Iron Workers Local 15

914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Northern District of Connecticut Iron Workers Local Union No. 15, Joint Apprenticeship Com- mittee and Bruce Gilbert. Case 39-CA-2434 11 March 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 8 August 1985 Administrative Law Judge Harold B. Lawrence issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a reply brief to the Respondent's exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings," and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent , Northern District of Connecticut Iron Workers Local Union No. 15, the Joint Apprenticeship Committee, Hart- ford, Connecticut, its officers, agents, and repre- sentatives, shall take the action set forth in the Order. ' The Respondent has excepted to some of the judge's credibility find- ings. 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 Cit. 1951). We have carefully examined the record and find no basis for reversing the findings. Astrid Garcia, Esq., for the General Counsel. Burton S. Rosenberg Esq., of Hamden, Connecticut, for the Union. Bruce Gilbert, pro se, of Colchester, Connecticut. DECISION STATEMENT OF THE CASE HAROLD B . LAWRENCE, Administrative Law Judge. This case was heard by me at Hartford, Connecticut, on 25, 26, and 27 March 1985 . The charge and amended charge were filed by Bruce Gilbert on 29 November 1984 and 31 January 1985, respectively, and the com- plaint issued on 31 January 1985. The substantive basis of the complaint, as amended at the hearing, is that the Northern District of Connecticut Iron Workers Local Union No. 15, Joint Apprenticeship Committee, the Re- spondent, violated Section 8(a)(3) and (1) of the National Labor Relations Act by discharging Gilbert from his po- sition as coordinator or training director because of his internal union activities. The Respondent asserts that such considerations played no part in the dismissal and that Gilbert was dismissed solely because he was not per- forming his duties properly. The parties were afforded full opportunity to be heard, to call, examine, and cross-examine witnesses, and to in- troduce relevant evidence. Posthearing briefs have been filed on behalf of the General Counsel and on behalf of the Respondent. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and the Respondent, I make the following FINDINGS OF FACT 1. JURISDICTION There is no jurisdictional issue, the Respondent having admitted in its answer the allegations of the complaint to the effect that Respondent is, and at all pertinent times has been, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act, and that Local Union No. 424 and Local Union No. 15, Interna- tional Association of Bridge, Structural and Ornamental Iron Workers are labor organizations within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES' A. The Joint Apprenticeship Committee Local 15 and Local 424 are and have been parties to collective-bargaining agreements with the Labor Rela- tions Division, Associated General Contractors, an asso- ciation made up of construction firms specializing in steel erection and related services . These agreements have provided for the maintenance of apprentice and journey- man training programs which are operated by the Joint Apprenticeship Committee (JAC), an unincorporated as- sociation, whose members are appointed by Local 15 and by Associated General Contractors . It is supposed to be made up of three management and three labor members, who serve without compensation for 3-year terms. It is financed through an educational fund which it estab- lished by the collective-bargaining agreements. The JAC establishes and oversees the operations of schools for apprentices and journeymen , who attend night classes 2 nights a week . Instruction is pursuant to guidelines published by the International Association of Bridge, Structural and Ornamental Ironworkers. The JAC periodically upgrades apprentices and, on their suc- cessful completion of the course, notifies the Internation- al, which issues their journeymen's books. ' The matters narrated without evidentiary comment are those facts found by me on the basis of admissions in the answer, data contained in the exhibits, stipulations between or concessions by counsel , undisputed or uncontradicted testimony, and, in instances where conflicts in the testi- mony did not warrant discussion , the testimony which I have credited. 278 NLRB No. 131 IRON WORKERS LOCAL 15 915 'B. Gilbert's Job The actual supervision and implementation of training is carried on for the JAC by an executive assistant known as an apprentice coordinator and, sometimes, since the institution of journeyman training, as a training director. Gilbert became the coordinator in 1979, having applied for the position after 25 years as an ironworker. He submitted a resume and was selected from a field of 16 to 18 candidates . For the next 5 five years he con- ducted the routine day-to-day operations of the appren- ticeship program, overseeing all aspects of it for each class, from the time the JAC would authorize the institu- tion of a class of apprentices until they graduated 3 years later. He ran both "the apprenticeship school and the journeymen's -school." He procured supplies for them. He placed apprentices for on-the-job experience. He per- formed various administrative functions in connection with the program. C. Gilbert's Discharge At a meeting of the JAC held on the evening of Tues- day, 31 July 1984,2 Gilbert was fired by unanimous vote of the committee, while Gilbert sat outside the meeting room unaware of what was transpiring. The committee members who were present that evening were Carl A. Johnson and Robert McDermott, management . appoint- ees, and Lloyd Etkin, Wesley E. Smith, and Chester Hale, labor appointees. Johnson was the chairman. Gilbert gave the following uncontroverted picture of his dismissal. On the evening in question, he presented to the JAC some bills and his letter to the employers updat- ing the apprentices: Q. Now, what happened after you presented- you came into the meeting , you presented the letter- A. I presented that letter along with my bills. •I was immediately asked to leave the room by Carl Johnson. I went out into the other part of the union hall and I sat there for about-I don't know-ten minutes, maybe 15 minutes. I was called back in. Chairman Johnson said to me we no longer need your services. I said what do you mean you don't need my services. He says we don't need you no more, you're fired. I says for what. He says for the better- ment of the apprentices. And, that's when I said to Wes Smith and Chet Hale, the other two members that was sitting there, what did I ever do to you guys. I thought you guys were my friends for 20 years. I never did anything to anybody. I ran one of the best apprentice programs on the east coast. It's a known fact. And, all of sudden I'm getting my heart cut out, for what reason. JUDGE LAWRENCE: Did they answer? THE WrrNEss: They gave me no reason again except that Carl Johnson said it was for the better- ment of the apprentices. 