Three Hundred South Grand Co.

National Labor Relations Board - Board Decisions

Sep 16, 1981

257 N.L.R.B. 1397 (N.L.R.B. 1981)

THREE HUNDRED SOUTH GRAND CO.
Central States, Southeast and Southwest Areas Pen-
sion Fund d/b/a Three Hundred South Grand
Company and Mary E. Tesson
Local No. 2, International Union of Operating Engi-
neers, AFL-CIO and Mary E. Tesson. Cases
14-CA-13933 and 14-CB-4985
September 16, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On December 9, 1980, Administrative Law
Judge Norman Zankel issued the attached Decision
in this proceeding. Thereafter, Respondent Union
filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions' of the Administrative Law Judge only
to the extent consistent herewith. 2
The Employer manages an office building locat-
ed at 300 South Grand Boulevard in St. Louis,
Missouri. The Union represents clerical employees
and stationary engineers employed at this location.
Carl B. Pratt, the building manager and chief engi-
neer, is also president of the Union and chairman
of its executive board. Mary Tesson, the Charging
Party, is Pratt's secretary and also acts as book-
keeper for the Employer.
On September 5, 1979, Tesson began working
for the Employer at an hourly wage of $5. At the
time Pratt hired Tesson, he notified her that she
would receive that wage rate for the first 30 days
of her employment, and thereafter would receive
the contractual wage rate of $7.18 per hour. The
collective-bargaining agreement does not provide
for a lower than contractual starting wage rate for
Tesson's classification or any other classification.3
'No exceptions were filed by Respondent Employer. In adopting the
Administrative Law Judge's conclusion that the Employer violated Sec.
8(a)(2) and (1) of the Act. we find that Carl Pratt was a high-level super-
visor and note that he voted in an intraunion election for steward. See
Nassau and Suffolk Contractors' Association. Inc.. etc.. 118 NLRB 174
(1957); Anchorage Businessmen's Association, etc., 124 NLRB 662, 669
(1959).
2 We shall in our Order include provisions requiring Respondents to
make whole. rather than reimburse. Tesson. We also shall conform the
language of the Order and notice to more closely reflect the violations
found.
3 Tesson's predecessor worked as secretary/bookkeeper for several
months before the parties agreed to include the position in the bargaining
unit under a new contract. At the time of the parties' agreement to in-
clude Tesson's predecessor. she received a raise to the newly established
contractual wage rate.
257 NLRB No. 178
Shortly after Tesson began working, Donald
Goebel, the Union's assistant business manager--
financial secretary, learned from Pratt that Tesson
was receiving a wage rate of $5 per hour. When
Goebel objected to her being paid at a wage rate
lower than that provided in the contract, Pratt
claimed that Tesson's job was complex and re-
quired considerable training. Thereafter, Goebel
withdrew his objection,4 and he did not thereafter
discuss the matter with Tesson. Tesson joined the
Union on October 9, 1979, and from that date on
she received wages in accordance with the con-
tract.
On April 7, 1980,5 Pratt hired his son, James, as
a maintenance helper. Tesson, as part of her duties
as bookkeeper, was instructed to pay James Pratt
the contractual wage rate for his classification.
Tesson thereby learned for the first time that it was
not the Employer's general practice to pay new
employees less than the contractual wage rate.
James Pratt was initiated into the Union on May
13. On May 14, the employees met to elect a new
steward to replace Fred Simshauser, 6 who had
found other employment. Present were Carl Pratt,
Tesson, Simshauser, employee William Kavanagh,
and three other employees. Pratt voted in the elec-
tion, and Kavanagh was elected steward. Once the
votes had been counted, Tesson informed Kavan-
agh that she wanted to file a grievance over the
Employer's failure to pay her the contractual wage
rate during her first 30 days of employment.
Tesson pointed out that James Pratt had received
the contractual wage rate from the beginning of his
employment, and stated that she believed she had
been discriminated against.
Kavanagh said to Pratt, "Carl, she's got you be-
cause you've never done this before in the past,
she's got a good grievance, and I think she is going
to win it." Pratt responded that the Union's execu-
tive board (on which Pratt and Simshauser served)
would probably reject her claim. Tesson stated that
she would take her grievance to arbitration, and
Pratt informed her that when she lost she would
have to pay court costs and attorney's fees for her-
self and the Union. 7
Simshauser instructed Tesson to reduce her
grievance to writing, which she did later that day.
Goebel testified that he feared that the Employer would seek to
remove Tesson's position from the bargaining unit as a "confidential" em-
ployee if he protested Tesson's wage rate. His testimony does not tab-
lish that Pratt or any other management official suggested that the Em-
ployer was considering such action.
Except as otherwise indicated, all dates hereafter are in 1980
6 Although Simshauser ceased to he the steward at the Employer's
building, he retained other offices in the Union as trustee and member of
the executive board.
The contract contains no pros ision for arbitration of griesances
1397
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
She gave her grievance to Kavanagh, who dis-
cussed it with Goebel. Goebel agreed that the
grievance had merit and instructed Kavanagh to
obtain a management response. On Kavanagh's
instructions, Tesson placed a copy of the grievance
on Pratt's desk. Later that day, while dictating cor-
respondence to Tesson, Pratt commented that he
believed the grievance was a "mistake" and in-
structed her to forward it to Donald Weyerich, the
Employer's attorney and agent. Pratt also jokingly
requested that Tesson ask Weyerich to begin ad-
vertising for a new secretary. Pratt, acting in his
capacity as a supervisor, denied the grievance on
May 19.
Thereafter, Weyerich and Goebel discussed the
grievance, but failed to reach agreement on its dis-
position. Weyerich claimed that Tesson was in
training during her first 30 days, while Goebel
maintained that the lower wage rate was in viola-
tion of the contract. Goebel also requested a writ-
ten response to the grievance, which Weyerich
stated was not required by the contract. Goebel
then spoke with Herman Jones, the Union's busi-
ness manager. Jones suggested that the Employer's
argument that Tesson's first 30 days were proba-
tionary might be justified. Goebel finally tele-
phoned the Union's attorney, Barry Levine. Levine
told Goebel that the grievance was untimely be-
cause of Tesson's delay in filing it.8 Goebel then
spoke with Jones, who suggested that Goebel
follow Levine's advice.
On May 20, Goebel informed Tesson that the
Union had decided not to represent her further on
the grievance because it had concluded that the
grievance was untimely. In response to Tesson's in-
quiry, Goebel advised her that she could appeal the
decision to the Union's executive board.
The same day, Pratt discussed Tesson's griev-
ance with her and claimed that the Union had no
jurisdiction over the first 30 days of work. Pratt in-
formed Tesson that she could appeal the Union's
decision to the executive board, and that he prob-
ably would not vote if she did so. (As noted previ-
ously, Pratt chaired the executive board.) Pratt also
suggested that Tesson discuss the grievance with
other officials of the Employer later that week,
with Goebel present as her representative. Tesson
did not accept this invitation.
By letter dated May 20, Goebel informed Tesson
that her grievance had been received but that it
had no merit "since [it] . . . is not timely." On
May 21, Tesson wrote Jones, advised him of her
intention to appeal to the executive board, and re-
' The contractual grievance procedure contains no time limits, and
Weyerich did not raise the issue of timeliness in his discussions with
Goebel.
quested that Kavanagh attend on her behalf. By
letter dated May 23, Jones informed Tesson that
her appeal would be heard on June 24 and that Ka-
vanagh would be advised of the meeting.
On June 17, Tesson filed the instant charges.
Thereafter, on June 24, Tesson, with Kavanagh's
assistance, appeared before the executive board. 9
Tesson testified that, before the executive board,
Kavanagh declined to comment on her claim that
Pratt's dual role as supervisor and union president
created a conflict of interest which caused the
Union to reject her grievance. Tesson also testified
that Kavanagh "said he didn't want to say any-
thing because he was receiving harassment at work
already and he didn't want to make any more com-
ments to make it any harder than it already was."
