A. Borchman and Sons Co.

A. BORCHMAN & SONS CO. A. Borchman and Sons Co. and Laborers International Union of North America, Local No. 1140, AFL-CIO. Case 17-CA-3395 January 24, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On March 12, 1968, Trial Examiner Thomas A. Ricci issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs. Respondent filed a brief in answer to the General Counsel's and Charging Party's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearings and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in this case, including the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.' 'We do not agree with our dissenting colleague's conclusions concerning Respondent's union animus and the reasons for Jerry Breemes' discharge. Respondent is strictly a union construction company, all employees are required to have union hall clearance, and Job Superintendent Wilson, to whom our dissenting colleague attributes antiunion animus, was himself a member of the Carpenters Union. Wilson denied making many of the statements attributed to him by our dissenting colleague, and although the Trial Examiner did not make specific resolutions of these conflicts of credibility, he did recommend dismissal of the entire complaint . We find no sufficient reason to reverse the resolutions implicit in this recommendation . Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188 F.2d 362 (C.A 3) However, even if the testimony alleging such statements were to be credited, these statements are not sufficient to reverse the Trial Examiner's finding that Respondent did not violate Section 8 (a)(3) by discharging Breemes We find, in agreement with the Trial Examiner, that the controlling reason for Breemes' discharge lay in his persistent instructions to his laborer foreman to stop work , in direct disobedience to the express orders of Wilson. Indeed , Breemes was almost fired after the second such incident. We find that this activity was not protected . The applicable collective-bargaining agreement contained a grievance article which provided that the initial step in a grievance was to be handled by a Union business agent with a representative of the Company The article further stated that "There shall be no strike, lockout, slowdown or cessation of work,pending the decision of such grievance or dispute." The article also contained a grievance precedure for settlement of jurisdictional disputes. No grievance of any kind under the contractual procedure was ever filed in this case. In instructing his labor foreman not to work, Steward Breemes had apparently chosen to disregard both the authority of management and the grievance procedure of the collective-bargaining agreement. An employee who instructs a fellow employee not to work in violation of a ORDER 203 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the complaint herein be, and it hereby is, dismissed. MEMBER JENKINS, dissenting: My colleagues approve the Trial Examiner's conclusions that the evidence does not support "an affirmative inference that Jerry Breemes, a laborer, was discharged by the Respondent on November 3, 1967, because of his union activities - processing grievances in his capacity as job steward." It appears that they also approve the Trial Examiner's failure to consider any of the independent 8(a)(1) allegations of the complaint, and his treatment of some of the evidence relating thereto as mere "details too minute to justify detailing." I must disagree with these conclusions. The evidence presented on the record, including those "minute" details alluded to by the Trial Examiner, establishes in my view that the Respondent persistently violated Section 8(a)(1) of the Act, and when this unlawful coercive conduct failed to stem the tide of grievances filed by Breemes, Respondent thereafter discriminately discharged him in violation of Section 8(a)(3) of the Act. Respondent's animus toward the presence of a union steward for the laborers and particularly to the presence of Breemes, is reflected throughout the record. Indeed, it is clear that Respondent felt there was no need for a steward, that any steward appointed would be isolated, and that any steward's union activities were to be limited to not more than 15 minutes per day. Moreover, the record further reveals that the job superintendent threatened to run union representatives off the jobsite by force of arms, if necessary, and further warned a laborer to stay away from the "clique among the laborers," apparently headed by Breemes, if he wanted to keep his job, and threatened still another employee with discharge for talking to Breemes. Finally, it is plain that the Respondent resented the attempts by Breemes to fulfill his duties as steward, and in attempting to explain Breemes' discharge, admitted that it had discharged him "for the good of the job and to keep harmony on the job." More specifically, the record evidence2 reveals that prior to Breemes' appointment as steward, Superintendent Wilson told him that even if the Union appointed a steward, he [Wilson] would isolate the steward off the job away from the laborers and would give him 15 minutes a day for contractual clause is not insulated from discipline by the mere fact of his holding union office. Stop and Shop , Inc., 161 NLRB 75, enfd. 377 F 2d 59 (C.A. 1) See also Hoerner-Waldorf Paper Products Co., 163 NLRB No. 105, remanded on other grounds 394 F 2d 701 (C.A 9); Riviera Manufacturing Co, 167 NLRB No. 103. 'The following evidence has not been discredited by the Trial Examiner. 