Ziniz, Inc.

ZINIZ, INC. 887 Ziniz, Inc. and Lee Murray Local 207, Successor to Local 1241, Millwrights and Piledrivers, a/w United Brotherhood of Carpen- ters and Joiners of America, AFL-CIO and Lee Murray. Cases 9-CA-24673 and 9-CB-6897 August 22, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On March 31 , 1988, Administrative Law Judge Joel A. Harmatz issued the attached decision. The Respondent Employer filed exceptions and a sup- porting brief. The National Labor Relations Board has consid- ered the decision and the record in light of the ex- ceptions and brief and has decided to affirm the judge's rulings, findings, " and conclusions and to adopt the recommended Order. force terms and conditions specified in our collec- tive-bargaining agreement with Local 207, succes- sor to Local 1241, Millwrights and Piledrivers, a/w United Brotherhood of Carpenters and Joiners of America, AFL-CIO. WE WILL NOT threaten to discharge employees because they have attempted to enforce the terms of the aforesaid collective-bargaining agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Bobby Lee Murray and Al Grubb Jr., immediate and full reinstatement to their former jobs on the UPS Project, if those jobs still exist, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less interim earnings, plus interest as set forth in the Decision of the Administrative Law Judge. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that Respondent Employer Ziniz, Inc., Louisville, Kentucky, its officers, agents, suc- cessors, and assigns, and that Respondent Union Local 270, successor to Local 1241, Millwrights and Piledrivers, a/w United Brotherhood of Car- penters and Joiners of America, AFL-CIO, Co- lumbus, Ohio, its officers, agents, and representa- tives, shall take the action set forth in the Order, except that the attached Appendix A2 is substituted for that of the administrative law judge. 1 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 Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. 2 Minor grammatical errors in the judge's notice to employees have been corrected. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT discharge or otherwise discrimi- nate against you because you have attempted to en- 290 NLRB No. 105 ZINIZ, INC. Engrid Emerson Vaughn, Esq., for the General Counsel. Dennis J. Stilger, Esq. (Hebei, Hornung, and Stilger), of Louisville, Kentucky, for the Respondent Employer. Frederick G. Cloppert, Jr., Esq. (Cloppert, Portman, Sauter, Latanick & Foley), for the Respondent Union. DECISION STATEMENT OF THE CASE JOEL A. HARMATZ, Administrative Law Judge. This case was heard by me in Columbus, Ohio, on 7 and 8 January 1988, on unfair labor practice charges filed sepa- rately on 17 September 1987 against Respondent Union and Respondent Employer. Based thereon, a consolidat- ed complaint issued on 18 December 1987, alleging that Respondent Union independently violated Section 8(b)(1)(A) of the Act by threatening employees because they asserted rights acquired under a collective-bargain- ing agreement, by physically assaulting an employee be- cause he expressed an intent to file unfair labor practice charges, by threatening an employee with a loss of work unless he agreed to drop intraunion and/or unfair labor practice charges, and by refusing and failing to accept employee grievances for processing under the subsisting collective-bargaining agreement. The complaint further alleged that Respondent Union violated Section 8(b)(1)(A) and (2) of the Act by causing or attempting to cause Respondent Employer to layoff or terminate em- ployees Lee Murray, Al Gribb, Vincent Monteneri, and Homer Halley, because, inter alia, they concertedly com- plained about working conditions. Additionally, the com- plaint, as amended, alleged that Respondent Employer violated Section 8(a)(3) and (1) of the Act by terminating the above-named employees on request of Respondent Union or, alternatively, because they concertedly com- 888 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD plained about working conditions . Finally, it is alleged that Respondent Employer independently violated Sec- tion 8(a)(1) by threatening employees with discharge be- cause they persisted in such complaints. In duly filed an- swers, Respondents denied that any unfair labor practices were committed. After close of the hearing, briefs were filed on behalf of the General Counsel , the Respondent Union, and the Respondent Employer. On the entire record in this proceeding, including my opportunity directly to observe the witnesses while testi- fying and their demeanor, ' and after consideration of the posthearing briefs it is found as follows. I. JURISDICTION Respondent Employer, a Kentucky corporation, is en- gaged as a contractor in the construction industry in var- ious States of the United States, including a project call- ing for the installation of equipment at a United Parcel Service (UPS) facility in Columbus, Ohio, the sole job- site involved in this proceeding . During the 12-month period preceding issuance of the complaint, a representa- tive period, Respondent Employer purchased and re- ceived at that jobsite goods and materials valued in excess of $50,000 directly from points outside the State of Ohio. The complaint alleges, Respondent Employer admits, and I fmd that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the parties concede, and I fmd that Respondent Local 207 (the Union) is a successor to Local 1241, Millwrights and Piledrivers, affiliated with United Brotherhood of Carpenters and Joiners of Amer- ica, AFL-CIO and a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Preliminary Statement The issue of primary remedial concern in this proceed- ing arises from the midjob layoff of a number of union millwrights. All were members of Respondent Union. Initially the complaint rested exclusively on a theory that the discrimination was inspired by Respondent Union. This view was premised on the notion that, when long- standing union members asserted rights under a collec- tive-bargaining agreement negotiated by the Union, the latter's functionaries were so offended that they inter- vened to cause the Employer to furlough the complain- ing employees. At the hearing, however, the complaint was amended to add an alternative theory, which as- sumes that the Respondent Employer acted to punish these workers for the complaints. 1 Credibility resolutions made are occasionally accompanied by objec- tive rationale. This is intended to reinforce, not diminish, perceptions gained through my firsthand observation of the witnesses and their de- meanor. Furthermore, unmentioned testimony is rejected to the extent that it is irreconcilable with expressly credited evidence. The jobsite involved was located in Columbus, Ohio, within the geographic jurisidiction of Respondent Union. Respondent Ziniz, a contractor based in Louisville, Ken- tucky, had been retained on that job to install a convey- or system on behalf of United Parcel Service. The gener- al contractor was nonunion. However, Ziniz, prior to the commencement of work, agreed to be bound to the Re- spondent-Union's agreement covering millwrights on this job. 2 Work commenced in early January 1987, and initially was scheduled for completion some 54 weeks later in January 1988. Jay McMillan was the Employer's superin- tendent on the job. The general foreman was Tom Waller, a union member, who was retained by McMillan, on recommendation of Respondent Union's business agent, David Evans. All millwrights were referred by Evans pursuant to the 48-hour , exclusive hiring arrange- ment set forth in article 4 of the governing collective- bargaining agreement. The job was manned also by crafts outside the Union's jurisdiction, including operat- ing engineers and ironworkers. Lee Murray (the Charging Party) is the central figure in this controversy. He is a journeyman millwright and a longstanding member of the Union . He was referred by the latter for employment with Ziniz in March 1987.9 