Tesson further testified that, when one of the mem-
bers of the executive board attempted to reassure
Kavanagh that he would not be harassed, Kavan-
agh responded to him, "That is easy for you to say,
you don't have to work there." Tesson also testi-
fied that, after further assurances were made, Ka-
vanagh commented on the wage scale. Kavanagh
testified that he told the executive board that he
thought Tesson "had a grievance" and that she was
the only employee who was subjected to "classifi-
cation discrimination." Kavanagh did not deny
Tesson's testimony that he initially expressed reluc-
tance to comment on the merits of her grievance.
Following Tesson's and Kavanagh's presentation,
the executive board voted to deny the appeal. 10 By
letter dated July 1, Jones informed Tesson that the
executive board had denied her appeal because it
"is without merit."
The Administrative Law Judge found that the
Union violated Section 8(b)(1)(A) of the Act by
breaching its duty of fair representation in two re-
spects. He found that Goebel, by failing to advise
Tesson of his discussion with Pratt concerning her
wages shortly after her hire, prevented her from
learning at that time that she might have grounds
to file a grievance over the matter. He further
found that the executive board's adverse vote on
her later-filed grievance flowed directly from Goe-
bel's "arbitrary" failure to advise Tesson of her
rights in a timely fashion, and that the refusal to
further process her grievance therefore was merely
perfunctory.
9 Pratt was not i the room during the presentation of Tesson's griev-
ance t the executive board.
"' Pratt and Goebel did not vote on the appeal, nor, apparently, did
Pratt participate in the discussion of the appeal before the vote. The
record does not disclose whether Goebhel participated in the discussion
before the executive board vote. However, Simshauser, who was present
onl May 14 when Pratt first informed Tesson that the executive board
probably would reject her grievance, voted as a member of the executive
hoard
1398
THREE HUNDRED SOUTH GRAND CO.
We conclude that Respondent Union violated
Section 8(b)(1)(A) of the Act by failing fairly to
represent Tesson, but only for the following rea-
sons.
A union's duty of fair representation requires it
to serve the interests of all the employees it repre-
sents fairly and in good faith and without hostile
discrimination based on unfair, arbitrary, irrelevant,
or invidious distinctions." In the performance of
this duty, however, the effective administration of
a contract requires that a union be afforded broad
discretion in deciding what grievances to pursue
and the manner in which they should be handled.'2
Mere negligence or poor judgment is insufficient to
establish a breach of the duty of fair representa-
tion. 13
Applying the above principles to the instant case,
we conclude that the Union did not afford Tesson
the fair consideration of her grievance to which
she was entitled. In so doing, we find that Pratt's
dual role as supervisor and high-ranking union offi-
cial inherently tainted the Union's processing of the
grievance. Thus, Tesson's initial hire at less than
the contractual wage rate was Pratt's action, done
in his capacity as a supervisor for the Employer,
and it was he who, as the Employer's representa-
tive, denied the grievance at the initial step. At the
same time, as president of the Union, Pratt was in a
position to affect the Union's consideration of the
merits of Tesson's grievance concerning her start-
ing wage. Thus, at the union meeting on May 14,
Pratt predicted that Tesson's grievance would fail
and indicated his hostility toward Tesson's filing of
the grievance by stating that, if she took her griev-
ance to arbitration, she would have to pay attor-
ney's fees for herself and the Union. The permeat-
ing effect of Pratt's dual roles is clear. Pratt's com-
ments were made at a union meeting which Pratt
attended as a union official, in the presence of Sim-
shauser, who later voted as a member of the
Union's executive board when it considered Tes-
son's grievance, as well as Kavanagh, the steward
who was responsible for processing Tesson's griev-
ance. Further, Pratt was Kavanagh's immediate su-
pervisor during the entire time when Kavanagh
was engaged in representing Tesson on her griev-
ance, and Tesson's account of the June 24 execu-
" aca v. Sipes, 386 U.S. 171 (1967); Glass Bottle Blowers Association of
the United States and Canada. AFL-CIO. Local o. 106 (Owens-Illinois,
Inc.), 240 NLRB 324 (1979).
,2 Vaca v. Sipes, supra at 191-192; Ford Motor Company v. Huffman.
345 U.S. 330, 338 (1953); Truckdrvers. 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 (1974).
'3 Local Union Vo. 195. United Association of Journeynmen and Apprn-
tices of the Plumbing and Pipe Fitting Industry of the United States and
Canada, AFL-CIO (Stone Webster Engineering Corporation). 240 NLRB
504, 508 (1979).
tive board meeting makes it evident that Kavan-
agh's efforts in supporting her position before the
executive board were hampered by his perception
that he was being harassed at work by Pratt. Al-
though Kavanagh on May 14 had indicated to
Pratt that he felt that the grievance had merit, by
June 24 he was reluctant to comment at all on the
grievance despite the executive board's assurances.
Thus, although the Union attempted to maintain
an appearance of fairness at its executive board
meeting through Pratt's and Goebel's nonparticipa-
tion in the actual vote on Tesson's appeal, Pratt's
involvement in earlier stages of the grievance and
his continuing opportunity, as the Employer's
building manager and chief engineer and the union
president and chairman of the executive board, to
influence other union participants in the grievance
process subverted Tesson's right to a fair and im-
partial processing of her grievance. Moreover, the
Union relied on the alleged untimeliness of the
grievance despite the absence of a contractual time
limit and the fact that the Employer had not raised
the issue of timeliness. In these circumstances, we
conclude that the Union processed Tesson's griev-
ance in bad faith and thereby breached its duty of
fair representation with respect to Tesson in viola-
tion of Section 8(b)(l)(A) of the Act.' 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that:
A. Respondent Central States, Southeast and
Southwest Areas Pension Fund d/b/a Three Hun-
dred South Grand Company, St. Louis, Missouri,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Permitting its supervisor, Carl B. Pratt, to
engage in the handling of grievances of its employ-
ees who are represented by Local No. 2, Interna-
tional Union of Operating Engineers, AFL-CIO,
or in any other phase of the collective-bargaining
process, at a time when he is an officer, agent, or
representative of the Union, or otherwise interfer-
ing with the administration of the Union.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
" In view of our conclusion that he Union breached its duty of fair
representation i the manner in which it processed Iesson's grievance.
we find it unecessar to consider swhether (iOhel's failure in 1979 I
inform Tesson that she might hase grounds fr a gries ance also constiut-
ed a breach of the lU'on' duly of fair rpressnt lti ll
1399
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Jointly and severally with Local No. 2, Inter-
national Union of Operating Engineers, AFL-CIO,
make whole Mary E. Tesson for any loss of earn-
ings she may have suffered due to the Employer's
failure to pay her the contractual wage rate in
effect for her job classification during the first 30
days of her employment, by paying her a sum
equal to the difference between the contractual
wage rate and the hourly rate which she actually
received during that time, plus interest, in accord-
ance with the formula described in the section of
the Administrative Law Judge's Decision entitled
"The Remedy."' 5
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment re-
cords, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its facility at 300 South Grand Boule-
vard, St. Louis, Missouri, copies of the attached
notice marked "Appendix A." 6 Copies of said
notice, on forms provided by the Regional Direc-
tor for Region 14, after being duly signed by an au-
thorized representative of the Employer, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Employer to
insure that said notices are not altered, defaced, or
covered by any other material.
(d) Transmit to the Regional Director for
Region 14 signed copies of said notice in sufficient
numbers to be posted by Local No. 2, International
Union of Operating Engineers, AFL-CIO, in all
places where notices to its members and other em-
ployees in the bargaining unit are customarily
posted.
(e) Post at the same places and under the same
conditions as set forth in paragraph A, 2, (c),
above, immediately upon receipt thereof, copies of
the attached notice marked "Appendix B."
(f) Notify the Regional Director for Region 14,
in writing, within 20 days from the date of this
Order, what steps the Respondent Employer has
taken to comply herewith.
'" In accordance with his dissent in Olympic Miedical Corporalionl, 250
NLRB 146 (1950), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
'6 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals. the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
B. Respondent Local No. 2, International Union
of Operating Engineers, AFL-CIO, St. Louis, Mis-
souri, its officers, agents, and representatives, shall:
I. Cease and desist from:
(a) Failing or refusing to fairly represent employ-
ees by failing to process grievances in a fair and
impartial manner.