174 NLRB No. 38 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activities and if he -tried to do any more than this that he "will get two checks like Harvat did." 3 Indeed , a day or two after Harvat had been laid off, Wilson told Don Lantz, one of the laborers, "Well, things are going along so good around here now we don't even need a steward on the job." Wilson later added that once a steward is fired off the job that they do not have to have another steward on the job as a laborer. Wilson's simple optimism -if that is what it was" - about "things going along so good" proved unfounded, for around October 15, before Breemes was appointed steward, Lantz approached Breemes as Breemes was leaving the job at the end of the work day and inquired about a "short pay check" he had received. Apparently other laborers joined in the conversation, and when Wilson saw the group clustered together, he hollered to the group that he didn't want any meeting on the job unless he was there. Breemes thereupon replied, "Well, we are discussing a short pay check, you probably should be there." Wilson did not join the group. Again, at a time when the Union had no steward on the job, the laborers were dismissed at 4:30 p.m. while Kudlacek, the labor foreman, was kept on the job apparently to perform certain laborers' duties in preparation for a concrete pour on the following day. Breemes asked Wilson why he didn't keep the laborer force on the job to perform these functions, and Wilson replied that "he just wasn't going to do it that way and everybody was going to go home and John (Kudlacek) would be enough." On October 23, 1967, Richard Otte, business agent for the Union, appointed Breemes as steward on the job. Wilson informed Otte that he would accept Breemes as steward but that he thought Breemes was a "troublemaker" who had earlier raised an apparent jurisdictional issue with the ironworkers. Otte advised Wilson that the Union, considered the labor foreman (in this instance Kudlacek) an agent of the Employer pursuant to its negotiated agreement and that the labor foreman should not replace a laborer by performing regular manual labor. In addition, Otte also notified Wilson that the Union selected its stewards and that in the opinion of the Union, the steward should be the last man to be laid off. Finally, Otte also explained that the Laborers Union had a Form and Lumber agreement with the Carpenters District Council which gave all- work of carrying lumber and forms to the laborers. The following morning, Breemes approached Respondent's agent Kudlacek, and told him that the Union believed that, as labor foreman, Kudlacek should not be performing work normally assigned to laborers. Kudlacek apparently agreed and quit 'Harvat had been appointed by the Union as a steward about the middle of September, but was laid off a few hours after his appointment 'In the context it appears rather to have been another not so thinly veiled, and unlawful, warning to Breemes and his fellow laborers to cease discussing Respondent's possible breaches of the union agreement. working. Within a few minutes, Wilson told Breemes he did not want a labor steward telling his labor foreman not to work. Breemes told Wilson, as Otte had previously done, that this was' the Union's position in the matter and that as Respondent's agent and foreman, Kudlacek should not be regularly performing the work of the laborers. The next day, Breemes sought advice in this matter from Otte, and Otte told him he was to continue to confront Kudlacek about this matter should he continue to work. That day, Kudlacek, who was again performing certain manual tasks, agreed not to work when approached by Breemes. Again, within a few minutes, Wilson instructed Kudlacek to continue working, and then angrily told Breemes, "I told you yesterday you are not to tell my man not -to work, all you are trying to do is cause trouble." Wilson told Breemes he was fired, but when Wilson could not reach Otte by phone, he sent Breemes back to work. Breemes continued to protest the assignment of work to Kudlacek and he also complained to carpenter foreman, Bill Vanderberghe, about the carpenters' performing work that the laborers were to perform pursuant to their agreement with the Carpenters Union. Wilson told Breemes to leave the carpenters alone, and Vanderberghe warned Breemes not to bring up these grievances and if he persisted in these efforts, "the whole bunch will get fired. They will fire the whole labor force. You have got to lay off because you can't keep bringing up this stuff or the whole bunch will be fired." It further appears that during this period, Breemes also diligently and forcefully presented to Wilson several complaints the laborers had concerning alleged shortages in their paychecks, including one grievance involving his own check. Some of these grievances were resolved in favor of the employees. In addition to the foregoing, there is additional and convincing evidence, in my view, clearly revealing Respondent's complete and total hostility and animus toward Breemes' vigorous and protected actions as Union steward. Thus, almost immediately after Breemes was appointed steward, and true to Wilson's earlier threat, Breemes was isolated from the laborers by the location of his work assignment. In addition, Wilson warned another recently hired laborer, Moore, that "there was a clique among the laborers, and I knew who he was talking about, and it was going to cost him his job, and that was why he kept him by himself." Wilson then told Moore that if he wanted to continue working there he was just to do his job and keep out of it. On another occasion, when Breemes was seeking to have a newly hired laborer, Stecher, fill out a union form, Wilson appeared on the scene and told Moore, ".. . I don't want you talking to the Laborers steward on this job or