Consequently, even though he no longer regarded Sonnier as
a union member on October 26, Griffith credibly testified
that he would have allowed Sonnier to exercise a member-
ship right of appeal, but Sonnier did not say that he wanted
to do so.
558 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Griffith admitted that this had upset him. However, that was not
for some nefarious reason pertaining to Sonnier. Griffith explained
that if grievance settlements began to be submitted to the member-
ship and if the membership began reversing their bargaining commit-
tee’s resolutions, the grievance procedure would be undermined.
That is, Respondent Employer might become reluctant to settle
grievances, because it might later be confronted with ongoing efforts
to process grievances that it believed had been settled. Rather than
reflecting an improper motivation on the part of Griffith, that expla-
nation is an expression of valid concern about possibly ‘‘destroying
the employer’s confidence in the union’s authority,’’ as acknowl-
edged by the Supreme Court in Vaca v. Sipes, supra.
Several objective factors tend to support Griffith’s version
of his exchange with Sonnier, and to refute Sonnier’s asser-
tion that he had wanted to appeal his grievance’s withdrawal
to the membership on October 26. First, Sonnier had a pur-
pose for attending those meetings that was unrelated to any
effort to appeal withdrawal of his grievance. Nominations for
internal election of Respondent Local’s officers were being
accepted at the October 26 membership meetings and he
wanted to submit his name as a nominee for the bargaining
committee. Thus, his attendance at those meetings, of itself,
is not necessarily an indication of an intention to appeal his
grievance’s withdrawal. Second, Mills supported Sonnier’s
assertion that he had raised his hand for recognition during
the first meeting. But she did not claim that she had under-
stood that his purpose in doing so had been to appeal his
grievance’s withdrawal. Third, between meetings that day,
Griffith’s administrative assistant, Bernard Clarke, asked
Sonnier why he was remaining at the hall. Mills had been
present during this exchange. However, neither she nor
Sonnier described the latter as making any mention of an ap-
peal when he replied to Clarke. Instead, Sonnier testified, ‘‘I
told him that I am a member in good standing,’’ and Mills
testified that Sonnier had replied only, ‘‘because I want to
be here. I’m supposed to be here.’’
Sonnier never claimed that he had been aware as early as
October 26 of his right to appeal to the general membership.
The first mention of such a right did not occur until Decem-
ber 7, in Forrest’s letter to Sonnier in which she pointed out
that such a right existed. But, as she explained in that letter,
the right existed for only 60 days after Sonnier had become
aware of his grievance’s settlement. By December 7 that 60-
day period had expired. Consequently, I am convinced that,
in an effort to resurrect his by-then elapsed appeal period,
Sonnier tailored his testimony to portray that he had been
prevented from exercising his appeal right at the October 26
meetings of the general membership.
In any event, Sonnier ultimately did receive the oppor-
tunity of appeal to the general membership. As described in
subsection III,A, supra, based on their own interpretation of
applicability of ‘‘out of work’’ credits, Respondent Inter-
national’s Washington, D.C. officials concluded that
Sonnier’s membership had not immediately terminated upon
withdrawal of his grievance, even though he no longer actu-
ally worked for Respondent Employer. As a result, Sonnier
obtained a right to appeal to the general membership which
voted to reinstate his grievance.10
Respondent Employer refused, as was its right, to allow
the grievance to be revived, asserting that it deemed the mat-
ter settled. Although this did not occur until almost 6 months
after the grievance had been withdrawn, there is no basis for
concluding that Respondent Employer would likely have
been more disposed to revive the grievance in October and
November. To the contrary, a preponderance of the credible
evidence shows that at that earlier time Respondent Em-
ployer felt that it had been amply justified in terminating
Sonnier and that the grievance concerning that termination
had no merit.
In sum, a preponderance of the credible evidence does not
support the allegation that the grievance’s processing and
withdrawal had been the result of discriminatory motivation
nor the product of some other breach of the duty of fair rep-
resentation.
