Carpenters District Council

72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carpenters District Council of Kansas City and Vicinity (Daniel Construction Company) and Leslie L. Morse, Sr Daniel Construction Company and Leslie L. Morse, Sr. Cases 17-CB-1530 and 17-CA-6865 December 7, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On June 16, 1976, Administrative Law Judge Stanley N. Ohlbaum issued the attached Decision in this proceeding. Thereafter, Respondent Company filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board. has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. In the Remedy section of his Decision the Adminis- trative Law Judge recommended that Respondent Union's backpay liability be deemed extinguished on December 13, 1975, 5 days after the Company and Charging Party Morse received a letter from the Union stating that it would have no objection to Morse's reemployment. In support of his recommen- dation the Administrative Law Judge relied on Zoe Chemical Co., Inc., 160 NLRB 1001 (1966), and Pinkerton's National Detective Agency, Inc., 90 NLRB 205 (1950). Given the circumstances of this case, we cannot agree with the Administrative Law Judge that the Union's December 4 letter ended its liability for Morse's backpay. In this regard we note that even after Morse's initial layoff and reinstatement in July, and despite Union President Brown's intervention on Morse's behalf and his assurances to Morse that there would be no further action taken against him by the Union, Union Representative Scott continued to pressure the Company to terminate Morse's employ- ment. As found by the Administrative Law Judge, Scott's efforts culminated in a second unlawful layoff and in the institution of unwarranted internal union charges against Morse in October. Moreover, even after its December letter the Union continued to fail to refer Morse for employment with the Company although the Union conceded that other union members were referred to the job throughout- this period.' Viewed against this background it is evident that the Union's December letter "should not be given the legal effect of extinguishing the Union's joint and several liability with the Company for the Charging Party's loss of pay. Accordingly, we shall modify the Administrative Law Judge's recommended Order so as to make the Respondent Union's liability to make whole the Charging Party coextensive with that of the Respon- dent Company. Given the circumstances of this case, we believe it appropriate that the Union's liability ends either on the date on which it refers the Charging Party for reinstatement at the Company's La Cygne, Kansas, project, or on the date on which the Company offers the Charging Party full reinstate- ment, without prejudice to seniority or other rights or privileges, to his former or substantially equivalent position, whichever event occurs first. Further, in view of the seriousness ofthe violations found herein, we shall give a broad order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that Respondent Daniel Construction Company, Kansas City, Kansas, its officers, agents, successors, and assigns, and Respondent Carpenters District Council of Kansas City and Vicinity, its officers, agents, and representa- tives, shall take the action set forth in said recom- mended Order as so modified: 1. Substitute the words "In any other manner" for the words "In any like or related manner" as used in existing paragraphs A, 1(d) and (e) and B, 1(d). 2. Substitute for existing paragraph A, 2(a), the following paragraph: "(a) In conjunction with Respondent Daniel Con- struction Company, make whole Leslie L. Morse, Sr., for any loss of pay or missed benefits by reason of the discriminations and unlawful acts against him, (1) for the period between Morse's first termination on or about July 10 and his reinstatement on or about July 21, 1975, and (2) for the period from the date of Morse's second termination on or about October 10, 1975, until Respondent Union refers Morse to his former or substantially equivalent position at the Company's La Cygne, Kansas, project, or the Com- pany offers Morse full reinstatement to such position, whichever event occurs first, less interim earnings as 1 In neither of the cases relied on by the Administrative Law Judge did the parties maintain an exclusive hiring hall arrangement. 227 NLRB No. 17 CARPENTERS DISTRICT COUNCIL described in the section of this Decision entitled "The Remedy." 3. Substitute the attached notices for those of the Administrative Law Judge. APPENDIX A NOTICE To MEMBERS - POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT, in violation of Section 8(b)(2) of the National Labor Relations Act, as amended, cause or attempt to cause Daniel Construction Company to discriminate against any of its employees by discharging, terminating the em- ployment of, laying off, furloughing, suspending, failing to reinstate or reemploy, or taking other adverse personnel action against any employee, in violation of Section 8(a)(3) of said Act; nor will we in any other manner cause or attempt to cause Daniel Construction Company to discriminate against any of its employees. WE WILL NOT, in violation of Section 8(b)(1)(A) of the Act, restrain or coerce any employee in the exercise of any right guaranteed in Section 7 of the Act; nor will we in any other manner violate said Act. WE WILL NOT do or attempt to do any of the above things-because any of our members opposes or criticizes the way the Union is run or the way any of our business 'representatives conducts union affairs, or because any of our members opposes the reelection of any union official or announces that the union member intends to run for office, or because any of our members urges or proposes reforms or corrective measures. WE WILL, in conjunction with Daniel Construc- tion Company, make whole Leslie L. Morse, Sr., for any loss of pay and benefits suffered-by him by reason of the discrimination and other unlawful actions against him in connection with his July 10 and October 10, 1975, job terminations, plus -interest- 'WE, WILL immediately expunge from the mi- nutes of the meeting of our Executive Committee on October'21, 1975, the erroneous notation that a motion was carried to reprimand Leslie L. Morse, Sr. CARPENTERS DISTRICT COUNCIL OF KANSAS CITY AND VICINITY APPENDIX B 73 NOTICE To EMPLOYEES POSTED BY. ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT encourage or discourage member- ship in Carpenters District Council of Kansas City and Vicinity, or any of its local unions, by discriminatorily terminating the employment of any employee or in any other manner discriminat- ing against him in his employment in violation of Section 8(a)(3) of the National Labor Relations Act, as amended. WE WILL NOT discharge, terminate the employ- ment of, lay off, furlough, suspend, fail to reinstate or rehire, or otherwise discriminate against any employee at the request of the above Union or any other labor organization acting in violation of Section 8(b)(2) of said Act. WE WILL NOT in any other manner discriminate against, or interfere with, restrain, or coerce any employee in the exercise of any right guaranteed in Section 7 of said Act. WE WILL offer Leslie L. Morse, Sr., immediate and-full reinstatement to his former or equivalent job at our La Cygne, Kansas, project, and, in conjunction with the above Union, make Morse whole for any loss of earnings and benefits suffered by him by reason of the discriminations and other unlawful actions against him in connec- tion with our termination of his employment on July 10 and October 10, 1975 , plus interest. DANIEL CONSTRUCTION COMPANY DECISION STATEMENT OF THE CASE STANLEY N. OHLBAUM, Administrative Law Judge: This consolidated proceeding 1 under the National Labor Rela- tions Act as amended, 29 U.S.C. Sec. 151, et seq. (herein the Act) was heard by me in Kansas City,- Kansas, on Match 30-31, 1976, with all parties participating throughout by counsel, who were afforded full opportunity to present evidence and arguments and to file briefs . A brief was I The complaint in each proceeding was issued on December 30, 1975. In Case 17-CB-1530, the complaint grows out of a charge filed by the Charging Party (employee and union member) on October 20, 1975; in Case 17-CA- 6865, the charge, by the same Charging Party , was filed on November 28, 1975 The cases were consolidated by January 6, 1976, action of the Regional Director for Region 17. - 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received from General Counsel on May 17, 1976.2 The record and brief have been carefully considered. The principal issues presented are whether Respondent Union has violated Section 8(b)(2) of the Act by causing Respondent Employer to terminate the employment of Charging Party Morse in violation of Section 8(a)(3) of the Act, and Section 8(b)(1)(A) by coercing employees in the exercise of their rights under Section 7 and by instituting groundless union disciplinary proceedings against Morse as a part of and in continuation of the same pattern of improper coercion and restraint upon his protected con- certed activities; and whether Respondent Employer has violated Section 8(a)(3) and (1) of the Act by discriminato- rily laying off Morse from its employ, and failing and refusing -to reinstate or reemploy him, because of Morse's union-and protected concerted activities and his exercise of rights guaranteed under Section 7 of the Act. ' Upon the entire record and my observation of the testimonial demeanor of the witnesses, I make the follow- ing: FINDINGS AND CONCLUSIONS at the time of the hearing of this proceeding. Of these, the number of carpenters/millwrights on the project averaged up to 60-70, with 30-50 (including Charging Party Morse) on the day shift and around 20 on the second shift, working in crews, each under a foreman, scattered around the jobsite at different locations. Respondent Employer's managerial/supervisory hierar- chy here involved at the La Cygne Project consisted of. William F. Critchfield, project manager; Gerald M. ("Jer- ry") Stephens, civil superintendent; Thural H. Brooks, carpenter general foreman; Orlan R ("Dick") Lucas, general carpentry foreman; Raleigh Nott, carpentry fore- man (I of 7), scaffolding; and Dewey Myers, foreman. Brooks functioned under Stephens, who supervised about three crafts including the carpenters. Lucas, Nott, - and Myers functioned under,Brooks; Nott functioned under Lucas. 