Groves-Granite

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Groves-Granite, a Joint Venture and Leroy C. Baublitz Carpenters Local No. 2205, United Brotherhood of Carpenters & Joiners of America and Leroy C. Baublitz. Cases 19-CA-8454 and 19-CB-2640 April 19, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On December 15, 1976, Administrative Law Judge Richard J. Boyce issued the attached Decision in this proceeding. Thereafter, Respondent Union and Respondent Employer filed exceptions and support- ing briefs. 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 his 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, Groves-Granite, a Joint Venture, Bridgeport, Washington, its officers, agents, successors, and assigns, and the Respondent, Carpenters Local No. 2205, United Brotherhood of Carpenters & Joiners of America, Wenatchee, Washington, its officers, agents, and representatives, shall take the action set forth in the said recommend- ed Order. I Respondent Union and Respondent Employer have 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 his findings. DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: This matter was heard before me in Wenatchee, Washington, from September 28 through October 1, 1976. The charges in both cases were filed March 26 and amended June 28, 1976, by Leroy C. Baublitz, in his individual capacity. The 229 NLRB No. 15 complaint issued May 19 was amended August 19, 1976, and during the hearing, and alleges certain violations of the National Labor Relations Act by Groves-Granite, a Joint Venture, and by Carpenters Local No. 2205, United Brotherhood of Carpenters & Joiners of America (herein called Local 2205). The parties were permitted during the hearing to introduce relevant evidence, examine and cross-examine witnesses, and argue orally. Briefs were filed for the General Counsel, for Groves-Granite, and for Local 2205. I. ISSUES The complaint alleges that Local 2205: (1) violated Section 8(bX)(XA) of the Act by failing to represent Baublitz in his efforts to pursue a grievance after being discharged by Chaussee Corporation on October 30, 1975, and (2) violated Section 8(b)(2) and (IXA) by attempting to cause Groves-Granite to discharge Steve Stevenson on January 8, 1976, and Baublitz on March 8, 1976; and by causing the discharges of Stevenson on January 15, 1976, and Baublitz on March 12, 1976. The complaint alleges that Groves-Granite: (1) violated Section 8(aX3) and (1) by discharging Stevenson on January 15, 1976, and Baublitz on March 12, 1976, at the behest of Local 2205, and (2) violated Section 8(a)(1) on or about March 29, 1976, by interrogating an employee concerning his testimony should the matters herein be litigated, and by threatening that employee with discharge or other reprisal should he testify adversely to Groves- Granite. The separate answers of Local 2205 and Groves-Granite deny any wrongdoing. II. JURISDICTION Groves-Granite is a joint venture headquartered in Bridgeport, Washington, where it was engaged at relevant times in the construction of the Chief Joseph Dam. Chaussee is a corporation headquartered in Redmond, Washington, engaged in the construction of residences and multiple dwellings. Each enterprise annually takes delivery in Washington, directly from outside the State, of goods and materials valued in excess of $50,000. Each is an employer engaged in and affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. III LABOR ORGANIZATION Local 2205 is a labor organization within the meaning of Section 2(5) of the Act. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Background: This case involves two unrelated projects- the construction of an apartment complex in Brewster, Washington, by Chaussee, and the construction of Chief Joseph Dam at Bridgeport, Washington, by Groves-Gran- ite. Both projects were within the territorial jurisdiction of Local 2205. The carpenters on both were represented by Local 2205, and covered by labor agreements entered into 56 GROVES-GRANITE by umbrella organizations on behalf of their constituents, which included the two employers on the one hand and Local 2205 on the other. Chaussee employed between 6 and 10 carpenters on the apartment project. Its job superintendent was Robert Omtvedt. He was accountable to Torkel Nilson, system- wide project manager, who visited the project from time to time. Groves-Granite regularly employed 60 to 70 carpenters on the dam project. They were divided among several crews. Each crew had a so-called crew steward, designated by Local 2205, over whom was a chief or "bull" steward. The bull steward at relevant times was James Corn. Among Groves-Granite's management personnel on the project were Bev Trautman, project manager; Clay Vestal, who was office manager and had primary responsibility for labor relations; Thomas (Lucky) Wells, carpenter superin- tendent; Tate Stack, superintendent of the carpentry shop; and Wallace Henkel and Floyd Krutsinger, carpenter foremen. Local 2205 is headquartered in Wenatchee, Washington. It is one of seven locals comprising the Columbia River Valley District Council of Carpenters (herein called District Council). Cecil Peaslee is the business representa- tive of Local 2205, and the president of the District Council. Wayne Cubbage is the secretary-treasurer of the District Council. The District Council is an affiliate of the Washington State Council of Carpenters (herein called State Council), which in turn is an affiliate of District No. 7, United Brotherhood of Carpenters and Joiners of America (herein called District No. 7). District No. 7 embraces six northwestern States. The executive secretary of the State Council is Guy Adams, and the executive officer of District No. 7 is Hal Morton, one of whose assistants is Harlan Brown. The Baublitz/Chaussee Situation: Baublitz was a carpen- ter for Chaussee on the apartment project from October 3 to 29, 1975, when the events in question began to unfurl. The great bulk of Baublitz' time was spent on the ground, cutting materials to length and handing them to other carpenters on scaffolding. He estimated that he may have worked 3 days on scaffold between October 3 and 29. Baublitz nevertheless instructed his wife, before going to work October 29, to call the Washington State Department of Labor and Industries that morning to report that the scaffolding was substandard. He hoped that an inspector would come to the project that day while he was there. Baublitz reported for work at 7:30 a.m., October 29. It was raining, an unusual occurrence in this part of Washington; and, about 8 a.m., he asked Job Superinten- dent Omtvedt if there was inside work. The carpenters had worked inside on previous rainy days, doing finish work. Omtvedt said there was none. Baublitz replied that, in that event, he was going home until the rain stopped. Baublitz This is a selective adoption of Baublitz and Nilson's testimony. Omtvedt did not testify. Baublitz' further testimony that Omtvedt ordered him "back on the scaffold" is discredited in part because of Nilson's refutation and in part because Baublitz spent so little time on the scaffolds that such an order would have been unlikely-at least in the literal sense. Nilson, on the other hand, is discredited that the subject of the scaffolds was not raised by Baublitz in some form or other. that subject having been prominent in Baublitz' mind that day. also mentioned the unsafe condition of the scaffolding, although that had little effect on his own work situation. Omtvedt directed that he "get back to work," warning that he would be considered to have quit should he leave. Omtvedt's words were echoed by Project Manager Nilson, who was on the site that day and overheard the conversa- tion. Baublitz countered that "my union tells me I don't have to work when it's raining," and left. He said he would be back the next day.' Baublitz was the only workman to leave the project. While he testified that he would have left, regardless of the rain, because of the scaffolding, it is concluded that the rain in fact was the reason. Not only did he rarely work on scaffold, but he could not "really recall" if he did on October 29. He did remember "it being muddy" on the ground, however. Further indicative that the rain was the reason was Baublitz' stated hope to be present should an inspector come to check the scaffolding. After leaving the job, Baublitz telephoned Business Representative Peaslee of Local 2205, relating what had happened and mentioning the scaffold peril for good measure.2 Peaslee said that a man could not be terminated for refusing to work "on account of rain," 3 and suggested that Baublitz report for work the next day. Peaslee said he would be at the site the next morning himself to look into the matter. Baublitz reported for work as usual on October 30. He worked without incident until about 8:30, when Omtvedt told him that he did not "belong" there; that he had quit. Baublitz protested that he had not quit, to which Omtvedt asserted: "Well, you're