On 28 August, Respondent laid off two apprentice mill- wrights, six journeyman millwrights, two ironworkers, and a foreman. Since the layoff, up to the date of the hearing, Ziniz has hired four millwrights through the hiring hall. It does not appear that any of the 11 fur- loughed employees ever again were referred to the UPS jobsite. The General Counsel contends that of the 11 that lost their jobs, Murray, Grubb, Monteneri, and Halley were unlawfully furloughed in reprisal for their efforts repeat- edly to secure Respondent Employer's adherence to the collective-bargaining agreement-conduct that clearly falls within the protective mantle of Section 7 of the Act. Interboro Contractors, 157 NLRB 1295 (1966), enfd. 388 F.2d 495 (2d Cir. 1967); NLRB v. City Disposal Sys- tems, 465 U.S. 822 (1984). B. Concluding Analysis 1. The alleged protected activity The complaint is critically dependent on parol testimo- ny by Murray, which from time to time was augmented through the corroborative efforts of Grubb and Monten- eri. Their testimony ranged from the entirely believable, to heavily exaggerated, to absolutely improbable. All three struck me as laboring under a conspiratorial bias. In any event, there can be little dispute that Murray and his coworkers, during their tenure on the job, questioned the compliance by Ziniz with the dictates of the collec- tive-bargaining agreement, thereby satisfying the initial element of the General Counsel's burden. Objectively viewed , certain of their complaints inher- ently would tend to serve as stronger irritant to manage- 2 See G.C. Exh. 2. 3 Unless otherwise indicated, all dates referred to are in 1987. ZINIZ, INC. ment than others. The early complaints seemed less ex- treme. None on their face typically would arouse emnity of the average labor functionary . All were confined to a 5-month period coextensive with Murray's tenure on the job. Thus, Murray testified that during the first week of his employment in March he complained about Ziniz' failure to furnish welding gloves and other safety equip- meat. He allegedly informed Business Agent Evans that Foreman Waller instructed Murray to purchase his own equipment for use on the job. On the credited evidence, however, it is concluded that the shop steward on the job, Rick Satterfield, did secure welding gloves for Murray, and welding glasses were also provided by man- agement. As for the other safety equipment, based on the credited testimony of Business Agent Evans, contrary to Murray, it is concluded that the millwrights were re- quired to provide their own welding hoods . Thus, in this area, the issues were routinely resolved in consonance with the contract through union intervention and with- out incident. Receiving a similar disposition was Murray's com- plaint in May to Evans that the Company had refused to provide ice water as required by the contract. According to the credible evidence, the incident arose in mid-April, apparently due to unseasonably hot weather , and was corrected in due course. Any delay was attributable to the fact that ice water is generally the responsibility of the general contractor, who in this case was nonunion. ; Murray, without corroboration, testified that, during the. summer, he and other men complained about an unsafe ,condition created when workers were lifted by fork 4ucksiwithout handrails and safety belts. As I un- derstand Murray's testimony, when he complained to Satterfield, he was told, "you had a complaint, go down the road";, and when the issue was raised with General Foreman Tom Waller, "he just laughed at us." Nothing in the background ,suggests a probability that either Sat- terfield or Waller would have reacted at that time with such hostility when such a clearly defined safety hazard was called to their attention. Murray's more current complaints were not resolved favorably to the employees . The first involved an alleged violation of article 16, paragraph 1 of the collective-bar- gaining agreement, which, in material part, states: "No foreman shall be in charge of more than six (6) men, an- other foreman for each six (6) millwrights thereafter will be appointed." At the time, Murray's crew apparently in- cluded Grubb, Monteneri, Bill Tomlin, and Phil Meyers. They were assigned to Foreman Danny Offill. About a week before the layoff, Offill was off work, apparently due to illness, for 2 days. Instead of naming a new fore- man, General Foreman Waller assigned the crew to Foreman Bob Dillon. Dillon already had a crew and in- formed Murray that during this period he had between 13 and 15 men working under him. According to Murray, when he protested to Dillon, the latter agreed that the arrangement was incorrect but stated that "the company had a policy of breaking the contract" and that the business agent, and Thomas Waller , the general fore- 889 man of Ziniz, both had approved it, and that this is the way they were running the job.4 That same morning at approximately 8 o'clock, Murray assertedly sought out Waller, informing him that under the contract he was supposed to designate a fore- man from the crew and that Dillon was barred from su- pervising 15 men. According to Murray, Waller respond- ed, "that he was running the job and that he made the decisions." Murray was told that if he did not like it, he could "go down the road and find another job some- where else."a Murray could not recall if he wash .accom- panied, but then asserted a belief that Grubb was present. Grubb denied that this was the case. Murray then sought out Steward Satterfield. During a coffeebreak, he, to- gether with Monteneri and Grubb ,6 informed Satterfield that Dillion was working 15 men, while Offill was off, and that Ziniz should have designated one of the jour- neymen as foreman, paying him the 75-cent hourly dif- ferential. According to Murray, Satterfield responded that it was Waller and Dave Evans who were running the job and that Satterfield could be of no help.7 The next day, Murray, having had no success, con- fronted Job Superintendent McMillan inquiring who made policy on the job. McMillan acknowledged that he was in charge. Murray then asked if it was his policy "to break our contract, and beat a man out of a lousy 75- cents an hour for a couple of days here? " McMillan re- plied in the negative. When Murray argued that he had been deprived of 75 cents an hour during the 2-day 4 Dillon was not, called, and hence them is no explanation for the seemingly implausible remarks attributed to him by Murray. My suspi- cion of his account was enforced by my belief of Evan 's testimony that he agreed with Murray and pressed his view to Superintendent McMil- lan. I was singularly unimpressed with Murray . His demeanor reflected a contentious posture, and a propensity to impose self-centered views on others through baseless argumentation, half-truths, exaggeration, and a manipulative, somewhat creative, approach to fact. On several occasions, his efforts to further his cause through declarations founded on mistaken perception impelled him to recant. Moreover, in the total circumstances, it is considered unlikely that Evans would have approved this departure from the contract, or that Dillon, himself a union official, would have indicted his business agent in a sell out to management. It is also difficult to believe that the Union would have forsaken its representational duties where the total value of the contract breach was $12. It is true that Mon- teneri and Grubb attempted to corroborate that Dillon stated that Evans had approved the breach of contract. I discredit them as well. Neither Grubb nor Murray identified Monteneri as present during the conversa tion with Dillon. a General Foreman Waller, like Foreman Dibbs, was a longstanding member of Local 207 and its predecessors. a Monteneri was not part of the crew and as an apprentice, he had no pecuniary stake in the outcome. r Earlier, in April, Murray claims to have raised the same basic issue. He states that on that occasion an individual named Bleemel was super- vising five crews, and also had a personal crew of 8 to 10 employees, including Murray. Murray claims that Bleemel on one occasion assigned him to work independently with three or four men on blueprints. Murray felt on that occasion that one of them should have received foreman wages. However, when he told Evans about it, Evans told Murray to forget it. This seemed an appropriate response, for Bleemel was Ziniz' key man on the job. Even if a general foreman, however, Bleemel was not limited contractually to the number of men he could superise. Murray had other complaints about Bleemel, including a charge that he worked with tools, conduct that Murray later admitted to be unrestricted by the president contract. 