Kaiser, Henry J., Company

HENRY J. KAISER COMPANY I Henry J. Kaiser Company and Charles E. Clendenin find that, in order to remedy that violation, the Journeymen Pipe Fitters Local No. 392, affiliated Administrative Law Judge should have included an with the United Association of Journeymen and order requiring Respondent Union to pursue Clen- Apprentices of the Plumbing and Pipe Fitting denin's grievance in good faith with due diligence Industry of the United States and Canada, and to make Clendenin whole for any loss of earn- AFL-CIO and Charles E. Clendenin. Cases 9- ings he may have suffered as a result of Respond- CA-14823 and 9-CB-4456 ent Union's unlawful conduct. The Administrative Law Judge found that it would be inappropriate to grant such a remedy DECISION AND ORDER here because the Company would most likely assert that Clendenin's grievance was now time BY MEMBERS FANNING, JENKINS, AND barred and that Clendenin could not in any event ZIMMERMAN demonstrate that his discharge was contrary to the On December 31, 1980, Administrative Law collective-bargaining agreement. However, in de- vising an appropriate remedy for a union's unlaw- Judge Benjamin Schlesinger issued the attached ful refusal to process a grievance, the Board has Decision in this proceeding. Thereafter, the Gener- not made a backpay award conditional on the al Counsel and Charging Party Charles E. Clen- merits of the grievance.3 The fact that Clendenin's denin filed exceptions and supporting briefs; Henry discharge may not have been unlawful, here, has J. Kaiser Company (herein also called Respondent nothing to do with the fact that Respondent Union Employer or Kaiser) and Journeymen Pipe Fitters violated the Act by failing to process Clendenin's Local No. 392, affiliated with the United Associ- grievance. As the Administrative Law Judge points ation of Journeymen and Apprentices of the out in his Decision: Plumbing and Pipe Fitting Industry of the United [M]erely because the Company took disciplin- States and Canada, AFL-CIO (herein also called ary action which does not violate the Act does Respondent Union), filed answering briefs; and Re- not mean that an arbitrator might not have spondent Union filed cross-exceptions. deemed the discipline unwarranted or too Pursuant to the provisions of Section 3(b) of the severe. An arbitrator is not bound by the same National Labor Relations Act, as amended, the Na- factual findings that I have made; he may do tional Labor Relations Board has delegated its au- industrial justice and may effectuate a compro- thority in this proceeding to a three-member panel. mise of a grievance, whereas the Board may The Board has considered the record and the at- not. tached Decision in light of the exceptions and tached Decision in light of the exceptions and It is uncertain whether the processing of Clen- briefs and has decided to affirm the rulings, find- denn's ncertain w hether the processin of Clen- mgs, and conclusions of the Administrative Law form of discipline or any discipline at all. This un- Judge and to adopt his recommended Order, as certainty results from Respondent Union's unlawful modified herein. We agdifid ree i the Adv action. Where, as here, such an uncertainty re- findgWe agree with the Adminiostrative Law Judgevds quires resolution, at least for the purposes of deter- finding that Respondent Union, inter alia, violated Section 8(b)(1)(A) of the Act by its unlawful fail- Section 8(b)(1)(A) of the Act by its unlawful fail proper to resolve the question in favor of the dis- ure to accept and/or process a grievance on behalf criminatee and against the wrongdoeri Since Re- of its member Charles E. Clendenin.2 However, we _of its member Charles E. Clendenn.2 However, we spondent Union did not prove that had it processed ' Both the General Counsel and the Charging Party have excepted tould have certain credibility findings made by the Administrative Law Judge. It is been terminated, we shall resolve the uncertainty in the Board's established policy not to overrule an administrative law favor of Clendenin and find that Clendenin is enti- judge's resolutions with respect to credibility unless the clear preponder- ance of all of the relevant evidence convinces us that the resolutions are tied to at least some backpay. However, Respond- incorrect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. ent Union's backpay liability must be limited to any 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and loss Clendenin suffered as a result of the refusal to find no basis for reversing his findings. In the last paragraph in the section of his Decision entitled "The consider and process his grievance. That grievance Union's Failure To Process the Grievance," the Administrative Law now appears to be time barred under the terms of Judge inadvertently found that the "Union violated Section 8(ab)(l)(A) of the Act." This should read that the "Union violated Section 8(bXI)(A) the applicable collective-bargaining agreement, but of the Act." 2 The grievance concerned Clendenin's disciplinary discharge by 3 See Local Union No. 2088. International Brotherhood of Electrical Kaiser on or about January 28, 1980. Clendenin's discharge was also the Workers. AFL-CIO (Federal Electric Corporation), 218 NLRB 396, 397 subject of an 8(a)(3) charge which was consolidated with the instant (1975). charge, but was found to be without merit by the Administrative Law ' Laborers International Union of N.orth America. Local 324. AFL-CIO Judge herein. (Centex Homes of California Incorporated), 234 NLRB 367 (1978). 259 NLRB No. I 2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Union may be able to prevail upon pursue his grievance in good faith with all due dili- Kaiser to waive those time limits. Accordingly, we gence. shall order Respondent Union to make Clendenin "(b) Make Charles E. Clendenin whole for any whole for any loss of earnings he may have suf- loss of earnings he may have suffered as a result of fered as a result of his discharge by Henry J. his discharge by Henry J. Kaiser Company from Kaiser Company from the date of his discharge, January 28, 1980, until such time as he is reinstated January 28, 1980, until the earlier of the following by Henry J. Kaiser Company or obtains other sub- occurs: Respondent Union secures consideration of stantially equivalent employment or Respondent his grievance by Kaiser and thereafter pursues it in Union secures consideration of his grievance by good faith and with due diligence, or Clendenin is Kaiser and thereafter pursues it will all due dili- reinstated by Kaiser or obtains substantially equiva- gence, whichever is sooner, together with interest, lent employment,' Center Homes of CalifOria, to be computed in the manner set forth in the supra; United Steelworkers of America, AFL-CIO Board's Decision and Order." (Inter-Royal Corp.), 223 NLRB 1184 (1976). Back- 2. Substitute the attached Appendix B for that of pay shall be computed in the manner prescribed in 2. Substtute the attached Appendix B for that of F. W. Woolworth Company, 90 NLRB 289 (1950), the Administrative Law Judge. with interest thereon as set forth in Florida Steel APPENDIX B Corporation, 231 NLRB 651 (1977). 