2. Respondent Union, its organizational structure, and its modus operandi; Union Business Representative Joe M. Scott 1. JURISDICTION At all material times, Respondent -Employer (Damel Construction Company) has been and is a corporation engaged in general contracting construction throughout the United States of America, with a principal site at La Cygne, Kansas, for construction of a power plant facility, the only site directly involved herein. In the course of Respondent Employer's business operations at its La Cygnejobsite, said Respondent annually purchases goods and materials val- ued in excess of $50,000 directly in interstate commerce from places outside of the State of Kansas. I find that at all material times Respondent Employer has been and is an employer engaged in commerce within the meaning of Section, 2(2), (6), and (7) of the Act. I further find that at all those times Respondent Union has been and is a labor organization within the meaning of Section 2(5) of the Act. IL ALLEGED UNFAIR LABOR PRACTICES A. Facts as Found 1. The La Cygne Project; Respondent Employer's managerial/supervisory hierarchy The La Cygne Project involves the construction by Respondent Employer of a' coal-fired, 630-megawatt, steam-powered generator for production of electricity by Kansas City Power & Light Company and Kansas Gas & Electric Company. The jobsite covers an area of 160 acres, on which approximately 1,400 workers, including a full spectrum of the building crafts and trades, were employed 2 On May 19, 1976, a letter dated May 15 was received from counsel for Respondent Umon, indicating that pressure of other matters precluded his submission of a brief within the extended filing time specified by the Chief Administrative Law Judge on that Respondent's application. (At the close of the hearing on March 31, submission time for briefs was set at May 1, with an indication that it would be extended for good cause. Subsequently, on Respondent Union's application, the tune was extended by the Chief a. Union The carpenters/millwrights at the La Cygne Project are all supplied by Respondent Union, only Respondent Union's members have been employed at La Cygne, and Respondent Employer, has hired carpenters/millwrights only through Respondent Union referral.3 Respondent Union asserts "territorial jurisdiction" over 51 counties on the western side of Missouri, 14 in Kansas, and 2 in Oklahoma, extending on the north to the Iowa line and on the south to Arkansas. It boasts a membership of 10,000, with 26 affiliated local unions, the largest of which - Kansas City, Missouri - is said to have 3,000 members. Respondent District Council has a president (currently and, except for 1970-73, since 1959, Henry L. Brown, himself a journeyman carpenter and a member of Respon- dent for 30 years) and 11 business representatives, all (including the president) elected triennially for 3-year terms from among nominees of the constituent locals, each of which may nominate at least one representative (locals with over 1,000 members may nominate 3 candidates)- Although the locals have their own geographic locations, they have no jurisdictional boundaries. Local 61 (as indicated, the largest in membership) is in Kansas City, Missouri; Local 1529 (in which President Brown maintains membership) is the Millwrights Local; Charging Party Morse belongs to Osawatomie Local 2417, which has 80-100 members; 4 Union Business Representative Scott - of whom more will be said later - is one of about 300 members of Olathe Local 714. The, size (i.e., membership) of the local also determines its number of delegates; thus, Kansas City Local 61 has 30 delegates, whereas Osawatomie Local 2417 has only 1. The term of the delegates, from 1 to 3 years, is Administrative Law Judge to May 17 only.) No brief or request for extension of time has been received from Respondent Employer 3 Cf. Resp. Emp. Exh. 1, art. V, sec. 1 (p. 5). Respondent Employer has on occasion requested Respondent Union to refer a specifically named individual. 4 Morse transferred to Osawatomie from Topeka, Kansas, in 1969. CARPENTERS DISTRICT COUNCIL determined by their locals. The elected delegates (now 94) comprise the.Council. Under the Union's constitution and bylaws,5 the presi- dent-of the Council has total authority to and does in fact assign the geographical areas and other responsibilities of each of the 11 elected Council business representatives. One, but not the only, consideration determining area assignments of the business representatives is where they live; however, some business representatives are assigned to areas 90 to 150 miles from their homes. At the present time, and since July 1973, Charging Party Leslie L. Morse, Sr., has been the Osawatomie Local 2417 elected recording secretary (2d term) as well as that local's elected delegate to the District Council. Respondent Union's Kansas City area office maintains a hiring hall whence it refers only the Union's members. It does not maintain an out-of-work list, but refers the applicant who first presents his identity card at the window when the job is announced orally from there. According to Union President Brown, employers not infrequently call in for a specific carpenter by name. Further, according to Brown, if he (Brown) is not- at the hiring hall, job requests may be referred to and handled by the business representa- tive for the particular arm of the job, as is also the practice when there, are several days of lead time or advance request for a carpenter - so that, in the latter case, for example, if a request for a carpenter or carpenters were to come in for the La Cygne Project several days in advance, it would be referred to the business representative for that area - Joe Scott - to determine whom to send there. Also, business representatives sometimes receive and handle requests for carpenters at the business representatives' homes or else- where than the Union or hiring hall. Union President Brown also acknowledged, during cross-examination, that, for "good" and sufficient reasons, at times a union member already at work on a job - such as, a temporary job distant from his home - Will be referred to a more convenient, longer, or better job. And undisputed credited testimony of Charging Party Morse, on rebuttal, establishes that refer- rals by the Union to jobs, including La Cygne, are not invariably made by referral slip but may also be made orally without referral slip. b. Scott As has been indicated, Joe M. Scott has been an elected business representative of Respondent Union since July 1973 in the area including the La Cygne Project. Scott describes his responsibility as finding jobs for the Union's members and to "police my area." In the performance of his duties, according to his testimony, he visits the La Cygne Project every 2 or 3 weeks, speaks to the personnel manager there, and discusses "problems" and "squabbles" with him; he (Scott) then visits, the union steward and circulates around the project. 5 Resp. Exh. 5, sec. 37(a), par. 2 (p. 25). 