2 All dates are in 1984 except as otherwise stated. JUDGE LAWRENCE : Did the other two gentlemen say anything? THE WITNESS: They said absolutely nothing. However, when Gilbert filed an application for unem- ployment insurance benefits, JAC opposed it, asserting that Gilbert had been discharged because the JAC was not satisfied with his monitoring of the apprenticeship program; apprentices had been upgraded without follow- ing state and Federal guidelines; he had sent out a letter incorrectly stating the apprenticeship status of an appren- tice who had entered military service; and he had failed to pick up supplies donated by a contractor. D. The Case that Gilbert's Discharge was Unlawfully Motivated 1. Animus and threats For much of the time that Gilbert worked as coordina- tor the JAC had only four active members. It was Gil- bert's unenviable position to be working for a committee composed of a member with whom his relations were terrible, Lloyd Atkin; two members who had been ap- pointed by Etkin when Etkin was president of Local 15; and a fourth member, from the management side, who may have harbored animus toward Gilbert on 31 July because of something Gilbert had done 2 weeks before. On the night of his discharge the JAC consisted of these four persons and a new member, Robert McDermott, who was attending his first meeting of the JAC, having been appointed that very month. There is no question but that Etkin and Gilbert were extremely antagonistic towards each other . When Etkin testified, in the hearing before me , he literally bristled with hostility toward Gilbert . It is the contention of the General Counsel that his hostility was born of the politi- cal wars. Whitey Korenkowicz was president of Local 15 from 1978 to 1981 . Etkin ran against him in 1981 and was elected. In that campaign, Gilbert ran unopposed for the office of vice president . Gilbert supported Kor- enkowicz. In the 1984 election campaign, Gilbert first announced his candidacy for president, but then switched his support to Wayne Arey. Etkin, running for reelection, lost to Arey by 10 votes . Gilbert ran for re- election as vice president, losing to Dave Oliver. Dennis Foley, defeating Michael Blackburn, was elected business agent and financial secretary. The election was held on 28 June. Arey was sworn in on 25 July. Michael Blackburn testified that the bitterness and an- tagonism between Etkin and Gilbert seemed at times on the verge of sparking physical violence. He stated he had never seen them together when there was not friction. Significantly, he places the beginning of this state of af- fairs in January 1981 , which was when Gilbert began ac- tively campaigning for Korenkowicz ' reelection as presi- dent. Blackburn- testified that from that time on Etkin and Gilbert clashed at every local executive board and membership meeting, with Etkin expressly objecting to Gilbert's carrying on of campaign activity . Etkin con- tended that as coordinator he was precluded from such activity. Etkin's statements frequently went to the ex- treme of threatening Gilbert's job. According to Black- 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bum, Etkin repeatedly threatened that Gilbert would be gone ater election time: And, Lloyd's comments inevitably always end up with he was going to see Bruce removed as coordi- nator and as a president, or both, and that he was going to get him. Besides Etkin's statements indicating that Gilbert's job as JAC coordinator was in jeopardy, and his highly criti- cal comments on Gilbert's job performance, the General Counsel notes Etkin's insistence that Gilbert could not be the coordinator and an officer of the Local at the same time. I think Etkin must be held to have acted within his rights in making that objection, both as a union member and as a member of the JAC. It is pertinent, in those in- stances, however, to ask whether his criticisms were nothing more than part of his effort to oust Gilbert from his job because Gilbert's internal union activities had been to his detriment. The reasonableness or unreasonab- leness of the criticism, the manner in which it was put forth, and indications that Etkin did not seriously believe them himself are pertinent . An example is his contention that holding lodge office was inconsistent with the coor- dinator's job and violated International regulations. Etkin refused to obtain a ruling from the International on that point. There is convincing evidence, mostly uncontroverted, that Etkin's statements to the effect that he wanted to have Gilbert fired were often expressly linked to state- ments by him that it was because of Gilbert's opposition to him in the two campaigns. When Robert J. Johnson's term on the JAC was about to expire in 1982, Etkin, then president of the Local,. refused to reappoint him. Johnson, an instructor in the apprentices' night school, had been appointed in 1979 by Korenkowicz. Etkin gave as his reason for refusing to reappoint him the fact that Johnson was allied with Gilbert and that he, Etkin, was "cleaning house." In a conversation just before the start of a JAC meeting, he told Wheeler, a labor member of the committee, that "when Bruce's time came that he was going to have him replaced, somebody else could have his job also." (He was referring to Wheeler.) Gil- bert testified that over a period of a year Etkin threat- ened Gilbert with loss of his job if he continued to seek the presidency of the Local. On the day of the election, 28 June 1984, Etkin taunted Gilbert: "No matter how it comes out today, Bruce, you're going to be a loser." Gil- bert testified that Etkin explained that he was going to get Gilbert's job just as he had been promising all year. 2. The composition of the JAC The JAC members present at the meeting of 31 July were Etkin, who had appointed himself on 20 September 1983, while he was still president of Local 15; Chester Hale, who had been appointed by Etkin in 1981 and whose term was due to expire on 16 October; Wesley Smith, who had been appointed by Etkin in 1982; Carl Johnson, of Berlin Steel, the chairman; and Robert McDermott, a management member appointed in July. Michael Conte, appointed by management in late 1983, appears to have still been a member, but he was not present at the meeting on 31 July. The