890 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD period of Offill's absence, McMillan indicated that he would take care of it.9 Murray did not again hear from McMillan . When he discovered that the extra 75 cents was not in his pay- check, he again sought out McMillan. McMillan this time allegedly told Murray that he had discussed the issue with Evans, and that Evans told him that as far as he was concerned the ratio was correct . McMillan went on to explain that when the total number of foremen on the job is divided into the total complement of mill- wrights, the resulting ratio was in compliance with that specified in the contract. Murray disputed this interpreta- tion, arguing that Evans did not have the authority to delete, add to, or modify the contract. McMillan indicat- ed that the decision was final, and that Murray would not be paid the additional sum.9 During their coffeebreak, Evans and Monteneri re- quested and were given permission to use McMillan' telephone to call Evans . Murray avers that Evans indi- cated that he had approved the Company's position that the seven foremen on the job were sufficient if divided by the total work force. Murray disagreed, going on to state that he had complained about union conditions for sometime, and that Evans had corrected none of them. He advised Evans that he would appreciate a transfer to another project if Evans was going to run the Ziniz job nonunion. Murray asked for a job in Cambridge, Ohio, but Evans told him "if you want another job, you just come down here, and quit that job, and come down here and go on the bottom of the list, and wait your turn, and I'll send you out when I get around to it." Evans alleg- edly told Murray that it was Evans' obligation to man the Ziniz job and Murray should stay right there. Mon- teneri then got on the phone and talked to Evans. Mon- teneri relates that Evans lectured that Murray was a "troublemaker" and that Monteneri should watch who he hung around with. According to Murray, McMillan was at his desk and in a position to overhear segments of their conversation. The month of August was marked by several other issues championed by Murray. The first addressed the Company's employment of workers from Kentucky. Murray's concern here was twofold: (1) an out-of-state foreman was retained in contravention of article 16, paragraph 4, which requires that "all foreman shall be qualified journeyman and members of the union having jurisdiction," 10 and (2) the possibility that out-of-state millwrights might be retained when local millwrights are laid off. Shortly before the layoff, Murray avers that lie had two conversations with Satterfield regarding this e The mere fact that Murray carried the matter to McMillan raises sus- picion. At a minimum, it suggests that he did not accept that Evans had licensed the arrangement. Along that same line, in accord with Murray's account, one might rightfully assume that McMillan was either unmindful that Evans had condoned any such arrangement, or that, unlike Dillon, he declined to rebuff Murray with that information. Needless to say, I did not believe Murray, or anyone else who related that they received information that Evans concurred in the Employer's interpretation of art. 16. s Murray states that this conversation took place in the presence of Grubb. It is the sense of Grubb's testimony that he was not present. 10 An exception to this policy is suggested by art. 4, par. 2, wich au- thorizes employer to select one foreman "and/or" one key man. issue. First, Murray complained that the Company's use of foreman from Kentucky was wrong when qualified local people, who pay dues in the area, and were quali- fied to handle the work, were denied the opportunity. Satterfield allegedly replied that there were no local people available, an explanation that allegedly was echoed by Evans, when the problem was presented to him by Murray. In the second conversation, Satterfield allegedly re- sponded that he had discussed the issue with Evans and that Evans indicated that if the employees had griev- ances and complaints to go down the road and look for another job, because no grievances or complaints would be accepted on the UPS project." When Murray alleg- edly sought to confirm that the Union would refuse to accept a grievance, Satterfield indicated that that is ex- actly what Evans told him to relate to Murray. t 2 A jurisdictional issue triggered the final complaint reg- istered in August. In this regard, Murray relates that in the week before the layoff, while he, Grubb, and Mon- teneri were working on the belt crew, they observed members of Local 18 of the International Union of Oper- ating Engineers installing guards and drive chains on the conveyor and running the overhead crane on the job. Murray felt that this was an intrusion on traditional mill- wright work. When approached , according to Murray, the operating engineers explained that the work had been assigned by Foreman Waller. In the presence of other members of his crew, Murray raised the issue with Fore- man Dillon, who allegedly stated that he was without authority to alter the condition , if Waller had okayed it. Murray, together with Monteneri, then reported the matter to Satterfield . r a Next Murray went to see Waller, 11 Monteneri describes the issue differently. He states that they com- plained to Satterfield that Kentucky men were on the job while local men were on the Union's out-of-work list. This varies meterially from the description of the issues offered by other witnesses , but if true, would provide a logical foundation to Satterfield's alleged response that "there were no local people available." Monteneri also stands alone in offering testimony concerning an incident arising 2 to 3 weeks prior to the layoff. Thus, he states that "we complained to Satterfield and Evans about the hire of an inexperienced foreman, whereupon they got the same general answer, i.e., "you want to complain, just find another job." Monteneri did not identify who else was involved in the incident, and his uncorro- borated testimony is rejected. 