6 NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE Pursuant to Section 10(c) of the National Labor NATIONAL LABOR RELATIONS BOARD Relations Act, as amended, the National Labor Re- An Agency of the United States Government lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- WE WILL NOT fail or refuse to fairly repre- fled below, and hereby orders that the Respondent sent any employee we represent in the process- Employer, Henry J. Kaiser Company, Moscow, ing and filing of grievances. Ohio, its officers, agents, successors, and assigns, WE WILL NOT coercively interrogate em- shall take the action set forth in the said recom- ployees in preparation for defense of unfair mended Order, and that the Respondent Union, labor practice proceedings without first obtain- Journeymen Pipe Fitters Local No. 392, affiliated . . ing voluntary participation by said employees with the United Association of Journeymen and said employees Apprentices of the Plumbing and Pipe Fitting In- and without first gvg said employees assur- dustry of the United States and Canada, AFL- ances against reprisals if they choose not to CIO, Cincinnati, Ohio, its officers, agents, and rep- participate in said interviews. resentatives, shall take the action set forth in the WE WILL NOT in any like or related manner said recommended Order, as so modified: restrain or coerce employees in the exercise of i. Insert the following as paragraphs B,2,(a) and the rights guaranteed them in Section 7 of the (b), and reletter the subsequent paragraphs accord- National Labor Relations Act, as amended. ingly: WE WILL request Henry J. Kaiser Company "(a) Request Henry J. Kaiser Company to rein- to reinstate Charles E. Clendenin to his former state Charles E. Clendenin to his former position position or, if it no longer exists, to a substan- or, if it no longer exists, to a substantially equiva- tially equivalent position. If Henry J. Kaiser lent position. If Henry J. Kaiser Company refuses Company refuses to reinstate him, WE WILL to reinstate him, ask it to consider a grievance over ask it to consider a grievance over his January his January 28, 1980, discharge, and thereafter 28, 1980, discharge and thereafter pursue his grievance in good faith with all due diligence. 5 Counsel for the General Counsel further asserts that attorney's fees WE WILL make Charles E. Clendenin whole should be granted to Clendenin in order that he might be represented by WE WILL make Charles E. Clendenn whole his own attorney during any grievance arbitration proceeding. We find, for any loss of earnings he may have suffered however, that our modified Order herein provides adequate incentive for as a result of his discharge by Henry J. Kaiser Respondent Union so that it will responsibly represent Clendenin's griev- ance. Company from January 28, 1980, until such If Respondent Union secures consideration of Clendenin's grievance by time as he is reinstated by Henry J. Kaiser Kaiser, Member Fanning would terminate Respondent Union's backpay liability at that point unless Respondent Union fails to process the griev- Company or obtains other substantially equiva- ance in good faith and with due diligence. lent employment or we secure consideration of See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).aiser and thereafter Member Jenkins would award interest on backpay due based on the for- his pursue mula set forth in his partial dissent in Olympic Medical Corporation, 250 NLRB 146 (1980). HENRY J. KAISER COMPANY 3 it with all due diligence, whichever is sooner, During the 12 months preceding the issuance of the com- together with interest. plaints herein, a representative period, the Company, in the course and conduct of its business operations, pur- JOURNEYMEN PIPE FITTERS LOCAL chased and received products, goods, and materials No. 392 AFFILIATED WITH THEvalued in excess of $50,000 which were shipped to its Moscow, Ohio, construction site directly from points UNITED ASSOCIATION OF JOURNEY- outside the State of Ohio. Accordingly, I find and con- MEN AND APPRENTICES OF THE elude, as the Company admits, that it is and has been an PLUMBING AND PIPE FITTING INDUS- employer engaged in commerce and in operations affect- TRY OF THE UNITED STATES AND ing commerce within the meaning of Section 2(2), (6), CANADA, AFL-CIO and (7) of the Act. DECISION B. The Union STATEMENT OF THE CASE I also find and conclude, as the Union admits, that it is and has been at all times material herein a labor organi- BENJAMIN SCHLESINGER, Administrative Law Judge: zation within the meaning of Section 2(5) of the Act. This proceeding was heard by me in Cincinnati, Ohio, on Both it and the Company, as a member of the National September 8-10, 1980. Based on two unfair labor prac- Constructors Association, are bound by the provisions of tice charges filed by Charles E. Clendenin on January a collective-bargaining agreement covering the terms and 28, 1980, two complaints issued, one on March 18, 1980, conditions of the employment of the Company's employ- against Henry J. Kaiser Company, herein the Company, ees. and the other on March 20, 1980, against Journeymen Pipe Fitters Local No. 392, affiliated with the United As- II. THE DISCHARGE OF CLENDENIN sociation of Journeymen and Apprentices of the Plumb- ing and Pipe Fitting Industry of the United States and A. Preliminary Facts Canada, AFL-CIO, herein the Union, which complaints Clendenin was terminated upon recommendation of his were consolidated by order of the Regional Director for foreman, Tom Watson, on January 28, 1980, for being Region 9 on March 20, 1980. out of his work area and, the Company contends, for The consolidated complaints allege that the Company nonproductivity. That morning, Clendenin reported at violated Section 8(a)(3) and (1) of the Act by terminating the fifth floor of the reactor building for the regular 7:30 Clendenin on January 28, 1980, and that the Union vio- Monday morning safety meeting, a gathering of employ- lated Section 8(b)(1)(A) of the Act by declining to proc- ees where a safety memorandum was distributed for ess Clendenin's grievance complaining of his termination. reading and discussion by the employees. What tran- In addition, the complaint against the Company alleges spired between 7:30 a.m. and an hour or so later, when that it assigned overtime to members of the Union on a Clendenin was discharged, is subject to dispute because preferential basis and that, when the attorneys for the the three principals, Watson, Clendenin, and his working Company and the Union were preparing for the instant partner, Alfred A. Thompson (Double A),2 testified to proceeding, they interviewed prospective employee wit- three somewhat differing series of events. nesses without giving the notice required by Johnnie's What is not at issue is that after the safety meeting, Poultry Co. and John Bishop Poultry Co., 146 NLRB 770 which lasted approximately 15 minutes, employees were (1964), enforcement denied 344 F.2d 617 (8th Cir. 1965). required to go to work; that Thompson, but not Clen- Both the Company and the Union denied that they vio- denin, began to work after the meeting; that, at or about lated the Act in any respect. 8:10 a.m., Watson found Clendenin not at his worksite Upon due consideration of the entire record herein, in- and directed him to go to work with Thompson; that cluding the demeanor of the witnesses and the briefs of Clendenin refused, saying that he had to use the toilet the General Counsel, the Company, and the Union, I facilities; that Watson once again directed Clendenin to hereby render the following: report to work; and that Clendenin again refused and left the worksite to go to a facility with flush toilets. As FINDINGS OF FACT Clendenin was returning, Watson called to him to report to the Company's trailer-office, where Clendenin was I. JURISDICTION terminated by General Foreman Oscar Willingham. A. The Company The General Counsel's attack upon Clendenin's dis- charge is two-pronged. First, the General Counsel claims The Company, a Nevada corporation, is engaged in the discharge was not for just cause because no employ- the construction industry as a general and a design con- ee had ever before been discharged for going to the tractor and has an office and place of business in bathroom. Second, the General Counsel claims that, even Moscow, Ohio, where it is a contractor at the Wm. H. if there was merit to the discharge of Clendenin, the just Zimmer Nuclear Power Station construction site. cause was merely a pretext for Clendenin's protected and The power plant is being built for the Cincinnati Gas & Electric I Normally, a pipefitter (Clendenin) will work with a welder (Thomp- Company, herein the C G & E. son). 