Carpenters Local Union No. 35

CARPENTERS LOCAL UNION NO. 35 Carpenters Local Union No. 35 and Klaus Martin and William J. Prescott. Cases 20-CA-14859 and 20-CA-15029 September 30, 1982 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMM I:RMAN On October 10, 1980, Administrative Law Judge Joan Wieder issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent filed cross-exceptions and a brief in support thereof and in support of the Administrative Law Judge's dismissal of the complaint. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that the discharge of employees Klaus Martin and William Prescott, the Charging Parties herein, by their Em- ployer, Carpenters Local Union No. 25, Respond- ent herein, for having complained to the Depart- ment of Labor about certain financial and election irregularities and, in Martin's case, also for having caused an investigation to be conducted of Re- spondent's financial secretary by a local credit as- sociation, did not violate Section 8(a)(3) 2 and (1) of the Act since, in her view, such activities were not protected by Section 7 of the Act. 3 We disagree. Briefly, the facts herein reveal that Respondent is a labor organization4 engaged in the business of I Respondent has excepted to certain credibility findings made by the Administrative Law Judgc. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950). enfd. 188 F2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for resersing her find- ings. 2 Contrary to the Administrative Law Judge, the complaint does not allege a violation of Sec. 8(a)(3) of the Act. Consequently, we find it un- necessary to determine whether Prescott's or Martin's discharge violated that provision of the Act 3 The Administrative Lass Judge. relying on the Board's recent deci- sion in Wright Line, a Division of Wright Line. Inc.. 251 NLRB 1083 (1980), also nuoted that, even if Martin's activity in complaining to the Department of Labor were found to be protected. as the Cieneral Coun- sel alleges, the latter had nevertheless failed to establish that Martin would not have been discharged in the absence of such protected actixi- ty. Respondent is a duly chartered local union of the United Brother- hood of Carpenters and Joiners of America, AFL-CIO. and is affiliated 264 NLRB No. 108 representing employees of employers located within Marin County, California. Respondent is governed by an executive board which consists of 10 elected officer positions. 5 Its day-to-day oper- ations are handled by the financial secretary and a business representative, both of which are elective, full-time positions. Since 1977, William Wilson has held the position of financial secretary and Clar- ence Murfin has served as Respondent's business representative. Additionally, Respondent has often employed one or two assistant business representa- tives who report directly to the business repre- sentative. The record reveals that, from 1975 until the ex- piration of his term in July 1979, Martin held the position of trustee on Respondent's executive board. Furthermore, from 1975 until his discharge on September 4, 1979, Martin was employed by Respondent as an assistant business representative, initially for 3-month periods, then for 6-month peri- ods, and finally, in 1977, for an "indeterminate" term. Prescott also served on the executive board as conductor from 1977 to July 1, 1979. Additionally, he was hired by Respondent as an assistant business representative for a 6-month period which expired in December 1978. Upon expiration of that period, Prescott was rehired as an assistant business repre- sentative and given the additional duties of organiz- er for a term ending June 30, 1979. 6 In January, Martin expressed to Wilson his con- cern over the competency of the auditing firm tra- ditionally used by Respondent and recommended to Wilson that a different firm be retained. Wilson, however, declined to follow Martin's recommenda- tion.7 Early in 1979, Martin also recommended to Wilson that some of Respondent's funds be placed in different bank accounts where they would draw higher interest. Wilson again declined to follow Martin's recommendation. Martin then became sus- picious of Wilson and, during the next several months, he began to examine closely Respondent's books and records. As a result of his investigation, Martin uncovered what he believed to be evidence of financial improprieties. Thus, Martin came to be- with the Bay Counties District Council of Carpenters, which is composed of various carpenter local unions within the San Francisco Bay area. s President. vice president, financial secretary. recording secretary. treasurer. warden. conductor, and three trustees. 6 All dates hereinafter are in 1979. unless otherwise indicated According to Martin, the trustees., whose duties are described in sec. Ill, A, of the Administrative Law Judge's Decision. had a fiduciary duty to prevent embezzlement and were responsible for the hiring of auditors. Thus, following Wilson's refusal to follow his recommendation, Martin presented a proposal for a different auditing firm to the other trustees and to the executise board which was readily accepted over Wilson's objec- tions Wilson, however, took the matter to the full membership which voted to return the question to the executive board. The end result was that the auditing firm that Respondent traditionally used was retained. 795 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lieve that Wilson was improperly arranging to have dues of retired members paid out of union funds, that checks were surreptitiously being written for that purpose, and that an improper reimbursement had been made to an individual and documents forged on his behalf. Furthermore, Martin was concerned about Wilson's handling of a $1,200 check which had been donated to Respondent. In addition to speaking to Wilson and to then Union President Robert Mitchell on these matters, Martin also spoke out at executive board meetings and general membership meetings on these issues. On May 1, Respondent held a meeting to nomi- nate candidates for the various officer and business representative positions in anticipation of an elec- tion scheduled for June 7.8 At that time, Wilson and Martin were, respectively, nominated for the positions of financial secretary and trustee, Murfin was nominated for treasurer and business repre- sentative, and Prescott was nominated for vice president and business representative. Shortly thereafter, however, Wilson informed Prescott that because his dues had been in arrears during the preceding 12-month period. Prescott was disquali- fied from running for these offices in accordance with Respondent's bylaws. On May 2, at the request of the business repre- sentative for the San Mateo County local union and without objection from Murfin, Martin visited a San Mateo jobsite to investigate a Marin County contractor who had been conducting business in San Mateo County. While there, Martin was as- saulted by the individuals he was investigating and, as a result thereof, was unable to return to work from that day until he was discharged. Several days later, Martin was driven by Pres- cott to the offices of the Department of Labor where they complained about what they believed to be irregularities in the May I nominating proce- dures and about the alleged mishandling of union funds by Wilson. With respect to the alleged irre- gularities in the nominating procedures, the De- partment of Labor advised Martin and Prescott that they would first have to exhaust their internal union procedures before a formal complaint could be made. As to the alleged mishandling of union funds, they were advised that an investigation could be undertaken but that more substantiation would be needed. During the next several months, Martin, at times accompanied by Prescott and on other occasions by one or two other union mem- bers, made several trips to the Department of Labor to further discuss the above allegations. Ad- ditionally, in an apparent effort to document his The terms of all officers on the executive board were due to expire on the first Tuesday in July. claim of alleged misuse of union funds by Wilson, sometime during the month of June, Martin sought to obtain information from the Marin County Credit Association, in which Respondent had an account, concerning Wilson. On June 7, the election for officers was held as scheduled at which time Martin was defeated in his bid for reelection as a trustee. 9 Thereafter, by letter dated June 21 and prepared by Martin's at- torney, Martin, Prescott, and four other members protested the election results to the International Union alleging certain irregularities in the nominat- ing procedures and the ineligibility of certain voters who participated in the election.' 