Los Angeles County District Council of Carpenters

350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Los Angeles County District Council of Carpenters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO; Electronic and Space Techni- cians Local 1553, AFL-CIO (Hughes Helicopters, Division of Summa Corporation) and Tommie Moore and Mary L O'Neill Cases 31-CB-1730 and 31-CB-1756 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 FINDINGS OF FACT June 3, 1976 DECISION AND ORDER On September 4, 1975, Administrative Law Judge Jerrold H Shapiro issued the attached Decision in this proceeding Thereafter, General Counsel filed exceptions and a supporting brief, and Respondent filed a brief in support of the Administrative Law Judge's Decision 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 of the Administrative Law Judge and to adopt his recommended Order 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 and hereby orders that the complaint be, and is hereby is, dis- missed in its entirety DECISION STATEMENT OF THE CASE JERROLD H SHAPIRO, Administrative Law Judge The hearing in this case, held on July 14 and 15, 1975, is based on charges filed by Tommie Moore and Mary O'Neill against the Los Angeles County District Council of Car- penters, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the District Council, and Electronic and Space Technicians Local 1553, AFL- CIO, herein called Local 1553, and collectively called Re- spondents The charge in Case 31-CB-1730 was filed against Respondents on November 25, 1974, and the one in Case 31-CB-1756 was filed against the District Council on December 13, 1974, and an amended charge in that case was filed on May 1, 1975, against the Respondents A con- solidated complaint issued on May 9, 1975, on behalf of the General Counsel of the National Labor Relations Board, herein called the Board, by the Regional Director of the Board, Region 31, alleging that Respondents have engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) of the National Labor Relations Act, as p amended, herein called the Act Respondents filed an an- Respondents motion to correct transcript I COMMERCE At all times material Hughes Helicopters, Division of Summa Corporation, herein called the Employer, has maintained manufacturing facilities in California where it manufactures and sells helicopters and related products and where it annually purchases and receives goods valued in excess of $50,000 directly from suppliers located outside the State of California On the basis of the foregoing facts, I find that the Em- ployer is engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act II LABOR ORGANIZATION The District Council and Local 1553 are admittedly la- bor organizations within the meaning of Section 2(5) of the Act III THE QUESTIONS PRESENTED There are two essential questions to be decided (1) Whether Tommie Moore and Mary and Constantine O'Neill were expelled from union membership because they testified against Local 1553 in a Board unfair labor practice proceeding or because they tried to replace Local 1553 with another union, and (2) regardless of the motiva- tion was it permissible to expel them for misconduct which came to the attention of representatives of Respondents during a Board unfair labor practice proceeding when the O'Neills and Moore testified for the General Counsel IV THE ALLEGED UNFAIR LABOR PRACTICES A The Facts 1 The events leading up to the expulsions Local 1553 and the Employer have been parties to suc- cessive collective-bargaining agreements covering a bar- gaining unit of about 500 of the Employer's production and maintenance employees The agreement, in effect dur- ing the time material herein, was scheduled to terminate on June 30, 1973 It included, among other provisions, a main- tenance-of-membership union-security agreement whereby employees who were members of Local 1553 had to remain members for the term of the agreement Otherwise employ- ees were not required to join Local 1553 as a condition of continued employment The three alleged discriminatees- Mary and Constantine O'Neill, and Tommie Moore-were 1 The transcri t of the record is hereby corrected in accordance with 224 NLRB No 54 LOS ANGELES COUNTY DISTRICT COUNCIL OF CARPENTERS 351 employed by the Employer within Local 1553's bargaining unit and at all times material were members of this Union 2 It was not until November 5, 1973, that the negotiators for the Employer and Local 1553 succeeded in executing a new collective-bargaining agreement In the meantime, in August 1973, Teamsters Local 2707, herein called Team- sters, had started a campaign to replace Local 1553 as the employees' bargaining representative Mary O'Neill initial- ly contacted the Teamsters She was the leading Teamsters adherent in the plant The O'Neills and Tommie Moore were among the employees most active on behalf of the Teamsters They campaigned for the Teamsters from Au- gust 1973 until November 1973 They wore buttons which indicated they supported the Teamsters, signed cards au- thorizing the Teamsters to represent them, and solicited their fellow employees to sign such cards These cards were solicited in support of a representation petition which the Teamstt rs filed with the Board on November 5, 1973,3 seeking to unseat Local 1553 as the employees' bargaining representative On