GENERAL TEAMSTERS LOCAL 528
General Teamsters Local Union No. 528, affiliated
with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America (Associated Grocers Co-Op) and
Paul E. Cain. Case 10-CB-3588
November 17, 1982
DECISION AND ORDER
BY MEMBERS JENKINS, ZIMMERMAN, AND
HUNTER
On July 22, 1982, Administrative Law Judge
Leonard N. Cohen issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions2 of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
General Teamsters Local Union No. 528, affiliated
l Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
In affirming the Administrative Law Judge, we find it unnecessary to
rely on Respondent's failure to call witnesses to corroborate the testimo-
ny of Business Representative Flournoy. In this regard we note that the
Administrative Law Judge relied on independent grounds for his credibil-
ity resolutions, including demeanor.
2 In adopting the Administrative Law Judge's conclusion that Re-
spondent unlawfully refused to accept and process the Charging Party's
grievance, we rely particularly on his findings concerning the telephone
conversation on the evening of May 14, 1981. According to the credited
testimony, Respondent's business representative, Edward Flournoy, tele-
phoned the Charging Party, Paul Cain. Flournoy asked Cain whether he
was a member of the Union and whether he paid union dues. After reply-
ing in the negative, Cain asked Flournoy if he could file a grievance or
otherwise receive any help from the Union concerning his discharge.
Flournoy responded that he could not, asserting that, because Cain was
not a union member and did not pay dues, he did not have the right to
use the grievance procedure in the collective-bargaining agreement. Ac-
cordingly, we agree with the Administrative Law Judge's conclusion that
Respondent unlawfully failed to represent Cain, insofar as its failure was
based on Cain's lack of union membership.
3 In order to make the Charging Party whole for any loss of earnings
he may have suffered as a result of Respondent's unlawful action, we
shall modify the remedy to compute any backpay due him from the date
of his discharge, on May 12, 1981.
265 NLRB No. 51
with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, College Park, Georgia, its officers, agents, and
representatives, shall take the action set forth in the
recommended Order, as so modified:
1. Substitute the following for paragraph 2(b):
"(b) Make Paul E. Cain whole for any loss of
earnings he may have suffered as a result of his dis-
charge from Associated Grocers Co-Op from the
date of May 12, 1981, until he is reinstated by the
Company, obtains other substantially equivalent
employment, or his grievance is diligently proc-
essed through to its proper conclusion. Backpay is
to be computed in accordance with the formula set
forth in F. W Woolworth Company, 90 NLRB 289
(1950), with interest to be computed in the manner
prescribed in Florida Steel Corporation, 231 NLRB
651 (1977). (See, generally, Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).)"
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT fail or refuse to represent
fairly any employees in the bargaining unit
represented by us or arbitrarily fail or refuse
to file and process any employee's grievances.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
rights guaranteed to them in Section 7 of the
Act.
WE WILL request Associated Grocers Co-
Op to reinstate Paul E. Cain to his former po-
sition or, if it no longer exists, to a substantial-
ly equivalent position. If it refuses to reinstate
him, WE WILL request to waive the time limi-
tation contained in the grievance provisions of
the contract and, if the Company agrees to
waive the time limitation, WE WILL process
Cain's grievance diligently through to its
proper conclusion.
WE WILL make Paul E. Cain whole, with
interest, for any losses he may have suffered as
415
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a result of our failure promptly to file and
process his grievance.
GENERAL TEAMSTERS LOCAL UNION
No. 528, AFFILIATED WITH THE IN-
TERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMER-
ICA
DECISION
STATEMENT OF THE CASE
LEONARD N. COHEN, Administrative Law Judge: This
case was heard before me on May 12, 1982, in Atlanta,
Georgia. On July 8, 1981,1 the Acting Regional Director
for Region 10 of the National Labor Relations Board
issued a complaint and notice of hearing based on unfair
labor practice charges filed on May 15. The complaint
alleges that Respondent in violation of Section 8(bXlXA)
failed and refused to accept or process a grievance filed
by and over the discharge of employee Paul E. Cain, be-
cause of Cain's nonmembership in Respondent's organi-
zation and for other arbitrary, invidious, and irrelevant
considerations. Respondent's timely filed answer denies
the commission of any unfair labor practices.
