Lea Industries

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1136 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lea Industries and Patricia Watkins Green
Upholsterers International Union of North America,
AFL-CIO, Local 335 and Patricia Watkins
Green. Cases 1I -CA-9628 and 11-CB-970
May 28, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WAITER AND
MEMBERS JENKINS AND HUNTER
On January 8, 1982, Administrative Law Judge
Frank H. Itkin issued the attached Decision in this
proceeding. Thereafter, Respondents filed excep-
tions and supporting briefs, and the Charging Party
filed an answering 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
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge found that Re-
spondent Union (hereinafter called the Union) vio-
lated Section 8(b)(l)(A) of the Act by failing to file
and process a grievance on behalf of Charging
Party Green because she was not a member of the
Union. As discussed below, we agree with this
finding. The Administrative Law Judge further
found that Respondent Employer (hereinafter
called the Company) violated Section 8(a)(3) and
(1) of the Act by its full participation and complic-
ity in the Union's unlawful conduct and by failing
to reinstate the Charging Party. Contrary to the
Administrative Law Judge, we find that the Com-
pany did not violate Section 8(a)(3) and (1).
The essential facts of this case, as found by the
Administrative Law Judge, are as follows. On
Friday, August 15, 1980,2 employees Green, Swal-
lows, Jones, and Barnett lunched together in the
Company's parking lot. During a discussion about
Barnett's pending grievance concerning her recent-
ly completed layoff, Green asked whether Barnett
had said the day before that Green had not been
laid off because she was providing sexual favors to
a supervisor. When Barnett admitted that she had,
Green asserted that Barnett's husband engaged in
' Respondents have 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 Nl.RB 544 (1950)), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings
2 All dates hereinafter refer to 1980, unless otherwise indicated
261 NLRB No. 166
sexual conduct with Swallows. Swallows slapped
Green, and Green proposed leaving the company
property to fight. Swallows again slapped Green,
then turned and walked away. Green, infuriated,
followed Swallows and kicked her in the back. The
two then fought for about 4 minutes.
Later that day, Personnel Manager Rogalski
summoned Green and Swallows to separate meet-
ings to talk about the incident. Rogalski, in another
meeting at which both Green and Swallows were
present, stated that witnesses to the incident to
whom he had spoken gave conflicting accounts,
and that, because he could not establish who struck
the first blow, he had no recourse but to fire them
both. He advised them that they could come in on
Monday to meet with the grievance committee if
they wished to file a grievance. At the end of the
day, Green and Swallows met at the timeclock.
Green accused Swallows of lying and warned that
she would sooner or later "beat the hell out of
you."
On Monday, August 18, Green telephoned the
plant about filing a grievance. The secretary told
her to meet with the grievance committee that day.
When she arrived at the plant, Rogalski asked her
whether she was there to file a grievance. She re-
plied affirmatively, and he responded that she
would need to meet with the grievance committee
in the cafeteria. She then spoke with employees
Nolan and Caldwell about filing a grievance. Nolan
said she would have to see Union Secretary Cog-
dill. When Green told Cogdill she was there to file
a grievance, Cogdill replied, "We'll take care of it
. just go up to the cafeteria and wait for me."
Swallows, who was also at the plant on August
18, met first with employees Clements, Nolan,
Caldwell, and Union Secretary Cogdill 3 in the
cafeteria. Later, Green met with the same people
and gave them her version of the August 15 inci-
dent. Green understood that she was meeting with
the grievance committee. In fact, the four individ-
uals comprise the Union's grievance committee.
Green left the plant believing that she had filed a
grievance.
Swallows returned to work on August 27.4
Around that time Green learned that the Company
had reinstated Swallows. Green went to the plant
to inquire about her grievance and was informed
that no written grievance had been filed on her
behalf. When she asked Cogdill why he had not
filed her grievance, he answered, "That's not nor-
mally my duty." She then spoke with Rogalski,
: Cogdill, apparently, is also an employee.
4 he record indicates that a written grievance was filed on her behalf
on August 20, and that the Conmpany and the Union met to discuss the
grie'ance on August 22.
1136
LEA INDIUSTRIFS
who explained that he could not rehire her because
he had received no written grievance regarding
her. When she reminded him that she had said she
wanted to file a grievance, he added that, even if
she had filed one, it would not have mattered be-
cause he and Cogdill had discussed the situation
and decided that Swallows would be rehired.
Relying primarily on the difference in represen-
tation accorded union member Swallows and union
opponent Green, the Administrative Law Judge
found, and we agree, that the Union's conduct in
this matter constituted a violation of Section
8(b)(1)(A). We also note in particular that Green
came to the plant on August 18 to file a grievance,
told union grievance committee members Nolan
and Caldwell that she wanted to file a grievance.
and Union Secretary Cogdill assured her when she
told him she was at the plant to file a grievance
that he would "take care of it." Such circum-
stances support a conclusion that the Union knew
Green wished to file a grievance and that the
Union misled her into believing, to her detriment,
that the Union was pursuing her grievance.
The Administrative Law Judge also found that
the facts clearly showed Swallows rather than
Green was the aggressor in the August 15 fight
and that the Company was aware Swallows insti-
gated the fight. He further found that the reasons
advanced by the Company for rehiring Swallows
but not Green were unsubstantiated, shifting, and
belated. On the basis of these findings, he conclud-
ed that the Company knowingly acquiesced in the
Union's unlawful course of conduct and, in so
doing (and by refusing to reinstate her), discrimi-
nated against Green in a manner intended to en-
courage union membership. We reverse.
