Dravo Corp.

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dravo Corporation and Lewis Blake . Case 6-CA-8877 March 17, 1977 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On August 3, 1976, Administrative Law Judge Abraham Frank issued the attached Decision in this proceeding. Thereafter, the General Counsel 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, fmdings,1 and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge concluded that Respondent did not violate Section 8(a)(3) and (1) of the Act by refusing to recall Lewis Blake from on or about September 3, 1975, until January 14, 1976, and by thereafter conditioning his recall on his refraining from acting as steward on behalf of the Union.2 He further concluded that Respondent had not, as alleged, violated Section 8(a)(1) by threatening to discharge Blake for filing charges with the Board and by threatening to subcontract unit work if Blake were appointed steward. Accordingly, he dismissed the complaint in its entirety. For the reasons set forth below, we find that Respondent has violated the Act as alleged. The relevant facts are as follows: Respondent and the Union at all times material herein have been parties to a collective-bargaining agreement .3 Re- spondent first hired Blake in 1963 to work as a laborer on its construction project at the Mobay Chemical Company plant in New Martinsville, West Virginia. He was later appointed steward on that project by Al Ducci, the Union's business agent, and continued in that capacity until he quit in 1965. Blake later returned to work for Respondent on the Mobay project as a regular laborer in late 1971, was laid off in 1972, and was recalled by Respondent in early 1973. Shortly after Blake's recall in 1973, Ducci i Inasmuch as no party has raised before us the issue of deferral of this proceeding under Collyer Insulated Wire, A Gullf& Western Systems Co, 192 NLRB 837 (1971), we find it unnecessary to pass upon the Administrative Law Judge's discussion of Joseph T Ryerson & Sons, Inc., 199 NLRB 461 (1972), with respect to the appropriateness of deferral herein. 2 The Union involved herein is Local 1149, Laborers' District Council of Charleston, West Virginia, Laborers' International Union of North America, AFL-CIO. 3 Respondent is a party to a national agreement between the Laborers' International Union and the National Constructors Association of which named Blake as steward. When Ducci so informed Murray Willett, Respondent's construction superin- tendent, the latter, alluding to an apparent under- standing between Ducci and himself, stated, "I thought you promised me that [Blake] wouldn't be the steward." However, Willett pursued the matter no further and Blake thereafter served as steward. In March 1975, Respondent's contract with Mobay terminated and all employees, including Blake, were laid off. When Respondent resumed operations at the project under a new agreement with Mobay in September 1975, Willett called the Union's hiring hall and requested two laborers by name, but refused to request Blake, the last steward on the job. Ducci objected to Willett's refusal to adhere to the local practice of giving first preference in recall to the prior steward.4 Willett responded that he would not recall Blake because of the steward's constant interference with the work of other contractors. Ducci took the position that Blake had not in fact engaged in such conduct. When the parties were unable to reach agreement on this issue, the Union filed a grievance which, however, was dropped by the Union at the International level. On December 29, 1975, Blake filed the instant charges on his own behalf. Willett subsequently informed Ducci on January 13, 1976, that Respondent would recall Blake under the condition that he not serve as steward. After being informed of the condition upon which he could return to work, Blake agreed to work as a regular laborer and was reemployed on January 14, 1976. On January 13, before Blake returned to work, Willett told Ducci that there was a "possibility" Dravo would subcontract all its work if Blake were named steward. Thereafter, on January 23, Willett called Blake into Respondent's office and tried to persuade him to drop the unfair labor practice charges, arguing that Blake should be satisfied since he was back at work. When Blake answered that he had not dropped the charges, Willett replied that "[n ]o one works for Dravo that has charges agin' 'em." At a subsequent meeting held on January 27, with both Blake and Ducci present, Willett said that Mobay would not allow Blake to work on the project if he refused to withdraw the charges and that, if Blake were named steward, Mobay "would probably" subcontract the work to others. After expressing the view that Blake should drop the charges because the case was a Respondent is a member. This contract is administered on behalf of the International Union by Local 1149 in conjunction with a Local Agreement, which is incorporated into the National Agreement . The national agreement provides, inter ahq that there shall be no nonworking stewards; the steward shall not cause any interference with work progress ; and the steward "shall be concerned with the employees of his Employer and not with the employees of any other Employer working nearby." 4 The agreement between Respondent and the Union also provides, in pertinent part: "In the event work is stopped on any project for any reason, the steward shall be the first man recalled." 228 NLRB No. 95 DRAVO CORP. 873 "loser," Willett pointed out that problems could be avoided if Blake took his advice. Willett also repeated his earlier remarks to Ducci that Respondent might subcontract its work if Blake served as steward. Blake continued to work as a regular employee until April 14, 1976. At that time Respondent, for economic reasons, laid off five laborers including Blake, the last laborer hired on the project. Four other laborers, including the then current steward for the Union, remained on the job 5 Respondent urged at the hearing, and the Adminis- trative Law Judge subsequently found, that it had sound justification for any discrimination against Blake. In this connection, Willett, who was on the project from April 1964 through December 1973, and subsequently returned to the jobsite in September 1975, testified that he had received about 25 com- plaints over the years relating to Blake's interference with the work of other contractors. According to Willett's testimony, such complaints began soon after the appointment of Blake as steward in the mid- 1960's. Norman Hartshorn, Mobay's