The Corrugated Container Co.

National Labor Relations Board - Board DecisionsJan 12, 1970

180 N.L.R.B. 663 (N.L.R.B. 1970)

THE CORRUGATED CONTAINER COMPANY The Corrugated Container Company and United Papermakers and Paperworkers ofAmerica, AFL-CIO. Case 9-CA-4903 January 12, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On July 17, 1969, Trial Examiner Boyd Leedom issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practice conduct alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and Charging Party filed exceptions to the Decision and supporting briefs, and the Respondent filed cross-exceptions and an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER It is ordered that the complaint herein be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION BOYD LEEDOM, Trial Examiner: This case was tried at Columbus, Ohio, on March 13, 1969. The charge was filed October 7 and the complaint issued thereon is dated November 29, 1968. The complaint alleges, and Respondent's answer denies, that the Employer, in the manner hereinafter more specifically set forth, unlawfully interfered with, restrained, and coerced employees, and discharged its employee Charles M. Sanders, and refused to bargain with the employees' lawful representative, the union above named, in violation of Sections 8(a)(I), (3), and (5) of the National Labor-Management Relations Act. On the basis of all the evidence, the briefs filed herein, on my observation of the witnesses as they testified, and on the Findings of Fact and Conclusions of Law hereinafter set forth, I conclude that the General Counsel has failed to establish by a preponderance of the credible evidence any violation of the Act and therefore recommend that the complaint be dismissed. FINDINGS OF FACT AND CONCLUSIONS OF LAW I JURISDICTION 663 From the relevant allegations in the complaint, admitted in the answer, I find that Respondent is an employer engaged in commerce, and that the Charging Party is a labor organization; all within the meaning of the National Labor Relations Act as amended. This matter is therefore within the jurisdiction of the National Labor Relations Board There is no dispute as to these aspects of the case 11. THE ALLEGED VIOLATION OF SECTION 8(a)(3) Charles Sanders was admittedly discharged by Respondent on September 19, 1968. He had been an employee for more than 6 years and during a little more than the last 2 1/2 years of his employment had been the president of the Union. It is the theory of the General Counsel that Sanders unlike his predecessors in the office of president of the Union, had been so aggressive in solving the problems of the employees he represented, and in pressing their grievances, that his conduct "could only have curled the hair of management representatives" and that they therefore hit upon a series of incidents in Sanders' conduct as an excuse for firing him, whereas the real reason was the strong thrust of his action on behalf of the Union. Whether Sanders' discharge was based on such pretext or was actually for insubordination and rule violation, as Respondent claims, is the principal issue in the case. Respondent called no witnesses in its own behalf. At the close of the General Counsel's case Respondent rested, relying on the testimony of witnesses called by the General Counsel, and on documentary evidence introduced in the course of the presentation of the General Counsel's case. Because Respondent called no witnesses this case presents no credibility problems and is resolved on the documentary evidence and the interpretations placed upon, and inferences drawn from, undisputed oral testimony. In an effort to support the theory that Sanders was unusually aggressive and effective in the protection of employee rights under the collective-bargaining agreement (thus evoking Respondent's ire) the General Counsel adduced testimony from Sanders respecting his handling of specific employee problems. First Sanders notified management that all oral modifications of the written agreement were out, changing a policy pursued by his predecessors. Then early in his career as union president he gained access to employee personnel files for the purpose of searching for errors in benefits allowed in old industrial cases. A year or so later he established the right of employees to mark down "allowed time" on their production sheets, and in connection therewith testified that at the time of his discharge there was still ill feeling toward him from management on this score. He also gained employee advantages respecting monthly efficiency charts, and effectively eliminated the custom of posting names of employees who had received adverse warning notices. In 1967 he achieved more precise compliance as to the times for holding first-step grievance meetings, better to suit the convenience of the employees involved. I am unable to find substantial support for the General Counsel's case in the testimony referred to in the preceding paragraph. The basic weakness with it is that there is nothing in the record to establish or even to suggest that the Sanders' activity and achievement, in the 180 NLRB No. 102 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD areas mentioned, was really anything more than normal handling of employee grievances by a union representative. Granted that some weight must be given to Sanders' own testimony that the handling of one item, at least, had