In general, to sustain an 8(a)(3) allegation, the
General Counsel must establish that the employer
had knowledge of the alleged discriminatee's union
activity. We do not believe the record establishes
such knowledge. While the Administrative Law
Judge found that Green made clear to union sup-
porters and coworkers her unwillingness to join the
Union, he did not mention this fact in concluding
that the Company knowingly acquiesced in the
Union's disparate treatment of Green. After careful
review of the entire record, we conclude that there
is no basis for imputing to the Company knowl-
edge of Green's antiunion stance. Her testimony
concerning her union activity related to her en-
counter in a company bathroom with some co-
workers, including Nolan (a union officer). Exami-
nation of her by counsel and the Administrative
Law Judge failed to reveal that the Company
knew of this encounter, and failed to disclose any
other grounds on which to base a finding that the
Company was aware of her antiunion position. Ac-
cordingly, we conclude that the General Counsel
has not met his burden of establishing by the neces-
sary preponderance of the evidence that the refusal
to reinstate Green was unlawfully motivated.5
We shall therefore dismiss the 8(a)(3) and (I)
complaint against the Company. Consequently,
having found that the Union discriminated against
the Charging Party in violation of Section
8(b)(l)(A), we shall modify the Administrative
Law Judge's remedy and recommended Order to
conform with our standard remedy in such cases.
See Laborers International Union of North America.
Local 324, AFL-CIO (Center Homes of California.
Incorporated). 234 NLRB 367 (1978).
AMENlDil CONCLUSIONS OF LAW
Delete Conclusion of Law 4, and renumber the
subsequent Conclusions of Law accordingly.
AMENDIl) RFMF.I)Y
Having found that Respondent Union has en-
gaged in certain unfair labor practices, we shall
order it to cease and desist therefrom and take cer-
tain affirmative action necessary to effectuate the
policies of the Act.
Because of Respondent Union's unlawful con-
duct, whether Charging Party Green's grievance
would have been found meritorious is uncertain.
Where, as here, resolution of that uncertainty is re-
quired for the determination of monetary responsi-
bility, it is proper to resolve the question in favor
of the injured employee and not the wrongdoer.
Moreover, the other participant, Swallows, was re-
instated. Accordingly, for the purposes of remedy,
we shall presume that the Charging Party's griev-
ance, if properly filed and fairly and impartially
processed, would have been found to be meritori-
ous and would have resulted in her reinstatement
on August 27, 1980, which is the date employee
Swallows was reinstated.
Respondent Union's backpay liability must be
limited to any loss Green suffered as a result of the
failure and refusal to file and process her griev-
ance. That grievance now appears to be time-
barred under the terms of the applicable collective-
bargaining agreement, but Respondent Union may
be able to prevail upon Lea Industries to waive
those time limits. Accordingly, we shall order Re-
' We note in passing that the circumstances herein raise some suspi-
cions concerning the Company's asserted reasons for its conduct. Howev-
er. mere suspicion cannot suhstitute for proof of an unlawful labor prac-
lice Abent proof of unlawful motivation, even assuming that, as the Ad-
ministrative l.aw Judge implied, the Company's refusal to reinstate Green
was not for "just cause," we cannot substitute our judgment for the Com-
pany's determination
1137
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent Union to make Green whole for any loss
of earnings she may have suffered from August 27,
1980, until the earlier of the following occurs: Re-
spondent Union secures consideration of her griev-
ance by Lea Industries and thereafter pursues it in
good faith and with all due diligence, or Green is
reinstated by Lea Industries or obtains substantially
equivalent employment. Backpayshall be comput-
ed in the manner prescribed in F. W. Woolworth
Company, 90 NLRB 289 (1950), and interest there-
on as set forth in Florida Steel Corporation, 231
NLRB 651 (1977).6 See, generally, Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Upholsterers International Union of North Amer-
ica, AFL-CIO, Local 335, Philadelphia, Pennsyl-
vania, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Failing and refusing to give all employees of
Respondent Lea Industries, who are employed in
the bargaining unit for which it is the recognized
bargaining agent, full, fair, and equal representation
as their collective-bargaining agent, even though
such employees are not members of Respondent
Union.
(b) Failing and refusing to file or process a griev-
ance on behalf of any such employees because they
are not members of Respondent Union.
(c) In any like or related manner restraining or
coercing employees of Respondent Lea Industries
in the exercise of the rights guaranteed to them in
Section 7 of the Act.
2. Take the following affirmative action which
will effectuate the policies of the Act:
(a) Request Respondent Lea Industries to rein-
state Patricia Watkins Green to her former position
or, if it no longer exists, to a substantially equiva-
lent position. If Respondent Lea Industries refuses
to reinstate her, ask it to consider a grievance over
her August 15, 1980, discharge and thereafter
pursue her grievance in good faith with all due
diligence.
(b) Make Patricia Watkins Green whole for any
loss of earnings she may have suffered as a result
of the failure and refusal to file and process her
grievance from August 27, 1980, until such time as
she is reinstated by Respondent Lea Industries or
obtains other substantially equivalent employment
or Respondent Union secures consideration of her
s Member Jenkins would award interest on the backpay in accordance
with the formula set forth in his dissent in Olympic Medical Corporation.