4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD concerted activities of openly criticizing what he thought and only upon notifying his work partner of his where- was the Company's illegitimate practice of assigning abouts. On the other hand, if Watson's testimony was ac- overtime work to members of the Union, rather than to curate, Clendenin was being wholly and inexcusably der- "travelers," members of other locals of the same Interna- elict by failing to perform any services. tional union (Clendenin is a member of Local 789, locat- Watson and Clendenin agree that, when Watson ap- ed in Tulsa, Oklahoma). peared at the fourth floor, Clendenin (who implied that he was alone) asked whether Watson was going to con- B. Just Cause tinue to work with Thompson as he had the prior Satur- Clendenin testified that, when the safety meeting day. There may have been mention of whether Watson ended, he ascertained from Thompson that he would be was wearing his foremen's hat or employee's hat. Clen- working at the same site that he worked at the previous denin also testified that Watson stated that, because he Friday.3 He had also ascertained that, on the Saturday was a union member, he could do whatever he wanted. before, when he did not work, Watson had "changed Watson denied saying this and I credit his denial. Both hats" from a foreman to an employee and worked with principals agree that Watson's answer was clear. Watson Thompson, a job which Clendenin claimed as his own. climbed up the scaffold to get to the pipe chase, saw In any event, Clendenin was notified by Thompson that Thompson working there alone, and directed Clendenin he was going to obtain some tools from the toolshed, lo- to go to work. Clendenin announced, according to him, cated outside the reactor building, and would meet Clen- that he was going to the bathroom; according to Watson, denin back at the worksite-a pipe chase located above that he was going to "take a piss," the difference being the fourth floor of the reactor building reached by climb- that the former entailed a quarter-mile walk and the ing a 30 foot scaffold from the fourth floor or descend- latter only a short distance away on the fourth floor. ing onto the scaffold from a rear stairway on the fifth Watson again directed Clendenin to start working, and floor. Clendenin walked away, proceeding in a direction oppo- Clendenin then went to the toolbox, pulled out some site to the closest urinal, where Watson supposed that grinders, and went to the worksite. There, he checked Clendenin was going. In fact, Clendenin proceeded to the equipment which had been left and found that the flush toilets. Thompson had not yet arrived. Knowing that he could That ends the discussion of Clendenin's acts that morn- not get anything done by himself and needing to go to ing, at least up to the time of his discharge. Watson's the bathroom, Clendenin descended from the scaffold to story, however, continues. After seeing Thompson work- the fourth floor landing, returned to the fifth floor to get ing alone in the pipe chase and doing work which should his coat, and came back to the fourth floor landing, have been done by two men, Watson, concerned about where he waited to tell Thompson that he was going to Thompson's safety, instructed him to stop working. the bathroom. Watson then left the pipe chase, went to attend to other As he waited, along came Watson, whose view of duties, and (still thinking that Clendenin had gone to the Clendenin's activities up to that time was entirely differ- urinal) returned to the chase some 5 minutes later to see ent. According to Watson, Clendenin paid little attention whether Clendenin had returned. Again seeing Thomp- to the safety meeting, conversing instead with other em- son alone, Watson again told him to stop working and ployees. When the meeting ended, and all of Watson's that if another supervisor wandered by to inform the crew had dispersed, Clendenin continued his discussions, other supervisor that he was not working on Watson's eventually sauntering over to Watson's desk to pick up directions. Watson also determined that he had had and read the safety memorandum which the other em- enough of Clendenin and went to the Company's trailer- ployees had read 15 minutes before. Watson watched office to recommend to Willingham that Clendenin be Clendenin until about 8 a.m., never mentioning to him to fired. get to work. Then, Watson left the fifth floor, attended Finding the facts herein might have been made easy if to other business, and returned to the fifth floor to check only Thompson had corroborated the testimony of either whether Clendenin had gone to work. Not seeing him Clendenin or Watson. Unfortunately, that was not the there, Watson proceeded to the fourth floor, where he saw Clendenin talking with two other employees. It was see or hear little of what was going on outsid e chase then about 8:05 a~m. see or hear little of what was going on outside the chase, then reviewingabout 8:05 a.m. testimoniesofWatsonandCeon the scaffold, or below on the fourth floor landing, but In reviewing the testimonies of Watson and Clendenin, what he heard amounted to a factual recitation partially what he heard amounted to a factual recitation partially the conflict is clear; at least up to 8:05 a.m., Clendenin at odds with both principal disputants. First, affirming at odds with both principal disputants. First, affirming says that he was performing his normal duties. If he had Watson's testimony that he visited the pipe chase twice to use the toilet facilities, I am satisfied that the Compa- Thompson testifed that Watson, in his first visit, asked ny's practices allowed an employee to go to the bath- room (either a portable urinal, located on various floors Watson's testimony that he had seen Clendenin engaging of the reactor building, or a heated bathroom with flush ony th he nd toilets, located about a quarter mile from the reactor in conversation with two other employees an d had him- without a supervisor's permission, self talked with Clendenin on his way up the scaffold. 'building), at any time, withoutasuThus, there would have been no reason for Watson to ask Thompson of Clendenin's whereabouts. Second, I Thompson testified that he spoke with Clendenin about this before the meeting started. However, Clendenin knew that Thompson had been Thompson stated that Watson never told him to stop asked to work the prior Friday. working, contradicting Watson's professed concern for HENRY J. KAISER COMPANY 5 Thompson's safety. Third, Thompson testified that, be- Watson was always "jiving" him about his work. Final- tween the first and second visit by Watson, he heard ly, I note that on the day of his discharge, Clendenin, Clendenin yell, "I'll be back, Double A." This contra- who is also an attorney, spoke not one word in his own dicted Clendenin, who said that he yelled to Thompson defense in reply to at least the one charge he admitted before leaving to get his coat on the fifth floor and knowing about-being out of his work area. before Watson had arrived. 4 Fourth, Thompson told In sum, there is sufficient evidence on its face to sup- Clendenin at the safety meeting that all the necessary port a conclusion that the Company had at least some in- tools were at the worksite, other than those he was dependent basis for disciplining Clendenin. Thompson going to get from the toolshed. Clendenin's testimony was at his job for 15-20 minutes before Watson's first conflicts with Thompson's: he stated that, after the meet- visit; Clendenin was not, despite the ample time he had ing, he went to get the necessary tools from the tool- to join Thompson in the pipe chase. Instead, he searched box-but only Thompson had a key-and went to check for tools that he did not need, relied upon an excuse of what tools were at the site, although Thompson had al- going to the bathroom (after being at the job for about ready told him that all the tools were there. Further, if 40 minutes) to disobey a direction of his supervisor to Clendenin's testimony were truthful, that he arrived at commence working, and would not have been able to the worksite 5 minutes after the meeting, he surely perform his first minute of work until more than an hour would have met Thompson, who arrived there at or after the workday began. about the same time and lifted the tools in buckets from the fourth floor to the chase and commenced working. C. Pretext Yet Clendenin testified that he saw the buckets (which should have already been lifted) and still insisted that I am persuaded that Clendenin complained, at least Thompson was not present. I find that most improbable. 