November 29, 1973, the Teamsters filed an unfair labor practice charge with the Board against the Employer in Case 31-CA-4120 alleging that the Employer had un- lawfully assisted Local 1553 in violation of Section 8(a)(1) and (2) of the Act, "by entering into an agreement with Local 1553 at a time when it knew a real question concern- ing representation existed " The Board's General Counsel based upon this charge issued a complaint against the Em- ployer which also named, as a party to the agreement, Lo- cal 1553 as an interested party If the General Counsel succeeded in proving that the Employer had unlawfully assisted Local 1553 by entering into the new agreement the agreement would have been set aside and Local 1553 would have been unable to continue representing the Employer's employees absent a Board certification Ac- cordingly, although not named as a respondent, to protect its interests Local 1553 was represented by its attorney and apparently presented witnesses at the unfair labor practice hearing held before an Administrative Law Judge on Sep- tember 10 and 11, 1974 In support of the allegations of the complaint the General Counsel called as witnesses the O'Neills and Moore who admittedly gave testimony which was against the interests of Local 1553 An inextricable part of their testimony was the fact that continuously from August into November 1973 they had actively supported the Teamsters organizational campaign by wearing Team- sters buttons, signing Teamsters authorization cards, and actively soliciting others to sign such cards In attendance at the unfair labor practice proceeding to give testimony for Local 1553 was James Flores a business representative for the District Council who had served as the chairman of Local 1553's negotiating committee and Lillian Anguiano Local 1553's financial secretary The unfair labor practice hearing in Case 31-CA-4120 2 The 0 Neills are husband and wife Mary O'Neill and Tommie Moore were still employed by the Employer at the time of the hearing in this case but Constantine O'Neill was discharged in July or August 1974 3 On the same date Local 1553 and the Employer executed a collective bargaining agreement to replace the one which had terminated on June 30 1973 closed on September 11, 1974 Thereafter the Teamsters in effect disclaimed any intention to represent the Employer's employees represented by Local 1553 On October 4, 1974, the Teamsters requested that it be allowed to withdraw the charge upon which the complaint in Case 31-CA-4120 was based and that the proceeding be vacated This motion was granted by the Administrative Law Judge on October 25, 1974, and the complaint was dismissed Also on October 4, 1974, the Teamsters requested that the Board's Regional Director allow it to withdraw its representation petition which request was granted by the Regional Director on November 8, 1974 James Flores, a business representative for the District Council who was chairman of Local 1553's negotiating committee during the 1973 contract negotiations, during November 1974 preferred charges against the O'Neills and Moore for violating the constitution and laws of Local 1553's International union, the United Brotherhood of Carpenters and Joiners of America The charges,4 identical in substance, were filed with the District Council's secre- tary-treasurer and charged the O'Neills and Moore with violating paragraphs 1, 3, 5, 7, 8, and 13 of section A 55 of the International Union's constitution and laws which read A Section 55 Any member found guilty after charged and tried for any of the following offen- ses, may be expelled (1) Causing dissension among the members of the United Brotherhood (3) Advocating separation of any subordinate body from the United Brotherhood * (5) Willful slander or libel of any officer of any mem- ber of the United Brotherhood * * * (7) Furnishing to any unauthorized person, without the consent of the Local Union, a list of the mem- bership (8) Divulging to any unauthorized person, the busi- ness of any subordinate body without its consent * * * * * (13) Violating the Obligation In the portion of the charge form which asks that the of- fense be specifically described, Flores wrote that the O'Neills and Moore "advocated (to) and supported the Teamsters Distributed material detrimental to Local 1553 [on numerous occasions in mid 1973] " Upon receipt of Flores' charges the District Council's secretary-treasurer, following the procedure set out in the International Union's constitution, sent letters to the O'Neills and Moore notifying them of the charges and set 4 Flores filed the charges against the 0 Neills on or about November 7 1974, and the one against Moore on or about November 11, 1974 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting dates for them to separately appear before the Dis- trict Council's executive committee for the purpose of re- viewing the charges The O'Neills and Moore , as sched- uled, met with the committee at which time the committee chairman read the charges and asked if the accused had anything to say on their behalf The O'Neills pointed out that the misconduct attributed to them had occurred more than 30 days prior to the date Flores had filed the charges and asked why, pursuant to paragraph D, section 56 of the International Union's constitution, the committee did not dismiss