250 NLRB 145 (1980).
grievance by Respondent Lea Industries and there-
after pursues it with all due diligence, whichever is
sooner, together with interest, all to be computed
in the manner set forth in the section of this Deci-
sion entitled "Amended Remedy."
(c) Post at its offices, facilities, and meeting
places copies of the attached notice marked "Ap-
pendix."7 Copies of said notice, on forms provided
by the Regional Director for Region 11, after
being duly signed by Respondent Union's author-
ized representative, shall be posted by Respondent
Union immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to members are customarily posted. Rea-
sonable steps shall be taken by Respondent Union
to ensure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for Region 11,
in writing, within 20 days from the date of this
Order, what steps have been taken to comply here-
with.
IT Is URrTHER ORDEIRED that the complaint in
Case 11-CA-9628 be, and it hereby is, dismissed in
its entirety.
7 In the event that this Order is enfoirced hby a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the Natitonal Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enfilrcing an
Order of the National L abor Relations Board"
APPENDIX
NoTIicEs To MEMBERS
POSTED BY ORDER OF IHE
NA I IONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to give to all
employees of Lea Industries, who are em-
ployed in the bargaining unit for which we are
the recognized bargaining agent, full, fair, and
equal representation as their collective-bargain-
ing agent, even though such employees are not
members of our Union.
WE WILL NOT fail or refuse to file or proc-
ess grievances on behalf of any such employ-
ees because they are not members of our
Union.
WE WILL NOT in any like or related manner
restrain or coerce employees of Lea Industries
in the exercise of the rights guaranteed to
them in Section 7 of the National Labor Rela-
tions Act.
WE WILL. request Lea Industries to reinstate
Patricia Watkins Green to her former position
1138
LEA INDUSTRIES
or, if it no longer exists, to a substantially
equivalent position. If Lea Industries refuses to
reinstate her, WF WIl.T. ask it to consider a
grievance over her August 15, 1980, discharge,
and thereafter wE wit pursue her grievance
in good faith with all due diligence.
WE WILI. make Patricia Watkins Green
whole tor any loss of earnings she may have
suffered as a result of our failure to file and
process her grievance, with interest.
UPHOI STERERS INTERNATIONAI.
UNION OF NORTH AMERICA, AFL-
CIO, LOCAI 335
DECISION
FRANK H. ITKIN, Administrative Law Judge. The
unfair labor practice charges in the above consolidated
cases were filed on January 7. a complaint issued on
February 20, and a hearing was conducted in Waynes-
ville, North Carolina, on October 20, 1981. Respondent
Company and Respondent Union are parties to a collec-
tive-bargaining contract for a unit consisting of the Em-
ployer's production and maintenance employees at its
factory in Waynesville, North Carolina. The contract
(G.C. Exh. 2) contains grievance and arbitration proce-
dures. On August 15, 1980, unit employees Patricia Wat-
kins Green' and Sandra Swallows, while having their
lunch in the Employer's parking lot, engaged in a fight.
Management subsequently terminated both employees for
their misconduct. Employee Swallows was a member of
the Union. Employee Green was not a member of the
Union. The Union filed a grievance on behalf of employ-
ee Swallows resulting in her reinstatement. No grievance
was filed on behalf of employee Green. The General
Counsel alleges that Respondent Union, by its conduct in
this case, failed to represent employee Green for reasons
which are unfair, arbitrary, invidious, and in derogation
of its fiduciary obligation, in violation of Section
8(b)(1)(A) of the National Labor Relations Act. The
General Counsel further alleges that Respondent Em-
ployer, by its related conduct, also impinged upon em-
ployee Green's Section 7 rights, in violation of Section
8(a)(1) and (3) of the Act. Both Respondent Union and
Respondent Employer deny that they have violated the
Act as alleged. Upon the entire record, including my ob-
servation of the demeanor of the witnesses, and after due
consideration of the briefs filed, I make the following:
FINI)INGS OF FACT
Respondent Company is admittedly an employer en-
gaged in commerce and meets the jurisdictional stand-
ards of the Board, as alleged. Respondent Union is ad-
mittedly a labor organization, as alleged. The evidence
pertaining to the firing and denial of reinstatement of em-
ployee Green is summarized below.
I The caption and pleadings have been amended to shows that the
Charging Party's name is now Patricia Watkins Green.
Employee Green testified that she worked for the
Company as a machine room helper from December
1979 until August 15, 1980; that she did not become a
member of the Union; and that she repeatedly made
clear to union supporters and coworkers her unwilling-
ness to become a member of the Union. Green recalled
that during July 1980:
It was really a hot day . . . it was like 115 in the
plant . . . and I said to Faye [Jones], don't tell me
you think I ought to join the Union in a place with
this kind of working conditions . . . we sweat like
pigs in there . . . people have worked here for 20
years and make six dollars an hour . . . they don't
have a Union.
Frances Nolan, a union supporter and representative,
was also present during the above conversation; Nolan
"defended" the Union.
Employee Green went to work during the morning of
Friday, August 15, 1980. At II a.m. she had lunch in co-
worker Faye Jones' automobile in the plant parking lot.
Present in the automobile were employees Green and
Jones and coworkers Maria Barnett and Sandra Swal-
lows. While having lunch, the employees discussed Bar-
nett's pending grievance concerning B3arnett's previous
layoff. As Green testified:
Barnett had some complaint that I [Green] should
have been laid off instead due to the fact I had less
seniority.... That's what the conversation was
about. She [Barnett] had been filing a grievance on
this accord, and the day before they had a griev-
ance committee meeting of some sort, and I under-
stood that certain things were said about F:aye
Jones and myself.