(b) In any like or related manner restraining or
coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Jointly and severally with Central States,
Southeast and Southwest Areas Pension Fund
d/b/a Three Hundred South Grand Company
make whole Mary E. Tesson for any loss of earn-
ings she may have suffered due to the Union's fail-
ure to process in a fair and impartial manner her
grievance over the Employer's failure to pay her
the contractual wage rate in effect for her job clas-
sification during the first 30 days of her employ-
ment, by paying her a sum equal to the difference
between the contractual wage rate and the hourly
rate which she actually received during that
period, plus interest, in accordance with the formu-
la described in the section of the Administrative
Law Judge's Decision entitled "The Remedy."
(b) Post at its offices and meeting places copies
of the attached notice marked "Appendix B." 17
Copies of said notice, on forms provided by the
Regional Director for Region 14, after being duly
signed by an authorized representative of the
Union, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to its members and
other employees in the bargaining unit are custom-
arily posted. Reasonable steps shall be taken by the
Union to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Transmit to the Regional Director for Region
14 signed copies of said notice in sufficient numbers
to be posted by Central States, Southeast and
Southwest Areas Pension Fund d/b/a Three Hun-
dred South Grand Company, in all places where
notices to employees are customarily posted.
(d) Post at the same places and under the same
conditions as set forth in paragraph B, 2, (b),
above, immediately upon receipt thereof, copies of
the attached notice marked "Appendix A."
(e) Notify the Regional Director for Region 14,
in writing, within 20 days from the date of this
Order, what steps the Respondent Union has taken
to comply herewith.
'' See fin 16. supra.
1400
THREE HUNDRED SOUTH GRAND CO.
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 an op-
portunity to present evidence and state their
positions, the National Labor Relations Board
found that we have violated the National
Labor Relations Act, as amended, and has or-
dered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT permit our supervisor, Carl
B. Pratt, to engage in the handling of any
grievances of our employees who are repre-
sented by Local No. 2, International Union of
Operating Engineers, AFL-CIO, or in any
other phase of the collective-bargaining pro-
cess, at a time when he also holds a position as
an officer, agent, or representative of the
Union, or otherwise interfere with the adminis-
tration of the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights set forth above.
WE WILL, jointly and severally with Local
No. 2, International Union of Operating Engi-
neers, AFL-CIO, make whole Mary E.
Tesson for any loss of earnings she may have
suffered as a result of our failure to pay her
the wage rate set forth in the collective-bar-
gaining agreement by paying to her the differ-
ence between her wage rate as set forth in the
collective-bargaining agreement in effect
during her first 30 days of employment and
the wages she actually received, plus interest.
CENTRAL STATES, SOUTHEAST AND
SOUTHWEST AREAS PENSION FUND
D/B/A THREE HUNDRED SOUTH
GRAND COMPANY
APPENDIX B
NOTICE To
EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT fail or refuse to fairly repre-
sent employees by failing to process employee
grievances in a fair and impartial manner.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
the rights set forth above.
WE WILL, jointly and severally with Central
States, Southeast and Southwest Areas Pension
Fund d/b/a Three Hundred South Grand
Company, make whole Mary E. Tesson for
any loss of earnings she may have suffered as a
result of our failure to process, in a fair and
impartial manner, her grievance over her
wages by paying to her the difference between
her wage rate as set forth in the collective-bar-
gaining agreement in effect during her first 30
days of employment and the wages she actual-
ly received, plus interest.
LOCAL No. 2, INTERNATIONAl
UNION OF OPERATING ENGINEERS,
AFL-CIO
DECISION
STATEMENT OF THIE CASE
NORMAN ZANKFI, Administrative Law Judge:' These
consolidated cases, Central States Southeast and South-
The official transcript is hereby corrected to substitute the designa-
tion "Judge Zankel" in place of "Judge Saunders." wherever the latter
identification appears
1401
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
west areas Pension Fund d/b/a Three Hundred South
Grand Company (herein called the Employer) and Local
No. 2, International Union of Operating Engineers,
AFL-CIO (herein called the Union), were heard before
me on July 31, 1980, in St. Louis, Missouri.
Upon charges filed by Mary E. Tesson. an individual,
the Regional Director for Region 14 of the National
Labor Relations Board (herein called the Board) issued a
complaint against the Union on June 19, 1980. The com-
plaint was amended on July 17. On July 3, 1980, the Re-
gional Director issued a complaint against the Employer.
By an order dated July 17, 1980, the above complaints
were consolidated.
It is alleged that the Employer dominated 2 and ren-
dered unlawful assistance to the Union in violation of
Section 8(a)(2) and (1) of the National Labor Relations
Act, as amended (herein called the Act). The basis of
such allegation is that the Employer permitted its super-
visor, Carl B. Pratt, to serve as the Union's president at a
time when he participated in grievance handling and ne-
gotiating or administering collective-bargaining agree-
ments.
The Union is alleged to have violated Section
8(b)(1)(A) of the Act by having failed or refused to pro-
cess a wage grievance filed by Tesson.
Timely answers to the complaint were iled. The an-
swers admitted certain matters but denied the substantive
allegations and that either the Employer or the Union
committed any unfair labor practices. All parties ap-
peared at the hearing. Each was represented by counsel
and was afforded full opportunity to be heard, to intro-
duce and to meet material evidence, to examine and
cross-examine witnesses, to present oral arguments, and
to file briefs. I have carefully considered the contents of
the briefs filed by counsel for all parties.
Upon consideration of the entire record, the briefs, and
my observation of the witnesses and their demeanor, I
make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
No issue is raised as to jurisdiction or labor organiza-
tion status. Based on the complaint allegations, the rele-
vant admissions of the Union and the Employer, and on
their jurisdictional stipulations, I find the Employer is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7), and that the Union is a labor
organization within the meaning of Section 2(5) of the
Act.
II. THE AlI.I.iGED) UNFIAIR LABOR PRACTICES
A. Tile Facts'
There is substantially no dispute concerning the opera-
tive and relevant facts. The instant cases evolve from,
' The allegation of unlawful domination was disavowed by counsel for
the General Counsel in his brief. Accordingly. I shall not deal with it in
this Decision.
:' The recitation of acts, and subsequent analysis. is derived from a
composite of factual stipulations, unrefuted oral testimony, supporting
dlocuments, and other undisputed evidence Not every bit of evidence, or
and relate to, Tesson's effort to process a wage rate
grievance.
The relevant Employer personnel are Douglas C.
Fernau, vice president; Donald J. Weyerich, attorney
and agent; and Carl B. Pratt.4
Relevant union officials are: Pratt, president and ex-
ecutive board member; Herman Jones, business manager;
Donald Goebel, assistant business manager-financial sec-
retary; William Kavanagh, steward; and Fred Sim-
shauser, former steward, trustee, and executive board
member.
On September 3, 1979, Pratt engaged Tesson in a pre-
employment interview. The job under consideration was
secretary/bookkeeper. Pratt discussed Tesson's duties, re-
sponsibilities, and working conditions. He read certain
portions of the Employer's collective-bargaining agree-
ment with the Union. Specifically, he read items relating
to pension, sick, and holiday benefits. Pratt did not, how-
ever, deliver a copy of the agreement to Tesson.
Pratt told Tesson she would be paid $5 per hour
during her first 30 days of employment. He told her that,
when she was initiated into the Union, she would be paid
the union wage rate of $7.18 per hour. Pratt did not ex-
plicitly speak of the first 30 days of employment as a
probationary period. Tesson agreed to the terms. Sep-
tember 5, 1979, was established as Tesson's reporting
date.
The secretary/bookkeeper job became available when
its incumbent, Barbara Benefield, resigned. When she
worked for the Employer, she was Pratt's personal secre-
tary. 5 Tesson reported on September 5. Benefield
worked with her for 8 working days, until September 14.
During this time, Benefield familiarized Tesson with the
work.
Weyerich serves as the Employer's attorney and agent.