construction superintendent, who worked on the project from 1964 until August 1974, testified that during Blake's tenure as steward he received some 15 to 20 complaints from various contractors that Blake was interfering with their work. Respondent further presented evidence of two incidents which occurred during Blake's second term as steward from 1973 to 1975, showing that he interfered with the work of other contractors on the Mobay jobsite in violation of the contractual agree- ment between Respondent and the Union. The first incident occurred sometime in 1973 after Blake was reappointed as steward. At that time, Consolidated Engineers was employing laborers, ironworkers, and pipefitters in the construction of a warehouse at the Mobay jobsite. The record reveals that the Ironwork- ers steward instigated the controversy by complain- ing to Blake that other employees on the Consolidat- ed Engineers job were being assigned laborers' work. After the two stewards walked across the street to observe the job, Blake expressed the opinion that the laborers were doing their own work. Both Blake and the Ironworkers steward then walked back to the Dravo jobsite. Subsequently, Consolidated Engineers complained to Respondent about Blake's activity. Thereafter, in the summer of 1973, Blake observed the absence of laborers on a job where Riverside Services was engaged in laying a blacktop surface at the New Martinsville project. When he contacted officials at the union hall to advise them of the situation, Blake was told by Ken Kuritz, the assistant S With respect to the layoff of union stewards, the contract between Respondent and the Union states that "The steward shall not be discrimi- nated against for discharging his duties as a steward . Before the EMPLOY- business agent, to either give Riverside Services a message or have a representative call the hall. Blake subsequently informed Robert Litman, the owner of that company, that Kuritz had said the Union would shut down his project if he continued using other crafts to perform laborers' work. According to the credited testimony of Litman, Blake returned the following day to again protest, this time in a hostile and belligerent manner, that Riverside Services was performing laborers' work with other employees. Litman also testified that Blake had accused several of his employees of performing laborers' work and had interfered with their work progress. Thereafter, Litman registered complaints concerning Blake's conduct with Willett and Hartshorn. Although Wil- lett testified that he verbally warned Blake on numerous occasions concerning his activities as steward, he conceded that he never took any other disciplinary action against Blake during his tenure. The Administrative Law Judge found that Blake in fact had interfered with the work of other contractors in contravention of the contract during the period of 1973-75, and that Blake did not improve his perfor- mance as steward despite numerous warnings by Willett. He further found that, although Respondent had sufficient cause to discharge Blake prior to his layoff in March 1975, Respondent refrained from taking any harsh disciplinary action during Blake's tenure as steward in order to avoid a serious confrontation with the Union. He therefore conclud- ed that Respondent's refusal to recall Blake in September 1975 was lawful as a disciplinary act, less harsh than outright discharge and sanctioned by the contract, and was not an effort to deny the Union its statutory and contractual rights to designate its steward. The Administrative Law Judge further found that Respondent's recall of Blake in January 1976 on the condition that he refrain from serving as steward was lawful. In this regard, he concluded that the parties were aware that the condition was unenforceable and that, in recognition of the Union's and Respondent's respective rights under the contract, Willett, Ducci, and Blake had come to a "gentlemen's agreement" that the latter would not be appointed steward pending the outcome of the instant proceeding. The Administrative Law Judge additionally found that the statements made by Willett to Ducci and Blake in January 1976 did not constitute unlawful threats in violation of Section 8(a)(1). With respect to Willett's statements concerning Blake's withdrawal of his charges with the Board, the Administrative Law Judge concluded that they did not amount to threats ER may discharge or layoff a steward, the EMPLOYER must first take this matter up with the Business Representative for adjustment." 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of discharge, finding that the parties' understanding that Blake would not serve as steward pending the outcome of this proceeding dispelled any suggestion that Blake would be terminated and that, in any event, Blake did not withdraw his charges and in fact continued to work for Respondent. As for Willett's statements that Mobay would not permit Blake to work on the project if he did not withdraw the charges and that, if Blake became steward Mobay would possibly subcontract to others, the Administra- tive Law Judge concluded that Willett had no authority to speak for Mobay. Finally, the Adminis- trative Law Judge considered Willett' s remarks concerning the possibility that Respondent might subcontract out its work if Blake were named steward to be an "empty threat" inasmuch as Ducci and Blake were aware that under the contract the existing unit of laborers would remain intact in the event the work was subcontracted out. Contrary to the Administrative Law Judge, we conclude that Respondent's refusal to recall Blake on or about September 3, 1975, and its subsequent recall of Blake on January 14, 1976, conditioned upon his refraining from serving as the Union's steward, were violative of Section 8(aX3) and (1). Thus, the Board in similar cases involving contractual limitations on stewards' activities has held that an employer's restrictions on employees' and a union's rights to be represented by persons of their choice cannot be diluted in the absence of compelling evidence of legitimate considerations.6 We fmd that such compel- ling evidence does not exist in this case. It is clear that the events relied upon by Respon- dent to justify its actions against Blake occurred well before the end of his last tenure as steward in March 1975. Thus, although Willett testified that he had received numerous complaints concerning Blake's conduct as steward, he conceded that many of these complaints were received during the mid-1960's, and it is significant to note that Willett himself was not