trespassing as far as I'm concerned. You have to get off this job." Baublitz repeated that he had not quit, adding that, since he had not received a final paycheck, he had not been terminated either. With that, Omtvedt telephoned Nilson, who advised him to call the police if Baublitz refused to leave. Baublitz remained adamant, and a Brewster policeman was called. Baublitz left only after being placed under arrest. Once removed from the site, Baublitz was released from custody without being charged. He immediately drove to the office of the Department of Labor and Industries in Okanogan, Washington, where he filed a complaint, asserting: Refused to work in the rain on scaffolding which also is unsafe. No handrails, wet & slippery. Decking not wide enough. By refusing to work on scaffolding in rain, Supt. told me that he would say I quit so I could not draw unemployment payments. I told him I was not quitting and that I would come back to work when it was fit. Peaslee arrived at the site in the late morning of October 30. He spoke with Omtvedt, and the two of them spoke with Nilson by telephone. Peaslee asked one or the other, 2 Baublitz is credited that he mentioned the scaffolding, Peaslee's denial notwithstanding. Although concluding that Baublitz left the job only because of the rain, I am persuaded that he saw the condition of the scaffolding as an opportunity to augment his position, thus mentioning it at every turn. Baublitz came across as a fully credentialed clubhouse lawyer. 3 Peaslee testified that the carpenters in the jurisdiction of Local 2205 are "not used to the moisture," and "sometimes" go home when it rains. 57 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or both, that Baublitz be reinstated, and was denied. Omtvedt told of Baublitz' encounter with the police that morning, and said that Baublitz spent a lot of time "wandering around, running around with a coffee cup in his hand"; and Nilson reported that Baublitz "had built fires in buckets" to keep warm on cold days, and "several things like that." Peaslee remarked, after hearing all this, that Local 2205 had "had a lot of trouble" with Baublitz4 and that it "just don't look like he's a normal person." Nilson agreed that Baublitz could not be classified "as a normal, everyday type of joe-blow we have on our work force." Persuaded by his conversations with Omtvedt and Nilson that "there was more to it" than simply Baublitz' refusal to work in the rain, Peaslee left the site with no further intention of seeking his reinstatement. Peaslee proffered some vague testimony that the "more to it" he had learned about was "probably his [Baublitz'] work record, inability to not [sic I stay steady on the job." Peaslee observed: "It's pretty hard to-when a man does not perform his work-to back him up." Departing from the site, Peaslee spoke with Baublitz, who had returned from Okanogan and was in his car, parked across the street. Baublitz said he had just filed a complaint against Chaussee, and called Peaslee's attention to deficiencies in the scaffolding. Peaslee said he would talk with Al Johnson, Local 2205's financial secretary, about the situation. Peaslee did not go into the various aspects of Baublitz' behavior that Omtvedt and Nilson had raised, nor did he disclose his loss of interest in continuing to press for Baublitz' rehire. 5 Peaslee intimated in his testimony that Baublitz' state complaint against Chaussee was an added factor in that loss of interest: Well, when he told me that he was going to go to the Labor and Industries and turn this in, you've got a hard problem on your hands right there, that he had already turned in against the Company, and the Company is going to be very evasive, weren't they, after he's turned them in ... ? A state inspector, Ed Squire, visited the project on October 31, finding that the scaffolding violated safety standards in several particulars. In keeping with the "normal practice" where there is union representation, Squire called Peaslee to report his findings. During their conversation, Peaslee said that Baublitz had been a "troublemaker" in the past and "could create his own problems" on a job. In the succeeding several days and weeks, Baublitz discussed the Chaussee situation with Peaslee or Financial Secretary Johnson a number of times, both by telephone and in person. Baublitz was insistent that the discharge had 4 The "trouble" Peaslee had in mind is not clearly identified on the record. Baublitz, in a letter to Guy Adams of the State Council, mentioned later in the body of this Decision, traced his difficulties with Peaslee to the summer of 1972, when he complained about being laid off ahead of a nonunion carpenter. I Baublitz is credited, despite Peaslee's denial that he mentioned the scaffolding. It would have been astonishing if he had not, having just come from filing a complaint about it. Baublitz is not credited, however, that Peaslee adverted to a refusal by Baublitz to work on scaffold on October 29. been improper, and inquired about the procedure for grieving. Peaslee invariably responded, whenever Baublitz spoke to him: "We'll see what we can do."6 Baublitz also complained of having been underpaid by Chaussee. Johnson gave him a claim form for that, which Baublitz filled out and returned. On or about November 17, Baublitz received a copy of the State's formal report on Chaussee's scaffold violations. He promptly called Peaslee, citing it as "proof" that he had a valid grievance against the Company. Peaslee replied, as was his wont: "We'll see what we can do." On January 6, 1976, Peaslee still having taken no action, Baublitz telephoned Guy Adams, executive secretary of the State Council. Adams asked that he put his story in letter form, which Baublitz did. The letter, after reciting Baublitz' version of the events at Chaussee, stated: I don't know exactly why Cecil Peaslee has given me such a hard time, only that in the summer of 1972 I worked for Crane Service on a bridge in Mazama, Wash. There was three Carpenters working, myself and two others. We were lay off for exception of Homer Grace, who stay to help stress the beams. The lay off was only for a few days. During the time I was off, the other Carpenter ... worked, and at this time he was not a union member. I complained to Cecil Peaslee about [it] and since that time I have had a hard time getting work from the hall. A few days later, Peaslee told Baublitz that he was "very much concerned" about the letter, amplifying that the assertions in it "better be true" for Baublitz' sake, because Peaslee might take him before Local 2205's executive board-"I can press charges, too." Baublitz responded: "Good, that's where I would like to go anyhow." An unemployment compensation hearing in connection with the Chaussee discharge was scheduled for February 18, 1976. Meanwhile, as is more fully described later, Baublitz was referred to the Groves-Granite dam project on January 29. On or about February 16, Peaslee spoke with Baublitz at the dam site, verifying the hearing's date and time and saying he would try to appear for Baublitz. Baublitz told Peaslee that he was counting on him being there-"I need you to back me." Peaslee did not show up at the hearing, nor did he give Baublitz or anyone else advance notice that he would not attend. Later, asked by Wayne Cubbage, the secretary-treasurer of the District Council, why he had not gone, Peaslee said that "some- thing more important came up." Cubbage exclaimed: "My gosh, Cec, at least call the man and inform him." Peaslee responded that it had "completely skipped" his mind. On March 5, Baublitz filed an internal union charge against Peaslee, alleging that he had violated certain provisions of the constitution of the United Brotherhood of Peaslee also denied this. Baublitz already has been discredited that he was so ordered. It is concluded that both that "order" and this alleged comment by Peaslee were inventions of Baublitz, designed to enhance his justification for leaving the job. 6 Baublitz is credited that he regularly protested the impropriety of his discharge and inquired about grieving. Peaslee at first denied that Baublitz ever expressed concern about the termination, only to concede later in his testimony: "Maybe he told me it was improper every time." 58 GROVES-GRANITE Carpenters relative to both the Chaussee and Groves- Granite projects. Concerning Chaussee, the charge stated: I tried to get Cecil to help me several times, but he would not. If it had not been for the Department of Labor and Industries, Safety Inspection, I wouldn't have been eligible for Employment Security. On March 10, Peaslee did attend a second unemploy- ment compensation hearing in Redmond, Washington, on Baublitz' behalf. Peaslee stated to Cubbage, 2 or 3 days before the hearing, that, after "all the trouble" he had had with Baublitz, he did not know whether he should represent Baublitz or the Company. Cubbage admonished that Peaslee would "represent the member." The labor agreement pertaining to the