Local Union No. 2088, IBEW

National Labor Relations Board - Board Decisions

Jun 11, 1975

218 N.L.R.B. 396 (N.L.R.B. 1975)

396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 2088, International Brotherhood of
Electrical Workers, AFL-CIO (Federal Electric
Corporation) and John S . Krupke. Case 12-CB-
1430
June 11, 1975
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On September 19, 1974, Administrative Law Judge
Thomas D. Johnston issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and has
decided to affirm the rulings, findings,' and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order, as modified herein.
For the reasons stated by the Administrative Law
Judge, we agree with his finding that Respondent
violated Section 8(b)(1)(A) and (2) of the Act by
failing to process employee Krupke's grievance
because of his nonmembership in the Union. We are
not satisfied, however, that the remedy proposed by
the Administrative Law Judge serves as an adequate
redress for the injury suffered by Krupke as a result
of the unfair labor practices committed against him.
As a consequence of Respondent's failure to
process Krupke's grievance, no determination was
ever actually made as to whether Krupke was
entitled to a retroactive promotion from the classifi-
cation of "B" technician to that of "A" technician.
However, similar grievances which were filed by five
"B" technicians who were union members were all
found to be meritorious and these employees
received retroactive promotions. In attempting to
fashion an adequate remedy for the unfair labor
practices committed against employee Krupke, the
Administrative Law Judge recognized that the
Employer Federal Electric Corporation is not
charged as a respondent in this proceeding and, thus,
a determination on Krupke's right to a promotion
realistically can only be achieved by requiring the
i The 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
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 As detailed in the Administrative Law Judge's Decision, an earlier
218 NLRB No. 48
Respondent to fully utilize the grievance-arbitration
machinery in the collective-bargaining agreement .2
Thus, the Administrative Law Judge ordered Re-
spondent to process and proceed promptly to
arbitration over Krupke's grievance. He further
ordered that, if upon exhaustion of the arbitration
procedures no determination had been made on the
merits of Krupke's grievance, Respondent would be
required to make him whole for the loss of retroac-
tive backpay from July 1973 to January 20, 1974, the
same as if he had actually been promoted to the
classification of "A" technician on January 20, 1974,
with promotion rights retroactive to July 1973. The
Administrative Law Judge did not extend the
obligation to pay backpay beyond January 20, 1974,
however, because Krupke was not in fact promoted
on that date.
In our opinion, the Administrative Law Judge
failed to take fully into account the antagonism
Respondent has exhibited towards Krupke because
of his nonmembership in the Union and its previous-
ly demonstrated actions which were in blatant
disregard of its obligation to provide fair representa-
tion for Krupke as well as all other bargaining unit
employees. Under the Administrative Law Judge's
proposed remedy, there is a considerable risk that
Respondent will fail to provide full, fair, and
conscientious representation in the processing of
Krupke's grievance, especially when a dismissal of
the grievance on the merits would relieve Respon-
dent of all monetary responsibility. Thus, we con-
clude that the antagonistic interests of Krupke and
Respondent will not permit us to assume that
Krupke's rights will be fully protected under such a
procedure.3 Accordingly, although we recognize that,
in the circumstances presented here, only the
grievance and arbitration procedures of the collec-
tive-bargaining agreement can provide a full and
adequate remedy for the unfair labor practices
found, we must insure that these procedures are not
improperly utilized to deny Krupke the remedy to
which presumably he is entitled. Therefore, as our
paramount concern must be in protecting the rights
of the wronged party, we shall substitute the
following remedy for the one proposed by the
Administrative Law Judge with the hope and
expectation that it will provide the relief to which
Krupke is entitled and also better effectuate the
purposes and policies of the Act.
attempt at settlement of the instant charges was unsuccessful . Respondent
submitted Krupke's previously filed grievance to the Employer , but it was
rejected on the grounds that it was untimely filed under the collective-
bargaining agreement . Following this rejection , Respondent made no
attempt to pursue the grievance to arbitration.
3 Cf. Kansas Meat Packers, a Division of Aristo Foods, Inc., 198 NLRB
543 (1972), and Joseph T. Ryerson & Sons, Inc., 199 NLRB 461 (1972).