6 The testimony of Respondent Employer's civil superintendent, Steph- ens (itself largely discredited, as will be shown), that he had been "led ... to believe" that Morse was a "poor carpenter," is not really to the contrary, 75 3. Charging Party Leslie L. Morse, Sr. Charging Party Leslie L. Morse, Sr., was one of the carpenters on the La Cygne construction project when it was taken over by Respondent Employer in May 1973 and has remained in its employ since then until the terminations about to be described with which we are here concerned. Morse's duties at La Cygne since May 1973 have consisted of building forms for pouring concrete and building scaffolding. According to Morse - an impressive witness whose testimonial demeanor left me with an extremely favorable impression, -,his work at La Cygne has at no time been criticized. Union Business Representative Scott -, Morse's bete noire, as will be shown - acknowledges that he has no personal knowledge concerning the quality of Morse's work performance at La Cygne, and that there is no reason to suppose Morse is not, eligible for reemployment there. Scott, also acknowledges that "[h]e was a good worker" and that "[a]il I heard was good reports on his work." La Cygne Project Carpenter General, Foreman Brooks characterizes Morse as a "good employee" and a "fair hand" at carpentry. At La Cygne, Morse was under the supervision, from time to time, of Carpenter General Foreman Brooks' subordinate foremen, Lucas, Nott, and Myers. At the hearing, Lucas (Brooks' subordinate and Nott's superior) characterized Morse as a "hard worker," but-then equivo- cated to "a medium worker . . . satisfactory -on some things, yes, and on some things, no." However, in his prehearing affidavit to a Board agent, Lucas had sworn unequivocally that "Morse was a satisfactory worker." Not only because of this seeming discrepancy but also because of his general evasiveness and his demeanor as observed while he was testifying, I was left with the definite impression that Lucas' testimonial quality left much to be desired, and that some of his utterances should be taken with a grain of salt. -I credit his, earlier sworn characteriza- tion of Morse as a "satisfactory worker," which is more in line with the evaluations of other supervisory personnel who testified. Thus, Scaffolding Carpentry Foreman Nott, Morse's immediate supervisor (as well as Lucas' subordi- nate), who impressed me as a singularly forthright, honest, and disinterested witness, swore unequivocally that _Morse had "done a good job for me."6 Although Union Business Representative Scott claims that he "knew" that Respondent Employer "had a prob- lem" with Morse, Scott did not detail the nature of Respondent Employer's "problem." While Carpenter Gen- eral Foreman - Brooks himself has never heard Morse discuss union politics on the job, Brooks has been told by his subordinate foremen "maybe a time or two" that Morse was "talking union politics on the job." This, however, was apparently regarded as so inconsequential by Brooks that he did not see fit to do anything about it or even to report it to his superior, Project Manager Critchfield; furthermore, according to Brooks, he had heard similar rumors concern- ing other carpenters there - "it goes on all the time ... more or less." But Brooks did himself overhear Morse, since not based on direct knowledge but attributed by Stephens to Lucas, who, as shown above, has not only to an extent been discredited here but swore to the contrary in his prehearing affidavit. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD during lunchtime, in the presence of other employees, mention some "small problems" he was having with Union Business Representative Scott. And although Morse's immediate supervisor, Nott, has also not himself heard Morse discuss union matters on the job, nor heard any report to that effect from other crew members, and has not heard Lucas-(Nott's superior) refer to Morse in a derogato- ry way as to his workmanship, Nott has heard Lucas refer to Morse as a "troublemaker" who "stirred the carpenters up." On cross-examination, Lucas conceded that he had heard Morse' (as well as others) complain about how the Union was -being run, and that he (Lucas) passed the word upwards to his superiors that Morse was a "troublemaker" who "kept the men stirred up." Upon the record' as a whole, including resolutions based upon evaluative comparisons of testimonial demeanor as observed, I find that, although rumors or reports came to Respondent Employer's attention that differences existed between Morse and Union Business Representative Scott concerning union matters, Morse's performance as an employee and carpenter was at all times unexceptionable and at least at a level and quality satisfactory to Respon- dent Employer. 4. Scott vs. Morse As has already been intimated, the relationship between Union Business Representative Scott and Morse was not good. There is little if any doubt that the bad blood between the two stemmed from what Scott regarded as Morse's excessive or undue concern over employment conditions or his (Morse's) intrusion into such and other union matters that Scott perhaps viewed as Scott's exclusive domain and preserve, or at any rate as none of Morse's business, even though Morse was not only a longtime union member and activist, but also was twice elected recording secretary, as well as elected Council delegate of Osawatomie Local 2417. Thus, during 1974-75, during Scott's incumbency as business representative assigned to the La Cygne and Osawatomie Local 2417-area, Scott and Morse had various differences, such as over Scott's assignment of carpenters - seemingly transients or carpetbaggers, known in the con- struction trade vernacular as job-to-job-"boomers" - from outside the area to work at La Cygne while local members were out of work awaiting job assignments, and such as an employee (identified by Morse by name at the hearing) being sent out by Scott to work in the face of a longstanding union dues delinquency. Irritations over such matters - some stemming from complaints received by Morse from his own Local's constituents and fellow-employee unionists, and verbalized on their mutual behalf by Morse to Scott - were perhaps exacerbated when on three or four occasions, early in 1975, Morse declined to accede to Scott's demand that Morse press charges before the Union against Lucas - not only a member of the Union and Morse's predecessor as Osawatomie Local 2417 delegate to the Council, but also Morse's work supervisor - for an alleged dues defalcation or indebtedness which Morse regarded as in any event stale and time-barred. According ,to testimony of Morse which is substantially undisputed and which I credit, Scott met criticisms or complaints concerning his actions with, the invariable response that Morse should "tell the members that I am running this, and if they don't like it, they can meet mein the parking lot, and I will straighten it out." Morse reported this response to the members of his Local at its May 1975 meeting. Around that time, Morse_ at his home received a tele- phone call from Scott, who in a thick voice told Morse that they were both "handy [with our] hands" and challenged him to afistfight. Morse declined the invitation.? Also around May 1975, Morse let i ' t be known that he intended to run for the position of District Council business representative - the job held by Scotts When Scott again sounded off at an Osawatomie Local 2417 meeting in May or June (1975) that "[I am] running things and that if [you] like it, that was fine. If [you don't] like it, [you] can go to hell," Morse openly upbraided him, pointing out that the "membership deserved a better answer than [that] ... in this present day and age . . . and better representation," drawing congratulations from the membership for his courageous expression on their behalf. Scott himself readily acknowledges his differences with Morse, - among other things characterizing Morse at the hearing in general terms as the "number one problem maker in the United States, bar none. . . . Morse would throw a monkey-wrench in the whole dang works ... everything that everybody ever did down there.... He had a pretty good following of a bunch of dodos, most of them were, and everything that he would tell them they would believe it." Scott further concedes that he may indeed have told the assembled members of Osawatomie Local 2417 that if they did not like the way he (Scott) was running things they could "go to hell," and that Morse could indeed have taken up the cudgels and have stated then and there that "the members didn't need a business representative with Ithat] kind of attitude." Scott also concedes he became aware that Morse had announced that he intended to run for., Scott's job; according to Scott, Morse even called an "illegal meeting" to further that objective. Respondent Union's president, Henry L. Brown, candid- ly concedes awareness on his part of continuing friction between Business Representative Scott and Morse prior to the two layoffs of Morse about to be described. Morse's foreman and immediate supervisor, Nott, also acknowledg- es that he had heard from Carpenter Foreman Brooks (as well a§' from General' Carpentry Foreman Lucas) that Business Representative Scott had "threatened" Lucas (a comparatively small man) unless Morse were laid off - and that he (Nott) told this to Morse. Finally,-Scott himself acknowledges that he may well have telephoned and threatened Morse with physical violence; and he further conceded on cross-examination - contrary to his -initial denial, on direct, examination = that he had indeed "probably" indicated to Carpenter General Foreman Brooks that he (Scott) would "like Les Morse off the job." 4 Morse is 5' 11" and weighs 169 pounds. Scott, who to my observation all. Scott, from the Olathe Local, was assigned to ' handle the Oswatomie presents a physique to give one pause, is 6' 3" and weighs 330. Local/La Cygne area, where Morse belonged, lived, was employed, and 8 As indicated above, there are 11 such jobs (business representative) in hoped to be assigned if elected. CARPENTERS DISTRICT - COUNCIL 77 5. First Morse layoff: July 10, 1975 As indicated above, known to Respondent Employer, an acrimonious if not explosive relationship had developed between Scott and Morse centering around Morse's in- creasing concern over the way employment and union affairs were being handled by Scott, culminating in Morse's announcemnt of his candidacy