Silver Bay Local Union No. 962

SILVER BAY LOCAL UNION NO. 962 751 Silver Bay Local Union No. 962, International Broth-' erhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, (Alaska Lumber & Pulp Co., Inc.) and Earl J. Niesen. Case 19-CB-1700 August 7, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On April 5, 1972, Trial Examiner James T. Barker issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding, to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings,' and conclusions and to adopt his recommended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that Respondent, Silver Bay Local Union No. 962, International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, Sitka, Alaska, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommend- ed Order. i The Respondent has excepted to certain credibility findings made by the Trial Examiner It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions were incorrect. Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C.A. 3). We have carefully examined the record and find no basis for reversing his findings. In adopting the Trial Examiner's findings of fact, however, we do not rely on his finding that Turner, chairman of the Union's standing committee, specifically informed the Respondent's members at their February 9, 1971, meeting "that the Company had the impression that only a small group of employees was seeking Niesen's removal from his supervisory position " We find that this is not supported by the record However, the record clearly supports all other findings made by the Trial Examiner in regard to Respondent's aforesaid membership meeting. Finally, we note that the Trial Examiner inadvertently stated in his conclusions that "Respondent avers that Respondent's motive in seeking Niesen's removal was solely related to his efforts on behalf of management to `tighten the running of the woodroom' and that its protest relating to violence was groundless and a mere cloak" However, that contention is properly to be attributed to the General Counsel. 2 Respondent has requested oral argument This request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES T. BARKER, Trial Examiner: This matter was heard at Sitka, Alaska, on January 19 and 20, 1972, pursuant to a complaint and notice of hearing issued by the Regional Director of the National Labor Relations Board for Region 19 on October 21, 1971. The complaint ,and notice of hearing arose from charges filed by Earl J. Niesen, an individual, on June 7, 1971.1 The complaint alleges that Silver Bay Local Union No. 962, International Brotherhood of Pulp, Sulphite and Paper Mill Workers, ;AFL-CIO, hereinafter called the Union or Respondent, violated Section 8(b)(l)(B) of the National Labor Relations Act, hereinafter called the Act, by causing or attempting to cause Alaska Lumber and Pulp Co., Inc., hereinafter called the Company, to terminate Earl Niesen from his position of employment as a supervisor with authority to represent the Company for purposes of collective bargaining and adjustment of grievances. The General Counsel and Respondent timely filed briefs with me on February 28, 1972. Upon consideration of the briefs of the parties and upon the entire record in the case and my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY At all material times herein Alaska Lumber and Pulp Co., Inc., has been a State of Alaska corporation with its place of business in Sitka, Alaska, where it has been engaged in the business of processing wood pulp. During the 12-month period immediately preceding the issuance of the complaint herein, the Company sold and [shipped from its Sitka, Alaska, location to points located outside the State of Alaska material valued in excess of $50,000. Upon these admitted facts, I find that at all times material herein the Company has been an employer i The record reflects the proper spelling of the Charging Party's name to be as shown and the caption of the case has been corrected accordingly 198 NLRB No. 107 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED Silver Bay Local Union No. 962, International Brother- hood of Pulp, Sulphite and Paper Mill Workers, AFL-CI- O, is conceded to be a labor organization within the meaning of Section 2(5) of the Act. I so find. III. THE UNFAIR LABOR PRACTICES A. The Issues The initial issue in this case is whether the General Counsel proved by preponderance of the credible evidence that the Respondent caused or attempted to cause the Company to terminate the services of Earl Niesen. The Respondent denies the commission of any unfair labor practices and initially contends that the evidence does not support the contention of the General Counsel that it threatened a strike in order to require the Company to remove Niesen from his position as supervisor in the woodroom. In this regard, the Respondent contends that it sought by its interposition with the Company through the contractual grievance procedures to insulate employees from direct supervisory contact with Niesen, which action was protected by Section 7 and not unlawful under Section 8(b)(1)(B) of the Act. Moreover, by way of affirmative defense, the Respondent contends that, in the event it is found that it, is responsible for threatening a strike to obtain Niesen's removal, its objective in so doing was solely for the purpose of protecting unit employees from an imminent threat to their physical well-being. In this latter regard, the Respondent contends that employees over whom Niesen had direct supervision had personal aware- ness of a propensity on the part of Niesen to engage in acts of physical violence against employees of the Company, and other individuals, away from the company premises which instilled employees with fear of Niesen. The Respondent's affirmative defense directly raises the issue of the propriety of the Trial Examiner's ruling made at the hearing excluding evidence pertaining to altercations engaged in by Niesen away from the plant's premises and on nonworking time. In his offer, counsel for Respondent proffered testimony of nine separate witnesses who assertedly would testify to purported incidents involving Niesen which were in the nature of either physical combat or assault, or threats thereof. Three incidents involved employees of the Compa- ny and allegedly transpired during Niesen's employment as a supervisor. Three separate further incidents involved nonemployees and related to the period of Niesen's supervisory tenure. An additional proffer related to testimony of a nonemployee which assertedly would have substantiated the account given by employee McCoy at the meeting of February 12, as found below, which related to Niesen. The proffered testimony of two witnesses related to alleged events transpiring before Niesen's selection as a supervisor, and two witnesses would have testified to incidents transpiring after Niesen's termination. These proffers were rejected. My ruling rejecting these proffers was grounded essen- tially on the premise that these incidents were not work- related and that a threat to strike , absent a showing of imminent danger to the physical well-being of employees, would not be justified on the basis of events transpiring away from the plant and involving Niesen in his private life. My ruling is affirmed and is fortified by considerations infra revealing that the purported incidents did not formulate the basis for decisions reached and action taken by the Respondent. B. Pertinent Facts 1. Background facts a. The bargaining agreement At all material times the Respondent has been the exclusive bargaining representative of employees of the Company in an appropriate bargaining unit. Millard Lamb has been an international representative of the Union and Jerry Turner has been chairman of the standing and negotiating committees of the Union. The collective-bargaining agreement between the Com- pany and the signatory union, specified in the agreement as "International Brotherhood of Pulp, Sulphite and Paper Mill Workers and its Silver Bay Local No. 962," 2 provides for a standing committee comprised of four representatives of the Company and four representatives of the Union whose auspices are invoked either at the request of the Company or the Union as the second step in the grievance processing procedures existing under the contract. Under the agreement, before the next step in the grievance procedure may be invoked, 5 days are allowed the standing committee to resolve the issue before it. The agreement also contains the following provision with respect to strikes: It is agreed that there shall be no strikes, walkouts, or other interruption of work, during the period of this Agreement, or upon its expiration, except with the express and specific sanction of the Signatory Union. It is agreed that there shall be no lockouts by the Signatory Company during the period of this Agree- ment. b. The 1969 work stoppage On May 8 through 12, 1969, employees at the Company's Sitka operation engaged in a work stoppage which was not officially authorized or sanctioned by the International. Employees refused to perform certain assigned duties although directed by supervision to do so. The employees asserted that their refusal was based upon the dangerous nature of the assignments given them and refused to perform the work. As a consequence, the Company closed down operations for a period of days. The Union accused the Company of a lockout. 