LOCAL UNION NO. 2088 , IBEW 397
TIC REMEDY
Having found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(b)(1)(A) and (2) of the Act, we shall order it to
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act.
The uncertainty as to whether Krupke's grievance
would have been found to be meritorious on or about
January 20, 1974, is a direct product of Respondent's
unlawful action and where, as here, such an
uncertainty requires resolution, at least for the
purposes of determining monetary responsibility, we
deem it only proper to resolve the question in the
favor of the discriminatee and not the wrongdoer.
Accordingly, we shall presume that Krupke's griev-
ance, if processed, would have been found to be
meritorious on or about January 20, 1974, and that
his promotion to "A" technician would have been
retroactive to July 1973. This promotion, of course,
would have resulted in a permanent change in
Krupke's classification and wage rate and thus his
loss of earnings is a continuing one which cannot be
rectified unless and until an actual determination is
made on the question of Krupke's right to promotion
to the classification of "A" technician.
Therefore, we direct Respondent to treat Krupke
as though he had been promoted to "A" technician
retroactive to July 1973 and that it make Krupke
whole for all loss of earnings resulting from his
failure to be paid the wage rate of "A" technician for
the period from July 1973 to the time an actual
determinationis made as to Krupke's current right to
such a promotion. If, of course, Krupke has
voluntarily quit his employment with the Employer
or the employment relationship has otherwise been
lawfully and validly terminated, Respondent's back-
pay obligation would not extend beyond the date of
that action. However, in the absence of evidence to
the contrary, we must presume that Krupke still
retains his status as an employee of the Employer
and that Respondent is under a continuing obliga-
tion to provide him with fair and proper representa-
tion. In making Respondent responsible for Krupke's
continued loss of earnings until such time, as an
actual determination can be made on Krupke's right
to the promotion, we are cognizant of the fact that
Krupke's original grievance may be vulnerable to a
rejection on the grounds that it is untimely filed.
However, even if such be the case, there would seem
to be nothing which would preclude Respondent
from filing a new grievance on Krupke's behalf over
the current failure to promote Krupke to the
classification of "A" technician. Accordingly, we
order Respondent to make Krupke whole for the loss
of earnings resulting from his failure to be promoted
to the classification of "A" technician retroactive to
July 1973, with such backpay liability extending from
July 1973 to, such time as all parties, including
Krupke, reach an amicable settlement of Krupke's
promotion claim or the matter is resolved on the
merits pursuant to a full utilization of the grievance
and arbitration procedures of the collective-bargain-
ing agreement. In the event a final determination is
made that either Krupke's original grievance or one
newly filed on his behalf is meritorious and results in
a retroactive payment of benefits by the Employer,
such payments will be permitted as an offset to
Respondent's liability. In the event Krupke's griev-
ance, is found to be meritorious, but without
retroactive payments, or is dismissed on the merits,
Respondent's _backpay liability will cease as of the
date of such final disposition of the grievance.
All backpay shall be with interest at the rate of 6
percent per annum and shall be computed in
accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), and 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
Relations Board hereby orders that the Respondent,
Local Union No. 2088, International Brotherhood of
Electrical Workers, AFL-CIO, Cocoa Beach, Flori-
da, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Discriminating in the representation of John S.
Krupke , or any other employee , because of his lack
of membership in the Respondent.
(b) In any like or related manner restraining or
coercing employees in the exercise of their Section 7
rights guaranteed by the National Labor Relations
Act, as amended.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Make John S. Krupke whole for all loss of
earnings resulting from the discrimination practiced
against him by payment of the sum of money to
which he is entitled under an application of the
formula set forth in the section of our Decision,
entitled "The Remedy."
(b) Post at its offices and meeting halls copies of
the attached notice marked "Appendix:'4 Copies of
® 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 Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said notice, on forms to be provided by the Regional
Director for Region 12, after being duly signed by
the Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where the
Respondent customarily post notices to its members.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or
covered by "any other material.
- (c) Furnish signed copies of the notice to the
Regional Director for Region 12, for posting by
Federal Electric Corporation, said Employer being
willing, at all locations where notices to its employees
are customarily posted.
(d) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges unfair
labor practices not found herein.