Green explained:
I [Green] asked Maria [Barnett], had she said the
day before that Faye and I received special favors
from [company representative] Bill Rogers, and she
said yes, she said that. I asked her, did she say that
Bill knew where to get his nooky and that's why I
wasn't laid off, and that Faye got special favors.
She said, yes she had said that.
Green then told Barnett that she, Green, "hated her";
"everybody here hates you"; and "the only person that
even talks to" Barnett is Swallows and "we know why
Sandra talks to you."
According to Green, at this point, employee Swallows
spoke up and said: "I'm not in this." Green responded:
"All this was said in your house...." Swallows re-
plied: "but I didn't say anything to anybody." The argu-
ment continued. Green ultimately "told Maria [Barnett],
you should find out where your husband gets his nooky
before you worry about what I do with mine . . ." Ap-
parently, during this verbal exchange, Green had in some
manner implied or suggested that coworker Barnett's
husband had engaged in sexual conduct with employee
Swallows. Consequently, as Green further testified:
1139
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sandra Swallows got of the car, went around to the
front, and then she came back to my door....
[Swallows] said, I want to know what you are ac-
cusing me of.
Green replied: "I wasn't trying to accuse her of any-
thing"-"I'm not trying to imply anything, have you got
guilt feelings'?" Whereupon, Swallows repeatedly slapped
Green on her face. Green then got out of the automobile
and invited Swallows to leave the Company's property
and "we'll have a fight." The two argued over when
such a fight should be held. Swallows again slapped
Green's face and "started to walk off." Green, however,
"stepped in her path" and invited a "fight now." Swal-
lows "walked past" Green, and Green "kicked her in the
back." Then, as Green further related, "we had a fight"
which lasted 4 minutes.
Later that day, Friday, August 15, employee Green
was summoned to a meeting with Personnel Manager
Charles Rogalski. Present were Rogalski, Rogers, and
Carroll Sheehan. Rogalski questioned Green about the
"scuffle," and Green related her version of the incident,
as detailed above. Later that same day, Green was again
summoned to meet with Rogalski. Present were Ro-
galski, Swallows, Rogers, and Dalthard Webb.2 Accord-
ing to Green:
Mr. Rogalski . . . told us that they'd had conflict-
ing stories from witnesses and could not establish
who had struck the first lick; therefore, he could see
no recourse but to discharge both of us. He said
that if we wanted to file a grievance we could come
in on Monday morning and speak to the grievance
committee.
Green admittedly told Rogalski, "at that point . . . that
he could take his job and stick it . . and left the
room." 3
On the following Monday morning, August 18, em-
ployee Green, as she further testified, telephoned secre-
tary Sherry Allen at the plant and said "I'd like to come
in and file a grievance. Allen advised Green "to be there
at 11 and . . . meet with the grievance committee."
Green went to the plant at 11 a.m. She went to Rogals-
ki's office. Rogalski asked her "are you here to file a
grievance"; she responded yes; and he said "you'll need
to meet with the grievance committee in the cafeteria."
Employee Green observed a coworker identified by
her as "Geraldine" in the "break room." Geraldine was a
member of the Union's "grievance committee." Green
also saw employee Frances Nolan, a union representa-
tive, present in the room, "and Sandra Swallows was sit-
ting between them." Green asked, "who do I talk to
about filing a grievance," and Nolan said: "I guess you
talk to Danny Cogdill." Green then went looking for
Cogdill. Green later had the following conversation with
Cogdill, the Union's recording and corresponding secre-
tary:
2 Both Webb and Sheehan were union stewards or representatives
3 Green also acknowledged confronting Swallows later that day near
the timeclock and then accusing Swallows of lying Green warned Swal-
lows: "Sooner or later I'm going to beat the hell out of you
I [Green] said, Danny, I'm here to file a grievance
or whatever it is I'm supposed to do ... . And he
said, we'll take care of it in just a few minutes . . .
just go up to the cafeteria and wait for me ....
Green, as she testified, then went to the cafeteria. Cog-
dill and "the grievance committee" went into the cafete-
ria. Willard Clements, the Union's president, "came out
and got Sandra Swallows first." Later, Clements "came
out" and brought Green before "what [Green] under-
stood to be the grievance committee." Present were Cle-
ments, Nolan, Geraldine Caldwell, Cogdill, and Green.
There, Green related her version of the incident "and
left assuming that [she] had filed a grievance." Green ex-
plained: "I had asked Mr. Cogdill, he said we'll take care
of it, and I went in and was asked my story."
Subsequently, on or about August 27, employee Green
was informed that the Company had reinstated employee
Swallows. Green was later apprised by secretary Sherry
Allen that a "signed" "written grievance" had not been
filed on her behalf and "if you didn't sign anything you
don't have a grievance filed." Green spoke w ith union
representative Cogdill. Green testified:
I said, Danny, why did you not file my grievance?
He said, that's not normally my duty. I said, you
told me you'd take care of it, why didn't you file a
grievance? He answered, that's not ordinarily my
duty.