2 The agreement was executed for the "Signatory Union" by officers of the International SILVER BAY LOCAL UNION NO. 962 The matter was resolved adversely to the Union in an arbitration proceeding. c. Niesen's employment history Earl Niesen was initially employed by the Company as a rank-and-file employee in April 1964. He remained in the employ of the Company until he was terminated on February 12, 1971'.3 Niesen became a member of the Union in May 1964 and remained a member until July 1, 1970. Niesen terminated his membership preparatory to being installed in the supervisory position of relief woodroom supervisor. During the 6-year period preceding his appointment to a supervisory position, Niesen worked in rank-and-file jobs of increasing responsibility. Similarly, during the 6 years of his membership in the Union, he held a series of elective offices in the Union, including shop steward, department shop steward, shift shop steward, chief shop steward, vice president, and member of the standing committee for maintenance and chairman of the standing committee. After approximately 18 months of service on the standing committee, Niesen resigned his committee membership but, as found, retained his membership in the Union until July 1, 1970. d. Niesen's 1969 assault and battery conviction On April 28, 1969, pursuant to a trial upon a criminal complaint, Earl Niesen was found guilty- in the District Court of the State of Alaska of assault and battery. He was sentenced to 180 days of imprisonment, 60 of which were suspended. He was placed on parole until April 28, 1970.4 e. The woodroom department Pertinent to the Company's wood pulp processing operation is the woodroom department which is housed in a large, three-story building. The physical facilities encom- passed within the woodroom operation which include the pond, log deck, conveyors, storage silos, surge, bms and the woodroom itself, extend over an area of more than a quarter of a mile in length. Approximately 46 employees are employed in the woodroom department on three shifts. In late June 1970, management of the Company met to consider the selection of a successor to the incumbent supervisor of the woodroom whose serious illness was anticipated as requiring his absence for a substantial period of time. Discipline in the woodroom was declared deficient as evidenced by absenteeism, lateness, and job performance reports. It was decided that Earl Niesen would be designated as woodroom supervisor. On July 1, 1970, Niesen was informed of his selection by Ralph Magnusson, production superintendent, who discussed with Niesen the problem of lateness and absenteeism S Unless otherwise specified, all dates herein refer to the calendar year 1971. 4 Documentary evidence of record establishes the foregoing. 5 The foregoing is based upon a composite of the credited testimony of Earl Niesen and Michael Morrin and documents of record. 6 The foregoing is based upon the credited, and unrefuted testimony of Earl Niesen. T The General Counsel introduced documentary evidence assertedly supporting the testimony of Niesen. The General Counsel contends that the 753 among- the employees' and the high machine maintenance costs in the department. Niesen expressed his opinion that matters could be improved. A circular dated July 2, announcing Niesen's appointment as relief woodroom supervisor was circulated and posted on company bulletin boards. Niesen assumed his responsibilities on July 6, 1970. The work of employees in the department was directly supervised by foremen who reported to Niesen and Niesen, in turn, was responsible to the production superintendent .5 f. Niesen's supervisory efforts Shortly after assuming his duties as relief woodroom supervisor, Niesen called together the woodroom crews on each of the three shifts and spoke with them. He -instructed the crews to read the collective-bargaining agreement, advising them that the agreement would be enforced, with respect to absenteeism, lateness, and job performance. He further stated that he expected some changes in the future with respect to these and other related matters. He invited employee suggestions for improving the operation and stressed the need for teamwork, cooperation, and safety awareness. He observed that unless improvements were wrought there "was a good chance the entire operation would go down." 6 Niesen testified that in the months that followed his appointment, absenteeism and lateness decreased, pro- duction increased, overtime decreased and "downtime" for maintenance purposes dropped.7 g. The July 29 grievance meeting Pursuant to action taken at a regular meeting of the Union, the Union requested a mill managers' meeting for the purpose of discussing issues relating to the matters of "reprisal, seniority and harassment" involving Niesen's exercise of his duties as woodroom foreman. The meeting was attended by officials of the Company and the Union, including Michael Morrin, supervisor of personnel services of the Company, and Millard Lamb, an international representative of the Union. During the course of the meeting, the alleged bases for the employees' complaints were aired. Thus, a woodroom representative appearing in a representative capacity for the Union asserted that Niesen had stated there was going to be a job analysis and the union representative noted his apprehension over the application of seniority rules in the event of a reduction from a three-shift to a two-shift operation in the wood- room. Another employee representative of the Union accused Niesen of surveillance by sitting in his car on the road outside the mill. He added that he didn't think "anybody should be looking down [the employees ] throats in that manner." Additionally, another employee appear- ing as a representative of the Union at the meeting evidence introduced reveals a decline in the number of written warnings, suspensions, and terminations effectuated for lateness, absence, deficiencies in the performance of assigned duties, and other related reasons. However, the document on which the General Counsel relies is not susceptible of meaningful evaluation because it covers, with respect to the various types of personnel actions, time periods neither comparable nor identical in length. Moreover, in principal part, it does not permit a determination of the number of personnel actions of pertinent variety taken by Niesen during his tenure in his supervisory position. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contended that Niesen had "jumped him," over crashing a boom boat into logs. He asserted further that Niesen had forbidden employees to have oilcans underneath the boom shack where the employees rested. During the meeting, Lamb stated that he recognized that Niesen was "controversial" and had good points. Lamb stated that Niesen was a "diamond in the rough" and that management would have to take "the rough edges off." It was from this observation that the discussion of "seniority, harassment and threats" evolved. In accordance with established procedures, the Company responded in writing. The response of the Company, in pertinent part, was as follows: It was stated to management that in the Union's opinion the Woodroom problems are narrowed to three items, namely, reprisal, harassment and seniority. The company will not condone reprisal or harassment of its employees any more than the Union would condone reprisal or harassment of the company. I was pleased to note in this meeting that the Union made it very clear they did not condone retaliation on the part of their members toward the Company. Reference was also made that employees only receive their instructions from their foremen. Generally I would agree with this statement except that the supervisor must be able to communicate with his employees if he deems it necessary. Supervisors are expected to work with their foremen in evaluating the employee's work performance and discuss various problems that operators may have and help the operator solve whatever problems that may come up from time to time. The seniority was also discussed. The Labor Agree- ment in our opinion clearly sets forth the provisions to handle the various questions raised in this regard. 