even present on the jobsite from December 1973 until his return in September 1975. Similarly, Hartshorn, who also testified as to having received numerous complaints, had left the project in August 1974. Additionally, the two specific incidents of Blake's alleged interference with other contractors relied upon by Respondent occurred during 1973. Furthermore, although the Administrative Law Judge concluded that he could not lightly disregard Blake's interference with other contractors during his tenure as steward, it is evident that Respondent itself did not view Blake's conduct during that period with the same degree of concern. Thus, despite the contractual clause providing that a steward shall be concerned only with employees of his employer, Respondent filed no grievance under that contract concerning Blake during his tenure as steward, nor did it choose to impose any harsh discipline on him. Rather, the only actions taken by Respondent against Blake during his stewardship were in the form of verbal warnings. In these circumstances, we conclude that both Respondent's asserted reasons for refusing to recall Blake and its subsequent conditional recall of Blake were of an arbitrary, if not pretextual, nature, falling far short of any compelling justification based upon legitimate considerations.? We further conclude that the natural and foreseeable consequence of Respon- dent's conduct was to discourage active membership in the Union by its employees and, particularly, to discourage employees from serving as stewards on behalf of the Union. Accordingly, we find that Respondent has violated Section 8(aX3) and (1) of the Act. Additionally, we conclude that Willett's statements to Ducci and Blake during January 1976 constituted unlawful threats in violation of Section 8(a)(1). It is clear that Willett in his attempt to "persuade" Blake to withdraw his charges filed with the Board stated, "No one works for Dravo that has charges agin"em," and further stated that Mobay would not allow Blake to work on the project if he refused to withdraw the charges. Unlike the Administrative Law Judge, we do not fmd that the purported "gentlemen's agreement," the absence of any express authority of Willett to speak on behalf of Mobay, or the fact that Blake did not withdraw his charges and continued to work, sufficient to negate the threatening nature of Willett's statements. We further fmd that Willett's remarks concerning the possibility that Respondent and Mobay might subcontract out the unit work of laborers to constitute more than mere "empty threats." Thus, contrary to the Administrative Law Judge's finding, there was no clear guarantee, con- tractual or otherwise, that in the event Mobay selected a subcontractor other than Respondent to perform the work on its project, or in the event Respondent chose to subcontract out its work, the laborers involved would continue to work on the jobsite. Finally, we find that Willett's statements were an integral part of its unlawful conduct in refusing to recall Blake and later conditioning his recall, de- 6 See Freezer Queen Foods, Inc., 215 NLRB 638 (1974), and the cases consider such an agreement sufficient justification for Respondent's actions. discussed therein. Thus, it is clear that any agreement by Blake to return to work on the r Even assuming arguendo that Willett, Ducci, and Blake entered into a condition that he refrain from serving as steward was not a voluntary "gentlemen's agreement" that Blake would not serve as steward pending the decision, but rather was an act resulting from a coerced choice between outcome of this proceeding, we do not, as did the Administrative Law Judge, forgoing his employment or forgoing his Sec. 7 rights. DRAVO CORP. signed to insure that Blake would not serve as the Union's steward. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. Such affirmative action shall include an order that Respondent make Lewis Blake whole for any loss of earnings suffered by him by reason of Respondent's unlawful refusal to recall him from the period of on or about September 3, 1975, to January 14, 1976. Inasmuch as Blake, but for Respondent's unlawful conditioning of his recall, would have served as steward after January 14, 1976, in accord with the desire of the Union, and would have been among the last laborers laid off following Respondent's April 14, 1976, layoff in accord with its past practice, we shall order that Respondent make Blake whole for any loss of earnings from that date and shall require that Respondent offer him reinstate- ment. Backpay shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), together with interest at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Additionally, we shall require that Respondent notify the Union, in writing, with a copy to Blake, that it has no objection to the selection of Blake as the Union's steward. CONCLUSIONS OF LAW 1. Respondent Dravo Corporation is an employer engaged in commerce within the meaning of Section 2(2),(6), and (7) of the Act. 2. Local 1149, Laborers' District Council of Charleston, West Virginia, Laborers' International Union of North America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By refusing from on or about September 3, 1975, until January 14, 1976, to employ or rehire Lewis Blake on the Mobay project and by subse- quently conditioning Blake's employment upon his refraining from serving as steward on behalf of the Union, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By threatening to subcontract out the unit work of employees represented by the Union in the event that Blake was reappointed steward by the Union, Respondent has interfered with, restrained, and coerced employees in the exercise of rights guaran- teed in Section 7 of the Act, and thereby has engaged 875 in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By threatening Blake with discharge if he did not withdraw the charges filed by him with the Board, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Dravo Corporation, Pittsburgh, Pennsylvania, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to employ or rehire Lewis Blake because of his activities as steward on behalf of Local 1149, Laborers' District Council of Charleston, West Virginia, Laborers' International Union of North America, AFL-CIO, and from conditioning the employment of Blake upon his refraining from serving as the Union's steward. (b) Threatening to subcontract out the unit work of employees represented by the Union if Blake is appointed steward by the Union. (c) Threatening to discharge employees because they filed charges with the Board. (d) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Offer Lewis Blake immediate and full reinstate- ment to his former job or, if that job is no longer available, to a substantially equivalent position, without prejudice to his seniority or other rights, privileges, or working conditions, and make him whole for any loss of pay or other benefits he may have suffered as a result of the discrimination against him in the manner set forth in the section hereof entitled "The Remedy." (b) Notify Local 1149, Laborers' District Council of Charleston, West Virginia, Laborers' International Union of North America, AFL-CIO, in writing, with a copy to Lewis Blake, that it has no objection to the selection of Blake as the Union's steward. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. 876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) Post at its offices on the Mobay construction project in New Martinsville, West Virginia, copies of the attached notice marked "Appendix."8 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by a representative of Respondent, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 8 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF T'E NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all parties had the opportu- nity to present their evidence, the National Labor Relations Board has decided that we violated the law and we have been ordered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT refuse to employ or rehire Lewis Blake because of his activities as steward on behalf of Local 1149, Laborers' District Council of Charleston, West Virginia, Laborers' Internation- al Union of North America, AFL-CIO, or condi- tion the employment of Blake upon his refraining from serving as the Union's steward. WE WILL NOT threaten to subcontract out the unit work of employees represented by the Union if Blake is appointed steward by the Union. WE WILL NOT threaten to discharge employees because they filed charges with the Board. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed under Section 7 of the Act. WE WILL offer Lewis Blake immediate and full reinstatement to his former job or, if that job is no longer available, to a substantially equivalent position, without prejudice to his seniority or other rights, privileges or working conditions, and WE WILL make him whole for any loss of pay or other benefits he may have suffered as a result of our discrimination against him, with interest at the rate of 6 percent per annum. WE WILL notify Local 1149, Laborers' District Council of Charleston, West Virginia, Laborers' International Union of North America, AFL- CIO, in writing, with a copy to Lewis Blake, that we have no objection to the selection of Blake as the Union's steward. DRAvo CORPORATION DECISION ABRAHAM FRANK, Administrative Law Judge: The charge in this case was filed on December 29, 1975, and the complaint, alleging violations of Section 8(axl) and (3) of the Act, issued on February 26, 1976. The hearing was held on May 19, 1976, at New Martinsville, West Virginia. Briefs were filed by the General Counsel and Respondent and have been duly considered. The essence of this complaint is that Respondent Compa- ny refused to recall Lewis Blake, the Charging Party, to his former job as a working steward and recalled him thereafter only on condition that he agree not to be the steward for employees represented by Local 1149, Laborers' District Council of Charleston, West Virginia, Laborers' Interna- tional Union of North America, AFL-CIO, hereinafter called the Union. Respondent, a Pennsylvania corporation with its princi- pal office located in Pittsburgh, Pennsylvania, is engaged in the business of constructing and manufacturing barges and related products. At all times material herein, Respondent was engaged as a contractor performing construction and maintenance work for Mobay Chemical Company at the latter's plant in New Martinsville, West Virginia. During the past 12-month period Respondent received goods and materials valued in excess of $50,000 from points located outside the State of West Virginia for use in that State. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of the Act. 1. THE BACKGROUND This case has a history of more than a dozen years. It began in 1963 when Lewis Blake was first employed by Respondent Dravo as a laborer at the Mobay plant site. His initial period of employment lasted until 1965 when he left for personal reasons. During this period he had been appointed union steward, servicing the Union's laborers employed by Dravo. It was also during this period that Respondent's construction superintendent, Murray Willett, formed a very definite impression of Blake, which was profoundly to influence their relationship in the future. As Willett expressed it shortly, he liked "Lewie" as a man, but not as a steward. Willett viewed Blake as an average employee as long as he did not have the additional DRAVO CORP. responsibilities of a steward. According to Willett, during Blake's tenure as a steward he would be regularly absent from his job without permission and Willett would receive complaints that Blake was engaged in union business at another contractor's site. Respondent, previously known as Blaw-Knox, at all times material to these proceedings has been party to a national agreement between the Laborers' International Union of North America, AFL-CIO, and the National Constructors Association of which Respondent is a mem- ber. This contract is administered on behalf of the Union by its Local 1149 in conjunction with a Local Agreement, incorporated by reference in the National Agreement to the extent not inconsistent with the latter . Article XV of the National Agreement contains a three -step grievance proce- dure leading to binding arbitration. Article XI provides that subcontractors engaged to perform work covered by the agreement must observe all the terms and conditions of the agreement. With respect to the duties of stewards article VI (G) provides that a steward shall be a qualified workman performing work of his craft and provides further that there shall be no nonworking stewards. Article XIII provides in (6) that the steward shall not cause any interference with work progress and in (7) that "Each steward shall be concerned with the employees of his Employer and not with the employees of any other Employer working nearby." The relationship between the Union and Respondent has been amicable for more than 10 years. While there have been disagreements, apparently these have been settled with a minimum of friction or ill will on either