5 earlier in his employment, about the fact that he was not Thompson was not otherwise favorable to Clendenin, given adequate overtime, and I conclude that he was en- depicting him as often engaged in talk, particularly with gaged in protected activity. Clendenin's involvement one other employee, at locations other than the worksite, with the issue of overtime commenced shortly after July thus delaying Thompson's completion of jobs. I found 5, 1979, when he was reassigned to the "flush crew," a Thompson to be sincere and, of the three principal wit- crew of employees under the supervision of Foreman nesses, the only one who had no reason to favor either Adam Kleinholz engaged in testing pipes and joints. party with his testimony. On the other hand, I am per- Clendenin testified that he discovered that overtime suaded that some of his perceptions were simply inaccu- work on the flush crew, which was composed primarily rate and, based on the probabilities, specifically discredit of members of the Union, was regularly assigned to his testimony that Watson, at the time of his first visit, union members (including those who did not work on asked where Clendenin was, finding it more probable the flush crews), rather than to travelers. Kleinholz, a that Watson asked him whether Clendenin had worked member of the Union, maintained at his desk an overtime up to that time, and discredit his testimony that Clen- list which (according to Clendenin) contained the names denin yelled that he would be back, finding that Clen- only of union members who came to Kleinholz during denin's shout probably occurred, if it did at all, at the the day to ask for overtime assignments. When Clen- time of Watson's first visit, as Clendenin left for the denin, a traveler, questioned Kleinholz on several occa- toilet. sions as to when he was going to have his own name I am equally persuaded that Thompson would have no placed on the overtime list, Kleinholz replied that Clen- reason to misrepresent Clendenin's work habits. That denin was only in the "triple A league" and that when Clendenin was loquacious was evident at the hearing, he got into the "major league," his name would be put and even he admitted that he had been cautioned two or on the overtime list.6 I agree with the General Counsel three times before his discharge about not doing his that the clear import of what Kleinholz was stating- work quickly enough, which I attribute to his lack of at- Kleinholz did not testify-was that Clendenin or any tention to his work. Willingham had advised him previ- other traveler would have to be a member of the Union ously that he ought to take more interest in his job; and before receiving preferential overtime assignments. The record of overtime given to the flush crew does I reject the General Counsel's contention that Thompson's testimony not fully sustain the General Counsel's position. Admit- corroborates Clendenin's assertion that he was leaving for the bathroom. tedly, although the composite exhibit purports to cover Clendenin testified that he yelled to Thompson only, "Hey, Double A" the period from July 16 through August 21, 1979, the to check whether Thompson was already in the pipe chase. Further, in day after Clendenin had been reassigned to the hanger light of Clendenin's insistence that he was waiting for Thompson to arrive, it is improbable that he would indicate to someone who was not crew, no time records were produced for 5 days in July there that he was leaving. Finally, the substance of Clendenin's message was not necessarily that he was going to the bathroom. It could have ' The Company objected to this evidence in its brief on the basis that meant solely that he was leaving the location to talk with the employees these conversations are not within the 6-month time limitation prescribed whom Watson saw Clendenin with a few minutes later. in Sec. 10(b) of the Act. It is well established that, although no findings I I note that it was possible, as Clendenin recognized, to approach the of unfair labor practices may be based upon acts occurring more than 6 worksite from the fifth floor and along the scaffold, bypassing the fourth months prior to filing of an unfair labor practice charge, such facts may floor. In light of that fact, it is peculiar that Clendenin chose to wait for be used as background to establish motivation as well as to explain the Thompson on the fourth floor, where he might miss him. Moreover, be- alleged violations occurring within the 6-month period. Local Lodge No. cause of Thompson's testimony of his own whereabouts and his prepara- 1424, International Association of Machinists AFL-CIO, and International tion for work, I conclude that Clendenin made little, if any, effort to go Association of Machinists. AFL-CIO [Bryan Manufacturing Co.] v. to work. N.L.R.B., 362 U.S. 411, 416, fn. 6 (1960). 6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and a full 2 weeks in August.7 The remaining records signment of overtime, but the problems that they en- show that Clendenin worked overtime on 3 of 11 days countered and raised were different from the alleged that overtime was worked, demonstrating that discrimi- complete denial of overtime on the flush crews. Rather, nation against him was not complete. The exhibit, how- the employees complained that they did not receive an ever, shows that many union members worked overtime equitable share of overtime when compared with other on the flush crew, even though they did not work on crews, such as the flush and pipe crews, which consisted that crew during regular hours. Union members worked primarily of union members, and that often, when they overtime on 57 occasions, while travelers worked only were asked to work overtime, they would be asked so 14 times, a far greater ratio than the number of times late in the day that they found it difficult or impossible regular hours were worked by union members and trav- to accept. There is no question that these two grievances elers (48 versus 31, respectively). A number of union were raised (but not by Clendenin) at one and possibly members whom Clendenin heard making requests of two meetings conducted or attended by Willingham in Kleinholz for overtime received overtime assignments. late August or early September or November 1979.8 It is true that all or many of the regular crew members On his last day of employment, Clendenin asked may have declined to accept overtime, thus explaining Watson whether he had worked overtime with Thomp- why other employees worked. Some union crew mem- son during the weekend and whether he was going to bers (for example, Andrews, Young, and Begley) worked continue as an employee that Monday. The General even less overtime than did Clendenin. Two travelers, Counsel contends that Clendenin's taunting-described Gering and East, who were not members of the regular by Watson as "smart aleck" and "arrogant"-was the crew, worked more overtime than all but three union direct motivation for Clendenin's discharge. Thus, the members, which included Foreman Kleinholz. However, General Counsel contends that had not Clendenin griped it remains undenied that Clendenin frequently requested about Watson's having worked overtime in Clendenin's overtime from Kleinholz and was not given it, whereas place Watson would have permitted Clendenin to use the others were. There is clearly a prima facie case of dis- toilet, would not have ordered him to commence work- crimination against him because of his status as a travel- ing, and would not have recommended his discharge. er; and the Company neither rebutted it nor explained it Rather, Watson merely seized upon Clendenin's failure in any way. I conclude not only that the General Coun- to work to conceal his real motive; i.e., to get rid of a sel's allegation was proved, Motor City Electric Company, "troublemaker." 