'Reference was also made to job analysis. It seems that there was some misunderstanding regarding the intent of this statement as used by Mr. Niesen. Again, Section 20 is very clear on this matter. The matters brought up in this meeting have received serious consideration by all concerned levels of management as we are desirous of a continuance of the harmonious labor-management relationship that has existed over the past two years. We are humans dealing with humans and there is no doubt that from time to time there will be differences of opinion. It is hoped that with goodwill and effort by both manage- ment and labor that these differences can be resolved for the satisfaction of all. The report was served on the Union in due course.8 2. The alleged unlawful conduct a. Walters and Niesen converse On February -2, employee George Walters spoke to Earl 8 The foregoing is based upon the credited and undisputed testimony of Michael Momn and the official minutes of the meeting. 9 The foregoing is based upon the credited and undisputed testimony of Earl Niesen. 10 It is conceded that Walters frequently wears a hearing aid and that the Niesen in Niesen's office. Walters claimed entitlement to 2 or 3 hours of compensation for time worked which had not been included in his last paycheck. Niesen instructed Walters to speak with his immediate foreman concerning the matter and Walters responded that he was going directly to the payroll department. Niesen asserted that company policy required Walters to speak directly with his foreman. Niesen invited Walters to speak with him again if the foreman did not resolve the matter satisfactorily. Thereupon, during the course of the conversation, Walters stated that he was entitled to an additional 30 minutes of overtime pay for time which he had spent in discussing the pay shortage matter with Niesen. Niesen disputed this, asserting that Walters had come voluntarily to speak with him and that Walters had done so after working hours.9 b. The February 3 incident On the morning of February 3, at approximately 8 a.m., Larry Judy, a shop steward of the Union, was waiting in the foreman's office adjacent to the office occupied by Earl Niesen. The foreman's office is separated from Niesen's office by a floor-to-ceiling partition. The entry door to the foreman's office is situated in a very proximate relationship to the entry door to Niesen's office. While Judy was waiting in the foreman's office, George Walters entered and requested that Judy go with him to Niesen's office to discuss with Niesen the matter of certain unpaid overtime. In the meantime, Niesen was engaged in his office in a discussion with Francis Eddy, pond foreman, and employ- ee Harlan Bacon on a separate grievance matter. After the Bacon matter had been disposed of and Bacon had left Niesen's office, Niesen beckoned Judy and Walters to come into his office. They did so and Eddy was present. Niesen thereupon asked Walters what he wanted and Walters renewed his claim for unpaid overtime. Additionally, he reiterated his asserted entitlement to 30 minutes' overtime compensation for time which he had spent in discussing the initial pay shortage with Niesen. Niesen became irritated and told Walters that he did not wish to discuss the matter further. He instructed Walters to leave his office, motioning with his hand in the direction of the door. Despite Niesen's instructions, Walters continued to pursue the matter, but Niesen arose from his chair situated behind his desk and went in front of his desk to where Walters was standing. In a loud voice and shaking his finger in Walters' face, Niesen instructed Walters to "get out." 10 Again Niesen motioned in the direction of the door. Walters remained and Niesen placed his hand on Walters' shoulder and pushed Walters 12 or 18 inches. Walters told Niesen not to push him, whereupon, with a backward motion of his arm, Niesen brushed Walters aside and opened the office door. He told Walters to "get the hell out" of the office. Judy intervened and told Walters that he should leave. Walters did so and Judy remained in the office." noise level is high in the work area contiguous to Niesen's office ii The foregoing is based principally upon the credited testimony of Larry Judy. I credit the testimony of Earl Niesen only to the extent that it is consistent with the foregoing findings. Specifically, I do not credit Niesen's testimony to the effect that Judy and Walters burst into his office uninvited SILVER BAY LOCAL UNION NO. 962 755 c. The February 5 mill managers' meeting On February 5, a meeting of the standing committee was convened in a mill managers' meeting. Present representing the Company were George Gouker, mill manager, and other representatives of the Company including Earl Niesen and employee Francis Eddy. Representing the Respondent were six individuals , including Jerry Turner and employees Larry Judy and Harlan Bacon. Turner opened the meeting and directed the attention of those in attendance to the February 3 incident which had involved George Walters and Niesen . Turner called upon Walters to explain his version of the incident , which Walters did. In the course of describing the occurrence , Walters stated that he had been physically thrown out of Niesen's office and that, prior to being ejected by Niesen , Niesen had used abusive language to him and had shouted at him. During the course of the meeting, Niesen gave his account of the incident wherein, in substance, he denied pushing Walters or speaking to him in other than conversational tones. Niesen conceded that he touched Walters but denied that he pushed him. Francis Eddy related his account of the incident which, in substance, confirmed that of Niesen. At the meeting, with respect to the alleged loud conversation which transpired during the course of the events of February 3, Niesen stated that because Walters is in need of a hearing aid, which he does not wear at work, and because of the noise level which normally pertains in the woodroom, he has developed a habit of speaking in a loud voice in order to be -heard . In substance, Niesen averred that any loud conversation during the course of the incident of February 3 derived from that set of circum- stances. As the meeting progressed, Turner stated that the Union wanted Niesen relieved from his responsibilities as wood- room supervisor. Gouker responded that he would give the Union his answer in writing within the 5 days allowed under the contract period. Turner responded that he hoped that it would not take "any five days" to give an answer on the matter.12 Thereafter, George Gouker, Lloyd Rice, personnel director, and Michael Morrin participated in the prepara- tion of a letter which was dated February 8. The letter was addressed to Jerry Turner. Turner was contacted by telephone and requested to come to the office to obtain delivery of the letter. The letter was delivered to Turner on February 8 at the mill.13 The letter read as follows: In view of the serious implications of the Union demand for settlement of the George Walters and Earl Niesen incident, and the Union's statement that the Company give an answer within the time limits less than provided by the Labor Agreement, the Company recommends that this grievance be referred to the next step in adjustment of complaints. As an alternative, the Department of Labor should be asked to investigate all facets of'this matter. d. The February 9 special meeting During the days following the Niesen-Walters incident, there was discussion among the employees concerning it. Jerry Turner, chairman of the Union's standing committee, became aware that a petition had been circulated calling for a special meeting of the membership to be held on February 9. The petition, bearing purported signatures of 10 unit employees, subsequently came to the attention of Turner. The caption of the petition read: "Strike vote Earl Nieson [sic] woodroom case. We would like to hold a special meeting on Tuesday, February 9." Separate meetings were held in due course on February 9.14 A total of approximately 210 individuals attended the meetings. Jerry Turner and Larry Loitz, a union member of the standing committee, were the principal speakers at the meetings. No representative of the International Union was in attendance. Approximately half of the meeting time 15 was spent in discussing the events involving Niesen and Walters which had given rise to the meeting. In speaking to the employees at the meetings, Turner, in substance, informed-the employees in attendance of the status of discussions between the Union and the Company and, in so doing, stated that the Company had the impression that only a small group of employees was seeking Niesen's removal from his supervisory position. Turner suggested that a strike vote be taken in order to demonstrate to the Company that the "entire body" was supporting hum in his negotiations on the matter. Although Turner stressed the desirability of a vote of strengh to demonstrate backing for the union members of the standing committee, he