P & L Cedar Products

244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Phyllis Whitehead d/b/a P & L Cedar Products and Rex Holmgren and Linda Stalcup Port Angeles Shingle Weavers Local 2555 of United Brotherhood of Carpenters and Joiners of America, and its Successors and Rex Holmgren and Linda Stalcup Washington-Oregon Shingle Weavers District Coun- cil of United Brotherhood of Carpenters and Join- ers of America, and its Successors and Rex Holm- gren and Linda Stalcup Cases 19-CA-7487, 19- CB-2377, and 19-CB-2467 May 28, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On February 3, 1976, Administrative Law Judge Jerrold H Shapiro issued the attached Decision in this proceeding Thereafter, Respondent Employer filed exceptions and a supporting brief, and General Counsel filed cross-exceptions and an answer to Re- spondent Employer's exceptions Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge to the extent consistent herewith and to adopt his recom- mended Order, as modified herein The Administrative Law Judge found it unneces- sary to decide whether the discharges involved herein were motivated in part by Stalcup's presentation to Respondent's owner Phyllis Whitehead of a list of alleged safety code violations, and because Stalcup and Holmgren met with other employees to elect a shop steward We find merit in the General Counsel's exceptions to the Administrative Law Judge's failure to find that Respondent was also mo- tivated by these additional considerations when it discharged Stalcup and Holmgren i The Respondent Employer has excepted to certain credibility findings made by the Administrative Law Judge It is the Board s established policy not to overrule an Administrative Law Judge s resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products Inc, 91 NLRB 544 (1950), enfd 188 F2d 362 (CA 3, 1951) We have carefully examined the record and find no basis for reversing his findings 2 The Administrative Law Judge found that Emporium Capwell Co v Western Addition Community Organization, 420 U S 50 (1975), was not ap- posite Member Jenkins agrees, but does not accept the Administrative Law Judge s characterization of that decision During the morning of December 11, 1974, Stal- cup presented a list of alleged safety violations to shop steward Jenny and to Whitehead Within 2 hours of this event, Stalcup and Holmgren were dis- charged Additional motivation for the discharge of Stalcup is clear from the statements made at the time Stalcup presented the list to Whitehead Allen White- head, the owner's husband, told Stalcup that she had "no business giving me anything like this " John Wilkerson, who was apparently acting as foreman, added, "There are enough people out of work who are looking for work that we don't have to put up with this kind of stuff from you " The above state- ments were made in the presence of owner White- head Since Stalcup's presentation of the safety list is protected by the Act,' we find that to the extent her discharge was motivated by that conduct, Respon- dent Employer violated Section 8(a)(1) 4 The termination slips given to Stalcup and Holm- gren stated that one of the reasons for their dis- charges was the holding of an unauthorized meeting during breaktime This has reference to a union meeting held on December 9, 1974, during the lunch- break, which was attended by all employees includ- ing steward Jenny, who was acting as foreman The activity is clearly protected and the discharges for attending the meeting constitute a violation of Sec- tion 8(a)(3) and (1) Accordingly, we so find ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below with respect to Respondent Employer, and hereby orders that Respondent Phyllis Whitehead d/b/a P & L Cedar Products, Forks, Washington, her agents, successors, and assigns , Respondent Washington-Oregon Shingle Weavers District Coun- cil of United Brotherhood of Carpenters and Joiners of America, and its Successors, its officers, agents, and representatives , and Respondent Port Angeles Shingle Weavers Local 2555 of United Brotherhood of Carpenters and Joiners of America , and its Suc- cessors, its officers, agents, and representatives, shall take the action set forth in the said recommended Order, except as so modified 1 Substitute the following for paragraph A,I,(b) "(b) Discharging or issuing warning slips to em- ployees because they have engaged in protected con- certed and union activities " 3Alleluia Cushion Co Inc 221 NLRB 999 (1975) 4 The General Counsel contends that Holmgren 's discharge was also mo- tivated in part by Stalcup's presentation of the safety list There is no evi- dence to support this contention and we make no such finding 224 NLRB No 39 P & L CEDAR PRODUCTS 245 2 Substitute the attached Appendix A for that of the Administrative Law Judge APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT engage in excessive criticism, policing, and harassment of our employees be- cause they engage in protected concerted activi- ties WE WILL NOT warn or discharge our employees because they engage in protected concerted and union activities WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them in Section 7 of the National Labor Relations Act WE WILL rescind and delete from the person- nel files of Rex Holmgren and Linda Stalcup the written warnings issued to them on December 10, 1974 WE WILL offer Linda Stalcup and Rex Holm- gren immediate and full reinstatement to their former jobs or, if these jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority and other rights and privi- leges, and we will made them each whole for any loss of wages suffered as a result of their dis- charges PHYLLIS WHITEHEAD d/b/a P & L CEDAR PRODUCTS July 2, 1975, respectively, and were amended on September 15, 1975, by Stalcup On February 10, 1975, a complaint was issued against Respondent Employer and on Septem- ber 16, 1975, a consolidated complaint was issued against Respondent Unions alleging that Respondent Employer was engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act, and that Respondent Local was engaging in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act, and Respondent Council was engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act These cases were consolidated for hearing and each Respondent filed an an- swer denying the commission of the alleged unfair labor practices Upon the entire record,' from my observation of the de- meanor of the witnesses, and having considered the post- hearing briefs, I make the following 2 FINDINGS OF FACT I THE BUSINESS OF THE EMPLOYERS INVOLVED Respondent Employer, Phyllis Whitehead d/b/a P & L Cedar Products, is a sole proprietorship with its office and place of business in Forks, Washington, where it manufac- tures shingles Respondents admit that during the 12- month period ending January 31, 1975, Respondent Em- ployer sold and shipped finished products valued in excess of $50,000 to points outside the State of Washington and further admit that Respondent Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act It is undisputed that M R Smith Shingle Company, lo- cated in the vicinity of Forks, Washington, manufactures shingles and annually ships over $50,000 worth of shingles to points outside the State of Washington I find that M R Smith Shingle Company is an employer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act DECISION STATEMENT OF THE CASE JERROLD H SHAPIRO, Administrative Law Judge The hearing in these cases held on November 19 and 20, 1975, is based on unfair labor practice charges filed by Rex Holmgren and Linda Stalcup , herein referred to respective- ly as Holmgren and Stalcup, against Phyllis Whitehead d/b/a P & L Cedar Products, referred to herein as Respon- dent Employer, and Port Angeles Shingle Weavers Local 2555 of United Brotherhood of Carpenters and Joiners of America, and Washington-Oregon Shingle Weavers Dis- trict Council of United Brotherhood of Carpenters and Joiners of America, referred to herein respectively as Re- spondent Local and Respondent Council and collectively as Respondent Unions The charges against Respondent Employer were filed by Holmgren on December 27, 1974, the charges against Respondent Local and Respondent Council were filed by Holmgren on January 21, 1975, and II THE LABOR ORGANIZATIONS INVOLVED Respondent Local and Respondent Council admit, and I find, that during the time material to this case each was a labor organization within the meaning of Section 2(5) of the Act 'General Counsels motion to correct transcript is granted 2 Respondent Unions in their posthearmg brief renew their preheating motion that the consolidated complaint be dismissed because the Board failed to serve them with a copy of the complaint The General Counsel did not serve Respondent Unions with a copy of the consolidated complaint, but several weeks prior to the hearing admittedly served the complaint upon Respondent Unions attorney who, on behalf of the Respondent Unions filed a timely answer and appeared at the hearing and defended against the alleged unfair labor practice charges In other words Respondent Unions although not personally served with a copy of the complaint were fairly apprised of the unfair labor practices attributed to them and were afforded an ample opportunity to prepare a defense and defend against these charges Respondent Unions do not urge nor does the record indicate they were prejudiced in any manner by the failure to serve them personally with the complaint Under the circumstances, I deny Respondent Unions motion to dismiss the complaint 246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III THE QUESTIONS PRESENTED The ultimate questions presented for decision, as framed by the pleadings and litigated, are as follows (a) Whether Respondent Employer, in violation of Sec- tion 8(a)(1) of the Act, between December 6 and 12, 1974, criticized and kept under surveillance the work of Holm- gren and Stalcup, and on December 10, 1974, gave them written warnings because they engaged in union and con- certed activities protected by the Act 3 (b) Whether Respondent Employer, in violation of Sec- tion 8(a)(1) and (3) of the Act, discharged Stalcup and Holmgren on December 11, 1974, and refused to reinstate Holmgren on December 12, 1974, because they engaged in union and concerted activities protected by the Act (c) Whether Respondent Unions, in violation of Section 8(b)(1)(A) of the Act, failed or refused to fairly process Holmgren's and Stalcup's discharge grievances (d) Whether Respondent Local, in violation of Section 8(b)(2) and (1)(A) of the Act, attempted to cause the Smith Shingle Company to discharge Holmgren and Stalcup for reasons proscribed by the Act (e) Whether Respondent Local, in violation of Section 8(b)(2) and (1)(A) of the Act, threatened Stalcup with re- prisals because she and Holmgren had engaged in conduct protected by the Act IV THE ALLEGED UNFAIR LABOR PRACTICES A Respondent Employer's Alleged Unfair Labor Practices 1 Background Respondent Employer, Phyllis Whitehead, herein called Whitehead, manufactures red cedar shingles Whitehead commenced operations in 1972 but shut down late in 1973 and reopened on August 8, 1974 The terms and conditions of employment of Whitehead's employees were governed by a collective-bargaining agreement between Whitehead and Respondent Council The alleged discriminatees, Holmgren and Stalcup, be- gan work for Whitehead on September 4, 1974, and were employed on the first shift Holmgren was a sawyer and Stalcup a packer The work crew on the first shift was com- posed of six employees two sawyers, two packers, and two deckmen The deckmen work outside of the mill where they cut or split logs into blocks and place them on an inclined conveyor that travels to two shingle saws, operat- ed by the sawyers, located on the null's second floor The sawyers cut and grade the shingles into three grades-num- ber one, two, and four-which the sawyers then throw into an appropriate chute that drops the shingles into bins lo- cated on the first floor where they are inspected by the packers who then hand pack and label them into bundles and squares in accordance with grading and packing rules issued by the Red Cedar Shingle & Handsplit Bureau The 3 Respondent Employer is also alleged to have withdrawn employees cof- fee privileges for proscribed reasons but the General Counsel in her post- hearing brief concedes that the record does not support this allegation I agree Accordingly, I shall recommend that this allegation be dismissed shingles are subject to periodic in-plant inspection by an inspector employed by the bureau A sawyer and packer work with each other as a team Although they receive an hourly base pay, they are paid mainly by piece rate which is higher for the better quality shingles The wages of a sawyer and packer are affected by the sawyers' ability to produce high quality shingles One factor which influences a sawyers' ability to cut higher quality shingles is the quality of the wood Holmgren and Stalcup were hired at the same time and were close friends who had previously worked together in other shingle mills Based on their past experience they made several suggestions or complaints to Whitehead which they thought would improve the mill's operations and/or the employees' working conditions Specifically, either Holmgren or Stalcup or both suggested that an over- head hoist be installed for the saws used by the deckmen, that the chutes used by the sawyers be redesigned, and that the bins and packing stands used by Stalcup be redesigned Stalcup asked Whitehead to install toilet facilities in the null so that the employees did not have to use the bath- room in the house located adjacent to the mill Stalcup and Holmgren suggested that the format for the working day be changed to allow an extra 15 minutes at the close of the first shift to allow the packers to more easily finish their packing before the start of the second shift Holmgren asked that a morning and afternoon break be established and Stalcup complained about the gas vapor in her work area caused by the saws used by the deckmen Whitehead discussed the aforesaid suggestions and complaints with either Stalcup or Holmgren or with the two of them togeth- er, without any trace of hostility, and in some cases actual- ly implemented the suggestions 2 The events leading up to and surrounding Stalcup's and Holmgren's discharge Holmgren and Stalcup, as previously found, were em- ployed on the first shift and paid mainly by piece rate com- puted at a higher rate for the better quality shingles cut by Holmgren Three grades of shingles are produced at the mill, numbers one, two, and four, with the ones being the better quality Although a sawyer's skill is an important consideration in determining the amount of top grade shin- gles cut from the block, the quality of the timber furnished the sawyer is also significant The better the timber the easier it is for the sawyer to cut number one grade shingles Holmgren and Stalcup believed the second shift was re- ceiving better quality wood than the first, so, early in De- cember 1974 they decided to compare the shifts' produc- tion of the three grades of shingles On December 5 Holmgren asked Whitehead for the sawyers' production tickets for November 21 through December 4 Whitehead asked his reason for this request Holmgren explained he wanted to prepare "a production readout on what the peo- ple were doing as far as good wood and bad wood " White- head indicated that usually she did not furnish such infor- mation but in this case it was all right Whitehead gave Holmgren the requested information 4 The description of the conversation between Holmgren and Whitehead is based on Holmgren's credible testimony I have rejected Whitehead s P & L CEDAR PRODUCTS 247 On December 5, with Stalcup's assistance, Holmgren, using the information furnished by Whitehead, prepared a two-page document which was posted on the mill's bulletin board at the start of the work shift on December 6 Prior to the posting of this document, herein referred to as the "De- cember 6 notice" or "notice," Jack Jenny, the first-shift union shop steward, was informed by Holmgren about the content of the notice and indicated to Holmgren he had no objection to Holmgren's posting it on the mill's bulletin board The December 6 notice was entitled, "percent of l's to offgrade for dates Nov 21-Dec 4," and showed the total production