King Soopers, Inc.

National Labor Relations Board - Board Decisions

Feb 23, 1976

222 N.L.R.B. 1011 (N.L.R.B. 1976)

KING SOOPERS, INC.
King Soopers, Inc. and Richard T . Gonzales
Retail Clerks Union Local No. 7, Chartered by the
Retail Clerks International Association , AFL-CIO
and Richard T. Gonzales . Cases 27-CA-4302 and
27-CB-876
February 23, 1976
DECISION AND-ORDER
By MEMBERS JENKINS, PENELLO, AND WALTHER
On October 14, 1975, Administrative Law Judge
Earldean V. S. Robbins issued the attached Decision
in this proceeding. Thereafter, Respondent Employer
and Respondent Union filed exceptions and briefs.
Pursuant to the provisions of Section 3(h) 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, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt her recommended Order.'
i In sec. III,E,2, of her Decision, the Administrative Law Judge states that
at sometime prior to the October 14, 1974, grievance meeting , Downton,
Respondent Employer's employment supervisor, was notified by the Equal
Employment Opportunity Commission that Gonzales had complained to its
office, whereas the record clearly discloses that it was the Colorado Civil
Rights Commission which contracted Downton during this period. This ap-
parently inadvertent error, however, does not affect the results of our deci-
sion herein.
2 In agreeing with the Administrative Law Judge's Conclusion of Law
that Respondent Employer has violated Sec. 8(a)(1) of the Act by discharg-
ing Gonzales, we note that in the portion of her Decision entitled "The
Remedy" she inadvertently referred to such conduct as violative of Sec.
8(a)(3)
Following the submission of the exceptions and briefs, Respondent
Union filed a motion, in which Respondent Employer has joined; to reopen
the record to admit copies of a "Notice of Right to Sue" and a "Determina-
tion" issued by the district director of the Equal Employment Opportunity
Commission subsequent to the hearing in the instant proceeding. Since the
authenticity of these documents is not disputed, we hereby grant Respon-
dents' motion. In his determination, the district director found no reason-
able cause to believe that Respondents had violated Title VII of the Civil
Rights Act of 1964, based on charges filed by Gonzales. However, having
duly considered both these documents, together with the litigated facts de-
veloped at the hearing before the Administrative Law Judge, we conclude
that the district director's determination is not entitled to controlling weight
herein.
3 We do not find that, in the circumstances here, Respondent Union
breached its duty of fair representation by the failure of its representative to
be present at the meeting held between the Employer's officials and Gon-
zales on September 20 Rather, in imposing backpay liability upon the
Union for Gonzales' suspension by the Employer on September 20, 21, and
22, we particularly rely on the Administrative Law Judge's finding that the
Union failed to fully and fairly represent Gonzales not only with respect to
his subsequent indefinite suspension, but also with respect to the processing
of his grievance, which specifically raised the matter of his initial 3-day
suspension. Local Union No. 2088, International Brotherhood of Electrical
Workers, AFL-CIO (Federal Electric Corporation), 218 NLRB No. 48
(1975).
ORDER
1011
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, King Soopers, Inc., Denver,
Colorado, its officers , agents, successors , and assigns,
and Respondent , Retail Clerks Union Local No. 7,
Chartered by the Retail Clerks International Associ-
ation, AFL-CIO , Denver, Colorado, its officers,
agents, and representatives , shall take the action set
forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
EARLDEAN V.S. ROBBINS, Administrative Law Judge: This
case was heard before me in Denver , Colorado , on July 22
and 23 , 1975 . The charges were filed by Richard T. Gon-
zales, an individual , in Case Number 27-CB-876 on Octo-
ber 15 , 1974, and served on Respondent Union on that
same date ; and in Case 27-CA-4302 on October 22, 1974,
and served on Respondent Employer on that same date.
On April 25, 1975, the complaint issued in Case
27-CA-4302 alleging that Respondent Employer has vio-
lated Section 8(a)(1) of the National Labor Relations Act,
as amended . On April 30, 1975, the complaint issued in
Case 27-CB-876 alleging that Respondent Union has vio-
lated Section 8(b)(1)(A) of the Act. An order issued on
May 1, 1975, consolidating these cases for the purpose of
hearing, ruling, and decision by an Administrative Law
Judge . Posthearing briefs were filed by the General Coun-
sel and Respondents.
The basic issues herein are whether Respondent Em-
ployer discharged Gonzales because he complained to, and
subsequently filed charges with , the Colorado Civil Rights
Commission , herein called CCRC, and the Equal Employ-
ment Opportunity Commission , herein called EEOC; and
whether Respondent Union refused to represent Gonzales
fairly and refused to process his discharge grievance be-
cause - he exercised his rights to nondiscrimination under
the collective-bargaining agreement by complaining to said
governmental agencies.
Upon the entire record, including my observation of the
demeanor of the witnesses , and after due consideration-of
the briefs filed by the parties, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent King Soopers, Inc., a Colorado corporation
with its principal office and place of business in Denver,
Colorado, is engaged in the retail sale of groceries and re-
lated products. Respondent King Soopers, Inc., in the
course and conduct of its business operations, annually
222 NLRB No. 80
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sells goods valued in excess of $500,000 and annually pur-
chases and receives goods and materials valued in excess of
$50,000 directly from sources located outside the State of
Colorado.
The complaint alleges, Respondents admit, and I find
that Respondent is, and at all-times material has been, an
employer engaged in operations affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent Union admits, and I
find that Respondent Union is, and at all times material
has been, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Events leading to the Initial Suspension
Gonzales began work at King Soopers as an all purpose
clerk stocking shelves at night on July 3, 1972. In the latter
part of April 1974 I a fellow employee was promoted to
night crew foreman, a position that Gonzales felt should
have been given him. A similar failure to upgrade him oc-
curred in August. He protested both instances, claiming
that he'was passed over for the promotion because he is
Spanish American.2 The situation was never resolved to
Gonzales' satisfaction and about the second week in Sep-
tember he complained to CCRC and on September 18 to
EEOC.
On September 17, Gonzales' wife Debra called in to the
Respondent to report that Gonzales was ill and would not
be at work that-eve'ning. Later that day, Douglas McDon-
ald, service department manager at Respondent's Store
No., 11,3 telephoned Gonzales and told him he had to have
a doctor's excuse upon returning to work. On September
18, Gonzales secured a doctor's excuse requesting, that he
be excused from work for 3 days.
On September 19, Mrs. Gonzales hand delivered the
doctor's excuse to Jay Huitt, manager of Respondent's
Store No. 11. Thereafter ensued a conversation, reported
somewhat differently by Huitt and Mrs. Gonzales, but
which involved whether she should be the one to report in
when her husband was ill. The conversation clearly became
acrimonious, culminating in Huitt asking Mrs. Gonzales
to leave the store. Mrs. Gonzales claims that Huitt told her
to get out or he would throw her out. Huitt denies threaten-
ing to throw her out of the store bodily but admits that he
did insist that she leave the store.
Mrs. Gonzales immediately reported her version of the
incident to her husband, whereupon he became infuriated
and he and Mrs. Gonzales went to the union office and
talked to Union Business Representative Harley Fujimoto.
I All dates hereinafter are in 1974 unless otherwise indicated
2 It is unclear whether these protests occurred in the context of the con-
tractual grievance procedure . Gonzales apparently did not view it as such.
However, it is undisputed that Union Representative Harley Fujimoto par-
ticipated in discussions with the Company regarding this allegation of dis-
crimination.