0 Prescott's term of employment, as noted above, expired on June 30. At a general membership meet- ing held on July 3, Prescott sought to have his em- ployment term extended for another 6 months but, on a motion by Wilson, the matter was referred to the executive board for decision. On July 9, the ex- ecutive board met and, on Murfin's recommenda- tions, decided that a second assistant business rep- resentative was not needed and, consequently, de- clined to extend Prescott's term. Furthermore, during that meeting, the executive board, on a motion by Wilson, voted to have Martin's term as assistant business representative expire on Septem- ber 30, rather than have it continue on an "indeter- minate" basis. On July 30, the International Union denied the election protest filed by Martin, Prescott, and the other four members and, by letters dated August 6 and 9, Martin's attorney took issue with the Inter- national's findings. Furthermore, in the August 9 letter, Martin's attorney indicated that a further in- vestigation had confirmed Martin's allegations of fi- nancial impropriety and accused Respondent of having violated the Labor Management Reporting and Disclosure Act (LMRDA). He further threat- ened to contact the Department of Labor and to commence a civil action in Federal court against Respondent. On August 23, Martin's attorney filed a formal complaint with the Department of Labor on behalf of Martin, Prescott, and the other four signatories to the June 21 letter, alleging that Re- spondent's financial secretary, Wilson, had mishan- dled union funds. In late July, Wilson got hold of a billing from the Marin County Credit Association regarding Martin's earlier request for information concerning 9 Wilson and Murfin, who ran unopposed, were reelected to the posi- tions they previously held. '° According to Prescott's undisputed testimony, during a membership meeting held on July 17, Respondent's recording secretary, Joseph Der- rough, read the letter aloud to the members and referred to Martin, Pres- cott, and the other four signatories as "troublemakers." 796 CARPENTERS LOCAL UNION NO. 35 Wilson and became very upset over it. Subsequent- ly, at a general membership meeting held on Sep- tember 4, Wilson moved to have Martin terminat- ed. I The motion was thereafter carried and Martin was effectively terminated as of September 4.12 The Administrative Law Judge found, and we agree, that Prescott was discharged solely for com- plaining to the Department of Labor and that Martin was discharged for complaining to the De- partment of Labor as well as for conducting an in- vestigation of Wilson with the Marin County Credit Association. 13 However, as noted above, the Administrative Law Judge further found that their conduct was not protected by Section 7 of the Act and that, consequently, their discharges were not unlawful.' 4 As previously indicated, we disagree with that finding. The Board has long held that public policy con- siderations dictate that employees be afforded full and unimpeded access to other governmental agen- cies.l5 Furthermore, in administering the Act, the Board, as recognized by the Administrative Law Judge, does not act in a vacuum but rather is charged with considering the full panoply of con- gressional labor policies, including those embodied in the LMRDA, in determining the legality of con- duct engaged in by a respondent.' 6 Mindful of these principles, the Board recently held, on facts similar to those found herein, that the discharge of t Wilson had previously inquired of the International Union as to the safest method for terminating Martin. The International Union advised Wilson that, in order to avoid lawsuits against members of the executive board, Martin should be terminated by a vote of the general membership. a2 The minutes of the September 4 meeting reflect that Wilson's sole reason for wanting Martin discharged was because of the latter's investi- gation of Wilson with the Marin County Credit Association. However, during the hearing, Wilson gave additional reasons for Martin's dis- charge. Thus. Wilson testified that Martin was also discharged for not performing his duties as required when he made the trip to San Mateo County, for not getting along with other employees, including Wilson, for abusing his office by looking into the financial records of other mem- bers, for being dishonest when questioned about the Marin County Credit Association incident, and for seeking to have a different auditing firm re- tained without first obtaining the requisite approval of the general mem- bership. i3 The Administrative Law Judge found, and we agree, that the other stated reasons for Martin's and Prescott's discharges were pretextual. i4 The Administrative Law Judge, relying on the Board's decision in Butchers Union Local 115. affiliated with the Amalgamated Meat Cutters and Butcher Workmen of Norh America, AFL-CIO (Ernest S Cerelli). 209 NLRB 800 (1974), found that Prescott's and Martin's conduct was similar to that of corporate employees attempting to effectuate a change in nian- agement hierarchy and was, therefore, unprotected. s1 See General Teamsters Local Union Na 528, affiliated with Interna- tional Brotherhood of Teamsters. Chauffeurs. Warehousemen and Helpers of Americra (Theatres Service Company)., 237 NLRB 258, fn. 1 (1978); see also Local Union No. 5163, United Steelworkers of America. AFL-CIO (Charles A. Bizzaro), 248 NLRB 943 (1980). The Tappen Company, 228 NLRB 1389 (1977); Alleluia Cushion Co., Inc., 221 NLRB 999 (1975). 'i See Jacobs Transfer. Inc., 201 NLRB 210 (1973); Carpenters Local Union No. 22, United Brotherhood of Carpenters and Join: s of America, AFL-CIO (William Graziano, d/b/a Graziano Construction Company), 195 NLRB 1 (1972). a discriminatee from his position of assistant admin- istrator of a union's welfare and pension funds for activities undertaken as secretary-treasurer of the union violated Section 8(a)(1) of the Act.' 7 Thus, in Welfare and Pension Funds, supra, the Board found that the discriminatee, Montuoro, had been engaged in protected intraunion activities consist- ing, inter alia, of seeking reelection to the position of secretary-treasurer, assisting another union member, Smith, in filing a complaint with the De- partment of Labor over election irregularities, and providing Smith with information pertaining to union finances, when he was unlawfully discharged by his employer, Welfare and Pension Funds, for engaging in such activities. Similarly, in the instant case, we find that Pres- cott and Martin were also engaged in intraunion conduct protected by Section 7 of the Act when, acting in their capacity as union members and, in Martin's case, also as trustee, they complained to the Department of Labor of alleged irregularities in the election nominating procedures and of the al- leged misuse of union funds by Wilson. Further- more, it is evident from the facts herein that in having Wilson's finances investigated with the Marin County Credit Association, Martin was seek- ing to obtain information in connection with the complaint filed with the Department of Labor con- cerning Wilson's alleged misuse of union funds. Under these circumstances, it is clear that Martin's investigation of Wilson with the Marin County Credit Association was intimately related to and done in furtherance of his other activities found to be protected herein. Consequently, we find, con- trary to the Administrative Law Judge, that Mar- tin's conduct in this regard also constituted protect- ed concerted activity within the meaning of Sec- tion 7 of the Act. Having found that the activities engaged in by Prescott and Martin were protected by Section 7 of the Act, we further find that their discharge by Respondent, acting in its capacity as 7 Welfare and Pension Funds, Blasters, Drillrunners and Miners Union Local No. 29 and their Trustees Louis Sanzo, Amado A. Petrito, Paul Crow- ley, and Theodore King, 251 NLRB 1241 (1980) 797 DECISIONS OF NATIONAL LABOR RELATIONS BOARD an employer, 18 for having engaged in such con- duct violated Section 8(a)(l) of the Act."9 THE REMEDY Having found that Respondent unlawfully termi- nated employees William Prescott and Klaus Martin for having engaged in protected concerted activities, we shall require that Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions, with- out prejudice to their seniority or other rights and privileges, and shall require it to make them whole for any loss of pay they may have suffered by 8' The fact that Respondent is also a labor organization does not negate our finding herein since it is well established that when a union takes on the role of an employer. the Act applies "just as it would to any other employer." Office Employees Internalional Union. Local N'o. 11 [Oregon Teamsrers] v. NL.R.B., 353 U.S. 313 (1957) Our dissenting colleague does not dispute the