Chaussee project provided for makeup work "in the event an employee loses time due to actual inclement weather," and contained a grievance procedure for disputes "involving the application or interpretation of this Agreement," the procedure to be invoked "by the offended party (either Employer or Union)." There was no provision for the institution of proceedings by an aggrieved individual. Local 2205 makes no contention that Baublitz' discharge was not cognizable under the grievance procedure.' The Baublitz/Groves-Granite Situation: Baublitz was a carpenter for Groves-Granite on the dam project from January 29 to March 12, 1976, when he was discharged. He was referred to the job by Local 2205. His immediate supervisor was Carpenter Foreman Wallace Henkel, who in turn was accountable to Tate Stack, superintendent of the carpentry shop.8 Henkel told Baublitz about 4 p.m. on March 12 that he was fired. Henkel gave no reason, saying only: "Go to the warehouse and pick up your check." A few minutes later, Baublitz went to Stack for verification.9 The termination notice, signed by Carpenter Superintendent Lucky Wells, said that Baublitz was "unqualified for work assigned." That Wells signed the slip does not mean he participated in the discharge decision. He signed all carpenter termination slips. Henkel testified that he "instigated the decision" to discharge Baublitz; and stated, in a pretrial affidavit, that the decision "was entirely my own." The reasons cited by him were Baublitz' "attitude" and that he had made "quite a few mistakes." Henkel did not elaborate, testifying only that, in his opinion, Baublitz "was hindering me from ? Replying to a question from counsel for Local 2205, Peaslee testified that he would have initiated grievance proceedings against Chaussee if only Baublitz had asked. The General Counsel belatedly objected on the ground that the question called for a self-serving and conjectural answer. The objection was sustained. This is mentioned only because the General Counsel frames an argument around this testimony in his brief, overlooking the effect of the ruling on his objection. I The complaint alleges and the answers deny that Henkel was a supervisor under the Act. Henkel testified that he was told, when hired, that he had the power to fire; and Stack testified that Henkel could fire and reprimand without first clearing with him. It is concluded, based on this, that Henkel was a supervisor. 9 Stack recalled saying: "Yes. It's just tough shit. You're on your way." 1' The transcript has been corrected so that "out" reads "our." :" Stack testified that "tramped," in construction parlance, means fired. 12 Stack testified that he warned Baublitz, 2 or 3 days before the discharge, to take care of his assigned job or "you're not going to be here getting our '0 work done." Henkel denied that the decision was influenced by Local 2205. Henkel notwithstanding, Stack testified that the dis- charge decision was his, "perhaps influenced by some of the things Wally [Henkel] said," and that the "sole reason" was Baublitz' "not staying with and performing assigned work." Stack elaborated that Henkel had mentioned to him that Baublitz "was wandering around the deck bothering other people," and carrying on like "a foreman or superintendent." Stack continued that Henkel had said that, "if Baublitz doesn't straighten out, I think he ought to be tramped."" Stack testified that, because of Henkel's comments, he watched Baublitz, "made the observance for myself, and made my own decision."1 2 Stack emphasized that Baublitz' work mistakes were not a factor-"every- body is subject to mistakes .... I can pardon mistakes." Stack, like Henkel, denied that the decision was influenced by Local 2205. Wells denied any part in the decision, testifying that, when Stack told him of his intention, Wells stated: "It's up to you." Clay Vestal, Groves-Granite's office manager, testified, however, that Wells raised the idea of transferring Baublitz to a different area in lieu of discharging him, and that Vestal rejected the idea.'3 Wells denied in his testimony that he considered such a move until faced with his pretrial affidavit. The affidavit states: When Stack told me about firing Baublitz, I thought about transferring Baublitz to the hole, but I decided against it because it doesn't usually work out. Wells and Vestal both denied union complicity in Baublitz' fate. Baublitz telephoned Cubbage of the District Council the evening of March 12, reporting the discharge. On March 13, after a District Council meeting, Cubbage asked Peaslee if he had heard the news. Stunned, Peaslee blurted: "They fouled me up. They said they would transfer him." 14 Peaslee then asked, "What do I do now?" Cubbage replied that they should attempt to get Baublitz' job back, and Peaslee said he would try. Peaslee called Baublitz later, on March 13, saying that he would seek a March 17 meeting with management to take up Baublitz' reinstatement. On March 15, unable to reach Peaslee, Baublitz left word with Local 2205 that he could not attend a meeting on March 17. Peaslee met with Vestal and Project Manager Bev Trautman on March 17, just the much longer." Baublitz denied ever receiving such a warning. Stack seemed to be embellishing, while Baublitz' denial carried conviction. Baublitz is credited. 13 Vestal testified that, when Wells proposed Baublitz' transfer, Vestal asked why he was being terminated. Wells answered that it was "because he can't do his work," to which Vestal asked: "Well, is it going to change if you transfer him?" Wells replied that it would not, and Vestal said: "Well, then terminate him for what you're terminating him." 14 In attempted explanation of this remark, and in seeming conflict with the assertion in Wells' affidavit that transfers generally are avoided because they do not "usually work out," Peaslee testified: 'IWlhen they call for these men, they stated an X amount of men would be put on the panel yard and X amount in the hole. The X amount in the panel yard was only good for about two to three weeks, but if they could be, they would be consumed in the hole." This explanation is discounted as a self-serving after-the-fact effort at salvation. 59 DECISIONS OF NATIONAL LABOR RELATIONS BOARD same. Vestal and Trautman refused to relent from the discharge, according to Peaslee, because Baublitz' "work record was too bad." Vestal disclosed that Peaslee exerted less than a determined effort on behalf of Baublitz. He testified that Peaslee routinely broached reinstatement with him concerning "everyone that was terminated for any reason other than reduction in force," but that, in Baublitz' case, "we didn't pursue it that much ... so I wouldn't say that he's all that insistent every time." On March 18, Peaslee told Baublitz some of what had happened, and held out the prospect of another meeting since Baublitz was not present on March 17. Baublitz stated that it was Peaslee'sjob to back him, and that he had not attended "because I didn't have proper counsel." Peaslee countered that Local 2205 had obtained a check from Chaussee for the wage differential owing Baublitz, which "ought to show I'm doing something." Baublitz responded: "If it wouldn't have been for the District Council, I wouldn't have gotten anywhere."' 5 With that, Peaslee announced: "There's not going to be any meet- ing'6 at Groves-Granite .... I'm not going to give you your job back." Peaslee told Cubbage, sometime after March 17, that the "intent of the meeting" had been to show, "once and for all," that Baublitz "was not a qualified carpenter and . . . that he was terminated for cause." During his time with Groves-Granite, Baublitz filed a grievance through one of the stewards protesting Henkel's working with the tools of the carpentry trade. The controlling labor agreement forbade foremen from working "with tools other than those necessary for layout work." As a result, Bull Steward Corn twice "dressed him [Henkel] down."'7 And, on March 5, Baublitz filed the internal union charge against Peaslee previously mentioned. The charge alleged, concerning the dam project, that Peaslee "has been causing dissension among the Carpenters" on the project; that Peaslee "along with the Shop Stewart [sic] have collaborated with Groves-Granite Co."; and that "there has been a lot of Carpenters from other areas, outside Local 2205 get jobs over the Carpenters who had priority in this area." Peaslee admittedly was "kind of a little shocked" when Baublitz "preferred charges against me." On March 8, during a visit to the project, Peaslee told Baublitz he was "shocked" and that the charge could cost him his position as business representative. Baublitz said that, if Peaslee had adequately represented him, the charge would not have been filed, and they argued back and forth in that fashion for 15 or 20 minutes, shouting and otherwise evincing anger. Henkel finally ended the affair by saying that they 1' Cubbage of the District Council had written Chaussee on January 13, mentioning its "oversight" in underpaying Baublitz and expressing the hope that Chaussee would "remit the difference to Mr. Baublitz at the earliest possible time." Baublitz received a check on March 22. 