of shingles for each of the four sawyers em- ployed by the Respondent Employer broken down into grades one, two, and four, and further illustrated, for each sawyer, the percentage of grade ones to the sawyer's total production It indicated that the two first-shift sawyers, So- derlind and Holmgren, respectively produced 68 11 percent and 73 69 percent of grade ones whereas second shift saw- yers, Gooding and Weed, respectively produced 78 06 per- cent and 80 94 percent of grade ones In addition the no- tice explained the mathematical formula used to arrive at these percentages and went on to state The amount of # 1 shingles that a log contains and the operators skill and judgment are probably the most important factors Machine speed (clips per minute), diameter of head saw, and size of blocks are other factors usually beyond a sawyers control However, these unevenly distributed problems can be over come if everyone involved, loader, deckman, sawyers, pack- ers and management, can take a few minutes to ra- tionally decide what can be done and to how each person really measures up to himself in as truthful a way as can be done for the present time Upon her arrival at the mill on December 6 at or about 7 15 am, Whitehead observed and removed the notice from the bulletin board and took it to Stalcup 5 Whitehead stated that Stalcup could not post the notice because, "Those figures are nobody's business but mine " Stalcup tried to explain the reasons behind the posting of the notice but Whitehead left her work station 6 She revisited Stalcup about 9 am, looked over the bundles which Stalcup had packed that morning, and again asked why the notice had been posted Stalcup in effect explained that Holmgren and herself thought that the first shift was not receiving the same quality of wood as the second shift and that the saw- yers and packers on the first shift were affected by this Whitehead denied the second shift was so favored and stat- ed Stalcup had no business publicizing the information fur- nished Holmgren because it was strictly Whitehead's busi- ness testimony that Holmgren stated he wanted the information for his ` own personal use' and would not use it for "anything " Holmgren impressed me as the more trustworthy witness 5 The language of the December 6 notice was drafted by Stalcup and it was in her handwriting Holmgren made the mathematical computations 6I reject Whitehead's testimony that during this conversation Stalcup stated that Whitehead had better report the notice or get a lawyer Stalcup credibly denied making this statement Whitehead visited Stalcup again shortly after the lunch- break with her husband Alan Whitehead They told Stal- cup that certain bundles of number one grade shingles which she had packed that day contained too much air space When they pointed out the bundles, Stalcup ob- served that she thought they were perfectly all right and that she had previously packed bundles the same way with- out objection Whitehead remained silent but her husband replied that while Stalcup's bundles usually were all right "they were bad today " Stalcup asked if they could go over to the other packer's work station, Jenny, to get his opinion on the number of inches of air space allowed per bundle They visited Jenny who stated that 29 inches of air space was all that was permissible, disputing Stalcup's contention that 60 inches was allowed Stalcup returned to work and almost immediately Whitehead visited her again and, in the presence of Alan Whitehead, told Stalcup she had ob- served one of Stalcup's bundles which lacked a shingle Stalcup answered that the bundle in question had the re- quisite number of shingles but one of the layers consisted of a wide shingle at the top which also served as the bundle's wrapper Whitehead asked Stalcup to insert a small shingle, under 3 inches, beneath the large top shingle Stalcup stated that in her opinion this would violate the grading rules which require that no shingle smaller than 3 inches be packed in a number one grade bundle Also at this time Whitehead instructed Stalcup to start marking her bundles so that the bundles on their face would be identifi- able as her work The conversation concluded with Stalcup asking whether they could talk about the problem after work since Stalcup, due to the several conversations with Whitehead that day, had fallen behind in her work White- head agreed that they could discuss the matter at the end of the shift The above description of Whitehead's conversations with Stalcup on December 6 about her work and the bun- dles Stalcup had packed are based on the credible testimo- ny of Stalcup Whitehead on direct examination testified that on this day she observed a couple of Stalcup's bundles had too much air space and one contained an oversized shingle on the top which was illegal, so she asked Stalcup to repack the bundles Stalcup without any explanation refused, to quote Whitehead, stating "if you want those bundles packed you do them yourself, I'm not going to do them " Whitehead supposedly replied, "ok if you feel that way, I'll give you a chance to do them, and if you have not done them by the end of the shift or at a later time, I will have to fire you or give you a written warning" On cross- examination Whitehead conceded that with respect to the oversized shingle Stalcup told her that an inspector had said it was permissible whereupon Whitehead indicated she would immediately speak to the mill's inspector to verify this Whitehead did not testify whether she ever did this I have credited Stalcup's version of the events because she impressed me as a witness who was making a sincere effort to tell the truth whereas Whitehead appeared to be insin- cere Moreover, Whitehead's husband, who was placed at the scene by Stalcup and who later supposedly helped to move the bundles that Stalcup allegedly refused to repack, failed to corroborate Whitehead's testimony concerning Stalcup's alleged insubordination Moreover when viewed 248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in its context Whitehead's testimony rings false Thus, Stalcup's alleged gross act of insubordination for some unexplained reason does not appear in Stalcup's written warning issued by Whitehead on December 10 Also Stal- cup credibly testified that she did not refuse a request by Whitehead to repack bundles or tell Whitehead to do this work herself or that Whitehead ever threatened her with discharge or a warning as described above Based on the foregoing, I reject Whitehead's account of what took place on December 6 when she spoke to Stalcup about Stalcup's work This did not put an end to Whitehead's visits to Stalcup's work station on December 6 Later that day, after the in- spector who inspects the bundles had concluded his inspec- tion, Whitehead took a copy of the inspector's rating sheet to Stalcup and warned, "you'd better watch out, Linda," explaining "it looks to me like you're over 20 inches off grade " Stalcup looked at the rating sheet and correctly pointed out that this was Jenny's rating Whitehead agreed that Jenny was in fact the culprit On the afternoon of December 6, at the end of the first shift, Whitehead with her husband, in the presence of the crew, confronted Holmgren and Stalcup about the Decem- ber 6 notice Whitehead stated that the notice was a "buck- ing board" I which was a practice outlawed 40 years ago Jenny, the shop steward, expressed his agreement Whitehead's husband, Alan Whitehead, commented that he and Jenny had called the State of Washington and dis- covered that there was a law against such a thing Holm- gren spoke up and declared he had no knowledge of a so-called bucking board and unsuccessfully attempted to learn from Jenny and Alan Whitehead who for the State of Washington had given them their information Holmgren explained that the reason why the notice had been posted was that Stalcup and himself were unhappy because of the difference in the quality of wood between the shifts which resulted in the second shift's sawyers and packers receiving more money Whitehead took the position that the notice was an outlawed "bucking board" so there was no sense in Holmgrenjustifying his action and that the information set out in the notice was nobody's business but Whitehead's The conversation on this topic ended with either White- head or her husband or perhaps also sawyer Soderlind sug- gesting that Holmgren's study be extended over a longer period of time which would make it a more reliable indica- tion of whether the second shift was getting better quality timber to cut The above description of the pertinent comments, which were made at the end of shift meeting on December 6, is based on a composite of the credible testimony of Stalcup and Holmgren which is not inconsistent in significant part 7 `Bucking board' refers to a posted notice compiled by a shingle mill operator naming each sawyer in its employ with their rate of production This information was posted as a device to encourage production with the low producers being subject to discharge So-called bucking boards are not prohibited by law nor are they outlawed by the terms of the Respondent Employer's collective-bargaining agreement However the mills in the shin- gle industry ceased using them at least 30 years ago due to the objection of the Shingle Weavers Unions which objected to their use because they prompted contests between sawyers that led to serious injuries on the highly dangerous shingle saws with the testimony of employee Soderlind, a witness called by Respondent Employer, who gave a very sketchy ac- count of this meeting Soderlind failed to corroborate Whitehead's testimony that at this meeting Holmgren ac- cused Whitehead of personally picking the better timber for the second shift or that Whitehead told Holmgren to take his grievance to the Union because she could not ne- gotiate with him Indeed Soderlind testified that at no time did he ever hear Holmgren accuse Whitehead of personally picking the better timber for the second shift Moreover, Respondent Employer's witnesses, Alan Whitehead and Virgil McIntosh, who were present at this meeting, were not called upon to corroborate Whitehead's account As indicated previously Whitehead impressed me as an un- trustworthy witness Under the circumstances, I have re- jected her version of this meeting Likewise, I reject Whitehead's testimony that during the morning break period on December 6 that Holmgren, in the presence of the crew, objected to the removal by White- head of the December 6 notice and in this regard told Whitehead "don't be so dumb and hardheaded Can't you see that it proves you're picking the logs9" Whitehead testi- fied she then informed Holmgren that she was not picking the wood and if he was dissatisfied with the quality that he should take the matter up with the shop steward or the Council Representative Schoonover but that Whitehead could not negotiate with him and that the Union would have to come to her and negotiate any price changes for the quality of the wood Holmgren, according to White- head, would not accept this answer but over and over again, "at least 15 times," told Whitehead, "you're dumb and hardheaded Can't you see I've proved the point you've been picking the logs " Whitehead further testified that "[Holmgren] just kept telling me He says, you're not my boss I don't have to take orders from you I work for the company " As was the case with her testimony in gen- eral I received the distinct impression from Whitehead's demeanor and manner of testifying that she was testifying to suit her own interests Moreover, the testimony is com- pletely lacking in corroboration where corroboration was readily available Soderlind and McIntosh who Whitehead testified were present during this alleged conversation and who were witnesses for Respondent Employer were not called upon to corroborate this story In fact on cross-ex- amination Soderlind admitted that at no time did Holm- gren, as Whitehead testified, personally accuse Whitehead of picking timber On Monday, December 9, 1974, Whitehead was absent from the mill and the person left in charge was Shop Stew- ard Jenny 8 During the morning of December 9 Stalcup asked the crew whether they would be in favor of having a meeting during the lunch period that day to elect a shop steward Stalcup expressed the view to Holmgren and So- derlind that Jenny was never elected by the crew and his interests appeared to be more in line with Whitehead's and that Stalcup was interested in becoming steward and was not afraid to tangle with Whitehead The crew except for 8 This was not the first time that Shop Steward Jenny acted as mill fore- man He occupied this position for about a 2-week period during late Sep- tember and early October 1974 P & L CEDAR PRODUCTS 249 Jenny agreed that an election should be held Jenny took the position that since he had been appointed by the Re- spondent Council the only way he could be removed from office was by the Council During the lunch period Stalcup spoke to Al Anderson, the Council's executive secretary and Oliver Schoonover, its representative for the mill, and received their permission to go ahead with the election An election was conducted with Jenny defeating Stalcup by a 4-to-2 vote Jenny immediately appointed a shop commit- tee The mill did not operate on December 10 inasmuch as there was no wood, but the employees arrived for work at the usual time as they had been instructed to see whether there would be any work Upon their arrival, or soon after, Whitehead gave Stalcup and Holmgren identical letters dated December 9, 1974, signed by Whitehead which read as follows This is to notify [Stalcup and Holmgren] that as of now [they are] on notice to cease causing any more dissention of any type among the work force at [the mill] under the penalty of immediate dismissal from said corporation A copy of this warning has been sent to the business agent of the Shingle Weavers Union When Whitehead handed the letters to the alleged discrim- inatees they read them and asked for an explanation Whitehead replied that the letters were self-explanatory and she did not have the time to talk about their content Stalcup warned that Whitehead had better get a lawyer This concluded the conversation 9 On December 11 at 9 a in the mill resumed operations The previous night Stalcup had prepared a written list of what she considered violations of the State of Washington safety code She listed the alleged violations alongside of the applicable code section About 9 a in on December 11 Stalcup went to Shop Steward Jenny and handed him a copy of these alleged safety code infractions explaining to him that she believed the null was in violation of the safety code as set out in the paper she had prepared and that since there was no safety committee in the mill she was asking him as shop steward to accept a copy Jenny refused to accept the paper stating it was a lot of nonsense Then about 10 am, when Holmgren's saw broke down and she was without work, Stalcup went to Whitehead's office and in the presence of Alan Whitehead and John Wilkinson, a millwright, handed Whitehead the list of the alleged safety violations, stating that since there was no mill safety com- mittee that she was giving her complaint to both Jenny and Whitehead Whitehead replied she had no time to talk about "anything" as she was looking for something Her husband Alan stated that Stalcup was not a state safety inspector and had no business giving them "anything like this " Wilkinson declared "there are enough people out of work that we don't have to put up with any of this 9 The description of what was said when Whitehead issued the warning slips is based on the credible testimony of Stalcup and Holmgren I reject Whitehead's testimony that she gave a detailed oral explanation justifying the warnings Stalcup and Holmgren, whose testimony was mutually cor- roborative, impressed me as being the more honest and reliable witnesses kind of stuff from you " Whitehead said nothing and Stal- cup left the office and returned to work The aforesaid description of what took place when Stal- cup presented the written complaint about the alleged safe- ty infractions to Whitehead is based on the testimony of Stalcup who impressed me as an honest and reliable wit- ness Neither Whitehead's husband, Alan, nor Wilkinson, who were called by Respondent Employer as witnesses, disputed Stalcup's