All parties have been afforded full opportunity to
appear, to introduce evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file written
briefs. Both counsel filed briefs which have been careful-
ly considered.
Upon the entire record of the case and from my obser-
vation of the witnesses and their demeanor, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Associated Grocers Co-Op, herein called AG, is and
has been at all times material a Georgia corporation with
its office and principal place of business in College Park,
Georgia, where it is engaged in the warehousing and dis-
tribution of food products. During the past calendar
year, which period is representative of all times material
herein, AG purchased and received at its College Park
facility goods valued in excess of $50,000 directly from
suppliers located outside the State of Georgia. Respond-
ent admits and I find and conclude that AG is and has
been at all times material an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE STATUS OF RESPONDENT
Respondent admits and I find and conclude that it is
and has been at all times material a labor organization
within the meaning of Section 2(5) of the Act.
I Unless otherwise indicated all dates are in 1981.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts2
1. Cain's discharge
On the evening of May 12, Paul Cain, a warehouse-
man employed on a part-time basis by AG, reported to
work. His first job assignment that evening was to assist
two fellow employees in the unloading of a truck.
During the course of the unloading, Cain turned to Fred
Herndon, a regular full-time employee, and stated "I
want you to know who is helping you. Us white part-
timers and not those niggers outside." Herndon, who is
black, asked Cain where he was coming from. Cain an-
swered that he did not know. On three separate occa-
sions immediately following this remark Cain apologized
to Herndon and on each such occasion Herndon told
Cain to forget about it.
Word of Cain's remark spread rapidly throughout the
loading dock area, for within the next hour or two three
rank-and-file employees as well as Supervisor Russ
Wiley approached Cain and asked what had occurred.
During each of these conversations Cain indicated that it
was a misunderstanding and that he had already apolo-
gized to Herndon. One of these encounters involved
Steve Payton, one of the two night-shift employees hold-
ing the position of union steward. Payton, a black, told
Cain that if he had been Herndon, he would have killed
Cain.
About an 1-1/2 hours after Cain made the remark in
question, Payton called James Catel, the then vice presi-
dent of warehouse operations, at his home, told him of
the remark, and indicated that everyone was upset and
the situation tense. Catel then called the supervisor,
Wiley, and confirmed with him the substance of what
Payton had reported. Catel told Wiley that he would
come in shortly to handle the matter personally.
At or about 9:30 that evening Catel, accompanied by
Director of Security Vernard Cruse, arrived at the ware-
house. Catel then proceeded to call all the principals in-
volved into a meeting in his office.8
At the start of the meeting Herndon told the assem-
bled group both what Cain had said and the fact that
Cain had apologized. Cain, after first agreeing with
Herndon's version, stated that he had been threatened by
Payton. When Payton vehemently denied threatening
Cain, Catel asked Cain and Herndon to leave the meet-
ing. Catel first informed the remaining members of the
group that he could do nothing about the alleged threat
by Payton since it involved a one-on-one credibility
matter which he could not resolve. Catel then stated that
he was going to discharge Cain for violation of company
rule 10(a) "Immoral or Indecent Conduct." 4
2 Except where specifically noted the facts are not in dispute.
3 Also present at this meeting was Howard Radford, the other union
steward assigned to the night shift.
4 Rule 10(a) of the collective-bargaining agreement in effect between
the parties provides that indecent or immoral conduct is just cause which
subjects an employee to immediate discharge. The rule in question does
not attempt to define the phase "Indecent or Immoral Conduct."
Catel credibly testified that he reached this decision without any input
from or discussion with either of the union stewards or his supervisors
present at this meeting.
416
GENERAL TEAMSTERS LOCAL 528
Catel then called Cain back into the office and in-
formed him that in view of his admission of misconduct
he (Catel) felt that he had no choice but to discharge
Cain.