APPENDIX
NOTICE To MEMBERS
POST BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to present evidence and state their positions, the
National Labor Relations Board has found that we
have violated the National Labor Relations Act, and
has ordered us to post this notice.
WE WILL NOT discriminate in our representa-
tion of John S. Krupke, or any other employee,
because of his or her lack of membership in this
Union.
WE WILL NOT in any like or related manner
restrain or coerce any employee in the exercise of
Section 7 rights guaranteed employees by the
National Labor Relations Act, as amended.
WE WILL make whole John S. Krupke for all
loss of retroactive backpay with interest which he
may have suffered as a result of the discrimina-
tion against him.
All employees in any bargaining unit represented
by this Union are by law entitled to and will receive
from this Union nondiscriminatory representation in
the processing of their grievances and otherwise
without regard to whether or not they are members
of this Union.
LocAL UNION No. 2088,
INTERNATIONAL
BROTHERHOOD OF
ELECTRICAL WORKERS,
AFL-CIO
DECISION
STATEMENT OF THE CASE
THOMAS D. JoHNsTON, Administrative Law Judge: This
case was heard at Patrick Air Force Base, Florida, on July
16 and 17, 1974, pursuant to a charge filed on February 8,
1974, by John S. Krupke, an individual, and a complaint
issued on June 12, 1974.
The complaint alleged that Local Union No. 2088,
International Brotherhood of Electrical Workers, AFL-
CIO (herein referred to as the Respondent), violated
Section 8(b)(1)(A) and (2) of the National Labor Relations
Act, as amended (herein referred to as the Act), by failing
to process a grievance filed by John S. Krupke, an
employee in the bargaining unit represented by Respon-
dent, because of his nonmembership in Respondent
thereby causing or attempting to cause Federal Electric
Corporation (herein referred to as Federal) to discriminate
against Krupke because of his nonmembership in Respon-
dent in violation of Section 8(a)(3) of the Act by not
considering the resolution of Krupke's grievance whereby
he might have been promoted to an "A" technician in
January 1974, when Federal announced the resolutions of
grievances filed in this matter making the results thereof
retroactive to July 1, 1973. The complaint further sets forth
that an informal settlement agreement in the instant' case
was vacated and set aside because the Respondent had
violated the terms and conditions of such agreement.
Respondent in its answer filed on June 24, 1974, denied
having violated the Act and asserted as -defenses that
Section 10(b) of the Act barred finding a violation, and
that the settlement agreement had been complied with and
should not have been set aside.
The issues involved are whether the settlement agree-
ment Was properly set aside ; whether the charge was timely
filed under Section 10(b) of the Act; and whether the
Respondent violated Section 8(b)(1)(A) and (2) of the Act
by failing to process Krupke's grievance because of his
nonmembership in Respondent , thereby causing or 'at-
tempting to cause^Federal to violate Section 8 (a)(3) of the
Act by not considering the resolution of -his grievance
whereby he might have been promoted to an "A"
technician in January 1974 with the results retroactive to
July 1, 1973.
At the hearing the parties were afforded full opportunity
to introduce relevant evidence, to examine and cross-
examine witnesses, to argue orally on the record, and to
submit briefs.
LOCAL UNION NO. 2088, IBEW
Upon the entire record I in this case and from my
observation of the witnesses and after due consideration of
the arguments and briefs filed by the General Counsel and
the Respondent, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Federal Electric Corporation, a subsidiary of the
International Telegraph and Telephone Corporation, has
its principal office and place of business located at Cocoa
Beach, Florida, where it is engaged in the business of
performing electrical contracting services for various
employers among which is the National Aeronautics and
Space Administration Facility, located at the Kennedy
Space Center, Florida.
During the 12-month period preceding June 12, 1974, a
representative period, Federal in the course of its opera-
tions purchased and received materials and supplies valued
in excess of $50,000 at its locations in the State of Florida
directly from points located outside the State of Florida.
Respondent admits, and I find, that Federal is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that it is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Informal Settlement Agreement
On March 8, 1974, an informal settlement agreement
entered into by the Charging Party, John S. Krupke, and
Respondent's business manager, William F. Hamilton in
the instant case, was approved by the Regional Director of
Region 12, which provided in pertinent part, that the
Respondent would take the following action:
We will request Federal Electric Company to consider
and process a grievance filed by John S. Krupke
concerning his job classification, and will take such
grievance to arbitration if necessary to assure that
Krupke's right to have his grievance properly processed
has not been abridged.