Pratt reports to Weyerich. Weyerich, in turn, reports to
Fernau. On Tesson's second or third day on the job,
Weyerich spoke with her by telephone. He welcomed
her to work. 6 Weyerich also asked Tesson whether the
$5 wage rate was acceptable to her. Tesson agreed to it.
When Tesson was hired, the parties' collective-bar-
gaining agreement specified that her job was included in
the bargaining unit. At an unspecified time, shortly after
Tesson began to work, Pratt told Goebel that Tesson's
wage rate was $5 per hour. Goebel objected. He told
Pratt that rate was lower than the contract wage. Pratt
explained the job was complex and needed considerable
training. Goebel withdrew his objection. At the hearing,
Goebel explained this action was due to his concern that
the Employer would seek to drop Tesson's classification
every argument of counsel. is discussed. Nonetheless, I have considered
all of them. Omitted matter is considered irrelevant or superfluous.
Inasmuch as I shall conclude, infra, that Pratt is a statutory supervi-
sor, he is named as part of the Employer's managerial hierarchy.
Benefield resigned to accept employment as a legal secretary in the
law firm with which Weyerich is associated.
, Weyerich testified, without contradiction. that he told Pratt to find a
replacement for Benefield. Also, Weyerich credibly testified that he au-
thorized Tesson's employment.
1402
THREE HUNDRED SOUTH GRAND CO.
from the unit.' Goebel did not discuss the wage discrep-
ancy with Tesson.
On October 9, 1979, Tesson became a union member.
After that initiation, she was paid $7.18 per hour, accord-
ing to the collective-bargaining agreement.
Sometime in October, Goebel met with all unit em-
ployees, eight in number including Pratt, to discuss their
ideas for union proposals for a new collective-bargaining
agreement. The existing contract was due to expire at
midnight, November 14, 1979. Pratt and Tesson were
among those present. Apparently, Goebel conducted the
session. It was informal. Pratt's participation was limited
to giving his opinion that it would be acceptable for the
Union to propose to eliminate Tesson's two 15-minute
breaks and expand her half hour lunch period to I hour.
During the meeting, Tesson asked for this change.
Goebel was the Union's assistant business manager for
15 years. Goebel was unrefuted in his testimony that he
is entirely responsible for administration of the Union's
collective-bargaining agreements with the Employer.
Additionally, Goebel credibly testified that he, together
with a union steward, comprised the Union's negotiating
team.
All witnesses who testified on the subject said that
Pratt did not take part in any substantive collective-bar-
gaining negotiations. The evidence shows that the No-
vember 1979 negotiations between the parties were con-
ducted, on substantive issues, between Fernau and
Weyerich for the Employer and Goebel and Simshauser
for the Union.
Nonetheless, the Union's constitution, article XXIV,
subdivision 1, section (b) and article VII, sections 1-15 of
its bylaws, provide that Pratt, as an executive board
member, has the right, inter alia, to participate in con-
tract negotiations and grievances.
Pratt actually participated in grievance handling. He
did so as a representative of the Employer. Thus, Sim-
shauser credibly testified that in 8 years as steward he
only presented one written grievance. An employee
grieved that a fellow worker should have been paid
overtime premium for Saturday work which was per-
formed as a makeup day for one on which he had been
absent the previous week. Simshauser presented a griev-
ance to Pratt who resolved it by paying the overtime
premium.
At this juncture, it is valuable to note that the collec-
tive-bargaining agreement which expired November 14,
1979, and its successor agreement with an expiration date
of November 14, 1980, contain identical language enti-
tled "Grievance Procedure," as follows:
Should any dispute arise over the interpretation or
application of this Agreement, same shall be adjust-
ed by a meeting between representatives of the
Company and the Union who shall have full author-
ity to make disposition of the controversy.
Tesson worked continuously from her starting date
into April 1980. On April 7, 1980, James Pratt (Pratt's
' The secretary/bookkeeper classification was included in the bargain-
ing unit for the first time after Benefield had been employed in that ca-
pacity.
son) was hired as a maintenance helper. Tesson learned
of this when Pratt told her' that his son's wage rate
would be the union scale. In fact, the 1979-80 contract.
for the first time, includes the maintenance helper classi-
fication at a wage rate of $4.71 per hour.
Tesson took no immediate action. Instead, she waited
until Pratt's son was initiated into the Union. This oc-
curred on May 13. Then, Tesson told Kavanagh she had
a grievance. She explained her grievance was over the
Employer's failure to pay her the contract rate specified
for her job classification from her initial date of employ-
ment. She observed James Pratt's wages were the same
after his union initiation as before. Tesson told Kavanagh
she believed this to be discriminatory.
Pratt apparently overheard Tesson's remarks. Pratt
opined that the Union's executive board would probably
reject her claim. Tesson retorted she would pursue the
matter into arbitration.9 Pratt responded that when
Tesson lost the arbitration she would have to pay costs
for herself and the Union.
Kavanagh became union steward by election conduct-
ed on May 14. Before that, Simshauser was steward. Tes-
son's announcement that she had a grievance was made
immediately after the steward election occurred. General
discussion ensued among the employees present as to the
merits of the grievance. During that discussion, Kavan-
agh said he felt Tesson had a good grievance. A proce-
dural discussion followed. Simshauser told Tesson that
she would have to reduce her grievance to writing.
That same day, Kavanagh telephoned Goebel. They
discussed Tesson's grievance and agreed it was meritori-
ous. Goebel told Kavanagh to obtain a management re-
sponse. Tesson had already written it out.
Kavanagh instructed Tesson to deliver a copy of the
grievance to Pratt. Tesson placed the grievance on
Pratt's desk.
Tesson testified that she waited until May 14 to file
her grievance because she had no indication of apparent
discrimination until she learned James Pratt's wages re-
mained constant from his initial employment date
through and after his union initiation. Tesson, however,
acknowledged that she had read her wage rate of $7.18
in the contract at the time the employees met with Sim-
shauser in October 1979 to give their views on contract
proposals. She admitted not raising any question about
the discrepancy between her actual pay and the contract
rate with Goebel.
Later on the day that Tesson placed her grievance on
Pratt's desk, she was required to take some dictation
from him. In the midst of his dictation, Pratt commented
that he believed the grievance was a "mistake." Pratt
then instructed Tesson to forward the grievance to
Weyerich. Pratt dictated a letter to Weyerich which
read, "[A]ttached please find a copy of the grievance
submitted by Mary Tesson. We'll discuss this later." '
'One of Tesson's functions was to maintain the pa) roll records
9 No arbitration provision is contained in either contract bearing expi-
ration dates of November 14. 1979, or 1980.
"' Pratt could not recall whether he actually dictated this letter Be-
cause of her positive recall, I credit Tesson Moreover. the e idence
shows Weyerich later received the grievance
1403
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After Weyerich received a copy of the grievance, he
called Goebel and they discussed it. Weyerich main-
tained that Tesson was in training during her first 30
days of employment. Weyerich insisted there was no
merit to the grievance. Goebel asked Weyerich to make
his response in writing. Weyerich said he was not obli-
gated to do so by the contract.
Goebel then contacted Jones. Jones told Goebel he
thought the Employer might well be justified in its claim
that Tesson's first 30 days were probationary.
Goebel then telephoned the Union's attorney, Levine.
After hearing the facts, Levine expressed his belief that
the grievance was untimely because of Tesson's delayed
filing.
Goebel spoke again with Jones. He told Jones of Le-
vine's opinion. Jones suggested that Goebel follow Le-
vine's advice.
On May 20, Tesson and Goebel spoke by telephone.
Goebel told her of Levine's position and said that the
Union had decided the grievance had no merit as being
untimely. Tesson pursued the issue. Thus, she asked
Goebel if his comments meant the Union would not rep-
resent her. Goebel confirmed that understanding. They
discussed the reason for her delay in filing. Tesson re-
sponded that James Pratt's situation first made her aware
she might have a grievance. Tesson wanted to know
who made the decision the grievance should go no fur-
ther. Goebel said the decision was Jones'. Tesson asked
whether the Union normally consulted its attorney at so
early a time in the grievance process. Goebel claimed he
contacted Levine because Weyerich was very upset
about the grievance. Tesson asked if she could further
pursue the matter. Goebel said she could appeal to the
Union's executive board. Tesson questioned the efficacy
of that procedure in view of the fact that Pratt, Jones,
and Goebel were executive board members. Goebel re-
sponded Tesson had no other recourse.