discounted, in his comments to the membership at the meetings, the likelihood of an actual strike and discouraged actual resort to a strike. Turner during the course of his discussion with Bacon. The testimony of Judy lends no support to this aspect of Niesen's testimony and, indeed, Niesen initially testified that Judy and Walters entered his office after the discussion with Bacon had been completed . I find it unlikely that Walters , having sought the aid of Judy, a shop steward who was awaiting his turn to speak with Niesen on official business , would have acted as impulsively as Nresen depicts in entering Niesen's office. Rather, on this score, I find Judy's testimony the more plausible. Moreover, I am unable to credit Niesen's version of the extent to which he made physical contact with Walters. I am convinced that Judy accurately recounted the nature of this contact and that Niesen, angered by Walters' recalcitrance and insistence upon overtime compensation which Niesen considered unjust, acted in a more vigorous manner than his accounting of the incident would indicate Further, I am convinced that any dialogue which Nresen had with Judy after Walters was evicted from the office transpired with Judy alone as a preliminary to the discussion of the substantive aspects of the separate grievance with which Judy was principally concerned. I am convinced, contrary to Niesen's testimony, that Walters was not present during this latter phase. 12 The foregoing is based upon the credited and undisputed testimony of Earl Niesen and Michael Mornn The testimony of Niesen and Mornn gains support from the official minutes of the February 5 meeting. 13 Jerry Turner testified that he received the February 8 letter at the plant but was uncertain as to when he received it. He conjectured that he received it before the evening of February 9 The record reveals that under normal procedure it would have been hand-delivered on February 8 14 Two meetings were held to accommodate employees on the swing shift. is The meeting attended by the largest number of employees lasted approximately 2 hours 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made no specific recommendation to the group as to the manner in which they should vote.16 Turner testified that he had not contacted or consulted any International representative concerning the matter of the strike vote. Moreover, Turner testified that he had not sought strike sanction from the International prior to the strike vote on, February 9. Millard Lamb, International representative of Respon- dent, testified that he possessed no authority to grant strike sanction to the Local. He further testified that at approximately the time in question he was scheduled to go to Sitka on a grievance matter pertaining to a discharge. Enroute to Sitka from a previous location, he stopped over at his residence and was informed by his wife that Jerry Turner had called by telephone and had mentioned that a special meeting of the Local was to be held. Lamb testified that that was the extent of his information concerning the special meeting when he arrived at Sitka on February 10. Lamb 'testified further that the Local had not taken the necessary steps to obtain strike sanction from the Interna- tional and to gain authorization to actually engage in a strike authorized under the provisions of the Respondent's constitution and bylaws.'7 e. The strike rumors In the meantime, on the evening of February 8, Michael Morrm received a phone call from Bill Winnop, a yard supervisor, who informed him that he had heard rumors to the effect that there was going to be a strike vote taken by the Union over the Niesen incident. Thereafter, Morrin contacted Lloyd Rice, personnel director, and transmitted Winnop's intelligence to Rice. The following morning Morrin went to the security office at the plant and observed two separate notices posted in the vicinity of the timeclock. These notices, in substance, related to a special meeting of the Union to be held at separate hours and at separate meeting halls for the purpose of "strike vote -woodroom case." i8 f. Turner and Rice converse Thereafter, on February 10, Turner went to the office of Lloyd Rice to confirm the third-step grievance meeting which had been scheduled for February 11. In conversing with Turner, Rice asked Turner how the meeting had gone on the previous night. Turner responded, in substance, that the meeting had gone "about as expected." Rice then asked, "When is this to take place?" Turner stated that he had a grievance to file on the matter and as a consequence of this, Rice and Turner set a time for a meeting to be held on February 11.19 g. The February 11 meeting On February 11, representatives of the Company and the Union met in a meeting which lasted virtually the entire 16 The foregoing is based upon a composite of the testimony of Jerry Turner, Bernard McCoy, Wesley Brown, and Larry Judy. With respect to the substantive aspects of the meetings, I credit the testimony of McCoy, Brown, and Judy, which is mutually corroborative in salient aspects. 17 The testimony of Lamb and documents in evidence establish that the membership of Respondent had not complied procedurally with the day. The purpose of the meeting was to discuss the Niesen matter. Present representing the Company were Clarence Kramer, administrative assistant to the resident vice president; Lloyd Rice, personnel manager; Michael Mor- rin, assistant personnel manager; and Ralph Magnusson, production superintendent and Niesen's immediate superi- or. Present representing the Union were Millard Lamb, International representative; Jerry Turner, Larry Loitz, and Glen Harriman. As the meeting convened and the representatives took their respective places at the confer- ence table, Kramer asked Rice to show Lamb the photographs which had been taken of the strike notice which had been posted in the timeclock area in the plant. Rice did so, and, after the photographs had been passed around, Kramer said, "This is a hell of a way of starting to negotiate, with a strike vote hanging over your head. What type of negotiations is this?" In response, Lamb stated that he didn't like a strike, but the men wanted to get the matter settled and that the strike vote was the only way they could handle it. Lamb added that Niesen's situation had reached a point where something had to be done. He denied that the Union was trying to tell the Company who they could hire, but said that the Union represented the employees with respect to wages and working conditions and, therefore, had a legitimate interest in the matter. Lamb observed that Niesen had a' lot of talent but not as a woodroom supervisor. Lamb further asserted that Niesen had had 6 months to adjust to his job and that he didn't seem able to handle it. He said that the Local Union had gone along with the Company's selection of Niesen for the supervisory position. Lamb stated, however, that Niesen's nature had been the same for a long time and asserted that he was not going to change. He urged that the parties not argue whether or not the Union could strike but endeavor to settle the "real issue." During the morning as the meeting proceeded, the Union took the position that the Company must do something to curb the violent propensities of Niesen. The Union further stated that it did not want Niesen to have any direct contact with employees which it represented. The Compa- ny, on the other hand, took the position that it was obliged to defend not just Niesen but all supervisors and their right to supervise. After the meeting had progressed for some time, the representatives of the Company met separately in a caucus. As a consequence of discussions, the Company made the following written offer which it presented to the Union at approximately 2 p.m. on the afternoon of February 11: The Company makes the Union the following offer in settlement of this grievance. The Company will place a senior member of manage- ment in the woodroom for a period of time to determine that Mr. Niesen's performance is acceptable. In addition, the Company will arrange to have Mr. Niesen attend a supervisory training course. The Company does not condone harassment or provisions governing authorized strike activities. is The foregoing is based upon the credited and undisputed testimony of Michael Morrin. is The foregoing is based upon the credited and undisputed testimony of Jerry Turner. SILVER BAY LOCAL UNION NO. 962 757 intimidation by its supervisory personnel and will work with the Union in any reasonable manner so that differences can be resolved to the satisfaction of all. After studying the Company's offer and after learning that the supervisory training course which the Company had in mind was, one being offered at a nearby university and one which would encompass 1 week of training, the Union indicated skepticism of the value of the course. In