testimony Whitehead however gives a completely different version of the events Whitehead testi- fied that Stalcup initially tried to present her with a list of alleged safety violations near her packing area and that Whitehead declined to accept it stating that Stalcup should give it to the shop steward and let him bring it to White- head Thereafter, either Stalcup or Holmgren, according to Whitehead, brought the list to her desk and she "told them" that she did not want it but they were to take it to the shop steward who would present it to Whitehead In manner and demeanor Whitehead impressed me as an un- trustworthy witness and, as was the case with her testimony that she informed Holmgren that he should present the grievance over the quality of the timber to the Union, I am convinced that her testimony about the list of safety infrac- tions was a fiction designed to aid her case On December 11, about 1 hour after Stalcup gave White- head the list of alleged safety infractions, Stalcup and Holmgren were separately notified they were discharged Whitehead initially told Stalcup that Holmgren and Stal- cup would be terminated at the end of the work shift and their paychecks would be ready for them at that time Stal- cup asked why they were being terminated and asked that the reasons for the terminations be reduced to writing Whitehead left and returned shortly to the production area and approached Stalcup and Holmgren separately at their respective work stations and handed them termination slips Stalcup's slip stated that she was discharged "for causing dissention [sic] of the crew and holding [an] unau- thorized meeting during break and refusing to fix bundles I asked her in a nice manner " Holmgren's slip stated that he was discharged "for causing dissention of the crew and holding [an] unauthorized meeting during break and refus- ing to comply with my notice given them on the 9th of December [referring to the warning slips issued to the dis- cnminatees on December 10] " There was no conversation when Whitehead issued the termination slips The aforesaid description of the events which took place on December 11 is based on the credible testimony of Stal- cup and Holmgren who impressed me as honest and relia- ble witnesses Whitehead presented a different version of what occurred which I am convinced was concocted She testified that on the morning of December 11 two separate events caused her to issue the termination slips Regarding Stalcup's termination she testified that on the morning of December 11 upon discovering that Stalcup had still not repacked the bundles as requested on December 6 that she went to Stalcup's work station and asked that Stalcup re- pack the bundles Stalcup answered that she could not lo- cate the bundles Whitehead then warned that if Stalcup did not repack them she would be terminated When Stal- cup refused and told Whitehead to do the work herself, Whitehead went to her office and wrote up Stalcup's termi- 250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nation slip, then returned and gave the slip to Stalcup But, as found previously, Whitehead never warned Stalcup to repack bundles and Stalcup credibly testified that she nev- er refused a request of Whitehead to repack bundles Re- garding the event which triggered Holmgren's termination slip Whitehead testified that when she handed Stalcup her termination slip that Holmgren left his work area on the second floor and came downstairs and told her she could not terminate Stalcup Whitehead stated she had in fact already done so whereupon Holmgren criticized White- head fc' "picking" the timber for the second shift White- head replied that this subject was "causing too much prob- lems with the crew" and told Holmgren to drop the subject and that he should take it to the union to settle and that she was in no condition to argue over the matter This was when apparently Whitehead decided to terminate Holm- gren and went back up to her office and wrote up his ter- mination slip I say apparently because Whitehead never gave the reason which led her to write out the termination slip In any event, as was the case with her other alleged conversations with Holmgren over the December 6 notice, Whitehead in manner and demeanor appeared to be fabri- cating this story, and I am convinced her conversation with Holmgren on December 11 never occurred Indeed as found above the episode which supposedly precipitated the whole chain of events-Stalcup's alleged refusal on De- cember 11 to repack the bundles-never occurred For all of these reasons, I reject Whitehead's version of the events which occurred on the morning of December 11 which led up to the discharge of the alleged discriminatees The alleged discrimmatees, as described in detail in the portion of the Decision dealing with the charges against the Respondent Unions, on December 11 following their dis- charge contacted Oliver Schoonover, the Respondent Council's representative, who together with Shop Steward Jenny and the Council's executive secretary, Anderson, met that same afternoon with Whitehead to discuss the discharges The outcome was that Whitehead refused to reinstate Stalcup but indicated that she would reinstate Holmgren, stating to the union representatives, according to Whitehead, that she "would have a meeting in the morn- ing, and we [Whitehead and the crew] would discuss it [Holmgren's reinstatement] in the morning, and, if it was all right with everybody else, we [Whitehead and Holm- gren] would try to make some arrangements to work to- gether " Thereafter, as described supra, that same af- ternoon Stalcup and Holmgren were notified by Schoonover that Whitehead had agreed to reinstate Holm- gren but refused to reinstate Stalcup but that Stalcup should go to the mill in the morning with Holmgren, dressed for work, as Whitehead might change her mind and also reinstate Stalcup On the morning of December 12 Stalcup and Holmgren went to the mill at which time Whitehead stated that she would reinstate Holmgren if the rest of the crew agreed Holmgren stated it was unfair that his reemployment be conditioned upon the sentiment of the crew especially since he had already spoken to the crew and they had indi- cated they had never objected to working with him White- head then said she would reinstate Holmgren so long as he did not cause any more dissension among the crew but would not reinstate Stalcup under any circumstances At this point Stalcup left the mill and Holmgren proceeded up the stairs to the second floor where his saw was located Whitehead who was at the top of the staircase told Holm- gren that she expected him to produce good shingles and put in a good day's work and warned, "there will be no more dissension " When Holmgren said nothing she yelled .,no more dissension," whereupon, Holmgren said that the word dissension did not apply and asked Whitehead to forget the matter, and continued on his way toward his work area Whitehead again yelled, "no more dissension " Holmgren again asked her to forget the matter He went over to his work station, turned on the switch to his saw, and discovered that the power had been shut off Holm- gren then went to Whitehead's office and told her that someone had shut off the power to his saw Whitehead in effect told him that he was terminated because of the way he had spoken to her When Holmgren asked what he had said, Whitehead ignored the question and repeatedly an- swered, "you can not talk to me that way " Holmgren in response told her that she was not his mother and that he was not her slave and that they should try to deal with one another responsibly and work out their problem White- head did not respond but simply kept saying "you can't talk to me that way " At this point Holmgren left the mill The description of what occurred on the morning of De- cember 12, 1974, when Holmgren returned for work, is based upon Holmgren's testimony which was corroborated in significant part by Stalcup's testimony for that portion of the events occurring before she left the mill Stalcup and Holmgren in presenting their testimony impressed me as sincere witnesses endeavoring to tell the truth I reject Whitehead's testimony that, as Holmgren walked up the stairs to work, Whitehead told him that she expected him to just do his job and not tell her how to operate the mill, that she was the boss and that was the way it was going to be, and that Holmgren replied, "bug off old woman " Whitehead was not a convincing witness She was however corroborated in this respect by Alan Whitehead and John Wilkinson Alan Whitehead, Whitehead's husband and Wilkinson, employed as a millwright, did not impress me as reliable or as sincere witnesses as Holmgren Moreover, Holmgren and deckman McIntosh credibly testified that Wilkinson was in no position on December 12 to hear the remarks exchanged between Whitehead and Holmgren For all of these reasons I have credited the version of the events of the morning of December 12 as presented by Stalcup and Holmgren 3 Analysis and ultimate findings (a) The written warnings issued to Stalcup and Holmgren and their discharge Stalcup and Holmgren, as described above, were issued written warnings on December 10, 1974, and thereafter dis- charged General Counsel contends that in warning and discharging them the Respondent Employer was motivated by their union and protected concerted activities First I shall evaluate the evidence pertaining to the conduct en- gaged in by Stalcup and Holmgren which resulted in their P & L CEDAR PRODUCTS 251 being warned and discharged and then decide whether this conduct was protected by Section 7 of the Act The alleged discriminatees, as described above, on De- cember 5, 1974, prepared a document comparing each sawyer's production of grade one shingles, which showed that the sawyers on the second shift were cutting substan- tially more grade one shingles than the first shift sawyers Believing this was caused by the quality of the wood being given the second shift, the alleged discriminatees on the same document asked the employees and management to meet to decide what could be done about the matter This document which has been referred to as the December 6 notice was posted on December 6 by the alleged discrimi- natees on the mill's bulletin board Respondent Employer's owner, Whitehead, immediately removed the notice and informed the alleged discrimmatees that she objected to its posting for the reason that it was a "bucking board" which had been outlawed in the industry and because the notice contained confidential information 10 The mill was closed during the weekend of December 7 and 8 and on Decem- ber 9 Whitehead prepared the warning slips she issued the next day to the alleged discrimmatees The slips warned them "to cease causing any more dissension of any type among the work force" or face immediate discharge The timing of the issuance of the warning slips considered in the context of Whitehead's opposition to the December 6 notice indicates they were issued because the alleged dis- criminatees posted the notice Any doubt of this was re- moved when Whitehead testified that the phrase "dissen- sion" as used in the warning slips was a reference to "dissension caused by the bucking board " Whitehead fur- ther testified, "I repeatedly used the wrong word by saying `dissension,' but my meaning of `dissension' still was the bucking board " Under the circumstances the record estab- lishes that in issuing the warning slips Whitehead was moti- vated in significant part by the posting of the December 6 notice by Stalcup and Holmgren 11 In reaching the conclusion that the warnings were issued in significant part because the alleged discriminatees had posted the December 6 notice I have considered Whitehead's testimony that it was not the act of posting the notice but rather the dissension among the employees caused by the notice which disturbed Whitehead Specifi- cally Whitehead testified, (1) the crew told Whitehead they io The record does not establish that the discriminatees posted the notice in disregard of Whitehead's contrary instruction or that when Holmgren asked for the information used to prepare the notice that Whitehead said anything which should have lead Holmgren to understand that the informa tion could not be publicized In any event, Whitehead does not claim she acted against the alleged discriminatees because they revealed confidential information or for otherwise violating her trust 11 I reject Whitehead's testimony that the reason she issued the warning slip to Stalcup was because Stalcup told Whitehead to retain an attorney if she removed the notice and because on December 6 Whitehead ordered Stalcup to repack some improperly packed bundles which Stalcup had not done by December 9 Stalcup, as I have previously found, did not, in this context, advise Whitehead to retain an attorney nor, as I have prey ously found, did she refuse to obey Whitehead's instructions to repack bundles Surely, if Stalcup, as Whitehead testified had blatantly refused to follow instructions to repack the bundles and had told Whitehead to do the work herself, Whitehead would have included this misconduct in the warning slip I am convinced that the reason that this alleged act of misconduct was omitted from Stalcup s warning was that it never occurred were tired of the "yelling and screaming about the picking of the logs", (2) Holmgren told Whitehead she did not know what she was talking about and called her hardhead- ed in front of the crew, (3) McIntosh, an employee, told Whitehead that because of the arguments over the quality of the wood he would be forced to look for work elsewhere since he did not enjoy working in an atmosphere where people were constantly arguing Regarding (1), there is no evidence that other than Mc- Intosh any members of the crew even indicated to White- head that they were tired of the "yelling and screaming" over the picking of the logs Nor is there credible evidence that either of the alleged discriminatees in connection with the December 6 notice or otherwise engaged in conduct calculated to cause "yelling and screaming" among the crew nor did their conduct interfere with the crew's work There is no credible evidence that Stalcup or Holmgren ever discussed the matters contained in the December 6 notice in other than a rational and temperate manner If the notice was made the subject of a heated public debate it was Whitehead's fault Rather than simply remove the notice and indicate her displeasure to the alleged discrimi- natees in private, Whitehead initiated a meeting among the crew and made her displeasure a matter of public debate and openly criticized Stalcup and Holmgren for posting the notice which she characterized as an outlawed "buck- ing board " But bucking boards although outlawed in the shingle industry due to the objection of the Shingle Weav- ers Union are not prohibited by law or the governing col- lective-bargaining agreement More importantly, the rec- ord establishes that Stalcup and Holmgren in preparing and posting the notice were motivated by a good-faith be- lief that the first shift was receiving an inferior quality of wood in comparison to the second shift They credibly tes- tified in effect that when they prepared and posted the notice they were ignorant about bucking boards and their intent in posting the notice was to demonstrate that the second shift was receiving a better quality of timber than the first 12 Indeed the notice on its face indicated that it was not intended as a "bucking board" but that its purpose was to compare the "percentage of l's to off grade" shingles produced by each sawyer Moreover, it is plain that White- head knew that this was the notice's purpose For, when confronted by Whitehead on December 6, Stalcup and Holmgren each immediately informed her that they pre- pared and posted the notice because they believed that the first shift was not receiving as good a quality of timber as the second shift, and when Whitehead spoke to sawyer So- derlind on December 6 she asked him whether he felt that she was favoring the second shift in the selection of the timber In short, the record establishes that Stalcup and Holmgren acted in a rational temperate manner, that it was not their intent in posting the notice to create a so-called "bucking board"-a comparison of the sawyers' produc- tion designed to goad the sawyers into increasing their pro- duction--and