12 Satterfield acknowledged that prior to the layoff, in response to rumors, several men, including Murray, asserted that out-of-staters should be the first to go. He could recall no other complaints concerning that group. However, he, together with Evans, credibly related that the posi- tion advanced by the Union to management accorded with Murray's view and supported the local area preference . For this reason, and be- cause the testimony of Murray, Monteneri, and Grubb in this regard did not ring true, I reject testimony that he suggested that they should quit, rather than register complaints. I also discredit the uncorroborated testi- mony of Murray that Satterfield took the position that grievances would not be accepted on the job. 19 Satterfield testified that he checked the complaint only to find that Foreman Dillon and the operating engineers denied any intrusion on mill- wright's work. Although he did not personally observe any violation, Satterfield reported the charge to Evans and McMillan . Evans testified that in response he visited the jobsite and instructed McMillan to respect the jurisdictional rights of his Union. Evans also claims that he received and responded to a second complaint concerning the operating engineers. According to Evans, when he confronted Waller in this regard, Waller explained that the operating engineers were underworked and standing around. Evans claims to have rejected this excuse, insisting that they not Continued ZINIZ, INC. challenging his right to assign the operating engineers to do millwright work. As I understand Murray's testimo- ny, Waller explained that because the operating engi- neers were experiencing downtime, he opted to utilize them where he could, rather than having them sit around or be laid off.14 2. Foreman Waller's threat The most crucial testimony in this case relates to an alleged encounter with Waller on the Wednesday prior to the layoff. At the time, a number of workers were on break, gathered around a coffee truck-", According to Murray, as the men were rehashing their jurisdictional complaints, Waller approached. Murray asked, "Tom, are you going to straighten this crap out?" Murray asser- tedly stated that the job was not being run according to the contract, that he could not live with it, and that he would file charges and get a hearing before the Union's district council against Waller and Dave Evans. Waller responded that he was running the job, and that he did not have to explain his decisions and actions to anyone. He allegedly told Murray that if he did not like the way he ran the job, Murray could quit, adding that if the men were going to "bitch together," they could "go down the road together."1 a These threatening remarks, includ- ing Waller's prediction that concerted complaints by em- ployees concerning their working conditions would lead to discharge, substantiate that Respondent Employer in- dependently violated Section 8(a)(1) of the Act. I so find. 3. The 28 August layoff Virtually from its inception, rumors of layoff had cir- culated throughout the project. On Friday, 28 August, shortly after their coffeebreak, Murray was tipped off by an ironworker steward that he and Grubb would be laid be used to perform millwright work . I believed Evans. In passing, it is noteworthy that Monteneri added several incriminating details, which were unconfirmed from other sources. First, he averred that Dillon stated that Evans had approved the use of operating engineers to perform millwright's work. Second he stated that Satterfield rejected the jurisdic- tional complaint, advising the men not to make waves. I did not believe Monteneri. 14 It is the sense of Grubbs testimony that he did not accompany Murray when the latter confronted Waller and/or Satterfield concerning the operating engineers. 15 Alleged discriminates Homer Halley did not testify. He was de- scribed as simply "standing there" during this incident. He was not iden- tified as having taken an active role in this any other incident litigated in this proceeding. 1e Monteneri and Grubb confirm that Waller this latter remark. Waller, made though actively on payroll status at the time of the hearing (see Res. Emp. Exh. 6), was not called as a witness. Despite misgivings concerning the credulity of Murray, Grubb , and Monteneri, considering the import of the remark attributed to Waller and his apparent availabil- ity, it is fair to infer that, if called , his testimony would not have support- ed the Employer's interest. I also reject the denial that Waller, though general foreman, was not a supervisor. There is ample basis for deeming his actions to be binding on the Employer. Waller reported directly to Superintendent McMillan, and with the possible exception of the key man, was second in command on the project. Other foreman reported to Waller, received assignments from him , and he was responsible for the faithful discharge of duties by supervisors and rank-and-file workers within his jurisdiction. He was consulted concerning the employees to be retained in the event of a layoff and he clearly exercised independent judgment in the assignment of work and the direction of the work force. It is concluded that General Foreman Waller was a supervisor within the meaning of Sec. 2(11) of the Act. 891 off. When Murray sought confirmation from Satterfield, the latter stated that he knew nothing, but indicated that he would investigate. Later Satterfield returned, confirm- ing that Grubb and Murray were affected. When Satter- field was unable to furnish a reason, Murray and Grubb sought out McMillan, who confirmed their inclusion. Murray argued to McMillan that it made no sense, as he was a leadman and had done quite a bit of work. McMil- lan allegedly responded that the layoff was decided by Waller and Evans, it already had been arranged and he had nothing to say about it. At this point, Murray men- tioned the Kentucky men and apprentices, and others hired after him, asking whether they would be retained. McMillan is alleged to have replied that "all" were stay- ing, adding that he had no complaint about Murray's work, but that Waller and Evans "decided that you would be gone."17 Murray then sought out Waller. He confronted him stating, "I understand I am being laid off." Waller said "that is correct." When Murray asked what was going on, Waller allegedly replied, "Well, I told you, if you're going to bitch together, you're go down the road togeth- er." Waller allegedly added that he had had enough, that he was running the job, and that he would make the de- cisions. Murray injected that he did not agree with those decisions. Waller said that if he had any complaints, to take them up with Evans, who had already okayed the layoff.1 s That evening, Murray called the union hall several times, but could not reach Evans. On Monday morning, he went to the hall with Grubb, Halley, and Monteneri. Evans again was unavailable . He alleges that he informed the Union's secretary that they wished to grieve their layoff. Moreover, being dissatisfied with the secretary's effort to contact Evans, Murray told her to advise Evans that they would take the matter to the National Labor Relations Board and the Union's district council. With her permission, he then telephoned the NLRB in Cincin- nati, Ohio, to request forms for filing unfair labor prac- tice charges. In analyzing the issues of discriminati on , it is first ob- served that the General Counsel's proof does not support a reasonably based inference that the overall layoff, even partially, was founded on prescribed considerations. There is not a scintilla to suggest that the Respondent Employer eliminated seven innocent workers, including a foreman, two ironworkers and an operating engineer, to mask its interest in eliminating the four alleged discri- minatees. In this posture, the General Counsel is relegat- ed to proving that Murray, Grubb, Halley, and Monten- 1 r Grubb's version indicated that McMillan named Wailer and Evans as having "made the layoff list." Monteneri, who did not witness the con- versation, relates that in a separate conversation with Waller, he was re- ferred to Evans to explain his inclusion because it was Evans who made out the list. The testimony of all three was considered untruthful. is Grubb testified that he was not in a position to hear heated aspects of the conversation between Murray and Waller. As I understand Grubb's account, Waller did explain his selection, rgferring to a prior warning issued Grubb that he would be terminated if he persisted in talk- ing too much on the job-a ground that I consider to involve miscon- duct, distinct from any form of protected activity. 