the charges The chairman truthfully replied that this provision "did not apply to these charges " 5 The exec- utive committee also met separately with Flores and asked him upon what evidence he based his charges Flores told the Committee that he was present in the hearing room during the unfair labor practice proceeding in Case 31- CA-4120 when the O'Neills and Moore testified to the ef- fect that they had been actively supporting the Teamsters and that based on their admissions made at that time he had filed the charges The executive committee, whose function is to determine whether a charge has sufficient merit to go before a trial committee for hearing , concluded that Flores' charges war- ranted a hearing Accordingly, the District Council's secre- tary-treasurer notified the O'Neills and Moore, by letter, that a hearing on their charges had been scheduled before a trial committee and that they had the right to attend to defend themselves Moore's hearing was held on December 2, 1974, but she did not attend since she failed to claim the certified letter which notified her of the proceeding The O'Neills, as scheduled , on December 16, 1974, attended the hearing held in their cases At each hearing Flores was called upon to support his charges at which time he stated that the O'Neills and Moore had testified in Flores' presence at the unfair labor practice hearing held in Case 31-CA-4120 that they, in effect, had actively and continuously for about 3 or 4 months supported the Teamsters' efforts to supplant Local 1553 as the employees' bargaining representative and had solicited other employees to support the Teamsters Flores told the trial committee that his assertions were supported by the transcript of the unfair labor practice proceeding and if the committee desired to read the transcript it was in the possession of Local 1553's attorney In further support of the charges Flores called as a witness Lillian Anguiano, Local 1553's financial secretary, who told the trial commit- 5 Par D, sec 56 of the International Union's constitution in pertinent part reads When charges are filed in the District Council they shall be re- ferred promptly to the Executive Committee In the event that the Executive Committee determines that the charges allege a By-Law or Trade Rule violation which occurred more than 30 days prior to the filing of the charges, the Executive Committee shall return the charges to the member who filed them with a notice that the charges cannot be considered or processed It is undisputed that this limitation period as the chairman of the executive committee told the O'Neills "did not apply" to Flores charges which in- volved violations of the International Union s constitution and laws and not of the union's bylaws or trade rules The period of limitation set out in sec 56 only applies to the District Councils bylaws and trade rules In this regard I note that the charge form used by Flores clearly differentiates between a violation of "By Laws, trade rules and/or Constitution tee that she had also been present at the unfair labor prac- tice hearing and in effect stated that the O'Neills and Moore, as Flores charged, and admitted during the course of their testimony that they had actively supported the Teamsters and solicited others to support the Teamsters There is no evidence that the O'Neills contested Flores' charge that they had actively supported the Teamsters, rather it appears that they conceded they had engaged in conduct on behalf of the Teamsters for the purpose of re- placing Local 1553 as the employees' collective-bargaining representative The trial committee having considered the evidence de- cided that the O'Neills and Moore were guilty as charged by Flores and should be expelled from the International Union The committee notified the District Council of its verdict which in turn, by letters, notified both Local 1553 and the O'Neills and Moore 6 2 The Respondents prior knowledge that members of Local 1553 including the O'Neills and Moore were supporting the Teamsters On the question of whether even before the alleged dis- criminatees testified in the unfair labor practice proceeding that representatives of Respondents knew that they, as well as other members of Local 1553, had supported the Team- sters, yet took no action, the record reveals the following (a) Moore testified that on November 14, 1973, Edward Cirino, Local 1553's president, in effect told him that he (Cirino) knew Moore had actively campaigned for the Teamsters On direct examination Moore testified that her union steward would not process an overtime pay griev- ance so Moore left her work station and went to Cirino's office and asked why Local 1553 would not process the grievance According to Moore's initial testimony Cirino answered, "because I had participated in passing out litera- ture and stuff for the Teamsters," but Moore then testified "[Cirino] stated he did not have the time " Later during cross-examination Moore testified that when she spoke to Cirino about the grievance that she asked him to telephone the Employer's labor relations manager Charles Bradshaw about the grievance to which Cirino replied, "he did not have the time to call Bradshaw," and that during their con- versation Cirino mentioned to Moore the fact that Moore had been involved in the campaign to get the