for Scott's job and Scott's challenge of Morse to a fistfight. As has also been indicated, Scott conceded on cross- examination that he "probably" indicated to Carpenter General Foreman Brooks that he (Scott) would "like Les Morse off the job." Scott also acknowledges that he definitely made similar approaches to La Cygne Project Manager Critchfield a number of times since "we both had a problem with Mr. Morse," and that Scott had discussed Morse with "probably ... all" of Respondent Employer's other supervisory officials. According to Scott's own testimony, he pointed out to Critchfield that there was no seniority requirement in the collective agreement and that a carpenter could be fired at any time so long as it was not for union activity, and "that Mr. Morse should be discharged." La Cygne Project Manager Critchfield testified that around June Union Business Manager Scott called Critch- field at his home one evening and asked Critchfield if he could do Scott "a favor" and "discharge a carpenter." Critchfield answered, "I don't know, Joe, that I'm in a position to do that." Scott replied that Morse had been causing [me ] some problems." The nature of the "prob- lems" was not specified. While' Critchfield made no "promises . . . at that time," he indicated he "would have to look into it . . . if it affected Daniel [i.e., Respondent Employerf in any way." About a week later, on the jobsite, Scott again approached Critchfield and this time told him that "as big of an organization as Daniel . . . should be able to 'discharge one employee." Critchfield ended the discussion with reminding Scott that the management of the project was "in our hands . . . we fired and we hired." Nevertheless, Morse was laid off shortly thereafter, on July 10, 1975, after having been on the job for "four or five years" (according to Scott). Critchfield says this was because Morse was "causing problems, labor problems in the field" and "discussing labor problems during the work hours that was keeping people stirred up. What it is really all about, I have no idea." Critchfield testified that although he is not normally involved in termination of individual employees - he is in overall charge of the entire La Cygne Project, which has a work force of around 1,400 employees - he nevertheless did involve himself personally in this instance and that it was he personally who caused Morse to be laid off on July 10. When - still according to Critchfield 9 Brooks testified at one point that this also occurred subsequent to Respondent Employer's first termination (July 10) of Morse at the behest of Scott. If so, it indicates, as will be shown, the continuing and unremitting nature of the animosity of Scott toward Morse even after Morse was reinstated (April 17) after his first layoff, eventuating in Morse's second termination (October 10) and even a spiteful union disciplinary proceeding, at Scott's hands, by reason of the same "problem" (i.e., Scott's simmering resentment over Morse's continued opposition, on his own and his fellow employees' behalf, to Scott's conduct as a union business representative, and over Morse's announced intention to stand for election against hum), as will beshown. ro General Carpentry Foreman Lucas testified that although he normally - Morse came to Critchfield's office to inquire why-he was being terminated, Critchfield's response was that it was for "causing problems in the field ... [keeping] the carpenters dissatisfied through some means or another." Critchfield does not deny, but merely indicates inability to "recall" also telling Morse that he could return to his job if he "straightened out his problems" with the Union. Respondent Employer's carpenter general foreman, Brooks, likewise credibly testified that he also received a telephone call at home late one night - prior to Scott's July 10 layoffs - asking "me [Brooks] if I would lay a man [Morse] off." Brooks responded that at the time the Company was hiring and that he (Brooks) did not feel it was "right" to lay Morse off. Brooks confirms that the decision to lay Morse off on July 10 came directly from Project Manager Critchfield himself on his personal order to Brooks.'° Brooks testified that, when Morse came to see him after the July 10 layoff, he told Morse that he was "sorry that it had to happen or that I hated it to happen but that's the way it was, that there was nothing I could do about it." Brooks also told Morse that prior to Morse's layoff Scott had been threatening company supervisors concerning Morse's being continued on the job. Brooks, an honest witness, swore that Morse was not laid off because of any Employer dissatisfaction with his work as a carpenter. In turn confirming Brooks' testimony, Morse's immedi- ate supervisor, Nott, who characterizes Morse as having "done a good job for me," testified that, when Brooks told Nott that Morse would have to be laid off and Nott asked him why, Brooks' response was that "[t]he decision came from someone higher up than him and that there was nothing he [Brooks] could do."" Nott further testified that he was the foreman of Morse's carpentry work crew (consisting of 10-12 men) on July' 10 and that he neither requested nor had anything to do with Morse's layoff; that no other crew member was laid off; that Morse's layoff was the only one in Nott's experience when a member of Nott's workcrew was laid off without Nott's say-so; and that there was no mention of "reduction in force." Concerning his first - i.e., July 10, 1975 - layoff, Morse's credited testimony establishes that when he report- ed to Carpenter General Foreman Brooks on the afternoon of that day Brooks informed him of his immediate layoff and that Brooks was sorry but could do nothing about it; that "Joe Scott had applied pressure and that he [Brooks] had gotten it stopped several times previous to this and that he had tried to this time, but he couldn't because Mr. Critchfield was tired of being harassed by Joe Scott concerning me [Morse] and that he was going to go ahead and go along with the layoff." When Morse went to see participates in decisions to lay off carpenters he not only was not consulted but has no knowlege as to why Morse was laid off on July 10; and, further, that, other than Morse, there has never been a carpenter under him laid off without Lucas' participation. Lucas also testified that, unlike two other carpenters laid off on or about July 10 as a "reduction in force," no reason was given for Morse's layoff. 11 Although Brooks denies he said this to Nott, based upon comparative testimonial demeanor observations, as well as comparative testimonial consistency comparisons, I have no hesitation in preferring and crediting the testimony of Nott. In this connection, Lucas conceded on cross-examination that Brooks had told hum (Lucas) that Scott had called Brooks "in the middle of the night" to the effect that Morse should be laid off 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Project Manager Critchfield, the latter "assured me that there was nothing wrong with the job performance of mine. He had no complaints at all as far as my work was concerned, but he said that he was receiving pressure from the city [sic]. He told me . . . to go and make peace with whoever it was that I had to make peace with. At that time he would put be back to work, when they were hiring. Then he said, `No, I will do better than that. You go make peace with whoever it is that you have to make peace with, and you call me and let me know. Regardless of whether I am hiring or not, I will put you back on.' 1112 Morse thereupon left.13 On July 13, 1975, the Monday following his July 10 (Friday) layoff, Morse visited the Board's Regional Office, where he was counseled to withhold filing a charge unless he failed to secure satisfaction from Union Council President Brown. Morse accordingly called on Brown, to whom he explained the situation, including Scott's physical threats, and that "Joe Scott got me fired" or "got my job," and that he would press charges before the Board if he was not restored to his job. When Brown called Scott in, the latter denied all and that he had harassed or "threatened to whip" Morse.14 Brown thereupon informed Morse that, while there was nothing in the Union's constitution or bylaws under which charges could be preferred against Scott, Morse remained free to return to the Board and would not be discriminated against for so doing, but that Brown would endeavor to have Critchfield rehire Morse. Within about a week after this, on or about July 21, Morse was rehired upon referral by Union President Brown by Respondent Employer. Upon receipt of reassurances from Brown against retaliation or further trouble from Scott, Morse refrained from pressing his protest to the Board.15 According to La Cygne Project Manager Critchfield, Morse was rehired as a result of a telephone call received by him from Union President Brown concerning charges filed by Morse because of his termination. Morse was again assigned under his former supervisor, Carpentry Foreman Nott. However, subsequent to Morse's reinstatement, Lucas saw fit again to bring up to Stephens that Morse - who was not working under Lucas' (or Stephens') direct supervision - was a "trouble maker" who "kept the men stirred up." 16 After careful evaluation of the foregoing, including the described testimony of Respondents' own officials as well as Scott's own admissions, and resolving issues of credibili- ty to. the extent essential, based upon relative consistencies in testimonial components of the various witnesses, as well as comparative testimonial demeanor as observed, I find 12 This conversation is undisputed by Cntchfield, but, as indicated above, merely in part unrecalled. 