side. When it came time to recall Blake in December 1973, Willett believed that he had reached an agreement with Al Ducci, the Union's business agent, that Blake would not be appointed steward. In fact, Blake was recalled during this period and initially worked only as a regular laborer. However, shortly after Blake's recall in 1973 Ducci received reports that Dick Phillips, the incumbent steward, was not performing his duties. Following an investigation of these complaints, Ducci replaced Phillips with Blake. Ducci took Blake into Willett's office and informed the latter of the change. According to Ducci, Willett protested, "I thought you promised me that he wouldn't be the steward." However, Willett carried the matter no further, recognizing that the appointment of stewards under Respondent's contract with the Union was the Union's, not the Compa- ny's responsibility. But he did not forget. In March 1975, Respondent's contract with Mobay terminated and all employees, including Blake, were laid off. During this period -1973-75- a number of incidents occurred which, according to Respondent, establish that Blake was guilty of interfering with the work of other contractors on the Mobay jobsite in violation of the contractual agreement between Respondent and the Union. The Consolidated and Litman Incidents- According to Blake Blake testified that he knew of only two incidents that could be related to Respondent's charge that he had exceeded his authority as union steward for Dravo's employees. The first related to Consolidated Engineers, a 877 company building a warehouse on Mobay premises. Laborers, ironworkers, and fitters were working for that company across the road from Dravo. Blake estimated the distance variously on direct and cross to be from 100 to 300 to 500 yards. At the suggestion of the Ironworkers steward, the two stewards walked down the road to observe the Consolidated job. The Ironworkers steward expressed the opinion that other crafts were doing the work of his craft. However, Blake said that the laborers were doing the work of laborers and the two stewards walked back to the Dravo jobsite. The second incident involved Robert Litman, the owner of Riverside Services, a company engaged by Mobay to lay black top surfacing. Blake testified that he happened to drive past the Litman jobsite during the course of his normal duties and noticed the absence of laborers on that job. He called the union hall and was told by the assistant business agent either to give Litman a message or have Litman call the union hall. Blake approached Litman and told him that Blake had a message for him or Litman could call the union hall. Litman asked for the message, and Blake told Litman that Ken Kuritz, the assistant business agent, had told Blake to tell Litman that if Kuritz didn't get the laborers' work that Kuritz would shut Litman down. Blake also testified that he considered Litman a friend and told Litman that Litman should not let happen to him what happened to Frances Lost, who was "run out at Mobay" for not living up to their agreements. The Litman Incident-According to Litman Litman gave a different version of his meeting with Blake and Blake's impact on the work progress of Riverside Services. Litman agreed that Blake had given him a message. However, when Blake left Litman called the union office. He spoke to an assistant business agent and was told that the latter had received some calls from Blake about Litman's Company. Litman said that he had laborers on the job but occasionally used others to get the job done. The assistant business agent responded that he understood, but just to watch it. The next day Blake returned. He told Litman to call the assistant business agent again, and Litman did so. Litman was told a second time to "watch it" because the Union had received several calls from Blake about teamsters and operators doing laborers' work. Continuing his conversation with Litman, Blake told him that Litman was doing laborers' work with people other than laborers; that Blake had run Litman's father-in-law out for writing bad checks and would do the same to Litman. Blake's attitude, according to Litman, was hostile and belligerent. Litman was concerned and upset and immediately reported the incident to Willett, who indicated that he would do something about it. Litman also testified that he had received reports from several of his employees, a teamster and an operating engineer, that Blake had accused them of performing laborers' work and had interfered with their work progress. Another of Litman's employees, a laborer, reported to Litman that Blake had told the laborer that employees other than laborers were doing the latters' work on Litman's job, agitating and concerning the laborer. Litman registered complaints with Willett and Norman Hartshorn, Mobay's construction superintendent. 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Litman Incident-Resolution of Credibility While the testimony of these two witnesses is not substantially in conflict, I credit Litman's version to the extent it differs from Blake's. Litman's testimony was direct and straightforward, given without hesitancy. Blake, on the other hand, did not initially remember his encounter with Litman, and only recalled it on further reflection. He did not contradict Litman's enlarged account of their meetings. Blake impressed me as an assertive, aggressive individual, who was zealous in fulfilling his duties as a steward and exceptionally vigilant in seeking out and attempting to rectify infractions of his union's work jurisdiction. He testified that if an instance arose where he was right and Willett was wrong he, unlike some other employees, would talk back, and I am satisfied that he would . I do not believe he would present himself to Litman as a mere messenger if Litman were, as Litman in effect conceded, in violation of a work assignment rule. I find that Blake's message to Litman was his own message as well as that of the Union 's assistant business agent. I am also of the opinion, and find, that Blake's reference to Frances Lost or Litman's father-in- law was not a casual bit of advice to a friend , but a clear and direct warning to one of Mobay's contractors, outside the sphere of Blake's union stewardship, to cease using other crafts to do Laborers work. The Complaints About Blake-According to Willett and Hartshorn Willett testified that over the years he had received about 25 complaints relating to Blake's interference with the progress of other contractors' work. Although Willett conceded that there were complaints about other