explanation of its position, union representatives noted that, at an earlier time when Niesen was serving as a representative of the Union, he had personally shown disdain for a similar course which the Company was proposing for the training of another supervisor with respect to whom the Union had leveled criticism. As the discussion proceeded, Lamb stated that he doubted the value of a 1-week course and asked if there were not other schools which provided a more lengthy training course. Thereafter, at approximately 2:45 p.m., the Union submitted a written reply to the Company's proposal. The reply read as follows: The Union accepts the Company's proposal as a sincere effort to resolve our joint problems with Mr. Niesen. However, the Union is firmly convinced that a one-week supervisory training will not correct his deep- rooted belief that the answer to all questions is physical violence. We concur with the Company's suggestion to place a senior member of management in the woodroom for a period of time to determine when Mr. Niesen's performance is satisfactory. In fact, this period of time for observance should be in effect until the parties jointly agree such observation is no longer necessary. The Union's position, at this moment, is progress has been made but it is still necessary for the parties to consider some other proposal. As the discussion proceeded during the afternoon, Kramer, on behalf of the Company, advised the Union that on a previous occasion when the Union had objected to the conduct of a supervisor, the supervisor had been enrolled in a training course and had benefited thereby to the extent that the Union leveled no further complaints against him. As a consequence, Kramer stated he felt that the Company was making a valid offer to the Union. Lamb responded that he was pleased to learn of the progress with respect to _ the other supervisor but expressed doubt whether a similar training course would be of value to Niesen. He stated that he did not feel that Niesen was capable of changing. Kramer insisted that Niesen had shown great improvement and Lamb conceded that this had been so. He asserted, however, in substance, that he 20 The foregoing is based upon a composite of the credited testimony of Michael Morrm and Millard Lamb. I have also considered the documents in evidence which represent notes taken by rhpresentatives of the Company and the Umon during the course of the meeting. I have evaluated them for their impeachment value. However, the notes were not verbatim and I place no reliance upon them in finding facts concerning the meeting which were not substantiated testimonially . In this regard, it is noted that Millard Lamb and Jerry Turner, principal union participants, were called as witnesses but were not interrogated extensively by Respondent's counsel concerning the details of the meeting. I do not credit the testimony of Moran to the effect that, in the opening stages of the meeting, Lamb stated that the Union did not care whether the strike was legal or illegal or whether it accorded with the contract. The notes taken by Lloyd Rice, a representative of the doubted that Niesen's propensity for physical violence could ever be sufficiently curbed. Kramer insisted upon union documentation of instances of violence by Niesen as a supervisor on plant premises. The Union offered no such documentation during the course of the February 11 meeting. As the discussion pursued, Kramer stated, "Well, you might as well write it down that you are going to give us 72 hours and shut it down." Lamb responded, in effect, that the Union had given the Company the chance to solve the Niesen problem. Lamb reiterated that the Union did not want Niesen in contact with any of the "union employees." The parties agreed that they would meet again the following day.zo h. The meeting of February 12 A meeting was held as scheduled on February 12. In addition to those present at the February 11 meeting were employees Kenneth McCoy, Bernard McCoy, Dave Baker, and Wes Brown. Lamb opened the meeting with a statement that he had present with him four employees who would describe incidents involving Niesen which they had observed and which would reveal that Niesen was a violent person. Thereupon, Wes Brown described an incident wherein Niesen and his companion, Ron Thom, were shooting pool when Niesen and Thom ejected a young man who had either whistled or called out to a girl who had walked by the backdoor of the poolroom. The young man whom Niesen and Thom had ejected later returned with some friends, but an altercation was avoided. Brown's account of the incident was supported by the description of the same incident given by Dave Baker. Thereafter, Bernard McCoy described an occasion when Niesen had been called "outside" by another individual and had engaged in a fight and had subdued his opponent. McCoy further asserted that although Niesen had accom- plished what he had set out to do he "continued to beat on [his opponent]." Kenneth McCoy was the last employee at the meeting to describe an incident involving Niesen. McCoy asserted that he had been called a vulgar name by Niesen and observed that he did not think that this was proper conduct on the part of a supervisor. The Union also informed the company representatives that a young woman had been contacted who was on her way to the plant to recount an act of violence involving Niesen which she had observed. Kramer responded, in substance, that this would be unnecessary as it did not involve conduct at the plant during worktime. The incidents referred to by the employees in their Company, contain no such specific reference and the notes taken by Larry Loitz, a union representative, are similarly devoid of any such specific reference. I find, rather, on this score that the response which Lamb made was as above found. In a similar manner, I am unable to credit the testimony of Lamb that dunng the afternoon portion of the meeting he, or any other representative of the Union, stated in terms, or as a counterproposal , the Union's unqualified willingness to consider the Company's proposal concerning a training course for Niesen if the course were of longer duration. The notes of the meeting which are in evidence do not lend support to Lamb's testimony in this regard and Momn's testimony is not, in this respect, supportive. 75l DECISIONS OF NATIONAL LABOR RELATIONS BOARD respective accounts transpired at various times from 3 to 6 months prior to the February 12 meeting. After the employees had finished their descriptions of the alleged events involving Niesen, the Company caucused. Thereafter, upon returning to the meeting room, Kramer presented the Union with a written proposal. The proposal was as follows: The Company withdraws its offer of February 11, 1971 and in its place makes the following offer: From this point forward there will be no direct contact between E. Niesen and Woodroom and Log Deck hourly personnel except through the Woodroom foremen. This procedure will be confined to this situation only until conditions return to normal. Upon being presented with the proposal, Lamb studied it. He then stated that the proposal would not work and added, "We don't want Mr. Niesen in any contact with our people, whatsoever." He then passed the document containing the Company's offer to Turner who stated that it was "not going to work." Turner added, "We don't want him here." Lamb interjected, "We do not want Bud Niesen anywhere near our people in this mill. We don't care what you find for him, if you want to put him out on Buco Point counting chip barges, that's all right with us but that's as close as we want to see Mr. Niesen to the union people in this mill." 21 Lamb further stated that he objected to the Company's proposal because it was more unilateral in character than the Company's initial proposal. In this regard, Lamb referred to the indefinite character of the term "until conditions return to normal." At this point in the meeting, the Company again caucused. After a discussion among members of management, Kramer met with Lamb. Kramer and Lamb met together in Kramer's office pursuant to a request which Kramer initiated. Kramer commenced the conversation with Lamb by stating his "shock" at Lamb's involvement in "an illegal procedure" and asserted that the matter was going to "haunt" Lamb for a "long time." Kramer stated that management was going to give in to the Union's request. He said that this was being done because the Company would not "take a strike" and that "if we contact Tokyo that we're faced with work stoppages," Tokyo would instruct management to discharge anyone in the mill that might be causing the stoppage. Kramer stated that Niesen would be terminated today. Lamb responded, "That will take care of that." Kramer thereupon asked Lamb to intervene in order to persuade George Walters to dismiss or withdraw the charges which