Pratt, as the Employer's representative, discussed Tes-
son's grievance with her. Thus, on May 20, Pratt called
Tesson into his office and told her that the Union had no
jurisdiction over the first 30 days of work. Pratt told her,
too, that she had a right to appeal the Union's decision
not to go forward to its executive board. Tesson suggest-
ed this would be of no value because Pratt is a member
of the executive board. He told Tesson he "probably will
not vote." During this conversation, Pratt offered Tesson
the opportunity to discuss her grievance with Weyerich
and Fernau on May 22 when they were scheduled to be
in Pratt's office. Pratt told Tesson she could ask for
Goebel to be present at that meeting. He also said if she
were to drop the grievance, the meeting would be un-
necessary. Apparently, Tesson discarded the opportunity
to meet with Pratt's superiors.
By letter dated May 20, 1980, Goebel wrote Tesson.
He acknowledged receipt of her grievance. By that
letter, the Union claimed the grievance had no merit
"since . . . [it] . . . is not timely."
On May 21, Tesson wrote Jones. It is in this letter that
Tesson advised of her intentions to appeal to the execu-
tive board. In that letter she requested Kavanagh attend
on her behalf. By letter dated May 23, Jones responded.
He advised a hearing had been set for her on June 24.
Jones' letter also stated that Kavanagh would be advised
of the meeting.
On June 24, Tesson and Kavanagh appeared at the ex-
ecutive board. Pratt excused himself. Goebel credibly
testified that it was customary for executive board mem-
bers to excuse themselves from consideration of any
matter in which they might be personally involved.
Tesson was told that Pratt would not participate.
Tesson was provided a full opportunity to explain her
grievance. Kavanagh was given a chance to speak on her
behalf. Kavanagh said he thought the grievance was
meritorious. When the hearing ended, Tesson was told
she would receive the executive board's response in writ-
ing.
After Tesson and Kavanagh left, the executive board
deliberated her grievance. Goebel's uncontradicted testi-
mony was that Pratt neither participated in the discus-
sions nor executive board vote. Additionally, Goebel said
he did not vote. The executive board decided not to
grant Tesson's appeal.
On July 1, 1980, Jones wrote Tesson that the execu-
tive board considered her appeal and decided it should
be denied because it "is without merit."
B. Discussion and Analysis
1. Pratt's supervisory status
Whether Pratt is a supervisor within the meaning of
the Act is a threshold issue. Pratt's supervisory status is
the predicate of the theories of violation propounded by
the General Counsel.
Some of Pratt's activity on behalf of the Employer ap-
pears hereinabove. He interviews applicants for employ-
ment. He interviewed Tesson. Thereafter, he told her she
was hired and arranged her reporting date. Additionally,
Pratt has interviewed applicants for other unit positions,
and made recommendations for hire to Weyerich. With
rare exception, the record shows, Weyerich has con-
curred in Pratt's recommendations.
Pratt entertained and adjusted an employee grievance.
Thus, Simshauser's testimony that he discussed, and re-
solved, an overtime pay grievance with Pratt is unrefut-
ed. "
Also, it is undenied that Pratt discussed the substance
of Tesson's grievance with her. During that conversa-
tion, Pratt offered Tesson the chance to directly address
Weyerich and Fernau on that issue. In this context, I
conclude that Pratt acted on behalf of the Employer.
In addition, the record contains the following evidence
pertaining to the supervisory issue:
(a) Pratt's title and wages. Pratt's job is classified
as Supervisory Stationary Engineer in the collec-
tive-bargaining agreements. Pratt identified himself
as Civil Engineer and Building Manager. He issues
correspondence for the Employer under the title of
Building Manager. Although one's title, alone, is
" In this posture, I place little sgnificance on Weyerich's claim that he
did not know Pratt functioned in this manner. It is undeniable that the
Employer placed Pratt in a position wshere his actions are imputable to it.
1404
THREE HUNDRED SOUTH GRAND CO.
not dispositive of the supervisory issue, 12 it is some
evidence he acts in the Employer's behalf.
Pratt receives an annual salary as Supervisory
Engineer. Also, he is paid $150 per week as a man-
agement fee for his duties as Building Manager. In
contrast, the other employees are paid an hourly
wage, plus overtime when applicable.
(b) Pratt's authority. He is directly responsible
for the activities of all other employees working at
the particular facility where he is stationed. Thus, in
addition to Tesson, there are two stationary engi-
neers, two maintenance mechanics and two mainte-
nance helpers. They all report to Pratt. He is the
sole management official present at that facility.
He is responsible for the work assignments of all
employees. Though the employees perform their
work without Pratt at their side constantly, he
makes daily work assignments, sometimes assisted
by Tesson, to those employees. Pratt establishes
work priorities and inspects employees' work.
Pratt grants time off, assigns overtime and han-
dles work-related problems of the employees. Those
problems which he cannot resolve are referred by
him to Weyerich.
Tenant requests for major maintenance work,
such as painting and erection of partitions, are re-
ferred to Pratt. Major requests of this nature are re-
ferred by him to Weyerich.
Pratt signs contracts, on the Employer's behalf,
with its material suppliers, although Weyerich re-
views those contracts.
(c) Pratt's working conditions differ from most
employees. He has an office and is provided a per-
sonal secretary, currently Tesson. He wears slacks
and a sport coat at work, while the other employees
(except, of course, Tesson) wear uniforms or over-
alls. Pratt regularly performs no manual work.
Pratt receives fringe benefits, such as sick leave,
vacations and pension, similar to the other employ-
ees. However, he receives the use of a company
automobile and a daily newspaper.
(d) Pratt confers regularly with undisputed mem-
bers of the Employer's managerial hierarchy. He
meets with Weyerich at least once a week. They
speak more often by telephone. Pratt also meets
with Fernau on occasions of Fernau's visits to the
subject facility. However, Pratt does not participate
in the formulation of the Employer's labor relations
policies.
Various criteria exist by which the Board determines
supervisory status. It is not necessary that an individual
possess all the indicia identified in Section 2(11) of the
Act. The statute is disjunctive. Possession of any indica-
tion of supervisory authority makes one a supervisor.
N.L.R.B. v. Metropolitan Life Insurance Company, 405
F.2d 1169 (2d Cir. 1968); Great Central Insurance Compa-
ny, 176 NLRB 474, 475 (1969).
I conclude that the record amply demonstrates that
Pratt effectively manages the day-to-day operations at
the Employer's subject facility located at 300 South
'' Golden eit nroadcaqer-AKPL4. 215 NLRB 760. 762, fN. 4 (1974)
Grand Boulevard, St. Louis, Missouri. To conclude
otherwise is unrealistic and illogical. A contrary finding
would subject the facility to operating without on-the-
spot supervision. This factor is appropriately considered
in the determination of a supervisory issue. See National
Association for the Advancement of Colored People, 241
NLRB 430 (1979).
Section 2(11) of the Act defines supervisor:
The term "supervisor" means any individual
having authority, in the interest of the employer, to
hire, transfer, suspend. lay off, recall, promote, dis-
charge, assign, reward, or discipline other employ-
ees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such
action, if in connection with the foregoing the exer-
cise of such authority is not of a merely routine or
clerical nature, but requires the use of independent
judgment.
Clearly, Pratt possesses and exercises numerous indicia
of supervisory authority. The record shows he hires or,
at least, effectively recommends the hiring of employees.
He adjusted an overtime grievance. He assigns work.
These activities, in addition to the others stated above,
are sufficient to satisfy the General Counsel's conten-
tions. Accordingly, I find Pratt a supervisor at all materi-
al times. 13
The Employer sought to minimize Pratt's functions
and authority. Thus, the Employer adduced evidence to
show that Pratt functioned pursuant to persistent and fre-
quent direction from Weyerich. I agree there is some
evidence supporting the Employer's position. However,
on balance, I find that Pratt's actual exercise of a variety
of functions demonstrates that he must, and does, use his
independent judgment in the performance of such activi-
ties (e.g., determining work priorities and assignment of
overtime). Moreover, Pratt adjusted the overtime griev-
ance apparently on his own. Thus I conclude that the
record shows Pratt responsibly directs the activities of
employees. Such responsible direction supports a conclu-
sion that Pratt is a supervisor. Custom Bronze & Alumi-
num Corp., 197 NLRB 397 (1972).