close liaison between Etkin and the two other union members, as claimed by the General Counsel, is apparent. Etkin appears to have exerted an influence on the management members as well, for reasons which are not clear. It may have been for a reason as simple as the .fact that Etkin showed great interest in the affairs of the apprenticeship program. Whatever the reason was, how- ever, it is clear that Etkin's arrival on the committee re- sulted in significant changes in practice. When Gilbert got the job in 1979, the JAC was made up of Carl Johnson and two other members from man- agement. The labor representatives were Michael Black- burn, Whitey Korenkowicz (president of the Local), and a third member. At that time, the JAC actually met every 3 or 4 months, in meetings which were scheduled by the coordinator. After Etkin joined the JAC on 20 September 1983, it began meeting every month. Accord- ing to Gilbert, whose testimony was disputed, the meet- ings would last from 7 to 11 p. m. or later, out of which time only 10 minutes would be devoted to the appren- ticeship program, and the rest would be devoted to an inquisition respecting his bills, use of credit cards, and numerous matters which had formerly been routinely ap- proved, and to questions regarding his participation in the union election campaign of 1983-1984. Wesley E. Smith, a member of the JAC who had been appointed by Etkin, denied that there had been such goings on, but it is apparent from the testimony of several witnesses, in- cluding Etkin, that an extensive inquiry was launched into Gilbert's expenditures and activities. There is no question but that a new spirit moved the JAC. The General Counsel also contends that there existed a specific reason for animosity on the part of Carl Johnson towards Gilbert. Testimony was adduced from Black- burn to the effect that he filed protests with the Interna- tional following his defeat in the 1984 elections, which were held for financial secretary, treasurer, and business agent. One of his grounds was that Carl Johnson had voted and had actively campaigned against Blackburn. Johnson was an officer and, according to Blackburn, a part owner of Berlin Steel, but he held. a union card in Local 15. The International sent a general organizer to conduct an inquiry. At a hearing held in mid-July Gil- bert testified in support of Blackburn's protest. This fact, in and of itself, might not be a persuasive ex- planation for Johnson's vote to discharge Gilbert 2 weeks later. Blackburn contested the election results on several grounds and there is no evidence that Gilbert's testimony related to Johnson specifically. In fact, there is no evidence at all of the substance of his testimony at that hearing. It is clear, however, that Blackburn and Johnson were at odds and that Gilbert testified at the behest of Blackburn. As will appear below, I was trou- bled by Johnson's testimony. Had it presented a lucid picture of a committee member voting to discharge an unsatisfactory coordinator for well-defined reasons, this incident would have no significance. However, Johnson's testimony was of an altogether different character. Con- sequently, the evidence of some cause for animosity on IRON WORKERS LOCAL 15 his part toward Gilbert must be considered , along with the rest of the evidence in the record, in evaluating the events of 31 July. (The General Counsel's suggestion that McDermott, a new member of the committee, simply went along with the majority is unjustified speculation. McDermott should have been called to testify if there was any reason to believe that his vote had been irresponsible . The fail- ure to call him must count against the General Counsel's case.) 3. The timing of the discharge The survey of the committee members' identities must be considered together with the timing of Gilbert's dis- charge and the confluence of events on the calendar. Etkin's term of office as president of Local 15 expired in late July. Wayne Arey was sworn in as president on 25 July. Chester Hale's term on the JAC was due to expire in October and it could be anticipated that Arey would follow his predecessor's model by appointing him- self to fill the vacancy. Manifestly there would be a less- ening of Etkin's influence thereafter. What occurred, therefore, is the discharge of Gilbert at a point in time when the composition of the commit- tee was about to undergo a significant change from Etkin's point of view. 4. Failure to state reasons at the time of discharge The previously quoted description of the event of the discharge given by Gilbert in his testimony is not contro- verted by any other witness . What emerges most clearly from Gilbert's account is the failure of the JAC members to state any reason to him for their action and the abruptness with which it occurred. He was told only that he was being discharged "for the betterment of the apprentices." He was not told any respect in which his continuance in the job would be to their -detriment or in which his removal would be to their benefit. Even when Arey called Johnson for an explanation, the only answer he got from Johnson was that they had thought it would be best for the apprenticeship program. In September he got the same answer when he addressed an inquiry to the board (Johnson, Etkin, Hale, and Smith were present). I infer from the failure of the committee to specify their reasons for discharging him that the reason was an unlawful one. 5. Abruptness of discharge When the JAC meeting began on the evening of 31 July, there was no intimation that Gilbert was about to be ousted from a job which he had held for about • 5 years. There had never been a suggestion made in any prior meeting of the committee that Gilbert be dis- charged, let alone be replaced by any particular candi- date for the position. What transpired was therefore truly extraordinary: Gilbert was sent out of the room, a discussion took place, assertedly respecting his upgrading of apprentices without advance approval by the committee, a motion to fire Gilbert was made and passed , and a motion to hire a named replacement was also passed. 