204 NLRB 460 (1973), enfd. as modified 512 F.2d 719 The theory that the reason for the discharge was (5th Cir. 1975), but also that a necessary predicate for merely a pretext is not wholly without support in the Clendenin's later actions was sufficiently established. record. In addition to the "troublemaker" remarks, As stated above, on August 20, 1979, Clendenin was which Watson denied, Willingham conceded that at one transferred to the hanger crew, which, unlike the flush time he counseled Clendenin about worrying so much crew, was composed almost entirely of travelers. His about overtime that he would not work during the day. reputation as one who complained of lack of overtime Further, there is some record support for the proposition apparently preceded him. Employee Charles Sears testi- that Watson should not be believed. I have noted a fled that on the same day he heard both Watson and number of instances where I have not credited Watson, Foreman James Robinson protest to Willingham that including his failure to request Thompson, whom he Clendenin should not be transferred to their own crews found alone on January 28, to stop working as a result of because he was a "troublemaker." Despite the denials of a possible safety hazard. That appeared to be a major this conversation by both Willingham and Watson, I reason for Watson's actions that morning and, by dis- credit Sears, finding that he was genuinely sincere and crediting this testimony, his motivation is somewhat sus- unbiased and that, in this instance, his recall was precise pect. and his testimony was probable. Although the General Further, I am not entirely satisfied with the events of Counsel does not allege any separate violation, the cir- January 25, 1980, and the Company's explanation of why cumstances of the transfer to the hanger crew were sus- Clendenin was not offered overtime while Watson pect, coming only a few days after Clendenin had not worked on Saturday in the position occupied by Clen- been given an overtime assignment that C G & E had denin the prior day. The testimony of Watson, in partic- wanted him and Marvin Ellison, his partner and another ular, was conflicting and inconsistent, and appeared to traveler, to work. Because of the Company's assignment contradict that of Willingham. Watson shifted from a of that work to union members, Clendenin complained, statement that he did not ask Clendenin to work (because and his complaints resulted in two union members being taken off that job and Clendenin and his partner being ' The General Counsel contends that, at these two meetings, Wil- given the overtime work on August 17, 1979. As a lingham specifically stated that union members would receive overtime result, Clendenin did "make trouble," and Watson's and before travelers. I discredit such testimony, finding instead that Wil- lingham merely referred to priority in assignments being given to fore- Robinson's comments were likely the result. men because a foreman was required to be on the job at all times. I note Clendenin worked on the hanger crew from August that there were not only union members who were foremen on the 20, 1979, until he was terminated. Apparently, the em- hanger crew, but also travelers. Moreover, the documentary evidence ployees on that crew also had their difficulty with the as- does not prove that preference was given to union members on the hanger crew. Rather, for the period from August 22, 1978, to November 16, 1979, only one union member (not a foreman) worked overtime The General Counsel does not contend that an adverse inference twice. Thereafter, overtime was worked on 7 days by a substantial major- should be drawn from the absence of company records. ity of travelers. HENRY J. KAISER COMPANY 7 he was not at his worksite), to a statement that he did sense, since he was successful, the Company properly in- ask Clendenin, to a statement that he asked him even dicated that he was discharged for nonproductivity.' 0 though he would not have been eligible for overtime be- I have assumed, arguendo, that Clendenin's activities cause he was absent the prior Wednesday and Thursday. were both protected and concerted. I conclude that Willingham assumed that all employees had been asked, there is a sufficient basis that his conduct was concerted. but wanted Watson to work, although he could not There were a number of employees who were disturbed recall why, except that he believed that there might have about the distribution of overtime to the hanger crew been insufficient time to notify employees. and who believed that union members were taking ad- On the other hand, Clendenin was not wholly believ- vantage of their union membership to the detriment of able either. His dislike of the Company caused him to the travelers. Although the General Counsel conceded level a series of broadsides, contending that his lack of that there was nothing inherently illegal about a foreman productivity could not have been a reason for his dis- assumfng a journeyman's functions, as Watson did on charge because the Company was not concerned with it. January 26, it was Clendenin's suspicion that the taking Employees were encouraged, when there was no work away of his overtime was part of the same scheme of to do, to hide themselves. Relative to seniority, Clen- denial of overtime to travelers because they were not denin insisted that there was plantwide seniority for union members. Actually, in the circumstances, that union members, but only crew seniority for travelers, de- spite the fact that the record does not really support this might not be so; rather, Watsongs working overtime contention. When faced with the fact that, even on the could be equally due to his being a foreman. In any flush crew, he was given overtime, Clendenin explained event, Clendenn's complaint was merely an extension of that it was due to his reputation as an attorney that cer- the same kind of complaint that other travelers ha tain engineers recommended him. But the reputation was made; and I find that, because his complaint may have meaningless in light of Clendenin's explanation that he tended to redound to the benefit of all the travelers, it was given only the "dirty" and "nasty" tasks that union constituted protected concerted activity. ARO, Inc., 227 members refused to do. When pressed for details, Clen- NLRB 243 (1976), enforcement denied 596 F.2d 713 (6th denin refused to name the engineers for fear that the Cir. 1979)." Union would have them terminated. I also find that Clendenin's implied adverse criticism Based upon a review of the entire record, I find that of Watson was protected, since it constituted a complaint the General Counsel has failed to prove by a preponder- concerning working conditions, that is, Watson's assump- ance of the evidence that Clendenin's discharge was mo- tion of an employee's overtime. But I find little in the tivated at all by his complaints. Indeed, Clendenin manner in which Clendenin expressed his complaint to tended to exaggerate the extent of his complaints that he be protected. The initial questions he put to Watson was discriminated against because he was a traveler. The were clearly within appropriate bounds. But, upon re- record demonstrates that only one minimal complaint ceiving Watson's answer that he had resumed his fore- was made by him from the time that he was transferred man's hat, and was not working as a journeyman, Clen- to the hanger crew until the Monday on which he was denin had no right to protest Saturday's actions by refus- discharged.9 More importantly, there is little to show ing to work on Monday. By so holding, I reject Clen- that Watson's recommendation that Clendenin be dis- denin's claim that, at that moment, he had to use the charged was made because Clendenin had complained bathroom and could not go to work. Rather, Clendenin about Watson's having assumed his overtime. Rather, admitted that despite his contention that he had diarrhea, Watson went to Clendenin's worksite not because of a condition he suffered from the prior Wednesday and Clendenin's complaint but because he observed that Thursday, his need to go to the bathroom was not that Clendenin was not working. His directive to Clendenin "imminent." Indeed, none of his actions indicated any to commence working was merely a followup to the crisis; on finding that Thompson was not at the worksite reason he went there in the first place-to ensure that at Clendenin's first visit, Clendenin, despite having to Clendenin was performing work for the wages which the attend to his bodily needs, returned to the fifth floor to Company was expected to pay. get his jacket and then to the fourth floor to await There is no dispute that by at least 8:30 a.m., accord- Thompson's arrival. Considering that he had ample time ing to Clendenin, he had not performed any work. Ac- all morning to take care of himself, that he was well cording to