Blount Brothers Corp.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Blount Brothers Corporation and David Chilson. Case 38-CA-2855-2 June 28, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On March 10, 1977, Administrative Law Judge Nancy M. Sherman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed a brief in support of the Decision, and the Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt her recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Blount Brothers Corporation, Byron, Illinois, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing her findings. DECISION STATEMENT OF THE CASE NANCY M. SHERMAN, Administrative Law Judge: This proceeding was heard in Rockford, Illinois, on November 15 and 16, 1976, pursuant to a charge filed on August 3, 1976, and a complaint issued on September 30, 1976. The issue presented is whether Respondent Blount Brothers Corporation violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended (hereinafter called the Act), by discharging the Charging Party, David Chilson. Upon the entire record (see, infra, fn. 12), including my observation of the witnesses, and after due consideration of the briefs filed by Respondent and by counsel for the General Counsel (hereinafter called the General Counsel), I hereby make the following: 230 NLRB No. 92 FINDINGS OF FACT 1. JURISDICTION Respondent is a Delaware corporation with an office and place of business in Oregon, Illinois, where it is engaged in the business of general commercial and industrial construc- tion. During the year preceding the issuance of the complaint, a representative period, Respondent purchased goods and materials valued at more than $50,000 which were transported to its Oregon, Illinois, facility directly from States other than Illinois. I find that, as Respondent concedes, it is engaged in commerce within the meaning of the Act, and that exercise of jurisdiction over its operations will effectuate the policies of the Act. Carpenters Local No. 792, affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL- CIO, is a labor organization within the meaning of the Act. It. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent is the general contractor on the construction of a nuclear power plant in Byron, Illinois. At all times here relevant, Respondent has recognized the Union as the bargaining representative for Respondent's carpenters on that project. At the time of Chilson's allegedly unlawful discharge, Respondent employed about 350 carpenters and about 35 carpenter foremen on that job. All 385 were members of the Union. Respondent was then employing a total of about 1,000 men on the project. The uncontradicted evidence establishes that at least until later in 1975, Louis J. Nimm was a carpenter substeward at the sawshed on that job, that Chilson eventually replaced him as substeward, and that Nimm eventually became foreman over the sawshed. However, there is a conflict in the testimony about when Chilson replaced Nimm and when Nimm became foreman. Union Business Representative Henry Lewis Blais (who uses his middle name rather than his first name) testified that he told Nimm that he was going to be replaced as substeward because Blais had found out that Nimm was working as a foreman and drawing foreman's pay. If accepted, Blais' testimony as a whole about dates would indicate that he named Chilson to replace Nimm as substeward in January or February 1976. Chilson testified that he became substeward about Christmas 1975. Nimm testified that he was substeward until mid-March 1976, and became foreman about May 1, 1976. He was not asked what occasioned his loss of the substeward's position. Nimm testified that he received a raise when he became a foreman. Because Blais' recollection about dates seemed superior to Chilson's, because Nimm was in general a highly unreliable witness (see, infra, part II, F), and because Respondent failed to produce its payroll records to show when Nimm became a foreman, I conclude that 586 BLOUNT BROTHERS CORP. Chilson became a substeward in January or February 1976, and after Nimm became a foreman.1 Respondent's answer avers that Nimm was "a foreman and supervisor at some, but not all times material herein." Respondent appears to rest its limited denial of Nimm's status in this respect on Nimm's discredited testimony about the date he became a foreman. In view of the at least tacit admission in Respondent's answer that Nimm became a supervisor when he became a foreman, in view of the credited evidence that he became a foreman before Chilson became substeward, and in view of my finding, infra, that Chilson became substeward before engaging in the activity for which he was discharged under the General Counsel's theory of the case, I conclude that Nimm was a supervisor at all times material herein. Supervisor Nimm was a foreman at the form area, referred to in the record as the sawshed or sawshack. Nimm was under Elmo Elder, who was the general foreman over the sawshed area. It is undisputed that Chilson was discharged because of his activities in the sawshed area, and that Nimm played a part in the discharge decision. Elder testified, and I find, infra, that he participated in the discharge decision. Respondent's answer admits that Elder was a supervisor at all times material herein, and it is uncontradicted that he supervised Chilson. Moreover, Respondent contends that Elder reproved Chilson for some of the conduct which allegedly motivated his discharge. Accordingly, I find that supervi- sors Nimm and Elder were Respondent's agents at all material times. It is undenied that Chilson wore a badge stating that he was a carpenter steward. Chilson did not specify the date when he began to wear this badge, and General Foreman Elder could not recall when he first saw Chilson's badge. 2 I infer from the probabilities of the situation that Chilson began to wear his steward's badge shortly after becoming substeward in January or February 1976. I do not credit the testimony of Nimm, whose demeanor was extraordi- narily unpersuasive, that he did not notice Chilson's badge until about early April 1976. In this connection, I note that even accepting Nimm's testimony about dates, Chilson began to wear his steward's badge about 2 weeks after Nimm lost his substeward's position. B. Duties of "Chief Steward" ("Bull Steward") and "Job Steward" ("Substeward") On an undisclosed date between October 1975 and February 27, 1976, the Union sent Respondent a "Job Steward Organizational Chart." This chart named William T. Johnson as chief steward and paired his name with Bill Beesing, who is Respondent's project superintendent. The chart also named a number of job stewards. Paired with each individual listed as job steward was the name of an individual identified as foreman. One of these pairs consisted of Nimm (who became substeward in October 1975) and Foreman Elder. The chart further stated: I By letter dated February 27, 1976. William J. Beesing, Respondent's project superintendent, acknowledged receipt from the Union of a chart which stated that Nimm was a "job steward," meaning substeward. This chart provides no assistance in determining when Nimm left that position in view of the limited evidence about when the Union sent the chart to Respondent. See, infra, part II, B INSTRUCTIONS FOR STEWARDS ARE AS FOLLOWS: 1. JOB STEWARD: Discusses grievances with immediate foreman. If grievance is not settled reports that to Chief Steward. Check for mem- bers' dues deficiencies . .. 2. CHIEF STEWARD: Takes up grievances with representative of [Respondent] and reports that to the Business Representative. Reports any jurisdictional problems to the Business Repre- sentative. Reports any new carpenter contrac- tors to Business Representative. Reports mem- bers' dues deficiencies to Union. By letter to Business Representative Blais dated Febru- ary 27, 1976,3 Project Superintendent Beesing stated: Blount Brothers Corporation has no objection to your chart and the instructions for the stewards. Our only objection is per Article V of your agreement, the job steward has certain privileges. The only steward we recognize as having these privileges, is William T. Johnson. Article V of the contract effective during February 1976 is not in evidence. Article V of the succeeding agreement is set forth in part infra. C. Allegedly Relevant Provisions of the 1976 Bargaining Agreement and its Amendments On an undisclosed date (see infra), the Union entered into a collective-bargaining agreement, effective May i, with the Northern Illinois Building Contractors Associa- tion, Inc., acting on Respondent's behalf. The contract contained the following provisions as to the assignment of work: ARTICLE I SECTION 1: BARGAINING UNIT The bargaining unit shall be comprised of all employees engaged in the work described in Sections 5 and 6 of this Article. The territory covered by this Agreement is as described in Section 2 of this Article ... SECTION 2: TERRITORIAL SCOPE The territory or area covered by this Agreement consists of the whole of Winnebago County; the north part of Ogle County and . . . the entire county of Boone, all within the State of Illinois. SECTION 4: PERFORMANCE OF WORK BY EMPLOYEES IN BARGAINING UNIT The employees in the bargaining unit and only such employees shall perform all of the work covered by this Agreement. SECTION 5: RECOGNITION The Employer recognizes the Union as the sole and exclusive bargaining 2 There is no evidence that Elder ever saw the stewards' organizational chart approved by Beesing on February 27, 1976. 