2. The deprivation of Sonnier’s membership
The General Counsel argues that Sonnier was unlawfully
deprived of union membership and, as a result, denied ordi-
nary rights of membership, such as attending union meetings,
being nominated for union office and voting in internal union
elections. Respondent Unions do not dispute that Sonnier’s
membership had been deemed terminated on October 4 and,
further, acknowledge that he had been barred from all mem-
bership rights as a consequence. However, they argue, inter
alia, that his membership had not been terminated unlaw-
fully. A preponderance of the evidence supports that argu-
ment.
The Act does not prohibit labor organizations from re-
stricting classifications of employees who are eligible for
membership, so long as those restrictions reflect a legitimate
union interest and do not injure any policy Congress has em-
bedded in the labor laws. See, e.g., NLRB v. Marine & Ship-
building Workers, 391 U.S. 418 (1969). Here, Respondent
Local’s representation jurisdiction is restricted to Respondent
Employer’s employees. Concomitantly, as set forth in sub-
section III,A, supra, its membership is likewise restricted to
employees of Respondent Employer. Consistent with that
membership restriction, it is not disputed that when an em-
ployee is terminated by Respondent Employer, that employee
no longer is eligible for membership in Respondent Local.
The complaint does not challenge the legitimacy of Respond-
ent Local’s membership eligibility, nor its rule precluding
employees from membership upon termination of employ-
ment by Respondent Employer.
However, as quoted in subsection III,A, supra, article 16
of Respondent International’s constitution creates an excep-
tion in certain situations to automatic membership termi-
nation by providing ‘‘out of work’’ credits. Griffith testified
that his understanding through 1989 had been that those
credits were not available to discharged employees: ‘‘You
have no likelihood of returning to work, no possibility of re-
turning to work. It didn’t seem very logical that you remain
a member of the union.’’ The General Counsel argues that
such an understanding is ‘‘patently rediculous.’’ But that
characterization is not supported by examination of article
16.
As currently written, the interaction of sections 18 and 19
of article 16 are not altogether clear respecting application of
‘‘out of work’’ credits to terminated employees. Under sec-
tion 18 it is clear that employees on checkoff are entitled to
those credits when laid off, on leave of absence, or dis-
charged. Yet, by its terms, section 19 extends the right of
‘‘continuous good standing’’ only to employees who are on
‘‘layoff or leave,’’ omitting any specific mention of ‘‘dis-
559DOUGLAS AIRCRAFT CO.
charged’’ employees. Where items are listed in one part of
document, be it a contract or statute, and only some of them
are enumerated in another provision of that same document,
it is not illogical to interpret that provision as being inappli-
cable to the omitted items. See, e.g., General Motors Corp.
v. U.S., 496 U.S. 530, 541 (1990). ‘‘The proximity of the
changes suggests that the variation in wording was not acci-
dental.’’ U.S. v. Hohri, 482 U.S. 64, 70 (1987). Con-
sequently, it is not illogical to interpret article 16 as not ex-
tending membership in ‘‘continuous good standing’’ to dis-
charged employees.
Of course, it turned out that Respondent International in-
terpreted its constitution as extending continuous membership
to terminated employees, as well as to employees on layoff
and leave, who qualified for out of work credits. Yet, Grif-
fith testified that such an interpretation constituted a change:
that originally membership had been terminated upon with-
drawal of a discharge grievance and that he learned in 1990
that there had been a change, possibly by constitutional
amendment, in the late 1970s in that interpretation. In ad-
vancing that explanation, Griffith appeared to be testifying
truthfully. Nothing in the record shows that he—or any other
Long Beach-based official—had become aware of that
change. Nor does the record show that prior to 1990 Re-
spondent Local had been allowing discharged employees to
continue as members after grievances concerning their termi-
nations were withdrawn or finally rejected. In short, the evi-
dence shows no more than that denial of membership to
Sonnier resulted from a mistake, but a good-faith one. Of
itself, mistaken interpretation of membership eligibility does
not constitute injury to a policy embedded in the labor laws.