fact that, as an employer, Respondent "is subject to the same strictures under the Act as any other employer." Nor do we dispute his assertion that the Respondent, like any other employer, has an inherent right to operate and maintain its business. However, we note that he, as well as the Administrative Law Judge, has erred in concluding that Martin and Prescott were discharged from their positions as assistant business representatives for actions undertaken as employees concerning "their Employer's conduct of its business " Rather, the evidence firmly establishes that Martin and Prescott's conduct in complaining to the Dcpartment of Labor and conducting an investigation of Wilson with the Marin County Credit Association was undertaken not in their employment capacity of business representatives but as previously stated as members of, and in Martin's case, as an officer of, the Union In this regard. it is clear that their discharge by Respondent was motivated not by any emplo yee misconduct on their part but rather by their in- traunion activity, which conduct our dissenting colleague ssould readily admit is protected by the Act. In light of these facts, we fail to see how our dissenting colleague car' conclude that the discharge of Martin and Prescott did not violate Sec 8(a)(1) of the Act. 19 Thus, having found that Martin and Prescott were discharged solely for having engaged in protected concerted activities, we find the Board's decision in Wright Line, shuptr. which clarified the Board's position in "mixed motive" discharge cases, to be inapplicable herein. Accordingly, we find it unnecessary to rely on the Administrative Law Judge's coin- ments concerning the application of the Wright Line principle to the in- stant case. Moreover, we disavow any comments made by the Adminis- trative Law Judge concerning the application of Wright Line to Martin's discharge which may suggest that the Gerral Counsel has the burden both of making out a prima facie case and of showing that an alleged dis- criminatee's discharge would not have occurred in the absence of any protected activity. Under Wright Line, the burden of shc, wing that a dis- charge would have occurred even in the absence of any protected activi- ty shifts to a respondent once the General Counsel makes out a prima facie case. We further find Butchers Union Local 115, supra, upon which the Ad- ministrative Law Judge also relies, distinguishable from the instant case. In that case, the Board held that a respondent union did not violate the Act by discharging an employee because it believed that that employee "was seeking an executive position on its management staff at the expense of [an] incumbent official." The Board there noted that an employee of a union has no protected right under the Act to "engage in activities de- signed solely for the purpose of influencing or producing changes in the management hierarchy." Unlike Butchers Union Local 115, however, there is no evidence in the instant case to indicate that either Martin or Prescott was seeking to have any of Respondent's officials removed from office in order to assume their positions or that Respondent in fact be- lieved this to be the case. Rather, the evidence strongly suggests that, by their conduct, Martin and Prescott were attempting to maintain the integ- rity of their collective-bargaining representative by exposing what they believed to be corrupt internal union practices. Under these circum- stances, we find the Administrative Law Judge's reliance on Butchers Union Local 115 to be misplaced. reason of the discrimination against them, with in- terest, to.be computed in the manner prescribed in F W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977). 20 Respondent shall further be required to cease and desist from in any like or related manner inter- fering with, restraining, or coercing its employees in the exercise of their Section 7 rights. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board orders that the Respondent, Carpen- ters Local Union No. 35, San Rafael, California, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discharging employees for exercising their right to engage in protected concerted activities under Section 7 of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer William Prescott and Klaus Martin im- mediate and full reinstatement to their former posi- tions or, if those positions no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them in the manner set forth in the section of this Decision and Order entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amoufit of backpay due under the terms of this Order. (c) Expunge from its files any reference to the discharge of the above-named employees and notify them in writing that this has been done and that evidence of this unlawful conduct will not be used as a basis for future personnel action against them. (d) Post at its San Rafael, California, office copies of the attached notice marked "Appen- dix." 21 Copies of said notice, on forms provided by 20 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 2a 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 Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board. 798 CARPENTERS LOCAL UNION NO. 35 the Regional Director for Region 20, after being duly signed by Respondent's authorized representa- tive, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places at all locations where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to ensure that said notices are not altered, defaced, or covered by any other mate- rial. (e) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER FANNING, dissenting: Martin and Prescott, employees of a labor orga- nization, became concerned with the handling of the organization's funds, eventually had a credit check performed on an officer of their Employer, and filed a formal complaint with the Department of Labor. The two were subsequently discharged. The Administrative Law Judge found that the dis- charges stemmed from the complaint to the De- partment of Labor, but that the complaint was not a protected concerted activity under Section 7. The majority reverse and find that the Respondent violated Section 8(a)(1). I do not agree that in this context the actions of Martin and Prescott, public spirited though they may have been, were protect- ed under the National Labor Relations Act. A labor organization as an employer is subject to the same strictures under the Act as any other em- ployer. But, also like any other employer, a labor organization has an inherent right to operate and maintain its business. The fact that its customers are "employees," and "terms and conditions of em- ployment" its stock in trade, should not transmute into "concerted activity for . . . mutual aid or pro- tection" actions whose target is business practices of concern to workers as workers only by reason of the nature of the Respondent's business.22 The actions of Martin and Prescott were not di- rectly related to "collective bargaining or other mutual aid or protection .... " as set forth in Sec- tion 7 and were completely unrelated to their own terms and conditions of employment. They were disciplined as employees for their actions as em- ployees with respect to their Employer's conduct of its business. As members of Respondent labor organization--the context in which they were enti- *2 Thus, in Misericordia Hospital Medical Center, 246 NLRB 351 (1979), enfd. 623 F.2d 808 (2d Cir. 1980), employee complaints to an ac- crediting body about the operation of the hospital were protected be- cause they involved staffing levels, an issue directly related to employee working conditions, and sanitation, the equivalent of employee safety tied to protection here-Respondent took no action against them. Martin and Prescott are entitled to no less pro- tection than any employees acting in good faith on behalf of the public against the business interest of that employee's employer. But they are not entitled to protection under the National Labor Relations Act unless their purpose as well as their actions fit within the framework of Section 7. The mere fact that their Employer is a labor organization and its customers, who are the intended beneficiaries, are employees within the meaning of the Act, does not suffice. a 2 3 I would dismiss the complaint. 