On June 11, 1974, prior to the issuance of the complaint
the Regional Director vacated and set aside the settlement
agreement.
1 The record is hereby corrected to properly reflect that Administrative
Law Judge Thomas D. Johnston conducted the hearing rather than a
Thomas Preston as indicated in the transcript.
2 The collective-bargaining agreement and the memorandum of under-
standing were not submitted as evidence.
3 According to Business Manager Hamilton a grievance must be filed
within 20 days of the occurrence.
4 Respondent while acknowledging Chief Steward Knight was its agent
denied Shop Steward Cressman was its agent. The undisputed evidence
established Chief Steward Knight in his duties as chief steward was
responsible for overseeing the submission and processing of grievances and
in his capacity was over certain shop stewards including Cressman. Shop
Steward Cressman described his duties involved taking care of the
399
Respondent's Business Manager Hamilton admitted that
the Respondent had made no attempt to take Krupke's
grievance to arbitration after Federal had rejected it as
being untimely under article 10, section 10.02 of the
collective-bargaining agreement and because it was contra-
ry to a memorandum of understanding between them
dated January 10, 1974.2
The reasons given by Business Manager Hamilton for
refusing to do so was his understanding that under the
terms of the settlement agreement the Respondent was not
required to take the matter to arbitration and in view of
Federal's refusal to accept the grievance as being untimely
filed to pursue the matter to arbitration on those grounds
would merely be wasting the Respondent's money.3
Neither the testimony of Business Manager Hamilton
concerning his conversations with the Regional Office's
representatives nor the exchange of correspondence be-
tween the Regional Office and the Respondent established
the Respondent was ever relieved of its obligation as
required by the clear language of the settlement agreement,
supra, to take Krupke's grievance to arbitration if neces-
sary.
Settlement agreements may be set aside where subse-
quent events have demonstrated that efforts at adjustment
have failed to accomplish their purpose. See Wallace
Corporation v. N.L.R.B., 323 U.S. 248, 254 (1945). Under
Section 101.7 of the Board' s Statement of Procedures,
Series 8, as amended, if a Respondent fails to perform his
obligations as required by the informal agreement the
Regional Director may institute formal proceedings.
Thus, Respondent admittedly having failed to take the
matter of Krupke's grievance to arbitration if necessary, as
required by the terms of the settlement agreement, I find
that the action of the Regional Director in setting the
settlement agreement aside was proper and does not, as
Respondent urged, constitute a defense to proceeding on
the complaint.
B. Background
Respondent was the collective-bargaining representative
of certain of Federal's employees with which it had a
collective-bargaining agreement containing grievance and
arbitration provisions.
Reed Knight, Jr., held the position of Respondent's chief
steward at Federal until he resigned in December 1972.
William Cressman served as shop steward over the
electrical laboratory of the vehicle assembly building from
June 1971 until December 1972.4
John S. Krupke, the discriminatee, was employed by
Federal from October 1969 until he was laid off for lack of
complaints of those employees he represented which included processing
their grievances through the first step of the grievance procedure Knight
corroborated Cressman's testimony that under the collective-bargaining
agreement the shop steward represented the Respondent in the first step of
the grievance' procedure although as a matter of practice he sometimes
participated with the shop stewards. Both the chief steward and shop
stewards are selected and removed by the Respondent . With respect to the
grievances discussed infra both Knight and Cressman participated as the
Respondents representatives in processing those grievances . Under these
circumstances I find both Chief Steward Knight and Shop Steward
Cressman were agents of the Respondent in the processing of grievances.
Moreover, apart from the grievance procedures themselves, Chief Steward
(Continued)
400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work on February 1, 1974. Krupke worked as an electronic
calibration "B" technician in the electrical laboratory of
the vehicle assemble building. This department, which was
part of the bargaining unit represented by the Respondent,
employed approximately 14 or 15- employees including 6
other "B" technicians besides Krupke; namely, James
Reeves, Jr., Floyd Meiser, Marcus Michels, William
Cressman, who was also the shop steward, Nicholas Nagle,
and Ernie Lonigan.