13 Subsequent to his termination, Morse received a termination slip reciting "reduction in force " 14 The contrast between Scott's denials to Brown and his admissions at the instant hearing are noteworthy 15 On cross-examination, Brown conceded that after Morse's reinstate- ment the latter sought reassurances from Brown on several occasions that Scott would give Morse no further trouble; and that in the course of those discussions Brown told Morse that "if Joe Scott had anything to do with him getting terminated he was wrong." However, Brown waffled substantially at the hearing as' to whether Morse hinged his withdrawal of Morse's protest to the Board against the Union upon Morse's receipt of such an assurance against reprisal or further trouble from Scott. upon the record as a whole that Morse was terminated by Respondent Employer on July 10, 1975, at the behest of Respondent Union, through its Business Representative Scott, solely because of Morse's union and protected concerted activities and for no reason connected with his job performance or any economic or other business necessity on the part of Respondent Employer or any other cause. 6. Second Morse layoff: October 10, 1975 Morse was again laid off, once more without apparent reason, on October 10, 1975. About 3 p.m. of that day, a Friday, without previous intimation of any kind, he was - as on July 10 - told by Carpentry Foreman Nott, "I'm sorry to do this, but you are laid off again. I don't know why." Morse went to see Carpenter General Foreman Brooks, who told him that he also (again, as on July 10) did not know why Morse was being laid off. Thereupon, Morse visited La Cygne Project Construction Manager Wiley Pope, second in command to Project Manager Critchfield, to attempt to ascertain the reason for his layoff. Morse's testimony - which I credit - is totally undisputed that Pope (who without explanation was not called by either of Respondents to testify) said to Morse that Morse's "prob- lem was the same or similar to that it was when [you were] laid off in July." Unlike the, usual practice, no union steward was present at Morse's layoff to question or participate in it in any way. Union President Brown concedes awareness of continuing friction between Scott and Morse preceding the second, as well as the first, layoff. When Morse received his pay the following week (through the previous Friday, the day of his layoff), again - as on the first layoff - it recited merely "reduction in force." Project Manager Critchfield disclaims any knowledge as to why Morse was laid off on October 10, asserting only that it was done "on the field level." He concedes, however, that he is certain that, unlike Morse, carpenters "reduced in force" at La Cygne have been rehired by Respondent Employer since October 10, 1975, while it is a further fact that Respondent Union has not referred Morse for reem- ployment at La Cygne, although if Morse were so referred he would be reinstated by Respondent Employer. Ne- vertheless, Critchfield concedes that, notwithstanding Re- spondent Union's letter of December 4, 1975 (Resp. Union Exh. 1) - after the filing of Morse's unfair labor practice charges with the Board against Respondents - expressing no objection to the reinstatement of Morse, Respondent Employer has taken no action to reinstate Morse.17 16 Lucas indicated that on one occasion he had been informed (by an unnamed informant) that Morse was utilizing "two laborers," as distin- guished from carpenters, to assist with erecting scaffolding. However, Lucas concedes this was "no big deal," since this practice had been followed "a lot of tunes" and that, furthermore, Morse had been instructed to do this by his supervisor, Carpentry Foreman Nott. (It is evident that this is the same matter which resulted in Scott's attempted disciplinary action against Morse, discussed in sec. III,A,7, infra ) 17 It appears to be a further fact, however, that Respondent Umon has not referred Morse to Respondent Employer, in the -usual course, for employment. It is a further conceded fact that Respondent Employer has at times (but not in the case of Morse) requested Respondent Union to refer specifically named carpenters. CARPENTERS DISTRICT COUNCIL 79 Carpenter General Foreman Brooks at one point ac- knowledged that Scott continued even after Morse was reinstatedfollowing his first layoff, to demand that Morse be again laid off; also that when Morse visited him on the occasion of his second layoff on October 10, Brooks again told him essentially the same thing he had said on the occasion of Morse's July 10 layoff - that Brooks was "sorry it happened, but there wasn't anything I could do about it"; and Brooks further acknowledges that also on October 10 (as on July 10) Morse was not laid off because of any dissatisfaction with his work. Brooks' testimony, as well as that of Morse's immediate supervisor, Carpentry Foreman Nott - that Brooks again told Nott a few days before Morse's October 10 layoff that Morse was again going to be laid off and that he (Brooks) "had checked around and tried to fmd out" why but "couldn't find out anything" and that the order' "had come from higher up, that there wasn't anything he could do" - cast a shadow over Critchfield's statement that he personally was this time unaware of the reason for Morse's October 10 layoff and that it was accomplished "on the field level," indicating that Critchfield's statement lacks substantive significance even if true. Nott also testified, Without contradiction, that Morse's case was the only layoff in his entire experience in which he as foreman had no say-so; on the October 10, as well as on the July 10, occasion, no other member of Morse's crew (numbering 10-12 on October 10 as well as on July 10) was laid off, Morse being the only one inexplicably singled out "higher up" for that purpose, and again no mention being made of any "reduction in force." In connection with the second, layoff of Morse, on October 10, General Carpentry Foreman Lucas - hardly a demonstrated friend of Morse herein'- testified that after that layoff of Morse he (Lucas) also unsuccessfully endeav- ored to ascertain the reason for it. Lucas added that prior to the -layoff he was asked by Civil Superintendent Stephens about a rumor that Morse and another employee had filed charges involving Respondent Union, but that Lucas had responded that he could not verify it either way. About a day later, still according to Lucas, Stephens again ap- proached him and inquired whether Lucas had had any "problems" with Morse, to which Lucas answered that over a year previously a toolbox incident and another incident had come up but had been resolved,18 but Lucas also filled Stephens in on Morse's "background . . . negative[ly]." The foregoing testimony of Respondent's officials re- moves everybody in Respondent Employer's hierarchy from involvement in or knowledge as to the basis for Morse's termination on October 10, except its civil superin- tendent, Stephens, who has held that position for only about 11 months prior to the instant hearing. Stephens, however, testified blandly but unpersuasively that, subse- quent to Morse's reinstatement after his first layoff, iS When Lucas was recalled to the stand, at the behest of Respondent Union, in connection with testimony by Carpentry Foreman Nott (corrobo- rated by Morse) indicating that Lucas had been threatened by Union Business Representative Scott unless Morse were laid off, Lucas disputed this or that he had any conversation with Scott before October 10 concerning that layoff, while also claiming only that he could not "remember" any conversation with Scott on that subject after October 10. On comparative testimonial demeanor observations, I definitely prefer and credit Nott's contrary testimony that Lucas told him (Nott) that he (Lucas) had been threatened by Scott unless Morse were laid off Stephens engaged Lucas in conversation concerning Morse's "problems." 