892 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD eri were victims of discriminatory selection in the course of an otherwise legitimate, economic layoff. Concerning Case 9-CB-6857, there is no primary evi- dence that the Respondent Union participated in any aspect of the layoff decision. The hearsay evidence of- fered through Murray, Grubb, and Monteneri does impli- cate the Union in that process, but even if believed, their testimony does not link with other competent proof es- tablishing a rational circumstantial probability that Evans or any other union representative had any influence on the determination to let the alleged discriminatees go.19 Accordingly, credible, probative evidence that the Re- spondent Union caused, or attempted to cause, any dis- crimination involved here, is lacking, and the 8(b)(2) alle- gations in this regard shall be dismissed. Nonetheless, the General Counsel has substantiated a prima facie violation of 8(a)(3) and (1) in Respondent Employer's selection of Murray, Grubb, and Monten- eri.20 Against the background of prior complaints con- cerning contract issues, General Foreman Tom Waller, 2 days before the layoff, reacted with the comment that if the men were "going to bitch together," they could "go down the road together." This expression of animus, in context, is linked sufficiently to the protected concerted activity of Murray, Monteneri, and Grubb, to warrant the inference that their selection was founded, at least in part, on unlawful considerations . In these circumstances, the burden shifts and a finding of proscribed discrimina- tion will only be allayed on proof that all three would have been included even had they engaged in no activity protected by the Act. See Wright Line, 251 NLRB 1083, 1089 (1980); NLRB v. Transportation Management Corp., 462 U.S. 393, 401 (1983). In this regard, Superintendent McMillan testified that he alone determined those to be included in the layoff. He avers that the process began on Monday , 17 August, when he requested that Bleemel, his key man, and Gen- eral Foreman Waller name those they wished to keep. 19 On this record, the parol testimony is not enhanced by any objec- tive, impartial evidence suggesting that the Union spurned its traditional responsibilities in order to align itself with Employer efforts to repress complaints by its members. Here, the controversy generated by workers on this project was not so unusual as to imply that the Union might have been distracted from its routine representational duties . In fact, based on the credited testimony of Satterfield and Evans, it is concluded that steps were taken to achieve a favorable resolution of each complaint , and com- pliance was achieved in all cases except the crew/foreman ratio issue, the jurisdictional dispute, the use of out-of-state millwrights did not develop into a genuine issue until after the layoff. The dispute concerning the crew/foreman ratio involved a mere $12. The provision of welding hoods, according to the Union , was not the Employer's responsibility, and the contract does not suggest that this interpretation was in error. With respect to any misuse of operating engineers , it does not appear that following Evans' demands in that regard, the Employer engaged in fur- ther intrusion on the Union's craft jurisdiction . On balance, there is no inherent basis for inferring that the Union reacted adversely to the jobaite conduct of the employees involved in this proceeding, and the credited facts are to the contrary. so The 8(ax3) and 8(b)(2) allegations involving Halley are dismissed as unsupported by evidence that the Employer had knowledge or a basis for believing that he engaged in any conduct protected by the Act. Indeed, there was no proof that he had in fact done so. Halley's standing on the evidence in this case is no different than the seven laid-off employees not mentioned in the instant complaint. In other words, the General Counsel has failed to establish that the selection of Halley, to any conceivable extent, was prompted by Section 7 activity. At the time, 40 millwrights were employed, and McMil- lan, on receiving these recommendations , still had several selections to make on his own. McMillan claims to have made the final choice later in the week of 17 August based on (1) his personal on-the-job observations, (2) on- going comments from other foremen concerning job per- formance,2 1 and (3) the need for the particular mill- wright or crew, considering the work they were doing in relation to that required and ready for performance at the time.22 Apart from their earlier employment on the belt crew, no attempt was made to explain how or why Murray or Grubb were selected under the aforedescribed criteria. Beyond that, McMillan testified that it was difficult to distinguish between journeymen millwrights because all possessed the skills of their craft. In this light, his charac- terization of Murray as "one of the better workers on the job," together with his admission that work remained on the job that Murray was capable of performing actually enforces the inference of discrimination that emerges from the case-in-chief. Indeed, McMillan admitted that Bleemel named Murray as among those to be retained. Despite this, and for unexplainable reasons, McMillan still included Murray in the layoff. His doing so gives rise to an incongruity sufficiently serious to bring reality to Waller's prophesy that the men would "go down the road together."'s Accordingly, it is concluded that, as Respondent Employer has failed to demonstrate that Murray or Grubb would have been selected for layoff, even had they declined to compel compliance with the collective-bargaining agreement, their terminations on 28 August violated Section 8(a)(3) and (1) of the Act.24 The opposite conclusion is reached in the case of Mon- teneri, an apprentice. In his case, McMillan testified that Monteneri was the sole alleged discriminatee singled out by a foreman (Waller) as a candidate for termination. Since the latter's job inadequacies were confirmed by Murray, in this instance, I am willing to give benefit of the doubt to McMillan and based on his testimony that negative recommendations by foremen were considered, it is concluded that Monteneri would have been selected a' The front line foremen were not interviewed by McMillan as part of this process and they did not participate directly therein. as It was my impression that counsel for the Employer made a more energetic attempt to explain the terminations on this last ground than his witness, McMillan. It is true that phase one of the project was drawing to a close at the time and, according to McMillan, the "majority" of the belting had been completed for that phase . However, although he testi- fied that Murray, Monteneri, and Grubb were on the belt crew, he went on to testify that "they were out of the belt crew at the time of the layoff." Thus, completion of the belt work does not furnish an unambig- uous, nondiscriminatory explanation for their selection . McMillan's failure to explain why, or even whether the precise work these individuals were doing at the time of layoff was dispensable is a crucial flaw in the de- fense. In Murray's case, the breakdown in proof was underscored by Mc- Millan's inability, when subsequently asked, to provide any specific reason for terminating Murray, instead implying that it was quite acciden- tal. "Respondent Employer contends that Walter's threatening remark could not have influenced the layoff since the selections were made prior thereto. The persuasiveness testimony that he actually did not draft the list or communicate the names to headquarters until 26 or 27 August. a* McMillan's c onclusionary testimony that he was not influenced by the concerted activity is rejected as unbelievable in the total circum- stances. ZINIZ, INC. 893 for layoff even if he had not engaged in activity of a protected nature. Hence, the 8(a)(3) and (1) allegations in his case shall be dismissed. 