that Whitehead realized this was not their intent Moreover, the record does not establish that in post- 12 It is not surprising they lacked knowledge about bucking boards" since it seems that such boards had not been in use for approximately a quarter of a century prior to the employment of Holmgren and Stalcup in the shingle industry 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing the December 6 notice that the alleged discriminatees were motivated by personal malice toward Whitehead The sole evidence which even colorably indicates such malice is Soderlind's testimony-denied by Holmgren-that on De- cember 6 dust prior to posting the notice that Holmgren told Soderlmd that Whitehead "will probably go through the roof when she sees this [referring to the notice] " This isolated comment-assuming arguendo Holmgren made it-does not in my opinion indicate that the notice was posted out of personal malice, rather, another more reason- able inference is that Holmgren was indicating that since the notice, which was admittedly accurate, indicated that the second shift sawyers were cutting substanti4lly more grade one shingles than the first shift that the inference was that the first shift was being discriminated against in the supply of wood, which information when made public would make Whitehead unhappy Regarding (2), there is no credible evidence that Holm- gren acted in the manner attributed to him by Whitehead Regarding (3), McIntosh did not indicate he was dis- turbed over anything connected with the December.6 no- tice Thus, Whitehead initiated a conversation with Mc- Intosh during which she told him that she was having trouble operating the mill particularly because Stalcup and Holmgren wanted her to remedy certain unsafe conditions even though Whitehead could not financially afford to cor- rect the defects Upon hearing Whitehead's tale of woe, McIntosh, feeling he had sufficient personal problems of his own, told Whitehead that he did not like working in a mill where there was a lot of friction and "hasslement " In short it is plain that McIntosh's expressed unhappiness over the work environment was caused not by any conduct of the alleged discriminatees but rather by Whitehead seek- ing him out and in effect trying to involve him in her dis- agreement with the alleged discrimmatees Based on the foregoing, I find that the written warning slips were issued to Stalcup and Holmgren on December 10, in significant part, because they posted the December 6 notice The essential facts pertinent to the subsequent termina- tion of Stalcup's and Holmgren's employment can be brief- ly stated They posted the December 6 notice on Friday, December 6 On the same date Whitehead expressed hos- tility toward them for posting the notice and removed the notice Then, on Monday, December 9, because they had posted the notice, Whitehead prepared warning slips threatening Stalcup and Holmgren with immediate dis- charge which were issued on December 10 Stalcup and Holmgren were discharged on December 11 Stalcup's ter- mination slip states she was terminated for three reasons (1) "causing dissention" among the crew, (2) "holding an unauthorized meeting during break", (3) "refusing to fix bundles I asked her in a nice manner to fix " Holmgren's termination slip states he was terminated for three reasons (1) "causing dissention of the crew", (2) "refusing to com- ply with my notice given them on the 9th of December [referring to the warning slips]", (3) "holding unauthorized meeting during break " Stalcup, as previously found, did not, as stated in the termination slip, refuse to obey Whitehead's order and, since the reference to dissension in Stalcup's and Holmgren's termination slips admittedly refers to the post- ing of the December 6 notice and, since the reference in Holmgren's termination slip to the December 9 notice ob- viously refers to the warnings given Holmgren and Stalcup because they posted the December 6 notice, I find that the evidence preponderates in favor of a finding that Stalcup and Holmgren were discharged on December 11 in signifi- cant part because they posted the December 6 notice 13 I further find that the record establishes that Whitehead's conduct toward Holmgren on December 12 was motivated by her antipathy toward him because he had posted the December 6 notice As found previously, representatives of Respondent Unions met with Whitehead during the afternoon of December 11 to discuss Holmgren's and Stalcup's discharge During this meeting the representatives of Respondent Unions indicated that dissension was not a proper ground for terminating an em- ployee whereupon Whitehead indicated she had three ad- ditional reasons she could use to justify Stalcup's termina- tion but in Holmgren's case indicated she would reinstate him provided that the crew agreed to work with him and, if this was the case, she would try to make arrangements with Holmgren The arrangements she had in mind are readily apparent from what occurred the next morning when Holmgren reported for work Before permitting him to be- gin work Whitehead in effect told him his employment was conditioned upon his not causing dissension When Holm- gren remained silent and continued toward his work sta- tion, Whitehead, in a loud voice, repeatedly warned him "no more dissension" and, when asked by Holmgren to forget the matter, Whitehead ordered the power to Holmgren's saw turned off and refused to reinstate Holm- gren Thus, all the circumstances, including Whitehead's admission at the hearing that when she used the word "dis- sension" in speaking to Holmgren she was referring to the "bucking board" (the December 6 notice), establish that Whitehead's refusal on December 12 to reinstate Holm- gren was motivated in significant part by the same reason which prompted his earlier discharge, his participation with Stalcup in the posting of the December 6 notice 14 Having concluded that the Respondent Employer issued the written warnings and discharged Holmgren and Stal- cup because they posted the December 6 notice it is neces- sary to determine whether the posting of the notice was the type of concerted activity protected by Section 7 of the Act 13 Regarding the notation on the termination slips that Holmgren and Stalcup attended an unauthorized meeting during break Whitehead testi- fied that upon her arrival at the mill on December 9 that Shop Steward Jenny who had been in charge during her absence that day told White- head in the presence of Whitehead s husband that the entire crew had overstayed their lunch break by about 20 minutes Whitehead s testimony is without corroboration Jenny failed to testify that the crew was in fact late in going back to work or that he had said this to Whitehead nor did Alan Whitehead corroborate Whitehead s testimony that Jenny said this Stalcup Holmgren Soderlind, and McIntosh each testified that on December 9 the entire crew, including Stalcup and Holmgren took their normal lunch break and were not tardy in resuming work I am convinced under the circum- stances that Whitehead generally a dishonest witness, fabricated this story and find that Jenny never told Whitehead that the crew or Stalcup and Holmgren had overstayed their break period 14 The credible evidence does not establish that Holmgren on December 6 was insubordinate toward Whitehead and that it was this insubordination which motivated Whitehead s refusal to reinstate him P & L CEDAR PRODUCTS Holmgren and Stalcup believed that the second shift sawyers were receiving better quality wood than the first shift which resulted in the sawyers and packers on the first shift earning less money than the second shift To de- termine whether their belief was justified they used produc- tion figures for the most recent work week and compared the number of grade one shingles cut by each sawyer in relation to the sawyers' total production and discovered that the sawyers employed on the second shift cut a sub- stantially greater percentage of grade one shingles than the first shift They inferred from this that the second shift was receiving better quality timber They then posted these findings on the mill's bulletin board accompanied by a written declaration that the problems involved in produc- ing grade one shingles "can be overcome if everybody in- volved (employees and management) can take a few min- utes to rationally decide what can be done and to how each person really measures up to himself in as truthful a way as can be done for the present time" In other words, the quality of wood provided Holmgren significantly de- termined the amount of wages that Holmgren and his packer, Stalcup, as well as the other sawyers and packers, could earn They believed in good faith that the quality of wood received by their shift was inferior to the second shift's, so using the Company's production figures for the most recent workweek they prepared the December 6 no- tice which in effect announced to their fellow employees their belief about the disparate treatment being accorded the first shift and asked that management and the employ- ees meet and decide what could be done about the matter Plainly the matters dealt with in the December 6 notice directly related to an important condition of employment affecting the employees wages Under the circumstances, Stalcup and Holmgren in preparing this notice and posting it on the null's bulletin board were engaged in the kind of activity protected by Section 7 of the Act unless for other reasons their conduct forfeited the Act's protection Respondent Employer's position is that the concerted action of the alleged discriminatees in posting the Decem- ber 6 notice was not protected by the Act inasmuch as their conduct is similar to the conduct of the discriminatees in the Emporium case 15 Respondent Employer does not spe- cifically urge that the dissension allegedly caused by Stal- cup and Holmgren's concerted activities removed their ac- tivities from the ambit of Section 7, nevertheless, I have considered the matter Even assuming arguendo that the posting of the notice created dissension among the employ- ees, this is not sufficient to forfeit the Act's protection since "it is obvious that concerted activities which are protected by the Act often create a disturbance in the sense that they create dissatisfaction with the status quo " Salt River Valley Water Users' Association v N L R B, 206 F 2d 326, 329 (C A 9, 1953) In any event, as found supra, Whitehead's testimony of dissension among the work force was virtually a complete exaggeration, nor is there a showing that the posting of the notice or related conduct by either Holm- gren or Stalcup interfered with the work of any of the mill's employees or otherwise interfered with the mill's opera- 15 Emporium Capwell Co v Western Addition Community Organization 420 U S 50 (1975), reversing 485 F 2d 917 (C A D C 1973), remanding 192 NLRB 173 (1971) 253 tions Moreover, as found supra, the notice was prepared and posted in good faith and Holmgren and Stalcup con- ducted themselves in a temperate and rational manner on those occasions when they were confronted by Whitehead about the matter Nor is there evidence that the alleged discriminatees spoke to other employees about the matter in an improper manner or otherwise acted improperly Likewise the conduct of the alleged discriminatees does not fit into the same mold as the conduct engaged in by the discriminatees involved in the Emporium case Emporium raised the question of whether certain minority employees protesting alleged racially discriminatory employment practices were entitled to bargain separately with their em- ployer concerning such practices in the face of their bar- gaining representative's concurrent efforts to resolve the matter through the contractually prescribed grievance pro- cedure The Court (Justice Douglas dissented) upheld the Board's decision that the employees' activities in picketing their employer's store to compel such separate bargaining were not protected by Section 7 of the Act because that objective was imcompatible with the exclusive bargaining authority which Section 9(a) of the Act vested in the em- ployees' bargaining agent In my opinion Emporium is not apposite to the instant situation There the employees efforts were clearly calcu- lated to belittle and frustrate the union's efforts, and to undermine the union's and the employer's efforts to follow the procedures embodied in the governing collective-bar- gaining agreement They intentionally interfered with the union's efforts and were attempting to supplant it as the employees' bargaining representative on the issue of racial discrimination Likewise, the employees expressly repudiat- ed a contractual commitment by the union to use the griev- ance machinery to resolve the disputed matter, in favor of a boycott and picketing specifically rejected by the union In the instant case Stalcup and Holmgren engaged in no picketing or other disruptive conduct but in a peaceful nondisruptive manner asked the employees and Respon- dent Employer to meet and to discuss what they in good faith believed to be the disparate treatment being accorded the first shift in the quality of timber 16 The subject matter which the discriminatees wanted to discuss with Whitehead was not covered by the governing collective-bargaining agreement's grievance procedure 17 and, unlike Emporium, 16 I realize that when read literally page 2 of the notice of December 6 which in effect proposes a meeting to discuss how to more equally distribute variables that cause differentials in production is not a model of clarity But as found supra the discriminatees on December 6 immediately clarified the matter and informed Whitehead that their grievance pertained to their belief that the second shift was receiving better quality timber than the first shift n The collective-bargaining agreements grievance procedure which does not provide for binding arbitration, covers grievances or disputes arising out of the application or interpretation' of the agreement There is no provi- sion dealing with the quality of the wood furnished the employees as such There is a provision contained in art 25 entitled individual plant wage adjustments which provides for wage increases or decreases to correct inequalities resulting from a change in quality of timber" There is no evidence that it was Stalcup s or Holmgren s intent to ask for an increase in wages or that the proposed discussion was calculated to lead to a discussion about the employees wages At no time during their conversation with Whitehead or the employees did either Stalcup or Holmgren indicate that they were interested in altering the employees rates of pay Their sole con- Continued 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the labor organization in the instant case through its shop steward indicated that it had no objection to the employees conduct 18 and there is no suggestion in the record that the Respondent Employer's action against Stalcup and Holm- gren rested upon any considerations or orderly collective bargaining Indeed, Whitehead never indicated to either Stalcup or Holmgren that their demand involved a matter which should be presented to their bargaining representa- tive, rather than by two employees acting independently 19 Cf N L R B v Tanner Motor Livery Ltd, 419 F 2d 216, 222 (C A 9, 1969) For all of the foregoing reasons I am convinced that the conduct of Stalcup and Holmgren in posting the December 6 notice was protected concerted activity within the mean- ing of Section 7 of the Act and that by issuing warning slips to Stalcup and Holmgren and discharging them for engaging in this conduct that the Respondent Employer violated Section 8 (a)(1) of the Act 20 (b) Respondent Employer's alleged retaliatory and harassing conduct toward Holmgren and Stalcup The complaint alleges that Respondent Employer be- tween December 6 and 12 engaged in "retaliatory and ha- rassing conduct toward [Holmgren and Stalcup] due to their union and concerted activities by close observation and criticism of their work" because of their union and protected concerted activities The pertinent facts can be briefly stated Holmgren credibly testified that during the morning of Decmeber 6, following the removal of the notice, White- head visited Holmgren's work station at different times and engaged in the following conduct Whitehead sur- veyed Holmgren's work and