left sore spots with management, this fact is not significantly probative for it is common knowledge that grievance handling under a collective-bargaining agreement often develops sharp disagreement between union and management representatives. The evidence here is devoid of any measure by which to adjudge this grievance handling either unusual or an aggravated case. In the total absence of evidence of union animus in a good relationship between this employer and this union over many years, with no evidence of other real difficulty between Sanders as the union representative and management (until the events occurred that led to his discharge) the evidence of his earlier grievance handling does not form a substantial base for the pretext theory in the discharge. Thus as I view the case the discharge issue must be resolved almost entirely on the evidence relating to the events leading directly to Sanders' dismissal. The collective-bargaining contract in effect between the Union and Respondent during all times relevant to the issues in the case reveals that "The Company shall provide a Bulletin Board for the use of the Union in posting notices of meetings and bulletins. All material posted by the Union on the Bulletin Board shall be submitted to the Company for approval before posting." The dispute between Respondent and Sanders that led to the discharge grew out of Sanders' posting of a certain notice. Respecting the requirement in the rule that all material to be posted should be submitted to the Company for approval, Sanders testified that until sometime in 1968 he had always obtained such approval for each posting but that in 1968 he had obtained from Respondent's personnel manager general permission to post material provided it was "not detrimental to the Company." Thereafter Sanders posted notices without obtaining special permission in each instance. While this oral modification of the contract seems to conflict with Sanders' testimony that "all mutual [oral] agreements are out" I accept at face value his testimony and find that he did receive general permission to post notices not detrimental to the Company, a point of no real legal significance in the case. Not long before his dismissal, Sanders raised with the personnel manager, Robert Rudowski, the question whether Respondent was handling in an entirely satisfactory method claims filed with the State Industrial Commission on behalf of employees involved in industrial injury. He claimed Respondent was not certifying the claims in all cases where they should be certified and that the employees were therefore suffering a handicap in the Commission's disposition of some cases. Sanders testified that during this discussion Rudowski said "Well, I can give you one of three words to use to describe an accident that the Industrial Commission would approve [it] just like that, as simple as that, they would approve it." That Sanders then said to Rudowski "Well, tell me." That the personnel manager then said "But, if you say where this came from, I'll deny it. It's slip, twist or fall." At the time this conversation took place Sanders was working a night shift. During his shift immediately following this conversation, that is either before midnight on September 3 or after midnight on September 4, he posted several notices on the Company bulletin board without specific permission; but testified he assumed the posting proper under the general permission hereinbefore referred to. Only one of the notices , that is the one that related directly to the "slip, twist or fall" conversation Sanders had with the personnel manager seems to be relevant to the issues in the case , inasmuch as all subsequent controversial conduct on the part of Sanders related to this subject . All four notices , however, were suggestive of conflict with the Company . The notice most controversial , directed to all the members of the local union and in large hand printing , read as follows: Before reporting an accident to your foreman make sure you have a witness ( union member ). And make sure the foreman reports it as an accident . Make sure he puts down on the accident report, that you SLIP - TWIST or FALL Chas. M. Sander Pres. On September 5, 1968, management removed the notices Sanders had posted and placed on the board a notice directed to all employees indicating that Sanders' notices were being removed under the terms of the contract, setting forth the contract provision that requires Company approval of Union notices. On the night of the day the notices were removed from the Company bulletin board, Sanders reported for work wearing on the back of his shirt one of two signs , either Joint Exhibit 11 or 12; which one he wore on this first night, he was uncertain. Both signs are entitled " Bulletin Board." Under this caption, Joint Exhibit I l reads: TRUTH HURTS THE GUILTY LIE HURTS EVERYONE RATE'S ARE BEING CHANGED ON 6-H IF I DON'T AGREE WITH MANAGEMENT I AM BEING INSUBORDINATE LOCAL 236 IMPORTANT Under the caption "Bulletin Board" Joint Exhibit 12 is as follows. Be sure to Report your accident Properly in front of Union witness and Remember report it as SLIP! TWIST! or FALL Union meeting Sat. 14th Don't Forget Inasmuch as Joint Exhibit 12, just above, is essentially a duplicate of the notice that had been removed from the bulletin board, and inasmuch as Sanders had been charged with insubordination in connection with his