Employee Green subsequently met with Rogalski,
Cogdill. and Sherman Crawford. She again asked Cog-
dill why he had not filed a grievance as promised and he
again responded, "this is not normally my duty." Ro-
galski then explained to Green: "Patti, I couldn't rehire
you because I didn't have any written grievance." Later,
however, Rogalski added: "it would not have mattered if
you'd filed a grievance or not; Danny [Cogdill] and I
had discussed it and we'd already decided that Sandra
would be the one to come back to work." Rogalski
claimed that management had "six witnesses that say
they saw you hit Sandra first." Rogalski would not iden-
tify these witnesses. Green had never been informed by a
company or union official that a grievance had "to be in
writing."
Employee Sandra Swallows related a different version
of the August 15 incident. Swallows claimed that, while
having lunch on August 15, employee Jones asked em-
ployee Barnett "what had happened at the grievance
meeting the day before." An argument ensued between
employees Jones and Green and Barnett and Green:
. . .turned around in the seat . . and she said "if
Maria [Barnett] would find out who Don was sleep-
ing with she would find out why I [Swallows]
wasn't opening my mouth or saying anything."
According to Swallows, "... I got out" of the auto-
mobile "and I apologized to Faye [Jones] for the argu-
ment in her car." Swallows claimed that Green had
made "a kind of swing or movement toward her" al-
though, admittedly, there was no physical contact. Swal-
1140
LEA INDUSFRIES
lows further claimed that, as she was walking "back into
the building," she was "kicked" or "hit in the back" by
Green. Then, the "fight" started. As Swallows put it,
"we got into it again."
Swallows later met with Rogalski, Rogers, and Shee-
han and, subsequently, with Rogalski, Rogers, and Webb.
Swallows related to them her version of the incident.
Rogalski stated "that we had both been discharged."
Webb, a union representative, "told us both that we had
a right to file a grievance within five days." Rogalski
"repeated the same thing." Swallows noted that Green
was also "present" when the above statements were
made. Swallows "talked to Bill Webb first and . . . to
Danny Cogdill" about filing a grievance. Swallows ex-
plained: "They said they would draw up the papers. I
would have to sign them."
Swallows returned to the plant on Monday, August
18. She met with, inter alia, Geraldine Caldwell, Cogdill,
and Rogalski. Rogalski "said that we both were fighting
... we both have to be discharged .... " and "we
both had the right to file a grievance in five days." On
cross-examination, Swallows acknowledged that her
meeting on Monday was with the "grievance committee"
and Union President Clements was present. She insisted
that Rogalski also attended the meeting. In addition,
Swallows acknowledged that on Friday, August 15,
Green had "accused [Swallows] of sleeping" with
"Maria's husband." Swallows nevertheless claimed that
"I was not all that furious about it"; Green "kicked" her
"in the back"; and a fight ensued. Swallows further re-
called that she "talked with Geraldine Caldwell and
Frances Nolan" before being recalled-"After they had
drawn up the papers and had sent work by Maria that I
had to sign the papers."
Employee Willa Fay Jones testified about the argu-
ment and confrontation in her car during lunch on
August 15. Jones recalled telling Barnett: ".. . while
you're trying to find out where all the nooky is going
maybe you should watch about your own husband."
Jones added: "Patti [Green] was also in the argument
with Maria Barnett and myself because the things had
been said about her too, and she was saying pretty much
the same things as I was to Maria." According to Jones,
Green also told Swallows that this dispute "was her busi-
ness because it had all been said at her house." Then, as
Jones recalled:
Sandra [Swallows] asked Patti [Green] if she was
trying . . . to accuse her of something... . She
[Swallows] got out of the car and went around and
hit Patti through the door ....
Green invited Swallows to leave the parking lot "and
they would fight." Swallows started to return to the
plant and Green "kicked her." A "scuffle" followed.
Jones later related her version of the incident to repre-
sentatives of management and the Union. As Jones ex-
plained, "I told [Rogalski], Sandra hit Patti first." Jones
further testified that Union Representative Cogdill had
assured her:
.. we're doing everything we can for both of
them; whatever we do for one we will do for the
other . .. .4
Maria Barnett, although present at the unfair labor
practice hearing, did not testify. However, Ronald Shel-
ton, a former employee of the Company, testified that he
had witnessed Swallows repeatedly slap Green during
their argument on August 15. Green then invited Swal-
lows to leave the Company's parking lot and "fight."
Swallows "hit her again," and Shelton "just left and
went on back in the plant." Shelton later spoke with Ro-
galski. Shelton, at the time, was not asked by Rogalski
"who started the fight" and did not "volunteer" this in-
formation. Shelton described the incident to Rogalski as
"a scuffle"-"I didn't think it was that bad."5
Employee Glen Owenby testified that he had wit-
nessed the August 15 incident in the plant parking lot.
Hce had observed Swallows "going back to the plant"
and Green "run up behind her and kicked her in the rear
end." Then, the two fought for about 2 or 3 minutes.
Owenby did not "know" what if anything had occurred
between Swallows and Green "before," in the parked ve-
hicle. Owenby did not then discuss the matter with Com-
pany Representative Rogalski. Further, employee Gene-
vieve Parker testified that she too had witnessed the
August 15 incident. Parker observed Green "give Sandra
a big kick . . . in the behind." Parker, however, had not
observed Swallows and Green while in or near the
parked automobile. Parker also did not discuss the matter
with Rogalski.