Teamsters into the plant Moore was unable to place this remark about the Teamsters campaign in its context nor was she able to recall the words used by Cirino Then, upon further cross-examination Moore embellished the story, now, for the first time testifying that she admitted to Cirino she had passed out Teamsters cards and further testified that Ciri- no volunteered that he knew the O'Neills and Robert Bax- ter, another member of Local 1553, as well as Moore had passed out cards for the Teamsters Moore did not impress me as a reliable witness and I reject her version of the meeting with Cirino Her story, 6 The 0 Neills were expelled on January 13 1975 and received the writ- ten notification of their expulsion on or about January 14 1975 Moore was expelled on December 9 1974, and was notified by letter of December 10 1974 but never received the notification which was sent by certified mail to Moore s home address but was not claimed by Moore LOS ANGELES COUNTY DISTRICT COUNCIL OF CARPENTERS 353 that is her account of this conversation, did not come out immediately or smoothly but it came out in jerks and in bits and pieces and always incomplete I received the im- pression that Moore had no independent recollection of what had taken place over a year and a half ago and was manufacturing the conversation as she went along Cirino impressed me as a more reliable witness and I credit his version of what transpired Cirino testified that Moore came into his office to file a grievance against a supervisor claiming that the supervisor was harassing her in that the supervisor intended to transfer Moore back to a depart- ment Moore had previously worked in Cirino told Moore that the Employer under the terms of the bargaining agree- ment had the right to rotate the work force but that insofar as Moore thought the transfer was a form of harassment that Cirino would take care of it in connection with an overtime grievance filed by Moore I or 2 days previously 7 The whole conversation lasted about 10 minutes and ended abruptly when Cirino truthfully told Moore that he could not continue talking with Moore because he had to leave to attend a meeting Moore left the office and on the way out Cirmo stated that he understood that Moore was involved with the Teamsters Cirino has no recollection of whether Moore made any reply Cirino credibly testified that he had heard rumors that the O'Neills, Moore, and a Mary Lou Johnson were "involved with" the Teamsters (b) The O'Neills testified that on November 5, 1973, Cirino observed them wearing their Teamsters buttons Mary O'Neill testified that immediately after the end of Local 1553's meeting on November 5, 1973, to ratify the new bargaining agreement that herself and several others, including her husband, were standing outside of the meet- ing hall, that the O'Neills were wearing their Teamsters buttons, and that Cirino on his way out of the meeting stopped "briefly" and spoke to the group that had gathered outside Mary O'Neill was not able to remember what, if anything, either she or her husband stated to Cirino and could remember only that Cirino made the following re- mark "you would be sorry if you would have got the Teamsters in anyway, because the contract had already been ratified " 8 Mary O'Neill testified that on November 5, 1973, both she and her husband personally knew Cirino Constantine O'Neill testified that on this date Cirino knew him person- ally Neither of the O'Neills offered any reason as to why in a bargaining unit of about 500 employees that Cirmo would know their identity Cirino convincingly testified that he would have been unable to identify either of the O'Neills during November 1973 and that he did not learn the identity of Mary O'Neill until August 1974 and of Con- stantine O'Neill until February 27, 1974 9 Accordingly, I find that when he spoke to the group of members following 7 The overtime grievance was subsequently successfully processed by Lo- cal 1553 8 Constantine O'Neill s version of what occurred, where it occurred and what was said during the above-described encounter with Cirmo differs substantially and is not consistent with his wife s story Under the circum- stances and because Constantine O'Neill was not convincing when he testi- fied on this point I reject his version of what took place on November 5 9 He met them at these times in connection with his handling of griev- ances filed by Constantine 0 Neill the ratification meeting on November 5 that Cirino did not know the identity of the O'Neills (c) The record establishes that Local 1553's senior stew- ard at the plant, Anderson, observed the O'Neills and Moore wearing their Teamsters buttons, but it does not establish that Anderson had any knowledge that the O'Neills were otherwise active in supporting the Teamsters (d) The record establishes that Local 1553's vice presi- dent, Pete Meridith, who personally knew Mary O'Neill, some time between August and November 1973 observed her at a Teamsters organizational meeting along with about 150 other employees and Meridith There is no evi- dence that Meridith knew that O'Neill was supporting the Teamsters in any way other than by wearing a Teamsters button which she was wearing the night of the meeting (e) A Local 1553 shop steward, Jimmy Bright, who worked alongside of Constantine O'Neill knew about O'Neill's