2. Pratt's role in the Union
The complaint allegations require examination of the
extent to which Pratt plays a role in union affairs. The
General Counsel's theories of violation as to the Employ-
er in effect question the propriety of Pratt serving in the
dual capacity of an employer's supervisor and a union of-
ficial.
As previously observed, Pratt is the union president
and executive board member. He has been a member of
the executive board for 17 years. The executive board is
the Union's policymaking organ.
As reported, hereinabove, the Union's constitution
provides that executive board members may participate
in collective-bargaining negotiations. Additionally, they
may consider grievance appeals made to that body. Also,
': I shall comment on the General Counsel's contention that Prall i a
"high level" supervisor infra
1405
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union's constitution provides that any bylaws em-
power its president to preside at executive board and
regular meetings, to summon members before the execu-
tive board, to be custodian of the Union's records and
properties, and to sign labor agreements.
There is no probative evidence to show Pratt partici-
pated in collective-bargaining negotiations involving the
instant Employer. He did not participate in any discus-
sions concerning substantive matters between the Em-
ployer and union bargaining teams. I have noted that
Pratt attended the October meeting Goebel held with
employees to formulate the Union's proposals. At that
meeting, Goebel asked for Pratt's view on the feasibility
of Tesson's proposal to expand her lunch hour in lieu of
her two work breaks. Pratt said he could work with that
arrangement. I disagree with the General Counsel that
this expression of opinion rises to the status of participa-
tion in collective-bargaining negotiations. The session
was not held for employer-union bargaining. The ques-
tion was posed to Pratt obviously because of the fortu-
itous circumstance that he was, as Tesson's supervisor, in
the best position to evaluate the efficacy of Tesson's re-
quest. Moreover, there is no evidence to show Goebel
accepted Pratt's statement of opinion as the equivalent of
an agreement between the Union and the Employer.
In all other respects, the record shows Pratt actually
exercised his official union authority vis-a-vis the instant
Employer only by having signed the collective-bargain-
ing agreement. Moreover, in connection with Tesson's
grievance, his activity was conducted only as a manage-
ment representative. When the grievance reached the ex-
ecutive board level, he completely abstained from func-
tioning in any union capacity.
Pratt did exercise his rights of union membership.
Thus, he attended Goebel's October proposal-suggestion
meeting, voted on ratification of the collective-bargain-
ing agreement, and apparently participated in the May
14, 1980, election at which Kavanagh was elected ste-
ward.
3. Analysis-Case 14-CA-13933
Citing Nassau and Suffolk Contractors' Association, Inc.,
118 NLRB 174 (1967), and its progeny, the General
Counsel contends that Pratt is a high-level supervisor
and that his participation in intraunion affairs as president
and executive board member establishes that the Em-
ployer unlawfully interfered with the administration of
the Union.
The Board has consistently held it to be a violation of
Section 8(a)(2) and (1) of the Act where high-level su-
pervisors hold the dual positions, as herein, even where
the evidence shows that the subject individual engages in
merely routine intraunion activities and no actual conflict
arising from the dual functions is shown. Schwenk Incor-
porated, 229 NLRB 640 (1977); Western Exterminator
Company, 223 NLRB 1270 (1976), modified 565 F.2d
1114 (9th Cir. 1977).
In The Western Union Telegraph Company , 242 NLRB
825 (1979), I reviewed the applicable precedent. In sa-
lient part, I concluded that, if it is proved that an actual
conflict of interest exists between an individual's supervi-
sory position and his capacity as union official, an 8(a)(2)
and () violation would occur regardless of the individ-
ual's supervisory level in his employer's hierarchy. West-
ern Union, supra at 829.
Apparently, this conclusion has been confirmed. Thus,
in Narragansett Restaurant Corp., 243 NLRB 125 (1979),
the Board left undisturbed Administrative Law Judge
Irwin Kaplan's 8(a)(2) finding based on his conclusion
that the evidence showed an actual conflict existed in a
situation involving a low-level supervisor.
Determination of the instant issue is made on a case-
by-case basis. The Board has rejected a per se approach.
Anchorage Businessmen's Association, Drug Store Unit, et
al., 124 NLRB 662 (1959). Applying an ad hoc approach,
I conclude the evidence herein demonstrates an actual
conflict existed in Pratt's possession of the dual posi-
tions. 14
Most persuasive is the evidence of Pratt's activities in
the grievance procedure. As already observed, Pratt dis-
cussed the Saturday overtime grievance with Simshauser,
and resolved it. Also, Pratt spoke to Tesson about her
grievance and invited her to further discuss it with
Weyerich and Fernau.
The contractual grievance language, cited herein-
above, reflects it is quite informal. No detailed steps are
set forth. For analysis purposes, I characterize the griev-
ance language in the contract as the de jure procedure.
In practice, however, the parties developed a procedure
which may be termed de facto. Thus, it is apparent that
the parties actually established at least a two-step proce-
dure.
The first step of the de facto procedure involved dis-
cussion of the grievance between a union steward and
the first level of supervision. Thus, the overtime griev-
ance was initially discussed by Steward Simshauser with
Pratt, the immediate supervisor. At that stage, the griev-
ance was resolved. Similarly, Tesson's grievance was
first brought to Pratt, her immediate supervisor, by Ste-
ward Kavanagh after Tesson reduced the grievance to
writing. Tesson's grievance form bears Pratt's name on
the line designated "foreman," and Kavanagh's as "ste-
ward." Use of the grievance form in this manner sup-
ports the General Counsel's claim that Pratt participated
in grievance handling. Moreover, Pratt orally told Ka-
vanagh the grievance was denied.
The second de facto step was then taken. Pratt for-
warded Tesson's grievance to Weyerich, who discussed
it with Goebel, Kavanagh's superior in the Union. The
operation of the de facto procedure underscores my con-
clusion that Pratt directly participated in grievance han-
dling.
Even if there is disagreement with the validity of the
de jure/de facto distinction I have made, such disagree-
ment does not alter my conclusion that the evidence oth-
erwise shows Pratt's active participation in grievance
handling. Such participation has been held to create an
actual conflict regarding the dual roles possessed by
Pratt.
" In view of this finding, and for the sake of brevity, I find it unneces-
sary to pass upon the General Counsel's principal theory which is found-
ed upon Pratt as a high-level supervisor.
1406
THREE HUNDRED SOUTH GRAND CO.
In Abilene Area Sheet Metal Contractors Association and
Abilene Sheet Metal. Inc., 236 NLRB 1652 (1978), a su-
pervisor engaged in many of the supervisory activities
performed by Pratt. He also processed the grievances. In
Narragansett Restaurant, supra, the finding that a conflict
existed by virtue of dual functions was based, in part, on
a supervisor's authority to process grievances.
My assessment of whether there exists a conflict is
based on yet another consideration; namely, Pratt's rela-
tionship to the union stewards. Thus, the record shows
Pratt was the immediate supervisor of Stewards Sim-
shauser and Kavanagh. This relationship establishes an
inherent danger. The actions of union stewards in such a
context readily are susceptible to pressures which effec-
tively diminish the integrity of the grievance procedure.
Analysis of the Nassau and Suffolk line of cases shows
that they are factually distinguishable from the case at
bar. Those applicable to the instant situation hold, gener-
ally, that unlawful interference in the affairs of a union
occurs when dual-function supervisors engage in collec-
tive bargaining (in a broad sense) with their employers.
Herein, there is no evidence that Pratt engaged in such
collective bargaining with the instant Employer. In all
regards shown on this record, Pratt functioned on behalf
of the Employer, not the Union. Nevertheless, I find the
distinction of little significance.