stewards, Blake was, in this respect, a prime offender. Willett had received calls that Blake was interfering with the work at Consolidated Engineers. Litman had called Willett to complain about Blake's interference with Litman's work crew. Willett warned Blake about 15 times that Dravo had no connection with other contractors, that if there was a problem on another job, Blake's business agent should check it. However, despite the warnings, Blake's perfor- mance did not improve. Willett complained to Ducci, who said he was going to stop it, but Ducci was unable to do so. At the conclusion of the Dravo contract in March 1975, Blake had a reputation for interfering with the work progress of contractors other than Dravo. Hartshorn testified that over the years he had received 15 to 20 complaints with respect to Blake's interference with the work of contractors other than Dravo. He listed complaints from Consolidated Engineers, Murphy Con- struction, Litman's Riverside Services, and on a few occasions from insulating contractors. The complaints were serious enough to impel Hartshorn at one point to tell Willett to control his steward, that if Willett wouldn't Mobay would get someone else who could . Hartshorn explained that he had to insist on this policy because Mobay did not want people roaming over the plant due to the toxicity of certain chemicals. He had voiced the same complaint to all contractors and all stewards. They had freedom if they went through the proper channels and received the proper clearance. The Failure to Recall and the Recall of Blake- Events Within the 6-Month Limitations Period As indicated above, Respondent closed down operations at the Mobay plant in March 1975. However, operations resumed in September of that year. At that time Willett called the union hall for two laborers by name, but refused to call for Blake, the last steward on the job . Ducci objected to Willett's refusal to follow the local practice of giving first preference in recall to stewards. Willett took the position that he would not recall Blake because Blake had been interfering with the work of other contractors. Ducci denied that Blake was guilty of such conduct . According to Ducci, Blake had nothing to do with the incident at Consolidated Engineers. Nor was he responsible for bringing the question of the "fire watch problem" 1 to the attention of Mobay. Lewie, Ducci insisted, was being accused of something he wasn't guilty of doing. Nevertheless, Willett was adamant. He would not recall Blake. A written grievance was filed. Two meetings of the grievance committee were held at Ducci's office. The last such meeting in October or November 1975 was attended by Clyde Redenour, a representative of the International. No agreement was reached. In accordance with the grievance procedure the case was processed to the International level. Thereafter, Ducci spoke to Jack Wilkerson, the Union's regional manager, and was told by Wilkerson that the Blake case was a loser. The report to Wilkerson was that Blake was a good worker, but he interfered with other contractors. Willett testified that, if necessary, the Company was prepared and ready to submit the issue of Blake s recall to arbitration. Despite Ducci's recommendation to the same effect, the Union dropped the grievance at the International level. In late December Blake filed the instant charge on his own behalf. Subsequent to the filing of the charge four meetings were held in Willett's office during which , the General Counsel alleges, Respondent further violated Section 8(a)(1) of the Act. On January 13, 1976, Willett suggested to Ducci that if they were going to call Blake back they ought to do it then, but that Blake would have to work under the condition that he would not be the steward. Ducci said he would call Blake and let him make the decision. Ducci did so and Blake returned to work the next day and worked until his layoff for economic reasons in April 1976. He was not appointed steward during this period. The January 1976 Meetings with Willett- According to Ducci and Blake Ducci testified that in his conversation with Willett Ducci thought that Willett said, if Blake came back as a steward there would be a "possibility" that Dravo would sublet all their work. Blake also testified that on January 14 before he went to work he saw Willett and the latter stated to him that Dravo would subcontract the work if Blake were named steward. On January 23 Blake again met with Willett. The I A work assignment dispute between the Union and the Pipefitters who was at the time substituting for Willett, and took the issue directly to Union on the Dravo job. Ducci was not able to get satisfaction from Reid, Mobay's safety director, going out of channels for that purpose. DRAVO CORP. 879 latter, according to the testimony of Blake , stated that Willett supposed that Blake had dropped the charges against Dravo since he was back at work. Blake replied that he had not dropped the charges. Willett responded that generally, "No one works for Dravo that has charges agin' 'em." Willett is also alleged by Blake to have said that Willett would have to bring Mobay in on it and, if he did, "then you won't work here, or they won't let you work here." Finally, Willett suggested that Ducci be brought down to settle the matter and Ducci met with Willett and Blake on January 27. Blake testified that at this meeting Willett said that Mobay didn't want Blake to be the steward. Blake asked if he were the steward would Mobay subcontract the work and Willett responded that they "probably would," that Willett was giving Blake a way out- withdrawing the charges. According to Blake, Willett repeated what he had said at the January 23 meeting, i.e., that if Blake did not drop the charges Mobay would not let him work there. Ducci testified that he asked Willett if Willett had not said at one of their previous meetings that if Blake came back as steward Dravo would possibly sublet all their work and Willett responded that that was a "possibility." Ducci further testified that at this meeting Willett said that Blake's case was a loser and if Blake dropped the charges everything would be all right. The upshot of the meeting was that Blake agreed to sleep on the question of withdrawing his charges. Willett said that was fine. The January 1976 Meetings with Willett- According to Willett Willett testified that in January 1976 he told Ducci that to bring Blake back as steward "would be asking for it" because of all the problems Blake had created. Willett conceded that at one point he had said Dravo might subcontract