activities on behalf of the Teamsters However, I doubt that a steward's knowledge can be attributed to the officials of the Respondents particularly in the case of Bright who, as described below, like O'Neill was a Team- sters sympathizer (f) Robert Baxter, a member of Local 1553 employed by the Employer, passed out Teamsters cards and wore a Teamsters button There is no evidence, however, that his activity on behalf of the Teamsters was known to any of fi- cial of Respondents (g) Jimmy Bright, a Local 1553 shop steward wore a Teamsters button for a few days in August 1973 at the start of the Teamsters campaign and then removed it explaining to Constantine O'Neill that his reason for not wearing the button was the senior steward, Anderson, had advised him he would get into trouble (h) Joyce Bell, a Local 1553 steward, wore a Teamsters button in August for a few days at the start of the Team- sters campaign and removed the button when senior stew- ard Anderson told her to remove it because as a steward she could be brought up on charges by Local 1553 to (i) There is no direct or circumstantial evidence that Flores, who filed the charges against the alleged discrimi- natees, had knowledge before he heard them testify on September 10, 1974, that they had worn Teamsters buttons or had otherwise actively supported the Teamsters in its campaign to replace Local 1553 To the contrary, Flores credibly testified he had no such knowledge prior to Sep- tember 10, 1974 B Analysis and Concluding Findings It is settled that a union may lawfully expel a member pursuant to a union rule for engaging in conduct directed toward replacing the union with another union Tri-Rivers Marine Engineers Union (United States Steel Corporation), 189 NLRB 838 (1971) It is equally settled that a union violates Section 8(b)(1)(A) of the Act when it expells a member for testifying at a Board hearing Cannery Workers Union of the Pacific, affiliated with the Seafarers Internation- al Union of North America, AFL-CIO, (Van Camp Sea Food Co, Inc), 159 NLRB 843 (1966) Respondents contend 10 Based on Moore s testimony given in Case 31-CA-4120 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tthat the O'Neills and Moore were expelled from Local 1553 because of their activity aimed at replacing Local 1553 with the Teamsters as the employees' bargaining rep- resentative The narrow question I must decide is whether a preponderance of the evidence supports the General Counsel's contention that the reason supplied by Respon- dents to justify the expulsions was merely a pretext de- signed to punish the O'Neills and Moore for giving testi- mony against Local 1553 at a prior Board unfair labor practice proceeding On balance, I am of the opinion, that the record fails to establish that the punishment meted out in this case was motivated by a desire to retaliate against the O'Neills and Moore because they testified against Lo- cal 1553 in the unfair labor practice proceeding This find- ing is predicated on the following factors 1 There is not a scintilla of evidence which indicates that even one representative of the Respondents was hos- tile or antagonistic toward the alleged discriminatees be- cause they gave testimony against Local 1553 at the Board hearing 2 The timing of the actions which triggered the expul- sions does not support an inference of unlawful discrimina- tion, rather, if anything, the timing indicates that the expul- sions were not unlawfully motivated Upon his discovery, at the unfair labor practice hearing, that the alleged discriminatees had engaged in extensive conduct designed to replace Local 1553 with the Team- sters, Flores did not immediately file charges, which it seems to me would have been the case if he were motivated by animus toward the alleged discrimmatees on account of their adverse testimony Flores did not file his charges for several weeks due to the press of other union business Also, this is not a situation where a union immediately upon learning that its representative-status has been ad- versely effected because of the adverse testimony of some of its members takes steps to discipline the members whose testimony harmed the union Here when Flores filed his charges against the O'Neills and Moore and when the charges were acted upon, it was evident to the Respondents that the alleged discriminatees, by their testimony in the unfair labor practice proceeding, had caused no harm to Local 1553's representative status The Teamsters charges in the unfair labor practice proceeding had been with- drawn and the case dismissed and the Teamsters petition in the representation case was in the process of being with- drawn These circumstances hardly indicate that when Re- spondents acted to expel the alleged discnminatees that their union representatives were in a hostile state of mind toward them for testifying in the prior Board unfair labor practice proceeding 3 There is a lack of evidence of disparate treatment of the O'Neills and Moore in comparison with other members of Local 1553 or that Respondents tolerated such miscon- duct in the past Flores, prior to hearing the testimony in the unfair labor practice hearing, had no knowledge of the alleged discnmi- natees' extensive activities on behalf of the Teamsters Nor is there any evidence that other officials of Respondents had prior knowledge