3 The store where Gonzales worked.
Gonzales told Fujimoto what had occurred between Huitt
and Mrs. Gonzales and expressed his concern that there
would be trouble when he returned to work the next eve-
ning: According to Gonzales, he asked Fujimoto to be pre-
sent when he returned to work and Fujimoto promised he
would be. Fujimoto agrees that Gonzales expressed some
concern that there would be trouble when he reported to
work but denies that Gonzales asked him to be present or
that he promised to be there. According to him, Gonzales
was considering not reporting to work and Fujimoto told
him to report to work, then if some discrimination oc-
curred flowing from the Huitt-Mrs. Gonzales incident,
they could grieve the matter.4 Mrs. Gonzales testified that
her husband told Fujimoto that he expected trouble and
Fujimoto just said that he would talk to Huitt and see what
was going to happen. Both of the Gonzaleses testified that
Gonzales told Fujimoto that he had filed charges with
EEOC 5 Fujimoto denies being told of the EEOC charges
at this time.
On September 20, according to Huitt, he telephoned Fu-
jimoto and requested that he be present when Gonzales
reported to work because he had an ongoing problem with
Gonzales regarding his reporting his anticipated return
from absences. Fujimoto said he could not be present be-
cause he had another union matter scheduled. Fujimoto
agrees that such a conversation occurred but denies that
Huitt mentioned the name of the employee to whom he
referred.
On Friday, September 20, when Gonzales returned to
work, Huitt asked him to come into the office. McDonald
was present. According to Gonzales, Huitt asked him to sit
down and he replied, "I don't think I'll be here long
enough.- 6 Huitt said, "Who do you think is screwing
you?" Gonzales said, "I don't want to say anything without
my union representative here, or legal counsel." "Well,
either we have the meeting or you don't go to work." Gon-
zales said, "Well, I don't want to have a meeting without
my union B.A. here, because I have been whitewashed be-
fore." After some more discussion along the same lines,
Huitt said, "Well, better make up your mind." Gonzales
said, "I talked to Harley [Fujimoto] on Thursday the 19th,
and I asked him to be here, and he said he would, but he
had to talk to you first to see where we stood." Huitt said
he had talked to Fujimoto that day and Fujimoto refused
to come to the store for the meeting.
Huitt testified in substantial agreement with Gonzales
except that he states that Gonzales referred to neither
union representative nor legal counsel, that rather he used
the term counsel by which Huitt understood him to mean
union representative. He also states that he told Gonzales
' Fujimoto places the conversation on September 20.
5It is apparent that Gonzales uses the term "filing charges" as synony-
mous with registering a complaint and that he does not mean thereby the
filing of formal charges Also, at times he uses EEOC to refer to both EEOC
and the Colorado Civil Rights Commission, as he was referred back and
forth between the two agencies However , when pressed he did differentiate
between the two
6 Gonzales testified that he made this statement because he did not have
a union representative present and he anticipated that his rights were going
to be violated because of Huitt's discourtesy toward his wife and the fact
that Huitt was in the office at 9.30 p in Huitt admits that he normally
leaves the office at 5.30 or 6.
KING SOOPERS, INC. 1013
he had" a couple of things to discuss with him and denies
that he told him he had spoken to Fujimoto. McDonald
testified that Huitt said he wanted to discuss some matters
with reference to Gonzales' absenteeism. I credit Gonzales'
account of this conversation. He impressed me as an hon-
est, forthright witness and Huitt's testimony mostly corrob-
orates his account. As to the reference to the Huitt-Fujimo-
to conversation, it did in fact occur, and the record
contains no other explanation for Gonzales' knowledge of
the conversation. Further, for reasons explicated below, I
find Huitt's testimony incredible in other regards. I discre-
dit McDonald's testimony as to the specific reference to
absenteeism. Gonzales denies it and Huitt's account does
not include it.
As Gonzales was leaving the store, he asked Huitt how
he could get in touch with someone to protect his rights
because he wanted to begin work. Huitt said he did not
think it was possible at that time of night.
During the weekend, Gonzales tried unsuccessfully to
reach someone at the union office. On Saturday, Septem-
ber 21, and Sunday, September 22, Gonzales reported for
work. On both occasions Huitt was there; Each time Gon-
zales refused to talk without his union representative and
Huitt refused to permit him to work until he talked.
B. The Filing of the Grievance and the Step 1 Grievance
Meeting
On September 23, Gonzales reported the occurrences of
the weekend to Fujimoto and told him he wished to file a
grievance. He also took to the union office a written state-
ment of events supporting his grievance. It is clear from
this statement that Gonzales' grievance was twofold-the
alleged discriminatory failure to promote him and the re-
fusal to permit him to work on September 20, 21, and 22.
Fujimoto was out of the office when Gonzales brought in
his grievance statement so Gonzales left it.
According to Mr. and Mrs. Gonzales, they returned later
that day to talk to Fujimoto, at which time, according to
Gonzales, he asked if Fujimoto had read his grievance.
Fujimoto said yes, but it could not be put that way, that it
had to be in accordance with company procedure. Gon-
zales related Huitt's refusal to permit him to work and in-
quired why Fujimoto was not there. Fujimoto did not reply
to that question but stated that he would file the-grievance
and that he had to talk to Huitt to see where they stood.
Mrs. Gonzales testified in substantial agreement.
Fujimoto denies having any conversation with the Gon-
zaleses at the union hall that day. According to him, Gon-
zales telephoned him, told him what had occurred with
Huitt, and said he would like to follow through with the
grievance. Fujimoto denies that Gonzales said anything
about him not showing up at Store No. 11 on September
20. When he testified during the presentation of General
Counsel's prima facie case, he also denied that he saw Gon-
zales' grievance statement prior to talking to him on Sep-
tember 23 but admitted that he had seen it and discussed it
with Gonzales prior to the September 24 grievance meet-
ing. Yet he contends that he only spoke to Gonzales once
on September 23, and that the only time he talked to Gon-
zales on September 24 was during the grievance meeting.
Later, when he testified on Respondent's behalf, he testi-
fied that he did not see the grievance- statement until after
the September 24 grievance-meeting. In view of these in-
consistencies in his testimony I discredit Fujimoto's ac-
count of his September 23 conversation with Gonzales and
credit the testimony of Mr. and Mrs. Gonzales.
On September 24, a step I grievance meeting 7 was held
attended by Huitt, McDonald, Fujimoto, Gonzales, and
Mrs. Gonzales. Mr. and Mrs. Gonzales testified in substan-
tial agreement. According to them, the meeting began with
a statement by Fujimoto that Gonzales had filed a griev-
ance for the 3-day suspension and the failure to upgrade
him. There was some discussion between Gonzales and
Huitt regarding why Gonzales had not been promoted.
Then Huitt said they had gone through that before and
there was no point in discussing it further. Gonzales asked
Fujimoto what he was going to do. Fujimoto inquired why
Gonzales was suspended for 3 days. -Huitt said because
Gonzales refused to talk and handed Fujimoto an employ-
ee conduct report dated September 22 which listed the
types of infractions as (1) violation of company policies or
procedures and (2) insubordination; and the action taken
as (1) warning and (2) disciplinary suspension. The details
of the infractions were set forth as follows:
Mrs. Gonzales called in on 9/16/74 stating that Rich
was, having foot problems and would not be in. No
additional mfo. regarding Rich's status or anticipated
return to work was made avail. to store management
until Mrs. Gonzales brought to the store, on 9/19, a
certificate of excuse, dated 9/18, from the Westside
Health Center. After much difficulty, it was de-
termined that Rich would be back to work on 9/20,
but the doctor's certificate indicated that Rich would
be not be [sic] excused for 3 days starting with 9/18.