C. The Failure To Process Krupke's Grievance
About October 4 or 5, 1972, following earlier discussions
among the "B" technicians employed in Krupke's depart-
ment including himself concerning filing grievances to
obtain promotions, Shop Steward Cressman, acting upon
the instructions of Chief Steward Knight, solicited individ-
ual grievances from the "B" technicians in that depart-
ment.
These grievances alleged that Federal had failed and
refused to promote each of the "B" technicians to "A"
technicians and that each of them was performing "A"
technicians' duties in accordance with past practices as
well as Federal's unilaterally' written job descriptions: The
grievances set forth the relief sought was the promotions of
the senior qualified "B" technicians to "A" technicians,
retroactive to September 7, 1972.
According to Chief Steward Knight the basis for the
grievances was that the "B" technicians and "A" techni-
cians both performed the same work while their wage rates
varied over $30 per week. Knight stated with respect to the
electrical department the Respondent had decided it had a
case on the grievances of all the "B" technicians in that
department with the exception of Ernie Lonigan, which it
couldn't prove he was qualified as an "A" technician and
had already lost two grievances on his behalf.
The evidence is undisputed that Shop Steward Cressman
on that occasion solicited and obtained similar grievances,
which he cosigned, from four of the "B" technicians
employed in the electrical department, namely, James
Reeves , Jr., Floyd Meiser, Marcus Michels, and Nicholas
Nagle in addition to his own grievance.5
Krupke testified he also signed a similar gnevance6
presented to him by Shop Steward Cressman at the same
time the other B" technicians in his department submitted
their grievances which Cressman cosigned in his presence
and kept. Nicholas Nagle, who witnessed Krupke file his
grievance with Shop Steward Cressman, whereupon Cress-
man cosigned the grievance and kept it, corroborated
Krupke's testimony.
Shop Steward Cressman acknowledged Krupke had filed
a, grievance with him along with all the other "B"
technicians in his department with the exception of Ernie
Lonigan, which he cosigned 7 and then kept.
Therefore, based upon the undisputed testimonies of
Krupke, Nagle, and Cressman, which I credit, I find that
Krupke also filed a similar grievance with Shop Steward
Cressman as did the other "B" technicians in his
department.
Shop Steward Cressman's recollection of the events after
obtaining the signed grievances from the six "B" techni-
cians in the electrical department including Krupke and
himself was that he took them to Chief Steward Knight
whereupon either he or Knight,called the Respondent's
hall and obtained only five grievance numbers at which
time he typed on each of the grievances, except Krupke's,
the time and the date of the grievance, the grievance
number, and the date of the effective relief sought. After
making copies of the five grievances he returned the
originals of the grievances in an envelope to Chief Steward
Knight and as far as he knew, Krupke's grievance was also
contained in the envelope. Although Cressman had
difficulty specifically recalling those events which occurred
after he had obtained the grievances and his lengthy
testimony concerning those events appears at times
conflicting, he testified he was positive that Chief Steward
Knight during the process of completing the grievances
had informed him that they would put the union members'
grievances in first to see whether the Company accepted
them or rejected them and if that happened he would put
the other grievances through expressing the hope the
Company would give a blanket promotion to all of the "B"
technicians. While according to Cressman, Knight did not
specifically mention Krupke by name, the evidence
established Krupke was the only "B" technician employed
in the electrical department that had filed a grievance who
was not a member of the Respondent, a fact which was
admittedly known to Knight.
Chief Steward Knight denied telling Cressman he was
going to process the union members' grievances first and
then the nonmembers. Knight's version was after Cress-
man had returned with the signed grievances and putting
them on a table in a stack, he read the top one and told
Cressman to bring them back the next day at which time
they would process them. Knight stated on this occasion
Cressman had informed, him that Krupke did not want to
file a grievance because he did not want anything to do
with the Union. Knight's , response was they had enough
problems and he wasn't, going to twist the guy's arm to file
a grievance and it was possible he could get promoted
anyway if they got a blanket settlement.
Knight stated the following day he instructed Respon-
dent's secretary to give Cressman grievance numbers and
he assumed Cressman had filed the grievances with
Federal. Knight stated a day or two later Cressman
brought him copies of five grievances. Knight denied at
any time having seen a grievance filed by Krupke.