first wearing of a sign, and Joint Exhibit II refers to "insubordination ," I find and conclude that Joint Exhibit 12 was the sign he first wore on his back. THE CORRUGATED CONTAINER COMPANY Sanders had been informed by a union official that Frank Columbo, night shift superintendent, wanted Sanders to take down the notices from the regular bulletin board, and Sanders refused to do it. When he appeared with the duplicate notice on his back Columbo came to the place where Sanders was working and took a Polaroid picture of the sign on his back, using a flash attachment. Sanders' job consisted of driving a tow motor on a loading dock. Two other employees worked in his immediate area. The next two nights, Friday and Saturday, September 6 and 7, Sanders did not work. On Sunday the 8th however he came to work again wearing on his back one of the two signs. Columbo, his superintendent asked Sanders to remove the sign and again sought to take a picture. Sanders did not remove the sign and would not let Columbo take pictures. He would turn his back as a picture was to be snapped or put on a jacket. When Columbo left he would take the jacket off. Sanders said this situation was creating a safety hazard; that Columbo walked away; and that the foreman came on the job. Sanders told the foreman to tell Columbo that Sanders refused to work as long as Columbo was on the dock "with a camera flashing it in my eyes." The foreman left and apparently told Columbo of Sanders attitude. Sanders testified that Columbo then came out and said to him "You hillbilly c... s... you, you had better not run over me with that tow motor." This "made me mad" Sanders testified and so he said to Columbo "You dago s... of a b... I never said I was going to run over you with the tow motor." Columbo then invited him outside to repeat the statement and Sanders answered "Why don't you come up here in front of union witnesses now, you have used my people as witnesses against me, now use my people as witnesses for me, come up and dare me outside." Columbo then did invite him outside after some bickering, but no fighting, and Sanders said "Get out of here, I am working." Sanders believes that he wore the sign again on the night of Monday, September 9 and that nothing happened. The next night however he did wear the sign and Columbo asked him to take it off. He refused to do it. About 2 o'clock in the morning of this shift Columbo took Sanders to the office where Sanders was given a first warning notice, Joint Exhibit 4, dated September 11, 1968. In it Sanders was charged with insubordination in that, starting Sunday night, September 8, he refused to follow a direct order given by his superintendent, Columbo, in the presence of William Hoover, shop steward and Frank Croswell a foreman, to remove signs hanging from his person while performing his regular duties; and again refusing to do the same on September 10. The notice also stated that any further acts of insubordination would result in severe disciplinary action or discharge. On the shift the next night Sanders wore the sign to work but he did not wear it at work because of the conflict between himself and two members of the union committee. He testified "They seem to think it was childish to wear the sign so I did not wear it that night." The next night however he did wear the sign ". . . for the simple reason that people had made the remarks that the foremen were going around telling that Columbo backed him [Sanders] down, ... they made remarks such as there is the type of a president you've got, he would crow whenever he was in a hole." As he resumed wearing the sign during this Thursday night shift he also posted a notice on the company bulletin board that he would resign 665 as president of the Local due to conflict "between union and management." The resignation notice posted (G. C. Exh. 4) did not, however, rest the resignation on the conflict between "union and management" but rather read "Due to the conflict that exists in our plant and due to the best interests of the people I will resign as Pres. Local 236 U.P.P. A.A.F.L. C I.O. Sat. Sept. 14 at our regular union meeting." In about an hour Columbo came to Sanders and asked him to take the resignation notice down because he had not obtained permission to post it. Sanders took it down. At the union meeting on September 14 the membership refused to accept Sanders resignation "and they was backing me 100 percent in my wearing of the sign " On his next shift, Sunday the 15th, Sanders again wore one of the two signs. He was asked by Columbo to remove it but refused to do so He was again taken to the office and was given a second warning notice, Joint Exhibit 5. It is dated September 15, 1968, and is similar to the first notice, a warning for insubordination in that he refused to remove the sign on September 15. It also provided that "at this time 3 days disciplinary action given starting 9-16-68 . . . any further act or acts of insubordination on the part of Charles Sanders will be cause for immediate discharge." The suspension took effect immediately. Following the suspension Sanders reported to work on the night shift beginning Wednesday, September 18 wearing a different sign . It was a linen towel, General Counsel's Exhibit 5, bearing the legend in large red letters "An injury in this plant does not mean necessarily an industrial injury, Only Accidents, i.e., Slip, Twist Fall." This