(It is a company policy that when someone calls in for
the employee it is then the employee's responsibility to
personally contact his supervisor as soon as possible
thereafter as to his date of return-if the employee is
uncertain as to the date of return, he must call'in daily
informing management of his progress.) Rich has pre-
viously been warned by management and his union
representative of his responsibility in this regard. Fur-
ther, on 9/20/74, 9/21/74, and 9/22/74 when I,- J.
Huitt, attempted to discuss this problem with Rich, he
refused to talk about anything unless he was "repre-
sented by his council [sic]." After 3 futile attemps [sic]
7 The collective-bargaining agreement provides for the resolution of griev-
ances in the following manner-
Step 1-By conference during working hours between the Steward
and/or the Union's Business Representative and/or the aggrieved
employees and the manager of the store.
Step 2-If the grievance cannot be satisfactorily resolved under Step I
above, the grievance shall be reduced to writing and submitted to the
representative designated by the Employer to handle such matters.
Such submission shall be .. .
Step 3-If the grievance is not satisfactorily adjusted in Step 2, either
party may, with reasonable promptness , in writing, request arbitra-
tion and the other party shall be obliged to proceed with arbitration
in the manner hereinafter provided. The executive board of the
Union shall have the exclusive right to determine whether or not the
employee's grievance shall be submitted to arbitration by the Union
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to resolve the matter, appropriate disciplinary action
of suspension was imposed until the matter could be
resolved. (A meeting was held on 9/24/74 with Rich
and Harley Fujimoto-Rich again refused to discuss
anything) 8
Huitt said the report was for insubordination for the 3 days
Gonzales missed work.
Fujimoto mentioned that Gonzales had filed charges
with EEOC. Huitt said what do you mean. Gonzales said
he had filed with EEOC and CCRC. At that point, Huitt
threw up his hands And said, "That's it, you went over my
head, you are indefinitely suspended until this thing is set-
tled or you drop the charges." Gonzales turned to Fujimo-
to and said under article 16 9 "you cannot do that, I have
the right to uphold union principles and rules and you have
to protect my rights." Fujimoto said Gonzales had gone
over his head too. Gonzales said, "Under article 16 I have
the. right to file charges without being terminated or sus-
pended for it." Huitt said, "no, you don't." Mrs. Gonzales
said, "Do you mean because my husband has filed charges
against the_ company he can't come to work." Huitt replied,
"Right or wrong, that's the way it is." Mrs. Gonzales asked,
"Do you mean if my husband would drop the charges he
could come back to work tonight." Huitt said that is the
only way. Gonzales told Fujimoto he wanted this to go to
step 2 of the grievance procedure and the Gonzaleses left.
Both Fujimoto and Huitt testified that Fujimoto began
the meeting by saying it was a grievance on the 3-day sus-
pension. Fujimoto denies that he or Huitt ever said Gon-
zales had gone over their heads. According to him, when
he inquired about the reason for the suspension, Huitt said
Gonzales had an excessive amount of absenteeism and
sometimes he did not call in when he was absent but had
his wife call in. Huitt said the absenteeism was getting too
great and to a point where it affected the job performance
of other'employees, that it created a heavy load on other
employees and that this was what he wanted to discuss
with Gonzales. Gonzales said, "I `don't want to talk about
that, I want to talk about why I have been passed over on
promotions, why I have been discriminated against and not
promoted." Fujimoto said they were not there to discuss
the alleged discrimination, that they had to take care of the
suspension and _get him back to work, that they could file
another grievance on the discrimination.
Fujimoto further testified that Gonzales had gotten quite
belligerent because he still didn't want to talk about the
suspension, he still didn't want to discuss absenteeism.
8 Huitt testified that the last sentence was written after the step I meeting
9 Art. 16 of the collective-bargaining agreement states:
Article 16
No Discrimination
Section 31. The Employer hereby agrees not to discriminate against
any employee or discharge him because of membership in the Union
and/or for upholding Union principles; and further, no employee who
falls within the-bargaining unit,"member of the Union, shall be dis-
'charged without good and sufficient cause.
The Employer and the Union agree that each will fully comply with
the applicable laws and regulations regarding discrimination against
any employee, or applicant for employment, because of such person's
race, religion, color, national origin , sex or age
Huitt said they were not making any progress at the step 1
level. Fujimoto agreed and suggested that they proceed to
step 2. Huitt said, since the matter was not resolved, the
suspension would have to stand until step 2. Either Mr. or
Mrs. Gonzales said, "If we can't get it resolved here, I
guess we are going to have to go to other agencies." He
does not recall whether Gonzales said EEOC or Civil
Rights. Both Huitt and Fujimoto said filing charges was
not at issue, that they were there to discuss getting Gon-
zales back to work, that if the grievance was not resolved to
Gonzales' satisfaction it was his right to do whatever he
wished..One of the Gonzaleses said they would see them in
court and they should remember they could go to jail for
perjury. Fujimoto further testified that he did not hear
Huitt say he was suspending Gonzales because he filed
Civil Rights charges and that he cannot remember if Mrs.
Gonzales ever directed questions to Huitt about Gonzales'
right to return to work being contingent on whether he
filed or withdrew any EEOC charges. He does not think so.
Huitt testified that, after Fujimoto. stated the purpose of
the meeting, he [Huitt] related what had occurred between
him and Gonzales on September 20, 21, and 22, and stated
that was the issue, that he had not been able to have a
discussion with Gonzales regarding (1) the apparent con-
flict in the date of his return 10 and (2) the ongoing problem
that Gonzales would not keep him informed as required by
company policy when he was absent from work.
At this point, according to Huitt, Fujimoto asked Gon-
zales to give his side. Gonzales began to discuss being
passed over for promotion. Huitt said promotion was not
the issue, but that if Gonzales insisted he would briefly
cover some of the reasons Gonzales had not been promot-
ed and proceeded to do so, including-absenteeism and tar-
diness. At several points, Fujimoto suggested to Gonzales
that the suspension matter should be resolved first and
then, if he wished, they could proceed with a grievance on
the promotion issue . Gonzales said he had a right to know
why he was being passed over for promotion. Gonzales
further said that if he did not get a satisfactory response he
had other recourses available, that civil, rights charges
could be filed, he could talk to a congresswoman, and that
he could even have the store picketed. Both Huitt and Fu-
jimoto said this was his prerogative. Huitt said he felt the
meeting should be terminated and that Gonzales would be
under indefinite suspension. Huitt further suggested that
Gonzales should proceed to step 2 of the grievance proce-
dure.
Huitt further testified that he said it was his intent at the
grievance meeting to pursue the matters he had wished to
discuss on September 20 since Gonzales had his counsel
present and had indicated on September 20 that was all
that was necessary to discuss the matters, but that Gon-
zales refused to discuss it. Yet he admits that Gonzales
never actually said he would not discuss these matters. He
admits that he never asked Gonzales any specific question
that he wanted discussed.
McDonald also testified that, when Huitt mentioned
what he wanted to discuss with Gonzales on September 20,
10 The doctor's excuse, dated September 18, was for a 3-day period. To
Huitt, this seemed to indicate 3 days starting with September 18. To Gon-
zales, the 3 days started with September 17, the first day he saw the doctor
KING SOOPERS, INC. 1015
Gonzales did not want to talk about it. Yet he admits that
Gonzales did not say this. At first McDonald testified that
Gonzales never mentioned going to a civil rights agency or
that he had filed a civil rights charge. However, upon being
confronted with his prehearing affidavit he admitted that
Gonzales said he was going to the CCRC and that Fujimo-
to said he- would not sign a grievance because he did not
feel Gonzales had one. However, he thought Fujimoto was
referring to an earlier grievance, possibly the failure to pro-
mote Gonzales . He also admitted that Gonzales said the
only reason he was not being supported by"Fujimoto or the
Union was because he had filed charges against the Union.