917 The JAC's action was so abrupt that, notwithstanding the harshness of its behavior towards him, the committee had to ask Gilbert to remain at his post for the remainder of the week so that the transition would be orderly. Ac- cording to Chester Hale, the appointment of Thomas J. Milne as coordinator effective 1 August was only provi- sional, as no one could come up with a name because they were "taken by surprise." The evidence in the record presents a clear picture of two men, Gilbert and Etkin, on opposite sides politically in union affairs, engaged in periodic battles to secure union office for themselves and those associated with them, and bristling with hostility towards each other. The evidence shows that over the course of a consider- able period of time, Etkin made numerous statements to the effect that he would pry Gilbert loose from his job as JAC coordinator and that, in addition, he made state- ments linking that intention to the fact that Gilbert had worked against him in the Union. Etkin's.campaign of criticism against Gilbert began when Gilbert started working in support of his political foes and against him in January 1981. In July 1984 the JAC, on the labor side, consisted of Etkin and two of his own appointees to the committee. The management representatives consisted of Carl Johnson, against whose position in an investigation of a union election Gilbert testified a scant 2 weeks before his discharge, and McDermott , who, on 31 July, was attending his first JAC meeting . The discharge reso- lution was offered at a time when Hale 's term was draw- ing to a close and an Etkin adversary , Arey, was pre- sumably going to replace him (as in fact he subsequently did). A diminution of Etkin's influence in the committee was inevitable. Etkin's dissatisfaction with Gilbert's work began to be expressed after Gilbert worked against Etkin in an election campaign . Thus, their bitter relations, Etkin's prior statements, the composition of the commit- tee in July and impending changes, and the timing of the discharge all assume great importance in and of them- selves and in connection with the utter failure of Gil- bert's employers to state any meaningful reason for dis- charging him at the time they did so. A convincing prima facie case of violation of the Act was thus made out and placed upon the Respondent the burden of going forward with proof that Gilbert was dis- charged for bona fide legal reasons, whether or not the circumstances alleged by the General Counsel also exist- ed. D. The Inadequacy of Respondent's Explanation Carl Johnson, the chairman of the JAC, testified re- specting the reasons for the discharge of Gilbert. • He asserted that the reasons for Gilbert's discharge were Gilbert's practice of upgrading apprentices without the advance approval of the committee, an occurrence known as the Hoops incident which took place in the fall of 1983, Gilbert's failure to make sufficiently frequent visits to the jobsites, his failure to give the apprentices enough attention, and the failure to pick up a supply of welding rods donated by a contractor. He expressly lim- ited the rationale for the act: 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD JUDGE LAWRENCE: ... Are there any reasons other than the reasons you have already stated for Mr. Gilbert's dismissal? THE WITNESS: No, basically, failure to,follow the direction of the JAC as manifested in those inci- dents is the reason he was discharged. Q. (Ms. Garcia, resuming) Did you ever give anyone else any other reasons for discharging Mr. Gilbert other than the ones you have given me now? A. The reasons for the discharge are as stated. Subsequently we found out some additional reasons. Some additional things that were not favorable in the conduct of an Apprentice Coordinator. Q. When? A. But, at the time we had no other reasons. Q. By the time of discharge? A. That is right. Q. When did you fmd these other reasons that you are talking about? A. In-subsequent of the discharge in August, September, October of '84. 1. Upgrading of apprentices One of the most important reasons asserted for dis- charging Gilbert was because he continued to upgrade apprentices without advance approval of the JAC. This was asserted, especially in Etkin's testimony, to have been an action on Gilbert's part, taken in July 1984 in advance of the JAC meeting scheduled for 31 July, which angered and outraged the committee members be- cause it was done in direct violation of instructions which he had been given. I fmd that I am unable to give credence to this posi- tion of the Respondent. To begin with, such instructions, had they been given, would have been contrary to long- standing existing practice and would have created serious disruption. Gilbert's explanation in this regard was not controverted. The Respondent's position is based on what I perceive to be deliberate obfuscation respecting the process of educating and elevating apprentices. The process of elevating apprentices to journeyman status involves several steps. They are eligible on com- pleting successfully 3000 hours of training. The practice had been that a meeting would be scheduled with the JAC for 20 or 30 apprentices at a time, at which they would be introduced to the committee individually at the rate of about three an hour. Their records would be before the committee. The JAC members would chat with them about the program. A further meeting would be scheduled for approximately 1 month later with an examining committee consisting of three members. The apprentices would complete a written questionnaire or examination and then be examined orally by the examina- tion committee, which would score the written and oral examinations. The JAC would furnish scores for its own interviews with the candidates. When an apprentice passed, his papers were sent to the International, and he was issued a book as a journeyman ironworker. It would take time to set up these meetings and con- duct the examinations, as'a result of which the practice developed of advancing or upgrading the apprentices in- sofar as their wage rates were concerned as a routine matter, independently of the actual upgrading of status. If this were not done, apprentices, who were entitled to semiannual wage increases while they were in training if they completed a particular number of hours, would be underpaid. For this reason, Gilbert gave notification to the employers of the apprentices' entitlement to their new and higher wage rate on an automatic basis at the appropriate time. His doing so did not elevate them to journeyman status-only the committee could do that- but it got their money for,them. Blackburn, who had been chairman of the JAC from late 1978 to late 1982 or early 1983, testified that appren- tices were upgraded every 6 months by the coordinator, who sent notices out to the contractors without advising the JAC. He testified that there was never any discussion about upgrading in meetings of the committee. As a practical matter the wage increments had to be handled as a routine matter. As Gilbert testified, he had to send 'letters to the- contractors in order to make sure the apprentices received their increases, and to avoid bookkeeping confusion in the contractors' offices. The increments