4. The 8(b)(l)(A) allegations The complaint alleged that, prior to the layoff, Re- spondent Union violated Section 8(b)(1)(A), through Sat- terfield's alleged threats that employees would lose em- ployment because they questioned compliance with the governing collective-bargaining agreement. This allega- tion is dismissed as unsubstantiated by credible evidence. Satterfield believably related that he pursued all issues raised by Murray, Grubb, and Monteneri, had several re- solved, and those not within this category were passed on to Evans. Based on all the evidence, it struck as en- tirely unlikely that the steward, either alone or under di- rection by the business agent would react with such hos- tility toward efforts by longstanding union members to enforce the contract. I did not believe the testimony of Murray, Grubb, and Monteneri that they were told to either withhold complaints or find other work and hence the 8(b)(1XA) allegation based thereon shall be dis- missed. The complaint also alleged that the Union declined to accept grievances under the contract. This allegation is vaguely phrased, lacking identification of union agents involved, the grievances in question, or the specific time- frame when grievances were rejected. Insofar as ad- dressed to Steward Satterfield, it is concluded that he did not unlawfully interfere with any employee's access, including that of Murray, to the contractual grievance machinery. In so finding, it is noted that credible evi- dence does not exist indicating that he was solicited by any employee to file a grievance concerning the layoff. On direct examination, Murray testified that on 28 August, after Satterfield notified him that he was includ- ed in the layoff, he and Grubb went to McMillan's office. He claims that he then went to discuss the matter with Waller. There is no indication during his examina- tion-in-chief that he met with Satterfield to protest the layoff before he left the job that day. On redirect, how- ever, after leading examination by counsel for the Gener- al Counsel, Murray testified that he "specifically" re- quested that Satterfield grieve his layoff, but then recant- ed: "I don't know if I got right down and said I'm filing a grievance in writing or not." Satterfield denied that any protest was lodged with him by Murray regarding the layoff. Based on Satterfield's credited denial, I find that Satterfield did not refuse to accept or process any grievance concerning the 28 August layoff. Nor is there testimony that Satterfield, prior to the layoff, was re- quested to file a formal grievance with respect to any of the miscellany of issues raised during that timeframe. Thus, the General Counsel's claim of illegality in this latter respect is premised on the notion that union agents shoulder a duty to equate carping with a formal request for invocation of the grievance process . I am unaware of any policy that would support imposition of such a burden on a labor organization, or its representatives. On the contrary, a requirement that employees make their intention clear is hardly onerous . In this light, as the evi- dence does not disclose that Satterfield was so apprised in this case, there is no basis for concluding that Re- spondent Union, through Satterfield, declined to accept or process a grievance in violation of Section 8(b)(IXA) of the Act.ar The remaining 8(bx1XA) allegations are attributed to Business Agent Evans. In support it is argued that, during the period following the layoff, Evans: (1) threat- ened employees with loss of unemployment compensa- tion if they persisted in protesting their layoff, (2) phys- ically assaulted an employee because of his declared intent to file unfair labor practice charges , and (3) threat- ened an employee with loss of work unless he desisted from pursuing intraunion or unfair labor practice charges. The initial act of alleged coercion took place in the course of a regularly scheduled, monthly union meeting held on Tuesday, September 1. Murray took the floor to' downdress Evans, stating that he felt that the rules and bylaws had been routinely violated on the Ziniz job and that he had been approached by himself and other mem- bers to take corrective measures. Evans allegedly re- sponded that there was nothing that could be done. Murray aserts that he then asked Evans to investigate the layoff, observing that he thought that they were laid off improperly.26 Murray avers that he next told Evans that McMillan had indicated that they were temporarily laid off due to lack of materials but that Murray did not be- lieve that this was so.21 Evans then offered that Ziniz was trying to clear out the deadwood . However, Evans indicated that Murray did not fall into that category, but was selected for the following reason : "your problem is you bitch too much . . . you create dissension on the job ... that's why you're being laid off, the man is trying to get rid of you for creating union problems." The General Counsel appears to contend that in the course of the meeting Murray made a fruitless effort to perfect a grievance. Though not evident in his initial nar- rative, Murray testified that he did so at the 1 September union meeting by instructing Evans to grieve the layoff under the contract and to investigate the matter to hear- 25 I did not believe Murray's testimony that he made a specific request to file a grievance to a clerical employee of the Union during a visit to the union hall on Monday, 31 August. The clerical employee is unidenti- fied and there is no allegation that the individual in question was an agent of Respondent for any purpose. In any event, in rejecting Murray's testi- mony, I note his assertion that he was accompanied that day by Grubb, Halley, and Monteneri. Only Monteneri gave testimony tending to cor- roborate Murray, and he was not examined as to exactly what the secre- tary was told. More importantly Monteneri's effort at corroboration must be evaluated in light of his testimony on direct examination that he did not visit the union hall until the following Tuesday. Whatever the case, neither Murray nor Monteneri struck me as a reliable witness and their testimony was only accepted where enforced by reliable sources or out- side probabilities. 'a Although Murray assailed Foreman Waller after learning that the latter participated in his selection, he apparently did not confront Evans with the information he allegedly possessed that Evans also had partici- pated in the preparation of the layoff list. a' Note that Murray's version of his terminal conversation with Mc- Millan denied that McMillan gave any reason for the layoff. Instead Murray at that time testified that, when Murray requested an explanation, McMillan declined to give one, but simply stated that he had nothing to do with the decision. 894 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing under the grievance procedure.28 According to Murray, Evans grinned, but did not say whether he would or he would not take that step. In contrast, Evans testified that, prior to the 6 October union meeting nei- ther Murray, nor anyone else, requested that he file a grievance concerning the layoff.29 As I prefer the testi- mony of Evans, and as the obligation to process a griev- ance does not arise until the employee specifically ex- presses such an intention, the 8(b)(1)(A) allegation, to the extent based on any claim that Evans refused to accept grievances, shall be dismissed as unsubstantiated by cred- ible proof that such action was ever sought by any em- ployee.30 An additional 8(b)(1)(A) allegation attributed to Evans during the course of this meeting is founded on Murray's testimony that Evans warned at that time that if the em- ployees wanted to bitch about it "Mr. McMillan had agreed to hire us back, work us 2 days and fire us all."31 Evans admitted to a similar, but substantively different statement. Thus, he recalls having told the men that their layoff entitled them to unemployment, but that if the Union forced their reinstatement, the Employer could keep them for a few days and then fire them under con- ditions precluding unemployment benefit eligibility. Evans swore that this possibility was of his own inven- tion, that it was hypothetical, and that McMillan had not stated that he would take any such action. I believed Evans, and based on his credited testimony, it is conclud- ed that no coercive behavior might be ascribed to the Union through this effort to convince those affected that matters could be worse. Accordingly, the 8(b)(1)(A) alle- gation that employees were in any sense coerced by these remarks is dismissed. The complaint alleges a further 8(b)(1)(A) allegation based on Evans alleged physical assault on 12 September of employees because they intended to file unfair labor practice charges. On that date, the Union sponsored a picnic. Murray attended with his wife and children. Early in the afternoon, Evans visited with Murray and his family. During a cordial conversation, Evans stated that he wished that Murray would drop the whole matter. The latter indicated that he could not do so, and that he wanted the district council to make a decision concerning whether Evans was properly enforcing the contract. Evans attempted to reason with Murray by ex- 28 Murray's testimony in this respect was elicited through a prejudi- cially leading question, a fact that is all the more crucial when one con- siders my basic doubts concerning his veracity. 