other witnesses, the time of Clendenin's dis- charge was some 10 minutes or more later. In any event, "o The General Counsel also argues other facts testified to by Clen- the General Counsel contends that the Company origi- denin made his termination suspect-that Willingham, when he stated nally discharged Clendenin solely for being out of his that he was going to terminate Clendenin, looked to Union Steward Wait work area, arguing that no employee had ever before Hamm, Jr., who nodded his approval; that willingham filled in on the termination slip that Clendenin was discharged only for being out of his been dismissed for using the restroorm facilities. Although work area, and not for nonproductivity; and that there was no discussion I am persuaded that employees were free to use the facil- by Watson of the reasons for the recommended discharge, other than his ities, as long as they notified their partners, and that statement to Willingham that Clendenin was out of his work area. I Clendenin did not breach this rule per se, Clendenin credit none of Clendenin's testimony in these respects, noting that Clen- the rule to avoid work and, in that denin's recollection was at this time imprecise, and that Clendenin ad- clearly sought to use the rule to avoid work and, In that mitted that events were moving too fast for him to recall. " Clendenin earlier attempted to file a grievance with the union ste- 'Clendenin testified that after the meeting in late August or early Sep- ward about his failure to receive equal overtime opportunities on the tember he told Willingham that something ought to be done about the flush crew. The steward told him that if he did not like it he should "hit overtime situation. the road." 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enough to return to work the prior Friday, and the oth- denin on February 4, 1980, requesting his position before erwise untrustworthiness of his testimony, I conclude coming to a final conclusion on the validity of his griev- that pique, not physical illness, caused Clendenin's ac- ance. Clendenin then conferred with the Union's attor- tions. His refusal to work and defiance of Watson's ney, Harold G. Korbee, who agreed with Clendenin that instructions to go to work was unprotected. As a result, he would not personally meet with Sullivan but would I conclude that the Company's termination of Clendenin submit his position in writing. As a result, Clendenin for- was not for reasons violative of Section 8(a)(3) and (1) of warded a full statement of the facts by letter dated Feb- the Act. ruary 7, 1980. By letter dated February 13, 1980, David D. The Union's Failure To Process the Grievance Jeffers, a union business agent, acknowledged receipt of Clendenin's letter and notified him that Sullivan was When Clendenin had been told that his employment then out of town and would not be expected back until was terminated, Clendenin went to Union Steward February 18, 1980, at which time he would have an op- Hamm for a grievance form because he wanted to file a portunity to review Clendenin's letter. On February 27, grievance. Hamm asked Clendenin why he needed a 1980, Clendenin, not having heard from Sullivan and grievance form, stating, "if you don't like it, hit the noting that in Sullivan's February 4 letter directed to the road.""2 Clendenin filed the unfair labor practice charge Company the Union had requested that the Company within a few hours of his conversation with Hamm. The General Counsel claims that Hamm's statement constitut- ed a refusal to process a grievance, in violation of Sec- ment's grievance procedure until February 25, 1980, tion 8(b)(1)(A) of the Act. I agree. Clearly, Hamm, as asked Sullivan what had happened to his grievance the union steward and admittedly a representative of the Clendenin also stated, as he had previously indicated to Union, summarily rejected a request for representation, Korbee on February 6, 1980, that if there were any fur- without investigation, peremptorily and perfunctorily. ther inquiries regarding his discharge, someone should That Clendenin asked for a grievance form, rather than call him so that his grievance could be fairly presented. stated that he desired to file a grievance, if of no On February 29, 1980, Sullivan at last replied, stating, moment; Hamm, as hereinafter shown, knew exactly in part, as follows: what Clendenin was asking of him. The Union contends, however, that when its business In connection with the investigation of your manager, Robert Sullivan, was advised of Clendenin's grievance, and our response to the charges you discharge, he immediately investigated the discharge and, have filed with the Labor Board, we would appre- only after such investigation, determined that Clendenin's ciate receiving from you as soon as possible a state- discharge was proper and that no further grievance pro- ment of any facts upon which you base your claim cedures were warranted. Is The proof demonstrates, how- that the Union has refused to "process a grievance ever, that Sullivan was much more concerned with the filed by Charles Clendenin because he had made unfair labor practice charge that Clendenin had filed complaints concerning mistreatment of Union mem- than with the substance of Clendenin's grievance. bers on traveler's status and/or because he is a Sullivan was offended that any employee should im- member on traveler's status." mediately file an unfair labor practice charge against the None of the officers of the Local Union have any Union rather than take up the matter with Sullivan per- knowledge or record of any such "complaints" that sonally. Indeed, the Union's brief takes the position that it was required for Clendenin to consult with Sullivan before filing the charge and that the charge is defective As you must know, the Union is most interested in that no refusal to process Clendenin's grievance was in effectively representing employees who work even ripe at the time of its filing. I find no factual or under its bargaining agreement. However, the legal support for its position. The latter contention, in Union feels somewhat handicapped in this matter, particular, is belied by Sullivan's testimony that Hamm since you appear to allege facts about which I have immediately advised him on January 28 that Clendenin had no notice, record or information upon which to wanted to file a grievance. make any judgment. As a result of his receipt of Clendenin's unfair labor practice charge, Sullivan went to the Company's jobsite On March 6, 1980, Clendenin acknowledged receipt of on Friday, February 1, and spoke with Watson and Wil- the above-quoted letter and again asked Sullivan whether lingham about Clendenin's discharge. Seemingly con- a grievance had been filed on his behalf. He ended his vinced by their representations,' 4 Sullivan wrote to Clen- letter with the following: ' Hamm did not testify. Please tell me what the union steward and your- '" The Union, in its brief, contends for the very first time that this alle- self decided to do regarding my grievance so I will gation should be dismissed because the collective-bargaining agreement know when I will be getting back to work at provides as follows: "Layoffs and terminations shall be at the sole discre- tion of the Employer." Had this provision been relied upon by Hamm or Kaiser, because there is no way a man could be dis- Sullivan, the Union's argument might have been difficult to overcome, charged for going to the restroom and have it stick Since the Union did not rely on it, but was motivated by invidious rea- even if he is a Traveler. Please call me and we can sons, I find a violation of the Act. " Sullivan's letter to Clendenin, dated February 4, 1980, stated: "The set a time to prepare my case for the grievance information that they gave me seems to justify your discharge." hearing against Kaiser. HENRY J. KAISER COMPANY 9 Sullivan's final letter to Clendenin was dated March the Union. I again note that Kleinholz did not testify. 