you will get two checks right now." Breemes told Wilson, "this man is not a dog, you talk to him in a decent tone of voice and use decent A. BORCHMAN & SONS CO. language," to which Wilson retorted, "I don't want him talking on this job ... or I will fire him ..." But Wilson' s animus does not appear entirely confined to the union steward or to his activities as steward. It was also directed to the Union. In this regard, on an occasion when a laborer failed to appear on the job, Breemes asked Wilson if he should call the Union hall and have another laborer sent to the job. Wilson's answer was that "I don't want any of these dead beats that comes out of the hall . . . I will hire the guys, interview them myself and send them to the hall and then the hall will send them out . . ." Finally, Wilson, referring to a gun he sought from employee Hergemoder, told Breemes and Hergemoder that "if he had this gun, and anybody from the union hall come on the job, which was private property, he would personally run them off." The foregoing evidence, not discredited by the Trial Examiner, fully supports my conclusion that Respondent violated Section 8(a)(1) and (3) of the Act. Unlike my colleagues, I am persuaded, on the basis of the record evidence, that Breemes, as steward, was attempting to persuade the Respondent to agree with an economic or contract demand in complaining that the labor foreman should not be assigned laborer's work, rather than merely calling on Kudlacek, as a good member of the Union, to abide by the Union's rules. I cannot join the majority in inferring that no labor dispute existed between the Union, and Respondent and that Breemes was discharged for engaging in nothing more than an intraunion dispute with a fellow member. Indeed, Wilson admitted that he was well aware that Breemes objected to the carpenters' performing the work of laborers, and objected to the cement finishers infringing on the laborers' work jurisdiction. Clearly, these grievances were not intraunion matters nor were they disputes between two fellow union members. Moreover, Wilson had been informed on a number of occasions by both Otte and Breemes that the Union believed its contract with the Respondent barred the regular assignment of laborers' work to the labor foreman. Again, one can hardly infer that this was merely an intraunion matter which Breemes carried over to the. jobsite.s In fact, the only possible inference which can be drawn from the record facts is that Breemes was merely carrying out those functions of job steward which Wilson himself admitted to be, "to make out reports and see that no one else does his work and turn in grievances to the foreman, if he has a grievance." (Emphasis supplied.) For the foregoing reasons, I would find that Respondent has violated Section 8(a)(1) and (3) of the Act. 'It is significant that representatives of other construction firms in the area testified that the Union maintained the same firm position with respect to this matter on their respective jobsites. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE 205 THOMAS A. Ricci, Trial Examiner: A hearing in the above-entitled proceeding was held before the duly designated Trial Examiner at Omaha, Nebraska, on January 30 and 31, 1968, on complaint of the General Counsel against A. Borchman and Sons Co., herein called the Respondent or the Company. The charge was filed on November 7, 1967, and the complaint issued December 27. The issue involved is whether the Respondent violated Section 8(a)(3) of the Act by discharging an employee. Briefs were filed after the close of the hearing by the General Counsel, the Charging Party and the Respondent. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY A. Borchman and Sons Co., a Nebraska corporation, has its principal office at Omaha, Nebraska, and is engaged as a contractor performing general construction operations and services in the construction industry. In the normal conduct of its business the Respondent annually purchases goods or services valued in excess of $50,000 directly from persons or enterprises located in States other than the State of Nebraska. I find that the Respondent is engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to exercise jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED Laborers International Union of North America, Local No. 1140, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICE The sole issue presented in this case is whether the evidence supports an affirmative inference that Jerry Breemes, a laborer, was discharged by the Respondent on November 3, 1967, because of his union activities - processing grievances in his capacity as job steward. The need for laborers on the construction project was in decline, the work Breemes had been doing for almost 2 weeks - ground tamping with a compressor and a power tool - had been completed that day, two other laborers were released with him at the same time, and the total number then remaining, four, was later reduced to three and no additional laborers have been hired since. Breemes did bring complaints of other laborers to Job Superintendent Wilson. As the Respondent's, principal defender at the hearing, the superintendent said he discharged Breemes because there was not enough work for the full complement, because the work he had been assigned to do was completed, and because there were better workmen to retain. He admitted, further, that an additional reason for selecting Breemes for dismissal was the fact he had caused "trouble" on the job, had brought "disharmony" among other employees. The General Counsel ascribes a very precise meaning to the word trouble; he called it a euphemism for union activities, or