Iron Workers Local 783 (BE&K Construction)

734 311 NLRB No. 73 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 In the third paragraph of sec. II,C,2 of his decision, and in the first paragraph of sec. II,F,4,e, the judge stated, respectively, (1) that most of the passengers on the chartered bus from Iron Mountain, Michigan, to International Falls, Minnesota, on September 8–9, 1989, were members of the Respondent, and (2) that the passengers on the bus were drawn primarily from the Respondent’s member- ship. But the record does not actually reveal the names or organiza- tional affiliations of the passengers who were on the bus to Inter- national Falls. The record does, however, reveal the names and union affiliations of the passengers who were on the bus as it began its return trip from International Falls later in the day on September 9. There were 32 passengers on the bus then, 11 of whom were members of the Respondent. In the fourth paragraph of sec. II,E of his decision, the judge stat- ed that bus owner Donald Dabb testified that Respondent Business Manager John LaVallee telephoned him in late summer 1989 to ask about chartering a bus for a trip to ‘‘Minnesota.’’ Dabb’s testimony at the hearing, however, which was consistent in this regard with his testimony in an earlier deposition that is in evidence, was that LaVallee asked about a trip to ‘‘Minneapolis.’’ In fn. 3 of his decision, the judge stated that Ralph Guentzel was a member of the Respondent. The record establishes that Guentzel was a member of Iron Workers Local 563, but not that he was also a member of the Respondent. From the context of his fn. 3, it ap- pears that the judge meant to refer to Robert Genschow, a member of the Respondent who was convicted of riot, but who was not on the bus when it began its return trip from International Falls on Sep- tember 9, 1989. Finally, in the sixth paragraph from the end of sec. II,G of his de- cision, the judge inadvertently referred to the deposition of Kenneth Perry as Jt. Exh. 40, rather than 39. 2 The Charging Party has excepted to some of the judge’s credi- bility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 3 We note that LaVallee obtained a personal loan which he used for these activities. This loan was repaid approximately 2 months later through contributions made by the Respondent’s members and others. Iron Workers Local No. 783, International Associa- tion of Bridge, Structural and Ornamental Iron Workers, AFL–CIO and BE&K Construction Company. Case 18–CB–2021 May 28, 1993 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS DEVANEY AND OVIATT On April 29, 1992, Administrative Law Judge David G. Heilbrun issued the attached decision. The Charging Party filed exceptions and a supporting brief, and the Respondent filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The National Labor Relations Board has considered the decision and the record1 in light of the exceptions and briefs and has decided to affirm the judge’s rul- ings, findings,2 and conclusions and to adopt the rec- ommended Order. We abhor the rioting, violence, physical attacks, and property damage that occurred at the Charging Party’s man-camp on September 9, 1989. But we agree with the judge that the General Counsel has not established by a preponderance of the evidence that the Respond- ent participated in this misconduct, or that it is other- wise responsible for it. We note in this connection that the Charging Party has excepted, inter alia, to the judge’s finding that the activities of Respondent Business Manager John LaVallee in personally arranging but not paying for legal representation and posting bail for the Respond- ent’s members who were arrested in conjunction with the riot did not constitute condonation or ratification by the Respondent of the misconduct that its members were at that point alleged to have engaged in. For the reasons set forth below, we find no merit in this ex- ception. Four members of the Respondent did ultimately plead guilty early in 1990 to criminal charges of riot. But at the time LaVallee posted bail for them and for others who also were arrested, no judicial determina- tion had yet been made that any of them had engaged in any unlawful act, and they were thus still presump- tively innocent of any wrongdoing. Indeed, three of the seven members of the Respondent who were arrested were subsequently released. Under these circumstances, we find LaVallee’s per- sonal activities on behalf of members of the Respond- ent was not condonation or ratification by the Re- spondent of the alleged misconduct for which the members had been arrested.3 Rather, LaVallee merely assisted certain of the Respondent’s members to exer- cise a legal and constitutional right. Accordingly, the judge properly refused to hold the Respondent liable for the misconduct under principles of condonation and ratification. ORDER The recommended Order of the administrative law judge is adopted and the complaint is dismissed. Everett Rotenberry, Esq., for the General Counsel. Nino E. Green (Green, Renner, Weisse, Rettig, Rademacher & Clark, P.C.), of Escanaba, Michigan, for the Respond- ent. Dion Y. Kohler (Ogletree, Deakins, Nash, Smoak & Stewart), of Atlanta, Georgia, and Lowell J. Noteboom (Leonard, Street & Deinard), of Minneapolis, Minnesota, for the Charging Party. 735 IRON WORKERS LOCAL 783 (BE&K CONSTRUCTION) DECISION STATEMENT OF THE CASE DAVID G. HEILBRUN, Administrative Law Judge. This case was heard at Minneapolis, Minnesota, over a course of 4 trial days comprising April 16–19, 1991, inclusive. The charge was filed January 29, 1990, by BE&K Construction Com- pany (for brevity BE&K), and the complaint was issued De- cember 14, 1990. The primary issue is whether Iron Workers Local No. 783, International Association of Bridge, Struc- tural and Ornamental Iron Workers, AFL–CIO (Respondent) restrained and coerced employees in the exercise of their rights guaranteed in Section 7 of the National Labor Rela- tions Act by participating in a riot in violation of Section 8(b)(1)(A) of the Act. On the entire record, including my observation of the de- meanor of witnesses, and after consideration of briefs filed by all parties, I make the following FINDINGS OF FACT I. JURISDICTION BE&K is a Delaware corporation which maintained an of- fice and place of business in International Falls, Minnesota, where at all times material, it was engaged in construction and installation of industrial facilities, machinery, and equip- ment. During calendar year 1990 BE&K, in the course and conduct of such business operations, purchased and received products, goods, and materials at this jobsite valued in excess of $50,000 directly from points outside the State of Min- nesota. On these admitted facts I find that BE&K is, and at all times material has been, an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act, and that Respondent, as also admitted, is, and at all times material has been, a labor organization within the meaning of Section 2(5). II. THE ALLEGED UNFAIR LABOR PRACTICES A. Overview On September 9, 1989, a riot happened at the employee housing center for a large construction project in northern- most Minnesota. Extensive background events were plainly associated to this riot, which took many forms touching po- litical, business, trade union, and community interests. The essential context was institutional and ideological fric- tion when a major industrial construction company undertook a locality-sensitive papermill expansion by its habitual ap- proach of operating nonunion. Respondent is here accused of complicity in this labor dispute-based riot, both by intention and by covert action. B. Geographic and Organizational Matrix The enormous amount of activity which this case concerns took place along a crescent of the northern Great Lakes area. This ran generally from Marquette situated at a central point in Michigan’s upper peninsula, westerly through the tip of Wisconsin to round by Duluth, Minnesota, at the end of Lake Superior, and turn northerly to International Falls situated at the Canadian border. This total distance is about 400 miles. As a factor in the various communicating, venturing, and miscellaneous itineraries that occurred, I also identify