28, 1980, after the unfair labor practice complaint had Because Clendenin's testimony in this respect is probable been issued against the Union. Sullivan stated that it had and not inherently inconceivable, I credit his testimony been his experience as a business manager that employees relating to Kleinholz' maintenance of an overtime list who require or request the assistance of the Union in im- containing only the names of Local 392 members. From plementing the grievance procedure provided for in the that fact, Clendenin's testimony about various individual applicable bargaining agreement generally come to the union members asking for overtime work, and a docu- union hall and inform him or one of the business agents ment which shows that those individuals were given of their problem. Only then does the Union begin its in- overtime work, I conclude that Clendenin was discrimi- vestigation of the dispute and implement the applicable nated against during the course of his working on the grievance procedure. Sullivan thought that Clendenin's flush crew in violation of Section 8(a)(3) and (1) of the situation was "probably the first one that I ever recall in which an employee filed charges with the NLRB before even coming to the Hall to request our assistance." Sulli- When Clendenin was transferred to the hanger crew, van stated that on February 29 he wrote to Clendenin the General Counsel admits that distribution of overtime asking him for additional information which Clendenin to union members "was less significant." However, the did not supply. Based upon the investigation and infor- General Counsel contends that Watson, on the Saturday mation that the Union had, it was the Union's "opinion before Clendenin was discharged, bumped into a jour- that [Clendenin's] discharge was justified and that there neyman's position, with another union member (a fore- is insufficient evidence to warrant carrying the grievance man of another hanger crew) being appointed as fore- to the second step which would involve bringing in the man, all to the detriment of Clendenin. On the other United Association International Representative." hand, it must be noted that overtime on the hanger crew The foregoing reveals that the Union had little interest was worked primarily by travelers. Indeed, Clendenin's in fairly representating Clendenin. Sullivan was upset at name appears on the overtime list nine times,"S and the Clendenin's having filed an unfair labor practice charge General Counsel has failed to point out how Clendenin, against the Union and his attitude was thereafter tem- after August 21, 1979, was treated any differently from pered by the fact that such a charge had been filed. This other individuals who were members of the Union or is demonstrated by two facts: First, while Clendenin and were travelers employed on the hanger crew. Korbee had agreed that Clendenin would explain his po- I am satisfied with the Company's explanation that sition solely in writing, Sullivan ultimately held it against denial of overtime to Clendenin and other travelers was Clendenin for refusing to see him personally; second, in- the not due to their lack of membership in the Union. C G( & stead of seeking additional information which may have been relevant to Clendenin's grievance, Sullivan tried to E assigned overtime. That it did so late i the day was obtain Clendenin's position on his unfair labor practice not the fault of the Company, which made assignments charge before processing the grievance, and Sullivan's only when C G & E authorized it to do so. There is no letter of March 28, 1980, demonstrated that he deemed credible proof in this record to demonstrate that travel- the failure of Clendenin to supply the irrelevant informa- ers were requested later in the day to work overtime in tion was determinative. order to discriminate against them because they were not The result is that the Union gave Clendenin's case members of the Union. Nor do I find that the method of merely a minimal effort, perfunctory at best even if Sulli- distributing overtime to employees was inherently de- van is to be believed, and no effort at all if Sullivan is structive of employees' Section 7 rights. The method, in- not to be credited. Although I have found that the Com- stead, sought to protect the principle of equitable distri- pany did not violate Section 8(a)(3) and (1) of the Act by bution of overtime within the crews and sought to give discharging Clendenin, I do not make that finding for the overtime to members of the crews who were working purpose of my discussion of the Union's liability herein. during regular hours on the projects which required Rather, merely because the Company took disciplinary overtime. That was not violative of the Act. action which does not violate the Act does not mean Finally, implicit in the complaints of the emoloyees, if that an arbitrator might not have deemed the discipline not in the consolidated complaint herein and supporting unwarranted or too severe. An arbitrator is not bound by brief, was that by the nature of the work being done the same factual findings that I have made; he may do other crews (populated by union members) were receiv- industrial justice and may effectuate a compromise of a ing overtime and the hanger crew was not. The record grievance, whereas the Board may not. In this case, the Union did little to help its unit's employee, solely be- travelers may have been correct even to the extent tha cause Clendenin filed an unfair labor practice charge to against the Union. I find that the Union violated Section they were assigned to the hanger crew solely to deprve 8(a)(1) and (b)(l)(A) of the Act. Penn Industries. Inc., 233 them of beneficial overtime, the proof is lacking. I dis- NLRB 928, 941-942 (1977). miss this allegation of the complaint pertaining to the hanger crew. E. The Assignment of Overtime One of the General Counsel's complaints was the sys- tematic denial of overtime assignments to Clendenin, Is In addition, Clendenin refused offers of overtime on several occa- whereas assignments were routinely given to members of sions and was absent on days that overtime was worked. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. The Interview of Prospective Employee Witnesses lead to labor disputes burdening and obstructing com- merce and the free flow thereof. On Friday, September 5, 1980, employees Earl Craw- ford and Charles Sears were summoned to the personnel THE REMEDY office of the Company where they were interviewed by both Korbee and Bruce E. Allen, counsel of record for Having found that the Company and the Union have the Union and Company, respectively, in the presence of violated the Act, I will recommend that they cease and company and union officials. Both employees testified desist therefrom and take certain affirmative action de- that they were not told that their attendance was volun- signed to effectuate the policies of the Act. tary nor that there would be no reprisals taken against Because I have found that the Company has discrimi- them if they declined to participate or cooperate with nated against Clendenin in the assignment of overtime the interviewers. Both testified that whatever assurances because he was a traveler, I shall recommend that the which were given to them were stated only after they Company be required to make him whole for any finan- both had declined to comply with Korbee's request for cial loss he may have sustained during the period from their versions of the facts concerning this proceeding and July 28, 1979, to August 19, 1979, that being the only the testimony they were to give at the instant hearing. It period for which discrimination has been found within was then that Allen stated to them that it was their pre- the applicable 10(b) period. Any backpay due hereunder rogative not to answer and nothing would happen to shall be computed on the basis of the number of over- them. time opportunities lost during the above period, Newport I credit the testimony of the two employees, noting News Printing Pressmen's and Assistants' Union, Local No. that Billy Joe McGuffy, the Company's senior account- that Billy Joe McGuffy, the Company's senior account- 288, International Printing Pressmen and Assistants' Union ant, basically corroborated the employees' testimony, changing his recitation only after being led by the Com- of North America, AFL-CIO (The Daily Press Inc), 188 pany's counsel. In any event, Korbee conceded that at NLRB 475 (1971), with interest thereon to be computed no time