16 The transcript has been corrected so that "union" reads "meeting." " Corn initially testified, without qualification, that Baublitz had filed a grievance over Henkel's use of tools. Corn later equivocated, testifying that he "couldn't specify it was actually Mr. Baublitz who made the complaint .... " Corn's first version is credited. iR Stack's denial that Peaslee mentioned the Baublitz charge is not credited. Not only was Peaslee obviously preoccupied with Baublitz that day, but Williams impressed me as a sincere and capable witness. Similarly, had argued long enough and it was time "to get some work done." Peaslee then went into the saw shop, along with Stack and Henkel. What happened among them, if anything, is left to speculation. A while later returning to Baublitz, Peaslee asked to see his union membership card. Peaslee explained that he wished to check the status of Baublitz' dues. The labor agreement contained a 9-day union- security clause, and stated: Failure of any employee to pay or tender normal initiation fees or dues as required by this Agreement shall, upon the request of the Union in writing, result in termination of such employee. After looking at the card, which showed Baublitz to be paid up, Peaslee observed: "Well, maybe you'll get a good night's sleep tonight. You'll forget about these charges." Peaslee next went into Stack's office, as did Henkel. The record reveals little of what then happened, although Cliff Williams, presently to become a crew steward, credibly testified that he heard Peaslee say: "I guess Baublitz is going to sue me." Williams recalled that Stack "didn't pay no attention to" the comment.8s Emerging from Stack's office, Peaslee again spoke to Baublitz, iterating the remark about getting a good night's sleep and forgetting the charge. On March 12-the day of Baublitz' discharge-Peaslee spent several hours at the jobsite, his primary concern ostensibly being the designation of a new crew steward in the area where Baublitz worked.19 Also on March 12, Wells and Peaslee conversed in the parking lot at the site.20 As earlier mentioned, during the week between Baublitz' filing of the internal union charge against Peaslee and his discharge, Peaslee stated to Cubbage that, after "all the trouble" he had had with Baublitz, he did not know whether he should represent Baublitz or Chaussee in a March 10 unemployment hearing. The Stevenson Situation: Stevenson was a carpenter for Groves-Granite on the dam project from January 8 to 15, 1976, when he was discharged; then, from January 22 to the present. He first registered on Local 2205's out-of-work list in July or August 1974, shifting his membership from a sister local in so doing. He told Business Representative Peaslee at the time that he was hopeful of working on the dam project. In July 1975, he was referred to Tisdale Construc- tion Company, which was erecting the project's administra- tion building, with whom he remained until laid off in November 1975. The beginnings of hostility surfaced between Peaslee and Stevenson when Stevenson first Peaslee's denial that he ever mentioned the Baublitz charge to management is not credited, in part because the charge implicated Groves-Granite as having collaborated with Peaslee. 19 Peaslee testified that he offered the steward position to Baublitz on March 12. It is concluded that, even if Peaslee said the words, they were not seriously intended. 20 Steve Stevenson testified that he observed the conversation from some distance, so could not hear what was said, and that it lasted about 20 minutes. Wells testified that this was "untrue, a hundred percent wrong"; rather, that he and Peaslee did nothing more than exchange greetings. Peaslee denied any recall of the conversation. 60 GROVES-GRANITE registered on the out-of-work list, Stevenson questioning the need to shift his membership. Those feelings were reinforced during Stevenson's tenure with Tisdale, as he second-guessed Peaslee's handling of matters relating to that job from time to time. Upon his layoff by Tisdale, Stevenson telephoned Peaslee that he and two others, just laid off, Tip Holloway and Bob Johnston, wished to be placed on the out-of-work list. A month or so later, having learned that Johnston had been referred to Groves-Granite, Stevenson complained to Peaslee that he should have been ahead of Johnston on the out-of-work list, and thus gone out first, because he had called in the names. Peaslee replied that he had entered Stevenson's and the other two names in no particular sequence; and that, as it happened, Stevenson's was next after Johnston's. Stevenson then complained about the referral of one Don Thompson to Groves-Granite, inas- much as Thompson had only recently transferred his membership from a sister local. Peaslee answered that he was "running the union," or words to that effect, and Stevenson countered: "I'd better go to work in two weeks or I'm going to know the reason why." Around January 1, 1976, 2 weeks later, Stevenson called Peaslee. Peaslee accused Stevenson of "trying to black- mail" his way into a job, to which Stevenson said that he "just wanted what was mine." A day or so later, having heard that Peaslee had told some of the Groves-Granite carpenters that Stevenson wanted him "to run somebody else off out there" so Stevenson could be referred, Stevenson again called Peaslee. He stated that he did not want to cause anyone's layoff, but that he did want "what was mine." Peaslee replied, as he had before, that he was "running the local" and was not going to be blackmailed. Stevenson thereupon telephoned Hal Morton of District No. 7, asserting that he was being passed over at the hiring hall. About the same time, during a District Council meeting, Morton's assistant, Harlan Brown, confronted Peaslee with Stevenson's complaint. Brown told Peaslee that Stevenson "should be put to work." He suggested that Peaslee tell Groves-Granite he had a "problem" concern- ing Stevenson, and ask that the Company find a job for him as an accommodation. Wayne Cubbage of the District Council also discussed the matter with Peaslee at this meeting. Morton previously had told Cubbage that he was going to order Peaslee to put Stevenson to work. On January 7, Peaslee informed Cubbage that Groves- Granite was willing to hire Stevenson. Later that day, Peaslee telephoned Stevenson, stating that he was "sup- posed to put" Stevenson to work and that he should report to Groves-Granite at the dam site on January 8.21 Also on January 7, two Groves-Granite carpenters, Ron Savage and Bud Ward, told Stevenson that they had heard Bull Steward Corn say that Stevenson would be laid off after a week or so.22 21 Peaslee testified that Stevenson. being next on the out-of-work list, would have been referred in any event. 22 Neither Savage nor ward testified. and Corn denied saying any such thing. The hearsay character of the remark attributed to Corn is recognized. 22 Stevenson is credited that Corn made this remark. Corn's denial notwithstanding. Stevenson impressed me as believable on the point. while various of Corn s denials, this one among them, were mechanically rendered and devoid of suasive thrust. It is altogether plausible, moreover. that Corn would have heard about Stevenson and would have said this. Stevenson was assigned to work with Corn the first day or so, after which he "partnered" with others. Corn commented, upon Stevenson's arrival the first day: "I've heard all about you." 23 Because of the "rumors" that he was quickly to be laid off, and having been advised to do so to protect himself "in case something happened," Steven- son took a small notebook to the job with him, recording anything suspicuous that he saw or heard as time allowed. Corn once asked about his notetaking. Stevenson said he was keeping a record of his time. Corn testified that most of the carpenters on the project carried notebooks, in which they recorded their time, materials used, etc. One of the days before Stevenson's discharge, Eugene O'Dell, who was partnering with Corn, noticed that Corn himself was jotting in a notebook. O'Dell regarded this as "kind of unusual." Apparently sensing O'Dell's puzzle- ment, Corn asked him if he knew Stevenson and about the "trouble" Stevenson "had been involved in." Corn contin- ued that Stevenson "wasn't going to last" on the job; that he, Corn, had been instructed by Lucky Wells, the carpenter superintendent, to "keep a record of Stevenson's activities during the day; . . . and that when they felt they had enough evidence to fire him with a 'not-for-rehire' slip that they could make stick that he would be terminated." 