were arranged for 1 January and 1 July and could not be deferred pending the infrequent meetings of the JAC without causing great disruption. Considering that instructions to Gilbert not to continue administra- tively expediting the pay increases of the apprentices would have been an illogical and unlikely action on the part of the JAC, it is not surprising that the evidence ac- tually fails to support the Respondent's contention that he was given and violated such instructions. Carl Johnson had been a member of the JAC for ap- proximately 10 years at the time of the hearing. He is a vice president of Berlin Steel and Blackburn referred to him as part owner of that company. Superficially, he would appear to have been the most disinterested and impartial witness in the proceedings. His testimony dis- abused me of any such notion. Johnson asserted that Gilbert "was specifically told that whenever the name of the committee was used on a piece of paper or any decision was made" that should have been decided by the committee, that he was to spe- cifically check with us first." Yet he conceded that the coordinator, as the executive arm of the committee, in past years had routinely upgraded the pay of apprentices without being censured for having done so. He asserted that sometimes the committee approved the upgrading and sometimes it was done as a matter of course. He conceded that apprentices were upgraded once or twice a year-in 6-month stages-and that he had seen Gil- bert's form letter notifying the employers. Nevertheless, he asserted that though it had been left to the coordina- tor to determine who should or should not be upgraded until June or July 1983, at that time "the committee began to take a much more active role and began to get more involved in-specifically wanted to get more in- volved with the apprentices and see actually how they were doing more closely than they had been." Yet, when IRON WORKERS LOCAL 15 919 pressed as to whether Gilbert had ever been given ex- plicit instructions not to upgrade the pay of apprentices without checking with the committee, his response at one point in his testimony was that he did not remember, and at another point that he "believed" such instructions had been given. This supposedly occurred at a meeting of the JAC on 7 February at which the JAC reviewed with Gilbert a list of things it wanted done-more visits to jobsites and apprentices, and consultation with fore- men to see how the apprentices were coming along. The minutes of the meeting, however, do not indicate such a specific instruction, although they indicate that "Training Director Gilbert has been advised by the Committee of his duties. That the position will specifically exclude any- thing other than responsibilities involved in apprentice and journeyman training." (When asked why they waited until February 1984 to curb Gilbert, all Johnson could say was, "Sometimes it had been brought before the committee.") Johnson could not testify to the verbatim contents of the instructions to Gilbert and could only say what he thought had been said to Gilbert. His uncertain recital in- cluded a prohibition against "raising apprentices up." However, Chester Hale also conceded that Gilbert had never been specifically told not to upgrade apprentices without the JAC's approval. He would go only so far as to say that Gilbert "was just told not to do anything without first notifying us." The meaning of that kind of instruction to an administrator who is running a program on a daily basis in accordance with set practice for a committee that only meets monthly was not explained. No one contended that it was clearly applicable to a salary updating process which took place semiannually on 1 January and 1 July. The matter was finally laid to rest when Etkin was asked whether Gilbert, prior to having upgraded the last group of apprentices, had been specifically instructed not to do so without advance con- sultation with the committee. His responses to repeated questions were so evasive that I had to intervene in the examination: JUDGE LAWRENCE: Mr. Etkin, a question has been put to you at least five times and you have not answered it. I am going to try what must be at least the sixth time. I would like you to be very careful in your re- sponse because it is an important question. The committee got very mad because Mr. Gilbert up- graded a class of apprentices. The question being put to you is, before he did it, before he did it and got them so mad, had the com- mittee specifically said, Gilbert, do not do that on your own, come to us first'?' Now, did they do it or did they not do it? That is the question we want from you. - THE WITNESS: You want a yes or no on that. JUDGE LAWRENCE: Yes. THE WITNESS: To the best of my ability, I-I-I say no. 2. The Hoops incident In the fall of 1983 an apprentice, who was the son of a longtime union member entered military service. Gilbert wrote a letter to the effect that his apprenticeship was thereby terminated. He was in error. The apprentice was supposed to be reclassified. The apprentice's father com- plained, and Etkin made himself champion of the cause, which enabled him to pillory Gilbert for an obvious and careless error. Patently, however, Gilbert's error did not constitute a violation of instructions from the JAC. He made an error which Etkin fueled into an uproar. Michael Conte, a management member of the JAC from 1963 to 1973 and from September 1973 to May 1984, testified that the Hoops matter was pressed-by Etkin and his testimony makes it clear that, aside from Etkin, none of the committee members became inordi- nately excited about the matter: they simply reviewed the matter and decided that the correct procedure for classifying apprentices who entered military service was something that had to be looked into. Gilbert was not reprimanded by the committee for his handling of the matter up to that point. Johnson asserted as the basic reason for Gilbert's dis- charge "his failure to follow the direction of the JAC as manifested in those incidents ...." There were no prior instructions in the Hoops matter. When the matter was raised noisily, by Etkin, the proper procedures were as- certained and complied with. I could understand how an incident of this type could lessen an employer's confi- dence in an employee, but the JAC members who testi- fied did not support their action on that ground but on the ground that he disobeyed instructions. The Hoops situation was not a case of disobedience to instructions, but was nevertheless cited as such. 3. Failure to visit jobsites and to check apprentices' progress There is evidence that Gilbert only rarely visited cer- tain jobsites. There