3 All dates hereafter are 1976 unless otherwise stated. 587 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative for the employees now or hereafter employed in the bargaining unit, with respect to wages, hours or [sic] work and all other terms and conditions of employment. This Agreement covers all employees in the bargaining unit, including foremen, journeymen, apprentices and helpers. The Union recognizes that the Employer has the right to plan, direct and control operations of Construc- tion projects. A procedure is set up in this contract under Article 11, Section 2, for the settlement of Grievances and in general the policy of "work now - grieve later" shall be adhered to. The Employer shall in no way be held liable for jurisdictional disputes. Work will be assigned where possible to Carpenters under the terms of this Agree- ment. The UNION agrees that it will resolve all differences with other unions over the jurisdiction of work. Copies of Jurisdiction Claims, Awards, and Agreements with other unions will be furnished to the Employer on request. SECTION 6: OCCUPATIONAL SCOPE This Agreement covers all work of all branches of the trade as set forth in the constitution of the United Brotherhood of Carpenters and Joiners of America except that work as set forth and covered under the Millwright and Heavy and Highway Agreements and includes, but is not limited to the milling, fashioning, joining, assembling, erection, fastening, or dismantling of all material of wood, plastic, metal, fiber, cork, and composition, and all other substitute materials; the manufacturing of all materials where the skill, knowledge and training of the employees are required, either through the operation of machine or hand tools; Carpenters and Joiners, Pile Drivers, Bridge, Dock and Wharf Carpenters, Divers, Underpinners, and Timberman and Core Drillers: Ship Wrights, Boat Builders and Ship Carpenters, Joiners and Caulkers, Cabinet Makers, Bench Hands, Stair Builders, Millmen, Wood and Resilient Floor Layers, and Finishers, Carpet Layers, Shinglers, Siders, Insula- tors, Acoustic and Dry Wall Applicators; Shorers and House Movers, Loggers, Lumber and Sawmill Workers, Casket and Coffin Makers; Furniture Workers, Reed and Raaton Workers, Shingle Weavers, Box Makers, Railroad Carpenters and Car Builders; and all those engaged in the operation of wood working or the machinery required in the fashioning, milling or manufacturing of products used in the trade, or engaged as helpers to any of the above divisions or sub- divisions, and the handling, erecting and installing material on any of the above divisions or sub-divisions; burning, welding, rigging and the use of any instrument or tool for layout work, incidental to the trade. When the term "Carpenter and Joiners" is used, it shall mean all the sub-divisions of the trade. Employees in the bargaining unit will perform all work assigned by the Employer. This contract shall apply to the sub-divisions of the trade in its entirety and without limitation. The parties understand that it is an impossible task to spell out in complete detail the work for the bargaining unit. Accordingly, even though specific work may not be specifically spelled out above, it will, never-the-less be considered as and treated as part of the bargaining unit work if it is traditionally work of the Carpenters. SECTION 7: MANAGEMENT RIGHTS It is understood and agreed that the direction of working forces and the right to suspend, transfer, lay off, promote, demote, or relieve employees of their duty shall be vested exclu- sively in the EMPLOYER, provided, however, that the EMPLOYER shall not use this right for the purpose of discriminating against any employee because of his membership or legitimate activities in the UNION. There shall be no limit on production by workmen nor restrictions on the full use of tools or equipment. There shall be no restriction, other than may be required by safety regulations, on the number of men assigned to any crew or to any service. In addition, the contract contained the following provi- sions regarding grievances and arbitration: SECTION 2: GRIEVANCES AND ARBITRATION A. Whenever any difference or dispute shall arise as to interpretation or application of the terms of this Agreement, such dispute or difference shall be resolved in the following order: (1) In conference between the Business Agent and the designated representative of the Employ- er, and if not satisfactorily adjusted within 48 hours, step two shall immediately be initiated. (2) In the event the dispute was not resolved, it shall then be referred to a conference between the designated committees of the Union and the Association which must meet within 48 hours after notification of the grievance. (3) Unless so resolved, the matter shall then be submitted to a Board of Five Arbitrators, who shall commence the arbitration talks within 48 hours after they have received notice of com- plaint. Two to be selected by the Union, two to be selected by the Association, and the fifth to be chosen by the four so selected. Upon the failure to so select a fifth arbitrator, the selection shall then be made in accordance with the rules and procedures of the American Arbitration Associa- tion. B. HEARING The Board of Arbitration so selected shall hear all evidence and render its decision by a majority vote based on evidence and the contract. C. DECISION The decision so rendered shall be final and binding upon both the Union and the Employer. SECTION 3: JOINT COMMITTEE The Association and the Union agree to submit to each other the names of three (3) persons to be known as a Joint Committee whose duties will be to meet and determine for clarification, items that may from time to time come into dispute. It shall also act as the Committee designated in Step 2 of the Grievance and Arbitration Clause in Article 2, Section 2 above. Also, the contract contained the following provisions relating to the Job Steward: 588 BLOUNT BROTHERS CORP. ARTICLE V Job Steward The parties agree that the following basic principles apply to the selection of a Job Steward: I. The Union requires that a Steward must fully protect the interest of the Union. 2. The EMPLOYER requires that the Steward be a carpenter who can efficiently perform his duties as a carpenter and who will not disrupt the job unnecessarily in discharging his duties as a Steward. 3. To meet the two basic principles agreed to by the parties, it is further agreed: (a) The Job Steward shall be a working carpenter. (b) The Steward shall be selected by the Business Representative of the Union. * * * (d) The Union shall have the right to replace any Steward at any time. * * (f) If there is any dispute as to any of the Sections or sub-sections of this Article, the provisions of Article II will apply. (g) No steward shall be laid off for acting in the capacity of a steward and performing the duties as outlined in paragraph 4 of this Article. 4. The duties of the Job Steward shall be to report to the Business Representative of the Union: (a) Members dues delinquencies; (b) Violations of the Collective Bargaining Agreement; (c) Carpenters employed seven (7) days or more, who have not become members of the Union; (d) Disputes and grievances of members. 4 5. He shall not have authority to: (a) Adjust violations of the Collective Bargain- ing Agreement; (b) Collect any money due the Union from any person or applicant for membership or any other person. 