19 Stephens insisted that it was he who made the decision to terminate Morse on the second (October 10) occasion - but he was unable to persuasively verbalize any credible basis or explanation for it. On cross- examination, he conceded that he had informed Board counsel here that one of his reasons for terminating Morse was his having caused "troubles or dissension" ("I [Steph- ens ] cannot tell you what kind") and "poor morale" - i.e., in substance the earlier canard - as well as failure to observe "proper safety practices" (as to which there is not a scintilla of evidence or even prior suggestion); and he also conceded that -he issued orders to terminate Morse-without looking into either of those professed reasons. Other examples of what I am constrained to regard as either sheer error, self-contradiction, or prevarication are Stephens' sworn statements in his prehearing affidavit - inconsistent with his own testimony at the hearing as well as with that of other of Respondent Employer's officials, as recounted above - that (1) it was Lucas and he who agreed that Morse be terminated, and that (2) it was Stephens and Lucas, "the two of us then laid him off." Respondent Union Business Representative Scott con- ceded at the hearing that he "probably" spoke to Respon- dent Employer's La Cygne-project manager, Critchfield, about laying off Morse after, as well as before, Morse's first (i.e., July 10) layoff - thus, antecedent to Morse's second (October 10) layoff. Since Morse's second layoff, on October 10, 1975, he has not been recalled to the employ of Respondent Employer nor been referred there by Respondent Union, despite the conceded fact that there have been employment opportuni- ties there for carpenters and that other laid-off carpenters have been recalled and referred there. However, Morse was instead subsequently referred by Respondent Union (but not through Scott) to other employment (millwright work, involving the use of more machinery - including burning, cutting, and welding - than individualized normal carpen- try work) in Nevada, Missouri, a roundtrip distance of 140- 150 miles from Morse's home and the La Cygnejobsite (La Cygne is readily accessible to Morse's home, a roundtrip distance of only 54 miles). Even that employment closed out shortly prior to the hearing in the instant proceeding. On the foregoing evidence and the record as a whole, I 'find that Respondents have failed in any way persuasively to rebut General Counsel's prima facie showing that Morse was again laid off on October 10 for the same reason as on July 10, the situation not having changed in the interim; that Respondent Employer has failed by substantial credi- ble evidence upon the record as a whole to establish any economic or other necessity, justification, reason, basis, or 19 However, after being shown his preheating affidavit, Stephens hastily backed off his blandly delivered testimony on direct examination concerning the nature of those "problems" - an alleged challenge by Morse to other employees to a "fist fight" - and just as blandly conceded, still under oath, that he did not actually talk to Lucas about this at all, since he first learned of it from somebody else after Morse's October termination. This bland admission under oath, as well as other impressions received during the course of his testimony, created the impression in me that Stephens was perhaps unduly liberal with assertions under oath and that his testimonial cahber was wanting. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD explanation for Morse's-October 10 termination other than the same as for his July 10 termination as above found; 20 and that the reason for Morse's second termination, on October 10, was the same as for his first termination, on July 10, 1975 - namely, Morse's continued engagement in union and protected concerted activity. 7. Scott's union "citation" against Morse One day before Morse's second termination on October 10, 1975, Respondent-Union under the "fraternal" signature of its business representative, Joe Scott, sent Morse a formal notice (G.C. Exh. 2), dated October 9, 1975, to appear for a hearing before Respondent's executive committee in Kan- sas City, Missouri - a distance of 90 miles for Morse - on October 21 "to show why charges should not be preferred against you for violations of Section T, and V of the Constitution Trade Rules and By-Laws" of Respondent Union. Those provisions, under the heading "General Trade Rules Governing All Work, Except in Shops Where Special Trade Rules Apply," state (Resp. Union Exh. 5, p. 43): (t) No member shall be permitted to loan his tools to workmen of any other craft on the job. Violation [sic] of this rule shall' be subject to a fine of not less than $2.00 or more than $25.00, upon conviction. (v) No member shall surrender any part of any work, included in our jurisdiction of work, to any other craft until ordered to do so by the President of the District Council, under penalty of a fine of not less than $25.00, upon conviction or removal from the job. As has been shown, the very next day (October 10) after this letter from Respondent Union, Morse was again terminated by Respondent Employer. The circumstances involved in this matter are as follows, as credibly recounted by Morse and not controverted. When Morse's work partner failed to show up for work one day in September (1975),- Morse's supervisor, Carpentry Foreman Nott, assigned an extra laborer to assist Morse in preparing some necessary scaffolding - evidently a not uncommon practice, to Union Steward Bill Brown's knowl- edge. During the course of this work, one of the laborers picked up and used a company ratchet wrench. When this came to the notice of Union Steward- Bill Brown (who unexplainedly was not produced to testify here), Nott explained the foregoing circumstances to him, including the fact that Foreman Nott had assigned the laborer or laborers to assist in the situation described. Brown responded that 20 It would certainly seem that if"reduction in force" was the real reason for Morse's second layoff - and I reject that as by no means established, as totally unsupported, and as pretextuous - Morse's carpentry foreman, Nott, General Carpentry Foreman Lucas, and Carpenter General Foreman Brooks would have had some mldmg of it' Beyond this, however, Respon- dent Employer made no persuasive showing at the hearing of any reason for Morse's second layoff nor for its failure to recall turn to La Cygne in the face ofconceded carpenter rehires at LaCygne since then. 21 Morse pointed out at the hearing that he could have been discharged for insubordination if he had failed to comply with Notts order Respondent Union's counsel agreed 22 Notwithstanding the fact that the laborer or laborers had been assigned by Foreman Nott to assist Morse, Scott explained at the hearing that the this was not Nott's business but union business, and Brown, accompanied by Morse, went to take up the matter with Nott, who confirmed Morse's account, whereupon Brown said nothing further.2' Morse heard nothing further about this until he received the aforedescribed October 9 summons from the Union (signed by Scott) around the day of his second termination (October 10). When Morse appeared at the union executive committee hearing and repeated the explanation he had given earlier, the matter was dropped without any fine, reprimand, or other adverse action of any kind. That the foregoing, including all of the circumstances, were known to Scott, -who had authored the October 9 "citation" letter to Morse, is evident not only from his signature on the letter "fraternally" summoning Morse to the hearing, but also from Scott's testimony at the instant hearing that he had been informed about what had happened.22 Respondent Union President Henry L. Brown denies that he personally had anything to do with the sending of the October 9 "citation" letter summoning Morse before the union executive committee to answer for his alleged misdeed; Brown insists that the "citation" letter, on the Union's letterhead and in its name, signed by Scott, was purely Scott's doing and that Scott had not'even mentioned it to him (Brown) before sending it out 23 Brown concedes that when the circumstances were explained by Morse at the union hearing the executive committee decided to drop the entire matter. Brown also testified that the entry- in Respondent Union's minutes of that executive committee meeting (October 21, 1975; Resp. Union Exh. 6),stating, in reference to the Morse matter, "Motion carried to repri- mand Brother Morse" is inaccurate and erroneous since in fact no such action was authorized or taken. 24 Finally, Brown does not dispute (he only professes to be unable to recall) that it was brought out by Morse at the union hearing that the tool in question was not that of Morse and that accordingly there could not in any event have been any possible violation of the rules in question on Morse's part. Under all of the circumstances, I find upon the record as a whole that, substantially as alleged in, the complaint against Respondent Union, on October 9, 1975, one day before Morse's second termination, Respondent Union, through its business representative and agent, Joe Scott, formally cited Morse to appear before its executive commit- tee to answer concerning a purported disciplinary matter which to said Respondent Union's knowledge was utterly devoid of even arguable merit or justification; that said citation and subsequent proceeding were in their inception and from their origin initiated and carried forward as a part laborer had been observed using what Scott calls a "crescent wrench," used to loosen or tighten a nut, which Scott considers to be strictly "carpenter work," although the use of a hammer to pull nails would not be considered "carpenter work." It is a further undisputed fact that the tool in question which the laborer had taken to utilize was in any event not that of Morse 23 If by this Brown means to suggest that the Union is not responsible for what its business representatives or other agents do unless they first discuss it with Brown and Brown personally fast approves , I can by no means agree Furthermore, at no time did Brown or the Union disavow the action or withdraw the "citation" against Morse, even though Brown knew about it and there was