Immediately following the step I meeting Mr. and Mrs.
Gonzales went to the union office and talked to Tracy
Smith, secretary-treasurer of the Union.lt Gonzales told
Smith Fujimoto was "whitewashing" him, that he (Fujimo-
to) just sat there and did nothing when Gonzales was in-
definitely suspended for filing discrimination charges and
still said nothing even after Gonzales reminded him of arti-
cle 16 of the contract. Smith said he would have to talk to
Fujimoto to see where the matter stood. Mrs. Gonzales and
Smith testified in substantial corroboration.
According to Smith, he- did discuss the matter with Fu-
jimoto. Fujimoto denied that Huitt said' Gonzales could
return to work only if he -dropped the civil rights charges.
Smith inquired as to why Gonzales thought Fujimoto was
whitewashing him. Fujimoto claimed he didn't know and
said he was trying to get Gonzales reinstated. He also ex-
pressed some doubt as to whether Gonzales wanted to con-
tinue with the grievance. Based on this conversation, Smith
determined that no further action was required on his part.
C. The October 14 Meeting and the Events Leading
Thereto
The Union filed a written grievance as required in step 2
of the grievance procedure-which states:
The above named employee has been suspended-from
work as -of September 20, 1974 for reasons the Union
feel is not for just -cause in violation of Article 16. The
Union asks that Richard be reinstated with no loss of
seniority or wages. The Union would like to meet with
you as soon as possible to resolve the suspension as
soon as possible.
Sometime between the step 1 meeting and the October
14 meeting, Gonzales returned to CCRC where it was sug-
gested that Gonzales talk to Lawrence D. Downton, em-
ployment supervisor and Equal Employment Compliance
Officer for King Soopers. Also, when he went to Huitt for
his paycheck Huitt told him he had to go to the company
offices to get his check. According to Gonzales he went to
Downton's office and asked for his check. Downton asked
him to come in. Gonzales said he just wanted his check.
Downton said either you talk to me or you cannot have
your check. Gonzales related to him what had occurred
11 Smith is second in command at the Union One of his primary areas of
responsibility is to check the flow of grievances to ensure that business
agents comply with time limits
including that Huitt had suspended him for filing discrimi-
nation charges . Downton said he had talked to Huitt and
he-did not think Huitt would do that.
Downton testified that in September or October he-re-
ceived a telephone call from an investigator with CCRC
who stated that Gonzales was there to file a complaint
against King Soopers and suggested that Downton talk to
Gonzales in an attempt to resolve the matter . Downton
agreed to talk to Gonzales. When Gonzales came to his
office Downton asked why he felt he had to file discrimina-
tion charges. Gonzales said Huitt had told him that he
could return to work if he dropped the charges and further
said that he felt he had been passed over for promotion
because he was Spanish American. Downton told him it
was his right to file a charge if he felt he had been discrimi-
nated against and promised Gonzales that there would be a
thorough investigation and a meeting with Gonzales and
Huitt.
Thereafter , Downton began arrangements for a meeting
to investigate the allegations made by Gonzales. When he
telephoned Huitt, Huitt informed him that a step 2 meeting
had to be scheduled. Downton then contacted Fujimoto on
about October 3 and arranged-a dual-purpose meeting for
October 14, combining the step 2 grievance meeting and
the discussion of the discrimination allegation.
The meeting was held as scheduled on October 14.
Downton, Huitt, Fujimoto, and Gonzales were present.
Mrs. Gonzales waited in an outer room but at one point
entered the meeting room. According to Gonzales, Down-
ton asked him to start the meeting. Gonzales said he just
wanted to know what they were going to do for him.
Downton said,- "We have decided not to give you anything
back under the grievance, and you can either start off at
the same store or we will transfer you to another store."
Gonzales said, "What do you mean, you are not going to
give me seniority or anything. It takes me a year to collect
medical and dental benefits for my kids and you are going
to take that away." Downton said, "We are going to start
you all over at the store where you are or transfer you to
another store." Gonzales turned to Fujimoto and asked
what he was going to do about-it. Fujimoto said , "I agree
with the Company that you should not get anything back
under the grievance because you would not have been
working anyway because of the labor dispute." 12 Gonzales
said he had applied at other stores but was refused work
because of his suspension.13 Gonzales asked if he was going
to get his seniority and backpay. Downton said, "We
agreed you should -not get anything back because you, did
not follow Company procedure." Gonzales said he did not
want to start all over. Fujimoto asked him to think it over,
that he had a wife and children to support. Fujimoto sug-
gested that Gonzales go out and discuss the matter with his
wife.
12 Gonzales' undisputed testimony is that a Teamsters strike was in pro-
gress and that it was left to each individual union member whether he
wished to work . Fujimoto testified that the strike began on September 25
and continued for 16 or 17 days , that Store No. I l was closed at the begin-
ninif of the strike and later reopened during the course of the strike.
Downton denies informing anyone of Gonzales' suspension, but admits
that job applications require one to give the reason for leaving previous
employment-
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gonzales left the meeting and explained to his wife that
they were not going to give him anything back under the
grievance, that they wanted him to start all over. When
Gonzales returned to the meeting he was accompanied by
Mrs. Gonzales. According to Gonzales, his wife asked
Downton "What do you mean, you are not going to give
him anything back." Downton said, "Well, we don't think
he followed the- right Company procedures." Mrs. Gon-
zales said he talked to Harley (Fujimoto) on September 19
about the meeting and it should not be his fault that he was
not represented and he did not talk at the meeting, that he
was suspended for that time.
Downton turned to Gonzales and asked, "Are you going
to take the offer or not." Gonzales said he did not want to
start all over. Downton said "Are you denying to go back
to work." Gonzales said, "No, are you denying to give me
what is rightfully mine." Downton said, "We are not going
to give you anything, we went over that already." Gonzales
said, "I don't want to start all over." Downton said, "You
can either start here at the store- or we will- transfer you
out." Gonzales said, "If I -was transferred out you would
call the store manager and tell him to get rid of me because
you try to get rid of troublemakers." Downton said, "We
don't do that." Gonzales said, "It is not the Company that
does it, it is the people in management."
At that point, according to Gonzales, Downton pulled
out termination papers and wrote that Gonzales had re-
signed. Gonzales said he was not resigning, Downton was
terminating him. Downton said, "You are quitting." Gon-
zales denied that he was quitting. Downton said, "We are
going to write that you resigned," and asked Gonzales to
sign the paper. Gonzales said he was not going to sign and
requested a copy. Downton said he could not have a copy.
Gonzales said that under the contract he was entitled to a
copy. Whereupon Downton threw a copy across the table
toward Gonzales. Gonzales asked why he was suspended
indefinitely for filing discrimination charges. Huitt said, "I
didn't mention anything about discrimination charges."
Mrs. Gonzales said to Huitt, "I hope you know what perju-
ry is." Fujimoto said Gonzales had better watch what he
said because if the Company asked him to testify for the
Company, he would do so. Gonzales told Fujimoto he was
a worthless representative and he (Gonzales) was going to
go to the National Labor Relations Board and file charges
against him. Fujimoto said go ahead. Toward the end of
the meeting, Gonzales told Fujimoto he wanted the matter
to go to arbitration. Fujimoto said he would not take it to
step 3, that he would not present it to the-union executive
board. Mrs. Gonzales testified in substantial corroboration
of Gonzales' testimony.