23 I cannot agree with the majority that Martin and Prescott acted as Respondent's members rather than as its employees. But the nature of the dual status of Martin and Prescott as both members and employees of Re- spondent may be so intertwined that no clear resolution can be had in this context. But, even if the two acted as members, the Respondent's right to manage its business must include the right to manage its own business affairs without interference from employees who are also mem- bers. The Respondent is not the representative of Martin and Prescott, nor could it properly be so. As an employer the Respondent owes no "duty of fair representation" to employees, as we have explained in the past. See Butchers Union Local 115, etc. (Ernest S. Cerelli), 204 NLRB 806 (1974), upon which the Administrative Law Judge relied and which the majority seeks to distinguish The case is, and remains, one where em- ployees sought to call their employer to account for its management of its business, not for its conduct in ordering its relations with its employ- ees. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. WE WILL NOT discharge or otherwise penal- ize employees for engaging in protected con- certed activity under Section 7 of the National Labor Relations Act, as amended. 799 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them in the National Labor Relations Act. WE WILL offer William Prescott and Klaus Martin immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously en- joyed, and WE WILL make them whole, with interest, for any loss of pay they may have suf- fered as a result of our discrimination against them. WE WILL expunge from our files any refer- ence to the discharges of the above-named em- ployees and notify them in writing that this has been done and that evidence of this unlaw- ful conduct will not be used as a basis for future personnel action against them. CARPENTERS LOCAL UNION NO. 35 DECISION STATEMENT OF THE CASE JOAN WIEDER, Administrative Law Judge: This case was heard before me in San Francisco, California, on May 22 and 23, 1980, pursuant to a complaint, as amend- ed, issued by the Regional Director for the National Labor Relations Board for Region 20 on January 25, 1980, and which is based upon charges filed by Klaus Martin on September 14, 1979,1 in Case 20-CA-14859, and William J. Prescott on December 11, 1979, in Case 20-CA-15029. The complaint alleges that Carpenters Local Union No. 35 (herein called Respondent or the Union) has engaged in certain violations of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended (herein called the Act). Issues The primary issues are: 1. Whether activities engaged in by the Charging Par- ties, Martin and Prescott, are concerted and protected within the meaning of Section 7 of the Act. 2. Whether Martin's and Prescott's employment were terminated because they had engaged in concerted pro- tected activities. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-ex- amine witnesses, to argue orally, and to file briefs. Briefs, which halve been carefully considered, were filed on behalf of the General Counsel and the Union on July 8, 1980. Upon the entire record of the case, and from my ob- servation of the witnesses and their demeanor, I make the following: I All dates herein refer to 1979, unless otherwise indicated. FINDINGS OF FACT I. PRELIMINARY MATTERS Counsel for the General Counsel moved to amend the complaint at the commencement of the hearing. Counsel for Respondent vigorously objected to the motion and was offered an opportunity to demonstrate that granting the motion without granting a postponement would prej- udice the presentation of his case. A telegram informing counsel for Respondent that such an amendment would be proposed demonstrated that Respondent was not sur- prised by the motion. However, Respondent was afford- ed the opportunity to renew its request for a continuance at any time it deemed necessary, and was assured a post- ponement would be granted if prejudice was shown. Re- spondent did not renew its request for a postponement. Accordingly, it is concluded that good cause for a con- tinuance has not been shown and it is further found that request for a postponement was properly denied II. THE BUSINESS OF THE EMPLOYER Respondent, located in San Rafael, California, admits, and I find, that at all material times it is an unincorporat- ed association engaged in the business of representing employees in bargaining with employers located within Marin County, California, with respect to wages, hours, and other terms and conditions of employment. It also admits that during the past calendar year, in the course and conduct of its operations, it collected and received dues and initiation fees in excess of $50,000, and remitted to the United Brotherhood of Carpenters and Joiners of America, located in Washington, D.C., dues and initi- ation fees in excess of $50,000. Therefore, I find that the Union is an employer engaged in commerce and in an in- dustry affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent also admits, and I find, that it is a labor organization within the meaning of Section 2(5) of the Act. IIIll. THE ALLEGED UNFAIR LABOR PRACTICES A. General Background The Charging Parties, Martin and Prescott, in addition to being members of the Union, were employed by Re- spondent as assistant business representatives. Martin was first employed by the Union as an assistant business agent in July 1975, for a 3-month term. After the expira- tion of his first term, he was rehired on a 3-month basis several times. Then his term was increased to a 6-month period, and he served two 6-month terms. In 1977, the manner of renewing his term was changed and he was hired for an "indeterminate" period of time. Prescott was initially employed on June 1, 1978, as an "organizer" Carpenters representative for a 6-month term. At the end of his first term, he was employed as an organizer and an assistant business representative with his term ending in June 1979. 800 CARPENTERS LOCAL UNION NO. 35 Martin and Prescott also were elected to the Union's executive board, which has 10 officer positions, 2 with votes, and I elected position, that of business representa- tive, which has voice only, no vote. In 1977, Martin was elected as a trustee and Prescott as the conductor.3 The terms of all officers expired on the first Tuesday of July 1979. The constitution and bylaws of United Brotherhood of Carpenters and Joiners of America, which are applicable herein, describe the duties of trustees as follows: DUTIES OF TRUSTEES A Section 40. The Trustees shall have the supervi- sion of all funds and properties of the Local Union, subject to such instructions as they may receive from time to time from the Local Union. The title to all property of the Local Union shall be held in the name of the Trustees of the Local Union and/or their successors in office. B It shall be the duty of the Trustees to see that the Treasurer or Financial Secretary deposits all monies received in such bank(s) as the Local Union desig- nates. The Trustees shall see that the Recording Secretary of the Local Union notifies the bank(s) of the names of the officers duly authorized to sign checks for withdrawals on the account, and that all disbursements are to be made by check, except that a petty cash fund for either the Financial Secretary or the Treasurer is permitted. C The Trustees shall audit all books and accounts of the Financial Secretary and the Treasurer, audit all receipts and accounts of any other person au- thorized to collect funds, examine the bank book(s) monthly, and shall report to the Local Union in writing, and semi-annually to the General Secretary on Bond Report forms supplied from the General Office; and shall perform such other duties as are provided for in the Constitution and Laws of the United Brotherhood or as the Local Union may direct. Local Unions having annual receipts amounting to Twenty-Five Thousand Dollars (S25,000.00) or more from all sources shall engage a certified or registered public accountant for period- ic audits, but not less than once a year. Such audits shall be examined by the Trustees for comparison with the Trustees' Audits and the Trustees shall report their conclusions in writing to the Local Union. President, vice president, financial secretary, recording secretary, treasurer, warden, conductor, and three trustees. a The Union bylaws refer to the International's constitution and bylaws for the definitions and descriptions of duties for the various officers. The constitution, as amended January 1, 1979, describes the duties of conduc- tor as follows: Section 38. The Conductor shall examine all present at the meet- ing and report to the President all without the Password. The Con- ductor shall allow no one to remain without the Password and shall obtain the names of all candidates awaiting initiation and report the same to the President and shall conduct the candidate through the initiation ceremony, and shall perform all duties pertaining to the office, and shall be furnished an assistant when necessary. Only two elected officials are full-time employees of the Union, the business representative and the financial sec- retary. In 1977, Martin was nominated for the office of busi- ness agent but lost the election to Clarence Murfin. 