sign was attached to the jacket Sanders was wearing. Before he went to work he was stopped at the lounge room door and was asked by Columbo to remove the sign. Sanders asked "Why?" And Columbo said "Just because I said to" and "It is a safety hazard." Sanders then took his jacket off removed the four safety pins that held the sign to his jacket at the four corners and put the jacket back on. Underneath the sign that had been pinned to his jacket Sanders had painted a sign directly on his jacket which read "Bulletin Board" "An Industrial Injury is an accident such as examples slip, twist, fall. So make sure you report it as such." The jacket, bearing such legend, was displayed in the court room but was not introduced or received in evidence. Columbo told Sanders to take his jacket off and Sanders responded that it was too cold. Columbo directed him to go to the office. He remained there for about an hour. Meanwhile Columbo and Sanders' Foreman, Joe Beirau , conferred in another office. Beirau came to Sanders and asked if he could read the words on the jacket. Sanders replied the sign on the jacket was for the benefit of union people and he did not wear a jacket in the office. When Beirau asked if he could see the jacket anyway, Sanders replied "Absolutely not." The foreman then asked Sanders, if he went back to work would he put the jacket back on, and Sanders replied "If it gets cold." The foreman left and returned with the plant manager and personnel manager . Sanders was then discharged for insubordination . The "Employment Termination" dated September 18, 1968, and signed by Columbo shows "Discharged for cause"; and under explanation appeared "Insubordination." On the foregoing facts I find and conclude that Sanders was discharged by Respondent for good cause, that is insubordination. The record holds no explanation for Sanders' strange reaction to the helpful suggestion he 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received from Rudowski, personnel manager, that when employees were reporting an accident it would be helpful to use such words as slip, twist, or fall. Rudowski's statement, also unexplained in the record, that he would deny having said it if Sanders ever told where he got the suggestion, was a clear indication that Sanders should use the information discreetly If Sanders had been at all sensitive to maintenance of a good relationship with management, in behalf of the employees he represented, he would have handled this information in a wholly different manner than he did, and to the advantage of the employees. Why he chose to treat it negatively or as adverse rather than helpful advice, is not only the riddle in the case, but also, in a sense it is a clue to the proper determination of the issue of the discharge. While Sanders testified that his manner of handling the slip, twist and fall notice was not any indication of a crusade against the Company, his every action belies his words Any normal handling of the information would have resulted in a further conference with Rudowski as to the best way to disseminate the information. Having failed in this, Sanders should have been alerted to company displeasure when he got word through a union colleague that management wanted him to take the notice down. He refused and made no effort to find out what was wrong. Instead he set out on the strange course of seeking to thwart the rule agreed upon that no notice should be posted that did not have company approval This reaction of Sanders indicates that somehow he believed Rudowski had sought to hamper him. His unreasonable persistence in establishing his back as a "bulletin board," his immaturity in the persistent display of an almost meaningless message to scarcely any of the employees he represented, over the objection of management, support the initial apprehension that Sanders' reaction to the "slip, twist, and fall" conversation was, to say the least, very whimsical. His conduct was regarded by fellow union officials as "childish." It created such conflict in the plant that Sanders himself believed it "to the best interest of the people" that he resign and he did post notice of his impending resignation. The matter clearly became an obsession. Neither the briefs nor the evidence make clear what protected activity Sanders was engaged in when he went through the series of acts that brought on his discharge Under any reasonable view of the evidence Sanders was seeking to make of his back a substitute for the regular bulletin board. He unquestionably sought to circumvent the contractual provision that he get company approval of notices posted, for he knew from the beginning that his notice was objectionable Even though it be assumed, as I do assume, that general permission was given Sanders to post notices without obtaining special permission in each specific instance, there can be no question but that the Company made clear its disapproval of the notice involved, and repeatedly gave him opportunities to rectify the situation. He was disrupting order within the plant and injuring the union-employer relations. Nor can it be argued that the Company's disapproval of the posting was an abuse of its discretion under the contract for the notice was objectionable not only because it tended to involve management in an area where it did not desire to be involved (as Rudowski made clear to Sanders) but also because it was in a sense