24 Stevenson was told of his discharge by Floyd Krutsinger, his foreman, on January 15. As Stevenson credibly recalled, Krutsinger explained that Wells had seen Steven- son writing in his notebook three different times, and that this was "part of the reason." Krutsinger said that he had no part in the decision-it is "completely out of my hands"-and that it had "nothing to do with the union." For reasons undisclosed, Krutsinger did not testify. Wells did, asserting that the discharge decision was made by Krutsinger, who later explained to him that Stevenson had not been doing his assigned duties and had been "running behind the forms25 making notes about half the time." Although disclaiming involvement in the decision, Wells admittedly had asked Krutsinger the day before about Stevenson's notebook, prompting Krutsinger to say that he would "take care of it." Wells signed Stevenson's termination slip, which cited "unsatisfactory work" as the cause of discharge. As previously stated, this did not signify Wells' participation in the discharge decision. Wells denied-"no way"-that Local 2205 ever put "pressure" on him to fire anyone, or that he ever talked to Peaslee about Stevenson's employment. Corn in turn denied any role in the discharge, or that it had been prearranged as an adjunct of Stevenson's referral. He testified that he learned of it, after the fact, from Krutsinger. Peaslee also denied any part in the matter, averring that he first learned of the discharge from Stevenson himself, the day after it happened. Soon after the discharge, according to both Peaslee and Office Manager Vestal, Peaslee spoke with Vestal and Bev 24 This is based on O'Dell's credible testimony, including his past- recollection-recorded adoption of his pretrial affidavit. O'Dell testified that he considered Stevenson to be "kind of a loudmouth," and otherwise indicated that Stevenson was not a particular fnend of his; and there was no specific refutation of this testimony by Corn. 25 The transcript has been corrected so that "foremens" reads "forms." 61 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trautman, project manager, in an unsuccessful effort to have it reversed. 26 As earlier noted, Vestal testified that Peaslee did this on every discharge that was not part of a reduction in force, but was "not all that insistent every single time." Peaslee testified that he could not "truthfully say" if he reported the results of this meeting to Stevenson. Soon after the discharge, also, Stevenson drew up internal union charges against Peaslee and Corn. He did not file them, but did give copies to Cubbage and Harlan Brown, telling them that he intended to file if the "mess" concerning his discharge were not straightened out. This, in combination with numerous other member complaints concerning Local 2205's handling of the dam project, caused Hal Morton of District No. 7 to direct that Cubbage and Brown undertake an immediate investiga- tion. Cubbage and Brown obtained signed statements from 20 or 30 disgruntled members, and interviewed Peaslee and Corn as well. During one of their conversations with Peaslee, Peaslee complained that Morton had "chewed him out" for having "an agreement" with Groves-Granite that Local 2205 would "back the company" when it discharged troublemakers.27 Peaslee further complained about Mor- ton's lecturing him that he "represented the men regardless of what their attitudes were," saying that Morton was not giving him proper support. Their investigation led Cubbage and Brown to conclude that Peaslee and Wells, together, were "trying to gag our members on that project from voicing any opinions"; and that Peaslee, having referred Stevenson "under duress," had "engineered his dismissal." The record does not supply the evidentiary and deliberative particulars behind these conclusions. On or about January 21, Cubbage and Brown met with Trautman, Vestal, and Wells of Groves-Granite, along with Peaslee and Corn, to report their conclusions. Laying the 20 or 30 signed statements on a table, Cubbage or Brown stated that they had numerous "charges" or "complaints" against Local 2205 and Groves-Granite. Alluding to the Stevenson situation, one or the other said that the investigation had caused them to believe there had been a cabal between Local 2205 and Groves-Granite "to terminate someone." Stevenson's reinstatement was then demanded. The management officials caucused, whereupon Vestal reputedly ascertained from Wells that Stevenson had never been warned about his notebook. The three of them consequently decided, according to Vestal, that Stevenson "had been treated unfairly" and should be offered reinstatement, provided that he leave his notebook home 25 Trautman did not testify. 27 Cubbage credibly testified that Peaslee spoke of such an agreement, adding that he understood Peaslee to be referring to "any dissension, people instigating walkoffs or problems of that sort." Brown did not testify. Peaslee, while never identifying anyone from management with whom he may have had such an agreement, did not refute Cubbage's testimony. Peaslee testified that his frame of reference was people who provoked "wildcat" strikes, which had been a recurrent problem on a project at Grand Coulee Dam, but which admittedly had not been a concern on the Chief Joseph project. Management witnesses denied any knowledge of such an agreement. 28 Respondents contend that Stevenson's reinstatement was conditioned, among other things, upon there being no unfair labor practice charge over his discharge. Construed most favorably to Respondents, and without passing on the dubious proposition that such a condition can validly be and that all charges against Groves-Granite be dropped. Emerging from the caucus, management conveyed this proposal to Cubbage and Brown, who accepted.2 8 Steven- son returned to work January 22. He received no backpay for the time between discharge and reinstatement. The Alleged Interrogation and Threat: As earlier noted, the charges herein were filed by Baublitz on March 26, 1976. Not long afterward, another carpenter on the dam project, George Dennison, was directed to Stack's office by Henkel. Stack and Henkel were there, later to be joined by Lucky Wells. Stack began by asking Dennison what "the score" was regarding the charges Baublitz had filed. To Dennison's answer that he did not know, Stack explained that Groves-Granite had been charged with firing Baublitz because of his union activity. Henkel then stated that Dennison had recommended Baublitz as "a good man" when he was hired. Dennison replied: "I still believe he is and I wouldn't change my testimony no way." Stack interjected that he did not think Baublitz was "the best man in the world"; that he made mistakes, wanted to be superintendent, etc. Stack contin- ued that, while Henkel had "tramped" Baublitz, he would have done the same. Dennison repeated that he thought Baublitz was a good man. The discussion proceeded in this vein for several minutes, Stack and Henkel commenting upon Baublitz' imperfections and Dennison disagreeing. Wells, who had listened in silence, finally said: "I don't see no problem here. You fellows know what to do with employees who don't cooperate. You can handle this." Wells then left, and the meeting broke up.29 Dennison testified that he did not know why Stack and Henkel were so insistent that Baublitz had been a poor worker, "other than the fact that I had recommended Mr. Baublitz in the beginning." "The point of the whole conversation," Dennison felt, "seemed to be that they were trying to blame me partly for Mr. Baublitz' failure, you know." B. Analysis The Baublitz/Chaussee Situation: The General Counsel contends that Local 2205 "failed and refused to represent Baublitz in his efforts to pursue a grievance with respect to" the Chaussee discharge, thereby violating Section 8(b)(1)(XA). A union is permitted a wide range of discretion in determining whether and how to handle employee griev- ances, so long as its determination is not colored by imposed, the evidence on this point is conflicting and vague, falling well short of establishing that a waiver of recourse to the NLRB was contemplated. 