processing grievances. Wilson gave another explanation, 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as will appear below. The law is clear. If an employee suffers discrimination for two reasons - one just cause and the other proscribed by the statute - the dismissal violates Section 8(a)(3) of the Act. N.L.R.B. v. Electric Steam Radiator, 321 F 2d 733. If it was the fact of Breemes' processing grievances that Wilson found intolerable, the complaint is sustained. Chemical Construction Corp., 125 NLRB 593. Whether it was in reality the fact of advancing grievances that the superintendent resented, is not at all clear. The essential question therefore involves an inquiry into inner motivation , and it is a very refined one, because Breemes' conduct on the job, that aspect which the Respondent asserts need not be excused , touched tangentially upon what could also constitute proper and therefore protected voicing of grievances. As the processing of grievances is no more than one aspect of union activities, and as at bottom an employer's denial of a steward's privilege to bring grievances to its attention is wrong because it shows rejection of the basic principle of collective bargaining , it is only fair in this situation to consider all factors bearing a relationship to the Respondent' s attitude towards the employees' union activities. Borchman is strictly a union construction company. The project in question , erection of a warehouse and manufacturing plant called the Valley j ob, started on September 1, and was always manned entirely by employees either obtained initially directly from the various craft union halls , or hired off the street by the Company but first required to obtain union clearance before being permitted to work. All employees were, of course, covered by AGC multiemployer contracts binding upon the Respondent. The Laborers' Local, and no doubt the other craft unions as well, operated an exclusive hiring hall with the Respondent. Even towards Breemes personally, Superintendent Wilson was well disposed before the laborer began to act up. He obtained Breemes initially from the hall; the project was suspended at one point and Wilson placed him on another of the Company's jobs; and later, when this project was reactivated, brought him back individually to the Valley building. Thus the total framework against which the selected treatment of Breemes is to be viewed is one of complete accord between the Respondent and the Union. Breemes was designated steward for the eight or so laborers on October 23 ; for some weeks there had been none. He was discharged 12 days later, on Friday, November 3. Four or five times in the 2-week period other laborers told him they had been underpaid, and he brought them to speak to Wilson about it. Several times the superintendent showed them the company records to prove the men had been paid properly, and the matter was left there . Once Wilson quickly agreed with the grievance and paid, and a final such complaint, discussed an hour or two after Breemes had been discharged Friday afternoon, was rejected at the time but a few days later found to be correct and paid by the Company There was another matter that provoked Breemes to action, and this is the one that eventually gave rise to his final difficulties with the superintendent. He was of the opinion that foremen, any foreman - be it laborer foreman, carpenter foreman, or ironworker foreman - should not do any laborer work , but only foreman's work, whatever that meant to Breemes. Sometime before being made steward , he worked for a week with the ironworkers, and disputed the right of any ironworker to perform what to Breemes looked like laborer work. Also before any union designation, Breemes complained because carpenters were kept for overtime work, but not laborers; he argued to the superintendent that carpenters necessarily must have laborers to help them in the overtime period. There is also indication that Breemes had like quarrels with the cement finishers while assigned to work with them when he was no more than an ordinary employee. And after his designation as steward, he continued the same running dispute with Vanderbergher, the carpenter foreman, and Kudlacek, foreman of the laborers. In its entirety the record of this case contains a number of befuddling elements, not all placed into evidence unintentionally. Some such evidence concerns collateral incidents which at first impression, and if the testimony is quoted out of context, seem to be relevant to the true complaint allegation, but which on careful examination prove to have no pertinent value worthy of mention. These will be discussed below. Two elements of proof, however, are so seriously misleading and irrelevant to the real issue to be decided, that each must be clarified now. The first is the contention, urged primarily by counsel for the Union, that in requiring the laborer foreman, or any foreman, to do manual laborer work, the Respondent was violating its agreement with the Union. With this a repeated insistence throughout the record, Superintendent Wilson is put in an unfavorable light, not a nice fellow, because he reneged on his contract. In his direct examination of Richard Otte, of Laborer Local 1140, union counsel had the witness agree that "the question of foremen working, labor foremen working performing unit work, that is a matter of the collective-bargaining agreement ...." This statement is false, for the current contract was received in evidence and is silent on the subject. When, therefore, Superintendent Wilson kept telling his foreman to do whatever work he chose to assign to them, he was not acting in derogation of any union agreement. More