Union Secretary Danny Cogdill testified that on
Monday, August 18, employee Green had requested "a
meeting with the Company." Later that day, according
to Cogdill, "four Union officers, Patti Watkins [Green]
and Chuck Rogalski" conducted "a meeting." Cogdill
claimed, inter alia, that Green did not "at any time" ask
him "to file a grievance." Cogdill recalled that Swal-
lows' steward, D. L. Webb, had "asked [him] to file a
grievance for her." The Union's representatives subse-
quently met with the Company's representatives con-
cerning Swallows' grievance on August 21. The Union
"asked the Company to reinstate Sandra Swallows." Ac-
cording to Cogdill, Green "came in the plant" on or
about August 27 and asked him "why [he] hadn't filed a
grievance for her." Cogdill replied: "Patti you did not
request a grievance." Cogdill acknowledged that the
"four Union representatives" present at the August 18
Jones recalled that she had observed Green at the plant on Monday
August 18; "she [Greenl told me she had come to file a grievance"; and
"she said that she told Danny to file a grievance for her . . . , Danny
Cogdill " Further, Jones claimed that, in a discussion with Swallows fol-
lowing the August 15 incident, Jones asked Swallows "why did you lie,
why did you tell them that Patti hit you first?" Swallows replied: 'I had
to keep my job " Swallows, in her testimony, although admitting that she
had discussed the incident with Jones. denied that she had told Jones that
she "lied"
s Shelton later spoke with Plant Superintendent Peter Prebble about
the incident. Shelton then disclosed what he had seen and requested
Prchblc to reinstate Green Prebble responded: "Patti [Green] didn't file a
grievance . "Shelton previously had spoken with Union Representa-
tive Cogdill, who had assured Shelton: "he'd thought they'd be fired, and
if one lif them came hack both of them would"'
1141
DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD
"meeting" are "the people who are on the grievance
committee."
Company Personnel Manager Charles Rogalski testi-
fied that he had been informed about the "fight" in the
parking lot during the afternoon of August 15; that em-
ployee Barnett had complained to him about the fight ac-
cusing coworker Green of being the "aggressor"; that he
then spoke to Supervisor Bill Rogers and requested an
investigation; and that he later met with Green, Rogers,
and Sheehan. During this meeting, Green related her
version of the incident. Rogalski conducted a similar
meeting with Swallows, Rogers, and Sheehan, where
Swallows gave her version of the incident. Rogalski also
interviewed Jones and Barnett. Jones' version of the inci-
dent supported Green. Barnett's version of the incident
supported Swallows. 6 Rogalski also interviewed Shelton
who said, "in his opinion it was nothing to be concerned
about, no one was at fault, and nothing really happened."
Rogalski spoke to no other employees at the time.7
Rogalski recalled that he informed Green and Swal-
lows on August 15 that they "have every right to file a
grievance." Rogalski, however, denied telling the two
employees that they were "discharged." He claimed that
no action was taken that day. (Cf. G.C. Exh. 7 and C.P.
Exh. I.) Rogalski further testified that on Monday
August 18, both Green and Swallows "came into the
plant." Rogalski "sat down with them" and "there were
a few Union officials present." Rogalski then "dis-
charged" the two employees for "fighting on Company
property." Rogalski later met with the Union "regarding
the reinstatement of Sandra Swallows," in response to a
grievance filed on her behalf by the Union. Swallows
then claimed "self-defense." Management subsequently
decided to reinstate Swallows. Rogalski asserted that he
had been apprised at or about the time of this grievance
meeting of a verbal confrontation between Swallows and
Green at the timeclock during the late afternoon of
August 15. Rogalski assertedly interviewed witnesses
about this incident. Rogalski testified that management,
"looking at the whole picture," determined that Green
"was without a doubt the aggressor" and therefore de-
cided to reinstate Swallows. Rogalski testified regarding
the timeclock incident, in part as follows:
Q. (By Mr. Brown) Who were the witnesses that
testified regarding the time clock incident?
A. Frank Griffin.
Q. Who was he?
A. Employee in machine room, the same depart-
ment where these employees were employed.
Q. Who else?
A. Probably 15 people that saw it, we talked to
several of them.
Q. Did you talk to one, or five, or several?
A. Several.
Q. Who else?
e As noted, Barnett, although present at the hearing, did not testify
Rogalski conducted a second meeting with the employees on August
15 with Union Representative Webb present instead of Sheehan Appar-
ently, Webb was the proper union representative or steward to attend
such a meeting. At this second meeting, the employees repeated their ear-
lier versions of the incident
A. Me. personally, I don't recall talking to
anyone except Frank Griffin.
In addition, Rogalski was asked: "Isn't it true that she
[Green] told you she was there to file a grievance on
August 18?" Rogalski responded: "I don't recall her
saying that." Rogalski generally denied, inter alia, telling
Green "that it would not have mattered" if a grievance
had been "filed for her" since he "and Cogdill had
agreed that Sandra would be the one to go back to
work."