4 Reelected to the position of financial secretary was long- time office holder William Wilson. As here pertinent, also elected at that time was George Mitchell as presi- dent. The recording secretary during the relevant period of time was Joseph Derrough and, also as here related, the position of vice president was vacant. Murfin, due to the recency of his incumbency as well as having achieved the position of business representative after defeating Martin for that office, and promising others that they would be considered for the job of as- sistant business representative if he were elected, ex- pressed a desire to have another member serve as his as- sistant. Under the auspices of the executive committee and the Bay Counties District Council of Carpenters, Murfin accepted Martin as his assistant business repre- sentative, reluctantly initially; however, later a good working relationship evolved. Martin was assigned the bulk of the office and legal work such as the processing of grievances. In general, assistant business representatives are em- ployed by Respondent pursuant to the recommendation of the business representatives to the executive board which, after approving such recommendation, places the proposal before the general membership for their approv- al. It is customary that the membership routinely ap- proves these recommendations. B. Events Leading to Cessation of Employment There is no dispute that Martin and Prescott were per- forming their duties in an acceptable manner, rather, ar- gument arose over whether their employment was ended because they engaged in protected concerted activities or for other reasons. The activities alleged by the General Counsel as the reason for the discontinuance of their em- ployment is contended to be attributable to Respondent's desire to be rid of employees who charged Wilson en- gaged in certain improprieties at executive board and membership meetings; to the Department of Labor; and to other union officials at the local, regional, and Inter- national levels. I. Martin The allegations raised by Martin admittedly had their genesis in his activities as trustee. During January 1979, Martin expressed concern about the auditing firm tradi- tionally employed by the Union because of a newspaper article that indicted the firm audited a local government agency and failed to discover that a retired employee had embezzled approximately $30,000. When Wilson failed to follow Martin's recommendation, Martin admit- tedly became upset. According to Martin, based on con- sultations with unnamed friends, he believed that the em- bezzlement should have been readily discovered by the 4 Murfin was also elected treasurer. As treasurer, he was a voting member of the executive board. 801 DECISIONS OF NATIONAL LABOR RELATIONS BOARD auditors. Wilson's failure to act upon Martin's recom- mendation led Martin to consult with an alleged financial specialists employed by the International. According to Martin, as a result of this consultation, he believed the trustees not only had a fiduciary duty to prevent embezzlement. but also that the trustees were re- sponsible for and in charge of hiring the auditors. Martin and the other trustees decided to employ a new auditor. Martin made inquiries and asked for a proposal from an auditor he determined to be highly qualified. The three trustees reviewed the proposal and signed it. Martin then states that he informed the recording secretary of the trustees' action. In April, Wilson raised the matter of the trustees' actions at an executive board meeting, 6 stating that the trustees had no right to hire a different auditor without the Local's approval. The executive board, ac- cording to Martin's unrefuted testimony, agreed with the trustees. Wilson then brought the matter before the gen- eral membership, who voted to return the question to the executive board. The end result is that the firm em- ployed by Respondent for the past 15 years was retained. Martin testified that as a result of Wilson's desire to retain the "old" audit firm, he became suspicious and started looking more closely at the Union's books and records. Martin asserts that he discovered several impro- prieties.' These allegations will be discussed only for the purpose of determining whether the activities were pro- tected within the meaning of Section 7 of the Act. One allegation was that Wilson improperly paid the dues of retirees with union funds in contravention of the Local's bylaws and the International's constitution. s It is further alleged by Martin that Wilson, in contravention of specific instructions to comply with the International's constitution, surreptitiously continued to pay these dues, knowingly misstated the receipt of such funds, and im- properly designated these individuals to be members in good standing. Another recommendation Martin made involved placing strike funds in Treasury Bills with the Wells Fargo Bank, which paid a higher interest rate. The Union's membership approved of the recommendation, but it is alleged that Wilson was very dilatory without good cause in complying with the members' directive. Martin claims that his investigation also indicated that Wilson reimbursed Ed Fedrowitz9 for expenses incurred in attending a district council meeting as "vice-presi- dent." Martin claims that the Union had no vice presi- dent at that time; therefore, such a disbursement was as- serted to be improper. Additionally, Martin raised the possibility that the necessary credentials were forged. It is undisputed that these allegations were made by Martin to the president of Respondent, Mitchell. 6 An individual named Lloyd Larsen, who did not testify. a Martin describes Wilson as being furious. 7 The merits of these allegations will not be considered herein because the evidence will not support such a finding, nor has it been claimed that these allegations were made maliciously or with knowledge of their falsi- ty or for some similar improper motive; rather the question is whether making of these allegations are protected concerted activities and, if so, was the leveling of these assertions the cause of the Charging Parties' loss of employment. s It is undisputed the constitution takes precedence over the Local's bylaws in the event there are contradictory provisions. 9 Fedrowitz was elected president for a 2-year term on June 7, 1979. Martin served on the Union's welfare committee with Wilson. It came to Martin's attention that a $1,200 dona- tion to the fund by a retired member was not reflected in a separate account and when, he asserts, his inquiry to Wilson failed to clarify the matter, he suspected that the donation may have been mishandled. Not only did Martin speak out to Wilson, Mitchell, the then president of the Local, at executive committee meetings, at general membership meetings, and by letter to the District Coun- cil; additionally, he, along with Prescott and several others, made these or similar complaints to the Depart- ment of Labor, Labor Management Services Administra- tion. Martin, Prescott, and several otherst 0 also com- plained to the Labor Management Services Administra- tion about alleged improprieties in the June 7 election. The Department of Labor referred the election matters to the International as the first avenue to take in seeking redress. By letter dated June 21, Martin's attorney wrote the International asserting that: the notice opening nomi- nations had failed to comply with the requirements of the constitution and bylaws; after finding all nominations were eligible on May 1, Prescott's nomination was found improper on May 2 because of alleged dues arrearages, thereby precluding the members from the option of timely substitution of another nominee; and that some members who voted in the election should be found in- eligible because their dues were paid "out of improer funds and in an unlawful manner." l This letter was read to the members at a regularly scheduled meeting held on July 17 by Joseph Derrough. According to Prescott's unrefuted testimony, Derrough read the names of the six signatories and referred to them as "troublemakers." Almost immediately thereafter, a long-term member, Borges, stood up and stated that about 23 years ago the Local had a problem with "some bad losers" and "they just threw ... [them] out." Prior to going to the Department of Labor, Martin was investigating a contractor who, in addition to con- ducting business in Marin County, was also conducting business in San Mateo County. The business agent of the San Mateo County local telephoned Martin on May I to discuss this investigation and invited Martin to visit a San Mateo County jobsite with him the following morn- ing. In uncontroverted testimony, Martin informed Murfin of his plans to visit the San Mateo County loca- tion the following day, and Murfin did not object. When Martin reached the jobsite, he was assaulted by two of the individuals he had been investigating. The assault re- sulted in serious injury, and Martin was unable to work from that day until the date of the termination of his em- ployment in September.t 2 Inasmuch as Martin had an "indeterminate term," on February 1, at a meeting of the executive committee, Wilson suggested that they determine the meaning of the phrase. Martin claims that the inquiry was initiated by '0 Including Mitchell, Respondent's president for the 1977-79 term, and Kinney, the Union's warden. " As an aside, it is noted that both the International and the Depart- ment of Labor found these allegations lacked merit or were insufficient to warrant requiring a new election or other relief. 