Shop Steward Cressman denied telling Chief Steward
Knight that Krupke did not want to have his grievance
filed because he didn't want anything to do with the Union
and Krupke denied having made such statement to
Cressman.
I credit the testimony of Shop Steward Cressman, whom
I find to be a more credible witness than Chief Steward
Knight specifically instructed Shop Steward Cressman to solicit those they had been signed by the grievants and cosigned by Shop Steward
grievances involved here. Cressman.
5 The date and the time of the grievance, the grievance number, and the 6 Each grievance consisted of an original and three copies.
effective date of the relief sought were all inserted on the grievances after T Shop Steward Cressman identified his signature on the grievance which
Krupke had filed.
LOCAL UNION NO. 2088, IBEW
Knight and find that Knight did tell Cressman he would
put the union members' grievances in first to see whether
the Company accepted them or rejected them and if that
happened he would put the other grievances through.
Apart from my observations of the witnesses having found
that Krupke had in fact filed a grievance along with the
other "B" technicians in his department seeking a
promotion, I do not find plausible Knight's testimony
denied by both Cressman and Krupke that Cressman had
informed him Krupke did not want to file a grievance
because he didn't want anything to do with the Union,
especially since the grievances were being filed to get
promotions. Moreover, as discussed infra, Krupke's griev-
ance was subsequently found without explanation in the
possession of the Respondent's Shop Steward Leo Fitzpat-
rick who had replaced its agent Cressman as shop steward.
Federal at the first step meeting held about a week or 10
days later under the grievance procedures with Respon-
dent's representatives Chief Steward Knight and Shop
Steward Cressman initially rejected the grievances.
Krupke's grievance was not considered with the other five
grievances.
Krupke testified that after he turned his grievance in to
Cressman those employees who had filed grievances, upon
asking Shop Steward Cressman what had happened to
them, were informed that they had all been turned in.
Both Krupke and Nicholas Nagle stated on occasions
thereafter when they inquired of Shop Steward Cressman
how the grievances were coming, his response was they
were being processed or they were at a certain step and
there was no way of knowing what was happening to them.
Krupke acknowledged he had never asked Cressman
specifically about his own grievance, and while Cressman
denied anyone including Krupke had asked him specifical-
ly about their own grievances, he stated other employees
had asked him how the grievances were coming along
whereupon he informed them the last he had heard was
they were still working on them. I credit Krupke's
testimony whom I find to be a more credible witness than
Cressman and find Krupke, as Cressman admits other
employees did, inquired generally about the status of the
grievances. Certainly it is more than logical that all of the
employees who were seeking to get promoted to substan-
tially higher paying jobs would have made inquiries
concerning the progress of the grievances.
Cressman, himself, stated after filing the grievances,
whenever he asked Chief Steward Knight about them
Knight's response was they were still working on them.
Although Knight denied Cressman had ever asked him
about the grievances I do not credit Knight's denial. Apart
from having previfusly discredited Knight, it is more
logical that Cressman having filed a grievance himself
would be interested in the outcome which hopefully would
involve a promotion for him.
Krupke's unrebutted testimony established prior to
January 1974' ho was never given any indication that his
a Krupke stated he had heard rumors from other employees that it had
been announced at a union meeting held a week or two earlier that all the
"B" technicians had been promoted to "A" technicians.
9 The exact date to which the pay was retroactive was not established by
401
grievance was not being considered with the other
grievances.
Both Krupke and Nagle testified they first learned about
January 20, 1974,8 when the "B" technicians in the
department received their paychecks that the grievances
had finally been resolved.
Chief Steward Knight acknowledged, besides Krupke, all
of the "B" technicians in the electrical department who had
filed grievances with the exception of Floyd Meiser, who
had been retired for medical reasons , had received their
promotions from "B" technician, to "A" technician with
retroactive pay .9
Cressman who was no longer shop steward at the time
the grievances were resolved in January 1974 testified upon
learning they had been resolved asked former Chief
Steward Knight what he was going to do about Krupke's
grievance whereupon Knight did not give him an answer.