unintelligible and misleading, tending to suggest to each employee that regardless of the nature of his claim before the Industrial Commission, he should invariably state that he either slipped, suffered a twist, or fell It is not enough to say he was violating a rule. He was running rampant with a wild idea. The cases cited in support of the General Counsel's case, bearing on the right of an employee to wear union insignia (Kavser-Roth Hosiery Company, Inc., 166 NLRB No. 56, and other cases) and to advertise adverse working conditions, are in my judgment wholly inapposite. This case presents no real Union or employee grievance as a basis for the action, no concerted activity, but rather activity of Sanders alone that threatened to create real disorder in the plant. In some respects this case is similar to Norfolk Conveyor, etc., 155 NLRB 464. There as here an employee and ardent union adherent, who was discharged, sought to rely on his union activity as the reason, whereas the real cause as determined by Trial Examiner Josephine Klein, (affirmed by the Board) was the dischargee's conduct respecting management that was neither concerted nor protected activity. Here as in Norfolk Conveyor there was an event or incident that could qualify as a "term or condition of employment" that might have resulted in proper concerted, protected activity; but not all of the conduct that flows from such a proper base is inevitably concerted and protected. Here as in that case the dischargee embarked, on a course of his own that in the words of Trial Examiner Klein "exceeded the scope of any statutory protection he might have had." Sanders should have sought in a reasonable fashion to make proper and permissible use of the bulletin board in transmitting to the employees the helpful information he had obtained in his conference with the personnel manager. This he most surely did not do. Rather his course of action was disordered beyond understanding, and purposeless. In addition it was provocative to such extent that Respondent's patience, and consideration, and its deliberate and forebearing reaction seem relatively benign. Respondent reached a judgment that Sanders fixation had to be brought under control. The record reveals no good basis for substituting our judgment, for the employer's, that anything short of the discharge would achieve this end. Thus I find and conclude that the General Counsel has not shown that Sanders was suspended or discharged for engaging in concerted, protected activity and will therefore recommend that the complaint be dismissed as to the alleged violation of Section 8(a)(3). III. THE ALLEGED VIOLATIONS OF SECTION 8(aX5) Immediately after his discharge Sanders filed a grievance stating that the termination had been unlawful and requesting reinstatement with seniority restored and reimbursement for all wages lost while off the payroll. The morning of Thursday, September 19, the date that the grievance bears, the first step in the grievance procedure was held with Sanders present. While Sanders testified that it was not a satisfactory meeting, it appears to have been held pursuant to contract provisions, and under date of September 23, 1968, as revealed by Joint Exhibit No. 8, the result was shown to be "Discharge was for insubordination. This is a just cause. Grievance denied." This report is signed by the shop steward and a company representative. It appears that a meeting that may have been intended to be the second step of the grievance procedure, and that was actually treated by Respondent as the second step, took place on the same morning that the first step was THE CORRUGATED CONTAINER COMPANY held. At this meeting the group in attendance was larger and apparently constituted according to the contract provisions relating to the second step. One such provision requires that a majority of the union executive committee shall be present at such a meeting. The executive committee is made up of the Union's executive board and the officers. The entire union committee was present, also David Pierrepont, an International Representative of the Union, and Messrs. Pettengill, plant manager, Frantz and Mirendo, company representatives. According to the undisputed testimony of Pierrepont the meeting, while called to consider several company grievances, "boiled down to Charlie Sanders' discharge case . We never got any further than that." He also testified and I find that "Mr. Pettengill [Plant Manager] immediately said that he wanted Charles Sanders removed from the committee right there and then." Pierrepont then told Pettengill that Sanders as an elected official of the local union and chairman of the local union committee had a right to represent the people. He then volunteered that " . perhaps we should go in a local body and have Charles Sanders appointed business agent or business representative of the local union." He also testified and I find that Pettengill's response was: "Well, bring in the credentials, when this happens and we will recognize him." The meeting then adjourned and subsequently Sanders was elected as "Business Representative." The Company was notified of his election and advised that Sanders would preside in all grievances proceedings and discussions of any sort involving the union committee. (Joint Exh. 9). Soon after Sanders was so selected as business representative, by letter dated October 3, 1968 (Joint Exh. 10), Pettengill