29 Art. 1 l of the collective -bargaining agreement requires a grievance to be filed within 48 hours of the occurrence, excluding Saturdays and Sundays. Thus, an employee who would invoke that process, at a mini- mum, must act within that timeframe . From all appearances , the require- ment would have been met had Murray perfected his demand at the union meeting. 30 Evans testified that he received a telephone call from Murray on Tuesday morning, 1 September, in which Murray disputed the Compa- ny's right to retain out-of-state millwrights while laying off local men. This was Evans' first contact with Murray after the layoff. Although the contract imposed no restraints on the Employer's discretion either in layoff selection or recall , Evans supported Murray's view and protested to McMillan, but to no avail. 31 Monteneri did not attend the meeting, but met with Evans earlier that day. According to Montencri, Evans told him that McMillan had in- formed Evans that if the men continued to bitch, that they would hire the men back for 2 days, and then fire them. plaining that the Union was in the process of a reorgani- zation that could enhance Evans' authority, but that the exposure of Murray's charges would prejudice this op- portunity. Murray next raised the possibility that a deal could be made, asking whether Evans was prepared to make concessions to him and his crew. Evans angrily in- dicated that he would make no concessions, but that if Murray dropped the charges, he would let Murray keep his health. When Murray asked if he was serious, Evans indicated that if Murray did not forget it and drop all the NLRB and union charges he would whip him right then and there. Murray then said that he had the papers right in his truck and had made up his mind to go ahead and file them. Subsequently, Murray went to his truck, ob- tained the papers, brought them to the picnic table, where he, together with Grubb and Monteneri signed them. According to Murray, during the afternoon, Evans came by several times, at one point telling Murray that he was going to wipe the floor up with him. According to Murray, each time Evans came by he became more "adamant about the fact that he was going to beat up Murray if he did not drop the charges." Later, a fight did in fact break out. Monteneri, howev- er, was a principal. On his own account, Murray got in- volved as a peacemaker, prevailing on the participants to resolve their differences, later when sober, at the union hall. Indeed, when another millwright, Jesse Thomas, and Evans each grabbed one of Monteneri's wrists, Murray intervened grabbing Evans' wrist stating "dammit, boys, let's just settle this at the union hall . . . you know, this is not the place . . . somebody's going to get hurt here, once this gets started." At this point, Evans' wife came running towards the men and jumped between them, attempting to kick Monteneri in the groin. She then grabbed Murray's hair, whereupon Mur- ray's wife grabbed Mrs. Evans by the hair, and when an- other woman jumped in, it was Evans who became the peacemaker. But as Evans grabbed Mrs. Murray and at- tempted to drag her away she hit him in the nose, break- ing his glasses. As this chapter drew to a close, Mrs. Evans struck Murray in the back with a wooden food stirrer, and when he grabbed it, she bit his fingers severely. Evans' daughter then threatened Murray's wife with a beer bottle. And when an identified friend intervened on behalf of the daughter, Murray knocked him down twice. Before leaving, Murray once more was approached by Evans who again demanded that Murray drop the in- traunion and unfair labor practice charges. Murray said no, whereupon Evans then observed, "by God, we've got a problem." Murray challenged that if that was the way Evans felt, he could take a swing at Murray. Evans apparently declined, and Murray gathered up his family and left.32 32 Prior to the picnic, Murray had filed no charges . Thereafter, he filed internal union charges against Waller, Satterfield, Evans, and Dillon. The charges against Dillon were dropped, but those against Evans, Waller, and Satterfield were processed and were to be heard on 13 Janu- ary 1988. The unfair labor practice charge, though apparently signed at the picnic, was not actually filed on 18 September 1987. ZINIZ, INC. 895 Monteneri testified that he did not arrive at the picnic until 5 :30 p.m. He claims that they were having a great time, that they signed the charges, and that the charges went unmentioned until about 9:30 p.m. At that time, Evans approached Monteneri and told him that he was "trying to get him in trouble." Monteneri denied that this was his intent, arguing that if Evans had run the job right, the men would not have had to file charges. Evans then attacked Monteneri's ability as a worker, calling on millwright Jesse Duncan for support. The latter de- scribed Monteneri as "worthless."a s Monteneri coun- tered with an attack on Duncan's competence, and their argument continued until Evans grabbed Monteneri's arm, because it appeared that Monteneri and Duncan were on the verge of fisticuffs. According to Monteneri, Evans at that juncture was intoxciated and angry and, though attempting to separate him from Duncan, Evans threatened Monteneri "if we didn't straighten things out right then and there . . . drop the charges . . . I'm going to kick your ass." At this juncture, Murray inter- vened to quell the disturbance, but failed due to the in- trusion of Mrs. Evans. According to Monteneri, after the donnybrook involv- ing the women ended , Evans asked him to leave. He re- plied: I didn't start this fight . . . your wife started this fight and as far as I'm concerned she can leave. Evans, angered by this remark, stated "come on, big boy, I'm going to whip your ass right where you stand." A fight ensued, but only after Monteneri and Evans re- turned to the parking lot. After getting the best of Evans, Monteneri left, with the former still echoing, "I'm going to kick your ass big boy." The sole allegation in the complaint pertaining to the picnic specifies that Evans "physically assaulted" em- ployees because they "expressed their intent to file charges with the National Labor Relations Board."34 The General Counsel's witnesses, namely, Grubb and Monteneri, both related that fights were brewing well prior to the altercations described above, a state of events having nothing to do with internal or external charges against union officials . Monteneri and Murray, the sole witnesses to their confrontations with Evans, testified to numerous threats of harm by the latter, but did not relate either directly, or by implication that they were assaulted because of activity of a protected nature. On their own testimony, the first assault was initiated by Mrs. Evans and the second by Monteneri's refusal to leave the premises. Accordingly, the evidence does not 99 Monteneri testified that earlier that evening he observed Duncan and Evans at the brink of fisticuffs. 