that the alleged discnminatees had done anything more than wear a Teamsters button and, in the case of Mary O'Neill, attend a Teamsters organiza- tional meeting- Absent a showing that Respondents nor- mally penalize members for simply wearing buttons and attending an organizational meeting of a rival union, these circumstances do not establish discrimination, for, as de- scribed earlier it was not until the unfair labor practice hearing that Respondents learned of the extensive nature of the activities engaged in by the O'Neills and Moore on behalf of the Teamsters On the question of disparate treatment, there is no evi- dence that an official of Respondents knew of Local 1553 members who, like the O'Neills and Moore, were actively supporting the Teamsters, yet took no action against them Indeed there is evidence on this record that only one other Local 1553 member, Robert Baxter, was anywhere near as active on behalf of the Teamsters as the alleged discrimina- tees Finally, I reject the General Counsel's contention that the failure of Respondents to take action against Local 1553 members Bell, Christian, Ballard, and Baxter indi- cates that Respondents' objective in expelling the alleged discriminatees was to retaliate against them for testifying against Local 1553 This contention is premised upon Mary O'Neill's testimony at the prior unfair labor practice hearing that the four members of Local 1553 named above had passed out Teamsters cards, yet, Flores failed to file charges against them nor did Respondents otherwise act to discipline them for supporting the Teamsters This was the extent of O'Neill's testimony, she was not asked nor did she reveal the extent of the activities which these four members engaged in on behalf of the Teamsters and there is no evidence that either Flores or any other official of the Respondents believed that their activities were anywhere near as extensive as the activities of the O'Neills and Moore But, more important, Flores' reason for not charg- ing the four members named by Mary O'Neill was that he had no firsthand knowledge that they had in fact support- ed the Teamsters or the extent of their activity, and, knew that the District Council has a policy of requiring firsthand information in support of a charge preferred against a member and summarily rejects charges based on hearsay In this regard it is undisputed that for at least 19 years the executive committee of the District Council, which is the committee entrusted to screen all charges, has maintained a policy of refusing to submit to a trial committee any charge based on hearsay 4 The O'Neills and Moore admittedly engaged in exten- sive conduct designed to replace Local 1553 with the Teamsters This type of conduct is proscribed by the Inter- national Union's constitution and clearly warranted their expulsion On the basis of the foregoing, I am unable to draw the inference that the expulsion of the O'Neills and Moore was rooted, in part, in their having given damaging testimony against Local 1553 in a prior unfair labor practice proceed- ing The finding that Respondents were not unlawfully moti- vated in expelling the alleged discrimmatees does not en- tirely dispose of this case The General Counsel makes the further argument that even absent a showing of unlawful motivation the expulsions are impermissible because it is a per se violation of the Act for a union to expel a member LOS ANGELES COUNTY DISTRICT COUNCIL OF CARPENTERS 355 based on misconduct which comes to the union's attention when the member gives testimony as a government witness in a Board unfair labor practice proceeding 11 I do not agree I have found no case, and none has been cited for this novel proposition which holds in effect that neither an employer nor a union can use evidence of employee mis- conduct to punish the employee if the evidence of the mis- conduct was uncovered during the course of a Board pro- ceeding through the employee's testimony In other words if an employer or a union discover for the first time during a Board hearing through the testimony of an employee that this employee is guilty of serious misconduct (i e , stealing or destroying property) which ordinarily would result in discipline, the employer or union is nevertheless precluded from disciplining the employee The Act in my view does not call for such an absurd result The question in my view is whether the witness during the normal course of business 11 It is undisputed that Flores' charges against the alleged discrsmmatees which resulted in their expulsion were based solely upon their testimony given before the Administrative Law Judge in Case 31 -CA-4120 would not have been disciplined for engaging in the con- fessed misconduct, if the witness had not testified for the Government in the Board proceeding Cf Gates Rubber Company, Inc, 186 NLRB 837 (1971) Here the record es- tablishes, for the reasons previously set forth, that the al- leged discriminatees were expelled for a lawful reason Ac- cordingly, I shall therefore recommend that the complaint be dismissed in its entirety Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended ORDER12 The complaint is dismissed in its entirety 12 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings conclusions, and Order, and all objections thereto shall be deemed waived for all purposes