asked, "why did you do that" or told him, "give me that shingle that you're about to throw down, so I can look at it" and in general questioned Holmgren about virtually everything he was doing Holm- gren credibly testified that Whitehead previously never watched his work in this manner 21 tern which they expressed to Whitehead was to remedy what they believed to be the disparity of good timber being allocated to the shifts Moreover the record, as found supra, establishes that this is the way Whitehead viewed their grievance, not as an effort to increase the employees hourly or piece work rate 18 Respondent Unions' shop steward, Jenny, as found supra on Decem- ber 6 read the December 6 notice and indicated to Holmgren that he had no objection to its being posted 9 There is no credible evidence, as found supra, that Whitehead indicated she felt that Stalcup or Holmgren should take up the matters contained in the December 6 notice through Respondent Unions She even refused to explain to them what she meant by the use of the term dissension in the warning slips nor did she explain what she meant by this term to Holmgren on December 12 when she refused to reinstate him Also I note that after Whitehead's December 6 end of the shift meeting, where she voiced her objection to the notice, neither Stalcup nor Holmgren renewed their de- mand that Whitehead discuss the matters contained in the notice with the employees Because of this finding I need not decide whether, as contended by the General Counsel, the discharges involved herein were motivated in part by Stalcup's presentation to Whitehead of a list of alleged safety code infrac tions and/or because Stalcup and Holmgren met with other employees to elect a shop steward and, if so motivated, whether these activities were protected by Sec 7 of the Act 21 Whitehead did not specifically deny or explain the above conduct Likewise, Whitehead on December 6 kept Stalcup's work under close scrutiny As found supra, Whitehead informed Stalcup that she had removed the notice and thereafter the same morning returned to Stalcup's work station and after looking over the bundles that Stalcup had packed that morning criticized Stalcup for posting the notice Later, after the employees' lunch break, Whitehead returned to Stalcup's work station and complained that some of Stalcup's bundles contained too much air space Stalcup looked at the bundles and stated, "I've packed this way before, and you've never said anything about them before to me " Whitehead said nothing Alan Whitehead, her hus- band, who was present, answered "yes that's true," but "they were bad today " Neither Whitehead nor her hus- band explained to Stalcup why Stalcup's similar work which was unobjectionable in the past was "bad today " Whitehead left Stalcup's work station but returned shortly This time she complained that one of Stalcup's bundles was lacking a shingle and had an oversized shingle on the top In response, if Whitehead's testimony is credited, Stal- cup explained that one of the inspectors had told her it was permissible to use an oversized shingle, whereupon White- head stated she would immediately ask the inspector who regularly inspected at the mill to verify this, and left, but not before instructing Stalcup to start marking her bundles so it would be readily apparent which ones Stalcup had packed It is undisputed that Stalcup previously had not marked her bundles and was not required to do this Whitehead did not explain why for the first time on De- cember 6 she instructed Stalcup to mark her bundles In the meantime, the inspector on December 6 had visited the mill and inspected and found nothing wrong with any of the bundles packed by Stalcup Indeed, it is undisputed that during her tenure of employment Stalcup never re- ceived an unsatisfactory inspection rating and her work was never subject to an inspector's warning Nevertheless, on December 6, after the inspector concluded his tour of inspection, Whitehead notified Stalcup that the inspector had found Stalcup's work 20 inches off grade and White- head warned, "you better watch out " Stalcup looked at the inspector's rating sheet and correctly pointed out that her work had been rated perfect but it was the work of Jenny, the other first shift packer, whose work was described as being 20 inches off grade The mill was closed the weekend of December 7-8 and Whitehead was not present during the first shift on Mon- day, December 9, and the mill did not operate on Decem- ber 10 On December 11, Stalcup began work at about 9 a m and was discharged at about 11 a in Nevertheless, in the approximately 2 hours of work Whitehead visited Stalcup's work area on three separate occasions and checked her work Regarding Whitehead's December 6 and December 11 visits to Stalcup's work station to discuss her work, Stalcup credibly testified that Whitehead's conduct was unprece- dented, that after Stalcup's first few weeks of employment Whitehead testified that generally she checked the quality of the shingles being produced on a daily basis and that on a great number of occasions stood behind a sawyer and watched This does not, however , explain her unusual conduct with respect to Holmgren s work on the morning of De- cember 6 P & L CEDAR PRODUCTS 255 Whitehead only infrequently observed or spoke to Stalcup about her work To recapitulate, immediately upon learning that Holm- gren and Stalcup were responsible for the December 6 no- tice, Whitehead subjected their work to unprecedented ob- servation and in the case of Stalcup criticized her for doing the type of work which had previously been acceptable, and imposed more onerous working conditions-required her to mark bundles-and without justification accused Stalcup of doing unsatisfactory work performed by anoth- er packer These circumstances considered in the context of Whitehead's hostility toward Stalcup and Holmgren for posting the December 6 notice, demonstrated by her threat to discharge them and their discharge for engaging in this conduct, establish that Whitehead's aforesaid visits and conversations with Holmgren on December 6 and Stalcup on December 6 and 11 had the purpose and effect of ha- rassing and intimidating the employees because of their protected concerted activities Accordingly, I find that by such conduct Respondent Employer violated Section 8(a)(1) of the Act Florida Steel Corporation, 215 NLRB 97 (1974) B The Unfair Labor Practices Attributed to Respondent Unions 1 The facts Respondent Employer during the time material herein was signatory to a collective-bargaining agreement with Respondent Council The agreement was signed by Re- spondent Council and Respondent Employer The agreement's preamble states in pertinent part that "the sig- natory parties to this Agreement shall be the [Respondent Council], acting for itself and in behalf of its affiliated local unions and each individual employer who accepts and signs this agreement " Article 2 of the agreement provides for recognition by Respondent Employer of the Respon- dent Local as the employees' exclusive bargaining repre- sentative The agreement, at article 6, provides that any employee who feels he was unjustly discharged "may request the Union Shop Committee to represent him," and "the Em- ployer agrees to meet with the Shop Committee upon writ- ten request which must be made within 2 working days from the time of the discharge or it shall be considered waived as a grievance " The agreement further states that if "the parties fall to agree" then the case shall be taken up under the contractual grievance procedure The contractu- al grievance procedure, in pertinent part, provides that em- ployees shall present their grievances to "the Shop Steward and/or the Shop Committee" who shall in turn present it, in writing, to the Employer and that the Employer shall meet with the shop steward and shop committee to attempt to settle the grievance and either party may call in a repre- sentative of Respondent Council if it desires However, any settlement must be presented to the Council for final ap- proval or if there is no settlement then the Council's repre- sentative must be notified and, then, if a solution can not be reached either party may take whatever action it deems appropriate The mill's shop steward is Jack Jenny and during the time material herein the representative of the Council ser- vicing the mill was Oliver Schoonover whose superior was Al Anderson, the Council's executive secretary On December 11, as described supra, Holmgren and Stalcup were discharged Holmgren, by phone, immedi- ately notified Council Representative Schoonover and told him they were not sure of the real reason for the discharge and wanted the Union to do something about the matter Holmgren specifically requested a meeting Schoonover agreed to look into the matter and said he would meet them at the mill in approximately 25 minutes 22 Stalcup and Holmgren waited outside of the mill but Schoonover failed to materialize, so, after 45 minutes, Stal- cup phoned Schoonover and advised him they were wait- ing for him at the mill as arranged Schoonover said that he was "leaving right away " Stalcup told him that since their business at the mill was finished it would be better for Schoonover to meet with them at their trailer and gave Schoonover instructions on how to locate the trailer Schoonover indicated he would meet with them at their trailer in approximately 15 or 20 minutes 23 Stalcup and Holmgren waited for over 3 hours at the trailer in vain Schoonover instead of meeting them, as promised, contact- ed the Council's executive secretary, Anderson, and togeth- er they went to the home of Shop Steward Jenny where they discussed the discharges and then the three met with Whitehead Whitehead testified that she met with Jenny, Anderson, and Schoonover on December 11 as a result of a phone call she received from Schoonover who told her that the three of them wanted to meet with her at Jenny's home, and further testified that when she arrived she was informed that Jenny, Schoonover, and Anderson had discussed the discharge grievances of Stalcup and Holmgren and wanted to settle them Previously, on December 11, Schoonover and Anderson had met with Jenny and questioned him about the dis- charges and, according to Schoonover, the only thing Jen- ny told them was that Holmgren and Stalcup were dis- charged for creating dissension When Whitehead upon her arrival asked what Respondent Unions' representatives had decided about the discharges, Schoonover took the po- sition that Whitehead could not discharge either Stalcup or Holmgren for dissension because this was not a ground for immediate dismissal In response Whitehead stated that if she could not discharge Stalcup for dissension she had three other reasons to justify the discharge Specifically, that Stalcup had refused Whitehead's orders to use band sticks, to repack bundles, and to mark bundles Schoon- over declared that since Stalcup had broken three different rules and had refused to obey orders that the union could not fight Stalcup's discharge, but since Holmgren had not refused to obey an order he could not be fired immediately Whitehead said that she would meet with the crew in the morning and discuss the question of Holmgren's reinstate- 22 The description of the phone conversation between Holmgren and Schoonovei is based upon a composite of their testimony which is not sig- nificantly inconsistent 23 The description of the phone conversation between Stalcup and Schoonover is based upon Stalcup's undenied and credible testimony 256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment and if it was all right with the crew she would try to make some arrangements with Holmgren so they would work together 24 In the meantime Holmgren and Stalcup, still waiting for Schoonover to meet with them, decided at about 5 30 p in to visit the Respondent Council's executive secretary, An- derson, who as described supra, had attended the meeting with Whitehead They went to Anderson's residence and explained that Schoonover had promised to meet them at their trailer to discuss their discharges Anderson stated that he and Schoonover had waited for them for about 30 minutes at the mill and when they did not arrive met and talked with Whitehead and Jenny Anderson refused to di- vulge what had taken place at the meeting, stating he did not want to get involved and that they would have to dis- cuss the matter with Schoonover who was at a local tavern, the Loop Stalcup and Holmgren went to the Loop Tavern where they spoke to Schoonover Holmgren asked why Schoon- over had failed to meet with them at their trailer as prom- ised Schoonover denied he had agreed to meet with them at the trailer but said he thought they had arranged to meet at the mill Holmgren then asked what happened at the meeting at the mill Schoonover stated that Whitehead had decided to reinstate Holmgren but not Stalcup When Stal- cup asked why, Schoonover answered, "he was not sure" but that Whitehead had told him "something about bad bundles," and said she would shut the mill down before reinstating Stalcup Schoonover suggested that Stalcup, as well as Holmgren, report for work the next morning on the chance that Whitehead would have a change of attitude and reinstate Stalcup as well as Holmgren 25 On December 12, the next morning, as described supra, Stalcup and Holmgren reported for work and Whitehead refused to reinstate them It is undisputed that prior to leaving the mill Holmgren walked over to Shop Steward Jenny and told him "Jack, we have a grievance here " Jen- ny replied, "there is nothing I can do " Hearing this, Holm- gren testified, "I didn't have anybody to talk to there, so I walked out of the mill," and immediately phoned Schoon- over and told him what had taken place Specifically, Holmgren stated that the first grievance over his discharge had not been resolved since Whitehead had not allowed 24 The description of what occurred at the December 11 meeting between Whitehead and the representatives of Respondent Unions is based on Schoonover's testimony except for his testimony that Whitehead unequivo- cally agreed to reinstate Holmgren Whitehead s version of the position she took at this meeting with respect to Holmgren s reinstatement is set out in the text and is supported by Holmgren s credible testimony that when he arrived for work on December 12 that Whitehead told him among other things, `she was accepting him back to work only upon the vote of the crew ' I realize Whitehead also testified that Schoonover phoned sometime during the evening of December 11 at which time Whitehead unconditional- ly agreed to reinstate Holmgren However, Schoonover did not corroborate this testimony and the testimony is inconsistent with her above-described remark to Holmgren when he reported for work 25 The above description of what took place at the Loop Tavern is based on the testimony of Schoonover and Holmgren I realize that Stalcup testi- fied that Schoonover said that Whitehead had agreed to reinstate Holmgren on the condition that the crew agreed to work with him This testimony which is in accord with what Whitehead admittedly told Schoonover at the meeting of December 11, however, does not jibe with Holmgren's and Schoonover's account of what was said at the Loop Tavern by Schoonover him to return to work for the same reason as his initial discharge Schoonover replied, "I don't know what I can do I got your job back once" Holmgren disputed this stat- ing, "we never had a grievance procedure, you just went there and did something between you and the employer I wasn't there You never even asked me for my opinion of what happened in that case " Schoonover said that he would phone Anderson and determine what could be done Also during this phone conversation Stalcup took the re- ceiver and spoke to Schoonover Stalcup told him that she had gone to the mill for work as he had suggested but Whitehead had refused to reinstate her Schoonover told Stalcup that he would speak with Anderson to determine what could be done and then speak with Stalcup and see if they could set up a meeting On December 16 Stalcup and Holmgren met with An- derson and Schoonover The meeting was apparently initi- ated by the discriminatees Holmgren stated that he be- lieved his second discharge was a continuation of the first one Stalcup stated nothing had been done about her dis- charge grievance