There is little dispute as to how the meeting began inso-
far as the testimony of Downton and Gonzales. According
to Downton, he began the meeting by explaining that it
was both a step 2 grievance meeting and a meeting on the
discrimination allegations made by Gonzales. Gonzales
stated his position. Then Huitt stated his, including denials
that Gonzales' indefinite suspension was due to the filing
of a civil rights complaint or that he ever said this. Down-
ton asked "Gonzales the reason he was suspended, the rea-
son he didn't report for work and obtained definite an-
swers as to these questions, as well as to the doctor's
excuse . However, Downton's account of the meeting dif-
fers from Gonzales' in several significant respects. One, it
does not include the several alleged queries by Gonzales as
to his seniority nor the several alleged statements by Gon-
zales that he did not want to start over.,Two, Downton
testified that he specifically stated that they would put
Gonzales back to work with no loss of seniority or benefits,
but would not give him backpay during the labor dispute.
Three, he testified that Fujimoto urged Gonzales to return
to work and then fight for backpay. Four, he testified that
Gonzales said he felt the 3-day suspension was just, that he
could understand it and he should not be compensated for
that period, but that he was entitled to backpay thereafter.
Five, he denied hearing Fujimoto say he would not process
Gonzales' grievance any further. Finally, he testified that
at the end of the meeting Gonzales told Fujimoto " as far as
anything else goes, as far as the grievance, you don't have
to do anything because they will be hearing from my attor-
ney and you [Fujimoto] will be hearing from my attorney
also." Downton also testified that Mrs. Gonzales left the
room before the end of the meeting.
Gonzales denies saying anything to the effect that the
3-day suspension was his fault or that he would waive
backpay for that period. Rather, according to him, he said
he did not think it was his fault Fujimoto failed to show up
on September 20 and he should not lose backpay for those
3 days because he was not represented by counsel. When
asked if he said he would return to work only if he received
backpay, Gonzales testified that he just could not remem-
ber.
Huitt and Fujimoto both insisted that the October 14
meeting was solely a step 2 grievance meeting and that
Downton started the meeting by saying it was a step 2
meeting. Contrary to the testimony of Downton and Gon-
zales, they both testified that on several occasions Fujimo-
to, Huitt, and, according to Fujimoto, even Downton re-
minded Gonzales that they were not there to discuss his
allegations of discrimination. They both testified that Fu-
jimoto several times stated that getting Gonzales back to
work was his prime concern, that they should first get him
back to work and then proceed on the discrimination prob-
lem. Huitt testified that Downton specifically said that
Gonzales could return to work with no loss of seniority or
benefits. Fujimoto said seniority was never mentioned.
There are other inconsistencies in the testimony of Huitt
and Fujimoto. Thus, when questioned during the presenta-
tion of the General Counsel's prima facie case , Fujimoto
testified that Gonzales refused to return to work because
he did not get backpay for the original 3-day suspension.
When he testified during the presentation of Respondent's
case, he testified that Gonzales waived any right to back-
pay for the initial 3-day period but demanded backpay for
the subsequent period and refused to return to work unless
he received such pay. His initial testimony seems to indi-
cate that this alleged waiver came after the meeting.
Fujimoto further testified that during the meeting he and
Downton agreed that Gonzales' return to work would not
close the grievance, that it could proceed to arbitration, but
that Gonzales said he did not want his grievance to go to
arbitration. However, he admits that his notes of the meet-
ing contain no reference to the refusal by Gonzales to go to
KING SOOPERS, INC.
arbitration.14 Huitt testified he could not recall Gonzales
stating he did not want the grievance taken to arbitration.
As to the testimony by Downton and Mr. and Mrs. Gon-
zales of her statement with regard to perjury and
Fujimoto's response, Fujimoto testified in substantial
agreement thereto. However, Huitt testified that he did not
recall any response being made to Mrs. Gonzales' state-
ment, that Gonzales had made a similar statement prior to
her entering the room, and it was to this statement that
Fujimoto responded.
D. Events Subsequent to the October 14 Meeting
On October 14, following the meeting the Gonzaleses
went to the union office and again complained to Tracy
Smith. According to Gonzales, he told Smith he had been
terminated because Fujimoto refused to represent him and
refused to take his grievance to arbitration as he had re-
quested. Smith said he would have to talk to Fujimoto and
ask him what the situation was. Gonzales said he was going
to file charges with the NLRB. Smith asked him to wait
and not be hasty. Gonzales said he had been "white-
washed" so many times and that Smith should have been
there. Gonzales asked if Smith was going to take the matter
to arbitration. Smith said he would have to talk to Fujimo-
to because Fujimoto had to recommend everything. Smith
does not recall Gonzales mentioning arbitration or senior-
ity, but states that he was very embittered about the denial
of backpay.
Thereafter, according to Smith, he asked Fujimoto what
had happened during the meeting. Fujimoto said he had
gotten Gonzales reinstated without backpay and had asked
him to return to work while efforts continued to obtain
backpay. According to Smith, it was his understanding
from the conversation with, Fujimoto that Gonzales had
refused to return to work while processing of his grievance
continued and had refused to proceed to arbitration.
Therefore, from Smith's point of view, the grievance had
ended.
About a week later Gonzales telephoned Smith. Accord-
ing to Gonzales, he asked Smith if his grievance was going
to arbitration. Smith said he had filed charges with NLRB
against the Union and he did not want to talk to Gonzales,
that if any talking was to be done to have his attorney call
Smith. A few minutes later Mrs. Gonzales telephoned
Smith and he told her the same thing. Smith essentially
corroborates Gonzales as to this conversation except he
states that he does not recall what inquiry Gonzales made
with reference to his grievance. Smith admits that, notwith-
standing this indication that Gonzales did, in fact, want to
pursue his grievance to arbitration, he made no attempt to
reconcile this with Fujimoto's report that Gonzales refused
to go to arbitration. According to him, at that point, as far
as he was concerned the matter was between the NLRB
and the union attorney.
14 Fujimoto testified that it is his practice to record the highlights of a
grievance meeting in his notes
E. Concluding Findings
1017
1. Credibility
I find Huitt and Fujimoto to be completely unreliable
witnesses who were so intent on justifying their actions by
portraying Gonzales as a recalcitrant grievant who refused
to discuss his own grievance and refused to discuss the
matters underlying his initial suspension that they tailored
their testimony to fit the desired result. Thus they testified
that at the step 1 meeting Gonzales refused to discuss his
suspension and refused to discuss the failure to follow
company procedures which Huitt had initially sought to
discuss on September 20. Yet Huitt did not testify as to any
instance where he asked a specific question of Gonzales or
sought to direct Gonzales' remarks to a specific complaint.
Neither of them testified as to anything that could reason-
ably be construed as such a refusal.
Furthermore, I find it incredible that an employee sus-
pended under these circumstances who protected his posi-
tion by reporting for work each day, even though he knew
he would not be permitted to work, and who immediately
filed a grievance protesting the refusal to permit him to
work would flatly refuse to discuss in the presence of his
union representative whatever Huitt wished to discuss.