29 his is Dennison's credited version of the meeting. Wells, Stack, and Henkel all denied that anything like this ever happened, Stack adding that "George Dennison is a liar." Dennison's general demeanor was excellent, and his command of the details of the meeting indicated that he was testifying from experience rather than make believe. Further, had he manufactured the entire meeting from whole cloth, he likely would have told a story much more incriminating of Groves-Granite. In addition, Groves- Granite's counsel states in his brief that he is "inclined to believe" that "Stack called Mr. Dennison in to discuss exactly what Mr. Dennison testified that they did discuss .... " 62 GROVES-GRANITE considerations that bear on union membership or are otherwise arbitrary or in bad faith.30 Misconduct ordinari- ly cannot be inferred from a union's simple refusal to institute grievance action; 31 nor does negligence or poor judgment, untainted by improper considerations, give rise to a violation.3 2 As in other dealings with those it represents, however, a union may not purposely keep employees uninformed or misinformed concerning their grievances; 33 and, having committed itself to the prosecu- tion of a grievance, a union is under a duty to present it most favorably to the employee.3 4 Applying this overlay of legal principle to the present situation, it is concluded that Peaslee fell short of his obligation in several respects; and, in so doing, violated Section 8(bX I )(A). First, although ostensibly seeking Baublitz' reinstatement, and in fact asking for it, Peaslee disparaged Baublitz and undermined the effort by telling Nilson and Omtvedt that he had "had a lot of trouble" with Baublitz; that it "just don't look like he's a normal person." In point is this observation by the Seventh Circuit: It is one thing for a grievant to attempt to pursue his remedy without [union] assistance and opposed only by one adversary. When that situation is compounded by two opponents, one of whom is supposedly his "own people," the bearing on the likelihood of his success assumes substantial significance. When one's own representative . .. proclaims a lack of merit, it is indeed likely to be a coup de grace to the claim.35 Second, Peaslee's abandonment of interest in Baublitz' reinstatement plainly was influenced by considerations that were both arbitrary and in bad faith. Thus, while the issue posed by the termination was whether Baublitz had been within his rights in refusing to work in the rain, which Peaslee concededly believed him to have been, the comments just mentioned reveal that Peaslee's handling of the matter was dictated by his view of Baublitz as a troublemaker and an abnormal person. This was indicated later, as well, when, in response to State Inspector Squire's report about the substandard condition of Chaussee's scaffolding, Peaslee observed that Baublitz was a "trouble- maker" and "could create his own problems" on a job. Arbitrariness and lack of good faith also were indicated by Peaslee's inability to provide meaningful detail in support of his testimony that he had been persuaded by Nilson and Omtvedt that "there was more to it" than just a refusal to work in the rain. Invited to amplify, Peaslee 30 Vaca v. Sipes, 386 U.S. 171 (1967); Bazarte v. United Transportation Union, 429 F.2d 868 (C.A. 3, 1970); Figueroa v. Sindicato de Trabajadores Packinghouse, AFL-CIO, 425 F.2d 281 (C.A. 1, 1970); Buffalo Newspaper Guild Local 26, American Newspaper Guild (Buffalo Courier Express), 220 NLRB 79 (1975); Local 575, Packinghouse Division, Amalagmated Meat Cutters and Butcher Workmen (Omaha Packing Co.). 206 NLRB 576, 579 (1973). 31 Vaca v. Sipes, supra at 386 U.S. 191. 32 Bazarte v. United Transportation Union, supra at 872. 33 Cf., Local No. 324, International Union of Operating Engineers (Michigan Chapter, AGC), 226 NLRB 587 (1976); Asbestos Workers, Local No. 5 (Insulation Specialties Corp.), 191 NLRB 220, 221 (1971). 3' Aaron Kesner v. N. LR.B., 532 F.2d 1169 (C.A. 7, 1976), affg. sub nom. Truck Drivers, Oil Drivers and Filling Station and Platform Workers, Local No. 705 (Associated Transport, Inc.), 209 N LRB 292 (1974). 35 Kesner v. N.L. R. B., supra at 1175. offered lamely that it was "probably his [Baublitz'] work record, inability to not (sic] stay steady on the job." Even more damning was Peaslee's intimation that another reason for his inaction was the state complaint Baublitz had filed against Chaussee-"you've got a hard problem on your hands right there." The filing of such complaints being an activity protected by the Act,36 this amounted to a confession that Peaslee was motivated in part by proscrib- ed discriminatory considerations. In short, Peaslee's halting testimonial attempts to justify his conduct revealed with arresting eloquence that, as the Board once noted in a similar case, he "just did not 'give a damn.' "37 A third respect in which Peaslee failed in his duty to Baublitz was in his failure ever to tell Baublitz, after Nilson and Omtvedt had induced him to reverse his field, that he had no further intention of seeking Baublitz' reinstatement. He instead misled Baublitz to the contrary, perhaps irreparably harming Baublitz' ability to obtain redress through alternative channels, by stating, whenever Baublitz asked about the matter: "We'll see what we can do." Peaslee committed yet another violation of Section 8(bXl)(A) by threatening Baublitz with executive board action for writing the letter to Guy Adams of the State Council complaining about Peaslee.3 8 Although this conduct is not alleged as a violation, it was fully litigated. It is therapeutically desirable, moreover, that the unlawful finding be made. The Baublitz/Groves-Granile Situation: The General Counsel contends that, "for arbitrary and invidious reasons," Local 2205 attempted to and did cause Groves- Granite to discharge Baublitz, thereby violating Section 8(bX2) and (IXA). He further contends that Groves- Granite discharged Baublitz in collaboration with Local 2205, thereby violating Section 8(aX3). There is no contention that the discharge was improper if not induced by Local 2205. 39 It is concluded that both Respondents violated the Act as alleged. While the evidence is heavily circumstantial, it warrants findings that Peaslee and Wells had worked out an accord that Baublitz should be transferred; and that, as a direct outgrowth of this, Vestal prevailed on Wells to go ahead and discharge him. Not only did Respondents fail to bring forth persuasive evidence to overcome the presump- tion of wrongdoing that attends a union-influenced change in job status,4 but the record leaves no doubt that their actions were in specific response to Baublitz' having 36 Alleluia Cushion Co., Inc., 221 NLRB 999 (1975). 37 United Steelworkers of America, AFL-CIO (Interroyal Corp.), 223 NLRB 1184 (1976). Peaslee's vast and seemingly willful indifference to Baublitz' needs was graphically shown in other ways also, as when, after failing to appear at the February 18 unemployment hearing, he explained to Cubbage that "something more important came up" and that he had not notified Baublitz of this because it had "completely skipped" his mind. 38 Buffalo Newspaper Guil4 supra. 33 Although the record gives rise to a contrary suspicion, there is neither contention nor proof enough to support a finding that Baublitz was discharged in part for complaining about Henkel's working with the tools. 40 Quoting from International Union of Operating Engineers Local 18. AFL-CIO (William F Murphy), 204 NLRB 681 (1973): When a union ... causes an employee's discharge. it has demonstrated its influence over the employee and its power to affect his (Continued) 63 DECISIONS OF NATIONAL LABOR RELATIONS BOARD brought an internal union charge against Peaslee-activity protected by the Act in any event.4' On the threshold issue of union causation, there is, first, provocation. Baublitz filed his internal charge against Peaslee on March 5-just I week before the discharge occurred. Peaslee was "shocked" by Baublitz' action, engaging him in a bitter argument over it on March 8. It would not be surprising, therefore, if Peaslee were vindic- tively disposed toward Baublitz, particularly since there are sundry record indications that Peaslee does not accept criticism with equanimity. That he indeed was so disposed was revealed by his comment to Cubbage, sometime between March 5 and 12, that he did not know if he should represent Baublitz or Chaussee in the unemployment hearing because of "all the trouble" Baublitz had caused, and by his checking the currency of Baublitz' dues, with its union-security implications, shortly after the March 8 argument. Although there is no explicit evidence that Peaslee's irritation translated into an attempt to affect Baublitz' job status, there is ample basis for inferring that the discharge was precipitated by some kind of understanding between Peaslee and Wells on that general subject, their denials notwithstanding. 42 Indicative of this, Wells raised with Vestal the idea of a transfer instead of a discharge, and Peaslee reacted, upon learning of the discharge: "They fouled me up. They said they would transfer him." There was, in addition, the testimony of Henkel and Stack. Henkel testified, on the one hand, that the discharge decision was entirely his own, based upon Baublitz' mistake-proneness and attitude; Stack, on the other, that the decision was his, based on Baublitz' "wandering around the deck," and that mistakes had nothing to do with it. While either of these versions, if credited, would destroy any notion of union complicity, their inconsisten- cies and vagueness are at once self- and mutually destructive, consequently tending in the opposite direc- tion.43 True, Peaslee may have discussed Baublitz' being transferred with Wells for reasons having nothing to do with the internal union charge-perhaps even to save Baublitz from discharge. But, if something like that were so, why did they not so testify? Wells instead denied even that a transfer had been considered until faced with his affidavit, and both he and Peaslee denied to the end ever livelihood in so dramatic a way that we will infer-or, if you please, adopt a presumption that-the effect of its action is to encourage union membership on the part of all employees who have perceived the exercise of that power. See also Bricklayers Local No. 7, Bricklayers, Masons and Plasterers International Union of America, AFL-CIO (Masonry Builders, Inc.), 224 NLRB 1021, (1976); Millwrights' Local 1102, United Brotherhood of Carpenters and Joiners of America AFL-CIO (Planet Corporation), 144 NLRB 798, 800 (1963). "Union membership," in this context, has been defined to include "participation in union activities." Radio Officers' Union of the Commercial Telegraphers Union, AFL [A. H. Bull Steamship Co.] v. N.L.R.B., 347 U.S. 17, 40(1953). 