important, when he insisted, more than once, that Breemes - whether or not a steward - stop giving contrary orders to the foremen, his were not improper instructions to the working personnel But the merit of any jurisdictional claim - be it by the steward that foremen not work or by the supervisors that they must do so - has nothing to do with the question presented by the - discharge of Breemes. That Superintendent Wilson and Business Agent Otte did not see eye to eye on this matter of work assignment is clear. What has not been proved is that the Union's claim - illusive even as articulated by Otte at the hearing - was justified, and consequently no particular fault can be found in Wilson for insisting upon the right to order the foreman about at will. In any event, all that need be said here is that a steward is protected in his proper processing of grievances even if in fact his claim against management in the end must fail. All testimony about who was entitled to do what work on this project, therefore, must be ignored. Injection of that question certainly does not enhance the total testimony either of Steward Breemes or Business Agent Otte. The second contention, also based upon a totally unsupported factual assertion, is that in discharging a steward the Respondent did violence to its agreement with the Union. Again, with the contract containing no such restriction upon the employer, it cannot be said on this record that there is any proof of such an agreement. But the General Counsel stated unequivocally on the record that as part of the supporting proof of illegal motivation in the discharge of Breemes, he relies upon the fact the A. BORCHMAN & SONS CO. 207 Respondent did not retain the steward to the last man. In the light of all the evidence, this appears as no more than camouflage coloring. In the mouth of the Union, which makes the same extraneous argument, the point may be more revealing. Can it be there really was such an understanding - sub rosa and not provable of record - and that the Union's real reason for filing the charge in the first instance was resentment against early discharge of any steward, instead of an honest claim that the Respondent disliked this particular one? Be that as it may, the important thing now is to clear the air of these matters that have nothing to do with the case, and to look only to the truly pertinent evidence. If there is sufficient proof that Breemes was in fact laid off because of his activities as steward, it must be found in the evidence concerning his activities during the 2 weeks between October 23 and November 3. What the General Counsel calls processing of grievances by him falls into two areas: claims of shortages in pay and improper work performed by foremen. He several times brought laborers to speak to Wilson about paycheck questions, but there is no indication the superintendent was at all concerned with the steward speaking to him about these matters. He never said anything to Breemes in criticism on that subject, either during the 2-week period or at the time of discharge. The fact that a steward acts as such cannot of itself support a charge of discrimination on that ground. There would be no basis for inferring that when he called Breemes a "troublemaker," the grievances about pay were in Wilson's mind. As to his behavior towards the laborer foreman - what may be the real crux of this case - Breemes' testimony is that on the first day he was steward - October 24, he left his work - 300 feet away, as he recalled - to go to Kudlacek and tell him not to do the manual work he was performing. Kudlacek quit what he was doing, and in 10 minutes Wilson went to Breemes and said "He didn't want a Laborer steward telling his laborer foreman, who had 12 years on the job, not to work." Breemes answered it was the opinion of the union hall. The steward telephoned the hall the next day to check with Business Agent Otte, who told him to continue as before. Thereupon, the next day, still according to Breemes' testimony, he again went to Kudlacek and told him to stop work: "I told John that in our opinion he wasn't supposed to be working and if he continued to do so the laborer hall would take care of it from there." This time the foreman replied: "Very good . I am not trying to cause any trouble." And again Wilson countermanded the steward's order to the foreman and said to Breemes: "I told you yesterday you are not to tell my men not to work, all you are trying to do is cause me trouble ... it is just like you causing the trouble with the ironworkers." When Breemes retorted with a charge that Wilson was a liar, the superintendent threw his helmet on the ground in wrath and kicked it. "That is disrespect to authority. You are fired . . . . As soon as I get ahold of your damn business agent I will get your paycheck." The two went to the office, but when Wilson was unable to reach Otte on the telephone, he ordered the steward back to work. Disregarding Wilson, Breemes continued to order the laborer foreman to stop work whenever in his opinion the particular chore should have been performed by laborers. He said he did this five times, but I credit Wilson's statement that it happened at least seven times; and each time Breemes went to Kudlacek with this message, he had to shut off his tamping compressor and walk the distance - variously estimated as from 100 to 400 feet - to do so. Twice it was necessary to have an operating engineer restart the compressor. Each time Breemes talked to him, Kudlacek stopped what he was doing, and each time in a matter of minutes the superintendent ordered him to resume the same assignment. Wilson's version of these incidents does not vary