2. The events of the morning of May 14
On the morning of May 14 Cain called Respondent's
office and spoke with a secretary. When Cain inquired
how to go about filing a grievance against AG, he was
told that he should speak with Edward Flournoy, Re-
spondent's secretary-treasurer and the business repre-
sentative with direct authority to administer the AG con-
tract. The secretary further informed Cain that coinci-
dentally Flournoy was at AG that morning for a griev-
ance meeting. Cain then asked if he could leave his name
and phone number in case he did not get the chance to
go out to AC while Flournoy was still there. The secre-
tary took the information along with the message to ask
Flournoy to call Cain at his home number.
Around noon on May 14 Cain, accompanied by his
father, Jesse Cain, drove out to the AG facility where
they picked up Cain's final paycheck. When Cain asked
if he could speak with Flournoy, he and his father were
shown into a reception room by Director of Security
Cruse. After a few minutes Flournoy, a black man,
walked into the reception room and approached Cain.5
Flournoy asked him if he was Paul Cain. When Cain
nodded his head yes, Flournoy stated: "You used a six
letter word against a fellow employee. That's it. You're
fired. There is nothing I can do for you." Flournoy
abruptly then turned around and walked out of the
room.
Before describing Flournoy's version of this conversa-
tion, it is necessary, by way of background, to detail
Flournoy's testimony with regard to the entire events of
the morning of May 14. Flournoy testified that prior to
the start of the grievance meeting on May 14, Catel in-
formed him of the incident involving Cain.6 Catel fur-
ther told Flournoy that because of the severity of the in-
cident he had discharged Cain. When Flourney suggest-
ed that they hold off discussing the Cain matter until
after all the other grievances had been resolved, Catel
answered that they could talk about it later but that the
Company's position was final. ?7 At some later point that
morning, but still prior to Cain's noontime arrival at the
facility, Flournoy testified that he caucused with the
grievance committee and apparently, although the record
is far from clear, decided that the Union would not pro-
ceed further regarding the Cain incident.
At this point Cain apparently arrived, because Flour-
noy was summoned to the reception room. Not surpris-
ingly, Flournoy's version of this conversation differs sub-
stantially from that given by Cain, and as corroborated
by Cruse. According to Flournoy, he greeted Cain with
This account is based on the mutually corroborated testimony of
Paul Cain, Jesse Cain, and Cruse, who during the conversation stood in a
doorway nearby.
' Although it is not clear, it appears that prior to this conversation
Flournoy may have been informed of the incident by Steve Payton.
Payton did not testify.
7 On crosu-euamination, Flourney added that, in the discussions that
morning with Catel, he had suggested that Cain be merely reinstated on a
nonprecedent-setting basis.
a smile and a handshake. Flournoy then told Cain that he
had asked the Company to reinstate him but that the
Company had taken a hard stand and, under the circum-
stances, the Union had no alternative but not to proceed
further. Before leaving, Flourney added that he would
get back in touch with Cain later that afternoon.
Flournoy further testified that, at the conclusion of his
grievance meeting with Catel, he again broached the
subject of Cain's reinstatement, but that Catel again indi-
cated the Company's intransigence on the subject.
Following the meeting Flournoy testified that he re-
turned to his office where he reviewed certain labor arbi-
tration reports. In so doing, he claimed he found a simi-
lar case where an arbitrator had upheld the discharge of
an employee and, based on this precedent, finally decid-
ed that Cain's discharge lacked the merit to justify pro-
ceeding further. Flournoy did not identify the arbitration
case upon which he allegedly based his decision.
Most, if not all, of Flournoy's conversations at the
grievance meeting with Catel about the Cain situation
were in the presence of various employee union stew-
ards. However, Respondent did not call any of these in-
dividuals to corroborate or elaborate upon Flournoy's as-
sertions that he sought both before, during, and after the
meeting the reinstatement of Cain but that he was con-
sistently and firmly rebuffed by Catel.