since she had never been given the oppor- tunity to present her version of the events Holmgren agreed and asked for a chance to present their version of the events pertinent to their discharges and, at this point, handed Anderson a typed paper containing what Stalcup and Holmgren believed was a chronological account of the events pertinent to their discharges Anderson and Schoon- over read the document Anderson then stated, "I don't know what I can do with this, you know, we've done all we can" Schoonover told Holmgren he did not see why he should do anything more for Holmgren since he had gotten his job back once but that Holmgren could not keep it and would probably lose it again if reinstated Stalcup asked for the reason the union was not able to get her reinstated and was informed by Anderson that in the business of ne- gotiating "you have to give a little to get a little" The meeting concluded with Holmgren reiterating that in his opinion Stalcup and himself had never been given a chance to tell their side of the story and asked what they could do to get their grievances heard Anderson suggested they start back at the mill level Following Anderson's advice that they "start back" at the mill level with their discharge grievances, Stalcup and Holmgren on the same day prepared and signed a written request addressed to the Respondent Employer reading, "we request a meeting with you [referring to Whitehead] in behalf of Linda Stalcup and Rex Holmgren who feel they have been unjustly discharged " 26 This request was deliv- ered on December 16 by Holmgren to Shop Steward Jen- ny Holmgren explained that it was their written grievance and they would like a meeting Jenny accepted it, stating, "I don't know what I can do but I'll try " The next morn- ing, before the start of work, Stalcup and Holmgren went to the mill to find out whether any action had been taken on their written grievance They approached Jenny in the packing area in the presence of the crew Holmgren asked 26 This request was backdated to December 13 by Holmgren on the ad- vice of a former District Council representative Smith, so as to comply with the contractual requirement that discharge grievances must be presented in writing to the employer by the union shop committee within 2 working days from the time of discharge P & L CEDAR PRODUCTS the crew whether Jenny had appointed a grievance com- mittee to talk with Whitehead about his and Stalcup's dis- charge grievances 27 When he received a negative response Holmgren asked Jenny why he had not appointed a griev- ance committee Jenny replied, "can't you get it through your thick heads that Whitehead is not going to meet with you " Holmgren asked Jenny why he did not process the grievance Jenny answered, "he was tired of the whole situ- ation, and he was not going to do anything more " At this point Whitehead, who had been observing what was taking place, interjected, "how can you expect any grievance pro- cedure after you talked to me that way " Holmgren asked her to repeat what he was supposed to have said White- head refused to do so but asked Jenny to repeat what it was that Holmgren had said on December 12 Jenny declared that Holmgren had told Whitehead to "blow it out her ass " Holmgren denied this and asked the crew if anyone wanted to be on the grievance committee but was informed that without the approval of the shop steward they could not act On December 17 Holmgren, by phone, notified Council Representative Schoonover that Jenny had refused to han- dle the discharge grievance filed by himself and Stalcup Schoonover informed Holmgren he was tired of "this whole thing," that he had gotten Holmgren's job back once and there was nothing more that he could do During January 1975 Stalcup instituted charges with the Respondent Local against Jenny and Schoonover, alleging that they had failed to properly handle the discharge griev- ances filed by herself and Holmgren Likewise Stalcup filed identical charges with the Respondent Council against An- derson and the officials of the Local Union The charges were read to the membership of the Respondent Local at the monthly meeting held on January 19, 1975, and the president of the Local indicated they were barred by the limitation period in the Union's constitution During the course of the meeting Stalcup stated that regardless of the merits of the discharge grievances filed by herself and Holmgren that she felt that at the very minimum Holmgren and herself should be afforded the opportunity to tell their side of the story The president of the Local stated that he did not know what to do about the discharge grievances and told Stalcup that if she needed further help to ask Anderson Stalcup immediately asked Anderson, who was present, what Holmgren and herself could do about their discharge grievances Anderson did not answer but later that month notified Stalcup, by letter, that he had talked to some people about Stalcup's grievance and understood that Stalcup had been discharged for "poor work" and there was nothing further he could do 27 The contractual grievance procedure provides that a discharged em- ployee process his grievance through the union shop committee Since Stal- cup and Holmgren had constituted two-thirds of the committee their dis- charges made it necessary for Jenny to appoint two new committee members 28 As noted infra the Council fixes the amount of these dues and by virtue of a per capita tax shares in the dues 2 Discussion and ultimate findings 257 (a) The responsibility of the Respondent Unions for the conduct of Jenny, Schoonover, and Anderson Turning first to the threshold question of the status of Jenny, Schoonover, and Anderson, Respondent Unions admit that at all times material Jenny was an agent acting for the Respondent Local and that Anderson and Schoon- over were agents acting for the Respondent Council Gen- eral Counsel takes the position that Jenny acted as an agent for the Respondent Council as well as the Local and that Schoonover and Anderson acted as agents for the Re- spondent Local as well as the Council In evaluating this aspect of the case, I am of the opinion that the record establishes that Respondent Unions were engaged in a Joint venture in representing the employees employed by Respondent Employer and in administering the applicable collective-bargaining agreement and that pursuant to this agreement were specifically engaged in a common enter- prise in handling Stalcup's and Holmgren's grievances In so concluding, I have considered the terms of the collec- tive-bargaining agreement, the Council's constitution and bylaws and the Local's bylaws and work rules, and the conduct of Jenny and Anderson and Schoonover in han- dling the disputed grievances The collective-bargaining agreement The collective-bargaining agreement was signed by the Council but by its terms states that it was negotiated and signed by the Council acting for itself and in behalf of the Local and designates the Local as the employees' exclusive bargaining representative Under the terms of the agree- ment, both the Council and Local receive benefits and share the responsibilities of representing the employees covered by the agreement (i) Under the agreement's union-security provision, the employees must join the Local and pay dues to the Local as a condition of continuing employment 28 Likewise the dues-checkoff provision provides for dues payment to the Local, however, the Council as well as the Local agree to hold the Respondent Employer harmless against liability arising out of action taken in connection with an employee's dues payments (ii) Under the agreement's health and welfare and pen- sion plans, the Respondent Employer agrees to contribute on behalf of the employees to plans established by the Em- ployer and Council (iii) The Local is given the power to designate one Satur- day a year as a picnic day which must be honored by the Respondent Employer as a nonwork day (iv) The agreement creates a standing safety committee to propose contract language to the Council and Respon- dent Employer and to provide guidance to the Local and the Employer in inaugurating a safety training program Also the agreement gives the Local authority to summon a 258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD state safety inspector in connection with noncompliance of state safety regulations (v) Any addendum or supplement to the agreement must be approved or rejected by the Council (vi) Any proposed change in the contractual wage rates must be dealt with first by a committee composed of repre- sentatives from the Local, Council, and Employer Any agreement to change the rates of pay must be approved by the Council (vii) In the case of employees who believe they have been unjustly discharged the agreement provides that they "may request the Union Shop Committee," which is select- ed by the shop steward, to meet with the Employer over their grievance In the case of all other employee griev- ances, the agreement provides that they be discussed first by the Employer with the shop steward and shop commit- tee who may ask for a representative from the Council to attend but in any event any settlement must be approved by the Council and if no settlement is reached the Council representative must be notified and only then, if a solution can not be reached, may the Local resort to economic ac- tion The Council's constitution and bylaws, the Locals bylaws and work rules The symbiotic relationship between the Council and the Local is further demonstrated by the Council's constitution and bylaws and the Local's bylaws and work rules which when considered alongside of the collective-bargaining agreement further establish that the Local and Council rep- resent the mill employees and administer the bargaining agreement as a joint venture The Council's constitution and bylaws and Local's bylaws and working rules in perti- nent part provide (i) Both organizations are chartered by and subject to the United Brotherhood of Carpenters and Joiners of America, AFL-CIO The Local admits employees to mem- bership, the Council does not The Local affiliates itself, as do several other locals, with the Council (ii) The local unions affiliated with the Council, includ- ing Respondent Local, elect delegates to the Council and the Council's executive officers are likewise elected by the local unions (iii) All collective-bargaining agreements under which members are employed must be approved and signed by the Council and are negotiated by a Council negotiation committee whose bargaining position is guided by recom- mendations from members of the affiliated local unions The Council may not execute an agreed-upon contract un- less it has been ratified by the membership of the affiliated locals (iv) The Council derives its income from a per capita tax imposed on its affiliated locals and can additionally spe- cially assess a local (v) Applications for the chartering of new locals are made through the Council to the International Union and determinations to dissolve or consolidate an existing local are made by the Council (vi) The Council is the central governing body, with leg- islative and executive power over all matters relating to the locals and their members As such the Council establishes the amount of dues and initiation fees paid by local mem- bers, establishes working and trade rules, and enforces said rules and issues working cards (vii) The Council has the sole authority to conduct trials and impose discipline upon members who violate the rules of the Council or locals and to retain fines levied for the violations of said rules (viii) The rules and bylaws passed by the locals must be consistent with and approved by the Council The conduct of Jenny, Schoonover, and Anderson in handling the grievances What occurred when Stalcup and Holmgren grieved over their discharges further illustrates that the Local and Council were engaged in anoint venture in connection with the representation of the mill's employees and the adminis- tration of the agreement covering these employees and that pursuant to this common venture jointly handled the griev- ances The collective-bargaining agreement provides that in the case of discharge grievances that a shop committee would discuss said grievances with the employer at the first step of the grievance procedure The shop committee is selected by the shop steward Shop Steward Jenny, admittedly an agent of the Local, was supposedly appointed to his posi- tion by the Local's president but in fact had been appoint- ed by the Council and, as described supra, retained his position when a majority of the employees voted for him in an election conducted with the permission of the Council Holmgren and Stalcup took their discharge grievance di- rectly to Schoonover, who as described supra did not object to this procedure To the contrary, he phoned the Respon- dent Employer and arranged for a grievance meeting Schoonover and his boss, Anderson, met with the Respon- dent Employer and discussed the grievances of Holmgren and Stalcup in Jenny's presence, at Jenny's home, and agreed with the Respondent Employer's justification for Stalcup's discharge and objected to Holmgren's It was Schoonover who notified the discriminatees of the outcome of this grievance meeting and, as described supra, suggest- ed they both return to work the next morning When Re- spondent Employer refused to reinstate Holmgren and continued to refuse to reinstate Stalcup, Holmgren prompt- ly grieved to Jenny and Schoonover Jenny refused to han- dle the matter and Schoonover stated he would consult with Anderson Thereafter, the discriminatees met with Schoonover and Anderson and presented a written ac- count of the facts pertinent to an evaluation of the merits of their discharge Anderson and Schoonover read the ac- count and indicated they could do nothing more for them and suggested that they start back at the mill level, where- upon, the discrimmatees asked Jenny, in writing, to ap- point a shop committee and meet with the Respondent Employer about their discharges When Jenny refused to comply with this request, Stalcup complained at a Local meeting about the manner in which representatives of Re- spondent Unions had handled the grievances of Stalcup and Holmgren The Local's president indicated he did not know what to do about the matter and advised Stalcup that any further discussion should be between Stalcup and An- P & L CEDAR PRODUCTS 259 derson Stalcup asked Anderson what if anything could be done about her grievance and Holmgren's Anderson said nothing but later that month by letter notified Stalcup in effect that he had investigated her grievance and felt it was without merit and that nothing further could be done about her discharge In sum, what occurred when Stalcup and Holmgren sought the aid of the Respondent Unions establishes that at all times from the start to finish the representatives of the Council and Local jointly handled the discriminatees' grievances Based on the foregoing, I find that Respondent Unions were engaged in a joint venture in representing the employ- ees employed by the Respondent Employer and in admin- istering the applicable collective-bargaining agreement and that pursuant to this agreement were engaged in a common enterprise in handling Stalcup's and Holmgren's griev- ances Under these circumstances, I further find that Jen- ny, Schoonover, and Anderson in relation to these griev- ances acted as agents of the Respondent Council and Respondent Local and that Council and Local each are chargeable with the consequences of such acts 29 Cf Lodge No 40, Boilermakers (Riley-Stoker Construction Co), 197 NLRB 738, 742-743 (1972) In reaching this conclusion I have not relied solely upon the closeness between the Council and Local as exhibited by the constitution, bylaws, and working rules (see Franklin Electric, 121 NLRB 143 (1958) ), rather, this is only one of several factors which established the joint responsibility of the Respondent Unions for the handling of the discriminatees' grievances See, e g, Sheet Metal Workers Intl Assoc (Burt Manufac- turing Co), 127 NLRB 1629, 1666-67 (1960), Lodge No 40, Boilermakers, supra (b) The Respondent Council's contention that Section 10(b) of the Act prevents the issuance of an order against the Council Respondent Council urges that Section 10(b) of the Act, which provides that "no complaint shall issue based upon any unfair