substantially from that of Breemes. As Wilson recalled, the very first time he had to speak to the steward he told him "he had no right to tell him [the foreman] not to work and I wanted it stopped or I would have to let him go." The next day, still in Wilson's words: "He went up to my foreman and told him not to work again and he disrupted the labor crew to such a point that I went back and told him that if he didn't leave John alone, I was going to fire him and I meant I was going to fire him right then." Early the following week Wilson called the union hall to advise Otte of his intent to release Breemes on Friday, in order, as he testified, that the Union might appoint another steward. On Friday morning Otte came to the project and together with Breemes tried to dissuade the superintendent, but without success. The business agent tried to convince the superintendent that under the contract the steward must be the last to go, but Wilson protested his right to release any employee. He told Otte, Breemes "isn't that good a man." At closing time that day Wilson laid off Breemes and two other laborers. Breemes twice put the same kind of pressure on the carpenter foreman, Vanderbergher. The first time he saw the foreman carrying tools, nails and lumber, and asked why he had no laborer to help, Vanderbergher said he needed no laborer. Again once later he asked the foreman, "where is your laborer," and the answer was none was needed. In his recital of these two incidents, Breemes switched his story of what Wilson had to say at the time. He started by saying that on the first occasion Wilson approached and told him "to leave the carpenters alone . . I am the boss on this job and . . . I don't want any steward or anybody trying to cause me trouble." Later in his testimony Breemes said it was on the second occasion that Wilson said anything, and that at that time the superintendent did not hear what he had told the foreman, and only said "not to bather the carpenter foreman with such problems that I brought up." Further Related Facts: Analysis and Conclusion As Breemes' conduct towards the laborer foreman on the job is the true predicate for the complaint allegation of illegal discharge, fairness requires that before any other consideration there should be objective appraisal of the nature of his pressure upon Foreman Kudlacek. Some thought should be given here to the true nature of a grievance procedure when there is a union representing employees under a collective-bargaining agreement, as in this case. The word grievance is but another name for a labor dispute, a disagreement between labor and management, union and employer. A steward is protected in such dispute because he speaks for the union; he is literally engaged in union activities, or collective bargaining. Bethlehem Steel Co., 89 NLRB '341. For a finding of this kind it is essential that he- address his complaint to the employer as such. A quarrel among union members, whether on or off the job, has nothing to do with grievances, and when it erupts at work, and stops production, can well be called improper interference with the employer's privilege to run his business peacefully, free of "trouble," or "disharmony." 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A first possible question is whether, when the steward's complaint takes the form of an order to the foreman that he "stop work," his is a demand upon the employer to bargain, or usurpation of the employer's right to determine work assignments. In an ordinary context, absent other significant factors that could shed light upon the true character of the activity, I doubt the mere fact of a high-handed approach, a perhaps arbitrary mode of speech, could remove the steward's activity from a proper area of grievances. Words cannot change substance. But where behind the direct order to ignore a proper work assignment made by management there lurks a threat of enforcement that stands entirely apart from the employer-employee relationship, a different situation is presented, one that may well be deemed outside the proper scope of a stewards authority on the job Kudlacek, the laborer foreman, was a union member, and therefore subject to union discipline. His very hire had to be out of the union hall. He was covered explicitly by the contract then in effect, which provides: ,If in the judgment of the Employer a foreman is required upon the work, he shall be selected by, and be the agent of the Employer and will be subject to the terms of this Agreement and shall be paid not less than 25 cents per hour above the highest paid laborer under his immediate supervision. At the hearing, counsel for the Union stressed the fact the contract labels Kudlacek an "agent" of the Company when made a foreman. But this one work cannot hide the fact the Union had a say in his conditions of employment even while he functioned in this capacity, for his pay had to be exactly 25 cents above that established by contract for the laborers. Kudlacek therefore at that time wore two hats on the job - foreman and union member. On a project as completely unionized as this, the second was as significant a standing as the first. Regardless of any policy of the Union vis-a-vis the construction industry in this area, or with respect to the Borchman Company in particular, that no employer should assign straight laborer work to foremen, it is clear, and I find, that Breemes, as steward, was not attempting to pursuade the Respondent to agree with this economic demand. He was instead calling upon Kuklacek, as a good member of the Union, to abide by his local's internal resolution. The weapon he held on the foreman - expressed in so many words - was discipline