Catel did testify at the hearing as a witness for the
General Counsel. Catel displayed a sharp recollection of
both the events of Tuesday evening, May 12, as well as
those portion of his conversations on May 14 in which
he informed Flournoy of the Cain situation and the final-
ity of the Company's decision with regard to Cain's dis-
charge. Catel, however, suffered a total memory failure
concerning what, if anything, Flourney said either before,
during, or after the grievance meeting about the Compa-
ny's actions.
3. The telephone call of Thursday afternoon
Late in the afternoon of May 14 Flournoy and Cain
had a telephone conversation which form basis for the
instant complaint. As with their earlier conversation, the
two offer materially different versions which cannot be
reconciled or resolved short of crediting one witness and
discrediting the other.
According to Cain's account, at or about 4:30 or 5
p.m., he received a telephone call from an individual
who after identifying himself as a Mr. Flournoy stated
that he was returning Cain's call. Cain answered that he
had wanted to file a grievance, but that Flournoy had al-
ready talked to him earlier that day. At this point Flour-
noy asked Cain if he was the gentlemen in the lobby and
Cain answered that he was. Flournoy then asked Cain if
he were a union member and Cain responded that he
was not. Flournoy then asked if he paid dues as a part-
timer. Again Cain responded that he did not. At this
point Cain asked Flournoy if he knew about his situation.
When Flournoy responded that Steve Payton had told
him about it, Cain asked if Flournoy also knew that
Payton had threatened to kill him (Cain). Flournoy an-
swered that he was not aware of that fact. Cain then
asked if he could file a grievance or get any kind of help
417
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the Union. Flournoy responded that since Cain was
not a union member and did not pay dues he did not
have the right to the grievance procedures. Cain then
stated that he had a complaint in 1979 against a supervi-
sor and had filed a grievance on that occasion. Flournoy
answered that he did not know anything about the prior
occasion, but that he could not help Cain on this occa-
sion. That ended the conversaton.
According to Flournoy's account, he indicated to Cain
that the Company was taking a hard line but that he
would try again to see if he could persuade the Compa-
ny to take him back to work. At some point near the end
of the conversation, Cain brought up the fact that he was
a part-time employee. Flournoy merely answered that
Cain's status did not matter. Flournoy specifically denied
ever telling Cain that the reason he would not process
Cain's grievance was because of his part-time or non-
union status.
Flournoy testified that in his 8-1/2 years as the Union's
chief administrator of the contract he has processed
grievances for and represented the interest of part-time
employees who were not members of the Union. This
fact is borne out by the testimony of Catel and by Cain
himself. The record does not disclose whether or not the
Union has ever processed a grievance for a nonmember
to arbitration.
B. Analysis and Conclusions
There is no dispute between the parties as to the gen-
eral legal standards to be applied in cases involving a
union's duty of fair representation. As both counsel note,
the union, as a statutory bargaining agent of the employ-
ees in the appropriate bargaining unit, must administer
the grievance-arbitration provision of the collective-bar-
gaining agreement fairly, impartially, and in good faith.
A breech of that duty occurs when its conduct toward a
member of the unit is arbitrary, discriminatory, or in bad
faith.8
To apply these principles to the instant matter, one
must first resolve the serious credibility conflicts between
the respective versions offered by Cain and Flournoy re-
garding their two discussions on Thursday, May 14. Cain
testified in a straightforward and certain manner and
generally impressed me both by his demeanor as well as
the consistency of his testimony. Moreover, Cain's testi-
mony regarding the reception room confrontation with
Flournoy was corroborated not only by his father but by
AG's director of security, Venard Cruse. Cruse was an
impartial witness with no apparent reason to fabricate his
testimony to assist the charging party.
Flournoy, on the other hand, testified in a much more
hesitant and uncertain fashion. His ability to recall specif-
ics of conversation seemed to depend in a large extent
upon both who was asking the questions as well as the
nature of the testimony given by others. Accordingly, I
credit Cain's account of both conversations with Flour-
noy on May 14. In finding that Flournoy informed Cain
that he did not, by virtue of his lack of union member-
ship, have access to the grievance procedure, I am not,
of course, unmindful of the fact that both Flournoy and
a Vaca v. Sipes, 386 U.S. 171 (1967).