Indeed, the General Counsel does not contend that good-faith
mistaken interpretation of membership eligibility violates
Section 8(b)(1)(A) of the Act.
What the General Counsel does contend is that Sonnier
had been arbitrarily deprived of his membership because of
antagonism arising from his opposition to Respondent
Local’s officers and their support for Respondent Employer’s
employee involvement programs. However, that contention is
not supported by a preponderance of the evidence. First, as
concluded in subsection III,C,1, supra, the credible evidence
does not show that Respondent Unions’ officials were will-
ing to compromise their integrity as union officers and to re-
taliate against Sonnier because of his formation of, and par-
ticipation in, UP’s activities, nor because of opposition to
programs that led him to engage in those activities. Second,
in the circumstances reviewed above, the seemingly abrupt
termination of his union membership was the result of nei-
ther arbitrary action nor illogical interpretation of Respondent
International’s constitutional provisions. Finally, some of the
October and November events about which Sonnier com-
plains resulted from belligerent and unprotected conduct di-
rected at Salazar by Sonnier and certain others who sup-
ported him.
It is undisputed that on October 4, Sonnier and four other
UP members—Mills, Tammy Sphax, Chris Cobos, and Roger
Espinoza—went to Salazar’s office to inquire about the sta-
tus of Sonnier’s grievance. Of course, that had been the date
of the latter’s decision to withdraw the grievance and of his
letter notifying Sonnier of that fact. However, during his
meeting with those individuals, Salazar admittedly did not
disclose his decision. Instead, he told them that he was still
evaluating whether or not to proceed further with the griev-
ance.
Salazar testified that he had chosen to be less than candid
at that time because he had become concerned—more accu-
rately, frightened—by the conduct of Sonnier’s group. Thus,
he testified that, after he had initially told them that he did
not discuss grievances with persons other than the grievant,
they had become abusive and threatening. Sonnier and Mills
each denied the latter assertion. However, certain undisputed
and admitted facts tend to support Salazar’s testimony to that
effect.
The outstanding such fact is Sonnier’s admission that
Salazar had threatened to call the police. That occurred, testi-
fied Salazar, because when he had asked the group to leave
his office on account of their conduct, they refused to do so
and he called the police, or at least picked up the phone to
do so, at which point the group did leave. It is undisputed
that the police had never previously been called to Respond-
ent Local’s hall. That Salazar had chosen to do so on this
particular occasion strongly tends to show that Sonnier and
his group had engaged in conduct that was unusually threat-
ening.
Second, Salazar testified that, as the meeting progressed,
Cobos had started to close the door and that when he asked
Cobos to leave it open, the latter had become threatening.
Although Sonnier and Mills denied that any member of their
group had raised his/her voice or had threatened Salazar dur-
ing this meeting, Cobos did not appear as a witness to deny
having engaged in that conduct. Further, Mills conceded that,
in fact, someone other than Salazar had closed the office’s
door during the meeting and that Salazar had said that he
wanted the door left open.
Third, Salazar testified that after the meeting he had made
an effort to ascertain the identities of those group members,
particularly Cobos, whose names he had not known. In fact,
he presented a document on which he had written the names,
addresses, and phone and badge numbers of Cobos and
Espinoza. He testified that he had obtained that information
by describing their physical appearances to officials who
were able to identify them. It hardly seems likely that
Salazar would have gone to the trouble of making such an
inquiry if his October 4 meeting with the group had been as
temperate as Sonnier and Mills portrayed it.
Finally, so unusual had been that meeting that it was still
being discussed at the hall the following morning. As a result
of hearing such discussions, Griffith learned about it. In an
ensuing conversation, Salazar related that his meeting with
the group on October 4 had been ‘‘a very threatening one’’
and that for that reason, ‘‘he just didn’t think it was a good
time to be giving [the grievance withdrawal decision] to
them and he had met his obligation by mailing it certified
mail and that Sonnier would get it the next day anyhow.’’