I credit the testimony of Green, Jones, and Shelton as
recited and quoted above. Their testimony was forthright
and complete. Further, their testimony was in significant
part mutually corroborative. And, relying upon demea-
nor, they impressed me as reliable and trustworthy wit-
nesses. I find, on this record, that Green, Jones, and
Shelton have accurately and truthfully related the se-
quence of events culminating in the firing and subsequent
denial of reinstatement of Green and, in particular, that
they have accurately and truthfully related the conduct
of and statements made by the participants in the above
scenario. On the other hand, I do not credit Swallows'
version of her August 15 confrontation with Green and
related events. Swallows' testimony was at times incom-
plete and unclear. In addition, I note that-although
management apparently relied upon Barnett's alleged
version of the parking lot fight in belatedly labelling
Green as the "aggressor" management and the Union did
not call Barnett, present at the hearing, to provide cor-
roboration for Swallows' testimony. In sum, I find here
that Swallows did strike the first blows as Green, Jones,
and Shelton credibly testified.8
Likewise, insofar as the testimony of Green, Jones, and
Shelton differs with the testimony of Cogdill and Ro-
galski, I credit the testimony of the former witnesses as
more detailed, accurate, and trustworthy. The testimony
of Cogdill and Rogalski was at times incomplete, vague,
evasive, and contradictory. Cogdill and Rogalski did not
impress me as trustworthy witnesses. I note also that
company secretary Sherry Allen, and union officials and
grievance committee members Clemments, Nolan, and
Caldwell, were not called as witnesses to explain or
refute the various statements and conduct attributed to
them by Green during her testimony.
Discussion
The General Counsel argues that a union acts in dero-
gation of its fiduciary obligation to bargaining unit em-
ployees when it withholds fair and equal representation
from them and refuses to process their grievances be-
cause they are not members of the union, in violation of
Section 8(b)(l)(A) of the Act. See, generally, Newport
News Shipbuilding and Dry Dock Company, 233 NLRB
1443, 1451 (1977), and cases cited. Respondent Union
does not seriously dispute this proposition; instead, the
Union contends that employee Green did not request
I As foir the testimony of Owenby and Parker, it is clear that they did
not witness the entire confrontation on August 15 Further. the) were
not even interviewed by Rogalski during his alleged effort to ascertain
who was the "aggressor."
1142
LEA INDUSTRIES
that a grievance be filed on her behalf and "it was cer-
tainly reasonable for the Union to conclude . .. that
[Green] was not interested in regaining her job." The
credible evidence of record is to the contrary.
Thus, as found supra, employee Green was not a union
member. She made her dissatisfaction with the Union
known to her coworkers, including Union Representa-
tive Nolan. Swallows, on the other hand, was a union
member and attended union meetings. On Friday, August
15, Green and Swallows got into a fight in the plant
parking lot. Management-after interviewing Green,
Swallows, Jones, Barnett, and Shelton-"could not es-
tablish who had struck the first lick" and decided "to
discharge both" employees. The two employees were
told by Company Personnel Manager Rogalski that "if
[they] wanted to file a grievance [they] could come in
Monday morning and speak to the grievance commit-
tee." On Monday August 18, Green telephoned Compa-
ny secretary Allen and told Allen that "I'd like to come
in and file a grievance." Green was instructed to be at
the plant at 11 a.m. Green then went to the plant. Com-
pany Personnel Manager Rogalski asked Green, "are you
here to file a grievance?" and she said "yes." Rogalski
instructed Green that she would "need to meet with the
grievance committee in the cafeteria." Green later spoke
to Union Representatives Nolan and Caldwell, who were
seated in the breakroom with Swallows. Green asked
Nolan: "who do I talk to about filing a grievance?"
Nolan directed Green to Union Representative Cogdill.
Green went looking for Cogdill. Green asked Cogdill
"to file a grievance." Cogdill assured Green: ". . . we'll
take care of it in a few minutes . . . just go up to the
cafeteria and wait for me."
On that same day, Monday, August 18, Green ap-
peared before what she believed to be the Union's
"grievance committee." Indeed, the four union officials
then present-Clemments, Caldwell, Nolan, and Cog-
dill-comprise the "grievance committee." Green related
to this "committee" her version of the August 15 fight.
She left "assuming that [she] had filed her grievance."
Cogdill had told Green: ". . . we'll take care of it
.... However, the Union did not prepare and file
such a grievance for Green. Instead, it filed a grievance
for union member Swallows and supported Swallows'
version of the fight before management. The Union did
not apprise Green that it would take such a course of
action. It was not until August 27, some 9 days after
Green had appeared before the committee, that she was
advised that Swallows had been reinstated and no timely
grievance had been filed on her behalf.
Such conduct by Respondent Union falls far short of
its fiduciary obligation to fairly and equally represent
unit personnel. Respondent Union not only failed and re-
fused to prepare and file a grievance for Green as prom-
ised, it also misled her into believing that it was pursuing
her claim. I find that Respondent Union-in thus favor-
ing Swallows while withholding fair and equal represen-
tation from Green-was not relying upon a good-faith
determination that Green was in fact the "aggressor" on
August 15. The credible evidence of record makes it
clear that Swallows' conduct on August 15 was aggres-
sive and Swallows had struck the first blows. The Union
was aware of these facts.
In sum, I am persuaded here that the real reason why
Respondent Union assisted Swallows and withheld the
support and required representation from Green was the
fact that Swallows was an active union member and sup-
porter, whereas Green was not a member and had
openly opposed the Union. Respondent Union therefore
failed to represent Green fairly and equally for reasons
which are unfair, arbitary, invidious, and in derogation
of its fiduciary obligation, in violation of Section
8(b)(l)(A) of the Act.