Certainly he evinced no reluctance to discuss his shortcom-
ings. Thus Huitt testified when he mentioned tardiness as a
factor militating against promotion, Gonzales was willing
to, and did, discuss this problem. At the October 14 meet-
ing, when specifically questioned about the doctor's ex-
cuse, etc., he did discuss those matters which Huitt testified
he had wished to discuss on September 20. What is appar-
ent is that Gonzales had filed a grievance on both the fail-
ure to promote him and the refusal to permit him to work
on September 20, 21, and 22, and that both Fujimoto and
Huitt were reluctant to discuss the discrimination aspect of
the grievance.
For the reasons set forth above I discredit Huitt's and
Fujimoto's accounts of the step 1 meeting. I find both
Gonzales and Mrs. Gonzales to be honest, forthright wit-
nesses whom I credit as to both meetings. Downton im-
pressed me as being overly concerned with what logically
should have been said. I am convinced, from his testimony
and the manner in which he testified, that he testified that
he specifically said Gonzales would retain his seniority not
because he has any actual recollection of making such a
statement but rather because he is certain he would not
have said that Gonzales would lose his seniority. However,
Gonzales does not contend that anyone actually stated that
he would lose his seniority.15 Rather, he assumed such be-
cause no one negated his references, to not getting seniority
and backpay and he interpreted Downton's statements re-
garding "starting all over" to refer ' to seniority, whereas it
appears likely, in the circumstances, that Downton meant
he would be given an opportunity to return to work un-
15 When directed to answer yes or no, Gonzales did answer affirmatively
on cross-examination to the leading question, "And did he specifically say
that you lost all your seniority " However, from his testimony immediately
before and immediately after answering the above question, it is clear that
Gonzales does not contend that anyone actually stated he would lose his
seniority.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hampered by past mistakes, misunderstandings, etc.
I am convinced that what ensued was an unfortunate
failure of communication. The hostility evoked by Huitt
and Fujimoto's determination not to discuss the alleged
discrimination and Gonzales' equally determined intent to
discuss it had conditioned the Gonzaleses to expect to be
treated unfairly and the union and employer representa-
tives to view Gonzales statements as further evidence of his
intransigence. Thus, even though neither the union nor the
employer representatives probably ever intended that Gon-
zales lose his seniority, no one attempted to correct his
misconception of their intention in that regard.
2. The alleged violation of Section 8(a)(1) by King
Soopers
The complaint alleges that King Soopers discharged
Gonzales because he filed charges with CCRC and EEOC.
King Soopers contends, and the record establishes, that
King Soopers never received notice that a charge was filed
with CCRC and that the charge filed with EEOC was
served on it more than 5 months after Gonzales' discharge.
However, the record also establishes that an EEOC charge
was filed against King Soopers on September 18 and that
Gonzales did, in fact, complain to CCRC prior to his dis-
charge and that Gonzales so informed Huitt on September
24 and EEOC notified Downton prior to the October 14
meeting.
Inasmuch as I credit the Gonzaleses and discredit Huitt,
Fujimoto, and McDonald, I find that Huitt told Gonzales
that he was indefinitely suspended until he dropped the
"civil rights charges" against King Soopers, and that this
statement was made immediately after Gonzales stated
that he had filed such "charges." Accordingly, I find that
Gonzales was indefinitely suspended and, in effect, dis-
charged on September 24 because he complained to CCRC
and EEOC. For reasons set forth above I find unpersuasive
Respondent's contentions that he was suspended indefi-
nitely because he continued to refuse to discuss certain
problems with Huitt even though his union representative
was present.
King Soopers contends, however, that Gonzales' com-
plaint to CCRC and EEOC is not conduct protected under
the Act. Specifically, King Soopers argues that it does not
constitute concerted activity since Gonzales was acting
alone . Contrary to Respondent's argument , I find that by
complaining to CCRC and EEOC Gonzales was engaged
in protected concerted activities. The collective-bargaining
agreement provides that the Employer and the Union will
fully comply with the applicable laws and regulations re-
garding discrimination against any employee because of,
inter alia, such person's race, color, or national origin. By
complaining to CCRC and EEOC, Gonzales was insisting
upon his rights under the collective-bargaining agreement.
It is well established that by attempting to enforce contrac-
tual provisions, an employee is acting not only in his own
interest but in the interest of all employees covered under
the collective-bargaining agreement, and that such actions
are an extension of the concerted activity giving rise to the
agreement. See Roadway Express, Inc., 217 NLRB No. 49
(1975); Cray-Burke Company, 208 NLRB 708 (1974); H.O.
Seiffert Company, 199 NLRB 960 (1972); C & I Air Condi-
tioning, Inc., 193 NLRB 911 (1971); Interboro Contractors,
Inc., 157 NLRB 1295 (1966); Merlyn Bunney and Clarence
Bunney, Partners, d/b/a Bunney Bros. Construction Compa-
ny, 139 NLRB 1516 (1962).
I also find without merit Respondent Employer's argu-
ment that even assuming that Gonzales was discharged for
filing charges with CCRC and EEOC his remedy would be
through Title VII of the Civil Rights Act of 1964, not Sec-
tion 8(a)(1) of the Act. Respondent's reliance on Emporium
Capwell Co. v. Western Addition Community Organization,
et al., 420 U.S. 50 (1974), is misplaced. Contrary to
Respondent's argument, the court did not hold that Title
VII is the appropriate statutory vehicle for remedying dis-
criminatory discharges to the exclusion of Section 8(a)(1)
of the Act. Rather, that case turned on the conclusion that
certain employees were discharged for attempting to bar-
gain with their employer over the terms and conditions of
employment as they affected racial minorities in deroga-
tion of the union's status as exclusive bargaining represen-
tative. The court rejected a contention that minority bar-
gaining was necessary to protect from employer reprisal
employee efforts to oppose unlawful discrimination and
that an exception to the principle of exclusive representa-
tion through majority rule was required to prevent the un-
dermining of the integrity of Section 704(a) of Title VII,
which expresses the congressional policy of protecting em-
ployees from such reprisal.
Respondent Employer contends that Gonzales was not
discharged until October 14 and then only because he re-
fused to return to work. I find this argument specious.
Gonzales was indefinitely deprived of his employment on
September 24 for reasons violative of the Act. In effect,
Respondent Employer offered to reinstate him on October
14. Gonzales refused to return to work because he thought
the offer of reinstatement deprived him of his seniority.
Whatever Respondent Employer's intentions were as to
whether Gonzales would retain his seniority, the fact is that
Gonzales several times asked questions which plainly indi-
cated his belief that Respondent was offering him rein-
statement without his prior seniority. At no time did either
Respondent Employer or Respondent Union correct this
belief. I am of the opinion that, once Respondent Employ-
er suspended Gonzales for reasons violative of the Act, an
obligation devolved on it to take reasonable care that Gon-
zales understood that he was being offered reinstatement
without prejudice to any rights or benefits previously en-
joyed by him. This obligation Respondent failed to meet
and Gonzales, by refusing to return to work, in the circum-
stances, did not remove himself from the protection of the
Act or forfeit his right to reinstatement.
Accordingly, I find that King Soopers, Inc., violated Sec-
tion 8(a)(1) of the Act by discharging Gonzales on Septem-
ber 24, 1974, because he exercised his rights to nondiscri-
mination under a collective-bargaining agreement in effect
between Respondents by complaining to CCRC and
EEOC.
3. The alleged violation of Section 8(b)(1)(A) of the Act
The complaint alleges that Respondent Union violated
KING SOOPERS, INC. 1019
Section 8(b)(1)(A) of the Act by refusing to represent Gon-
zales fairly and by refusing to process his discharge griev-
ance because he exercised his contractual rights to nondis-
crimination by filing charges with CCRC and EEOC.