Cain knew the falsity of this position. However, I am not
persuaded that that factor alone rendered Flournoy's
making of the offending remarks improbable. According-
ly, I conclude that Flournoy's statement to Cain that he
did not have the right to utilize the grievance procedure
because he was not a member of the Union restrained
and coerced him in the exercise of his rights guaranteed
by Section 7 and Respondent thereby violated Section
8(b)(l)(A) of the Act. International Brotherhood of Boiler-
makers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers,
AFL-CIO, Local 132 (Kelso Marine, Inc.), 220 NLRB
119, 121 (1975).9
Resolution of this issue did not dispose of the more
difficult question as to whether Respondent's refusal to
carry Cain's discharge to arbitration was actually based
in whole or in part upon Cain's nonunion status. For
were I to find that irrespective of his words, Flournoy in
his meeting earlier on May 14 with Catel strongly advo-
cated Cain's case, and that he decided not to carry the
matter to arbitration solely because he objectively con-
cluded that it lacked merit, I would have no alternative
but to recommend dismissal of this allegation. Unfortu-
nately for Respondent, I am unable on the record before
me to conclude that Respondent undertook to represent
Cain at any time on or after May 14. In reaching this
conclusion I rely on several factors. First and foremost
among these was the utter and complete failure of Catel
to recall what, if anything, Flournoy said when told of
the Company's action in discharging Cain 2 days before.
As noted above, Catel's memory with regard to other
events and conversations regarding this affair was sharp,
clear, and complete. The most probable exclamation for
Catel's inability to recall Flournoy's reactions on May 14
was Flournoy either did not express any position on the
matter1 ° or that, in apparent agreement with union stew-
ard Payton, he felt that Cain's use of the highly offensive
racial epithet was cause for Cain's discharge. The later
possibility would be entirely consistent with the personal
animosity exhibited by Flournoy to Cain at their encoun-
ter in AG's reception room. The final factor which con-
vinces me that the events did not occur in the manner
testified to by Flournoy was the failure of Respondent to
call any of the union stewards present at the grievance
meeting to confirm or corroborate Flournoy's testimony
that he in fact advocated Cain's reinstatement. The
reason for this failure is obvious-no such evidence exist-
ed.
Whether one attributes the Union's failure to represent
Cain's interest to his lack of union membership, as I have
found Flournoy himself admitted, or to a racially moti-
vated decision, or to a combination thereof, I conclude
that by this conduct Respondent breeched its duty of fair
representation and restrained and coerced Cain in the ex-
' While the complaint does not allege Flournoy's statement as an inde-
pendent violation of Sec. 8(bXIXA), this incident was fully litigated at
the hearing and is so central to the complaint allegation as to justify a
specific finding of a violation. See Alexander Dawson, Inc., d/b/a Alexan-
der's Restaurant and Lounge, 228 NLRB 1965 (1977).
10 It must be recalled that at the time of the grievance meeting Cain
had neither filed a written grievance nor indicated to anyone at the meet-
ing that he wished to file a grievance over his discharge.
418
GENERAL TEAMSTERS LOCAL 528
ercise of his Section 7 rights and thereby violated Sec-
tion 8(bXIXA) of the Act.II
THE REMEDY
Having found that the Union has engaged in certain
unfair labor practices, I will recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. Inasmuch as
the Union failed and refused to process Cain's grievance
and thereby restrained and coerced him in violation of
Section 8(bXIXA) it must be held liable for any loss Cain
may have suffered as a result thereof. Therefore, I will
recommend that the Union be ordered first to request
that the Company reinstate Cain; second, failing this, the
Union should be ordered to request that the Company
waive the time limitations contained in the grievance
provisions of the contract and, if the Company agrees to
waive the time limitation, to process Cain's grievance di-
ligently through its proper conclusion. 2
The Union's backpay liability must be limited to any
loss suffered by Cain as a result of its refusal to process
his grievance. Consequently, I shall recommend that the
Union make Cain whole for any loss he may have suf-
fered as a result of his discharge by the Company from
the date of his communication with the Union on May
14, 1981, until any one of the following shall occur: Cain
is reinstated by the Company; he obtains other substan-
tially equivalent employment; or his grievance is diligent-
ly processed through to its proper conclusion. Backpay
is to be computed in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289 (1950),
with interest to be computed in the manner prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977).