1i E.g., Warehouse Union Local 860, Teamsters (Admiral Corp.), 195 NLRB 68 (1972); United Brotherhood of Carpenters & Joiners of America, Local 1281 (Raber-.Kief Inc.), 152 NLRB 629 (1965); Hod Carriers' and Construction Laborers' Union, Local No. 300 (Desert Pipe Line Construction Co.), 145 NLRB 1674 (1964). 42 It is not necessary to violation that the precise dialogue underlying the discussing Baublitz with each other. Remembering the adverse presumption under which they were laboring, it is not for me to hypothesize an acceptable scenario in defiance of their own resolute "stonewalling." Peaslee's postdischarge meeting with Vestal and Traut- man, purportedly in quest of Baublitz' reinstatement, was not at odds with Peaslee's having played a role in the discharge. Not only was Peaslee acting on a mandate from Cubbage, but, as Vestal observed, he was not "all that insistent" that Baublitz be reinstated. More telling, Peaslee himself depicted the meeting as cosmetic in purpose, admitting to Cubbage that the "intent of the meeting" had been to show, "once and for all," that Baublitz "was not a qualified carpenter and . . . that he was terminated for cause." The Stevenson Situation: The General Counsel's conten- tions concerning Groves-Granite's discharge of Stevenson are identical to those concerning its discharge of Bau- blitz-that, "for arbitrary and invidious reasons," Local 2205 attempted to and did cause the discharge, thereby violating Section 8(bX2) and (IXA); and that Groves- Granite effected the discharge in collaboration with Local 2205, thereby violating Section 8(aX3). Again, there is no contention that the discharge was improper if not induced by Local 2205. It is concluded, relying once more on evidence more circumstantial than direct, that Local 2205 violated the Act as alleged. It is further concluded, however, that the record does not support a violation by Groves-Granite, certain of the evidence essential to the conclusion regarding Local 2205 being hearsay as to Groves-Granite. That Local 2205 was party to Stevenson's discharge is suggested, first, by Peaslee's undoubted animosity toward him. Stevenson not only had accused Peaslee of mismanag- ing the hiring hall to Stevenson's detriment, but obtained referral to Groves-Granite only after bringing pressure from those higher in the hierarchy of the United Brother- hood of Carpenters. Peaslee would have been less than human for this not to have angered him, and his natural anger likely was compounded by his notable intolerance of criticism-a trait earlier mentioned. The inference against Local 2205 gains vital impetus from the admission of Bull Steward Corn to Eugene O'Dell that Stevenson "wasn't going to last" on the job; that he, Corn, had been instructed by Wells to "keep a record of understanding be fleshed out. As stated in Northwestern Montana District Council of Carpenters' Union and United Brotherhood of Carpenters and Joiners of America, Local No. 911 (Glacier Park Co.), 126 NLRB 889, 897- 898 (1960): "An express demand or request is not essential to a violation of Section 8(bX2) of the Act. It suffices if any pressure or inducement is used by the union to influence the employer." 43 As stated in Shattuck Denn Mining Corp. v. N.LR.B., 362 F.2d 466, 470(C.A.9, 1966): [Tlhe trier of fact may infer motive from the total circumstances proved. .... If he finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal- an unlawful motive-at least where ... the surrounding facts tend to reinforce that inference. See also Grede Foundries, Inc., 211 NLRB 710, 712 (1974): "The offering of a spurious defense, of course, supports an inference as to the unlawfulness of the real reason." 64 GROVES-GRANITE Stevenson's activities during the day; . .. and that when they felt they had enough evidence to fire him with a 'not- for-rehire' slip that they could make stick that he would be terminated." The adverse inference takes added strength from the brevity of Stevenson's tenure--I week-before being discharged; from the seemingly pretextuous stated reason for the discharge, conceded even by Groves-Granite on reconsideration to have been unworthy; and from Peaslee's complaints, made in the context of the postdischarge investigation by Cubbage and Brown, that Morton had taken issue with his agreement to back Groves-Granite in its discharge of troublemakers, and that Morton had lectured him that he "represented the men regardless of what their attitudes were." This aggregate of circumstances warrants a finding that Local 2205 was instrumental in Stevenson's discharge. And, much as in the case of Baublitz, Local 2205 not only failed to bring forth persuasive evidence to meet the attendant presumption of wrongdoing, but the record establishes that its action was in reprisal for Stevenson's going over Peaslee's head concerning the way he operated the hiring hall-activity protected by the Act, regardless. As indicated above, not all of the elements comprising the case against Local 2205 are available in assessing the conduct of Groves-Granite. Specifically, Corn's admission to O'Dell that he was collaborating with Groves-Granite in setting up Stevenson's discharge, and Peaslee's admission to Cubbage and Brown about an agreement with Groves- Granite over the discharge of troublemakers, were hearsay as to Groves-Granite and thus cannot be used against it." Those elements removed, there is insufficient basis for inferring that Stevenson's discharge was union connected. To be sure, there remain the suspect circumstances that the discharge was accomplished within a few days of referral, and for a seemingly pretextuous stated reason. Then there is the added factor that the reputed decisionmaker, Krutsinger, inexplicably did not testify-an oversight hardly accruing to Groves-Granite's benefit.45 But the pretextuousness of a stated reason is not tantamount to an unlawful reason, 48 and Krutsinger's absence simply does not offset the missing nexus. The Alleged Interrogation and Threat: The General Counsel contends that Groves-Granite, by Wells, Stack, and Henkel, interrogated and threatened George Dennison in an attempt to influence his testimony concerning the present charges, thereby violating Section 8(aX)(). It will be recalled that, shortly after Baublitz filed the charges, Dennison was called to Stack's office. Stack asked what Dennison knew about the charges, after which Stack and Henkel berated Baublitz and disputed Dennison's 44 Rule 801(d) of the Federal Rules of Evidence states: "A statement is not hearsay if. . .(2) The statement is offered against a party and is. ..(E) a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy." Corn's critical admission to O'Dell unquestionably satisfies the "during the course" criterion. It does not, however, meet the "in furtherance or' requirement, and thus cannot be used against Groves-Granite. See, generally, Wong Sun v. United States, 371 U.S. 471, 490-491 (1963); Krulewitch v. United States, 336 U.S. 440, 443-45 (1949): N. LR.B. v. Local 776, International Alliance of Theatrical and Stage Employees (Film Editors) [Caseade Pictures Co. of California], 303 F.2d 513 (C.A. 9, 1962); N.LR.B. v. Amalgamated Meat Cutters & Butcher Workmen insistence that he was "a good man." Wells stated, at the end of the meeting: "I don't see no problem here. You fellows know what to do with employees who don't cooperate. You can handle this." Dennison testified: "The point of the whole conversation seemed to be that they were trying to blame me partly for Mr. Baublitz' failure, you know," inasmuch as Dennison had "recommended Mr. Baublitz in the beginning." If Wells, Stack, and Henkel were trying to influence the testimony Dennison might give to the NLRB, they obviously did not make their purpose understood to him. He gave the impression, moreover, of possessing normal acumen. Recognizing that Dennison's subjective percep- tion is not dispositive, it nevertheless is concluded, based on that perception in combination with an objective evaluation of the evidence, that the record is too ambigu- ous to carry the General Counsel's burden as concerns these allegations. CONCLUSIONS OF LAW 1. By threatening Baublitz with