Iron Mountain, Michigan. This city is akin to being the hub of a small population locale almost astride the Michigan-Wis- consin state line about 75 miles southwest of Marquette, and where much of the case focus truly relates. Respondent, an organization of 315 members, is a local af- filiate of the Iron Workers International Union, the offices of which are in Washington, D.C. Its designated trade jurisdic- tion coincides with the area of Michigan’s upper peninsula. At the Michigan-Wisconsin state line this adjoins the com- parably understood geographic jurisdiction of Iron Workers Local 563 situated in Duluth. Respondent’s intermediate union affiliations are principally as constituent of the Iron Workers International Union, or with organizations of the unionized building trades as these comprise and draw from various construction crafts. In this sense Respondent is a part of the Iron Workers North Central States District Council, the Upper Peninsula Building, and Construction Trades Council and, to illustrate parallels with Local 563, the Michi- gan State AFL–CIO and the Michigan State Building and Construction Trades Council (BCTC). John LaVallee has been Respondent’s business manager, financial secretary, and treasurer since 1973. He operates from an office in Mar- quette, situated in a building shared with other unions. The only other full-time paid employee of Respondent is Beatrice Anderson, an office secretary of over 20 years’ service with the organization. Kenneth (Ken) Perry is Respondent’s elect- ed president and the only other person within the organiza- tion other than LaVallee who possesses pronounced execu- tive and financial authority. LaVallee holds concurrent office in the North Central States District Council as its recording secretary. Escanaba, Michigan, is a city on the north shore of Lake Michigan about 60 miles south of Marquette. Quinnesec is a small community in Michigan only several miles from Iron Mountain. During the summer of 1989 Respondent had members employed on major construction jobs at both Esca- naba and Quinnesec. The smaller of these at Escanaba was a project for owner, Mead Paper Company, with Fru-Con of St. Louis, Missouri, as the general contractor. Respondent had reached a project agreement with Fru-Con for this job, and over the course of its approximately 2 years’ duration furnished a fluctuating crew of ironworkers ranging from 20 to 50. The Quinnesec job was a $350 million paper machine in- stallation for Champion International Paper, which also ran about 2 years for completion. Rust Engineering served as a unionized general contractor for this project. The peak em- ployment of ironworkers furnished by Respondent for Quinnesec was about 250 during the eventful September–Oc- tober 1989 timespan. Besides these two main projects Respondent had about 150 of its members employed with 25 or so other contractors at various locations within its jurisdiction. In keeping with typical craft union practices Respondent also administered a referral program from its Marquette office. Under this ‘‘trav- elers’’ from other Iron Workers locals, predominantly the ad- joining Local 563 and often, too, from North Dakota Local 793, would work at the trade for contractors engaged in Michigan upper peninsula construction jobs. Local 563 is a member of the Iron Range Building and Construction Trades Council covering northern Minnesota, 736 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1 All dates and named months hereafter are in 1989 unless other- wise indicated. the same Iron Workers North Central States District Council, the Minnesota State AFL–CIO, and the Minnesota State BCTC. The business manager of Local 563 is Fred Salo, an individual who also concurrently holds office in the Iron Range BCTC. The president of Minnesota State BCTC is William (Bill) Peterson, whose office is in St. Paul. C. Condensed Background 1. Preceding the riot In 1988 Boise Cascade announced plans for a $500 mil- lion plant expansion of its papermill at International Falls. Initially Fru-Con was expected to handle the project and building trades unions, urgently interested in securing a union mode on the imminent construction work, negotiated for several months with Fru-Con. In March 1989 Boise Cas- cade actually awarded the expansion project to BE&K, after a large demonstration for public support of a union contract manager had been arranged by local unions around Inter- national Falls. Actual work by BE&K began in early July 1989 with over 100 employees of its own, and subcontractor awards to both union and nonunion employers. By mid-July approximately 100 construction workers were also on the site for various union subcontractors. BE&K’s own employees, in keeping with its operating style, were nonunion as were persons em- ployed by any nonunion subcontractor which by then had commenced its phase of the project.1 On July 18 a walkout by the unionized construction trades personnel occurred, and disruptive picketing activity at the jobsite commenced in protest of BE&K and nonunion sub- contractors. Within several days BE&K obtained a temporary restraining order which limited picketing activity and re- stored a measure of control regarding the dispute. BE&K soon replaced the subcontractors whose union workers had walked out with nonunion subcontractors, and the project continued on that adjusted basis as the summer months passed. On August 28 a major incident occurred at an employment center maintained by BE&K in a post office basement near the jobsite. Early on that Monday morning this employment office, at which several dozen hires were completing paper- work preliminary to their job orientation, was descended on by protesters. A crowd of about 40 persons began a men- acing disturbance around 7:45 a.m. From their congregation on the outdoor sidewalk they burst down the stairwell and into the personnel lobby, yelling obscenities, vandalizing the application process, and generally intimidating persons in- side. Both police and the Vance International Security Serv- ice used by BE&K were summoned, and the disturbance was quelled in its serious stage. However, many of the perpetra- tors remained for several hours outside, performing, threat- ening, or destructive activity. Members of this crowd were wearing clothing with union insignia from places as far as Michigan, and they keyed much of their demonstration ire to the theme of ‘‘rat(s)’’ as their objective of protest. By early September a specialty builder hired by BE&K had finished early phases of an employee housing center lo- cated about 2 miles from the actual Boise Cascade expansion project. As ultimately intended for occupancy by about 1000 persons in dormitory style living, it was then in use by over 100 plus several dozen Vance personnel also housed within this fenced ‘‘man-camp.’’ Just prior to September 9 rumors circulated throughout the community that a large disturbance was about to affect the man-camp. 2. The riot of September 9 Early in the morning of September 9 large groups began assembling near the man-camp, most of them after arriving from outlying or distant points. The situation was under monitoring by law enforcement authorities, as most promi- nently under the command of International Falls Police Cap- tain Randy Borden. This officer had reacted to the fully cir- culating rumor by a special dispersal of his own and auxil- iary law enforcement personnel to best position themselves for the rumored event. By as early as 6 a.m. on September 9 it was apparent to Borden that trouble was imminent be- cause of roadways being blocked and loud exhortation to at least trespass. In further reaction to the rumored event BE&K had can- celed work at the project for that Saturday, and had evacu- ated all resident employees of the man-camp the night be- fore. As the early morning hours of September 9 unfolded the gathered crowd of about 150 persons moved purposefully and ominously from their point of congregation in the city to the man-camp location. Borden deployed his 15 available police officers to the scene as size, mood, and momentum of the crowd increased. From about 7 a.m. and for nearly the next hour, the crowd now grown to over 200 and eventually to total about 450, rioted