I encounter greater difficulty in resolving the General
Counsel's next contention that Respondent Company, by
its related conduct, similarly violated Section 8(a)(3) and
(I) of the Act, because of the required showing of
animus which is necessary to support such a finding. See,
generally, Newport News Shipbuilding, supra, 233 NLRB
at 1453-54. However, on the particular facts of this
record. I am persuaded that the Employer, by its full
participation in the Union's unlawful treatment of em-
ployee Green and with full knowledge of the pertinent
facts, became an accomplice with the Union to this dis-
parate treatment of a nonunion member and, consequent-
ly, acquiesced in the discriminatory treatment of an em-
ployee for "Union related considerations." Cf. Newport
'News Shipbuilding, ibid.
Thus, as found supra, Personnel Manager Rogalski,
after interviewing employees Green, Swallows, Shelton,
Jones, and Barnett with respect to the August 15 parking
lot fight, decided to fire both employees Green and
Swallows because he could not resolve their "conflicting
stories" and "establish who had struck the first lick."
Management did not thereafter discover any new wit-
nesses to the August 15 fight which caused it to belated-
ly change its position and label Green as the "aggressor."
I note, in this respect, that employee Barnett, an eyewit-
ness to the August 15 incident whose story was appar-
ently relied upon by the Employer in making its determi-
nation, was not even called by the Employer as a witness
to substantiate its shifting of position. Instead, the Em-
ployer produced two employees, Owenby and Parker,
who not only did not witness the entire fight, but who
also were not even interviewed by management before
labelling Green as the "aggressor." Moreover, as found,
the credible evidence of record shows that Swallows in
fact "had struck the first lick."
The Employer, in a further attempt to justify its deter-
mination to reinstate Swallows and not Green, relies in
part upon the brief verbal confrontation between Green
and Swallows at the timeclock late Friday, August 15.
Both employees had already been discharged. Green ad-
mittedly accused Swallows of lying to Rogalski, as she
had, about the fight, and Green warned: "Sooner or later
I'm going to beat the hell out of you." This brief ex-
change, in context, does not in my view support manage-
ment's determination to reverse its earlier position that it
could not decide which employee was the "aggressor" in
the parking lot fight. And, although Rogalski-in an
effort to amplify the Employer's alleged justification for
its shift in position-claimed that "we talked to several"
1143
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the "probably 15 people" who witnessed the exchange
at the timeclock, he later admitted talking to only one
such employee. Rogalski elsewhere later raised that to
two employees; neither of these employees testified at
this proceeding.
Management, in a further attempt to justify its posi-
tion, argues that no grievance had been filed on employ-
ee Green's behalf. Indeed, employee Green credibly tes-
tified that Personnel Manager Rogalski, on or about
August 27, similarly claimed to her: "Patti I couldn't
rehire you because I didn't have any written grievance."
Elsewhere, however, Rogalski told this employee: "it
would not have mattered . . . Danny [Cogdill] and I had
discussed it and we'd already decided that [Swallows]
would be the one to come back." I note that previously,
on August 18, Rogalski was fully aware that Green had
appeared at the plant in order to file such a grievance
and appear before the grievance committee.
Under all these circumstances, including management's
unsubstantiated, shifting, and belated assertions for its re-
fusal to reinstate employee Green, I find that the Compa-
ny-although fully aware that employee Green was not
the "aggressor" during the August 15 fight and fully
aware that employee Green was at all times pertinent
here attempting to pursue her grievance and regain her
job-acquiesced in the Union's unlawful course of con-
duct, and reinstated Swallows instead of Green. The
Company thereby became an accomplice in this unlawful
disparate conduct, and as a result discriminated against
employee Green in a manner intended to encourage
union membership, in violation of Section 8(a)(3) and (1)
of the Act.
CONCI USIONS Oi LAW
1. Respondent Company is an employer engaged in
commerce as alleged.
2. Respondent Union is a labor organization as alleged.
3. Respondent Union violated Section 8(b)(l)(A) of the
Act by its failure and refusal to file and process a griev-
ance on behalf of employee Green and to fairly and
equally represent her, because she was not a member of
the Union.
4. Respondent Company violated Section 8(a)(3) and
(I) of the Act by its full participation and complicity in
the above conduct and by its failure to reinstate employ-
ee Green on or about August 27, 1980.
5. The unfair labor practices found above affect com-
merce as alleged. 9
Ri MF.I)Y
To remedy the unfair labor practices found above, Re-
spondent Company and Respondent Union will be di-
rected to cease and desist from engaging in such conduct
and like or related conduct, and to post the attached no-
tices. Further, Respondent Company will be directed to
offer reinstatement to employee Green to her former po-
sition or, in the event that position no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges. Further, since I
find both Respondent Union and Respondent Company
have acted together as accomplices in this unlawful and
discriminatory conduct, they are in pari delicto, and they
will be required to jointly and severally make employee
Green whole for any loss of earnings suffered by reason
of this discrimination, by making payment to her of a
sum of money equal to that which she normally would
have earned from the date of the discrimination, the re-
fusal to reinstate her on or about August 27, 1980, to the
date of Respondent Company's offer of reinstatement,
less net earnings during such period, with backpay and
interest thereon to be computed in the manner prescribed
in Fi W. Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977).10 Fur-
ther, Respondent Company will preserve and make avail-
able to the Board, upon request, all payroll records and
reports, and all other records necessary and useful to de-
termine the amount of backpay due and the rights of re-
instatement.
[Recommended Order omitted from publication.]
Ihe General Counsel has not sufficiently proven par. 9(a) of the
complaint This allegation is therefoire dismissed
'° See, generally, Ivi Plumbing d& Heating Co., 138 NL RB 716 (1962).
1144