labor practices occurring more than 6 months prior to the filing of the charge," prevents issuance of an order against Respondent Council It points to the fact that the Charging Parties did not file a charge specifically nam- ing the Council until July 2, 1975, more than 6 months after the Council's actions involving Stalcup's and Holmgren's grievances However, as found supra, the rec- ord establishes that, in representing the mill's employees and in administering the agreement covering these employ- ees, the Respondent Council with the Respondent Local was engaged in a joint venture and that the handling of Stalcup's and Holmgren's grievance by the Council was a part of the operation of this joint venture Under these circumstances, I am of the opinion that for purposes of this 29 The consolidated complaint does in haec verba allege that the Respon- dent Unions' relationship was that of a joint venture However, the com- plaint does allege that Jenny, Anderson, and Schoonover acted as agents on behalf of both the Council and Local Also Respondent Unions at the start of the hearing were apprised that in effect this was the General Counsel's theory and the joint venture question was fairly and fully tried proceeding that the notice of service on the Local was suf- ficient to satisfy the statutory requirements that the Coun- cil be fairly apprised of the alleged unfair labor practices and accorded an opportunity to defend against them Cf Ref-Chem Company, et al, 169 NLRB 376, 380 (1968), NLRB v A E Nettleton Co, 241 F 2d 130, 133 (C A 2, 1957), International Brotherhood of Teamsters v United States, 275 F 2d 610 (C A 4, 1960), cert denied 362 U S 975 Here, as found supra, the Local was served with the charge and the complaint Further, both the Local and Council were fully aware at all times that the unfair labor practices alleged concerned the conduct of Jenny, Ander- son, and Schoonover, who, while acting as agents for the Council and Local, unlawfully refused to process the griev- ances of Stalcup and Holmgren This is what the consoli- dated complaint in substance alleges And, several weeks prior to the hearing, Respondent Council through its attor- ney was served with a copy of the complaint, filed a timely answer denying the commission of the alleged unfair labor practices, and participated and adduced evidence at the hearing in defense of the charges Moreover, considering the close relationship between the Respondent Unions as the joint representatives of the mill's employees, it is realis- tic to presume that the Council received prompt notice about the initial charge filed against the Local on January 21, 1975, which alleged in substance that the Local through its agents and representatives failed and refused to proper- ly represent Holmgren and Stalcup by failing and refusing to process their grievances In this regard I note that Forks, Washington, where the offices of the Council and Local were located at the time and where the charge was served on the Local, is a small town with a population of less than 2,000 Based on the foregoing, I reject Respondent Council's 10(b) defense and deny that portion of its motion to dis- miss which is based on this defense (c) The Respondent Unions' failure to properly represent Stalcup and Holmgren The consolidated complaint in substance alleges that Re- spondent Unions violated Section 8(b)(1)(A) of the Act by refusing on December 11, 1974, to process Stalcup's dis- charge grievance and by refusing on December 12, 1974, and thereafter, to accept Holmgren's discharge grievance In support of these allegations, the General Counsel urges that the record proves that Respondent Unions violated their statutory duty of fair representation owed Stalcup and Holmgren The test of failure by a labor organization to fairly represent unit employees was set forth by the Su- preme Court in Vaca v Sipes, 386 U S 171 (1967) There the Court held, "A breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, dis- criminatory, or in bad faith" at 190 Likewise it is settled that "Union action which is arbitrary need not be motivated by bad faith to amount to unfair representa- tion " Ruzicka v General Motors Corp, 523 F 2d 306 (C A 6, 1975) Guided by these principles, I shall evaluate sepa- rately the Respondent Unions' handling of Stalcup's and Holmgren's grievance 260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stalcup's grievance The record establishes that the efforts of the Respondent Unions to restore Stalcup's employment was half-hearted, and fell far short of the standards which govern a union's representation of its members On December 11, 1974, im- mediately following her discharge, Stalcup sought the aid of Council Representative Schoonover who agreed to meet with Stalcup and Holmgren to discuss what had taken place, yet, for an unexplained reason Schoonover failed to meet them as promised 30 Instead, with Anderson and Jen- ny, Schoonover met with Respondent Employer White- head and, at this time, without any questioning approved of Whitehead's justification for Stalcup's discharge Schoonover accepted Whitehead's uncorroborated asser- tion that Stalcup had been guilty of multiple acts of insub- ordination and was discharged for this reason in addition to her having caused dissension among the crew In my opinion, this is a clear example of arbitrary and perfuncto- ry handling of a grievance For, "the duty to fairly repre- sent included the duty to act as advocate for the grievant Failure to discuss the case with (the grievant) was not mere negligence, it was a reckless disregard of his rights " E L Mustee & Sons, Inc, 215 NLRB 203 (1974), citing Sargent Electric Company, 209 NLRB 630 (1974) Additional evidence of the lack of fair representation is Schoonover and Anderson's acceptance at face value of Whitehead's uncorroborated reasons for discharging Stal- cup, despite the fact that the surrounding circumstances cried out for an investigation Thus, when Schoonover and Anderson met with Whitehead about Stalcup's grievance they had information from three sources concerning Stalcup's discharge, Shop Steward Jenny and the warning and termination slips issued to Stalcup Jenny told them that Stalcup was discharged for creating dissension The warning slip threatened Stalcup with discharge for causing dissension of any kind among the crew And the termina- tion slip stated that Stalcup was fired for three reasons, namely, causing dissension, holding an unauthorized meet- ing during breaktime, and for refusing to fix bundles as requested by Whitehead However, when Schoonover told Whitehead that Stalcup could not be discharged for caus- ing dissension, Whitehead in effect disavowed this reason and justified the discharge on the ground that Stalcup had been insubordinate toward Whitehead by refusing orders to use band sticks, to repack bundles, and to mark bundles In other words Whitehead abruptly shifted the grounds for the discharge and advanced two new reasons, not listed on Stalcup's termination slip, and disavowed the so-called "unauthorized meeting" and "dissension" as grounds for the discharge Nevertheless, Respondent Unions' represen- tatives simply accepted Whitehead's justification without 30 I can not conclude that Schoonover s failure to meet with Stalcup and Holmgren as promised was the result of a misunderstanding Schoonover in no uncertain terms had been informed that the meeting was to take place at the discriminatees trailer and indicated he would meet them there At the hearing Schoonover failed to explain his failure to meet with Stalcup and Holmgren prior to the meeting with Whitehead, nor did he explain why after hearing Whitehead's accusations against Stalcup he made no effort to secure Stalcup's story of the events before agreeing that the discharge was justified even questioning her about the bona fides of the new rea- sons advanced to justify the discharge and without even giving Stalcup an opportunity to explain or defend Five days after the Respondent Unions had in effect placed their stamp of approval upon Stalcup's discharge, Anderson and Schoonover at the insistence of Stalcup and Holmgren read their account of the events which led up to and resulted in Stalcup's discharge Even then they made no effort to seek out Whitehead and confront her with these facts but instead Anderson told Stalcup, "I don't know what I can do with this [referring to Stalcup's written account] we've done all we can" and, suggested that Stal- cup start back at the mill level with her grievance Thereaf- ter, Stalcup and Holmgren presented a written grievance to Jenny asking for a meeting with the shop committee and Whitehead about their discharges Jenny refused to process the matter, explaining that he was tired of the whole situa- tion Jenny also stated, "Whitehead is not going to meet with you", however, there is a lack of evidence that this was true Neither Jenny nor Whitehead testified that Whitehead subsequent to the grievance meeting of Decem- ber 11 was ever asked or had refused to meet with repre- sentatives of Respondent Unions to discuss either Holmgren's or Stalcup's grievance Based on the foregoing, I find that in their handling of Stalcup's discharge grievance that the Respondent Unions acted in an arbitrary and perfunctory manner in violation of their duty to fairly represent Stalcup in presenting her grievance Accordingly, Respondent Unions violated Sec- tion 8(b)(1)(A) of the Act Holmgren's grievance As I have found supra, on December 12 Whitehead con- ditioned Holmgren's reinstatement upon his agreement to cease causing dissension among the crew and unlawfully refused to reinstate Holmgren Holmgren went immedi- ately to Shop Steward Jenny and sought his aid Jenny refused, without any explanation, to handle Holmgren's grievance Holmgren the same day sought the aid of Coun- cil Representative Schoonover and specifically told Schoonover that Whitehead had in effect refused to rein- state him for the same reason he had been discharged Schoonover replied he did not know what more could be done since he had already gotten Holmgren's job back once already Holmgren complained that Schoonover had reached a decision without even hearing what had oc- curred Schoonover stated he would consult with the Council's executive secretary, Anderson, about the matter The treatment accorded Holmgren by Jenny and Schoonover on December 12, in my opinion, does not comport with the duty of the Respondent Unions to fairly represent Holmgren Jenny and Holmgren without any ra- tional explanation arbitrarily refused to aid Holmgren This is especially strange since, 1 day earlier under the im- pression that Holmgren had been discharged in substantial part for causing dissension, Schoonover had taken the po- sition at the grievance meeting that this was not a ground for immediate dismissal, thereby securing a commitment by Whitehead to reinstate Holmgren Yet the next day, when Holmgren informed him that Whitehead had refused P & L CEDAR PRODUCTS 261 to reinstate him for the same reason she had earlier dis- charged him, Schoonover indicated he could do nothing about the matter Schoonover took this position without first even listening to Holmgren's version of the events or, for that matter, without even speaking to Whitehead about the matter Then on December 16 Schoonover and Anderson at the insistence of Holmgren and Stalcup read Holmgren's writ- ten account of what transpired between himself and White- head Schoonover's reaction was that since he had already helped Holmgren get his job back once that he could not see why he should do anything more for Holmgren inas- much as Holmgren would in all probability not be able to keep his job even if Whitehead agreed for a second time to reinstate him Anderson suggested that Holmgren and Stal- cup start again with their grievance at the mill level Fol- lowing this advice, Holmgren submitted a written request to Shop Steward Jenny asking that Jenny summon the shop committee to meet with Whitehead about his dis- charge The next day Jenny informed Holmgren in effect that he would not appoint a shop committee to process the grievance or otherwise process the grievance explaining that he was tired of the whole situation 3i Holmgren imme- diately notified Schoonover of Jenny's refusal Schoonover, like Jenny, stated he was tired of the whole matter and that nothing more could be done In my opinion, as described above, the treatment ac- corded Holmgren by Schoonover, Anderson, and Jenny following December 12, like his treatment by Jenny and Schoonover on December 12, does not comport with the duty of the Respondent Unions to fairly represent Holm- gren Respondent Unions' representatives during this peri- od refused to process Holmgren's grievance over Whitehead's refusal to reinstate him even though the sole evidence in their possession, Holmgren's written account, indicated that the conduct of the Respondent Employer was completely without justification 32 Based on the foregoing, I find that in handling Holmgren's grievance that the Respondent Unions acted in an arbitrary and perfunctory manner in violation of their duty to fairly represent Holmgren in presenting his griev- ance Accordingly, the Respondent Unions violated Sec- tion 8(b)(1)(A) of the Act Miscellaneous contentions In concluding that Respondent Unions improperly pro- cessed the discrimmatees' grievances, I have considered and rejected General Counsel's contention that personal hostility between the discrimmatees and Jenny motivated 31 During this conversation, as described in detail supra, Jenny declared that it was his understanding that Holmgren had told Whitehead on Decem- ber 12 "to blow it out her ass' Jenny did not testify about this remark which was in my view a patent fabrication No one including Whitehead attributes such a remark to Holmgren and nothing Holmgren said to White- head on December 12, regardless of whose testimony is credited, could have been construed in this fashion Finally, I note that no one places Jenny sufficiently close enough to have heard what was said between Holmgren and Whitehead on December 12 32 There is no contention or evidence that during the time material that representatives of the Respondent Unions spoke to Whitehead about the reasons which caused her on December 12, to refuse to reinstate Holmgren Respondent Unions' illegal conduct Although it is plain that Jenny was antagonistic toward Holmgren and Stalcup for reasons which in part relate to internal union matters and in part to conditions of employment at the mill, I do not believe that the record preponderates in favor of a finding that the Respondent Unions' conduct was motivat- ed by Jenny's personal hostility Likewise, I have considered and rejected Respondent Unions' defense that neither of the discriminatees "filed a valid timely complaint or grievance under the collective- bargaining agreement " In this regard the agreement states that a discharged employee "may request the Union shop committee to represent him [and] (T)he Employer agrees to meet with the shop committee upon written request which must be made within 2 working days from the time of the discharge " Respondent Unions urge that neither Holmgren or Stalcup filed a timely "written request" as provided in the agreement I disagree The agreement does not require that a grievant file a written request, rather it merely requires a grievant request representation by the union shop committee and indicates that it is the shop committee, not the grievant, which shall make the written request to the Employer for a grievance meeting Also the discriminatees' failure to initially request that the shop committee represent them is not fatal inasmuch as neither the Respondent Unions' representatives nor the Respon- dent Employer ever objected to the manner in which the discriminatees chose to proceed with their grievances It is undisputed that on December 11, the day they were dis- charged, the discrimmatees sought the aid of Council Rep- resentative Schoonover, who that same day met with Shop Steward Jenny and Council Executive Secretary Anderson, and together they met with Respondent Employer and dis- cussed and resolved the grievances In other words the rec- ord overwhelmingly establishes that the discriminatees filed their grievances within the time and in a form permit- ted by the agreement In addition, the record establishes that Respondent