by or expulsion from the Local. He told Kudlacek "if there is anything to be done against him it would be the labor hall to do it." Moore, a laborer witness for the General Counsel, testified he heard Breemes tell the foreman "you've been warned not to work." And another laborer, Lantz, testified the stewart told the foreman "he would file charges against him." When Breemes reminded Kudlacek a second time, on Tuesday, he had warned him once, and to stop working, the foreman quickly acquiesced by saying "I am not trying to cause any trouble." This plea from a union member, leaves no doubt Kudlacek well understood the threat to him was expulsion from the Union, his source of employment. But it is not in the union hall that grievances are pressed, that is, grievances as envisaged under the statutory scheme of collective bargaining. True grievances, in this sense, are given teeth with economic sanction or threat of strike, but always against the Company. Apparently Kudlacek felt Breemes could make good his threat, for he put down his shovel every time, only to pick it up again when the superintendent ordered him to work. It is not the fact the disrupted orderly progress of work in doing so. In short, it would appear that he did not intend to bring his "grievance" to the employer as such, and if Wilson, charged with responsibility for getting the job done, saw what Breemes was doing as merely trying to usurp the authority of management, or, as he later said, just making "trouble," it was not an unreasonable reaction on his part. More so can this be said, because neither the steward nor the business agent, who did come to the job at times, told him of dissatisfaction with the assignment of laborer work to the foreman during the period when Breemes was countermanding Wilson's orders. The record shows that not once during his period of stewardship did Breemes voice any complaint to Wilson, or anyone else in management other than Kudlacek.' Otte testified he spoke to Wilson about the laborer union's agreement with the Carpenters' Local, about his jurisdictional claim against carpenters. Wilson's position always was that foremen must work, and he recognized no contrary claim by the laborers' union. Also of significance here is the fact that no grievance, as provided for in the agreement, was filed during the very period which the Union now claims was marked by continuous contract violations by the Respondent. Indeed, the contract expressly provides for recourse to the "National Joint Board for the Settlement of Jurisdictional Disputes." This is not to say that a steward may not protest on the job even without so formal a step as a joint board proceeding. But the absence of any formal, proper steps under the contract does have a meaning when the only overt action is directed against a foreman who is himself also a union member. It was perhaps in appreciation of the inherent weakness of the case as a whole revealed by the foregoing, that the General Counsel, in partial support of the requested inference of illegal motivation in the discharge of Breemes, offered evidence of other things that were said and done. He argues that these supply indirect and cumulative evidence of an intent to punish Breemes for acting as a union steward. I do not think these collateral matters substantially serve the purpose, either singly or collectively. Horvat, a laborer, was named steward by Business Agent Seberg early in September; he was discharged the same day. As first related by Breemes at the start of his testimony, the discharge was made to appear as unlawful discrimination on its face. It was later stipulated Horvat had filed an unfair labor practice charge with the Board based on his dismissal, but the Union later withdrew it. Lantz, then working as a laborer on the job, said that Horvat was named steward at 10:15 a.m. on September 19, and "worked until 11.55." He said nothing about whether, or how the Company was advised of this designation. Wilson's recollection was that he decided on Wednesday to layoff Horvat, who had worked only 1 week, and that day asked the company office, 22 miles away, to prepare the necessary two checks for the man. It is a practice with the Respondent to give a man at the moment of discharge one check for the week that is always "held back" and a second for the immediate work performed. On Thursday it rained and the job,was shut 'In their briefs both the General Counsel and the Union misrepresent Breemes' testimony Speaking of his first day as steward, Breemes said: "I first confronted John Kudlacek with the problem ." It was only after the superintendent told him not to give work orders that the steward spoke of the union hall view of the matter. And the further statement in the union brief that Breemes "on 5 occasions" complained to Wilson is so blatantly wrong as to merit no discussion A. BORCHMAN & SONS CO. steward used strong language - "threatened," as Moore testified - that goes to the nature of his act, it is the fact he brought an intraunion problem to the jobsite and down. The next day, as Wilson continued to testify, Seberg, the assistant business agent, came on the job and told him Horvat had been named steward. His answer was that the man was about to be discharged. Seberg did not testify. Wilson was corroborated by Charles Borchman, the Company's secretary and an office worker, who said that on Wednesday, by telephone, he approved Wilson's request for permission to release Horvat, and that on Friday morning he left his office at 9 a.m. with the usual weekly checks, including the two for Horvat, and that the man was released when he reached the project at about 11 a.m. Borchman said Seberg was departing