Griffith did not agree with that last assertion. While agree-
ing that Salazar did not have to put up with the abusive be-
havior that he heard had occurred on October 4, he did feel
that it was Salazar’s ‘‘obligation to tell’’ Sonnier about the
decision to withdraw the grievance. Salazar agreed. As the
monthly stewards council meeting was scheduled for that
afternoon, Salazar took advantage of Sonnier’s attendance at
it to inform him of the grievance’s withdrawal.
The complaint does not allege that an independent viola-
tion of the Act occurred when Salazar failed to notify
560 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Although the complaint alleges that Sonnier asked also for cop-
ies of ‘‘accompanying paperwork,’’ Sonnier described his initial re-
quests at several points when he testified. On each of those occa-
sions, save possibly one, he described a request for ‘‘a copy of my
grievance,’’ without once claiming that he had initially requested
copies of the other paperwork in the grievance file.
12 In so testifying, Sonnier added, ‘‘You know, the pertinent facts
regarding my case.’’ But he did not explain what he had meant by
that phrase and, more significantly, did not claim that he had ad-
dressed those words to Salazar. Nor did he retract his other descrip-
tions of his request—did not claim that he had initially requested on
October 5 anything other than ‘‘a copy of my grievance.’’
Sonnier on October 4 of the grievance’s disposition. How-
ever, it does allege that several unfair labor practices were
committed on the following day: refusing to supply Sonnier
with copies of his grievance and accompanying documents,
threatening Sonnier and others with arrest if they did not
leave the hall, expelling Sonnier from union membership,
and denying Sonnier membership rights, such as access to
the hall and the right to attend membership meetings. All but
the first of these allegations are based on admitted facts.
However, no violation of the Act resulted from any of the
conduct on October 5.
As to the first two allegations, after taking Sonnier into his
office on October 5, Salazar explained that he thought
Sonnier had violated the last and final chance agreement and,
consequently, that ‘‘I didn’t think we could win at arbitra-
tion.’’ Sonnier testified, ‘‘I immediately ask[ed] him for a
copy of my grievance.’’11 Salazar, however, testified that,
following notification of the grievance’s withdrawal, Sonnier
had left the office for a moment and had then returned, say-
ing ‘‘You’ll be sorry for this. You’re going to hell.’’ While
Sonnier denied having physically threatened Salazar on Octo-
ber 5, he admitted having left the office and then having re-
turned. Moreover, he did not specifically deny having di-
rected those comments at Salazar.
Before returning to Salazar’s office, Sonnier had tele-
phoned Mills. She testified, ‘‘He told me that [Salazar] had
withdrawn his grievance from the system and should he get
a copy of it and I said yes.’’ (Emphasis added.) Mills and
Tammy Sphax then came to the hall. In the meantime, as de-
scribed above, Sonnier had renewed his request for ‘‘a copy
of my grievance,’’12 but Salazar refused to give one to him.
Salazar testified that, in making that request, Sonnier had
been ‘‘loud and yelling and cursing, just like he did the day
before.’’ Interestingly, although Sonnier had denied specifi-
cally having engaged in such conduct on October 4, he did
not deny have done so on October 5. Instead, he denied only,
as set forth above, having physically threatened Salazar on
the latter date. More significantly, he did not deny that he
had been told by Salazar on October 5, ‘‘until you start act-
ing like a gentleman, we don’t have anything to say,’’ and,
further, ‘‘I’ve already mailed you . . . what’s required of
me. As chairman, I’ve mailed you a copy of your grievance
and your answer. It’s certified mail. You’ll get it probably
today.’’
Salazar testified that because Sonnier kept talking ‘‘real
loud’’ and ‘‘walking toward me at a fast pace,’’ he called
the sheriff. Mills testified that by the time she arrived at the
hall, she was told by Scott that Salazar had called the sheriff.