advised the Union that the bargaining agreement did not provide for a business representative in the handling of grievances on behalf of the Union, and that there was no precedent for such action during the 25 years of the relationship between the Local and the Company. The letter further set out that the grievances under the contract were to be handled by Stewards, the union committee, and an International representative, indicating that the union committee should consist of employees; and stated a willingness to meet and discuss grievances but only with persons described in the agreement. The evidence also reveals that following all the events set forth above, grievances other than Sanders' were dealt with between the Union and the Company with Pierrepont sitting in as the International representative as provided by the contract and Sanders not present. Considerably after the latest of the foregoing events transpired, by letter dated February 3, 1969, Respondent submitted to the Union certain excerpts of Circuit Court of Appeals decisions which, Respondent stated, supported the proposition that Respondent was not unreasonable in requesting that the Union use some one other than Charles Sanders as its representative in processing grievances. The letter indicated that certain grievances were ready for the third step and invited . . your committee and Mr. Pierrepont to discuss and negotiate agreeable solutions to the grievances now in question." (Resp. Exh. 1.) To this letter from the Company the Union responded with feeling and emphasis that the Company's position as set forth in its letter was a total reversal of previous discussions with the Company; that it was none of the Company' s business as to which persons represented the Union in grievance procedures; admonished the Company not to interfere in this area; 667 gave notice that Sanders had been appointed a special representative of the International; requested a meeting during the week of February 17 and advice as to the date, time and place, named certain officials who would be present to represent the Union and stated that Sanders would be requested to attend The letter closes in an appeal to set aside petty differences and to sit down and resolve the problems. (Resp. Exh. 2) A week later the Company replied to the Union's letter calling attention to the many years of good relationship between the Union and the Company, and stated that in its first letter the Company had only cited certain court authorities and that Respondent did not . unequivocally refuse to hold grievance meetings with Charles Sanders present." The letter also noted that following the Union's February 5 letter a grievance meeting had been held (on February 6), at which an understanding had been reached that no meeting would be held on the week of February 17 as requested in the Union's earlier letter; and agreed that petty differences should be set aside. (Resp. Exh. 3.) I find and conclude that the events referred to and the statements set forth in the forgoing paragraphs respecting the grievance filed by Sanders, took place and were made as therein stated. I also find and conclude that for all practical purposes Respondent refused to meet with the Union to process grievances so long as Sanders was present as a representative of the Union; and that initially, and up to the time it directed its letters to the Union (Resp. Exh. I and 3) the reason given for its refusal to meet with Sanders was because he was not an employee of the Company. There is nothing in the evidence to establish that the president of the Union need be an employee. While Respondent argues in the brief that at no time did it unequivocally refuse to bargain with Sanders as a union representative, the position it took initially that Sanders was not qualified because he lacked employee status, effectively thwarted bargaining over his discharge from the conclusion of the step I grievance to the date of the trial. While it is a fact that Pettengill said at the controversial meeting only that he "wanted" Sanders removed from the committee, and that the meeting then came to an end by reason of Pierrepont's suggestion that Sanders be selected by the Union as a special representative, the fact remains bargaining was thwarted by the Respondent by indirect, if not direct, means. I find and conclude that there is nothing in the evidence to justify Respondent's refusal to meet with Sanders as a union representative. All the parties concede, and it is well established, that generally all parties to the collective bargaining process are entitled to select their own representatives, although such right is not an absolute one. Respondent however did not undertake to bring its position respecting Sanders under any established ground for excluding Sanders as a union representative, or to show any other justifiable reason. The record is silent as to what if any action was taken by either the Union or Respondent respecting the Sanders grievance between Respondent's letter to the Union dated October 3, 1968, hereinbefore referred to, and the correspondence dated in February, Respondent's Exhibits 1, 2, and 3. It is reasonably clear however, and I find that there were no bargaining sessions between the Respondent and the Union in which Sanders was a participant, or in which his grievance was discussed. The later letters from Respondent to the Union (Resp. Exhs. I and 