12 At the time of this hearing, Martin still was unable to return to work. 802 CARPENTERS LOCAL UNION NO. 35 Wilson because a personal letter to Martin from his at- torney outlining his status was intercepted by Wilson. Be that as it may, the attorney, Burdick, opined that ap- pointment for an "indeterminate term" meant that Martin "serves so long as the executive board sees fit.... Your tenure is conditioned only upon [sic] by your keeping the Executive Board happy." t The minutes of the executive committee meeting of July 9, 1979, reflect that Martin's term of office as assistant business agent was modified to expire on September 30, 1979.14 Prior to the expiration of his term, Martin was discharged. At the regularly scheduled general membership meet- ing'5 of September 4, Wilson moved that Martin be dis- charged. According to Wilson: The reasons that I made the motion are various. . I felt that Mr. Martin was creating a lot of problems for the Local Union. . . . for instance ... he got himself injured . . . he was out of the area, not performing his duties as he was supposed to have been. .. I.' He had no business in San Mateo County .... He never . . . asked permission of the business representative. . . He never could get along with any of the persons in the office. He didn't get along with the secretaries, 1 7 he wasn't getting along with me. He was abusing his office ... as the assistant business representative.... He went to the Marin County Credit Bureau . . . look- ing into financial records of members.' 8 When he was confronted about it before the executive com- mittee, he stated before the executive committee that he had his own record with the Marin County Credit Bureau, could get any record that he 13 Wilson contends that the inquiry was sparked by reports he re- ceived that Martin was telling members that he was appointed for life and these members were unhappy that they could no longer decide who would hold the position. i" Wilson also recommended to the executive committee, as reflected in the minutes of a regular general membership meeting held April 17, that the terms of office of all regular officers and business representatives expire at the same time. The matter of Martin's term was also discussed at the executive committee meeting of April 5. the regular membership meeting of February 6, and the executive committee meeting of February 1. Is It was admitted that Wilson and others inquired of the International office about the safest way of discharging Martin, and were informed that Martin should be terminated by vote of the membership, not the ex- ecutive board to prevent Martin suing members of the executive commit- tee. it Martin's testimony that he informed Murfin of his plans was unre- futed by Murfin and is credited. This reason, therefore, is found to be mere pretext. 1i Not one of the secretaries testified in support of this contention, and this assertion is also found to be a pretext. 18 At Martin's urging, the Union established an account with the Marin County Credit Association in March 1978 to assist him in his in- vestigations of contractors. In June 1979, Martin requested the Marin county Credit Association give him a personal report of Wilson's fi- nances. In particular, he inquired if the Association could ascertain if Wilson had loans from any of the banks swhere the Union had its funds on deposit. Martin argued that he paid for the report and had his own account with the Marin County Credit Association. The membership in the Credit Association is listed in the Local's name and the Respondent paid all the charges. When the bill for the investigation of Wilson and his wife was received by the Union, Wilson became very irate over the matter. As an aside, it is noted that the credit report on Wilson did not disclose any conflicts of interest wanted, which was untruthful. That was one of the reasons I had made the motion was because of his dishonesty. Another reason advanced by Wilson for his motion was the controversy occasioned by Martin's attempt to hire another accounting firm without the requisite ap- proval of the membership. Also mentioned was the fact that Martin sought the advice of his personal attorney re- garding his tenure and, Wilson alleged, that Martin was telling members that he had a job "for the rest of his life and . . . didn't have to run for the office, and this cre- ated an awful lot of dissension amongst the member- ship." The recording secretary's notes and the minutes of the meeting indicate only that Wilson based the motion upon Martin's request that the Marin County Credit Associ- ation gather information about Wilson's finances. During the meeting, Prescott testified, Murfin announced that he thought the membership should know that "because of three men sitting in the hall right at that time, the gov- ernment was coming into the office tomorrow." Murfin admitted mentioning "that at a certain date the Labor Department's coming in to have an interview with me." Another reason given for the discharge was that Martin failed to heed the written request of the members that he attend the September 4 meeting to answer the allegations against him. Martin did get a letter requesting his attend- ance but the missive failed to state the basis for the re- quest. Martin did not attend the meeting. The members at the meeting overwhelmingly voted to terminate Martin's employment as an assistant business representative. ' 9 Martin testified that, when he went to his office on September 5 to pick up his mail, he noticed Murfin was changing the locks on the doors in the presence of Wilson. Wilson asked Martin if he had a few moments and told him that the preceding night the Local had de- cided to discharge him. Martin stated he got very angry.20 Martin claims that he told Wilson the only indi- viduals who could discharge him were John Watts 2 and Clarence Murfin. Martin then sought out Murfin and al- leges that Murfin stated Martin was fired "for going to the government and investigating Bill Wilson." Murfin also allegedly represented to Martin, in response to Mar- tin's inquiry, that there was nothing wrong with his work. Murfin admitted that Martin's performance of his duties was very satisfactory, and said that Martin's ver- sion of the remainder of the conversation may be cor- rect. Murfin was asked by Martin to put his evaluation in writing and Murfin said he would at a later date. Martin came to the office the next day, September 6, and asked Murfin if he prepared the reference. Murfin, according i9 It is undisputed that the general membership had the authority to terminate Martin's employment, the question is whether such action was taken because Martin was engaged in protected concerted activity. 