Accompanied by Sphax, she went into Salazar’s office and
asked why Salazar would not give Sonnier ‘‘a copy of the
papers,’’ to which Salazar replied, ‘‘he wasn’t going to give
him anything.’’ She then asked Howser, who had been
present during some of the exchange, ‘‘why didn’t he give
him a copy, that’s what the procedure was. He said their pro-
cedure was to go through the mail and it was in the mail
and he wasn’t giving him anything.’’ There is no evidence
that this had not been Respondent Unions’ normal procedure:
to mail a copy of the grievance to the grievant at the time
of notifying him/her of a grievance’s withdrawal.
When the two sheriff’s deputies arrived, Sonnier renewed
his request for ‘‘a copy of my grievance’’ and Salazar said
that he had already sent the information that Sonnier wanted,
adding that Sonnier no longer was employed by Respondent
Employer and was no longer a member of Respondent Local.
The latter remark was repeated to the deputies by Griffith
who came into the office for a few minutes as the argument
progressed. Griffith admittedly added that Sonnier had no le-
gitimate business there and should be arrested for trespass if
he did not leave.
This portion of the meeting concluded when, notwith-
standing normal procedure, Howser persuaded Salazar to
hand Sonnier a copy of his grievance. However, testified
Salazar, Sonnier suddenly made additional requests:
So finally after about five minutes of Don’s coach-
ing, I went and gave Wil a copy of his grievance. Not
the withdrawal paper, just the grievance because that’s
all he was asking for. I said, ‘‘Here you are and I want
you to leave.’’ He said, ‘‘F— you. You mother f—er.
This isn’t what I want. I want everything. I want it all
right now. You got to give it to me. I said, ‘‘That’s all
your [sic] getting. You’re going to have to leave.’’
And the sheriff said, ‘‘Mr. Sonnier, you got what
you asked for. I think it’s time for you to leave.’’ And
he said ‘‘I’m not leaving.’’
Although Sonnier denied that he had been given a copy of
the grievance that day, he did not deny any other aspect of
Salazar’s foregoing description. Mills did not deny any as-
pect of Salazar’s account, including that Sonnier had ulti-
mately been given a copy of his grievance. To the contrary,
she testified that she had intervened to persuade Sonnier to
leave, pointing out that nothing could be gained by staying.
Both Mills and Sonnier described certain remarks that oc-
curred afterward. For example, she attended the stewards
council meeting, but was ruled out of order, because not a
member of the council, when she asked Scott about the rea-
son for withdrawal of Sonnier’s grievance. There is no con-
tention, nor evidence to support a contention, that the ruling
had not been a correct one under Respondent Local’s ordi-
nary procedures. Mills further testified that during that meet-
ing Mallory had again popped up, this time purportedly stat-
ing to the council,
that out of his thirty-five some years working at [Re-
spondent Employer] he had never seen anything like
that before. That no union steward or no representative
of the union had been withdrawn from the system like
[that] and that something should be done about it. And
that we should know what was going on about the
grievance.
561DOUGLAS AIRCRAFT CO.
However, Mills did not describe any response to Mallory’s
asserted statement. Yet, if such a statement had been made,
the absence of a response seems odd, given the seriousness
of the accusation and the setting in which it had been pur-
portedly made. Further, Griffith testified that there had, in
fact, been prior instances where grievances of terminated
stewards had been withdrawn and he named three specific in-
dividuals as examples.
Mills further testified that on the following day she had
telephoned Bruce Lee, Respondent International’s regional
director. During direct examination she claimed that she had
told Lee about the withdrawn grievance and that Lee had re-
sponded, ‘‘he didn’t know anything about it and there was
a lot of politics down there and those people down at [Re-
spondent Local] was [sic] crazy and that he was going to
look into the matter and get with me.’’ Of course, since Lee
assertedly told Mills that he knew nothing about the griev-
ance’s withdrawal, it would be difficult to infer from his pur-
ported remark about ‘‘a lot of politics’’ that political consid-
erations—particularly improper ones arising from protected
internal union activities—had actually motivated the with-
drawal, especially in light of the considerations discussed in
subsection III,C,1, supra.