3) are self-serving in a degree, in that the Respondent there seeks 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to make clear it had never absolutely refused to meet with Sanders present. The letters also tend to reveal a new and different reason why Respondent felt not bound to meet on grievances if Sanders sat as a union representative. In its Exhibit 3 Respondent seems to inject the new position that the atmosphere in bargaining sessions would not be favorable if a union representative " . would be a man who had recently been discharged from our employ." While the record in this case and my observation of Sanders on the witness stand (where he revealed excessive zeal and aggressiveness as a proponent for a special cause) suggest that there is merit to such claim, this late position assumed by Respondent (in the nature of an after-thought) certainly establishes no legal right in Respondent to exclude Sanders as a member of the Union bargaining team. I make the foregoing findings and conclusions respecting the facts and the law relating to the respective bargaining positions on Sanders' grievance, only because the findings of fact might become relevant in the event of a review of this decision; and not because they are significant factors in my resolution of the issues, as hereinafter appears. Counsel for Respondent makes the point in the brief that the dispute arising over Sanders' right to be a union representative could have been the subject of a grievance on the part of either Sanders or the Charging Party herein. No attempt however was made by either to file such a grievance. For the reasons hereinafter appearing I find and conclude that at such time as it appeared that Respondent was thwarting consideration of the Sanders grievance, and the Union elected to file both 8(a)(3) and 8(a)(5) charges, it put in motion legal processess which, if carried through to an adjudication of the issue as to the 8(a)(3), would at that time of necessity bar substantial relief under the allegations of violation of Section 8(a)(5). Assuming that the factual situation was such that Respondent was obliged to bargain over the discharge at the time of its refusal, such obligation would continue to the time of the adjudication of the 8(a)(3) issue under the Board's processes. Thereafter as indicated no bargaining order can be given under the allegations of violation of Section 8(a)(5). That such relief should be denied as to the alleged violation of Section 8(a)(5), becomes quite clear through a consideration of the alternative. The determination has already been made in this Decision that Sanders was discharged for good cause It would be repugnant to the Act if Respondent were now required to bargain with the Union respecting the discharge under the grievance machinery provided in the agreement. When Sanders and the Union sought Board determination as to the validity or unlawfulness of his discharge, they foreclosed themselves of the right to bargain subsequently respecting the discharge To hold otherwise would be to require the parties to engage in a futile act or to overturn, through their grievance procedure, an adjudication under the Board's processes. The law permits a grievant in the position of Sanders to bargain respecting the issue through all the grievance steps, including arbitration, and then, in the event of an adverse decision, to test the validity of the arbitration proceedings under the Act and the guidelines established by the Board. The procedure does not work in reverse, however, there is no theory of law that permits a dischargee to seek before the Board an adjudication as to the lawfulness of his discharge, and then, if aggrieved, to seek a different result through grievance procedure and arbitration. Thus it is apparent that the evidence adduced in support of the allegations of violation of Section 8(a)(5) of the Act will not justify a bargaining order after adjudication of the issues arising under the 8(a)(3) allegations. For whether the adjudication before the Board be that the discharge is lawful, or unlawful, there is nothing to grieve or bargain about. The matter is fully resolved except for possible litigation in the courts. Respondent's refusal to meet with the Union on grievances would appear from this record to be adequate support for an 8(a)(5) order, apart from the effect of the resolution of the 8(a)(3). Anything less than a bargaining order as relief, however, for instance a requirement that Respondent cease and desist from similar conduct in the future, seems so lacking in potency as to be useless. The law does not indulge in pretense and therefore does not provide a remedy that has no substance. And so, even if an 8(a)(5) violation were found, any permissible remedy would not substantially effectuate the policies of the Act. See Kentile. Inc., 145 NLRB 135. For these reasons it is recommended that the allegations of violation of Section 8(a)(5) be dismissed. IV. THE ALLEGATION OF VIOLATION OF SECTION 8(a)(I) There are no allegations of independent violation of Section 8(a)(l) of the Act, only those that would be derivative of the violation of Sections 8(a)(3) and (5). Inasmuch as it has been determined that there has been no violation of Sections 8(a)(3) and (5), it follows that there are no violations of Section 8(a)(1). I therefore recommend that the complaint be dismissed as to these allegations; and in its entirety.