6. Whenever one or more carpenters are re- quired to work, one of their members shall be the ' In addition to a union-shop clause with a 7-day grace period, the contract also provides (art. I1 sec. 3), "The Union realizing its duty under the [Act and to the extent that it is the exclusive bargaining representative, recognizes that it must represent all employees in the bargaining unit equally, irrespective of membership or non-membership in the Union." regularly designated steward, or someone desig- nated by him. No steward shall be laid off unless prior notice is given to the Union. At the Byron Nuclear Power project, the chief steward was called the "bull steward" and the job stewards were called "substewards." Union Business Representative Blais testified that, as a job steward, Chilson had no right to adjust a grievance, and that his sole function was to observe a problem or violation, to try to settle it with the foreman, and, if Chilson could not settle it with the foreman, to report the matter to Blais. Article XI, section 14, of the contract as originally executed provided, "A maximum break of ten (10) minutes in duration will be allowed during the period of 9 a.m. to 11 a.m. during a regular workday. It is understood that the Employee shall take his breaks in close proximity to his working area." By agreement between Respondent and the Union's parent International, the foregoing article XI, section 14, was deleted as to the Byron Nuclear Power project and the following provision was added, "the present conditions prevailing on the job shall continue and be improved to further the harmonious relationships between the Company and the Union. It is also agreed that should the Company grant to any trade more beneficial working conditions than those now enjoyed by the Carpenters, except for those conditions now provided in the current collective-bargaining agreements, the Company will immediately grant the same conditions to the Carpen- ters." The agreement to amend recites that it was "Signed this date, April 30, 1976," whereas the contract so amended recites that it was "made and entered into as of this Ist day of May, 1976."5 Standing alone, the credible testimony of Blais (who signed the 1976 bargaining agreement), Beesing, and Nimm indicates that the amendments were executed after the 1976 bargaining agreement went into effect. Their testimony in this respect both corroborates and is corrobo- rated by Chilson's testimony, which for demeanor reasons I credit over Elder's denial, that during May and part of June 1976, Elder permitted the carpenters to take coffee- breaks in the electrical shack. During the effective period of the contract in effect before May 1976, which did not provide for a coffeebreak, carpenters on the Byron Nuclear Power project were not permitted to leave their work area to drink coffee, but were permitted to drink a cup of coffee at their workplace in the morning. Project Superintendent Beesing, General Fore- man Elder, Foreman Nimm, Union Business Representa- tive Blais, Carpenter Substeward Chilson, and rank-and- file carpenter Thore Henningson all testified that this prior practice was also followed beginning no later than some time in June 1976. D. Events Assertedly Leading to Chilson's Discharge Nimm joined the Union in 1953, and was still a member at the time of the November 1976 hearing. While I Project Superintendent Beesing testified that "1 think May of '76 [the 1976 collective-bargaining agreement I was renegotiated." 589 DECISIONS OF NATIONAL LABOR RELATIONS BOARD substeward, he had never processed any grievances. A few days after becoming substeward, Chilson saw Nimm, who by this time was a carpenter foreman, working "quite often" with a laborer in the carpenters' sawshack. Chilson reported to Carpenter Business Representative Blais that Nimm was having laborers do carpenters' work. A couple of days later, Blais went to Nimm and told him that he was frequently using laborers to do carpenters' work (namely, carrying materials from the stockpile, feeding saws, and hauling tools), and this had to stop. Nimm told Blais not to worry about it, that Nimm was a foreman up there, and that Blais should mind his own business. Nimm further said that Chilson was a troublemaker and an agitator, that he was "over here on [Nimm's] back," that Chilson was always "jumping" Nimm about laborers' doing carpenters' work and was keeping the men agitated, that Chilson had the men in a "constant uproar ... talking about work," and that if Chilson did not watch his step, Nimm would get rid of him. Blais went to the men on the job and asked if they were having any problems with Chilson. In view of Blais' testimony that he did not tell Chilson to stop agitating the men because Blais did not think Chilson had been doing this, I infer that the employees told Blais that they were not having any problems with Chilson. A few days later, and thereafter in June, Nimm again told Blais that Chilson was "agitating the men." About July 23, when Blais came to the jobsite, Chilson told him that there were still some instances where laborers were doing carpenters' work. Blais told Chilson to try to get it stopped. Then, Blais told Nimm that Blais was still getting reports that there were laborers doing some carpenters' work, like feeding the saw. Nimm said not to worry about this, he would take care of it. After Blais left the project, Chilson saw Nimm working with a laborer called "Gerald." Gerald was hauling 2 by 4's to the saw and laying them on the bench. After Nimm had guided them into the saw and cut them into short pieces, Gerald would haul them outside into the pile. Chilson and Blais credibly testified to a belief that the work being performed by Gerald was carpenters' work. About an hour and a half later, Chilson went to Nimm and told him "that he would have to kind of cool it a little bit because there was a lot of complaint about him working with the laborer." Nimm said nothing, but "just kind of looked at [Chilson] and slowed up and went right back to work." About a half hour later, Gerald and Nimm together hauled a piece of plywood to the saw bench and put it on the bench. Then, Gerald turned the saw on and he and Nimm guided the plywood through the saw. Chilson and Blais credibly testified to a belief that this was normally carpenters' work. Upon seeing this incident, Chilson went to Nimm and, in Gerald's presence, said that Chilson had just spoken to him, and this was going to have to stop or Chilson would have to report it to Blais, "there would be trouble." Nimm said nothing, but just looked at Chilson. A little later, according to Chilson's uncontradicted and credited testimony, he saw Nimm going into General Foreman Elder's office. Thereafter, Elder called Chilson into the sawshack and said that "there was enough of this R This finding is based on Chilson's credited testimony. Elder testified, in effect, that any such conversation occurred where Chilson was working, but Elder could not recall what was said. piddly ass argument going on around here," to which Chilson replied that Nimm "had a laborer doing carpen- ters' work, and it had to stop." 6 Chilson credibly testified that this incident occurred about a week before he was fired; Elder testified that he and Nimm decided about a week before Chilson's discharge that he would be dis- charged "if he didn't straighten out;" and Nimm testified (see infra) that Chilson's discharge was decided on a week before it was effected. This testimony aside, there is no direct evidence about the content of the Nimm-Elder conversation in Elder's office. The following Monday, July 28, at a weekly safety meeting with laborers and carpenters, Elder admittedly stated that he did not like Chilson's "piddly ass arguing going on," referring to Chilson's complaints about laborers' doing carpenters' work. Nimm testified that, the latter part of July, he told Blais that in 1 week Nimm was going to fire Chilson because "he was causing too much commotion" (by which, Nimm meant that Chilson was agitating the men) and "he was using too much coffee break and he is hurting the other men by doing it." Still according to Nimm, after he rejected Blais' protests, Blais said that he would try to get Chilson transferred to "the hole" (that is, the excavation area), and Nimm said "okay." Elder testified that the latter half of July, Blais told Elder that "Blais" [sic] was about to fire Chilson, and asked Elder to transfer Chilson to "the hole," to which Elder, who had no jurisdiction over "the hole," replied that it was "all right with" him but "You have got to go down and do that yourself." Beesing testified that in July 1976, Blais told him that there was a personality conflict between Chilson and Elder, and asked Beesing to transfer Chilson to "the hole." Still according to Beesing, he checked with Elder and Nimm and found that they had "nothing but trouble" with Chilson-more specifically, that he "continually seemed to think he could sit down and have a coffeebreak even though he had been told on numerous occasions that that was not the policy. He agitated the personnel around the sawmill by going to the men continually and saying, 'Hey, you shouldn't be doing that, and you should be doing this.' ... that is not his job. Even if he was a steward, if he sees that going on, he should go to the foreman and have the foreman straighten it out." When asked whether Blais could have asked Beesing to transfer Chilson to another job, Blais testified, "I don't know. I don't recall it." When further asked whether he asked Beesing to transfer Chilson because he had a personality conflict with Elder, Blais replied, "I don't think I ever made a statement like that." Also, Blais testified that Nimm never told him that Chilson was taking coffee- breaks, and