20 In the transcript Martin claims he got very angry, which is incon- sistent with his testimony that he was already aware of the membership's vote, so, when Wilson told him he was fired, "it was not really news to him." 21 Watts is with the District Council 803 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Martin, stated that John Watts advised against his pre- paring the requested letter of recommendation. Murfin denies discussing with Martin the reasons for his discharge. Murfin's testimony is not credited based on the lack of clear recollection of the events and the fact that Murfin did recall that Martin did discuss the issu- ance of a letter of recommendation with him, but he never reasonably explained why such a letter was not issued. Also, it was not shown that the alleged explana- tion given to Martin is consistent with past practice, which was that the advice of the International or Dis- trict Council was sought, a course not shown to be standard practice. Further, Murfin admitted mentioning the forth-coming visit of investigators from the Depart- ment of Labor at the meeting the evening of September 4 when the matter of Martin's discharge was being dis- cussed and it would be inherently consistent behavior to again discuss the Department of Labor's activities with Martin personally. Accordingly, Martin's version of this conversation is credited. A few days later, Martin received the termination letter issued by Respondent stating the cause of his dis- charge was "for conduct unbecoming an officer." The letter did not state whether such "conduct" was the use of the Marin County Credit Association, going to the Department of Labor and alleging wrongdoing by Wilson, or both. It appears from the reasons advanced by Wilson, as well as the reason given in charges filed by the Union again Martin with the Bay Counties District Council of Carpenters, that Martin's going to the U.S. Department of Labor and the investigation of the Wil- sons using the offices of the Marin County Credit Asso- ciation were two of the bases for his discharge, and I so find. I further find the General Counsel has not demon- strated that the discharge would not have taken place solely because Martin had Wilson's finances investigated by the Marin County Credit Association. See Wright Line, a Division of Wright Line, Inc., 251 NLRB 1083 (1980). The investigation of Wilson's finances using the Respondent's membership in the Marin County Credit Association has not been shown to be protected activity within the meaning of Section 7 of the Act, nor was this reason demonstrated to be based on pretext. All wit- nesses agreed that Wilson was extremely upset about this action by Martin and Wilson did feature the incident in explaining the reason for his recommendation to the members that Martin be discharged. 2. Prescott Prescott was initially employed as an assistant business representative and organizer, with emphasis upon orga- nizing duties, in the summer of 1978 for a 6-month period which expired in December 1978. Prescott did not replace another assistant business representative; rather, he was an addition to the office staff. In Decem- ber, no action was taken to renew Prescott's employ- ment; however, the minutes of the executive committee meeting of January 4, 1979, indicate he was rehired as an assistant business representatve and organizer for a term ending June 30, 1979. Wilson claims that the term was renewed, not due to need but because it was determined that termination right after the Christmas and New Year holidays was un- desirable and that the experiment of employing two as- sistant business agents, with Prescott devoting a substan- tial amount of time to organizing activities, would be continued for a short while. Murfin claims the experi- ment failed because Prescott did not substantially in- crease union membership; "not much organization was accomplished." Such considerations are not reflected in the minutes of the various meetings relating to Prescott's reappointment. Prescott contends that since January the demand for his services as assistant business representa- tive and organizer increased. Prescott's testimony that, although he was paid for working 40 hours a week, he worked about 80 hours a week, is unrefuted. On July 3, 1979, at a regular membership meeting, Prescott's letter requesting a 6-month extension of his ap- pointment as assistant business representative was read, and the members referred the matter to the executive committee. The minutes of the executive committee meeting reflect that it was discussed by the new execu- tive committee, which determined that the second assist- ant business representative was no longer needed. Also, according to Wilson and Murfin, Murfin did not see the necessity to continue Prescott's employment as an orga- nizer and he had no need for a second assistant business representative. Currently, Respondent employs one full-time and one part-time assistant business representative. The full-time employee is currently Gordon Matthews, and the part- time assistant is Wilson. Wilson assertedly only works as an assistant business representative when Murfin is away on business or vacation. No records substantiating this claim were presented by Respondent. Wilson was appointed to serve as assistant business representative in September 1979. His description of his duties exhibits a lack of candor, for he stated that he did not visit jobsites during the week; however, when pressed, he admitted he may occasionally have visited jobsites during the week. Wilson also admitted that he performed the assistant business representative's function of reporting on his activities at regular membership meet- ings, much as Martin and Prescott had done before his appointment. Wilson also claimed that he had historically functioned as an assistant business representative when his services were needed, in addition to his duties as fi- nancial secretary. However, Wilson and Respondent never presented any documentation in support of this claim, which raises an adverse inference. As stated in Northern Packing Co. v. Page, 274 U.S. 65, 74, 47 (1927): [T]he omission by a party to produce relevant and important evidence of which he has knowledge, and which is peculiarly within his control, raises the presumption that if produced the evidence would be unfavorable to his cause. A member of the Union, Edwin (Ted) Julianus, testi- fied that he had a conversation with Wilson sometime around the month of October 1979 regarding the termi- nation of both Prescott's and Martin's employment. Ac- cording to Julianus, Wilson stated that the Charging Par- ties were fired, "that they had gone to the Department 804 CARPENTERS LOCAL UNION NO. 35 of Labor and filed charges . . . that Klaus Martin was in disability and was unable to perform his job." Respond- ent argues that Julianus' testimony is inherently incredi- ble. Julianus' testimony is found more credible than Wil- son's, based on demeanor, textual consistency in his testi- mony, and inherent probabilities. 22 Respondent's executive board also brought internal charges against Prescott on November I, which included in the allegations of wrongdoing Prescott's participation with Martin in seeking assistance from the Department of Labor as well as the International. Furthermore, Der- rough, as previously described, read to the general mem- bership the letter Martin and Prescott signed seeking the International's assistance in correcting alleged impropri- eties. Derrough referred to the signatories as "trouble- makers," and read their names to the membership. Also, the Union did not provide timecards or other documen- tation of the hours worked by the part-time assistant business representive, Martin, Prescott, or the present ap- pointee to the full-time position, in refutation of Pres- cott's claim that he worked approximately 80 hours per week. Inasmuch as the record fails to disclose whether accurate records of hours worked were kept by the Union, no adverse inference will be drawn by this fail- ure. However, the silence of Respondent on this matter is hereby deemed as a failure to support the claim that Prescott's term was not renewed because his services were no longer needed. Consequently, it is found that the claimed "good cause" reason advanced by the Union is mere pretext. Analysis and Conclusions In sum, it is found that while Martin's disability may have, as the Union argues, under Respondent's bylaws, justified his termination, the failure to adhere to the terms of the bylaws in a manner reasonably close to the time frame required therein leads to the conclusion that this reason for Respondent's action was not the actual cause for their action. However, the Respondent could properly modify the term of office of any employee for any reason other than the employee's engaging in pro- tected concerted activity. It is also concluded that the al- leged discriminatees acted upon good-faith beliefs and not with malice or deliberate falsifications. Nor can the conduct be found to be so offensive, defamatory, or op- probrious as to remove it from the protection of the Act. In this proceeding, it is determined that a motivating factor in Prescott's and Martin's terminations was their complaining to the Department of Labor, the Interna- tional, and other union members about the alleged im- proprieties discussed above.23 22 Respondent attempted to demonstrate that Julianus was a friend of Prescott's, but failed to do so; rather, Julianus consistently testified that Wilson ascribe as the basis for the discharges the employees going to the Department of Labor 23 As noted above, it is found that the General Counsel failed to make a prima facie showing that Martin's discharge would not have taken place in the absence of the employee's activities which the General Counsel al- leges were protected; i.e.. seeking the assistance of the U.S. Department of Labor However, for ease of discussion, it will be assumed. arguendo, that Martin's activity of going to the U.S. Department of Labor was the reason for his discharge Counsel for the General Counsel argues that an em- ployee's