While Knight denied ever having any conversations with
Cressman concerning Krupke's grievance I credit Cress-
man rather than Knight whom I have previously discredit-
ed.
Krupke stated upon receiving his paycheck,which was
normal while the other "B" technicians had received
backpay and their promotions he, made inquiries concern-
ing his grievance to both Federal's Manager Sexton and
Respondent's Shop Steward Fitzpatrick who informed him
they would check. Krupke was subsequently informed, by
Federal's representatives including Manager Chiwa, the
Company had no record of the grievance having been filed
and there was nothing they could do about it.
Krupke testified about a week later Shop Steward
Fitzpatrick called him and asked him if he would be
interested in seeing his grievance. After replying he would
and going to the microwave laboratory, Fitzpatrick showed
him a folder which contained Krupke's grievance with all
the copies 'intact l° as he had filed it with Shop Steward
Cressman originally in addition to the last pages of the
other grievances which had been filed. Fitzpatrick who
permitted him to keep the original of his grievance'and to
make copies of,the other grievances disclaimed to Krupke
any knowledge of how his grievance had gotten into the file
or why it was there. Shop Steward Fitzpatrick was not
called to account for how Krupke's grievance came into his
possession.
Krupke who about this time was laid off from his job for
lack of work admittedly did not make further inquiries of
the matter to any other representatives of the Respondent.
D. Analysis and Conclusions
The General Counsel contended, while Respondent
denied, that the Respondent violated Section 8(b)(1)(A)
and (2) of the Act by failing to process Krupke's grievance
because of his nonmembership in the Respondent, thereby
causing or attempting to cause Federal to violate Section
8(a)(3) of the Act by not considering his grievance whereby
he might have been promoted to an "A" technician in
January 1974 with the results made retroactive to July 1,
the record, however, Nicholas Nagle and Krupke stated it was back to July
1973.
10 Krupke's grievance did not contain a date or, time, a gnevance number
or the effective relief date sought.
402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1973. Respondent, as part of its defense, asserted that
Section 10(b) of the Act 11 barred finding a violation.
Section 8(b)(1)(A) of the Act prohibits a union from
restraining or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act. Section 8(b)(2) of
the Act prohibits a union from causing or attempting to
cause an employer to discriminate against an employee in
violation of Section 8(a)(3) of the Act.
The law is well established that the exclusive bargaining
representative has a statutory duty fairly to represent all of
the employees in the bargaining unit in the enforcement of
their collective-bargaining agreement, which includes
serving the interest of all members without hostility or
discrimination, exercising its discretion with complete good
faith and honesty and avoiding arbitrary conduct. Vaca v.
Sipes, 386 U.S. 171, 177. For a union to selectively
withhold processing the grievance of an employee it
represents solely because that employee is not a member of
the union while processing grievances of those employees
who are union members clearly violates that employee's
rights protected by the Act.
Based upon my findings, supra, I have found that the
Respondent while processing the grievances of its union
members,employed in the bargaining unit failed to process
a similar grievance filed by Krupke because he was not a
member of the Respondent. This action by Respondent
caused Federal not to consider Krupke's grievance
whereby he might have been promoted about January 20,
1974, to an "A" technician retroactive to July 1973.
Respondent contended however, that Section 10(b) of
the Act precluded finding a violation. This contention,
based upon the findings, is rejected. Respondent did not
refuse to accept Krupke's grievance when he initially, filed
it with Shop Steward Cressman in October 1972 which
might give rise to a defense under Section 10(b) of the Act.
Rather, Respondent through its agents Chief Steward
Knight and Shop Steward Cressman accepted Krupke's
grievance but decided, a decision concealed from Krupke
who had been led to believe by Cressman's assurances the
grievances were being' processed, to process the union
members' grievances first, to see what happened, before
putting the other grievances through.