is no evidence that he did not moni- tor the progress of apprentices. There was evidence of reports from foremen that Gil- bert did not visit with sufficient frequency a jobsite with 12 apprentices on it, and Johnson discovered, on making inquiry, that Gilbert had rarely visited two of the largest jobs which had the most men and apprentices on them. On closer examination, however, even by Johnson's own testimony, the complaints appear insubstantial. The two large jobs referred to by Johnson had a total of three apprentices working on them, at a time when 50 men were in apprenticeship training. Gilbert testified that he put his time in at the trouble spots, not at sites where things were running smoothly. When Johnson was asked whether there were any standards or criteria which would indicate how often Gilbert was supposed to visit any particular jobsite, his response was, "No, it is left to the discretion of the coor- dinator and/or the committee." Conte testified that the comments regarding Gilbert's supposed inattention to jobsite visitation came from Etkin. 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the absence of specific visitation requirements, and considering Gilbert's comments on the use of his time, it appears that the asserted ground for discharge is alto- gether unreasonable. It appears more so in the light of the fact that all of the complaints relied on by the Re- spondent were supposed to have been made in the fall of 1983. Comment has already been made about the ques- tionable timing of the discharge. No explanation was af- forded for the Respondent having taken action in July 1984 for misfeasances supposedly committed in the fall of 1983, but in any event their magnitude and significance is diminished by the delay. 4. Failure to pick up welding rods A contractor had some unneeded welding rods at one of its jobsites and donated them to the apprenticeship training program. According to Etkin, the word that the rods were available came to Wesley Smith, who was a member of the JAC, and Smith left word at the office of Local 15 for Gilbert to pick up the rods. Gilbert testified that Etkin himself left the message . Gilbert did not pick up the rods and they were finally picked up by members of another trade and thus lost to the apprenticeship pro- gram. The Respondent's witnesses, especially Etkin, treated this as a major failure on the part of Gilbert to obey orders. Etkin noted that the need for speed was apparent at the outset, warning having been given by the contrac- tor that if the apprenticeship program did not pick up the rods someone else would , and that Gilbert failed to move on it for a period of a month. The assertion of Gilbert's failure to pick up the rods as one of the influential factors in the JAC's decision to dis- charge him smacks of insincerity. At the meeting held on 31 July no one asked Gilbert why he had not picked up the rods. Gilbert introduced evidence at the hearing which tended to show that he did not believe, with good reason, that the material was suitable for use in the training program. Whether his belief was justified or not, he was never asked about it by the committee. The failure to ask him leads me to be- lieve that its importance has been highly exaggerated since his discharge became a legal issue. Johnson, as always somewhat unsure of his recollection of the perti- nent events, seemed to believe that the matter of the rods came up at an earlier JAC meeting, but it was only one item on a long agenda and Gilbert was simply told to pick up the rods, without further discussion. It was not a major topic. Johnson's testimony was troublesome, however, on the question of the relationship of this incident to the dis- charge. He testified that it only became important later as one of the things Gilbert failed to do which he had been directed to do. Johnson, who had voted for Gil- bert's discharge, gave as his- understanding of the expla- nation for his failure to pick up the rods "[T]hat he had just never gotten to it." It turned out, however, that this was what Johnson presumed had been the reason: that he just did not do it, without any reason. However, he never asked Gilbert for an explanation, asserting that there was no reason to ask since the rods were gone at that point. Though he stated he was curious as to the reasons, he made no effort to find out. Then he said, "Frankly, I don't remember a lot of this particular inci- dent." He had no conception of the reason for Gilbert's not picking up the rods other than his own surmise. .Johnson's explanation of his action, to the extent that he could remember a reason, is extremely important be- cause of the strain it places on the credibility of all of the witnesses to this particular facet of the case. The story was that the JAC was furious: Gilbert had been told to pick up donated welding rods for the training program, had failed to do so, and as a result someone else picked them up and they were lost to the program. Etkin was asked whether, at the time Gilbert was fired, the JAC knew that the rods had not been picked up. Considering that this was asserted as a reason for Gilbert's discharge, and that Johnson had not bothered asking Gilbert about it because the rods were gone al- ready, Etkin's answer should have been straightforward and in the affirmative. Instead, he gave testimony which demonstrated his proclivity for telling whatever story would tend to justify the action taken against Gilbert. He started by testifying that Milne was sent to get the rods, after his appointment as acting coordinator. Ac- cording to Etkin, he "threw the name on the table." It thus appears that the JAC understood the rods still to be available. Etkin went on to testify that when the coordi- nator got there, the rods were already gone . If that is what happened, then the JAC obviously acted only on the basis of Gilbert not having obeyed the direction to pick them up. Not satisfied with that, Etkin insisted that they already knew the rods were gone when they fired Gilbert. Though he testified that Milne was sent to pick up the rods "on a Monday," which had to be the Monday after the Tuesday on which Gilbert was fired, Etkin testified that he knew the rods were gone because an engineer at the site-the day steward-told him the engineers had picked up the rods. He could not remember the exact date of the conversation with the steward, but he was sure it was within the week that Gilbert was fired "be- cause Milne was hired and he went down on a Monday, I think, and we-I already knew the rods were gone be- cause the steward." That meant that Etkin had let Milne go down to get the rods which Etkin knew were not there. He