access to the Department of Labor in pursuit of enforcement of the policies expressed by Congress in the Labor Management Reporting and Disclosure Act is a protected activity. Citing Alleluia Cushion Co., Inc., 221 NLRB 999 (1975); General Teamsters Local Union No. 528 (Theatres Service Company), 237 NLRB 258, fn. 1 (1978), and Carpenters Local Union No. 22, United Broth- erhood of Carpenters and Joiners of America, AFL-CIO (William Graziano, d/b/a Graziano Construction Compa- ny), 195 NLRB 1 (1972) Respondent argues that the complaint should be dis- missed not only because the General Counsel failed to establish improper motivation, but also because a viola- tion of Section 7 rights has not been established. The Union claims that Martin's and Prescott's activities were reacted to as employees and not as members of the Union; their membership status and rights were not in- fringed upon; and the parties have stipulated that no vio- lation of Section 8(b)(1) of the Act has been alleged. There is no allegation that Respondent is or was the Charging Parties' representative. Therefore, there was no protected activity. Citing Retail Clerks Local 770 Retail Clerks International Association (Carl Palmer), 208 NLRB 356 (1974); Butchers Union Local 11, Amalgamated Meat Cutters and Butcher Workers of North American, AFL- CIO (Ernest S. Cerelli), 209 NLRB 806 (1974); and Retail Store Employees Union, Local No. 876 (Barbara Frazier), 212 NLRB 113 (1974). It is uncontroverted that employees of a union enjoy the same rights as any other employees under Section 7 of the Act. See Office Employees International Union, Local No. 11 (Oregon Teamsters) v. N.L.R.B., 353 U.S. 313 (1957). Section 7 of the Act safeguards the employ- ees' right to engage in "concerted activities for the pur- pose of collective bargaining or other mutual aid or pro- tection." Martin's and Prescott's activities were, in the literal sense, "concerted." However, not all "concerted activi- ties" are "for the purpose of collective bargaining or other mutual aid or protection." The record clearly fails to demonstrate that their activities were remotely con- nected to purposes of collective bargaining. While protected concerted activities are not limited to cases where the employees are acting through unions or other formalized organizations, they must be acting to- gether for mutual aid or protection. See N.L.R.B. v. Peter Cailler Kohler Swiss Chocolate Co., Inc., 130 F.2d 503 (2d Cir. 1942). As stated in Joanna Cotton Mills Co. v. N.L.R.B., 176 F.2d 749 (4th Cir. 1949): It is true as argued by the Board that, where there is a bona fide concerted activity for any of the pur- poses named in the statute, its protection will not be denied because of the motives of those engaging in the activity; but it is not the motive of the partici- pant that we are concerned with here but the "pur- pose" of the activity. It is clear that that purpose had no relation to collective bargaining, hours or conditions of work or any sort of mutual aid or pro- tection of employees. 805 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The cases cited by counsel for the General Counsel are not indicative or persuasive that the alleged discri- minatees were engaged in protected activity. Alleluia Cushion Co., 221 NLRB 999 (1975), involved complaints about safety by an employee who wrote to California OSHA. Safety has been clearly found to be encompassed in the phrase "mutual aid or protection." There is no al- legation in the instant proceeding that complaint about safety is one of the reasons for the termination of Pres- cott and Martin. The reference by counsel for the Gener- al Counsel to General Teamsters Local Union No. 528 (Theatre Service Company), 237 NLRB 258 (1978), is also found inapplicable to the instant proceeding for it deals with a union's obligations as a representative, not an em- ployer and, as noted above, there is no allegation that Respondent, as a labor organization, violated Section 8(b)(1)(A) or (2) of the Act. Furthermore, there was no question in the cited case that the activity was protected. Finally, the allegations involved in Jacobs Transfer, Inc., 201 NLRB 210 (1973), also cited by counsel for the General Counsel, involve hours, wages, and other terms and conditions of employment which were found to be protected. The facts of this case will be examined to de- termine if Martin's and Prescott's activities are protected within the meaning of Section 7 of the Act. The Board found, in Carpenters Local Union No. 22, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Graziano Construction Company), supra, that, although the discriminatees sought assistance from the Department of Labor pursuant to the provisions of the Labor-Management Reporting and Disclosure Act of 1959 rather than the National Labor Relations Act, such action does not "impel a different conclusion." The Board must consider all congressional mandates of labor policy in determining the legality of Respondent's ac- tions. Consequently, the General Counsel still has the ob- ligation of demonstrating that the concerted activities are for collective bargaining or mutual aid or protection. The basis counsel for the General Counsel advances for the alleged discriminatees' actions is that they "were based on the sincere and conscientious conviction that corrupt or improper fiscal practices existed which needed remedying." Martin is the admitted primary ac- tivist and he stated that his activities were primarily, if not solely, in accordance with his obligations as a trust- ee, not as an employee of Respondent. As an officer of the Union, Martin's intraunion activi- ties would be unprotected. Intraunion activities are pro- tected under Section 8(b)(l) of the Act, and unions owe such activists the duty of fair representation. However, as noted in Butchers Union Local 115 (Ernest S. Cerelli), supra at 810 (1974): There is no concept of duty of fair representation under Section 8(a)(1) and (3) because an employer cannot represent its employees in bargaining with itself. The cases cited by the General Counsel in his brief in which violations of Section 8(b) are found are all distinguishable from the instant case where Respondent is alleged to have violated the Act as an employer and not as a labor organization. The General Counsel admits that the activities of Martin and Prescott were not "solely for the purpose of influencing or producing changes in the management hierarchy" of the employer or where "the thrust and purpose of their activities was to effect a change in the top management of the union-employer." Therefore, it cannot be argued that the actions of the employees were directed at poor supervision, which is a protected activi- ty. In fact, Wilson and Murfin were unopposed in the election, hence there was no showing that the complaints about the election could or would have resulted in a change in supervision. Furthermore, the allegations of improper handling of union funds were not directed at the assistant business agents' supervisor, Murfin. The other asserted improprieties raised by the alleged discriminatees go to such matters as which auditors are employed, which banks are utilized for depositing differ- ent union funds, the improper disbursement of funds to Fedrowitz as an officer in fiscal 1977-78 prior to his election as an officer, the payment of dues for retired members, etc., have not been shown to have a potential impact upon Martin's, Prescott's, or other employees' wages or hours of work or any other sort of mutual aid or protection of employees. See Joanna Cotton Mills Co. v. N.L.R.B., supra. The General Counsel has the burden of establishing by substantial evidence that the activity is protected, yet no documents or other evidence were placed in the record which are demonstrative that the activity was in relation to the mutual aid or protection of employees. Similar to the analogy presented by the Administrative Law Judge in Butchers Union Local 115, without showing impact upon wages, hours, or other terms and conditions of em- ployment, the attempts of employees to consult a respon- sible authority about a chief financial officer's conduct of a corporation's affairs would not, standing alone, support the finding that Section 8(a)(1) and (3) of the Act had been violated. Since Respondent Union is considered solely as an employer, Martin and Prescott are in posi- tions similar to corporate employees. The burden of proof is similar and there has been no showing that Sec- tion 8(a)(l) or (3) has been violated. Accordingly, it is recommended that the complaint be dismissed in its en- tirety. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent has not engaged in the unfair labor practices alleged in the complaint. [Recommended Order for dismissal omitted from pub- lication.] 806