that Blais understood Nimm's reference at various times to Chilson's "agitating the men" as referring to other people doing carpenters' work. I discredit the testimony of Nimm, Elder, and Beesing that Blais tried to procure Chilson's transfer. In so finding, I rely on the witnesses' demeanor, and on the improbability that Blais would have tendered Beesing the explanation of a Chilson- Elder personality conflict if the discharge threat had come from Nimm and was based at least partly on Chilson's 590 BLOUNT BROTHERS CORP. steward activities encouraged by Blais. In any event, for the reasons set forth infra, the result herein would be the same accepting the foregoing testimony by Respondent's witnesses. E. Chilson's Discharge On Friday, July 30, Chilson reported to work as usual. That morning, he worked with two other carpenters, Henningson and Edmond Helsten. That morning, Hen- ningson took a "coffee break" while the other two worked. Henningson was not reprimanded for it. Then, at about 10 a.m., Chilson took a "coffee break" while the other two worked. General Foreman Elder saw Chilson taking his break, but said nothing. After Chilson finished his "coffee break," Helsten took his "coffee break" while the other two worked. So far as the record shows, management said nothing to Helsten about the matter. Chilson testified to the following effect: He continued to work until 3 p.m. that day, an hour and a half before quitting time. Then, Nimm came running out of the sawshack jumping up and down yelling, "You are fired, you are fired, you are fired." Chilson said that Nimm could not fire him because Nimm was a carpenter who worked with his tools, and was not a foreman. General Foreman Elder then came over and said that Chilson was fired. Chilson asked why. Elder said that Chilson "was sitting down taking a coffee break and . . . was agitating the men." Chilson asked what he meant by "agitating the men." Elder replied, "just what I said, get your check." Chilson then got Chief Steward Hunter, who asked Nimm and Elder why Chilson had been fired. Nimm and Elder replied that Chilson "had coffee breaks and ... was agitating the troops." Nimm testified on direct examination that he walked up to Chilson, gave him his check, and said he was fired. Still, according to Nimm, Chilson said that Nimm could not fire him because Nimm was not a foreman, and Nimm said he was because "under the contract you have a working foreman." On cross-examination, Nimm gave internally inconsistent testimony about when Elder found out about Chilson's discharge; and, in addition, testified that after Nimm discharged Chilson, Elder told Chilson to turn in his equipment so he could get his check-which Nimm had already given him, according to Nimm's direct testimony.7 Elder was not asked about either the termination interview or any alleged subsequent contact with Chilson. In view of the internal inconsistencies in Nimm's testimony, Elder's failure to corroborate him, and demeanor considerations, I 7 Nimm's testimony was as follows: JUDGE SHERMAN: You testified, did I understand you to say, that both you and Mr. Elder knew at the same time about Mr. Chilson's discharge? THE WITNESS: Yes. JUDGE SHERMAN: What is the basis for your statement that Mr. Elder knew? THE WitNESS: Well, he wanted to go back-went up and arranged it to have the time--I told him I wanted him fired. And he went up to tell him to go get his-turn his equipment in and stuff so he could get his check. JUDGE SHERMAN: Did this occur before or after you told Mr. Chilson he was fired? THE VWilNEss: After I told him-after that. discredit the testimony of Nimm summarized in this paragraph, and credit Chilson's testimony summarized in the preceding paragraph. After being fired, Chilson went to Blais' office that same day. A day or two later, Blais went to Nimm and asked why Chilson had been fired. Nimm replied that Chilson was an "agitator," that he was "sitting around taking coffee breaks and agitating the men," and that there was nothing Nimm could do about his discharge.s Then, Blais went to Project Superintendent Beesing, who said he would check into Chilson's discharge. Later, about 4 days after Chilson's discharge, Beesing told Blais that Chilson "was agitating the men in the area, and that was it." Beesing said nothing about coffeebreaks. General Foreman Elder (a union member for 34 years) testified that on an undisclosed date after Chilson's discharge he prepared, and turned in to his superiors, a termination slip stating that Chilson had been discharged for sitting down taking 10-minute coffeebreaks and for continually agitating the men.9 This slip was not produced, nor was its absence explained. On or before August 16, after talking to Elder and Nimm,l ° Project Superintendent Beesing filled in a form letter to the Union asserting that Chilson had been terminated for "Sitting down, taking 10- minute coffee breaks, continually agitating the men," and that he was not eligible for rehire by Respondent at the Byron Power project. This letter was sent to the Union on August 16. When asked on cross-examination whether there was a "jurisdictional problem at the saw shed," Blais testified, "Yes, continually." Between January and November 1976, Blais filed several written grievances which did not specifically refer to the sawshed but which, in his opinion, involved matters encompassing or related to the sawshed problem.t l On each such occasion, after Blais initiated the first step of the grievance-arbitration procedure, the matter "would straighten itself out for a while." Blais tried to work out these problems with the employees and management representatives working in the area. He did not think that taking these matters to arbitration would do any good, and he never did so. Nor did Blais ever talk to Elder, Beesing, or Project Manager Charlie Smith about the laborers' conduct in performing the alleged carpenters' work of carrying materials from the stockpile, feeding the saws, and hauling tools around, because Blais thought the problem would "resolve itself, with a little work." The Carpenters filed what Project Superintendent Bees- ing described as "numerous" written grievances at the Byron Nuclear project, including 12 in June and part of 8 This finding is based on Blais' testimony on direct examination. I do not accept his denial on redirect examination that Nimm mentioned coffeebreaks. Nimm was not asked about this conversation. 9 Elder testified that he guessed he used the "wrong word" in using the term "agitating the men." He testified that, by this language, he meant that, while Chilson was supposed to be working, he engaged in conversations, which Elder could not hear, with other employees as they went by. For the reasons stated, infra, I do not credit Elder's testimony about Chilson's conduct in this respect. o1 This finding is based on Beesing's testimony. For demeanor reasons and in view of the probabilities of the situation, I do not credit Nimm's denial. " My finding in this sentence is based on a composite of the testimony of Blais and Beesing. 591 DECISIONS OF NATIONAL LABOR RELATIONS BOARD July. Two of these grievances went beyond the first step of the formal contractual procedure. One of them was considered by the joint committee (established by art. II, sec. 3) under step 2 (art. I1, sec. 2A (2)). The Union lost at this level, and took the matter no further. The other grievance involved "retribution against three men." It was submitted to "voluntary arbitration" which was directed or suggested by court, and by which both the Union and Respondent had agreed to be bound. The Union won, but Respondent did not carry out the arbitrator's award. F. Evidence Bearing on Respondent's Explanations for Chilson's Discharge I. Evidence relating to laborers' performance of carpenters' work and vice versa Respondent argues in its brief: Chilson was discharged for the following conduct: he continually ordered carpenter employees to carry lumber from a stock pile located more than 80 feet from the carpenter's work site. Chilson would holler at the carpenter employees and his involvement in this jurisdictional dispute held up work operations. Elmo Elder, the general foreman at the saw shed, warned Chilson that he should not talk to the men about this, but should report to [Nimm] or Elder if he had a problem [cf., infra, fn. 16]. Chilson disregarded these warnings and continued to order the carpenters to carry the material through a time period four days before his discharge. Chilson himself testified that he did tell carpenter employees that they should be carrying lumber rather than the laborers. Chilson's orders contradicting the orders of Elder and [Nimm] and the established job practice on carrying of lumber resulted in two carpenter employees complaining to [Nimm ] that they were fed up and tired of being picked on by Chilson with orders to carry heavy material. The men threatened to quit and one