let the JAC vote to send Milne for them. Etkin's inner turmoil while he gave this testimony must have been excruciating, for he sought refuge in the prop- osition that though he learned the rods were gone after Tuesday evening, 31 July, when Gilbert was fired, he found out about it later that same week-and since Gil- bert was paid to the end of the week , the fact was known before he was fired: Q. So you didn't know until, let's say, Thursday or Friday of that week? A. I knew before then. Q. I'm sorry? A. I knew before then. Q. When did you know it? A. In that week, the week that he was let go. IRON WORKERS LOCAL 15 Q. My question to you is, he was let go on July 31st which is a Tuesday. Did you know on that Monday or Tuesday that the rods were gone? A. I've got to correct you. He wasn't let go on a Tuesday. He was paid up until Friday. He had the week to finish out. Q. So, when did you learn about the rods? A. It was-it could have been Wednesday or Thursday. Etkin excused the failure to ask Gilbert why he had not picked up the rods on the ground that Gilbert had angrily stalked out of the committee meeting room after being fired, a fact which Gilbert readily admitted. Plain- ly, if the members of the JAC had had any real curiosity and sense of fairness about the matter, they would have asked him before they fired him. Milne would not have waited 5 days to pick them up if there had been a genu- ine need for haste . Each of Etkin's inconsistent stories is incredible-that the committee sent someone to pick up rods that they knew had already been taken by others, and that their hurriedly elected successor to Gilbert tar- ried for 5 days before he went for them. I do not credit the testimony of Etkin and Johnson re- specting this incident. There is.convincing evidence that they acted contrary to information which they had or ought to have had. Stephen Fazikias, an owner/operator in the welding field and the department head welder at Southeastern Technology, who helped start the welding program for Local 15 in September 1983 and taught in it , testified that Gilbert, when Fazikias notified him what was needed, worked very hard to get material for the use of the program; that the westinghouse rods, the donated material which Gilbert failed to pick up , had been used before and found unsuitable for training purposes for technical reasons, and because the apprentices were tested at the end of the program with a different type of welding rod; that the material that had been used before, and had been found deficient, had been obtained for the training program as a result of negotiations by Gilbert with the contractor, and that, because it was unsuitable, existing supplies of it had had to be abandoned; and that other material Gilbert had obtained for the program had been used successfully. Gilbert testified that another instructor, besides Fazi- kias, had also complained about the rods donated previ- ously, asserting that Westinghouse rods were the wrong kind of rods to train apprentices on. Gilbert testified that when Etkin left the message about the new donation he called Etkin back and told him that they already had 500 pounds, picked up in February, that were unusable. He told Etkin there was no sense in picking up more and re- peating the first mistake. Etkin was adamant, but Gilbert told him he would only take orders from the JAC acting as a committee, and not from individual members. In short, this was not inattention or oversight. Gilbert did not pick up the rods because they were worthless to the program, and the JAC, if it did not actually know that, should have known it . Etkin made numerous inquir- ies of Fazikias regarding the program, and should have 921 had direct knowledge that the earlier rods had not been used and were unusable. 5. Conclusion I find that the basic reason cited by the Respondent for the discharge of Gilbert-that he had failed to comply with instructions of the full Joint Apprenticeship Committee-is pretextual. The Respondent's witnesses uniformly cited the above-mentioned instances as exam- ples of Gilbert's noncompliance, and in each instance either I find evidence that completely controverts their claim, or I find that their position, considered on its own merits, fails to make sense. Thus, the Hoops incident, se- rious and embarassing as it was, appeared to me to have been blown up out of all proportion by Etkin for the ex- press purpose of getting Gilbert's scalp. It was not a re- current situation and obviously had not resulted from a failure to follow instructions given to Gilbert by the JAC. In the case of the welding rods, the utility of the do- nated rods remains an open question in the, light of Gil- bert's showing that they may not have been worth the trouble of picking up. In any event , there is substantial evidence that the matter was not a priority item on the agenda of the JAC and was of little importance until the JAC had to justify its action in firing Gilbert. The testi- mony of the JAC members convinces me that their origi- nal assertion that they were upset that he had let the rods be taken by somebody else is simply not true. Their own testimony showed that , at the time they fired Gil- bert, they did not know that it was already too late to pick up the rods, and they sent Milne to get them. (Milne, who was on the stand on two separate occasions during the hearing, gave no testimony at all on the point, having been asked by neither side.) All of the complaints, which are supposed to have been received from foremen, that Gilbert rarely visited the training sites date from the autumn of 1983. There appears to have been no reason to think Gilbert was remiss in that respect between then and 31 July, but the JAC went back to 1983 to find justification for their action in dismissing him. Gilbert's own comments on the matter convinced me that the training at the one or two jobsites involved in the complaints (assuming complaints were in fact received) did not require frequent supervi- sion by.him. Gilbert's action in upgrading apprentices on 1 July was shown to have been in conformity with past practice and not in violation of any express directions which had been given to him by the JAC. In the light of the evi- dence in the record, the insistence of the JAC members who testified that he should have consulted the commit- tee first actually appears to be unreasonable , for no one contends that any of the apprentices involved should not have been upgraded and the action apparently was over- due. There is no evidence that Gilbert was ever warned that he faced discharge if he failed to comply with the directions of the JAC. Even if the shaky testimony about the meeting of 