plenty of tune to do so. 24 In this, Brown is in agreement with Morse. Nevertheless, the conceded- ly erroneous minutes apparently remain officially uncorrected. CARPENTERS DISTRICT COUNCIL of Respondent Union's continuing purpose and plan, through its representative and agent, Scott, to harass and intimidate Morse and to cause his employer, Respondent Employer herein, to discriminate against Morse by termi- nating his employment, and to restrain and coerce Morse in the exercise of rights guaranteed to him in Section 7 of the Act: B. Resolution and Rationale It is well settled that a union violates Section 8(b)(2) and (1)(A) of the Act where-it causes or attempts to cause an employee's employer to discriminate against him in viola- tion of Section 8(a)(3), such as by bringing about the termination of the employee's employment (or by failing or refusing to refer him for employment or reemployment), and where it coerces and restrains the employee in the exercise of rights guaranteed in Section 7, because the employee politically or personality-wise opposes the incum- bent union administration. Warehouse Union Local 860, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America (Admiral Corporation and Transcontinental Music Corporation), 195 NLRB 68 (1972); Hoisting and Portable Engineers, Local No. 4 (The Carlson Corporation), 1-89 NLRB 366 (1971), enfd. 456 F.2d 242 (C.A. 1, 1972); Local 227, International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW) (Chrysler Corporation), 182 NLRB 182 (1970); Chauffeurs Union Local 923, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Yellow Cab Company), 172 NLRB 2137 (1968); Hod Carriers' and Construction Laborers' Union, Local 300, AFL-CIO (Desert Pipeline Construction Co.), 145 NLRB 1674, 1678 (1964). It is also clear that an employer who participates - in or lends itself to such actions similarly violates Section 8(a)(3) and (1) of the Act. R-M Framers, Inc., 207 NLRB 36 (1973); Tracy Towing Line, Inc., 166 NLRB 81 (1967), enfd. 417 F.2d 865 (C.A. 2, 1969), cert. denied 397 U.S.1008 (1970). - Pressing groundless charges against a union member by a union official for the same reasons or out of personal spite growing out of those reasons, also constitutes union restraint and coercion against the employee in the exercise of his Section 7 rights, and thus also violates Section 8(b)(1)(A) of the Act, Carpenters Local Union No. 22, United Brotherhood of Carpenters and Joiners ofAmerica, AFL-CIO (William Graziano, d/b/a Graziano Construction Company), 195 NLRB i (1972). It is no defense for Respondent Union to claim that it is not responsible because the matter was purely personal between the member and the union official (Scott), since not only was the official its agent clothed with its authority, but its president (Brown) had personal knowledge and was on express notice of the simmering feud between the two. Further, the "citation" against Morse was formally initiated and pressed by, a responsible union official on the Union's letterhead in the name of the Union, and the Union at no time countermanded or ' disavowed those measures. Nor does the union committee action dropping the matter 81 without reprimand or other adverse action or comment against Morse, after he had been "cited" and subjected to a hearing, absolve the Union of its responsibility for initiating and pressing the matter, to say nothing of its responsibility for twice bringing about Morse's termination from his employment; indeed, the Union's executive committee action absolving Morse may, under the circumstances here disclosed, be regarded as thrusting the other way and indicating the spuriousness of the "citation" against Morse which coincided with his second termination. So far as concerns Respondent Union's contention that the entire matter is solely or strictly "intraunion" and for that reason outside the perimeter of the Act's coverage, it is clear that discriminatory retaliation - by unions or by employers - such as by job termination, for an employee's exercise, of rights guaranteed under Section 7 of the Act, is not only within the Act's coverage but central to its purposes and the Board's concern. "It is by now well settled that although Section 8(b)(1)(A) `leaves a union free to enforce a properly adopted rule which reflects a legitimate union interest' and `impairs no policy Congress has imbedded in the labor laws,' -it does not permit enforcement, by fine or expul- sion,25 of a rule which `invades or frustrates an overriding policy of the labor laws ....' [Scofield v. N.L R.B., 394 U.S. 423, 430, 429]." Carpenters Local Union No. 22 (William Graziano, d/b/a Graziano Construction Company), 195 NLRB 1 (1972). See also Chauffeurs Union Local 923, Teamsters (Yellow Cab Company), 172 NLRB 2137 (1968). Upon the facts presented and found, the conclusion is irresistible that-Morse was "shafted" by Respondent Union through its business. manager, Scott, on the three occasions here involved (and, on two of those occasions with the participation of Respondent Employer) - i.e., Morse's termination on July 10, his disciplinary "citation" on October 9, and his second termination on October 10, 1975 - to muzzle him in his criticism of the way Scott was handling employment matters and Respondent Union's affairs as its business representative. Since that criticism by Morse, on behalf of fellow employees as well as himself, cannot be said to have been captious or quixotic - whether or not Morse and his fellows were right or wrong - it constituted protected concerted activity under the Act; and, accordingly, restraint and coercion of Morse by Respondent Union in the exercise of that right was and is 'violative of Section 8(b)(1)(A). Since Respondent Union also caused Morse's employer to discriminate against Morse by laying Morse off for that reason, Respondent Union thereby also violated Section 8(b)(2). Inasmuch as Respondent Employer permitted itself to be the instrument for carrying out that discrimination, restraint, and coercion by twice terminating Morse's employment, and thereby also invaded Morse's rights under Section 7, Respondent Employer violated Section 8(a)(3) and (1). I so find and conclude. Upon the foregoing findings and the entire record, I state the following: 25 It may be presumed that this extends to other coercive measures such as herein. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAw 1. Jurisdiction is properly asserted in this proceeding. 2. Through its actions described and found in section II, supra, by procuring the termination of Leslie L. Morse, Sr., Charging Party herein, from the employ of Respondent Daniel Construction Company at its La Cygne, Kansas, project, on or about July 10 and again on or about October 10, 1975, and by not referring Morse for employment with Respondent Employer at its said project after Morse's said termination and prior to his reinstatement on or about July 21, 1975, and also since his second termination on or about October 10, 1975, and by citing Morse on or about October 9, 1975, for hearing before the union executive committee on spurious and baseless accusations connected with his said employment and in continuation of the restraint and coercion exerted by Respondent Union on Morse by reason of Morse's protected concerted activities as hereinabove described, Respondent Carpenters District Council of Kansas City and Vicinity has engaged in unfair labor practices in continuing violation of Section 8(b)(2) and (1)(A) of the National Labor Relations Act, as amended. 3. By participating in the unfair labor practices referred to in section III, B, supra, and by terminating the employ- ment of its employee Leslie L. Morse, Sr., on or about July 10 and October 10, 1975, and by not reinstating or rehiring Morse after his said July 10 termination and before his reinstatement on or about July 21, 1975, and since on or about October 10, 1975, under the circumstances described and found in section II, supra, Respondent Daniel Con- struction Company has engaged in unfair labor practices in continuing violation of Section 8(a)(3) and (1) of said Act. 4.' Said unfair labor practices and each of them have affected, are affecting, and, unless permanently restrained and enjoined, will continue to affect commerce within the meaning of Section 2(6) and (7) of said Act 26 REMEDY Inasmuch as Respondents have been found in violation of Section 8(b)(l)(A) and (2), and Section 8(a)(3) and (1), of the Act, they should be ordered to cease and desist from those or like violations, and to take certain affirmative actions in effectuation of the policies of the Act. The affirmative actions will include those usually required in cases of this type, designed to remove impediments to and to effect Morse's reinstatement and reemployment in his previous or equivalent job with Respondent Employer, and to make him whole for any pay lost and benefits missed in consequence of each of the unlawful terminations herein, and also to reimburse Morse for travel expenses to and from the distant job in Nevada, Missouri, to which he was in effect banished by Respondent Union (less any travel allowances received by him), until Morse is offered rein- statement by Respondent Employer to his former or equivalent job at Respondent Employer's La Cygne Project 26 At the hearing, both Respondents conceded