of the men went into the hospital for treatment of ulcers. [Nimml thought that the hospitalization resulted from Chilson's coun- termanding orders. Respondent's brief contains the following purported summary of the evidence relating to Respondent's allega- tions regarding Chilson's alleged orders that carpenters carry lumber: [Nimm] testified that in the early part of June Chilson ordered two carpenters to carry lumber from a stock pile 80 feet away to their place of work. (R. 113- 114). The two individuals who were so ordered by Chilson came to [Nimm] and reportedly were all shook up and wanted to quit (R. 113). The men, both in their sixties, felt that they were being picked on by Chilson with his orders to carry heavy material (R. 113, 120). [Nimm] told the two men that it was laborers' work to carry the material up to 15 feet away from the 12 The official transcript at this point gives the distance as "50" feet. In giving the figure "15." Respondent's brief relies on this portion of the transcript without pointing to the discrepancy or expressly seeking to amend carpenters (R. 114). Shortly after this incident, one of the men went into the hospital for treatment of ulcers and [Nimm] thought the hospitalization resulted from Chilson's directions to the man (R. 113). However, Nimm initially testified that Chilson went to two carpenters, John Basino and Carl Grafstrom, and "told them that they had to quit carrying lumber from that stack way over there, that was 80 feet away. .... He told them 3, 4 times. The poor guys got all shook up and they come in and wanted to quit and said they couldn't put up with this being picked on [emphasis supplied ]." Later, Nimm gave a different version of Chilson's alleged instructions; namely, that he "was on [Basino] all the time and [Chilson] made him carry this lumber from 80 feet away [emphasis supplied]." After that, Nimm gave testimony which twice altered in midstream as to Chilson's alleged instructions: "around the first of June .. [Basino and Grafstrom] said that he got on them and told them that they can't carry that stuff, that the laborers can't carry that stuff, that they had to carry it from 80feet away and that if they didn't do it they would get in trouble. .... I told the boys to go ahead and carry it. That is our work, beyond [15] feet is carpenter's work [emphasis supplied]. " 12 Still later, Nimm testified that carpenter employees complained to him that Chilson had "got on them for carrying that lumber and told them they wasn't supposed to do it" and that the laborers, too, complained about Chilson's conduct in this respect. After that, Nimm testified that carpenters Basino and Grafstrom had to bring the wood 80 feet, and that "over 15 feet is brought in by laborers . . . carpenters bring everything in within 15 feet." Also, Nimm initially testified to an opinion that Basino got ulcers because of orders from Chilson to quit hauling lumber from 80 feet away, and never attributed Basino's ulcers to any "countermanding orders" from Chilson. Additionally, Nimm initially testified that Chilson made certain alleged statements (about carrying lumber) to Basino and Grafstrom in early June and two or three times thereafter; then that Chilson "kept constantly on those two men.... That happened all the way through.... From the time he was fired all the way through"; and then that 3 or 4 days before Chilson's discharge (I) he "got on the men"; (2) Basino was in the hospital, and Chilson "got on" Grafstrom only; and (3) "the boys came up and said they was fed up. They were tired of being picked on with the-carrying all the heavy material and they were 60 years old." Moreover, Nimm denied telling Chilson at this time that he had to "knock it off." In view of the internal inconsistencies and improba- bilities in Nimm's testimony and demeanor considerations, I discredit his testimony that Chilson issued orders to Basino and Grafstrom in connection with carrying lumber from a pile more than 80 feet away, and that Nimm received employee complaints about such orders. Rather, I credit Chilson's testimony that on one and only one occasion he told one other carpenter, Chilson's partner, that laborers were doing carrying work that should be done by carpenters; that the materials then being carried were the transcript. However, the General Counsel also understood Nimm as saying "15" rather than "50," as did I. 592 BLOUNT BROTHERS CORP. close enough to make carrying them carpenters' work; and that "this was nothing that I really was going to follow up." Moreover, Chilson credibly answered "No" to the ques- tion, "But you know that both Elder and [Nimm] had told the carpenters it wasn't their work, it was the laborer's work, didn't you?" nor is there any evidence that Elder or Nimm ever made any such statement. In support of the allegation in Respondent's brief that Chilson "would holler at the carpenter employees and his involvement in this jurisdictional dispute held up work operations," Respondent relies on portions of Nimm's testimony which establish that he could not hear what these alleged conversations were about.13 2. Evidence relating to Chilson's drinking coffee on the job Nimm testified, in effect, that he discharged Chilson partly because he took overly long "coffee breaks" on various occasions, including the day he was fired. How- ever, Nimm's testimony varied about how often he had seen Chilson take overly long "coffee breaks," what Nimm said to Chilson about the matter, and how long a "coffee break" Chilson took on the day he was fired. Thus, Nimm initially testified on direct examination, "I warned him 3 times that there is going to be trouble" if he kept on taking such a long "coffee break." Then, Nimm testified that he "warned [Chilson] the day of the firing and 2, 3 times before that." Still later on direct examination, Nimm testified that Chilson took a 15-minute coffeebreak the day he was fired, and further stated that one of Chilson's overly long coffeebreaks was "20 minutes, and timing it, and one of them was 15 minutes and two of them was 12 minutes, that I know of. But I don't know how many other times." Also, Nimm testified that on those occasions, "I told him if he didn't cut it out, he wasn't [sic] going to get in trouble. He was going to hurt it for the rest of the guys." However, on cross-examination, Nimm testified that on July 30, upon seeing Chilson drinking coffee "in the blue trailer," Nimm merely told him that he had taken a long enough coffeebreak, and did not tell him that Nimm was going to fire him over it. Moreover, after complying with the General Counsel's request to read Beesing's August 16 letter to the Union, which letter stated that Chilson had been discharged for (inter alia) "taking a 10 minute coffee break," Nimm testified that Chilson's coffeebreak that morning was only 10 minutes. Elder testified that on the morning of July 30 he saw Chilson sitting down and drinking coffee for 15 minutes at a location which Elder did not describe. However, Elder further testified that he entered "10 minutes" on the termination slip which he allegedly turned in. Moreover, when asked whether he had any conversations with Chilson that day, Elder testified, "Not particularly," thus corroborating Chilson's testimony that Elder saw him drinking coffee that morning but said nothing. 13 Other aspects of this testimony by Nimm are considered infra. 14 Elder testified to a policy of "Coffee, yes, but no breaks." When asked whether he remembered any conversations with anyone under his jurisdic- tion about a 10-minute coffeebreak. he said, specifically including Chilson. "everyone under my jurisdiction knew that there was no such thing as a 10 In view of these inconsistencies in Nimm's and Elder's testimony and demeanor considerations, I do not credit the foregoing testimony by Nimm regarding the number and length of any overly long coffeebreaks by Chilson, the length and location of Chilson's July 30 coffeebreak, or Nimm's warnings to Chilson about the matter. Nor do I credit Elder's testimony regarding the length of Chilson's July 30 coffeebreak. Rather, I credit Chilson's testimony that, in effect, Nimm never talked to him about taking coffeebreaks, and that on July 30, Nimm did not approach him before firing him. Further, I credit Chilson's testimony that, on July 30, he used about 8 minutes to drink his coffee; that he drank it in a shady spot, on a bench in front of the blue trailer, in the area where he was working; and that he drank it with the labor foreman. Chilson credibly testified that on three or four occasions, whose dates he did not give, Elder told him to keep his coffeebreaks under 10 minutes.t 4 Still according to Chil- son's credible testimony, on one of these occasions Elder also told him that he had taken more than 10 minutes. Chilson credibly testified to a belief that he had not exceeded 10 minutes. I infer that any excess was insubstan- tial. Elder