Sonnier, too, described a conversation with Lee. He testi-
fied that Hank Gonzales, Respondent International’s assistant
director, had also been present. During direct examination
Sonnier claimed that, after he had presented his facts, the
two International officials had promised to get back to him
in a couple of days, but never did so. However, during cross-
examination he omitted that promise, testifying that they had
only said that ‘‘they would . . . see if there was anything
that they could do with [Sonnier’s] information.’’ Apparently
they concluded that there was not ‘‘anything that they could
do with’’ it and, as with Mills, saw no need to respond to
the inquiry. In any event, there is no allegation that they
independently violated the Act by not contacting either
Sonnier or Mills, Moreover, the accounts of these post-Octo-
ber 5 conversations appear to have been part of the ongoing
attempt to cast the Respondents, this time Respondent Inter-
national, in the most unfavorable light.
As pointed out above, Sonnier returned to Respondent
Local’s hall on October 26 to attend the general membership
meetings that day. After ultimately telling Griffith that he
was there as a guest, Sonnier attended both meetings. Griffith
admitted that before the first meeting he had told Sonnier
that if he did not leave the hall, the sheriff would be called
again. Further, Griffith acknowledged that before the first
meeting he had announced to the membership that Sonnier
was no longer a member, that he had been asked to leave
but would not do so, and that the sheriff had been called.
In fact, Griffith had been bluffing. No one called the sher-
iff on October 26. He testified that Sonnier had not stated
a legitimate purpose for being at the hall that day and, in
light of Sonnier’s conduct on October 4 and 5, ‘‘threatening,
yelling, you know, I felt that he was particularly violent and
I had a Union Hall with 50, 60, 70 retirees in it.’’ However,
Sonnier had been unaware of the bluff and further, the re-
mark about calling the sheriff was repeated to him by Clarke
during the above-mentioned conversation with Sonnier and
Mills between the two sessions.
As it turned out, because of the erroneous termination of
Sonnier’s membership, he was deprived of the opportunity to
submit his name into nomination as a candidate for bar-
gaining committee. Further, he was denied the opportunity to
cast a ballot in Respondent Local’s officers’ election on No-
vember 7. The General Counsel alleges that by these action
Respondent Unions further violated the Act. Yet, as dis-
cussed above, the decision to terminate Sonnier’s member-
ship was neither an unlawfully motivated nor arbitrary one.
Certainly there is no basis for concluding that it had been
specifically motivated by intention to preclude Sonnier from
running for union office, nor from voting for candidates in
Respondent Local’s internal election. Consequently, no viola-
tion of the Act occurred when Sonnier’s membership had
been terminated in October. Furthermore, inasmuch as labor
organizations are allowed under the Act to restrict their inter-
nal affairs to members, see, e.g., NLRB v. Food & Commer-
cial Workers Local 1182 (Seattle-First National Bank), 475
U.S. 192 (1986), there was no violation of the Act when
Sonnier was barred from participating in such members’ ac-
tivities as being allowed to attend membership meetings, to
submit his name into nomination for office, and to vote in
Respondent Local’s election for officers.
Nor was the Act violated by the threats to call the sheriff
that were made on October 26 and by the call that actually
was placed on October 5. As set forth above, a preponder-
ance of the credible evidence establishes that Sonnier had be-
come belligerent and abusive toward Salazar on October 4
and 5, as had some of the group that had accompanied him
on the earlier date. Of course, the Act protects an employee’s
right to protest disposition of his/her grievance and to argue
that an incorrect disposition of it was made. But it does not
oblige labor organizations’ agents to remain passive objects
of threats and excessive abuse. That is what happened on
October 4 and 5. Accordingly, a preponderance of the cred-
ible evidence shows an objective basis for Salazar’s fear that
the situation might escalate to an actually violent one on Oc-
tober 5 and that his call for police protection did not violate
the Act. Nor, in light of Sonnier’s conduct on those dates
and his failure to voice a legitimate reason for attending the
general membership meetings, was it illogical for Griffith to
be apprehensive and threaten to call the sheriff on October
26 if Sonnier did not leave the hall. In neither instance does
a preponderance of the evidence show an intent to prevent
Sonnier from engaging in intraunion activity that is protected
by the Act.