during a breaking down of fencing at the man-camp. This was followed by extensive destruction after they had surged inside the facility and caused personal injury to some Vance guards by rock throwing and physical beatings. Vehicles inside the man-camp were damaged and overturned, dormitories and their contents were vandalized, and various buildings set afire before the rioters withdrew. The monetary total of loss associated to the riot was approxi- mately $2 million. Among persons participating in this riot were those on a chartered bus that had left Iron Mountain, Michigan, the night before. This bus departed about 7 p.m. on Friday, Sep- tember 8, and arrived in International Falls at about 3 a.m. after the customary 8 hours’ driving time. Most of the bus passengers were members of Respondent, and as requested the driver let them out at a union hall. The cost of the round- trip charter was to be $1150, and this amount was paid in cash by the unseen act of money being left on the dashboard just before departure. The bus had been scheduled for a mid- day return trip on September 9, but it was stopped in transit out of International Falls by police. All occupants were for- mally disembarked as part of investigatory and preprosecutive work relative to the riot. It eventuated that 14 persons from the bus were arrested, and from this number Respondent’s members William Ahlich, Leslie Bedell, and Richard Pascoe, along with former member Daniel (Dan) Miller plus two ironworkers then working in travel status out of Respondent’s office and three persons in construction trades other than ironworker were convicted after guilty pleas to violating Minnesota law prohibiting riot. The animosity of unionized building trades to BE&K was fully documented. Presentation was in keeping with common 737 IRON WORKERS LOCAL 783 (BE&K CONSTRUCTION) knowledge in labor relations of the institutional view held by AFL–CIO affiliates toward ‘‘merit shop’’—termed nonunion contractors. Here evidence was presented that as early as March 1988 the United Brotherhood of Carpenters and the United Paperworkers International Union announced their formation of a joint ‘‘Solidarity Committee.’’ A news release described their intention to carry out ‘‘programs in the forest products industry’’ with particular reference to a ‘‘BE&K Alert’’ relative to this company’s asserted ‘‘policy to under- cut union construction standards in papermill construction projects.’’ This one-sheet release was a harbinger of further reams showing the virulent hostility of building trades unions to the growing nonunion phenomenon in construction, and to BE&K in particular. Suffice it that such material showed an extreme depth of concern, national in scope of publicity and with brooding encouragement of the fullest sort of personal, community, and political pressures to counteract this threat against union labor. As to the specific expansion project at International Falls this objective manifested with involvement by Minnesota’s governor in the dispute, and litigation against numerous par- ties seeking to establish that a unionized basis for the project must exist because of legally enforceable dealings between Boise Cascade, Fru-Con, and the AFL–CIO unions of Min- nesota. The violent disruption at BE&K’s personnel office on August 28 had occurred principally from action by a bus load of unionists arranged for by officers of Pipe Fitters Local 728 located in Iron Mountain. Admittedly, too, the ex- tent and frequency of cross-communication between key union functionaries, Peterson, Salo, and LaVallee included, escalated as the seeming crisis of BE&K successfully verging on eventual project completion at the Boise Cascade expansion grew ever more realistic. D. Respective Contentions 1. As made at trial The General Counsel’s opening statement succinctly out- lined the project’s background, and set forth a goal of proof showing how Respondent ‘‘arranged transportation for its members and for others’’ in connection with the riot. The Charging Party’s counsel enlarged on case theory by terming the riot both ‘‘planned’’ by Respondent’s ‘‘covert’’ undertakings, and so shown by the ‘‘circumstantial evi- dence’’ to be adduced. In later colloquy the Charging Party’s counsel stated, ‘‘Our case is built on the activities and the interrelationship of these various unions . . . .’’ (Tr. 424.) Initial comment by Respondent’s counsel referred to the historically important source of employment in Michigan’s upper peninsula that papermill construction comprised, but from this contrasted his client’s total lack of any relationship with either Boise Cascade or BE&K in arguing that any ‘‘spontaneous’’ nature of the occurrence on September 9 ‘‘was in no way advocated, supported, urged or financed by the Respondent.’’ 2. As made in briefs In his brief counsel for the General Counsel contends how several components of circumstantial evidence in the case show that the bus load of members traveling from Inter- national Falls for arrival early on September 9 was an ‘‘offi- cial function’’ of Respondent. Chief among these compo- nents was an overwrought fear of successful nonunion con- tracting, coupled with a configuration of telephoning that would ‘‘strongly suggest’’ the claimed bus arrangements were in fact made by Respondent. In its brief BE&K advances three theories of violation from the solely circumstantial evidence in the case. It first contends that Respondent ‘‘instigated, planned and partici- pated’’ in the riot, second that even if not so doing it subse- quently ratified the riotous conduct, and that, third, its mem- bers’ ‘‘mass action’’ made Respondent liable for the con- sequences. Respondent’s posthearing brief disputes that circumstantial evidence, particularly the frequency of telephone calls among interested union functionaries, affords a ‘‘proper basis’’ for an inference that they were planning a riot. The brief further contends that the ‘‘vast quantity’’ of data totally fails to es- tablish the claimed planning of, or participation in, what eventuated as the man-camp riot. Generally Respondent’s brief is in harmony with its often-repeated statement during trial that documentary evidence, including telephone records, are without ‘‘relevance, materiality or other circumstances af- fecting the probative value’’ of such items as were admitted. E. Factual Highlights of the Case On July 24 LaVallee composed a letter on Respondent’s stationery which secretary Anderson typed. The letter was addressed to members and signed by LaVallee. It stated: The Boise Cascade Paper Company of International Falls, Minnesota, has selected BE&K as its Construc- tion Manager and General Contractor to build a 535 million dollar paper facility on a Merit Shop Basis. BE&K advised the Iron Range Building Trades Council that no more than 50% of the job would be subcon- tracted Union and in fact is performing Iron Work and other Trades work on the project on a non-union basis. Based on these circumstances and the fact that BE&K is importing non-union workers from the South, the Union Tradesman on the project have chosen not to work side-by-side with these non-union workers and are presently off the project and demonstrating against BE&K and the owner over their choice of importing non-union labor for the project. Local Union #563, Duluth, Minnesota needs our help, both financially and assisting in demonstrating their right not to work side-by-side with non-union workers. As Brother Iron Workers, we are asking you for a $10.00 per week voluntary contribution to assist their efforts. Please donate this contribution to your foreman on a weekly basis until notified otherwise. Thank you for your support. Before issuing this letter as an item of regular union mail, LaVallee first obtained legal advice. When it developed that the July 18 walkout at International Falls had not been offi- cially sanctioned, LaVallee did not send the letter out as planned. However it soon became known that a copy was circulating among ironworkers at the Quinnesec job, and learned even later that the contents had been printed in a Minnesota newspaper. I do not determine from any known 738 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 A time zone change separates the