No case has been cited, nor has my research uncov-
ered any case, which holds that the mere possession of
the dual positions of supervisor and union official consti-
tutes unlawful assistance violative of Section 8(a)(2) and
(I).
It is instructive to examine the rationale underlying
those cases which proscribe dual activity. In Internation-
al Association of Machinists; Tool and Die Makers Lodge
No. 35, etc. [Serrick Corporation] v. N.L.R.B., 311 U.S.
72, 80 (1940), the Supreme Court declared that function-
ing in the dual capacities results in divided loyalties and
would be contrary to the clear legislative policy to free
the collective-bargaining process from all taint of em-
ployer influence.
In Nassau and Suffolk, 118 NLRB at 187, the Board
stated, in part:
Employees have the right to be represented in collec-
tive-bargaining . . . by individuals who have single-
minded loyalty to their interests . . . an employer is
under a duty to refrain from any action which will
interfere with that . . . right and place him even in
slight degree on both sides of the bargaining table.
[Emphasis supplied.]
The above-cited precedent mandates that an individual
clothed in the dual competing roles be utterly free from
the suggestion of impurity. Thus, the instant case turns
on whether the facts show that the possession of the
double identity adversely affects the Union's perform-
ance as an effective employee representative.
The totality of circumstances herein convinces me
that, by permitting Pratt to handle grievances, the Em-
ployer has interfered with the administration of the
Union because such activity impedes effective adminis-
tration of the Union's collective-bargaining obligations
(herein, the processing of grievances). Moreover, I con-
clude that the employees represented by the Union are
prevented from receiving the unfettered and undivided
fealty which the courts, the legislature, and the Board
declare is their right.
In other contexts, the Board has recognized the exist-
ence of institutional pressures upon supervisor-union
members. See San Francisco-Oakland Mailers' Union No.
18. International Typographical Union (Northwest Publica-
tions, Inc.), 172 NLRB 2173, 2174 (1968). Herein, Pratt is
more than a rank-and-file member of the Union. He
holds the highest office and is also a member of the
Union's executive board. The institutional pressure he
surely brings with him by virtue of his supervisory posi-
tion is obvious. As a supervisor, Pratt is obliged to pro-
mote his employer's best interests. Those interests are in
regular competition with those of the Union and its
members.
Goebel's initial reaction to Pratt's explanations when
they first discussed Tesson's wage rate is significant. As
noted, Goebel acquiesced. He explained he did so be-
cause he became concerned over the possibility the
secretary/bookkeeper classification would be removed
from the bargaining unit.
I cannot accept Goebel's explanation for his forbear-
ance. It is internally inconsistent. It defies industrial reali-
ties. One of the ways to keep the secretary/bookkeeper
classification within the bargaining unit would be to file
a grievance over Tesson's wage discrepancy. Instead,
Goebel did nothing. He did not even discuss the situation
with Tesson. Thus, his inaction signals Goebel's true mo-
tivation was based on some factor other than his concern
over the possibility the job might be removed from the
bargaining unit. Such fear, if it existed, was pure specula-
tion. Though negotiations for a new agreement were
forthcoming, the Employer had not made any proposal
to that effect. Nowhere in his conversation regarding
Tesson, with Goebel, did Pratt say the Employer had
been considering such a proposal. Thus, in the entire
backdrop, it is reasonable to conclude Goebel had been
influenced by Pratt's position as union president, though
Pratt was speaking on the Employer's behalf. This situa-
tion presents a classic example of institutional pressure
which adversely affects the ability of the Union to fulfill
its representational obligations to its constituents. See
IAM, Lodge No. 35 v. N.LR.B., supra. To say the ac-
tions of the Union's officials have not been, or may not
be, colored by Pratt's influence is unrealistic. He was
strategically so placed that he clearly could transmit the
Employer's desires to his fellow union officials, albeit in
the most subtle of terms. Viewed in this light, Pratt's su-
pervisory authority cannot help but have an effect upon
the conduct of the Union's business and obligations. In
sum, I conclude Pratt's power permeates, and has a det-
rimental effect upon, effective unencumbered administra-
tion of the Union.
Upon the foregoing proven participation by Pratt in
grievance handling and the analysis, I find his dual posi-
tions as supervisor and union official create an actual
conflict of interest. It is immaterial whether Pratt is a
high- or low-level supervisor. Upon the applicable au-
1407
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thority cited hereinabove, I find that the Employer has
violated Section 8(a)(2) and (1) of the Act, as alleged.
See ITT Arctic Services, Inc., 238 NLRB 116 (1978);
E.E.E. Co., Inc., 171 NLRB 982 (1968), for analogous sit-
uations.
4. Analysis-Case 14-CB-4985
The General Counsel contends that the Union
breached its duty of fair representation in violation of
Section 8(b)(1)(A). Specifically, he asserts that the
manner in which Tesson's grievance was handled by the
Union was repugnant to its fiduciary duty. Thus, it is
claimed the Union's actions did not comport with the re-
quired standard of good faith and fairness in processing
grievances established by the precedent of Vaca, et al. v.
Sipes, 386 U.S. 171 (1967); Miranda Fuel Company, Inc.,
140 NLRB 181 (1962). The duty of fair representation
which emanates from those cases requires a union serve
the interests of all the employees they represent fairly
and in good faith, and without hostile discrimination
against any of them on the basis of unfair, arbitrary, ir-
relevant, or invidious distinctions. Mere negligence or
poor judgment is insufficient to establish a breach of
such duty. The Act does not guarantee the quality of
representation. Effective administration of contractual
grievance machinery 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 at 191-192; Ford Motor Co. v. Huff-
man et al., 345 U.S. 330, 338 (1953); Truck Drivers, Oil
Drivers and Filling Station and Platform Workers Local
No. 705, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (Associated
Transport, Inc.), 209 NLRB 292 (1974).
The Union argues the evidence discloses it made a
good-faith attempt to process and resolve Tesson's griev-
ance. Further, the Union claims it acted expeditiously in
attempting to resolve the dispute in Tesson's favor. Also,
by implication, there is a suggestion that Goebel made a
sound business judgment not to pursue Tesson's wage
rate problem in October when he first discovered it ex-
isted.
The General Counsel virtually concedes that the evi-
dence shows the Union did present Tesson's grievance
and did entertain her appeal to the executive board. As
reported above, the facts show that Pratt functioned only
as part of management concerning Tesson's grievance.
Particularly, he removed himself and abstained from all
activities as a union official in connection with the griev-
ance. Thus, I conclude he scrupulously tried to maintain
an aura of fairness.
Notwithstanding the comments contained in the imme-
diately preceding paragraph, I find the Union's defenses
only superficially appealing. Ostensibly, the Union did all
it could to process Tesson's grievance. Acknowledging
this, the General Counsel contends such processing was
a sham. I agree. A complete analysis shows the defense
does not withstand scrutiny.
As noted, Goebel testified that he spoke with Pratt re-
garding Tesson's wages as soon as he learned she had
not received the contract rate. Pratt claimed Tesson's
first 30 days needed to be probationary. The reason
given was the complexity and confidential nature of her
work. At that point, Goebel backed off. He did not fur-
ther press the matter at the time. I have already re-
viewed the spurious character of Goebel's reaction. I
find his inaction unjustified. Nonetheless, Goebel said
nothing about the matter to Tesson.
Goebel testified that, in essence, the bargaining history
supported the Employer's position. The record shows
Benefield received less than the contract rate until after
she joined the Union.
Reliance on this bargaining history is misplaced. The
secretary/bookkeeper classification was not included in
the bargaining unit until the November 1976 contract.
Thus, in reality, Benefield's rate change to the contract
wage was due to that inclusion rather than to her ending
a period of probation.
Likewise, it is erroneous for the Union to rely on the
arguable merits of the Employer's claimed need for a
period of training. For the Union to have accepted that
position, as it did, is tantamount to an oral midterm
modification in the terms of the negotiated written col-
lective-bargaining agreement. In fact, there is no evi-
dence that either party requested negotiations on the sub-
ject of a probationary period.