7 February is accepted in toto, it amounts only to a showing that Gilbert had been given instruc- r' 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions along the lines asserted by Johnson, previously dis- cussed. Johnson never said that Gilbert had been warned of the consequences of failure to follow those instruc- tions. There is no evidence that he was ever told that his job was in jeopardy. Accordingly, I find that Gilbert was discharged for the reasons alleged by the General Counsel. The General Counsel had urged, as an additional basis for reaching this conclusion, the fact that at various times subsequent to the discharge additional reasons were, either stated or hinted at, and that therefore the Respondent had presented "shifting reasons" for dis- charge. In the period since the discharge, allegations have been made or specific grounds of dissatisfaction have been expressed regarding Gilbert's performance by members of the JAC. Following his discharge, Etkin conducted a full audit of Gilbert's expenses (and told him he was doing it) and questions were raised about pur- chases of propane gas tanks, vehicle repair bills for the JAC vehicle which Gilbert had been authorized to use, and his gasoline purchases. However, although the JAC was unquestionably look- ing into these matters, and may have made or hinted at such accusations, during the hearing the testimony was very clear that these were matters which were looked into subsequent to Gilbert's discharge and were not claimed to be the reasons for the committee's action. That was said several times by the witnesses and there never was any question but that the reasons claimed as having prompted their action were those which I have analyzed above. The grounds asserted for the discharge never varied. (Robert B. O'Connor, who made inquiries of the JAC on behalf of Arey respecting the reasons for Gilbert's discharge, was given additional complaints about Gilbert, but testified that in mentioning these matters to him, the members of the JAC did not differentiate between infor- mation which had been in their possession prior to 31 July and information which they acquired subsequently.) IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The violations of the Act found to have been commit- ted by the Respondent have a close, intimate, and sub- stantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Respondent violated Section 8(a)(3) and (1) of the Act by terminating the employment of Bruce Gilbert because he had engaged in protected concerted activities. 3. The Respondent did not commit any violations of the Act except those found herein. 4. The unfair labor practices found above affect com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent engaged in unfair labor practices I shall recommend that the Respondent be directed to cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. I shall recommend that the Respondent be directed to offer Bruce Gilbert reinstatement to his former position or, if that position is not available, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of earnings and other benefits which he may have suffered by reason of his discharge, with backpay to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Corp., 231 NLRB 651 (1977); and Isis Plumbing Ca, 138 NLRB 716 (1962). I further recommend that, notwith- standing the small size of the Respondent's administrative establishment, it be required to expunge from its records any reference to the unlawful discharge of Gilbert, and provide him with written notice of such expunction, and notice that his unlawful discharge will not be the basis of any future personnel action against him. It is unclear from the record whether the JAC has physical facilities apart from the space provided for it in the headquarters of Local 15. I have therefore made ad- ditional provision in the recommended Order for mailing a copy of the notice provided for to the members of Local 15. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed3 ORDER The Respondent, Northern District of Connecticut Iron Workers Local Union No. 15, Joint Apprenticeship Committee, Hartford, Connecticut, its officers, agents, and representatives, shall 1. Cease and desist from (a) Discharging employees for exercising their right to engage in protected concerted activities under Section 7 of the Act. (b) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Bruce Gilbert immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against him, in the manner set forth in the remedy section of the decision. If no exceptions are filed as provided by Sec. 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended 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 pur- poses. IRON WORKERS LOCAL 15 (b) Preserve and, on request, make available to the Board or its agents for examination and copying , all pay- roll records, social security payment records , timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (c) Remove from its files any reference to the unlawful discharge and notify Gilbert, in writing, that this has been done and that the discharge will not be used against him in any way. (d) Post at the offices of the Joint Apprenticeship Committee copies of the attached notice marked "Ap- pendix."' Copies of the notice, on forms provided by the Officer in Charge for Subregion 39 after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Mail a copy of the attached notice marked "Ap- pendix"to each apprentice and journeyman enrolled in its training program and to each member of Local 15. (f) Notify the Officer in Charge in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER ORDERED that the complaint is dis- missed insofar as it alleges violations of the Act not spe- cifically found. * If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 923 The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protec- tion To choose not to engage in any of these protect- ed concerted activities. WE WILL NOT discharge or otherwise penalize em- ployees for engaging in protected concerted activity under Section 7 of the National Labor Relations Act. WE WILL NOT in any like or related manner restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL offer Bruce Gilbert immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position , without prej- udice to his seniority or any other rights or privileges previously enjoyed, and WE WILL make him whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL notify him that we have removed from our files any reference to his discharge and that the dis- charge will not be used against him in any way. NORTHERN DISTRICT OF CONNECTICUT IRON WORKERS LOCAL UNION No. 15, JOINT APPRENTICESHIP COMMITTEE