did he tell the employees prior to the interroga- in the manner prescribed in Florida Steel Corporation, 231 tion that their participation in the interview was volun- NLRB 651 (1977).'1 tary and that they did not have to be present before the The finding that the Union violated its duty of fair interrogation began. ) 6 I, therefore, find a violation by the representation would normally require that the Union Company of Section 8(a)(1) and by the Union of Section proceed to arbitrate Clendenin's discharge or, if the 8(b)(1)(A) of the Act. In doing so, I reject the Union's Company refused to arbitrate, to make Clendenin whole claim that a violation of Johnnie's Poultry Co., supra, may for his loss of earnings. It is clear, however, that the time be found only against an employer. St. Louis Harbor limits provided by the collective-bargining agreement's Service Company, 150 NLRB 636 (1964). This conclusion grievance machinery have long since expired. If the is not to be deemed merely a formalistic application of Union were ordered to proceed to arbitrate the dispute, the Johnnie's Poultry rule. The coercive effect of the in- the Company would most likely invoke the time limits terrogation, without the necessary precautions required and the provision which gives it the right to terminate by law, was perfectly evident from the record. Even Re- employees for any reason. In these circumstances, be- spondents admit that the employees were scared. That cause the agreement is clear, it would be inappropriate to they were later advised that their silence would not be grant the usual remedy of a make-whole order. That held against them did not relieve the coerciveness of the remedy would grant to Clendenin backpay which he had initial part of the interview. A violation must be found no right to receive, for he cannot demonstrate in any and all of the Company's employees must be so advised event that his discharge was contrary to the agreement. by an appropriate notice. Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 570- 571 (1976). Ill. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE On the basis of the foregoing findings of fact, conclu- sions of law, and upon the entire record, and pursuant to The activities of the Company set forth in section II, Section 10(c) of the Act, I hereby issue the following: above, occuring in connection with the operations of the Company herein, described in section I, above, have a ORDER'I close, intimate, and substantial relationship to trade, traf- fic, and commerce among the several States and tend to A. Respondent Henry J. Kaiser Company, Moscow, Ohio, its officers, agents, successors, and assigns, shall: is Crawford and Sears were brought to the interview by Union Ste- 1. Cease and desist from: ward Walter Hurd, who related to them en route words to the effect that (a) Discriminating against employees in overtime as- as long as they told the truth, their jobs would not be affected. This did signments because they are travelers or are not members not constitute adequate warning that the employees' jobs were secure, be- of the Union cause the assurance was linked to the employees' telling the truth. This is not to say that an employer must condone the telling of falsehoods; rather, the statement leaves the judgment to the Company or the Union, " See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). or both, of whether the employee is telling the truth, with unspecified " In the event no exceptions are filed as provided by Sec. 102.46 of discipline a distinct possibility. Further, there is inherent in Hurd's state- the Rules and Regulations of the National Labor Relations Board, the ment the possibility that employees may be coerced into giving misstate- findings, conclusions, and recommended Order herein shall, as provided ments in order to ensure the continuation of their employment-i.e., to in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and tell their employer not what happened, but what the employer desires to become its findings, conclusions, and Order, and all objections thereto hear. shall be deemed waived for all purposes. HENRY J. KAISER COMPANY 11 (b) Coercively interrogating employees in preparation B. Respondent Journeymen Pipe Fitters Local No. for defense of unfair labor practice proceedings without 392, affiliated with the United Association of Journey- first obtaining voluntary participation by said employees men and Apprentices of the Plumbing and Pipe Fitting and without first giving said employees assurances Industry of the United States and Canada, AFL-CIO, its against reprisals if they choose not to participate in said officers, agents, and representatives, shall: interviews. I. Cease and desist from: (c) In any like or related manner interfering with, re- (a) Failing or refusing to fairly represent any employ- straining, or coercing employees in the exercise of their ees represented by the Union in the processing and filing rights which are guaranteed them in Section 7 of the of grievances. Act. (b) Coercively interrogating employees in preparation 2. Take the following affirmative action which is de- for defense of unfair labor practice proceedings without signed to effectuate the policies of the Act: first obtaining the voluntary participation by said em- (a) Make Charles E. Clendenin whole for any loss of ployees and without first giving said employees assur- earnings or benefits suffered because of the unlawful ances against reprisals if they choose not to participate in denial of overtime work to him, to be computed as set said interviews. forth in the section of this Decision entitled "The (c) In any like or related manner interfering with, re- (c) In any like or related manner interfering with, re- Remedy." (b) Preserve and, upon request, make available to the straining, or coercing employees in the exercise of their (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all rights which are guaranteed to them in Section 7 of the payroll records, social security payment records, time- cards, personnel records and reports, and all other re- 2. Take the following affirmative action which is nec- cords (including records of overtime worked) required to essary to effectuate the policies of the Act: determine the amount of backpay due under the terms of (a) Post at its offices and meeting halls, including the this Order. Company's trailer-office where the union steward has a (c) Post at its premises in Moscow, Ohio, copies of the desk, copies of the attached notice marked "Appendix attached notice marked "Appendix A." 19 Copies of said B."2 0 Copies of said notice, on forms provided by the notice, on forms provided by the Regional Director for Regional Director for Region 9, after being duly signed Region 9, after being duly signed by the Company's rep- by the Union's representative, shall be posted by the resentative, shall be posted by the Company immediately Union immediately upon receipt thereof, and be main- upon receipt thereof, and be maintained by it for 60 con- tained by it for 60 consecutive days thereafter, in con- secutive days thereafter, in conspicuous places, including spicuous places, including all places where notices to em- all places where notices to employees are customarily ployees of the Company and members are customarily posted. Reasonable steps shall be taken by the Company posted. Reasonable steps shall be taken by the Union to to ensure that said notices are not altered, defaced, or ensure that said notices are not altered, defaced, or cov- covered by any other material. ered by any other material. (d) Notify the Regional Director for Region 9, in writ- (b) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order, what ing, within 20 days from the date of this Order, what steps the Respondent Company has taken to comply steps the Respondent Union has taken to comply here- herewith. with. IT IS FURTHER ORDERED that the complaints be dis- " In the event that this Order is enforced by a Judgment of a United missed insofar as they allege violations of thc Act other States Court of Appeals, the words in the Notice reading "Posted by than those found herein. Order of the National Labor Relations Boards" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." X See fn. 19, supra