its work, but explained this occurred when Ducci threatened not to send him any laborers if he did not recall Blake and asked what Willett would do if he couldn't get any men, and under those circumstances Willett responded,"We will subcontract." On a later occasion when Ducci brought the subject up again, Willett said that he did not mean it. Willett conceded that in January 1976, he had asked Blake why Blake still had charges against the Company and asked for a meeting with Ducci. At one of these meetings Willett told Blake that he should drop the charges because Willett thought Blake had a loser. Willett denied generally that he had made any threats or promises during these conversations. In answer to specific questions from Respondent's attorney Willett denied: (1) saying if the case went further Blake would not work on the Mobay project; (2) saying if the charges were dropped everything would be okay; (3) stating to Blake that if Blake were steward Dravo would subcontract the work; (4) stating to Blake that if Mobay were brought into the picture, Blake wouldn't work there very long; (5) stating to Blake that if the latter dropped the unfair labor practice charges Blake would have a way out; and (6) stating that he had nothing to do with Blake's not being steward that the entire fault was Mobay's. Willett did not recall making a statement that generally no one works for Dravo who has charges against them. I, The January 1976 Meetings with Willett- Resolution of Credibility The testimony of Willett appears on the surface to be in conflict with that of Blake and Ducci. Willett impressed me as a fair, intelligent man, who would not deliberately tell an untruth. But Ducci and Blake also impressed me as good, solid men. They are rough-and-ready union leaders and not as sophisticated as Willett. They might, in my opinion, conveniently forget a damaging incident or tailor a story in their self-interest. But I do not believe, having observed them on the stand, that they would conspire to fabricate out of the whole cloth an untruthful story. There is an old maxim that truth is elusive and another that honesty is relative. Where the truth favors an honest man he will testify happily and in detail. Where the truth hurts he will testify only so far as his conscience dictates. He may not recall a painful statement or he may answer, "No" to a question carefully phrased to make such an answer literally true. Willett did not expand on the substance of his conversations with Ducci and Blake in January 1976. Nor did he deny stating to Blake that Mobay would subcontract work if Blake were named steward. His testimony that he stated to Ducci that Dravo would subcontract if Ducci did not send him any men must relate to the period before January 14, 1976, when Ducci was pressuring him to recall Blake and the latter had not yet been recalled. It is for the trier of facts to determine where the truth lies. On the basis of a composite of the testimony of Ducci, Blake, and Willett and in the context of this entire record, I make the following findings of fact as to the meetings between these individuals on January 13, 14, 23, and 27, all in 1976. I find that on January 13 before Blake returned to work Willett told Ducci that there was a "possibility" that Dravo would sublet all their work if Blake were named steward. At that time or thereafter Willett told Ducci that to bring Blake back as steward would be "asking for it" because of the problems Blake had created. Prior to Blake's signing up on January 14 the paymaster took Blake into Willett's office and Willett said, in effect, that Mobay did not want Blake as steward and asked Blake to promise that he would not be the steward. Blake said Ducci had explained the conditions under which Blake was returning to work. On January 23 Willett called Blake into Willett's office and tried to persuade him to drop the unfair labor practice charges, arguing that Blake should be satisfied since he was now back at work, and saying that generally no one works for Dravo while they had charges against it. Willett stated that if he had to bring Mobay in Blake wouldn't work there or Mobay wouldn't let him work there. At the January 27 meeting with Ducci present Willett repeated that Mobay wouldn't let Blake work there if he didn't drop the charges and that, if Blake were named steward, Mobay "probably would" subcontract. Willett stated that Blake should drop the charges since he had a loser. Willett repeated his earlier statement to Ducci, upon the latter's inquiry, that there was a "possibility" that Dravo would sublet its work if Blake were named steward. Willett pointed out that problems could be avoided if Blake withdrew his charges. Ducci took the position that the matter was entirely up to Blake. Blake said he would "sleep on it" and Willett said that was fine. 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. ANALYSIS The Failure To Recall and the Recall of Blake The General Counsel contends that Respondent's refusal to recall Blake from September 1975 to January 14, 1976, and his conditional recall on the latter date was an unwarranted restriction on the Union's and the employees' statutory right to be represented by a steward of their own selection. In defense the Respondent argues: (1) that it had a contractual right to hire the most qualified laid off laborers within 6 months of such a layoff and that all laborers recalled before Blake were more qualified than he; (2) that it had a right not to recall Blake at all if he were to be steward because as steward he was a "terrible" employ- ee; and (3) that, in any event, Respondent had sound business and contractual justification for any discrimina- tion against Blake. I find without merit Respondent's defenses (1) and (2). Whatever Respondent's contractual right to determine the qualifications of laborers, the record is clear, and I find, that the motivating reason for Respondent's failure to recall Blake and its attempt to insure that he would not be named steward after his recall in January 1976, was Willett's unhappiness with Blake's previous performance as steward on the Dravo job. I am satisfied that Willett otherwise would have yielded to Ducci's pressure and would have followed the local practice of recalling a laid off steward first. The evidence in this case that Blake was guilty of interfering with the work and work progress of other contractors on the Mobay site, in violation of Respondent's contract with the Union is, of course, background evidence and available solely to shed light on Respondent's motiva- tion for its conduct within