Walters had filed against Niesen with local authorities. Lamb gave Kramer assurances that he would 21 Buco Point overlooks a bay and is situated approximately one quarter of a mile from the entrance to the null. It is an area where no work activity is earned out. 22 The foregoing findings with respect to the substantive aspects of the convened meeting of February 12 among the representatives of the Company and the representatives of the Union is based principally upon the credited testimony of Michael Moron, as supported by that of Ralph Magnusson and Lloyd Rice. The findings with respect to the meeting between Kramer and Lamb during a recess in the meeting is based principally upon the testimony of Clarence Kramer I credit the testimony of Millard Lamb with respect to the two events only to the extent that it is consistent with the aforesaid findings. Specifically, I credit the testimony of Morrin and reject the denial of Lamb to the effect that during the course of speak with Walters and that from prior consultation with Walters the outlook was "very hopeful." Thereafter, the meeting between the representatives of the Company and the Union reconvened. Kramer asked Lamb if he had informed the union representatives of the decision which management had reached. Lamb stated that he had told the "union people" that Niesen would no longer be working at the mill. A document dated February 12, executed by Kramer and Lamb, was circulated at the reconvened meeting. Under the caption, "G. Walters-E. Niesen Incident" was set forth: "Mr. Kramer and Mr. Lamb announce jointly that this matter has been re- solved." 22 Kramer testified that he did not personally contact the Japanese owners of the Company in Tokyo concerning the Niesen matter. However, he testified that daily correspond- ence was conducted concerning the matter and that there was contact with Tokyo through Seattle counsel and the Company's executive office. i. Niesen terminated In the early afternoon of February 12, Niesen was called to the mill manager's office and informed of his termina- tion. In addition to the mill manager and Niesen, present were Kramer, Morrin, Rice, and Magnusson. Kramer recounted to Niesen the efforts which the Company had undertaken in discussions with the Union to resolve the matter short of termination. Kramer added, however, in effect, that because of underlying considerations and the Union's position with respect to Niesen that the Company had decided to terminate him.23 Michael Morrin and Clarence Kramer testified that at no time during the meetings with Lamb on February 11 or February 12 did Lamb, in terms, demand that Niesen be terminated. This coincides with Lamb's testimony. Conclusions In agreement with the General Counsel, I find that Respondent violated Section 8(b)(1)(B) of the Act by achieving the removal of Earl Niesen from his supervisory position through a strike threat. The record establishes, and I find that, at material times, Niesen possessed authority to adjust employee grievances. The evidence of record reveals that, prior to the events pertinent herein, Niesen had achieved certain notoriety in the community and among his fellow employees as an individual with a propensity for engaging in physical altercations. His reputation was gained in encounters away from the plant and, until February 3, no employee in the the principal meeting Lamb made reference to placing Niesen on Buco Point. Moron's testimony on this score is supported by that of Magnusson and Rice. Further, I reject Lamb's truncated version of the separate meeting or conversation between him and Kramer which punctuated the principal meeting. I was impressed by the demeanor of Kramer as a witness and am convinced his accounting of the incident was factual. On the other hand, Lamb impressed me as evasive in this aspect of his testimony and I do not credit his version of the manner in which the meeting commenced and the extent of Kramer's statements to him during the opening phases of their conversation in Kramer's office. 23 The foregoing is based upon the credited and undisputed testimony of Earl Niesen. SILVER BAY LOCAL UNION NO. 962 plant had been thus involved with Niesen, and there had been no in-plant, worktime incidents. The Niesen-Walters incident of February 3 was the catalyst giving rise to the events which presaged and culminated in Niesen's termination. Respondent concedes that the February 3 brush between Niesen and Walters was innocuous in its own right. But Respondent contends, with validity, that the encounter must be assessed against the backdrop of Niesen's established reputation for violence. It is Respondent's contention that the employees learned of Niesen's encounter with Walters and decided to draw the line. It is Respondent's view also that the strike vote culminated from a crescendo of employee concern and from a desire to display a united front to the Company. That the February 3 incident was the catalyst for subsequent action is clearly established. That the Respon- dent through its agents resolved early in the affair to demand Niesen's removal from his supervisory post is shown by Turner's declaration at the mill managers' meeting of February 5 to the effect that the Union wanted Niesen relieved of his supervisory responsibilities in the woodroom. Despite the gloss which -Respondent attempts to attach to the special meeting of the union membership held on February 9, it seems readily apparent that the meeting was called by authority of the Local pursuant to notice which was posted at the plant in customary places. Officers of the Local attended, presided, and were principal speakers. These officials urged and officially endorsed the strike vote, although the necessity or likelihood of actual, ultimate resort to a strike was discounted. It may fairly be concluded, in the circumstances, that the actions of the membership at the special meeting had the imprimatur of regularity and the stamp of approval of the officers of the Local. It necessarily must be concluded that, with respect to the aftermath of the meeting, no efforts were taken by the Local to maintain secrecy concerning the results of the affirmative strike vote achieved at the meeting. Indeed, it is apparent from the record that officers and representatives of the Local knew and expected that the Company would become aware of the vote, for Turner, the principal union functionary involved in guiding the meeting, stated prior to this strike vote that he wanted the Company to know that he had the support of "the entire body" in his negotiations. The vote was to be "a show of strength." Against this backdrop, it is not significant that Respondent undertook no effort to publicize the results. It was foreseeable that the results would become known; the vote carried the attributes of its own publication. It was in this framework that grievance negotiations ensued and the International, represented by Millard Lamb, entered the picture. The events of February 11 and 12 were characterized by two principal features: The demand of the Respondent that Niesen be removed from supervision of employees in the plant and the tenacious refusal of Respondent ever to deny the efficacy of the strike vote. The early "willingness" of Respondent to permit the Company to enroll Niesen in a training course and to subject him to a period of supervisory oversight proved to be nothing more than tactical window dressing. Respondent rejected these proposals after giving them lip 759 service, offering only an alternative which vested it with an equal voice in determining the duration of the supervisory oversight to which Niesen would be subjected in the conduct of his own responsibility as foreman of the woodroom. This attempt by Respondent at gaining a veto power in an area of management prerogative was not, one calculated to resolve the issue amicably. The Respondent must have known it was one which the Company would not countenance. It is, of course, factitious to argue as Respondent does that Respondent did not seek to dispose of Niesen but merely to create a buffer between him and the rank-and- file who, in any event, had initial, firstline contact with their own immediate foremen, and not Niesen. To so artificially delimit and curb the exercise of supervisory responsibility is to effectively erode supervisory authority. Respondent's assertion appears to be but a rehash of arguments advanced at the July 29 grievance meeting wherein attacks upon Niesen's authority as a supervisor were aired. There the Company correctly highlighted the necessity of the right of supervisors to communicate with their employees. But, in any event, the record is clear that Respondent sought the physical isolation of Niesen, as well as communicative isolation. This is clearly established through the demands of Lamb and Turner at the February 11 and 12 meetings. "Respondent intended Niesen to vegitate. No