credibly testified that when Chilson first started to work on the project, in August-October 1975, Elder told him about "staggered coffee." Elder further credibly testified that he talked to Chilson "several different times about that coffeebreak in '75, which I did all the boys on the job along with the rest of them," referring to overly long coffeebreaks. Elder did not testify to any 1976 conversations with Chilson about coffeebreaks.15 Elder further testified that he had to warn "every employee we had" about overly long coffeebreaks, and he had to remind "most of all of them several different times." Also, Elder testified that Chilson took longer coffee- breaks than any other employee. I do not credit his testimony in this respect, for demeanor reasons and in view of his failure (see, supra, fn. 15) to testify that he reproached Chilson for overly long coffeebreaks at any time in 1976, Chilson having been discharged on July 30 of that year. In 1975, a complete crew of ironworkers was terminated from the project because of taking a coffeebreak. Laborers have also been terminated for that reason. Laying Chilson to one side, at least six carpenters were fired from the project prior to the November 1976 hearing for taking coffeebreaks. Four of these were discharged "at one lick" about mid-October, 2-1/2 months after Chilson's dis- charge. At least some of the others were fired after Chilson. Between January 1976 and the end of July 1976, Respon- dent and the Union had several discussions, but not arbitrations, with respect to coffeebreaks. Nimm testified that he discharged Chilson partly because, "more than 24 times," when taking a coffeebreak Chilson tried to congregate other employees around him. According to Nimm, on that day Chilson was discharged, while taking his coffeebreak in the blue trailer he called several other employees to talk to them. However, Elder minute coffee break. I put their minds to that quite often." To the extent that such testimony contradicts Chilson's, for demeanor reasons I credit Chilson. i' When asked whether he talked to Chilson about coffeebreaks in June or July 1976, Elder replied, "I don't know whether I did or not." 593 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that Chilson engaged in such conduct "Right where he was working.... He was supposed to be working." Nimm testified that he attempted to break up those meetings by walking up and saying, "let's go boys." This testimony aside, there is no evidence that Chilson or any of the other participants were ever reproved for such conduct. In view of the inconsistency between Nimm's and Elder's testimony regarding such conduct, the absence of evidence that Chilson or anyone else was reproved for it, and the absence of evidence that prior to the hearing Respondent ascribed Chilson's discharge thereto, I discred- it Nimm's and Elder's testimony about these alleged incidents. G. Analysis and Conclusions Chilson became a substeward on the Byron Nuclear job in January or February 1976, and began to wear a steward's badge shortly thereafter. Shortly after becoming substeward, Chilson saw Carpenter Foreman Nimm working "quite often" with a laborer in the carpenters' sawshack. Chilson reported to Carpenter Business Repre- sentative Blais that Nimm was having laborers do carpen- ters' work. A day or two later, Blais told Nimm that he was frequently using laborers to do carpenters' work, and this had to stop. Nimm told Blais not to worry about it, that Nimm was a foreman up there, and that Blais should mind his own business. Nimm further said that Chilson was a troublemaker and an agitator, that he was "on [Nimm's] back," that Chilson was always "jumping" Nimm about laborers doing carpenters' work and was keeping the men agitated, that Chilson had the men in a "constant uproar . . . talking about work," and that if Chilson did not watch his step, Nimm would get rid of him. A few days later, and thereafter in June, Nimm again told Blais that Chilson was "agitating the men." About July 23, when Blais came to the jobsite, Chilson told him that there was still some instances where laborers were doing carpenters' work. Blais told Chilson to try to get it stopped. Then, Blais told Nimm that Blais was still getting reports that there were laborers doing some carpenters' work, like feeding the saw. Nimm said not to worry about this. After Blais left the project, Chilson saw Nimm sawing wood which was being brought to and from the saw bench by laborer Gerald. Chilson and Blais thought the kind of work being performed by Gerald was carpenters' work. Chilson then went to Nimm and told him "that he would have to kind of cool it a little bit because there was a lot of complaint about his working with the laborer." Nimm said nothing, but "just kind of looked at [Chilson] and slowed up and went right back to work." About a half hour later, Nimm and Gerald together hauled a piece of wood to the sawbench and, after Gerald turned on the saw, together guided the wood through the saw. Upon seeing this incident, Chilson went to Nimm and said that Chilson had just spoken to him, and this was going to have to stop or Chilson would have to report it to Blais, "there would be trouble." Nimm said nothing, but just looked at Chilson. A little later, Nimm went into Elder's office. Then, Elder told Chilson that "there was enough of this piddly ass argument going on" and Chilson replied that Nimm had to stop having a laborer doing carpenters' work. Inferentially, during this conference Nimm and Elder decided to discharge Chilson the following week. On the following Monday, July 28, at a weekly safety meeting with laborers and carpenters, Elder stated that he did not like Chilson's "piddly ass arguing going on," referring to Chilson's complaints about laborers doing carpenters' work. On the morning of July 30, Chilson worked with two other carpenters, Henningson and Helsten. While the other two worked, Henningson took a coffeebreak without being reprimanded for it. Then, while the other two worked, Chilson took an 8-minute coffeebreak with the labor foreman, both of whom sat on a bench in front of the blue trailer in the area where Chilson was working. Elder saw Chilson taking his break, but said nothing. After Chilson finished his coffeebreak, Helsten took his break while the other two worked. So far as the record shows, management said nothing to Helsten about the matter. Chilson took his coffeebreak about 10 a.m About 3 p.m., that day, an hour and a half before quitting time, Nimm came out of the sawshack jumping up and down yelling, "You are fired, you are fired, you are fired," referring to Chilson. Chilson said that Nimm had no power to fire him. Then, General Foreman Elder told Chilson that he was fired. Chilson asked why. Elder said that Chilson "was sitting down taking a coffee break and ... was agitating the men." Chilson asked what he meant by "agitating the men." Elder replied, "just what I said, get your check." Later, in response to Chief Steward Hunter's inquiry about why Chilson had been fired, Nimm and Elder replied that Chilson "had coffee breaks and . . . was agitating the troops." A day or two after Chilson's discharge, Nimm told Blais that Chilson had been discharged because he was an "agitator," that he was "sitting around taking coffee breaks and agitating the men." A day or two later, after obtaining time to check into Chilson's discharge, Project Superinten- dent Beesing, without mentioning coffeebreaks, told Blais that Chilson had been discharged because he "was agitating the men in the area." On an undisclosed date after Chilson's discharge, Elder prepared, and turned in to his superiors, a termination slip which was not produced, but which allegedly stated that Chilson had been dis- charged for sitting down taking 10-minute coffeebreaks and for continually agitating the men. On or before August 16, after talking to Elder and Nimm, Project Superinten- dent Beesing filled in a form letter to the Union asserting that Chilson had been terminated for "Sitting down, taking 10 minute coffee breaks, continually agitating the men." The foregoing credited evidence strongly points to the conclusion that Respondent discharged Chilson at least in part because of Chilson's complaints to Nimm, both directly and through Blais, that laborers were doing carpenters' work. This conclusion gains further support from Elder's testimony that he did not like Chilson's conduct in allegedly talking during work time to certain carpenters (rather than to Nimm or Elder) about laborers doing carpenters' work, and from Beesing's testimony that Elder and Nimm told him they had "nothing but trouble" with Chilson in that, inter alia, "He agitated the personnel around the sawmill by going to the men continually and saying, 'Hey, you shouldn't be doing that, and you should 594 BLOUNT BROTHERS CORP. be doing this.' . .. Even if he was a steward, if he sees that going on, he should go to