Unions' argument, raised for the first time in this proceeding, that the discriminatees did not file a valid or timely grievance is an afterthought unrelated to the Respondent Unions' failure to properly process the grievances Thus, during the material period of time there were several conversations between the discriminatees and various officials of the Respondent Unions, as well as Anderson's written communication to Stalcup, neverthe- less, at no time did anyone indicate to the discriminatees that their grievances were untimely filed or otherwise did not conform to the filing requirements contained in the collective-bargaining agreement Finally Respondent Unions contend that the lack of a binding contractual arbitration provision militates against concluding that they acted improperly because, absent compulsory arbitration, the parties "could have argued about the matter forever " I disagree The statutory right of fair representation is derived from the principle of exclu- sive representation set forth in Section 9(a) of the Act (Vaca v Sipes, 386 U S 171, 177-178, 181-183 (1967) ), thus, although Respondent Unions' failure to properly pro- cess the disputed grievances did not occur in the context of a grievance procedure ending in binding arbitration, they still had a statutory duty to fairly represent the employees 262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in handling their contractual grievances See Figueroa de Arroyo, et al v Sindicato de Trabajadores Packinghouse, 425 F 2d 281, fn 2 (C A 1, 1970) (d) Respondent Local's attempt to cause Smith Shingle Company to discharge Stalcup and Holmgren On January 20, 1975, Holmgren and Stalcup were hired by the M R Smith Shingle Company They were hired by Merle Watson, the company's assistant manager Smith Shingle's employees were covered by the identical collec- tive-bargaining agreement as the Respondent Employer's employees Smith Shingle's second shift shop steward, ad- mittedly an agent of the Respondent Local, is Art Holz, who is employed there as a packer Also employed by Smith Shingle is Mickey Gooding the Respondent Local's vice president, admittedly an agent of the Local The consolidated complaint alleges and the General Counsel contends that, following the discriminatees' em- ployment by Smith Shingle, Holz and Gooding ap- proached Assistant Manager Watson and attempted to cause him to discharge the discriminatees for reasons pro- scribed by the Act The pertinent facts are undisputed and can be briefly stated The undenied testimony of Watson is that during the first week of the discriminatees' employment-the week of January 20, 1975-Holz and Gooding spoke to him about them He testified that "Holz mentioned to me that I should be very careful about hiring Linda (Stalcup) and Rex (Holmgren) because of trouble that they had [and] cautioned me about being careful when I did hire them," and explained to Watson that they had trouble with their previous employer inasmuch as they watched for safety vi- olations and "things like this" and were careful about what "was going on " Likewise, Gooding during this period spoke to Watson about Holmgren and Stalcup and, as Watson testified, told him "very much the same" as Holz, "just cautioning me that there had been trouble with them " Admittedly neither Holz nor Gooding asked Wat- son to take any kind of action against Stalcup or Holmgren nor was the employment of Holmgren and Stalcup affected in any manner by these conversations Based on the foregoing, I find that the record fails to establish that either Gooding or Holz engaged in the type of conduct which rises to the level of an attempt to cause a violation within the meaning of Section 8(b)(2) and, inas- much as Watson is a statutory supervisor, their remarks were otherwise not proscribed by Section 8(b)(1)(A) Un- der the circumstances, I shall recommend that this portion of the consolidated complaint be dismissed (e) Respondent Local threatens Stalcup It is undisputed that on January 27, 1975, Stalcup was waiting in Smith Shingle's packing room with employees Robinson and Walkoff when Shop Steward Holz, as he walked by, told Robinson and Walkoff that Stalcup "has charges in on all of you " Robinson asked if this was true and Stalcup stated she only had "charges in on Union offi- cials that have not been doing their job " Holz then stated that Anderson, the Respondent Council's executive secre- tary, had told him that Stalcup had "charges in on ev- erybody " Holz warned Stalcup, "you better watch out You and him aren't going to be around very long " Previously, as described supra, Stalcup had filed intraun- ion charges against Schoonover, Anderson, and Jenny, al- leging that they had failed to properly process the dis- charge grievances filed by herself and Holmgren Likewise, on January 21, 1975, Holmgren had filed the charges in- volved in the instant litigation alleging that Respondent Local had failed to fairly represent himself and Stalcup in connection with the aforesaid grievances Based on the foregoing, I find that Holz, admittedly an agent of the Respondent Local, in the presence of other employees threatened Stalcup that Stalcup and Holmgren would suffer reprisals because Stalcup had engaged in in- traunion activities protected by the Act and because Holm- gren had filed unfair labor practice charges with the Board on behalf of himself and Stalcup By engaging in this con- duct, Respondent Local violated Section 8(b)(1)(A) of the Act Upon the basis of the foregoing findings of fact and the entire record, I make the following CONCLUSIONS OF LAW 1 Respondent Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Respondent Unions are labor organizations within the meaning of Section 2(5) of the Act 3 By discharging Rex Holmgren and Linda Stalcup for engaging in protected concerted activities, Respondent Employer violated Section 8(a)(1) of the Act 4 By excessively criticizing, policing, and harassing Rex Holmgren and Linda Stalcup for engaging in protected concerted activities, Respondent Employer violated Sec- tion 8(a)(1) of the Act 5 By threatening Linda Stalcup with reprisals because she engaged in intraunion activities protected by the Act and because unfair labor practice charges had been filed on her behalf, Respondent Local violated Section 8(b)(1)(A) of the Act 6 By processing the grievances of Linda Stalcup and Rex Holmgren in an arbitrary and perfunctory manner and not representing them fairly, Respondent Unions vio- lated Section 8(b)(1)(A) of the Act 7 The aforesaid unfair labor practices affect commerce within the meaning of the Act THE REMEDY Having found that Respondent Employer and the Re- spondent Unions have engaged in certain unfair labor practices, it will be recommended that they cease and de- sist therefrom and take certain affirmative action designed to effectuate the purposes of the Act It has been found that Respondent Employer has violat- ed Section 8(a)(1) of the Act by discharging Linda Stalcup and Rex Holmgren I shall, therefore, recommend that the Respondent Employer offer them immediate and full rein- statement to their former jobs or, if these jobs no longer P & L CEDAR PRODUCTS 263 exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges I shall further recommend that Respondent Employer make Stalcup and Holmgren whole for any loss of earnings they may have suffered as a result of their discharges by payment of a sum of money equal to what they normally would have earned from December 11, 1974, to the date the Respondent Employer offers them reinstatement, less net earnings, with backpay and interest thereon to be com- puted in the manner prescribed by the Board in F W Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb- ing & Heating Co, 138 NLRB 716 (1962) It will also be recommended, in view of the nature of the unfair labor practices, that Respondent Employer be or- dered to cease and desist from infringing in any manner upon the rights guaranteed employees by Section 7 of the Act N L R B v Entwistle Mfg Co, 120 F 2d 532, 536 (C A 4, 1941) The General Counsel requests that I recommend an or- der providing that the Respondent Unions jointly and sev- erally with the Respondent Employer make the discrimma- tees whole for any loss of pay (citing Sargent Electric Company, et al, 209 NLRB 630 (1974)) or, in the alterna- tive providing that the Respondent Unions grieve promptly over the propriety of the discriminatees' discharges and if necessary to institute a civil suit against the Respondent Employer under Section 301 of the Act, paying the legal fees so that the discrimmatees may retain independent counsel (citing Teamsters Local Unions Nos 186 (United Parcel Service), 203 NLRB 799 (1973)) I have carefully considered this contention and find that the cases cited are not controlling in the instant situation but rather that the Board's Orders in Selwyn Shoe Manufacturing Corp, 172 NLRB 674 (1968) (Rembold's discharge and grievance), and E L Mustee & Sons, Inc, 215 NLRB 203 (1974), are more appropriate to the instant situation Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed ORDER33 A Respondent Employer, Phyllis Whitehead d/b/a P & L Cedar Products, Forks, Washington, its officers, agents, successors, and assigns, shall I Cease and desist from (a) Harassing employees by excessive criticism, policing, and surveillance because they have engaged in protected concerted activities (b) Discharging or issuing warning slips to employees because they have engaged in protected concerted activi- ties (c) In any other manner interfering with, restraining, or 33 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board the findings, conclusions and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings conclusions, and Order, and all objections thereto shall be deemed waived for alt purposes coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act 2 Take the following affirmative action designed to ef- fectuate the policies of the Act (a) Offer Linda Stalcup and Rex Holmgren immediate and full reinstatement to their former jobs or, if these jobs no longer exist, to substantially equivalent positions, with- out prejudice to seniority or other rights and privileges, and make them whole for any loss of pay suffered by reason of the discrimination against them in the manner provided above in the section entitled "The Remedy " (b) Rescind and delete from personnel files the written warning slips issued to Rex Holmgren and Linda Stalcup on December 10, 1974 (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security records, timecards, personnel records, and reports, and all other records necessary to an- alyze the amount of backpay due under the terms of this Order (d) Post at its place of business copies of the attached notice marked "Appendix A " 34 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent Employer, shall be posted immediately upon receipt thereof and be main- tained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent Employer to insure that said notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith IT IS FURTHER ORDERED that the complaint in Case 19- CA-7487 be, and it hereby is, dismissed insofar as it alleges that the Respondent Employer violated the Act otherwise than as found herein B Respondent Council, Washington-Oregon Shingle Weavers District Council of United Brotherhood of Car- penters and Jointers of America, Forks, Washington, its officers, agents, and representatives, shall 35 I Cease and desist from (a) Restraining or corecing unit employees in the exer- cise of their rights guaranteed by Section 7 of the Act by failing to fairly represent them in the processing of their grievances (b) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed by Sec- tion 7 of the Act 2 Take the following affirmative action which is neces- sary to effectuate the policies of the Act 34 In the event that the Boards Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading Posted by Order of the National Labor Relations Board' shall read Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board 35 Subsequent to the unfair labor practices Respondent Council went out of existence and Respondent Local affiliated itself with a new District Council The parties to this proceeding agreed that the question of whether any labor organizations constitute successors to the Respondent Unions for purposes of remedying the unfair labor practices was a subject best left for the compliance stage of this proceeding 264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Post at the Respondent Council's business offices and meeting halls copies of the attached notice marked "Appendix B " 36 Copies of said notice, to be furnished by the Regional Director for Region 19, after being duly signed by the Respondent Council's representative, shall be posted immediately upon receipt thereof and be main- tained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to members are customarily posted Reasonable steps shall be taken by Respondent Council to insure that said notices are not al- tered, defaced, or covered by any other material (b) Notify the Regional Director for Region 19, in writ- mg, within 20 days from the date of this Order, what steps Respondent Council has taken to comply herewith IT IS FURTHER ORDERED that the consolidated complaint in Cases 19-CB-2377 and 19-CB-2467 be, and it hereby is, dismissed insofar as it alleges that the Respondent Council violated the Act otherwise than as found herein C Respondent Local, Port Angeles Shingle Weavers Local 2555 of United Brotherhood of Carpenters and Join- ers of America, Forks, Washington, its officers, agents, and representatives, shall 1 Cease and desist from (a) Restraining of coercing employees in the exercise of their rights guaranteed by Section 7 of the Act by threaten- ing them with reprisals for filing unfair labor practice charges with the Board or for participating in protected intraunion activities (b) Restraining or coercing unit employees in the exer- cise of their rights guaranteed by Section 7 of the Act by failing to fairly represent them in the processing of their grievances (c) In any like or related manner restraining or coercing employees in the exercise of their rights guaranteed by Sec- tion 7 of the Act 2 Take the following affirmative action which is neces- sary to effectuate the policies of the Act (a) Post at the Respondent Local's business offices and meeting halls copies of the attached notice marked "Ap- pendix C " 37 Copies of said notice, to be furnished by the Regional Director for Region 19, after being duly signed by the Respondent Local's representative, shall be posted immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are custom- arily posted Reasonable steps shall be taken by Respon- dent Local to insure that said notices are not altered, de- faced, or covered by any other material 36 See In 34, supra "See In 34 supra (b) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of this Order, what steps Respondent Local has taken to comply herewith IT IS FURTHER ORDERED that the consolidated complaint in Cases 19-CB-2377 and 19-CB-2467 be, and it hereby is, dismissed insofar as it alleges that the Respondent Local violated the Act otherwise than as found herein APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain or coerce employees whom we represent in the exercise of their rights guaranteed them by Section 7 of the Act by failing or refusing to fairly represent them in processing their grievances WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of their rights guaranteed them by Section 7 of the Act WASHINGTON-OREGON SHINGLE WEAVERS DISTRICT COUNCIL OF UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AND ITS SUCCESSORS APPENDIX C NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT restrain or coerce employees in the ex- ercise of their rights guaranteed by Section 7 of the Act by threatening them with reprisals for filing unfair labor practice charges with the Board or for partici- pating in protected intraunion activities WE WILL NOT restrain or coerce employees who we represent in the exercise of their rights guaranteed by Section 7 of the Act by failing to fairly represent them in processing their grievances WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guar- anteed them by Section 7 of the Act PORT ANGELES SHINGLE WEAVERS LOCAL 2555 OF UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AND ITS SUCCESSORS