It is well settled that a union which enjoys the status of
exclusive collective-bargaining representative has an obli-
gation to represent employees fairly. This duty of fair rep-
resentation requires that a union serve the interests of all
bargaining unit, employees fairly and in good faith, and
without hostile discrimination against any of them on the
basis of unfair, arbitrary, irrelevant, or invidious distinc-
tions. Manuel Vaca v. Niles Sipes, 386 U.S. -171 (1967);
Local Union No. 12, United Rubber, Cork, Linoleum & Plas-
tic Workers of America AFL-CIO (Goodyear Tire & Rubber
Co. of East Gadsden, Ala.) v. N.L.R.B., 368 F.2d 12 (C.A. 5,
1966), cert. denied 389 U.S. 837; Miranda Fuel Company,
Inc., 140 NLRB 181 (1962). However, mere negligence or
poor judgment is insufficient to establish a breach of such
duty for, as the Supreme Court has recognized, the Act
does not guarantee the quality of representation and the
effective administration of contractual grievance machin-
ery requires that a union be afforded a broad range of
discretion in deciding what grievances to pursue and the
manner in which they should be handled. Vaca v. Sipes,
supra, 191-192; Ford Motor Companies v. Huffman, 345
U.S. 330, 338 (1953); Truck Drivers, Oil Drivers and Filling
Station and Platform Workers Local No. 705, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Associated Transport, Inc.) 209 NLRB
292; Teamsters and Chauffeurs Local Union No. 729 (Penn-
truck Co, Inc.), 189 NLRB 696 (1971). The test is whether
the Union's conduct toward a unit employee is arbitrary,
discriminatory, or in bad faith. A union has violated its
duty of fair representation and Section 8(b)(1)(A) of the
Act only if this question can be answered in the affirma-
tive. Miranda Fuel Co., Inc., supra.
Respondent Union argues that it processed Gonzales'
grievance through all steps short of arbitration and that the
duty of fair representation does not require that a gnev-
ance be arbitrated. Respondent's concept of the law is ac-
curate in this regard, but- its view of the issues herein is
myopic. Questions are raised here which go beyond a mere
decision not to arbitrate. Thus, in circumstances where, as
here, an employee was refused work only because he insist-
ed upon union representation at an interview which he had
valid reason to believe would be disciplinary in nature,16
Fujimoto's failure to immediately and vigorously protest
his indefinite suspension and his admitted failure at the
October 14 meeting to grieve the "indefinite suspension" as
opposed to the September 20, 21, and 22 suspension was so
unreasonable that it cannot be considered mere negligence
or poor judgment. It can only be considered arbitrary and
in violation of the Union's obligation of fair representation
and I so find. I further find that such failure was a direct
contributing cause to Gonzales' continued loss of earnings.
i6 Huitt's altercation with Mrs. Gonzales, the fact that Huitt was at the
store at 9:30 p.m., that he had another supervisor present and the fact,
according to McDonald's testimony, that it was Huitt's practice to have a
second supervisor present for disciplinary interviews all combine to give a
reasonable appearance that the interview would be disciplinary.
Furthermore, from Fujimoto's failure to protest when
Huitt said he was indefinitely suspending Gonzales be-
cause he had gone over his head and complained to CCRC
and EEOC and Fujimoto's remark.that Gonzales had also
gone over his head and it was out of his -hands can be
inferred a refusal to represent Gonzales because he had
made such complaints.'
Fujimoto further failed in his obligation to fairly repre-
sent Gonzales when he failed to clarify the effect of the
"indefinite suspension" on Gonzales' seniority. It was ap-
parent from the questions asked by Gonzales that he
thought he was losing his seniority. Yet Fujimoto did noth-
ing to reassure him in this- regard. Under the circum-
stances, it being apparent that this belief was leading to
Gonzales' continued loss of employment, I conclude that
Fujimoto had an affirmative obligation to clarify for Gon-
zales the seniority situation. It is immaterial that Gonzales
lumped seniority and backpay together in his statements. If
the seniority situation had been explained to him his atti-
tude toward returning to work might have been completely
different.
As to the refusal to arbitrate, this was not a good-faith
exercise of discretion. Fujimoto never made a recommen-
dation-In fact, Respondent Union does not contend it ex-
ercised such discretion. Rather it relies on Gonzales' al-
leged wish not to proceed further with the grievance.
Unfortunately, this contention-is belied by the fact that
Gonzales complained to Smith immediately after the sec-
ond step meeting, and about a week later both he and his
wife telephoned Smith and inquired if his grievance was
going to arbitration. Smith refused to talk to him because
he had filed charges with the Board.
Accordingly, in all the circumstances, including the fail-
ure to protest Gonzales' "indefinite suspension" on Sep-
tember 24, Fujimoto's remarks indicating agreement with
Huitt's statement that Gonzales was indefinitely suspended
until he dropped the EEOC and CCRC charges,
Fujimoto's evident hostility toward Gonzales' pursual of
the discrimination aspects of his grievance, Fujimoto' s fail-
ure to clarify for Gonzales the effect of the "indefinite sus-
pension" on Gonzales' seniority and the circumstances of
the refusal to arbitrate Gonzales' grievance, I find that Re-
spondent Union violated Section 8(b)(1)(A) of the Act by
refusing to fully and fairly process his grievance because he
exercised his contractual rights to nondiscrimination by fil-
ing charges with CCRC and EEOC, and he filed charges
with the Board.18 I further find, as indicated above, that
such conduct directly contributed to Gonzales' continued
loss of employment.'9
n Charges against the Union were not filed until after the October 14
meeting Charges against the Employer were filed on September 18 and
amended to include the Union on October 15
18 Although the latter was not specifically alleged in the complaint it was
fully litigated.
i In reaching this conclusion, I have given full consideration to Respon-
dent Union's argument (1) based on Emporium Capwell Co v. Waco, supra,
that Gonzales removed himself from the protection of the Act because he
resorted to self-help and (2) based on Alexander v. Gardner-Denver Co., 415
U.S. 36 (1974), that private parties have no obligation to continue after
public rights have been vindicated in a public forum. In my opinion, these
cases do not support Respondent's arguments and I find no merit in either
contention.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent King Soopers, Inc., is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Respondent Retail Clerks Union Local No. 7, Char-
tered by the Retail Clerks International Association, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act, and at all times material herein has been
the exclusive representative of certain employees of the
Employer for the purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
3. By discharging Richard T. Gonzales because he exer-
cised his rights to nondiscrimination under its collective-
bargaining agreement with Respondent Union by com-
plaining to governmental civil rights agencies, King Soop-
ers, Inc., has engaged in an unfair labor practice affecting
commerce within the meaning of Sections 8(a)(1) and 2(6)
and (7) of the Act.
4. By refusing to represent Richard T. Gonzales in a fair
and impartial manner and by refusing to process his griev-
ance because he filed charges or gave testimony under the
Act and/or because he exercised his right to nondiscrimi-
nation under the collective-bargaining agreement between
it and King Soopers, Inc., by complaining to governmental
civil rights agencies, Respondent Union Retail Clerks
Union Local No. 7 has engaged in unfair labor practices
affecting commerce within the meaning of Sections
8(b)(1)(A) and 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondents have engaged in certain
unfair labor practices, I shall recommend that they cease
and desist therefrom and take certain affirmative actions
designed to effectuate the policies of the Act.
Having found that Respondent Employer has violated
Section 8(a)(3) and (1) of the Act by discriminatorily dis-
charging Richard T. Gonzales on September 24, 1974, I
shall recommend that Respondent Employer offer Gon-
zales immediate and full reinstatement to his former job or,
if such position no longer exists, to a substantially equiva-
lent position without prejudice to his seniority or other
rights and privileges.