Marquette vicinity (Eastern) from points in Minnesota or Wisconsin (Central). Times shown from facts whether contributions passed through Respondent’s of- fice as a result of this letter being leaked; rather the entire murky matter of banded cash amounts that may or may not have been responsive is used as a factor in credibility evalua- tions to be made below. Donald Dabb individually owns and operates a charter bus service from his home in Aurora, Wisconsin, using the busi- ness name Northland Coaches. He is assisted by his wife and son, who particularly cover the telephone when Dabb himself is away as the principal driver for his business. Aurora is only a few miles from Iron Mountain across the state line, and Dabb was the provider of round-trip transportation for the charter arranged by Pipe Fitters Local 728 when its mem- bers traveled to International Falls and engaged in the per- sonnel office disturbance of August 28. Dabb testified that he had never dealt with a person named LaVallee until late summer of 1989, when a caller giving that name telephoned to make preliminary inquiry about the chartering of a bus for travel to Minnesota. According to Dabb he estimated the cost of such a trip, but the LaVallee person simply never called back and he assumed such plans were canceled. However Dabb did schedule and fulfill the chartered trip of September 8–9. He recalled this commitment originating by telephone from a male-voiced caller who identified him- self as ‘‘concerned persons’’ interested in an Iron Mountain- International Falls round trip. Dabb gave this price, advised that advance payment would be necessary, and agreed to start the trip at a bar in Iron Mountain named Dad’s Place. This establishment was, or had been, owned by the same Dan Miller later to be convicted of riot at International Falls. Dabb commenced the trip on schedule with 36 passengers after finding cash payment in the bus. One of the travelers said only that it had been left by ‘‘Dean.’’ The 7 p.m. depar- ture on September 8 was made and Dabb proceeded unevent- fully through the night to International Falls after one stop for a single passenger pickup at Iron River, Michigan. He did have very brief, and from his standpoint reluctant, conversa- tion with Miller during the drive. After his bus emptied in International Falls at approximately 3 a.m., Dabb told the travelers he would look for a local motel to sleep and that they should call him when the return travel was ready to be started. He was called in late morning by a person saying the group was ready to leave and ‘‘wanted to get out of town.’’ Before leaving his motel, Dabb had a brief discussion with a sheriff’s officer, the conversation amounting to the officer learning that Dabb was about to drive back and Dabb learn- ing that there had been ‘‘some problems’’ at the locality. He made the intended return pickup of passengers at the Viking Bar, and commenced the intended return just before noon after loading of passengers proceeded promptly. Before clear- ing International Falls, however, Dabb was stopped by police and his bus escorted to the city’s Law Enforcement Center for the disembarking consequences described above. Immediately after Dabb’s return to his home in Aurora an- other charter trip manifested for him to again travel to Inter- national Falls. Dabb testified that this arose by telephone contact from the ‘‘concerned persons’’ caller, and in con- sequence he left at 3 a.m. on Monday, September 11, to pick up the individuals that had been jailed following their arrests at the bus. When Dabb arrived at the International Falls Law Enforcement Center later that morning he learned that in fact no one was yet released for transport back to Michigan. He waited there for several hours until finally told by the local prosecuting attorney that no releases were imminent. At this point Dabb, and the accompanying friend who helped him drive on long-distance turnaround trips, went to Virginia, Minnesota, south of International Falls. They remained there at a Holiday Inn while waiting for more instructions, after notifying the Dabb home/office of their whereabouts. They actually stayed at this Holiday Inn for the nights of both Sep- tember 11 and 12, and then returned when the entire com- missioned charter proved futile. This result seemed plain after Dabb’s wife called him to say that ‘‘concerned per- sons’’ had telephoned her saying there should be no further waiting for the people in jail. Dabb testified that his overall charge would have been $1350, and none of this amount was ever paid. According to both Perry and LaVallee they began receiv- ing frequent inquiries from worried friends and family about the union members being held in Minnesota following the riot. Perry’s reaction to all this was relatively limited, how- ever LaVallee undertook major relief efforts. His immediate action was to travel to Duluth, and with that as a base of operations undertake legal and financial steps to aid his ar- rested union members. He spent almost a week in Minnesota, during which time he arranged through his Marquette bank for a $30,000 loan with a wire transfer of the funds to Min- nesota. This loan was nominally made on LaValle’s personal credit, and approval was based on his telephone request by bank functionaries long familiar with LaVallee as the busi- ness holder of his union’s several accounts. From his hotel base in Duluth, he made one or more trips up to International Falls, where he engaged Attorney Steve Nelson to provide legal representation for numerous arrested persons plus pay- ing out $16,000 in bail amounts from the wired loan pro- ceeds and a lesser amount in fines. LaVallee did not return from Duluth until September 15, at which point the riot con- sequences were settling out in terms of the various persons who were to await fulfillment of criminal proceedings stem- ming from offenses that were committed. Bank records es- tablish that the loan, accounting also for interest and fees, was repaid in three installments. The first repayment was a $12,000 amount toward principal on October 2, and about a month later two further payments liquidated all that had been borrowed. LaVallee testified that money contributions began arriving in late September into early October from the Quinnesec job, terming his assumption of this happening as being that ‘‘people were aware of the obligation that I had undertaken to post bail . . . .’’ In specific regard to telephone records that might implicate Respondent in at least the chartering of Northland Coaches for the September 9 trip, there are 12 such calls that bear close attention. Using as reference points the telephone num- bers: (906) 228–6450(51), (906) 343–6650, and (715) 589– 4145 for Respondent’s Marquette office, LaVallee’s resi- dence in nearby Sand River, Michigan, and Northland Coaches at Aurora, Wisconsin, respectively, the following telephoning is shown:2 739 IRON WORKERS LOCAL 783 (BE&K CONSTRUCTION) the telephone record excerpts are in terms of the time zone at the originating point of the call. 3 Halverson was one of the 21 named defendants in the Charging Party’s civil action filed with Koochiching County (Minnesota) Dis- trict Court as Case 36–C–89–201. Guentzel, a member of Respond- ent, was one of the 59 persons convicted of riot in the criminal courts of that county, although he was not on Dabb’s bus at the at- tempted start of a return trip on September 9. Date Time Dura- tion (Mins.) From To 9/1 9:36 a.m. 2 (906) 228–6450 (715) 589–4145 ’’ 9:42 a.m. 1 ’’ ’’ ’’ 6:04 p.m. 1 (715) 589–4145 (906) 343–6550 7:15 p.m. 7 (906) 343–6550 (715) 589–4145 9/2 11 a.m. 1 (906) 228–6450 ’’ 9/6 1:10 p.m. 1 ’’ ’’ ’’ 6:32 p.m. 1 (715) 589–4145 (906) 343–6550 9/7 8:34 a.m. 1 ’’ (906) 228–6450 ’’ 6:46 p.m. 2 (906) 228–6450 (715) 589–4145 9/8 8:03 a.m. 3 (715) 589–4145 (906) 228–6450 ’’ 9:33 a.m. 1 ’’ ’’ ’’ 10:43 a.m. 4 (906) 228–6450 (715) 589–4145 After occurrence of the riot there was apparent telephone communication between Respondent and Dabb at 1:10 p.m. on September 11. Respondent’s office received a call from International Falls then, being at about the time Dabb de- spaired of making the jail pickup as expected. Later at 3:50 p.m. on September 11 another call was made