the 10(b) period. I find that Blake did, in fact, interfere with the work of contractors other than Dravo during Dravo's preceding contract with Mobay in 1973-75. Contrary to the General Counsel, I cannot view lightly Blake's aggressive pursuit of his quarrel with Litman over the latter's work assignments.2 This was precisely the type of labor dispute that the Respondent's contract was designed to avoid. Nor can I ignore the excessive number of complaints that Willett and Hartshorn testified that they had received protesting Blake's abuse of his stewardship. Willett testified without contradiction, and I credit his testimony, that on a number of occasions he warned Blake about his activities affecting employees of other contractors, that Blake promised to improve his performance, but his performance did not improve . Blake, if innocent, had an obligation to speak up in his own defense against the charges reported to Willett and to disprove them if possible. His failure to do so must be held against him in these circumstances. There is no substantial evidence in this record to support the General Counsel's alternative position that Respondent acted against Blake in retaliation for his protected activities as steward. There remains for consideration the rather delicate question whether Respondent's treatment of Blake was a 2 I find, contrary to the General Counsel, that Willett did not condone Blake's interference with the Litman job. Although Blake testified that he was at a meeting with Willett and Litman dung which Willett said the matter was "settled," Litman denied that Willett was present . Ducci recalled disciplinary act, sanctioned by its contract, or an effort to deny the Union the latter's contract and statutory right to name the steward on the job. As the General Counsel points out, under the contract a steward is entitled to no preferential treatment and is subject to discipline, including discharge, for failure to perform his duties. Indeed, Rosen- lieb, Blake's successor as steward, testified that Ducci told him that he would be fired if he meddled with a contractor unrelated to Dravo. Despite the Consolidated Engineers incident, the Litman incident and man complaints, Blake was not discharged by Respondent. a n not? It seems to me the answer to this question lies in the relationship between Respondent and the Union. The discharge of a steward, even if deserved, is a serious matter. It is an affirmative act against an appointed union official. Wheth- er or not it is legally defensible, the company must look not only to its legal rights but to the preservation of the subtle understanding that always exists in good faith collective bargaining. Willett and Ducci understood each other. Each would attempt to pressure the other, but each was careful not to apply too much pressure. The failure to recall Blake was annoying to Ducci and ground for a grievance, but it was within the framework of their understanding. It was a negative, not an affirmative act, an act to be opposed by the Union and Blake, but an act that did not disrupt the harmonious relationship between company and union. I find that the failure to recall Blake was an act of discipline, less harsh than an outright discharge, and for cause. So far as the "conditional" recall of Blake is concerned, all parties were at all times aware that this condition was unenforcea- ble. Willett had the right to recall and to discharge for cause under Respondent's contract. Ducci had the right under the same contract to appoint stewards. Neither questioned the other's right. Ducci testified without contradiction, and I credit his testimony, that there was a gentlemen's agree- ment among Willett, Ducci, and Blake that the latter would not be appointed steward pending the outcome of the instant case. Whatever moral obligation Ducci and Blake assumed it was in the context of Willett's right not to recall Blake as a form of discipline, and I am satisfied it was so understood by all parties. Willett's Statements in January 1976 to Ducci and Blake The complaint alleges that on January 13, 23, and 27, 1976, Respondent, through Willett, threatened to discharge "employees" for filing charges with the Board and threat- ened that unit work would be subcontracted if Blake were appointed steward. I have set forth above the statements which I believe Willett in effect made, to Ducci and Blake on the above dates and on January 14. Willett wanted Blake to drop his charges and not to be steward on the Dravo job. As indicated above, the parties reached an understanding that Ducci would not appoint Blake steward until the merit of Blake's charge was decided in the instant case. On its face this agreement would seem to dispel any suggestion that Blake was threatened with discharge for meeting with Blake and Litman and Litman said to "forget it." Willett did not testify as to this incident. I credit Litman's version that he met casually with Blake and Ducci and that Willett was not present. DRAVO CORP. 881 filing charges with the Board . However, Willett made other statements, which fall into several categories: (1) Willett's predictions as to action that Mobay might take if Blake did not drop his charges or became steward , and (2) Willett's predictions as to action that Dravo might take . As to (1), clearly Willett had no authority to speak for Mobay. Hartshorn had told Willett to control his steward or Mobay would get another contractor . Hartshorn may have said other things. In any event, suggestions by Willett that Mobay might in the future take some action against Blake cannot in this context be held to constitute an unlawful threat by Respondent Dravo, a contractor entirely indepen- dent of Mobay. As to (2), the threat to subcontract work is normally a serious matter because it entails the loss of unit work and the jobs of incumbent employees . Ducci and Blake were keenly aware, however, that their contract covered all subcontractors of Dravo and their existing unit would remain intact even if Dravo subcontracted its work. Under these circumstances, I find Willett's statements that Dravo might "possibly" subcontract its work to be an empty threat. Nor can I take Willett's statement that generally no one works for Dravo while they have charges against it as a threat to discharge Blake. Perhaps Blake was an exception, but he did not drop his charge and he was working for the Company and he continued to work for the Company with an understanding that, if vindicated in this case, he would probably be appointed steward. [Recommended Order for dismissal omitted from publi- cation.]