Since the uncertainty as to whether that portion of Gon-
zales grievance pertaining to the suspension prior to his
discharge would have been found to be meritorious and the
uncertainty as to whether an attempt now to proceed with
the grievance would be considered timely are direct prod-
ucts of Respondent Union's unlawful action and where, as
here, such an uncertainty requires resolution for the pur-
poses of determining monetary responsibility, it is proper
to resolve the question in favor of the discriminatee and
not the wrongdoer, particularly where, as here, there is
considerable risk that Respondent will fail to provide full,
fair, and conscientious representation because a denial of
the grievance would relieve Respondent of all monetary
responsibility. I shall therefore presume that the grievance
as to Gonzales' suspension on September 20, 21, and 22,
1974, if fully and fairly processed, would have been found
to be meritorious and would have resulted in his receiving
backpay for those days 20 Accordingly, I shall recommend
that Respondent Union make Richard T. Gonzales whole
for his loss of earnings resulting from his suspension on
September 20, 21, and 22, 1974. See Local Union No. 2088,
International Brotherhood of Electrical Workers, AFL-CIO
(Federal Electric Corporation), 218 NLRB No. 48 (1975).
Since I' have found that Respondent Employer dis-
charged Gonzales in violation of Section 8(a)(1) and (3) of
the Act and that Respondent Union's failure to properly
represent Gonzales was a cause in his loss of pay resulting
from his unlawful discharge, I shall recommend that Re-
spondents, jointly and severally, make Richard T. Gon-
zales whole for any loss of pay he may have suffered as a
result of his unlawful discharge. Sargent Electric Company,
et al., 209 NLRB 630 (1974). 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).
Upon the foregoing findings of fact and conclusions of
law and the entire record in this proceeding, and pursuant
to Section 10(c) of the National Labor Relations Act, as
amended, I hereby recommend the following:
ORDER 21
A. Respondent Employer, King Soopers, Inc., Denver,
Colorado, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against any
of its employees because they exercised their rights to non-
discrimination under the collective-bargaining agreement
with the Union by complaining to the Colorado Civil
Rights Commission and the Equal Employment Opportu-
nity Commission.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their Section 7
rights to organize and bargain collectively or to refrain
from such activities.
2. Take the following affirmative action:
(a) Offer Richard T. Gonzales full reinstatement to his
former job or, if such former job no longer exists, reinstate
him to a substantially equivalent job, without prejudice to
his seniority and other rights and privileges.
(b) Jointly and severally with the Respondent Union
make Richard T. Gonzales whole for any such loss he may
have suffered from his unlawful discharge on September
24, 1974, in the manner set forth in the section of this
Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due under the terms
201 credit Gonzales' denial that he ever waived backpay for this period.
21 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
KING SOOPERS, INC. 1021
of this recommended Order.
(d) Post at its Store No. 11 in Denver, Colorado, copies
of the attached notices marked "Appendix A" and "Ap-
pendix B." zz Copies of Appendix A, on forms provided by
the Regional Director for Region 27, after being duly
signed by an authorized representative of the Respondent
Employer and copies of Appendix B, after being duly
signed by an authorized representative of Respondent
Union, shall be posted by Respondent Employer immedi-
ately upon receipt thereof, and be maintained for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent Em-
ployer to see that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 27, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
B. Respondent Union, Retail Clerks Union Local No. 7,
Chartered by the Retail Clerks International Association,
AFL-CIO, Denver, Colorado, its officers, agents, and rep-
resentatives, shall:
1. Cease and desist from:
(a) Failing or refusing to fairly represent Richard T.
Gonzales, or any other employee, or refusing or failing to
fully and fairly process employee grievances because they
file charges or give testimony under the National Labor
Relations Act or because they exercise their contractual
rights to nondiscrimination by complaining to or filing
charges with governmental civil rights agencies or engage
in other protected concerted activity.
(b) Otherwise restraining or coercing employees of King
Soopers, Inc., in any other manner in the exercise of their
Section 7 rights to organize and bargain collectively or to
refrain from such activities.
2. Take the following affirmative action:
(a) Make Richard T. Gonzales whole for any loss of pay
he may have suffered by virtue of its denial of fair repre-
sentation as to his grievance concerning his suspension on
September 20, 21, and 22, 1974.
(b) Jointly and severally with the Respondent Company
make Richard T. Gonzales whole for any loss of earnings
he may have suffered as a result of his unlawful discharge
on September 24, 1974, in the manner set forth in the sec-
tion entitled "The Remedy."
(c) Post at its business office, meeting halls, or other
places where it customarily posts notices, copies of the at-
tached notice marked "Appendix B." Copies of said notice,
on forms provided by the Regional Director for Region 27,
after being duly signed by an authorized representative of
Respondent Union, shall be posted by Respondent Union
immediately upon receipt thereof, and be maintained for
60 consecutive days thereafter. Additional copies of said
Appendix B shall be duly signed by an authorized repre-
sentative of Respondent Union and furnished to the said
22 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notices 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."
Regional Director for transmission to Respondent Em-
ployer for posting by Respondent Employer in accordance
with the Order directed to Respondent Employer above.
(d) Notify the Regional Director for Region 27, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice and we intend to carry out
the Order of the Board and abide by the following:
The Act gives all employees these rights:
To engage in self-organization:
To form, join, or help unions
To bargain collectively through representatives of
their choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with or re-
strains or coerces employees with respect to these
rights. More specifically:
WE WILL NOT discharge or otherwise discriminate
against our employees because they exercise their con-
tractual rights to nondiscrimination by complaining to
or filing charges with governmental civil rights agen-
cies or engage in other protected concerted activities.
WE WILL offer to Richard T. Gonzales immediate
and full reinstatement to his former job or, if that job
is no longer available, to a substantially equivalent
job, without prejudice to any seniority or other rights
and privileges previously enjoyed by him.
WE WILL jointly and severally with Retail Clerks
Union Local No. 7 make Richard T. Gonzales whole
for any loss of pay he may have suffered as a result of
his unlawful discharge on September 24, 1974.
KING SOOPERS, INC.
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to give
evidence, the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice and we intend to carry out
the Order of the Board and abide by the following:
The Act gives all employees these rights:
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To engage in self-organization
To form, join, or help unions
To bargain collectively through representatives of
their choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that restrains or coerces
employees with respect to these rights. More specifi-
cally:
WE WILL NOT fail or refuse to fairly represent Rich-
ard T. Gonzales, or any other employee, or refuse or
fail to fully and fairly process employee grievances be-
cause they file charges or give testimony under the
National Labor Relations Act or because they exercise
their contractual rights to nondiscrimination by com-
plaining to governmental civil rights agencies or en-
gage in other protected concerted activities.
WE WILL make Richard T. Gonzales whole for any
loss of pay he may have suffered by virtue of our deni-
al-of fair representation as to his grievance concerning
his suspension on September 20, 21, and 22, 1974.
WE WILL jointly and severally with King Soopers,
Inc., make Richard T. Gonzales whole for any loss of
pay he may have suffered as a result of his unlawful
discharge on September 24, 1974.
All employees in any bargaining unit represented by this
Union are by law entitled to and will receive from this
Union fair and nondiscriminatory representation in the
processing of their grievances and otherwise.
RETAIL CLERKS UNION LOCAL No. 7 CHARTERED BY
THE RETAIL CLERKS INTERNATIONAL ASSOCIATION,
AFL-CIO