to Respond- ent’s office from the Holiday Inn at Virginia, Minnesota, where Dabb had commenced his waiting. A call on Sep- tember 12 from Duluth to the Holiday Inn at 8:01 a.m., fol- lowed a call to LaVallee at Duluth at 7:25 a.m. from his Marquette office. The next day at 9:45 a.m. another call from Duluth to the Holiday Inn at Virginia was made, this being just before Dabb left the area. LaVallee could not recall making either of the two Duluth-originating calls over this September 12–13 period. F. Credibility 1. Introduction As a case uniquely based on circumstantial evidence the ordinary conflicts of testimony are not present. Furthermore the question regarding witnesses of Respondent, or those in likely sympathy with its position, is one of whether the de- scriptive, connective, and episodal self-servingness of what is testified to seems genuine as opposed to contrived. With that opening comment I first deal with two witness groups, one being those for whom no reason exists to doubt their renditions, and the second being those brief witnesses whose calling was tactical (or technical) by the party exer- cising subpoena powers. I thus fully credit the testimony of Robert Anderson, Boise Cascade’s public affairs manager, Police Captain Randy Borden, Gary Martin, BE&K’s resi- dent project manager at International Falls, John McGriff, BE&K’s personnel manager, and Eric Dufford, Vance Inter- national’s former tactical security cameraman at the man- camp. I exclude as an unnecessary exercise any credibility evaluation of Kevin Nylund, Keith Halverson, and Ralph Guentzel, who each essentially denied the possession of sub- poenaed documents,3 of Michael Edens, whose brief testi- mony was inconsequential, and of Donald Doolittle who, with active representation by private counsel, maintained a fifth amendment privilege not to testify. 2. Donald Dabb This witness was vague and halting and repeatedly voiced lack of knowledge as to matters questioned about, a presen- tation that left few subjects of evidentiary weight. There are two additional twists to consider; first that Dabb would rea- sonably have, and faintly gave just such a hint of, the incli- nation to protect interests of organized labor in his vicinity, and secondly that he repeatedly alluded to a hearing impair- ment which affected both conversation and his ability to comprehend tonal qualities between voices. Furthermore, as a mixed matter of credibility and case analysis, his family style bus charter business was subject to various forms of communications success by those placing telephone calls to it. A telephone answering machine was in use, and Dabb at one point referred to more than one son that a caller ‘‘could have reached’’ (Tr. 213). The single phone number at the home for personal and business purposes combined leaves concern for just how accurately Dabb could reconstruct past happenings even if highly sincere by capacity and intent. I leave his peculiar situation as a credibility assessment that by demeanor and probability his testimony is of little value. While not doubting its general correctness as to tangible mat- ters of place, time and distance, I subordinate Dabb’s recol- lection to that of LaVallee where they are in disharmony. The Charging Party’s particular point about Dabb’s possible financial interest in the case outcome has been considered in making this evaluation. 3. Beatrice Anderson This witness presented with an impressively honest-seem- ing demeanor and after taking into account her obvious self- interest as a longtime office employee of Respondent, I cred- it her in full. The effect of this assessment is, somewhat as the case with Dabb, to subordinate her less vivid recollection of internal office matters and financial details to that of LaVallee. I do also note that the Charging Party overreaches in its brief with footnote 24, page 12, in writing that Beatrice An- derson testified in her deposition of February 21, 1990, that cash collections were received at Respondent’s office ‘‘as a result’’ of LaVallee’s July 24 letter (emphasis added). Bea- trice Anderson’s deposition falls far short of supporting this phrasing. She was first asked about whether money came in to Local 783 ‘‘as a result of this letter?’’ at deposition page 66, to which she answered, ‘‘Well, we did get some.’’ In an immediate followup question she vacillated with ‘‘Yes, we did, but I can’t—I don’t know.’’ In subsequent deposition questioning about whether cash contributions followed from LaVallee’s letter her answers included ‘‘I—yeh, I can’t—I don’t know. I don’t know that, about time, I—I couldn’t an- swer that (p. 68, LL. 6–7), ‘‘I—I don’t know that’’ (p. 71, L. 13), ‘‘I don’t know’’ (p. 73, L. 25), and ‘‘No, I can’t— I can’t say that, because I don’t know what—at what times or specific dates that any collections came to the office’’ (p. 740 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4 During this line of questioning participating Attorney Green, echoing Attorney Casselman, interposed a tacit objection that the witness was being repeatedly subjected to improper leading ques- tions. 5 A term attributed to the General Counsel, as used in his brief at pp. 14 and 15. 74, LL. 5–7).4 The upshot of this overreaching in making the Charging Party’s argument is to further buttress a belief in the underlying, simple sincerity of persons associated with Respondent, as they were taken through a sweeping attempt at reconstruction of myriad events from the past. 4. John LaVallee a. Summary belief In the face of a painstakingly mounted collection of cir- cumstantial evidence, the general and specific veracity of this key individual is largely controlling of the decision. After full reflection on all factors seeming, or claimed, to touch on a credibility evaluation, I accord near-total acceptance of LaVallee’s testimony. b. Demeanor LaVallee was most importantly seen in his testifying role on the final day of trial. Although earlier and adversely called by the Charging Party, and present during the entire hearing, LaVallee’s most important offerings came when called as Respondent’s chief defense witness. In the course of such modestly extensive examination, I was impressed with a consistent and valid-seeming candor in practically all that he had to relate. In the realm of purely subjective reac- tion to the demeanor of another, I reach the fully positive conviction that his distinctions of fact and perception pre- sented a comfortable assurance of truth-telling. Given the complexities of subject matter about which questioned, he displayed a remarkedly high degree of consistency in his many instances of several times answering. c. Testing instances Aside from the pure demeanor of LaVallee’s testimonial appearance, there were several areas in which the veracity of what he recalled was lifted to even higher prominence be- cause of surrounding circumstances. These are largely drawn from a comparison between his testimony at trial and the two-part deposition given by LaVallee in December fol- lowing the events, particularly volume II thereof. As to vol- ume II the passage at pages 98–107 does much to cause dis- belief that LaVallee has created only an ‘‘alibi’’5 to avoid enmeshing his organization in liability for the riot. This pas- sage shows quite vividly the scope and subject matter of LaVallee’s numerous occupational activities, and more im- portantly the diversity of his contacts. I consider well the in- ternal (and fraternal) union, collective bargaining, commu- nity, public relations/publicity, institutional and technical sweep of his working hours, and from that whether it should be reasoned that because of several telephone calls that Dabb’s Northland Coaches enterprise in homey Aurora, Wis- consin, received it must have been part of a clandestine bus- renting scheme. On so considering this point, I believe the requested inference is not an appealing one to make. In volume II of the deposition at pages 57–67 LaVallee was questioned exhaustively about a certain check 13301 drawn on Respondent’s account for $1250, and taken as cash with a bookkeeping notation of only ‘‘LU.’’ His explanation stated that this money was simply turned over to a small contractor of the vicinity, who had been squeezed off a job by the dynamics of other interests jockeying for favored po- sition. However unsavory this might seem in the abstract the point is that LaVallee candidly described the reasons, named all persons and organizations with any knowledge of such dealings, convincingly explained how this odd transaction fit in with construction industry unioneering and generally re- vealed ‘‘chapter and verse’’ about the entire matter. This was coupled with a prompt and predictable denial to Attorney Noteboom’s question whether ‘‘any part’’ of this loosely handled $1250 cash boodle had been used to pay the North- land Coaches charge to International Falls. Another sequence of incessant and detailed questioning concerned the earlier cash-oriented transaction, when check 13188 for $2500 was held for 5 weeks as office cash until redeposit on August 29. In this instance the passage covering deposition volume II pages 15–24 reflected more fully the vagaries of how this small local union of Michigan’s sparsely populated upper peninsula operated. The Charging Party’s in- timations and expectations did not materialize; essentially showing the poverty of its theory that so much of LaVallee’s manner of operating was artificial. In general as to financial affairs LaVallee explained re- peatedly that union trustees regularly approved his monthly financial reports, and this explanation was not assailed in any known manner by the deposing party in interest. Perhaps the best instance of these validating examples concerning the solid-seeming veracity of LaVallee’s responsiveness was seen in his winsome concession made at deposition volume II, page 50 that ‘‘The system we use might be kind of crude, but we got a cash box down there, and that’s accounted for.’’ Finally, in an engaging turnaround LaVallee piqued his ques- tioner as to an actual instance of faulted itinerary plans and the capricious vagaries that attend on persons in busy careers of either labor officials or law practitioners (deposition vol. II, p. 30, LL. 3–4). d. Privilege taking The Charging Party’s brief at continued footnote 24, page 13, faults LaVallee for refusing to answer certain questions regarding post-riot fund collections and disbursements on fifth amendment grounds. I duck any attempt at an academic exposition of whether such fundamental privilege taking may support an inference adverse to the party exercising this con- stitutional right. Suffice it instead that in the context and time frame here such privilege taking done during both De- cember depositions occurred after cautious and well articu- lated reasons for doing so, first by Attorney Green and later by Attorney Casselman. Considering the magnitude of the riot episode, the various criminal charges arising therefrom, the widely dispersed geographic origin of participants, and the not unraveled manner of financing the large assemblage of early hours on September 9, the caution displayed by LaVallee’s counsel (Attorney Green distinguishing his role specially as between private counsel and union counsel) was not untoward. On this basis I reject any slant or intimation 741 IRON WORKERS LOCAL 783 (BE&K CONSTRUCTION) 6 My crediting of LaVallee includes the point that he advised members at their general meeting of the coming September 16 labor rally in Minnesota and asked for a show of interest. The fact that meeting minutes do not cover this subject is noted, but I find this insufficient to counteract the greater likelihood. that is being suggested for a lessening of LaVallee’s credi- bility standing because he took the fifth. e. Consequences of this assessment The conglomerate effect of this credibility evaluation is both that I accept LaVallee’s basic denial that (1) he had any active role in chartering Dabb’s bus for September 9, (2) that he at any time used the pseudonym ‘‘concerned persons,’’ and (3) that he funnelled any cash amounts used to defray or bear the cost of Northland Coaches’ intended round trip bus transportation for 36 passengers drawn primary from Re- spondent’s craft membership. There remains however the independent and important issue of whether total circumstan- tial evidence supports what is alleged in the General Coun- sel’s complaint, and that topic is treated next. G. Discussion Aside from it being a matter of public notoriety the Board is specifically experienced in labor-management strategies based on the growth of open shop construction industry con- tractors. In J. E. Merit Constructors, 302 NLRB 301 (1991) the Board adopted description of a construction contractor which had ‘‘historically operated on a nonunion basis,’’ this being background to a major AFL–CIO building trades local union undertaking a planned ‘‘step in its ‘Fight Back Pro- gram’ against several nonunion maintenance contractors op- erating within its territorial jurisdiction.’’ The parallels of this phrasing to background here is a plain instance of the pervasive tension that spreads across this area of labor man- agement relations, and the depth of feelings that can be en- gendered. The subject is a long-festering one. In the mid-80s AFL–CIO President Lane Kirkland criticized then Secretary of Labor Donovan for meeting with officials of the Associ- ated Builders and Contractors, ‘‘an organization of predomi- nantly nonunion construction firms,’’ with rhetoric that reached a quoted crescesdo of ‘‘otherwise pander[ing] to that lousy organization of scab-herders.’’ Labor Relations Year- book 1984, Bureau of National Affairs, p. 257. As among voluminous contextual evidence here, a relevant item in substance and timeliness to the issue is the collegially addressed attachment to Bill Peterson’s memorandum dated August 24 to ‘‘All Building Trades Councils’’ of Minnesota, urging a large rally turnout at the State Capitol on September 16. The two-page attachment was a partisan condensation of background to the frustrating International Falls develop- ments, and the gave reasons that a practically treacherous combination of political and business forces was threatening the ‘‘prevailing wage’’ justifiably deserved by ‘‘our skilled brothers and sisters’’ which warranted a concerted rendering of ‘‘labor’s voice . . . about the Boise Cascade situation.’’ I use this item of documentary evidence as a point of de- parture for discussion, because LaVallee’s version of his late summer activities keys strongly to the message. It was this very rally at St. Paul, Minnesota, on September 16 that he testified was the topic of a remembered six or so telephone calls to Northland Coaches in preliminary exploration of whether and by what details a bus charter for his members to St. Paul might be arranged. In essential rejection of the contentions by the General Counsel and the Charging Party, I hold that from all material circumstantial evidence LaVallee had in truth explored this project. The trail of telephone records is as supportable of that proposition as that he was really covertly engaged in plans to participate with other components of upper Great Lakes organized labor in destructive rioting activity at the man-camp, using such of his willing members as would vol- untarily engage in this violent activity. I have found that Dabb’s testimony is without value as to analyzing this issue, for I specifically discredit his failure to recall more than one contact or attempted contact running ei- ther to or from him as regards Respondent’s office on the rally-chartering prospects for September 16. Both ends of such contact have a built-in vagueness to them; on LaVallee’s part because of his great amount and diversity of business telephoning and on Dabb’s part because his family assisted, residence-based business leaves simply too much random uncertainty about telephone contacts made to it or attemptedly so. Thus I characterize the 12 recorded telephone contacts made or attempted between Dabb’s location and LaVallee, either at his home or office, as insufficient to con- tribute that much of a showing toward an agent of Respond- ent being the secretive ‘‘concerned persons.’’ A close examination of the specific days, the several times of day, and the recorded duration of calls, suggests quite strongly that no more than six effective calls were made as LaVallee had credibly testified. I discount the seven 1-minute calls of September 1 (2), September 2 and 6 (2), and Sep- tember 7 and 8 as inconclusive telephoning attempts that did not reach the intended callee, or that were absorbed into a message answering machine. I do so both because of the in- herent unlikelihood that discussion of the type intimated would have taken place in the short 1-minute span, and more persuasively that in each case but one of a 1-minute call (or set of 1-minute calls) a more substantial telephone contact shows from the records later that same day or early the fol- lowing morning. The exception applies to the call of Sep- tember 2 at 11 a.m., one which was not repeated until Sep- tember 6 at 1:10 p.m. However I note that these were both calls from the structured office setting of Respondent at Mar- quette, and to the less structured Northland Coaches enter- prise at a family domicile in small town Wisconsin. Further it is seen that these calls were made on a Saturday and a Wednesday, respectively, leaving not unimaginable that LaVallee carried an intention to inquire of Northland Coach- es as more time for response from his members could mate- rialize.6 Notably there is another variable in the picture; that of whether some person familiar with Respondent’s office, and to its functionaries, surreptitiously used the outgoing office number 228-6450 at some point before the bus trip. Re- spondent’s telephone was not a fully secure instrument, as seen from the aggregate of physical description made in Bea- trice Anderson’s deposition, and the passage in LaVallee’s deposition volume II, page 89 where he stated how even an ‘‘apprentice instructor’’ might have access. I do express a troubled outlook as to the 12th and final call from Respondent’s office, and presumably from LaValle 742 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD himself by his own version of what was then afoot, to the Northland Coaches’ number. This contact, one of at least 4 minutes’ duration, was made a scant 8 hours before Dabb was to depart from nearby (to him) Dad’s Bar, and there is a natural temptation to believe the timing is so suspect as to tumble down LaVallee’s ‘‘alibi.’’ I cannot however close the circle on such an inference because of all other factors writ- ten about above. What I see here instead is a roughly out- lined scenario which is fully as likely as the one on which allegations of the complaint are premised. The drum-beating against BE&K had been loud and long over the many months of 1989. The Quinnesec project was populated with well-paid, fully to be employed until December ironworkers, many of whom were working out of home Local 563 and more concernedly associated to the International Falls prob- lem. The recent bus trip sponsored only 10 days earlier by locality pipefitters Local 728 could not have gone without extensive knowledge throughout the Iron Mountain commu- nity including the Quinnesec jobsite. These factors were all sufficient in the aggregate to cause any manner and combina- tion of persons to independently plan a counterpart trip, par- ticularly where the situation at International Falls itself was experiencing the dim but growing rumor there that some wa- tershed event would take place at BE&K’s man-camp on September 9. The evidence settles into a mere state of equilibrium. It would require pure conjecture to tip the scale, primary by as- suming what the content of numerous telephone calls, osten- sibly between an agent of Respondent and Northland Coach- es, had been. There are various possibilities, if not prob- abilities, as to such content. Thus, any conjecturing has no solid basis in evidence to choose one likelihood over another. It is a matter of whether to say what ‘‘could have been’’ rather than what ‘‘must have been.’’ I have insufficient basis to say that applicable content must have covered impermis- sible subjects, rather than that it only could have so con- sisted. I have also considered the upsurge in cross-telephoning be- tween LaVallee and counterpart or interested union func- tionaries after both the July walkout and the August 28 per- sonnel office disturbance. While of legitimate note I do not attach enough significance to any of this type activity as would vary my fundamental holding. This view also includes an appraisal of LaVallee’s July 24 letter as merely his ide- ated response in support of the tactically doomed walkout of union members at the International Falls project. The fact that this letter received dissemination after being officially squelched is not a matter of seeming significance to the issue, and I generally view this facet of the evidence as re- vealing more of background sentiments than of materiality to the crucial issue of agency. It would be naive to flatly assert that all is known about the eventful summer of 1989. This is particularly true not- withstanding what else I have said about LaValle’s veracity, concerning whether or not he had some foreknowledge that Local 783 members were about to board a bus for some demonstration of union solidarity at International Falls based on their collective planning. As generally commented about before, the intimated interplay of telephone calls and LaVallee’s interdicted letter of July 24 exemplify how sus- picion might at least be harbored. A comparable reaction is felt for example as to the uncommonly busy telephoning among what the Charging Party terms ‘‘key players,’’ that is the principal union activists in International Falls, Minnesota, on July 26 and 27, but how can these loose ends tie up into some coherent and compelling conclusion binding Respond- ent? I do not believe they do, nor as applicable to LaVallee’s telephoning the International Union on August 29 and twice on September 8, after so few instances of this in immediately preceding periods. It is in the nature of things that any focus of attention can fluctuate depending on how the world turns. If Respondent’s focus in early summer of 1989 disclosed numerous telephone calls to Tipp City, Ohio, and Eagle River, Wisconsin (Exh. JX-14), why is it so intriguingly significant that later this sort of focus swung to International Falls, Minnesota, and Aurora, Wisconsin? I believe it is understandable to have such shift- ing attentions, and while I have earnestly reflected on the cir- cumstantial bases of all the evidence that has been mar- shalled against Respondent I do not believe that it legiti- mately requires or permits the requested inferences. The issue of this case lent itself from the beginning to a direct opinion as to the cumulative and potentially interconnected significance of all circumstances arising out of the waking hours of many people. In sum I conclude that the evidence as a whole does not support the fundamental allegation of the complaint. After committing to this overall view of the pre-riot evi- dence I turn to what both the General Counsel and the Charging Party contend respecting post-riot happenings. Here I believe these contentions are simply unavailing, for LaVallee’s quick and extensive action of that following week seems keyed only to ‘‘damage control’’ regarding the jam in which his members found themselves. While also troubled by a chink in LaVallee’s seemingly high veracity by failure to recollect telephoning to Northland Coaches from his Duluth base early in the week following the riot, I do not believe the irregularity suffices to support a claimed unfair labor practice. The activity was over at this point in time and a bus chartering was simply related to how a detained group of persons might be transported back to their Michigan loca- tions some 400 miles distant. Furthermore Respondent has made no secret of an early contact to Northland Coaches, for Perry described this happening as early as the evening of September 10. The details of this contact and its reasons as perceived by Perry are set forth at his deposition pages 71– 74 (Exh. JX-40). Considering that Perry and LaVallee also had immediate post-riot contact, it is not unlikely that LaVallee was apprised of this potential for transportation and among other things picked up on the prospect although not now recalling having done so. LaValle was also urgently involved early that post-riot week with