executive board action because he wrote a letter complaining of the way the business representative performed his union duties, as found herein, Local 2205 violated Section 8(bXIXA) of the Act. 2. By failing to represent Baublitz adequately after Chaussee had discharged him-specifically, by disparaging the worthiness of the cause to management officials; by abandoning interest in Baublitz' reinstatement based on considerations that were arbitrary, in bad faith, and discriminatory; and by misleading Baublitz concerning Local 2205's position in the matter-as found herein, Local 2205 further violated Section 8(bX IXA) of the Act. 3. By causing Groves-Granite to discharge Stevenson on January 15, 1976, and Baublitz on March 12, 1976, in violation of Section 8(aX3) of the Act, as found herein, Local 2205 in each instance violated Section 8(bX2) and (IXA) of the Act. 4. By discharging Baublitz in response to improper union influence, as found herein, Groves-Granite violated Section 8(aX3) and (1) of the Act. 5. These unfair labor practices affect commerce within Section 2(6) and (7) of the Act. 6. There is insufficient evidence to sustain the other allegations of misconduct by Groves-Granite. Upon the foregoing findings of facts, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: of North America, Local No. 127, 202 F.2d 671 (C.A. 9, 1953); McCormick, Evidence 645-646 (2d ed. 1972); Levie, Hearsay and Conspiracy, 52 Mich. L. Rev. 1159(1954). 4s See Goodyear Tire &d Rubber Co. v. N. L R. B., 456 F.2d 465, 468 (C.A. 5, 1972). 46 Maple Shade Nursing Home, Inc., d/b/a Maple Shade Nursing and Convalescent Center, 223 NLRB 1475 (1976). 65 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER47 A. Respondent Carpenters Local No. 2205, United Brotherhood of Carpenters & Joiners of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Threatening Leroy C. Baublitz or any other employee with executive board action for complaining in a manner protected by the Act of the way the business representative performs his duties. (b) Failing to represent Leroy C. Baublitz or any other employee adequately in grievance matters, by disparaging the cause to management officials; by abandoning interest in the grievance based upon considerations that are arbitrary, in bad faith, or discriminatory; or by giving misleading information to the aggrieved employee concern- ing the Union's position in the matter. (c) Causing or attempting to cause Groves-Granite, or any other employer, to discharge or otherwise discriminate against Steve Stevenson, Leroy C. Baublitz, or any other employee, in violation of Section 8(a)(3) of the Act. (d) In any other manner restraining or coercing employ- ees in the exercise of their rights under the Act. 2. Take this affirmative action necessary to effectuate the policies of the Act: (a) Promptly request of Chaussee Corporation that it submit to grievance proceedings the propriety of Chaus- see's discharge of Leroy C. Baublitz on or about October 30, 1975.48 (b) Jointly with Groves-Granite, or severally, make Leroy C. Baublitz whole for any loss' of earnings and benefits suffered because of the misconduct resulting in his discharge by Groves-Granite on March 12, 1976, backpay to be computed in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (c) Make Steve Stevenson whole for any loss of earnings and benefits suffered because of the misconduct resulting in his discharge by Groves-Granite on January 15, 1976, backpay to be computed in accordance with F. W. Woolworth Company and Isis Plumbing & Heating Co., supra. (d) Preserve and, upon request, make available to the Board, or its agents, for examination and copying, all records necessary for determination of the amounts owing under the terms of this Order. (e) Post at its offices, meeting halls, and hiring halls, copies of the attached notice marked "Appendix A."4 9 Copies of said notice, on forms provided by the Regional Director of Region 19, after being signed by an authorized representative of Local 2205, 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 members customarily are posted. Reasonable steps shall be taken to ensure that said notices are not altered, defaced, or covered by other material. (f) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Local 2205 has taken to comply herewith. B. Respondent Groves-Granite, a Joint Venture, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees in collaboration with, or in response to unlawful pressures from, Carpenters Local No. 2205, United Brotherhood of Carpenters & Joiners of America, or any other labor organization. (b) In any other manner interfering with, restraining, or coercing employees in the exercise-of their rights under the Act. 2. Take this affirmative action necessary to effectuate the policies of the Act: (a) Jointly with Carpenters Local No. 2205, or severally, make Leroy C. Baublitz whole for any loss of earnings and benefits suffered because of the unlawful discharge of him on March 12, 1976, with backpay to be computed in accordance with F. W. Woolworth Company and Isis Plumbing & Heating Co., supraz (b) Preserve and make available, upon request, to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all records necessary to analyze the amounts of backpay and benefits owing under the terms of this Order. (c) Post at its project at Chief Joseph Dam, Bridgeport, Washington, the notice which is attached and marked "Appendix B." 50 Copies of the notice, on forms provided by the Regional Director for Region 19, after being duly signed by Groves-Granite's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Groves-Granite to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 19, in writing, within 20 days from the date of this Order, what steps Groves-Granite has taken to comply herewith. IT IS FURTHER RECOMMENDED that the unproven allega- tions against Groves-Granite be dismissed. 47 All outstanding motions inconsistent with this recommended Order hereby are denied. 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. 102AS8 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. 4e Rather than now attempt to figure whatever wage and benefit loss Baublitz may have suffered because of Local 2205's failure to represent him adequately regarding the Chaussee discharge, it is recommended that the Board retain jurisdiction over this matter for the purpose of entertaining a timely motion to reopen the proceeding, following exhaustion of the grievance process, to deal with any unresolved questions of economic detriment. E.g., Local 485, International Union of Electrical, Radio & Machine Workers, AFL-CIO (Automotive Plating Corp.), 170 NLRB 1234 (1968), and 183 NLRB 1286 (1970); and Port Drum Company, 170 NLRB 555 (1968), and 180 NLRB 590 (1970). 49 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." 1o See fn. 49, supra. 66 GROVES-GRANITE APPENDIX A NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten Leroy C. Baublitz or any other employee with executive board action for com- plaining in a manner protected by the Act of the way the business representative performs his duties. WE WILL NOT fail to represent Leroy C. Baublitz or any other employee adequately in grievance matters, by disparaging the cause to management officials; by abandoning interest in the grievance based upon considerations that are arbitrary, in bad faith, or discriminatory; or by giving misleading information to the aggrieved employee concerning the Union's posi- tion in the matter. WE WILL NOT cause or attempt to cause Groves- Granite, or any other employer, to discharge or otherwise discriminate against Steve Stevenson, Leroy C. Baublitz, or any other employee, in violation of Section 8(a)(3) of the Act. WE WILL NOT in any other manner restrain or coerce employees in the exercise of their rights under the Act. WE WILL promptly request of Chaussee Corporation that it submit to grievance proceedings the propriety of Chaussee's discharge of Leroy C. Baublitz on or about October 30, 1975. WE WILL, jointly with Groves-Granite, or severally, make Leroy C. Baublitz whole for any loss of earnings and benefits suffered because of the misconduct resulting in his discharge by Groves-Granite on March 12, 1976. WE WILL make Steve Stevenson whole for any loss of earnings and benefits suffered because of the miscon- duct resulting in his discharge by Groves-Granite on January 15, 1976. CARPENTERS LOCAL No. 2205, UNITED BROTHERHOOD OF CARPENTERS & JOINERS OF AMERICA APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise discriminate against employees in collaboration with, or in response to unlawful pressures from, Carpenters Local No. 2205, United Brotherhood of Carpenters & Joiners of America, or any other labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights under the Act. WE WILL, jointly with Carpenters Local No. 2205, or severally, make Leroy C. Baublitz whole for any loss of earnings and benefits suffered because of our unlawful discharge of him on March 12, 1976. GROVES-GRANITE, A JorNT VENTURE 67