as he arrived. On his testimony and that of Wilson, both of whom I credit, it cannot be found that the Respondent discharged Horvat because he was a steward, or even with knowledge that he had been so designated. But aside from the fact that what became of Horvat in no sense supports the complaint with respect to Breemes, the very injection of that story casts a cloud over the prosecution side of this case. For the dismissal of Horvat to be relevant here at all, it must be argued - as indeed the General Counsel does contend - that the Respondent did something wrong in releasing him. Such a theory, in turn, would have to rest on either of-two grounds: (1) that premature discharge of a steward is per se unlawful, or (2) that the evidence as a whole shows antisteward animus. If it is the first, and the General Counsel does contend the Respondent knew of Horvat's designation in advance of the moment of dismissal, his charge should have been followed by a complaint, or the Union not permitted to withdraw the charge. If it is the second ground - an overall picture of animus - the Horvat charge should have been refiled by the Union, because by November the events concerning Breemes had transpired, and the 6-month statute of limitations had not passed by November 7, when the Breemes charge was received. With Horvat not mentioned at all in this complaint, neither the General Counsel nor the Union is in a position persuasively to argue that the fact of Breemes having been discharged before all other laborers proves anything now. Can it be said that a preponderance of the substantial evidence in the record as a whole proves that the "disharmony" which Wilson said Breemes brought to the job was his activity as a union steward? There was "trouble" before he became steward, trouble which Wilson had a right to resent without fear of being charged with antiunion 'bias. Real or fancied, the superintendent felt Breemes had caused difficulties with the ironworkers, this weeks before October 23. Breemes may have denied, at the hearing, that there was any basis for the accusation, but it was the General Counsel's own witnesses, who, before the defense was heard, insisted Wilson had spoken to Business Agent Otte of such conduct by Breemes in the past on the day the man was designated steward. The week before his appointment Breemes picked a quarrel with the carpenter foreman because no rank-and-file laborers were asked to stay. This had nothing to do with steward activities. About a week before October 23, Breemes was in a group of laborers discussing one man's belief he had been underpaid. Passing by, Wilson said "he 209 didn't want any meetings on the job unless he was there " All the witnesses agreed Wilson could not have heard what the men were discussing on that occasion. There is also testimony by Business Agent Otte that when Breemes was assigned to work with the cement finishers, Wilson told him, Otte, "he had to take Jerry Breemes off the concrete crew because the cement finishers wouldn't work with him." This, too, was before October 23, because Breemes insisted he was that day "isolated" away from all others on a distant tamping job. One can agree with Business Agent Otte, who at the hearing called Wilson a hard man, but the fact remains there was some basis for his feeling that Breemes was causing him trouble in a sense unrelated to the steward status he later acquired. A few other items of testimony are said to support the complaint. One day, after Breemes became steward, Wilson saw him talking with Stecher, another laborer, while the two were supposed to be working. Again without knowing what the men were talking about, Wilson said- "God damn you, I don't want you talking to the Laborers steward on this job or you will get two checks right now." As Stecher recalled the incident, what Wilson said was "if you do any more talking, you two guys will be down the road." On another occasion Breemes thought a laborer was needed on the job and asked Wilson should he call the union hall to send out a man. Wilson's answer was: "I don't want any of these deadbeats that comes out of the hall ... I'll hire the guys, interview them myself and send them to the hall and then the hall will send them out." None of this adds any real weight to the charge of antiunion motivation. One day, when there was no steward, Wilson is reported to have said "if ever they appointed a steward or particularly any steward on the job, he would isolate them off the job, construction site, away from the rest of the laborers and he would give them 15 minutes a day to do any union activities, check with any of the laborers that they had to - that you had to converse with the rest of the laborers." Apparently Wilson believes that working time is for work. I conclude, upon the basis of all the evidence, all that is set forth above as well as other details too minute to justify detailing here, that the record as a whole does not support the allegation that Breemes was discharged because of his steward activities, and I shall therefore dismiss the complaint.' RECOMMENDED ORDER It is hereby recommended that the complaint against A. Borchman and Sons Co. be, and it hereby is, dismissed. 'In his brief the General Counsel relies heavily on testimony by Business Agent Otte that one day Superintendent Wilson said "he would fire any steward." Wilson denied having said this What the General Counsel conveniently ignores is the fact that Otte also testified that this unequivocal statement by Wilson followed immediately upon his, the business agent's, statement to Wilson. "I told him according to our agreement, that we picked the stewards and they are supposed to be the last man to go "