the funding of bail and legal expense money for those he wished to assist. Here the focus of the case has been on his motivation in obtaining the $30,000 loan; my view is to propose that the banking practices too should be looked at. LaVallee’s motivation was merely a part of his post-riot undertakings, an activity I will write about below in terms of the ‘‘condonation’’ theory faced by Respondent. However the banking decisions also reflect somewhat on the circumstantial import of this case, for if the bank could trust LaVallee on the most informal of loan applications then I see no reason why his confidence in voluntary contributions from union members should not also eventuate. When de- 743 IRON WORKERS LOCAL 783 (BE&K CONSTRUCTION) posed by BE&K on January 4, 1990, in its civil lawsuit, Sen- ior Bank Vice President Michael Dunn stated that he ap- proved the $30,000 loan on a short-term basis but informally because of ‘‘time constraints,’’ after taking into account LaVallee’s verbal assurance that he would pledge his resi- dence in collateral should a longer term be needed before re- payment. This largess must have been welcomed, but is more a reflection of the business influence wielded by LaVallee in his home Marquette area than of sound banking practices. Essentially $30,000 was wired off from Michigan based on a telephone call from LaVallee in Minnesota that he needed such an amount as a personal loan not to be accountable for by his organization in its formal sense. The ready accommo- dating of LaVallee was, of course, expectably justified, when only several weeks later he made cash payment of over one- third the total amount to Bank Operations Manager Sue Johnson (deposed simultaneously with Dunn and others) while making the intimation that such proceeds occurred be- cause ‘‘they passed the hat.’’ The significance of all this to the case is that post-riot funding was first, last, and foremost a fraternal phenomenon among all involved in fulfillment of tacit expectations based on shared union precepts. Having not seen from the overall evidence the establish- ment of an agency connection to Respondent respecting the riot, I do not reach the General Counsel’s and the Charging Party’s contentions respecting Respondent’s claimed instiga- tion, planning, and participation in the riot. For this reason I do not treat the main doctrine of agency, and also do not reach for discussion cases such as Longshoremen Local 6 (Sunset Line & Twine Co.), 79 NLRB 1487 (1948), Plumbers Local 195 (McCormack-Young Corp.), 233 NLRB 1087 (1977), Avis-Rent-A-Car System, 280 NLRB 580 (1986), and Service Employees Local 87 (West Bay Maintenance), 291 NLRB 82 (1988), on which the doctrine is based. The Gen- eral Counsel and the Charging Party however advance two further theories in support of the complaint, one of condona- tion and one of ‘‘mass action’’ by union members. Respondent faces a specific contention that it condoned the riotous conduct, by not disciplining its involved members as empowered to do. It is not realistic to expect that Re- spondent would impose discipline within the meaning of its organizational authority. While not openly praising the riot- ers’ conduct, the activity was not inimicable to trade union objectives in the Boise Cascade dispute. In terms of the International union’s constitution, 10 of the 11 enumerated grounds for ‘‘charges’’ against a union member are not re- motely relevant. Number 10 considers an offense to be any act ‘‘likely . . . to bring discredit’’ on the union, or to produce any ‘‘derogatory’’ result. In a realistic sense this item is a dead letter insofar as any Local 783 member per- haps being charged. Regardless of verbiage it would certainly be against the spirit of the union’s constitution and its objec- tives. Furthermore, the errant members were in the clutches of the criminal justice system, and Respondent’s essential role after September 9 was to deal with them as needful strandees. I reject the condonation theory on the basis that it does not square with typical reasons for intraunion member discipline, and does not have a context close to the Respond- ent’s field of geographic influence as typically so in con- donation cases. Because I do not consider Respondent’s post- riot acts of assistance as condonation, nor do I believe it had standing to effect discipline within the meaning of that con- cept in labor organization affairs, I also neither treat cases such as East Texas Motor Freight, 262 NLRB 868 (1982), Teamsters Local 326 (Eazor Express), 208 NLRB 666 (1974), Boilermakers Local 1 (Union Oil), 297 NLRB 524 (1989), and Meat Cutters Local 248 (Milwaukee Independent Meat Packers), 222 NLRB 1023 (1976). All of these cases involve picketing activity by the union members involved, a far and distinguishable cry from even not unspontaneous de- structive conduct by persons acting 400 miles distant outside the jurisdiction of the labor organization being charged, and subjecting themselves to specific criminal and civil liability in the process. Finally the ‘‘mass action theory of the Charging Party is reached, but again this is merged into notions of condonation which I hold inapplicable to the proceeding. Beyond this, and more importantly, I do not believe the ‘‘mass action’’ doc- trine is fundamentally applicable to this case by its nature based uniquely on circumstantial evidence. Food & Commercial Workers Furriers Council (Associ- ated Fur), 280 NLRB 922 (1986), cited by the Charging Party, is simply not in point, while Tri-State Building Trades Council (Backman Sheet Metal), 272 NLRB 8 (1984), is a fact-intensive case unsuitable as authority to support the de- fined ‘‘mass action theory of liability for group action alone. Burgreen Contracting Co., 195 NLRB 1067 (1972), was a case of ‘‘mass picketing [around] mine property entrances’’ with union ‘‘responsibility’’ based largely on (1) presence at, in roles of spokesman, each mine site of presidents of a union affiliate, and (2) substantial evidence that union agents ‘‘were intimately involved in the orchestrated arrivals and departures of the pickets at each of the five mine properties . . . .’’ Sheet Metal Workers Local 28 (Diesel Construction), 196 NLRB 1065 (1972), involved union responsibility based on ‘‘the inescapable inference’’ that it ‘‘approved and rati- fied the work stoppages [and] actually participated in them.’’ Teamsters Local 85 (San Francisco Newspaper Co.), 191 NLRB 107 (1971), fundamentally turned on ‘‘signs’’ evi- dencing union support for unlawful picketing. In Consolida- tion Coal Co., 709 F.2d 882 (4th Cir. 1983), the court traced origin of the ‘‘mass action’’ theory from Carbon Fuel Co. v. UMWA, 444 U.S. 212 (1979); 500 F.2d 750 (2d Cir. 1975), and found, in its case, that ‘‘mass action’’ was ‘‘establishe[d]’’ because not only members but ‘‘all officers’’ of a defendant local union ‘‘participated in the work stop- page.’’ I find the Burgreen, Sheet Metal Workers, Teamsters Local 85, and Consolidation Coal Co. cases above fully dis- tinguishable from this fact situation, and reject their applica- bility. Even Eazor, supra, was a timid presentation of the theory, for the passage of Eazor from the court of appeals quoted in the Charging Party’s brief followed a reference to the so-called mass action theory about which, without hold- ing it as a well-defined doctrine, the court only noted that ‘‘many courts’’ had held unions responsible. See Eazor v. Teamsters, 520 F.2d 951, 963 (3d Cir. 1975). In summary, I reject the mass action theory as having application to this case. 744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 7 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and rec- ommended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. CONCLUSIONS OF LAW 1. BE&K Construction Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Iron Workers Local 783, International Association of Bridge, Structural and Ornamental Iron Workers, AFL–CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent labor organization did not engage in unfair labor practices as alleged. Disposition On these findings of fact and conclusions of law and on the entire record, I issue the following recommended7 ORDER The complaint is dismissed in its entirety.