In this context, the Union and, as noted, Goebel in
particular, remained silent. Though he knew the contract
wage was not being paid, he did not apprise Tesson of
the situation. The right of any employee to file a griev-
ance is jealously guarded. Indeed, Section 9(a) of the Act
provides a right to individual employees to present
grievances to their employer and have them adjusted
without the intervention of their bargaining representa-
tive as long as the adjustment is not inconsistent with the
terms of a collective-bargaining agreement then in effect.
A union may not purposely keep employees uninformed
or misinformed concerning their grievances. Groves-
Granite, a Joint Venture, 229 NLRB 56, 63 (1977), and
cases cited at fn. 33. In the instant case, there can be no
doubt that Goebel consciously neglected to apprise
Tesson of his conversation with Pratt concerning her
wage rate and his conclusions based on that discussion.
The Board, in Local 417, International Union, United
Automobile, Aerospace and Agricultural Implement Work-
ers of America (UA W) (Falcon Industries, Inc.), 245
NLRB 527 (1979), found a union violated Section
8(a)(l)(A) by concealing from a grievant the fact that it
was not processing her grievance. This action constituted
a breach of the union's fiduciary duty. Herein, I con-
clude that Goebel had the obligation, at least, to advise
Tesson of all the facts at his disposal. This is especially
true where, as here, Goebel had reversed his own belief
that the grievance had merit. This would have afforded
her an opportunity to decide on a course of action. In
this regard, I am mindful of the fact Tesson actually first
learned of her wage disparity when she read the contrac-
tual wage provisions around the time of Goebel's Octo-
ber employee meeting to discuss possible proposals.
Tesson admitted she did not raise a question about her
wages at that time. I place little significance on this
omission. If a fiduciary relationship has meaning it must
be to require the more experienced and knowledgeable
1408
THREE HUNDRED SOUTH GRAND CO.
party to that relationship to inform the less experienced
and less educated party of all available relevant facts and
afford advice based on them. Clearly, Goebel was vastly
more experienced and knowledgeable in labor-manage-
ment relationships than Tesson. Moreover, Goebel per-
sonally was a participant in the background events lead-
ing to Tesson's grievance. In contrast, the record shows
Tesson was comparatively naive in these matters.
The vice attending Goebel's neglect is demonstrated
by later events. As noted, the Union's executive board
denied Tesson's appeal on the ground it was untimely.
Indeed, approximately 8 months elapsed between Tes-
son's initial employment and the date she filed her griev-
ance. During that time, the specific collective-bargaining
agreement, which contained the wages named in the
grievance, had expired. In part, the Union's defense to
the complaint allegations is to the same effect. There can
be no merit to such a defense. In effect, the defense
would provide shelter to the Union for its own earlier
neglect. This result makes manifest the unfair character
of the Union's handling of Tesson's grievance.
Upon all the foregoing, I conclude that the General
Counsel has established that Tesson's grievance is not
clearly frivolous, and the historical backdrop belies the
Union's contention that its judgment not to proceed was
sound. That neglect set the stage for ultimate executive
board denial of Tesson's appeal. In these circumstances,
it is inescapable that the processing of Tesson's grievance
which the Union undertook in May and June 1980 was
nothing more than perfunctory.
Upon all the foregoing, I find the Union breached its
duty of fair representation, in violation of Section
8(b)(1)(A) of the Act, by (1) withholding, without valid
reason, the information from Tesson that she might have
grounds to file a grievance '5 and (2) by denying Tesson's
appeal to the executive board because the decision of
that board flowed directly from the failure, which I find
arbitrary, to have advised Tesson of her rights in timely
fashion. The latter action constitutes a refusal to process
the grievance.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCIUSIONS OF LAW '6
I. The Employer is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Employer interfered with the administration of
the Union in violation of Section 8(a)(2) and (1) of the
Act by permitting its supervisor, Carl B. Pratt, to handle
grievances of members of a labor organization in which
'5 The duty to avoid arbitrary conduct "must mean at least that there
be a reason for action taken." General Truck Drivers. Warehousemen,
Helpers and Automotive Employees. Local 315 International Brotherhood of
Teamsters. Chauffeurs. Warehousemen and Helpers of America (Rhodes &
Jamieson. Ltd.), 217 NLRB 616 (1975). have found the proffered reason
without substance.
6 At the hearing, I deferred ruling upon the Employer's and the
Union's motions to dismiss the complaint allegations against each. Based
on the conclusions of law set forth herein, each such motion is hereby
denied.
Pratt held the position of president and executive board
member simultaneous with his supervisory position.
4. The Union breached its duty of fair representation
in violation of Section 8(b)(1)(A) of the Act by with-
holding from Tesson information concerning her wage
rate discrepancy in October 1979, and by refusing to
process her May 14, 1980, wage grievance when it, by
letter dated July 1, 1980, denied her appeal to its execu-
tive board.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Employer and the Union violat-
ed Sections 8(a)(2) and (1) and 8(b)(1)(A) of the Act, re-
spectively, I shall recommend that they cease and desist
from engaging in such conduct in the future and affirma-
tively take such action as will dissipate the effects of
their unfair labor practices.
The Order will require both the Employer and the
Union, jointly and severally, to reimburse Tesson. Such
reimbursement orders were issued by the Board in West-
ern Exterminator, supra, and Welsbach Electric Corpora-
tion, 236 NLRB 503 (1978). The General Counsel has re-
quested the reimbursement remedy based on these cases.
Conceivably, each of these cases is distinguishable from
the instant case in that the cited cases contained elements
of discriminatory conduct perpetrated by the respond-
ents. Such elements are not present herein.
Nonetheless, because of the amorphous character of
the instant grievance procedure and the other factors
about to be described, I am impelled to agree that reim-
bursement is an appropriate remedy. In the face of the
contract grievance language, to order the parties to pro-
cess the grievance has doubtful value. Even though I
have found there exists a defacto procedure, there is no
evidence of grievance phases which would allow the
parties to continue their efforts to process Tesson's griev-
ance. There is no contractual provision for arbitration.
Next, referral to the parties only defers resolution of
the issues. In the peculiar circumstances herein, I can
find no justification for further delay. The relevant col-
lective-bargaining agreement contains an unqualified
wage rate for Tesson's classification. She was paid less
than that rate. I have found the Union's failure to pro-
vide Tesson with the facts surrounding her wages was
baseless and its refusal to process the grievance unlawful;
the grievance procedure is tainted and inherently coer-
cive because of Pratt's dual positions, and the Union's
failure to fully process the grievance directly attributable
to its earlier misdeeds. Thus, in spite of the potential for
criticism grounded on a claim that this is not the proper
forum for determining the merits of grievances, I per-
ceive a reimbursement remedy to be the natural conse-
quence of the mutual participation of the Employer and
the Union in, and continuation of, the grievance proce-
dure which is tainted with illegality.
In essence, the failure to process the grievance, the
tainted nature of the grievance procedures, and the ab-
sence of additional procedures by which the grievance
might now be resolved all combine to create an uncer-
1409
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tainty as to the merits of Tesson's grievance. In such cir-
cumstances, it is appropriate that the uncertainty be re-
solved against the wrongdoer. King Soopers, Inc., 222
NLRB 1011 (1976). Service Employees International
Union, Local No. 579, AFL-CIO (Convacare of Decatur
d/b/a Beverly Manor Convalescent Center, et al.), 229
NLRB 692 (1977).
The reimbursement order herein shall require payment
of the difference between the contractual wage rate in
effect during Tesson's first 30 days of employment in her
job classification and the hourly rate which she actually
received during that time. Interest, computed in accord-
ance with Isis Plumbing & Heating Co., 138 NLRB 716
(1962), and Florida Steel Corporation, 231 NLRB 651
(1977), shall be paid on such reimbursement.
Inasmuch as no evidence was presented to show that
the Employer or the Union has a proclivity to violate
the Act, under the teaching of Hickmott Foods. Inc., 242
NLRB 1357 (1979), 1 conclude the Order need not con-
tain broad proscriptive language. Accordingly, the Order
shall require the Employer to refrain from in any like or
related manner interfering with, restraining, and coercing
its employees, and the Union from in any like or related
manner restraining or coercing employees in the exercise
of their Section 7 rights.
[Recommended Order omitted from publication.]
1410