more effective means for neutralizing supervi- sory influence could be devised short of actual termination. Respondent recognized that the Company would not retain an anomaly but would, in the nature of things, terminate Niesen as surplusage rather than retain him in an unproductive capacity. Realistically viewed, it is apparent that the Respondent entered the grievance meetings with the fixed purpose of requiring the Company to remove Niesen from his supervisory assignment. While professing a conciliatory attitude, Respondent maintained a fixed course, never overtly threatening strike action, always carefully avoiding assurances to the Company that the Niesen matter could be settled without a strike. In the circumstances, it is not significant that no strike threat was uttered. It was implied and the implication was unambiguous. That strike sanc- tions had not been obtained from the International does not significantly affect the matter. The Company had previously experienced an unauthorized work stoppage; and Lamb, the International representative, resolutely refrained during the 2 days of meetings from ruling out the possibility of a strike. By remaining constant in its demand for the removal of Niesen, by rejecting company offers designed to resolve complaints against Niesen's attitude as a supervisor, by failing to offer reasonable avenues of solution and by eschewing opportunities to disclaim strike intentions, Respondent left the Company with no alterna- tive for peacefully resolving the Niesen matter. As a consequence, the Company took the only course open to it short of a strike to accede to Respondent's demand. It terminated Niesen. Accordingly, I find that the Company discharged Niesen from his supervisory post at the insistence of- Respondent 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and in realization of the strike threat for'which Respondent was responsible, and which was efficacious. It is well settled that strike pressure by a labor organization and threats to engage in a strike for the purpose ofs influencing an employer in his choice of a bargaining or grievance processing representative consti- tutes coercion within the meaning of Section 8(b)(1)(B) 24 In Local 423, the Board observed: A threat directed to an employer to shut down a job unless the employer complies with a union demand to remove a supervisor and its "representative" from the job is the most obvious kind of statutory coercion. The General Counsel properly observes that it is the threat of a strike and not its actual fruition that determines the violation.25 It is the contention of the General Counsel, as I comprehended it, that, given the strike threat and Respon- dent's termination demand in positive terms, a violation of Section 8(b)(1)(B) of the Act is established. However, the Respondent by way of affirmative defense26 contends that its conduct was not directed at Niesen's supervisory status but solely to his resort to violence, and that its protest constituted legitimate protected activity not proscribed by the Act. The General Counsel asserts, however, that the strike threat itself renders Respondent's conduct so unreasonable in law as to vitiate its affirmative defense. Alternatively, the Respondent avers that Respondent's motive in seeking Niesen's removal was solely related to his efforts on behalf of management to "tighten the running of the woodroom" and that its protest relating to violence was groundless and a mere cloak. In cases arising under Section 8(b)(1)(B) of the Act, the Board has scrutinized the record to determine the character of supervisory conduct against which the union was protesting in demanding, in whatever manner, the removal, reassignment, or discipline of a supervisor.27 Thus, in Laborers, Local 423, threatening a strike, the union demanded the removal from the jobsite of a supervisor who had directed a change in the method of performing certain on-site work. The Board assessed the evidence and made the specific finding that in reaching the decision against which the union had protested the supervisor had been engaged in a supervisory act. The Board found the threat by the union to shut down the job to obtain the foreman's removal coercive and violative of Section 8(b)(1)(B). This analytical process of evaluating the character of the supervisory conduct against which a union is directing its strike threat is not the equivalent of one designed to determine whether the employees in demanding removal or termination of a supervisor are engaged in protected, concerted activity in the Section 7 sense. The two concepts are independent and stand alone. The Board's recent 24 Local 423, Laborers' International Union of North America, AFL-CIO (Mansfield Flooring Co, Inc, d/b/a Columbus Cement Floors), 195 NLRB No. 35, International Typographical Union, 86 NLRB 951, United Slate, Tile & Composition Roofers, Damp & Waterproof Workers Association, Local No. 36 (Roofing Contractors Association of Southern California, Inc.), 172 NLRB 2248; Painters District Council No. 36, AFL-CIO, and Commercial Drywall Constructors, Inc, 155 NLRB 1013. 25 International Typographical Union, supra. 26 1 have rejected Respondent's principal defense that no strike threat decision in Cubit Systems Corporation, 194 NLRB No. 87, adds nothing of importance here that was not established in N. L. R. B. v. Phoenix Mutual Life Insurance Co., 167 F.2d 983 (C.A. 7). In Phoenix, it was held that the Section 7 right of employees to engage in concerted activities for their mutual aid or protection included the right of employees to endeavor by a written document to influence management in the choice of their supervisor. In reaching this conclusion, the court in Phoenix stated: "Conceding they [the employees] had no authority to appoint [a supervisor] or-even recommend anyone for the appointment, they had a legitimate interest in acting concertedly in making known their views to management without being discharged for that interest." The Board's decision in Laborers; Local 423, supra, derogates neither from Phoenix nor Cubit. Neither Phoenix nor Cubit involved a strike threat and in Laborers, Local 423, the Board merely found that the union's resort to coercion in order to dictate the employer's choice of a grievance representative was proscribed. I do not view this as a proscription against legitimate concerted activity. The Board amplified: Schunatz [the foreman ] was engaging in a supervisory act when he assigned to himself the job of unloading buggies and plywood from the truck. Section 8(b)(1)(B) bars the Union from using coercive tactics to secure a supervisor's removal from the job for such conduct. That does not mean that the Union was powerless to prevent Schunatz from performing work in violation of the collective-bargaining contract. It could file a grievance, as it did; it could sue for breach of contract; it might also strike in protest against the foreman's performing manual labor unless striking was prohibited by the contract; but it could not insist by coercive means that the Company remove him entirely from the job as its representative. [Footnote citations deleted.] In other words, although the objective sought by the union in Laborers, Local 423, may have been legitimate, as the Board inferred it was, coercive tactics were nonetheless proscribed when those tactics were used in order to dictate the choice of a bargaining or grievance representative. In the instant case, one might reach the conclusion that the Respondent was engaging in protected Section 7 activity in demanding Niesen's dismissal in order to protect the future physical well-being of employees presently supervised by him. However, to so find, is not to grant validity to Respondent's contention that the complaint must be dismissed. I reach this conclusion because I am convinced that the February 3 encounter between Niesen and Walters arose from and was an integral facet of Niesen's exercise of supervisory authority to discuss, process, and resolve employee grievances. It is clear that Walters was present in Niesen's office on February 3 in furtherance of his claim to was advanced and no demand for Niesen's termination was articulated by the Union. 