the foreman and have the foreman straighten it out." It is true that Elder's and Beesing's testimony in this respect was directed to Chilson's alleged improper attempt to involve rank-and-file employees in activities related to work assignment matters, and that both Elder and Beesing conceded Chilson's right to make work-assignment complaints to Elder or Nimm. However, the credited evidence establishes that Chilson did not in fact thus attempt to implicate his fellow employees but, instead, that he merely attempted to resolve the work assignment matter by complaining to Nimm, directly or through Blais, and to Elder. Accordingly, as to the propriety of Respondent's motives for discharging Chilson, the foregoing testimony by Elder and Beesing is the legal equivalent of testimony directed to Chilson's sole actual activity of complaints to Nimm and Elder. N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21 (1964).'16 Respondent does not appear to contend, nor would such a contention have merit, that Chilson engaged in improper conduct in the course of Section 7 activity by once remarking to one fellow carpenter, while they were working as partners and without any attempt to follow up on the matter, that laborers were doing carpenters' work. Accordingly, I need not and do not discuss the extent of any right Chilson may have had to direct carpenters to do carpenters' work but not laborers' work and laborers not to do carpenters' work, in view of the contractual provisions relating to work assignments, to job stewards' rights and duties, and to the grievance-arbitration procedure, and in further view of the parties' prior exchange regarding substewards' rights and duties. Cf. Stop & Shop, Inc., 161 NLRB 75 (1966), affd. sub norm Gary A. Machaby, 377 F.2d 59 (C.A. 1, 1967); Pathe Laboratories, Inc., 141 NLRB 1290 (1963); Newspaper Printing Corporation, 221 NLRB 811, 824-825 (1976). I have previously found unworthy of belief most of the evidence on which Respondent's brief bases its contention that Chilson was not engaged in conduct protected by Section 7 of the Act when he complained about laborers doing carpenters' work. At the hearing, Respondent's counsel seemed to be suggesting that Chilson's complaints were unprotected because their subject matter allegedly excluded them from the contractual grievance-arbitration procedure. I regard any such contention as unmeritorious. As Respondent does not appear to dispute, Section 7's protection of a steward's grievance activity is not limited to the presentation of grievances which are in fact meritori- ous. Rather, such protection extends to the presentation of grievances which the steward believes in good faith to be meritorious, at least where such a belief is reasonable.' 7 In the instant case, Chilson credibly testified to a belief that the work performed by laborer Gerald was carpenters' i' In any event, Elder did not testify, as Respondent's brief may imply (supra, part II, F, I), that his remarks to Chilson were prompted by any orders by Chilson directing carpenters to carry lumber from more than 80 feet away, or by any hollering by Chilson at carpenter employees. Rather, Elder testified that his remarks to Chilson about complaining to Elder and Nimm rather than to employees were prompted by reports to Elder by "different ones" that Chilson was talking to certain carpenters, during working hours, about laborers doing carpenters' work. i? Tan-Tar-A Resort, 198 NLRB 1104. 1109 (1972); Diversified Industries, a Division of Independeni Stave Company, 208 NLRB 223. 238 (1974); Quality Manufacturing Company, 195 NLRB 197 (1972) (Cochran), enfd. in material work, and I perceive no reason to question the sincerity of Chilson's prior complaints that laborers were performing carpenters' work. Further, I regard such complaints as having a reasonable basis.18 Thus, Project Superintendent Beesing testified that Blais brought Respondent a copy of a 1965 agreement between the Carpenters' International and the Laborers' International which provided, inter alia, "The moving from one stockpile to another stockpile for convenience sake or near the point of installation, shall be the work of the Laborers. The locations of stockpiles shall not exceed 30 feet apart. Carpenters will not be required to go over 15 feet to obtain his material." According to Beesing, after inspecting this agreement and conferring with the two Internationals, "we started having the carpenters only go 15 feet from their workplace to pick up material. And the laborers took it to that point and stopped." Similarly, Nimm testified at one point that moving material to the sawshack from less than 15 feet was carpenters' work. Furthermore, Beesing tacitly conceded that using the saw to cut wood was carpenters' work. Moreover, there is no evidence that any representative or member of the Laborers' Union ever told anyone that laborers were entitled to perform any of the tasks whose performance by them was protested by Chilson. Also, taken as a whole, article I of the bargaining agreement at least arguably constitutes an undertaking by Respondent to assign carpenters' work to carpenters alone. Particularly supportive of this position are the provisions, "The employees in the bargaining unit and only such employees shall perform all of the work covered by this Agreement .... Work will be assigned where possible to Carpenters under the terms of this Agreement . . . even though specific work may not be specifically spelled out above, it will, nevertheless be considered as part of the bargaining unit work if it is traditionally work of the Carpenters." This reading of the contract gains further support from Beesing's testimony that Respondent "probably could" change a "gross mis-assignment" of work without consult- ing the Internationals involved.'9 This same testimony by Beesing undermines any conten- tion that work assignments of the kind complained of by Chilson could not reasonably be regarded as cognizable under the contractual grievance-arbitration procedure because of the contractual provision, "The Employer shall in no way be held liable for jurisdictional disputes," and the reference in the formal grievance-arbitration procedure to "any difference or dispute . .. as to interpretation or application of this Agreement."20 At least, arguably, such provisions should be read in light of the very detailed contractual recitation of the bargaining unit's "occupation- al scope" and the article I provisions quoted in the preceding paragraph. It could reasonably be urged that at part 481 F.2d 1018 (C.A. 4), remanded with instructions to enforce in full 420 U.S. 276. "A Accordingly. I find it unnecessary to consider whether a steward engages in Sec. 7 activity when he raises grievances which he in good faith but unreasonably believes to be meritorious. 19 Similarly, Blais credibly testified to a belief that Respondent could of its own volition accede to the Carpenters' desire to switch work from the laborers to the carpenters, if the assignment to the laborers violated a specific agreement between the International affiliates of the two locals. 20 However, the contract elsewhere describes this procedure as directed to "the settlement of Grievances." 595 DECISIONS OF NATIONAL LABOR RELATIONS BOARD least absent evidence that the Laborers' Union is affirma- tively contending that a particular task should be done by laborers, Respondent engages in a grievable breach of its contract with the Carpenters by taking the initiative in assigning to laborers a task which constitutes work specified in the Carpenter contract, work traditionally performed by carpenters, or work given to carpenters by a Carpenters-Laborers agreement. Further, at least arguably, stewards are not limited to complaining about matters cognizable under the formal grievance-arbitration procedure. Rather, the stewards' duties as specified in the bargaining agreement include reporting not only "Violations of the ... Agreement," but also "Disputes and grievances." Moreover, the February 1976 letter agreement between Respondent and the Union affords the substeward the right to discuss "grievances" with the immediate foreman. Finally, even assuming that neither the bargaining agreement nor the February 1976 letter agreement affords substewards the right to complain that laborers were doing carpenters' work, this circum- stance would not effect a waiver of Chilson's statutory right, as an employee, to make a good-faith complaint that such conduct violated the bargaining agreement or was otherwise depriving carpenters of work that was rightfully theirs.21 For the foregoing reasons, I find that Chilson's com- plaints to Nimm and Elder about laborers' doing carpen- ters' work constituted union activity protected by Section 7 of the Act. Accordingly, his discharge therefor violated Section 8(a)(3) and (1). As previously noted, I have discredited testimony which would tend to show as follows: Nimm told Blais that Nimm intended to discharge Chilson for reasons which, in context, meant Chilson's Section 7 protected complaints that laborers were doing carpenters' work. Blais then said that he would try to forestall Chilson's discharge by getting Chilson transferred to a job outside Nimm's jurisdiction, and Nimm said "okay." However, Beesing refused the transfer, although apprised by Blais that it was requested to protect Chilson's job status, owing to statements by Nimm and Elder that they had had "nothing but trouble" from Chilson because, inter alia, he "agitated the personnel by telling them who should do what job," and "even if [Chilson] was a steward," he should have gone to the foreman instead. If credited (as it has not been), such testimony would independently show that Chilson's dis- charge was unlawful. For reasons previously stated, Beesing's testimony about why he refused to transfer Chilson is the legal equivalent of testimony that Beesing refused because of Chilson's Section 7 protected conduct in complaining about laborers doing carpenters' work. Burnup & Sims, supra, 379 U.S. 21. Furthermore, Beesing must have suspected that Blais was asking for the transfer in order to keep Chilson from losing his job. Accordingly, in consequence of Chilson's Section 7 conduct, Beesing knowingly left Chilson exposed to Nimm's imminent discharge action. Moreover, Beesing must have suspected 2' Ben Pekin Corporation, 181 NLRB 1025 (1970), enfd. 452 F.2d 205 (C.A. 7); Murphy Diesel Co. v. N.LR.B., 454 F.2d 303, 307 (C.A. 7); Tan- Tar-A Resort, supra, 198 NLRB at 1109; Allelulia Cushion Co., Inc., 221 NLRB 999 (1976): Sandpiper Builders, 152 NLRB 796 (1965); H. O. Seiffert Co., 199 NLRB 960, 966-967 (1972), enfd. 86 LRRM 2152, 75 LC 1110,568 that this discharge action would be based partly on Chilson's activity as a substeward, in view of Blais' reference to a "personality conflict" with Elder, Nimm's jurisdiction over Chilson, and Elder's and Nimm's state- ment that they had had "nothing but trouble" with Chilson because of, inter alia, conduct related to his capacity as substeward. In any event, I find that Respondent was chargeable with Nimm's motives for the prospective discharge which Beesing was, in effect, refusing to forestall.22 In short, if credited, this testimony would show that in consequence of the very Section 7 activity which caused his unlawful discharge on July 30, Chilson was denied a July 23 transfer which would have forestalled that discharge. Respondent's brief contends that Chilson was discharged partly because of his coffeebreak practices. I do not think that such practices were a real reason for his discharge. Thus, both Elder and Nimm testified that at least a tentative decision to discharge Chilson was made about July 23, 1976, and there is no credible evidence that management said anything to Chilson in 1976 about his coffeebreak practices until the day of his discharge on July 30. Furthermore, General Foreman Elder said nothing about Chilson's July 30 coffeebreak when Elder saw him taking it, and Chilson was not discharged until about 5 hours after taking it. Moreover, Elder admittedly had to warn all the employees, most of them repeatedly, about overly long coffeebreaks. Also, so far as the credible evidence shows, during his at least 9 months on the job Chilson had taken, at most, one overly long coffeebreak. Further, so far as the record shows, nothing was said to the two other sawshack carpenters who took coffeebreaks that morning. In addition, Beesing said nothing about Chilson's coffeebreaks when about 4 days after the discharge and after obtaining a chance to check on it, Beesing gave reasons therefor to Blais. Although Chilson's sitting down during his break was mentioned in Beesing's August 16 letter to Blais about Chilson's discharge, and was allegedly mentioned in Elder's unproduced termination slip, Nimm's testimony did not allude to this circumstance as a reason for the discharge until the General Counsel, on cross- examination, showed Nimm Beesing's August 16 letter. In any event, the fact that Chilson was discharged at least partly because of his protected union activity renders his discharge unlawful even assuming he was also discharged partly because of his coffeebreak practices. Dilene Answer- ing Service, Inc., 222 NLRB 462 (1976); N.LR.B. v. Tom Wood Pontiac, Inc., 447 F.2d 383, 386 (C.A. 7, 1971). CONCLUSIONS OF LAW i. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. (C.A. 9, 1974); Carlson Corporation, 195 NLRB 218, 221 (1972), enfd. 82 LRRM 2392 (C.A. 1, 1972). 22 See N.LR.B. v. Wire Products Manufacturing Corp., 484 F.2d 760, 765 (C.A. 7, 1973); United Aircraft Corporation v. N.LRB., 440 F.2d 85, 92 (C.A. 2, 1971). 596 BLOUNT BROTHERS CORP. 3. Respondent has violated Section 8(aX3) and (1) of the Act by discharging David Chilson to discourage activity on behalf of the Union. 4. Such unfair labor practices affect commerce within the meaning of the Act. THE REMEDY Having found that Respondent engaged in certain unfair labor practices, I shall recommend that it be required to cease and desist therefrom. Because the unfair labor practices found consist of an employee's discharge to discourage union activity, Board precedent calls for the issuance of a broad order. Brom Machine and Foundry Co., 222 NLRB 74 (1976). Accordingly, I shall recommend that Respondent be required to cease and desist from infringing on employee rights in any other manner. Further, I shall recommend that Respondent be required to offer Chilson immediate reinstatement to the job of which he was unlawfully deprived, or, in the event such job no longer exists, a substantially equivalent job, and make him whole for any loss of pay he may have suffered by reason of his unlawful discharge to the date of a valid offer of reinstatement, to be computed in the manner described in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as described in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 1 shall also recommend that Respondent be required to post appropriate notices. Upon the foregoing findings of fact and conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended Order: ORDER 23 The Respondent, Blount Brothers Corporation, Byron, Illinois, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Discouraging membership in Carpenters Local No. 792, affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, by discharging employees, or otherwise discriminating in any manner in regard to their hire or tenure of employment or any terms or conditions of employment. (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer reinstatement to David Chilson, and make him whole for any loss of pay he may have suffered by reason of his discharge. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful to analysis of the amount of backpay due under the terms of this Order. (c) Post at its Byron Nuclear Power Plant job copies of the attached notice marked "Appendix."2 4 Copies of said notice, on forms provided by the Officer-in-Charge of Subregion 38, after being duly signed by Respondent's representative, 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 where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Officer-in-Charge of Subregion 38, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 23 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 24 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing which all parties had the opportunity to present their evidence, it has been decided that we violated the law by discharging David Chilson. We have been ordered to post this notice. We intend to carry out the order of the Board and abide by the following: WE WILL NOT discharge or otherwise discriminate against any employee to discourage membership in Carpenters Local No. 792, affiliated with the United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other union. WE WILL NOT in any manner interfere with, restrain, or coerce employees in the exercise of these rights. WE WILL offer David Chilson reinstatement to his old job, or, if such job no longer exists, to a substantially equivalent job, and make him whole, with interest, for loss of pay resulting from his discharge. The National Labor Relations Act gives the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through representa- tives of their own choosing To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from any such activities. Our employees are free to exercise any or all of these rights, including the right to join or assist Carpenters Local No. 792, or any other union. Our employees are also free to refrain from any or all such activities, except to the extent that union membership may be required by a collective- 597 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining agreement as a condition of continued employ- ment as permitted by Section 8(f)(2) or the proviso to Section 8(a)(3) of the Act. BLOUNT BROTHERS CORPORATION