Finally, the preponderance of the credible evidence does
not support the allegation that Sonnier had been unlawfully
deprived on October 5 of information in connection with his
grievance. In the first place, Sonnier had admittedly re-
quested initially no more than a copy of his grievance. That
had already been sent to him along with the letter notifying
him of the grievance’s withdrawal. Sonnier did not deny spe-
cifically having received that copy when he did receive
Salazar’s October 4 letter. Further, it is undisputed that, as
Salazar credibly testified, Respondent Local’s standard proce-
dure is to mail, not hand, the grievant a copy of the griev-
ance when it is withdrawn. There is nothing inherently im-
proper in this procedure and the General Counsel did not so
contend. Moreover, the General Counsel does not advance
any basis for an exception to the ordinary procedure for em-
ployees in Sonnier’s situation.
Nor was the Act violated by Salazar’s denial of Sonnier’s
ultimate demand for ‘‘everything.’’ There is no evidence that
562 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
Respondent Unions ordinarily turned over to grievants any-
thing other than a copy of their grievances. Indeed, a con-
trary procedure could well undermine their ability to inves-
tigate grievances through disclosure of information adverse
to grievants revealed by coworkers. Faced with such a pros-
pect of disclosure, coworkers might well be restrained from
honestly responding during such investigations, thereby im-
pairing bargaining agents’ ability to ascertain the true facts
underlying grievances and, in turn, to impairment of the dis-
putes resolution procedures by forcing meritless cases to ar-
bitration due to lack of information. Vaca v. Sipes, supra.
In the final analysis, however, it is not necessary to reach
that question. For, there is no basis for concluding that
Sonnier’s request for ‘‘everything’’ had been legitimately
motivated and, further, for concluding that Salazar had
viewed it as a legitimate one, as opposed to being motivated
by an attempt at further harassment on October 5. As pointed
out above, there is no evidence that Respondent Local ordi-
narily turned over such information to a grievant. Sonnier’s
request was ambiguous and, further, was made belatedly,
only after Salazar had acquiesced to Sonnier’s demand for
another, hand-delivered copy of his grievance. Moreover,
Sonnier’s request was prefaced by additional personal invec-
tive, thereby tending to further indicate an intent to harass
and abuse Salazar, rather than a genuine need to secure in-
formation. Sonnier advanced no particular need at that time
for obtaining additional information from the grievance file.
In fact, the General Counsel has not advanced one in the cir-
cumstances of this case—has not explained how Sonnier’s
situation would have been advanced by delivery of ‘‘every-
thing’’ to him. The absence of a genuine need for that infor-
mation is reinforced by the fact that Sonnier neither renewed
his request for additional information at a later time, nor did
he engage in any subsequent activity that necessitated reli-
ance on that information, despite his appeals to Respondent
International and, later, to the general membership.
Therefore, a preponderance of the evidence does not sup-
port the allegation that Sonnier had genuinely sought addi-
tional information and that Respondent Unions unlawfully
denied to provide it to him. Nor does it support any of the
alleged unfair labor practices by Respondent Unions.
CONCLUSION OF LAW
Douglas Aircraft Company, a component of McDonnell
Douglas Corporation, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW, Local
Union No. 148, and, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America,
UAW have not violated the Act in any manner alleged in the
amended consolidated complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
It is hereby ordered that the amended consolidated com-
plaint be dismissed in its entirety.