1 27 Local 423, Laborers ' International Union of North America, AFL-CIO (Mansfield Flooring Co., Inc., d/b/a Columbus Cement Floors), supra; Sheet Metal Workers' International Association, Local Union 49, AFL-CIO (General Metal Products, Inc.), 178 NLRB 139, 141; New Mexico District Council of Carpenters and Joiners of America (A. S. Horner, Inc.), 177 NLRB 500. SILVER BAY LOCAL UNION NO. 962 overtime compensation. It is reasonably to be inferred from the evidence as a whole that Niesen's agitation with Walters was over the assertedly invalid character of Walters' overtime demands. The minor pushing incident evolved directly from Niesen's efforts to terminate a grievance discussion which he concluded lacked merit. The means which Niesen used in seeking to end the discussion was, of course, improper, but it was innocuous and hardly sufficient foundation for strike action.28 It was closely related to Niesen's supervisory responsibility to process grievances. In these circumstances, and without attendant considerations, given the strike threat and the entire context of Niesen's behavior towards Walters, the General Counsel, in my view, has adduced evidence sufficient to sustain the allegations of the complaint. Additionally, however, the record convincingly establish- es that the early resentment against Niesen for his efforts to tighten up and improve the woodroom operation continued to smolder among the employees in February. The Walters incident accorded the employees the opportu- nity for contesting Niesen's authority. To lend ballast to their effort they seized upon Niesen's purported reputation as a town bully. For documentation the employees relied upon two separate events which involved neither unit employees nor work-related causation. These were the incidents recounted to the membership prior to the strike vote of February 9 and were the incidents repeated at the February 12 grievance meeting between the Union and the Company. Significantly, Niesen's 1969 assault and battery conviction was not stressed, and no emphasis was placed upon other asserted violent conduct of Niesen. The incidents related at the February 9 meeting for employee consideration clearly were not of a character or severity to warrant the conclusion that the unit employees were placed in fear of imminent or foreseeable physical danger either at the mill or away from it.29 This being so it may not be concluded that on and after February 9 conditions existed which required the employees or Respondent to resort to extraordinary protective measures . As in Laborers; Local 423, other avenues were open to Respondent which rendered its insistence by coercive means upon Niesen's removal from his supervisory position unlawful. In light of the integral relationship between Niesen's exercise of supervisory authority and his improper but innocuous use of physical force to terminate the grievance interview with Walters; the absence of imminent or foreseeable danger to the physical well-being of unit employees; and the channels open to Respondent to pursue other solutions short of a coercive strike threat to resolve any grievances the employees might have had against Niesen, I find, in analogy to Laborers', Local 423, 28 I reject as devoid of foundation Respondent's suggestion that Niesen may be found to have forfeited his rights under the Act by reason of his conduct toward Walters. The right protected by Sec. 8(bXIXB) of the Act is the employer's right to be free of union coercion in the selection of his collective-bargaining or grievance processing representative. 29 Indeed, it is to be remembered that the events pertinent herein occurred among individuals employed in a frontier community in a vocation or occupational process which, through the random operations of the laws of natural selection , tend to screen out the timid or faint of heart. 30 Factually inapposite and without controlling the effect herein is Carpenters District Council of Sabine Area and Vicinity (Miner-Dederick Construction Corporation), 195 NLRB No. 28, cited by Respondent as 761 that Respondent violated Section 8(b)(1)(B) by coercing the Company to replace Niesen as its representative for resolving grievances.30 In the circumstances of this case, given the strike threat, the Respondent's conduct is not excused because it did, in fact, engage in grievance discussions with the Company concerning Niesen and because ultimately the Company terminated Niesen's employment as a supervisor.31 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Company set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Company terminated the employ- ment of Earl Niesen from his supervisory position in the woodroom in sole and direct response to a strike threat for which the Respondent was responsible, and having found that, as a consequence, Respondent did thereby violate Section 8(b)(1)(B) of the Act, I shall order that Respondent cease and desist from such unlawful conduct and post appropriate notices. I shall further order Respondent to make whole Earl Niesen for any loss of earnings he may have suffered by reason of his termination resulting from the unlawful conduct of Respondent found herein. Backpay shall be computed on a quarterly basis in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest in accordance with the policy of the Board set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Alaska Lumber and Pulp Co., Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Silver Bay Local Union No. 962, International Brotherhood of Pulp, Sulphite and Paper Mill Workers, determinative of the issues herein . However, here, contrary to Carpenters, Niesen was the supervisor of the employees who sought his removal ; Niesen had substantial supervisory authority over the employees; and he was engaged in a supervisory act for which Respondent threatened a strike. In the circumstances, I do not consider myself bound by the dictum contained in the Trial Examiner's Decision to the effect that the test of whether the attempt to remove a supervisor or to otherwise discipline him violates Sec. 8(b)(I)(B) turns "more on the Union's motivation" and is determined by whether his removal or discipline is sought because of his supervisory conduct or for some other reason. 31 Local 423, Laborers' International Union of North America, AFL-CIO, supra. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By demanding, upon threat of strike action, that Alaska Lumber and Pulp Co., Inc., remove Earl Niesen from his supervisory position in the woodroom, Respon- dent restrained and coerced an employer in the selection of his "representative for the purposes of collective bargain- ing or the adjustment of grievances," in violation of Section 8(b)(1)(B) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 32 ORDER Respondent, Silver Bay Local Union No. 962, Interna- tional Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, its officers, agents, and representa- tives, shall: 1. Cease and desist from restraining and coercing Alaska Lumber and Pulp Co., Inc., in the selection of its representatives for the purpose of collective bargaining or the adjustment of grievances. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Notify Alaska Lumber and Pulp Co., Inc., in writing, with a copy to Earl Niesen, that the Respondent has no objections to Earl Niesen's employment as woodroom supervisor in the Sitka, Alaska, facility of the Company, or in any other supervisory position. (b) Make whole Earl Niesen in the manner set forth in the section of this Decision entitled "The Remedy." (c) Post at its business office and meeting halls copies of the attached notice marked "Appendix." 33 Copies of said notice, on forms provided by the Regional Director for Region 19, shall, after being duly signed by an official representative of the Respondent, be posted by it immedi- ately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail or deliver to the Regional Director for Region 19 signed copies of the attached notice marked "Appen- dix" for posting by the Company, if willing, in places where notices to employees of the Company are customari- ly posted. (e) Notify the Regional Director for Region 19, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith.34 32 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 33 In the event that the Board's 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 be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals enforcing an Order of the National Labor Relations Board." 34 In the event that this recommended Order is adopted by the Board, after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 19, in writing , within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain or coerce Alaska Lumber and Pulp Co., Inc., in the selection of representatives chosen, or likely to be chosen, for the purposes of collective bargaining or the adjustment of grievances. WE WILL notify Alaska Lumber and Pulp Co., Inc., that we have no objection to the Company employing Earl Niesen as supervisor of the woodroom, or in any other supervisory capacity. WE WILL make whole Earl Niesen for any loss of earnings he may have suffered as a result of our unlawful conduct which caused Alaska Lumber and Pulp Co., Inc., to terminate Earl Niesen from his supervisory position in the woodroom. SILVER BAY LOCAL UNION No. 962, INTERNATIONAL BROTHERHOOD OF PULP, SULPHITE AND PAPER MILL WORKERS, AFL-CIO (Labor Organization) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 10th Floor, Republic Building, 1511 Third Avenue, Seattle, Washington 98101, Telephone 206-442-5692.