Therefore, Respondent, having accepted Krupke's griev-
ance and entrusted as his bargaining representative with
the duty to process the grievance along with the other
grievances filed, on a nondiscriminatory basis, failed to do
so at all times up to about January 20, 1974, which'was
within the 6-month period preceding the filing of the
charge on February 8, 1974, when the other employees'
grievances were finally resolved. Not only did Krupke first
learn in January 1974 that Respondent had failed to
process his grievance but the discriminatory action by
Respondent became effective when Krupke, unlike the
other grievants similarly situated except for their union
memberships, failed to receive a promotion to an "A"
technician, to which he might have been entitled had he
been considered, with retroactive backpay, as did the other
grievants.
ii Section 10(b) of the Act contains a proviso which provides in part:
"That no complaint shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the charge with the
Where conduct such as here occurring within the 6-
month period preceding the filing of the charge constituted
an unfair labor practice, those early events such as the
circumstances surrounding the filing of Krupke's grievance
in October 1972 may be considered-for the purpose of
shedding light on their true character. See Local Lodge No.
1424, International Association of Machinist, AFL-CIO, et
al. [Bryan Manufacturing Company] v. N.LRB., 362 U.S.
411, 416 (1960).
Respondent's further argument that a violation can not
be found because Krupke did not check on the progress of
his grievance was refuted by the evidence. Krupke while
not specifically mentioning his own grievance, pursuant to
his inquiries about the grievances, was assured by Shop
Steward Cressman as were the other grievants that the
grievances, which were filed together, were being pro-
cessed, and it was not until about January 20, 1974, when
the grievances were finally resolved and Krupke did not
receive his promotion that he first had reason to question
those earlier assurances by his bargaining representative on
which he had the right to rely.
Therefore, based upon my findings and having rejected
Respondent's defenses, I find for the reasons herein
discussed that the Respondent violated Section 8(b)(l)(A)
and (2) of the Act by failing to process Krupke' s grievance
because of his nonmembership in the Respondent, thereby
causing Federal to violate Section 8(a)(3) of the Act by not
considering Krupke's grievance whereby he might have
been promoted about January 20, 1974, to an "A"
technician, retroactive to July 1973.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the- Respondent set forth in section III,
above, found to constitute unfair labor practices occurring
in connection with the operations of Federal Electric
Corporation described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the' several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
CONCLUSIONS OF LAW
1. Federal Electric Corporation is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Local Union No. 2088, International Brotherhood of
Electrical Workers, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By failing to process Krupke's grievance because of
his nonmembership in the Respondent, thereby causing
Federal to violate Section 8(aX3) of the Act by not
considering Krupke's grievance whereby he might have
been promoted about January 20, 1974, to an "A"
technician, retroactive to July 1973, Respondent violated
Section 8(b)(1)(A) and (2) of the Act.
Board and the service of a copy thereof upon the person against whom such
charge is made ...: .
LOCAL UNION NO. 2088, IBEW 403
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2 (6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices within the meaning of Section 8(b)(1)(A)
and (2) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Respondent having discriminatorily failed to process
Krupke's grievance concerning his promotion from "B"
technician to "A" technician it shall be ordered to process
and take Krupke's grievance to arbitration.
Further, and only if upon the exhaustion of the
arbitration procedures, a determination has not been made
on the merits of Krupke's grievance as a result of the
Respondent's discrimination against him herein found,
Respondent shall be ordered to make Krupke whole for all
loss of retroactive backpay he would have received about
January 20, 1974, the same as if he had been promoted to
an "A" technician retroactive to July 1973, but not for any
differences in the pay rates between the "B" technician and
the "A" technician beyond that date of about January 20,
1974, since he was not actually promoted. Interest at the
rate of 6 percent per annum shall also be paid on the
amount of any such loss beginning about January 20, 1974,
when the retroactive backpay would have been received.
The inclusion of this additional provision is deemed
necessary and just to remedy Respondent's discrimination
against Krupke since if it becomes operative it will mean
that the Respondent by its discrimination has precluded a
determination on the merits of Krupke 's grievance and in
view of the fact Respondent felt it had a case on the
promotions of all the "B" technicians in Krupke's
department with the exception of Ernie Lonigan and that
all of the grievants except Krupke and Floyd Meiser, who
had retired, had received their promotions with retroactive
backpay as a result of the Respondent having processed
their grievances. Cf. Local 485, International Union of
Electrical, Radio & Machine Workers, AFL-CIO (Au-
tomotive Plating Corp.), 183 NLRB 1286 (1970), enforce-
ment denied 454 F.2d 17 (C.A. 2, 1972).
[Recommended Order omitted from publication.]