CONCLUSIONS OF LAW
I. Associated Grocers Co-Op is an employer engaged
in commerce and in operations affecting commerce
within the meaning of Section 2(6) and (7) of the Act.
2. General Teamsters Local Union No. 528, affiliated
with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. By informing Paul E. Cain that the Union would
not properly process and present his grievance because
of his nonmembership in the Union, the Union has re-
strained and coerced him in the exercise of rights guar-
anteed him in Section 7 of the Act, thereby violating
Section 8(bXIXA) of the Act.
4. By failing and refusing to fairly and properly repre-
sent and process the grievance of Paul E. Cain in regard
to his discharge, the Union has restrained and coerced
him in the exercise of rights guaranteed him in Section 7
i X See Truck Dn'verx Oil Drivers and Filling Station and Platform Work.-
ers Local Na 705 (Associated Transport, Inc). 209 NLRB 292 (1974), peti-
tion for review denied 532 F.2d 1169 (7th Cir. 1976); Glas Bottle Blowers
Association of the United States and Canada AFL-CIO. Local Na 106
(Owens-Illinois Inc.), 240 NLRB 324 (1979).
"2 Teamsters Local 559, an affiliate of the International Brotherhood of
Teamsters, Chauffeus. Warehousemen and Helpers of America (Mashkin
Freight Line Inc.),. 243 NLRB 848, 850-851 (1979).
of the Act, thereby violating Section 8(bXIXA) of the
Act.
5. The aforesaid unfair labor practices occurring in
connection with the operations of Associated Grocers
Co-Op have a close, intimate, and substantial relationship
to trade, traffic, and commerce among several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce within the
meaning of Section 2(6) and (7) of the Act.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record in this case, I
hereby issue the following recommended:
ORDER 3'
The Respondent, General Teamsters Local No. 528,
affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, College Park, Georgia, its officers, agents, and repre-
sentatives, shall:
1. Cease and desist from:
(a) Restraining or coercing any employees in the exer-
cise of the rights guranteed them by Section 7 by arbi-
trarily failing and refusing to fairly and properly repre-
sent them or to process their grievances.
(b) Restraining or coercing employees in any like or
related manner.
2. Take the following affirmative action which is nec-
essary to effectuate the purposes of the Act:
(a) Request Associated Grocers Co-Op to reinstate
Paul E. Cain to his former position or, if it no longer
exists, to a substantially equivalent position. If Associated
Grocers Co-Op refuses to reinstate him request that the
Company waive the time of limitation contained in the
grievance provisions of the contract and, if the Company
agrees, to waive the time limitation to process Cain's
grievance diligently through its proper conclusion.
(b) Make Paul E. Cain whole for any loss of earnings
he may have suffered as a result of his discharge by As-
sociated Grocers Co-Op from the date of May 14, 1981,
until he is reinstated by the Company or obtains other
substantially equivalent employment or his grievance is
diligently processed through to its proper conclusion.
Backpay is to be computed in accordance with the for-
mula set forth in the section of this Decision entitled
"The Remedy."
(c) Post at its business offices, meeting halls, and at all
places where notices are customarily posted, including
all such places at Associated Grocers Co-Op, copies of
the attached notice marked "Appendix."14 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by the Union's repre-
sentative, shall be posted by the Union immediately upon
" In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
14 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Punu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
419
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
receipt thereof and be maintained by it for 60 consecu-
tive days thereafter. Reasonable steps shall be taken by
the Union to ensure that said notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director for Region 10, in
writing, within 20 days of the date of this Order, what
steps have been taken to comply herewith.
420