on the record that no Collyer defense (Collyer Insulated Wire, A Gulf and Western Systems Co, 192 NLRB 837 (1971 ), or contention is interposed or raised here. 27 Pinkerton's National Detective Agency, Inc, 90 NLRB 205 (1950), enfd. 202 F.2d 230 (C.A. 9, 1953); Zoe Chemical Co., Inc, 160 NLRB 1001, 1002- 03 (1966), modified in other respects 406 F 2d 574 (C.A 2, 1969). (or, at Morse's election, equivalent employment else- where).27 Since it is established that Respondent Employer on December 8, 1975, received written notification from Respondent Union (Resp. Union Exhs. 1, 2, and 3) that the latter had no objection to the employment of Morse, and since Morse concedes that he likewise received a copy of that notification, it would seem that under Board policy Respondent Union's backpay liability with regard to Morse's October 10, 1975, termination is to be deemed extinguished 5 days after that notification - i.e., on December 13, 1975, leaving unaffected the continuing backpay liability of Respondent Employer, which conced- edly took no action concerning Morse following its receipt of that notification from the Union. (It is the further fact that Morse also did nothing about it and that the Union did not refer Morse - who was employed at Nevada, Missouri, until around mid-March 1976 - to La Cygne for reemploy- ment, although it referred other carpenters there.) Sums due, with interest, shall be computed as explicated by the Board in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962); and Respondents shall preserve and make available neces- sary records for computation and compliance determina- tion purposes. Respondent Union should also be required to expunge from the October 21, 1975, minutes of its executive committee meeting the concededly erroneous entry that Morse was reprimanded. Finally, Respondents should post the usual informational notices to members and employees. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: ORDER28 A. Respondent Carpenters District Council of Kansas City and Vicinity, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Daniel Construction Company to discriminate against any employee in violation of Section 8(a)(3) of the National Labor Relations Act, as amended. (b) Restraining or coercing any employee in the exercise of any right guaranteed in Section 7 of said Act. (c) Causing or attempting to cause, such discrimination against any employee, or so restraining or coercing any employee, or citing or bringing up any employee for union hearing or trial, because he has opposed or criticized the way said Union is administered or the way any of its business representatives conducts union affairs, or because he urges or proposes corrective measures, or because he 28 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 which follows herein shall, as provided in Sec. 102 48 of those 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. CARPENTERS DISTRICT COUNCIL 83 announces he intends to run or stands for election to union office 29 - (d) In any like or related manner, in violation of Section 8(b)(2) of said Act, causing or attempting to cause said Employer to discriminate against any employee in violation of Section 8(a)(3) of the Act. . - (e) In any like or related manner, in violation of Section 8(b)(1)(A) of said Act, restraining or coercing any employee in the exercise of any right guaranteed in Section 7 of the Act. 2. Take the following actions necessary to effectuate the policies of the Act: (a) In conjunction with Respondent Daniel Construction Company, make whole Leslie L. Morse, Sr., for any loss of pay or missed benefits by reason of the discriminations and unlawful acts against him, (1) for the period between Morse's first termination on or about July 10 until his reinstatement on or about July 21, 1975, and (2) for the period from Morse's second termination on or about October 10, 1975, until December 13, 1975, less interim earnings, as described in the portion of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all job referral records, hiring hall records, and other books, records, and entries necessary or appropriate to analyze the amount of backpay due and the extent of Respondents' compliance with this Order. (c) Forthwith expunge the notation in the October 21, 1975, minutes of its executive committee that a motion was carried to reprimand Leslie L. Morse, Sr. (d) Post at its business offices, union halls, and meeting places throughout the area of its jurisdiction, including its local unions, copies of the attached notice marked "Appen- dix A."30 Copies thereof, on forms provided by the Regional Director for Region 17 shall, after being duly signed by said Respondent's authorized representative, be posted by said Respondent 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 customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Return to the Regional Director for Region 17, copies of said notice, signed as aforesaid, in a quantity to be designated by said Regional Director, for posting by Darnel Construction Company at its principal office and at its La Cygne, Kansas, project, and, if desirous or willing, its other premises and jobsites within the territorial jurisdiction of Respondent Union. (t) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps said Respondent has taken to comply herewith. B. Respondent Daniel Construction Company, La Cygne, Kansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a). Encouraging or discouraging membership in Carpen- ters District Council of Kansas City and Vicinity, or any of its local unions, by terminating the employment of any employee or in any other manner discriminating against any employee in regard to hire, tenure, or any term or condition of employment (except to the extent permitted by the proviso to Section 8(a)(3) of the National Labor Relations Act, as amended). (b) Discharging, terminating the employment of, laying off, furloughing, suspending, refusing or failing to reinstate or rehire, or otherwise discriminating against any employee in regard to hire, tenure, or any term or condition of employment, at the behest of or in concert with Carpenters District Council of Kansas City and Vicinity, or any other labor organization acting in violation of Section 8(b)(2) of said Act. (c) Interfering with, restraining, or coercing any employee in the exercise of any right guaranteed in Section 7 of said Act, at the behest of or in concert with Carpenters District Council of Kansas City and Vicinity, or any other labor organization. (d) In any like or related manner discriminating against, or interfering with, restraining, or coercing, any employee in the exercise of any right guaranteed in Section 7 of said Act. 2. Take the following actions necessary to effectuate the policies of the Act: (a) Forthwith offer Leslie L. Morse, Sr., immediate and full reinstatement to his former or substantially equivalent position at its La Cygne, Kansas, project, without prejudice to his seniority and other rights, privileges, and benefits, as described in the section of this Decision entitled "The Remedy." (b) In conjunction with Respondent Union, make whole Leslie L. Morse, Sr., for any loss of pay or missed benefits by reason of the discriminations and unlawful acts against him, (1) for the period between the date of Morse's first termination on or about July 10 and his reinstatement on or about July 21, 1975, and (2) for the period from the date of Morse's second termination on or about October 10, 1975, until said Respondent offers Morse reinstatement to his former or substantially equivalent position at its La Cygne, Kansas, project (or, at Morse's election, until Morse accepts equivalent employment elsewhere), less interim earnings, as described in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all hiring records, payroll records, social security payment records, timecards, personnel records and reports, and other books, records, and entries necessary or appropriate to analyze the amount of backpay due and the extent of Respondents' compliance with this Order. (d) Post at its principal place of business, and at its La Cygne, Kansas, project, copies of the attached notice marked "Appendix B,"31 and also copies of the attached notice marked "Appendix A."31 Copies of said notice 29 Hoisting and Portable Engineers, Local No. 4 (The Carlson Corporation), National Labor Relations Board" shall read "Posted Pursuant to a Judgment 189 NLRB 366, 376 (1971), enfd. 456 F.2d 242 (C.A. 1, 1972). of the United States Court of Appeals Enforcing an Order of the National 30 In the event this Order is enforced by a Judgment of a United States Labor Relations Board." Court of Appeals, the words in the notice reading "Posted by Order of the 31 See fn. 30, supra 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD marked "Appendix B," to be furnished by the Regional Director for Region 17 shall, after being duly signed by said Respondent's authorized representative, be posted by said Respondent . immediately upon receipt thereof, together with copies of said notice marked "Appendix A" furnished by said Regional Director, and maintained by said Respon- dent for 60 days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 17, in writing, within 20 days from the date of this Order, what steps said Respondent has taken to comply herewith.