84 Having canvassed the record, I have been unable to locate an amendment to the complaint challenging the legality of Evans' threats of bodily harm. Thus, a material variance with the pleadings is presented, which calls into play the Board's longstanding policy that unalleged unfair labor practices may be remedied, but only if fully litigated. Here, there was no attempt to litigate an evidentiary defense . However, Re- apondent-Union not only failed to interpose a procedural objection, but countered with a substantive argument that the threats did not relate to activity within the purview of Section 7 of the Act. In this light, it is concluded, allbeit reluctantly, that the issue of coercive threats is viable as having been fully litigated. substantiate that Evans assaulted any employee in conse- quence of activity of a protected nature . Nonetheless, as Evans did not refute the entirely plausible testimony that he repeatedly threatened Monteneri and Murray with physical harm if they did not drop the unfair labor prac- tice and intraunion charges, both of which actions consti- tuted activity protected by the Act, it is concluded that Respondent-Union violated Section 8(b)(1XA) of the Act.sa The final allegation of the complaint is to the effect that Evans, on 14 September, threatened an employee with loss of work unless he agreed to drop all charges. This allegation is founded on Murray 's testimony that, while at the union hall, he discussed the charges with Evans, who stated that this was the main thing on his mind, that they would have to be dropped , and that they would mess up his future. Evans allegedly made his point by stating that if Murray wanted to work steady, to have the opportunity to be designated as steward or foreman, and to avoid problems, he "would have to drop them."36 Evans testified that he discussed the unfair labor practice charges with Murray on 17 September. At that time, Murray brought the signed unfair labor prac- tice charges to his office, warning Evans that they would be filed if Evans did not get him reinstated on the Ziniz job. Evans allegedly responded that he had done all he could legally accomplish, and the filing of unfair labor practice charges was Murray's prerogative. According to Evans it was in this conversation that the Allied Riggers recovery was mentioned, with Evans stating that Mur- ray's action and recovery against that firm had caused a hardship on the members because Allied Riggers, since, has avoided use of the Union's hiring hall . Evans' testi- mony in this respect was addressed to the only conversa- tion within the timeframe mentioned in the complaint. His account implicitly refutes any threat related to the charges, and his testimony is preferred to that of Murray. Beyond that there was neither allegation, nor conclusive litigation of any unfair labor practices in December. Ac- cordingly, the allegation that Evans threatened Murray with reprisals in violation of Section 8(b)(1)(A) in this re- spect shall be dismissed. as There is no merit in the Union's legal contention that no violation inured because "the threats were related to the Internal Union charges that Monteneri and Murray were mentioning." This difference does not alter the result. Under the precedent, the distinct remedies available under the National Labor Relations Act are not displaced merely because the employee conduct is also protected by the Labor-Management Re- porting and Disclosure Act. (See, e.g., Steelworkers Local 5163 (Charles A. Birzaro), 248 NLRB 943, and cases cited at 944 (1980). Moreover, even if the precedent were otherwise, the threats attributed to Evans transcend- ed internal disciplinary procedures and remained unlawful because broad enough to restrain employee access to the National Labor Relations Board. se Murray also averred that Evans telephoned him in December. In that conversation, Evans referred to the fact that Murray, in another unfair labor practice proceeding involving a local contractor, Allied Rig- gers, had been awarded $50,000 in backpay. Evans told Murray that be- cause of this recovery, Murray had been collecting unemployment illegal- ly, and that if the charges were not dropped, he would report Murray to the unemployment authorities. Evans allegedly also threatened to file in- ternal disciplinary charges against Murray and to assess him $1000. Murray acknowledged that Evans also asserted that because of the Allied Riggers proceeding, he had encountered difficulty in getting that firm to hire employees through the Union. 896 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. Respondent Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Employer independently violated Sec- tion 8(a)(1) of the Act by threatening to terminate em- ployees because they invoked their collective-bargaining agreement and complained concerning their conditions of work. 4. Respondent Employer violated Section 8(a)(3) and (1) of the Act by terminating employees Bobby Lee Murray and Al Grubb because they complained concern- ing the failure to observe conditions of work set forth in the governing collective-bargaining agreement. 5. Respondent Union violated Section 8(b)(1)(A) of the Act by threatening to physically harm employees unless they declined to process internal union and unfair labor practice charges. 6. The above unfair labor practices have an effect on commerce within the meaning of Section 2(6) and (7) of the Act. 7. Except as found above, Respondent Employer and Respondent Union have not committed any unfair labor practices alleged herein. THE REMEDY Having found that Respondent Union and the Re- spondent Employer have coerced and restrained employ- ees in the exercise of their rights guaranteed by Section 7 of the Act, it shall be recommended that they be ordered to cease and desist therefrom, and to take other affirma- tive action designed to effectuate the purposes and poli- cies of the Act. Having found that Respondent Employer violated Sec- tion 8(a)(3) and (1) of the Act by terminating employees Murray and Grubb, it shall be recommended that they be offered immediate reinstatement to their former posi- tions, if in existence on the UPS job, and make them whole for any loss of earnings and other benefits they may have suffered by reason of the discrimination against them from 28 August 1987 until a bona fide offer of reinstatement, or termination of all utilization of mill- wrights on that project, whichever occurs first.37 Back- pay under the terms of this Order shall be computed on a quarterly basis, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), shall be reduced by net interim earnings, and shall include interest computed in accord- ance with New Horizons for the Retarded, 283 NLRB 1173 (1987). Counsel for the General Counsel apparently has not yield on a request set forth in the complaint that the remedy include a visitatorial clause, authorizing the Board to engage in discovery if necessary to monitor compliance. The Board recently has announced that such 37 Respondent Employer contended at the hearing that it objected to the recall of Murray in consequence of his threat addressed to General Foreman Waller. The impact of any such misconduct on the propriety of a remedial reinstatement provision has not been fully litigated , and repre- sents a matter best resolved during compliance stages of this proceeding. a relief is only appropriate where warranted on the ex- igencies of a particular case. See Cherokee Marine Termi- nal, 287 NLRB 1080 (1988). Here, there is neither show- ing nor argument suggesting that the specific conduct under scrutiny in this proceeding supports such relief. Accordingly, the request is denied. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed38 ORDER A. Respondent Ziniz, Inc., Louisville, Kentucky, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening to discharge employees who attempt to enforce terms and conditions of work set forth in a collective-bargaining agreement. (b) Discouraging activity on behalf of the labor orga- nization, by discharging, or in any other manner dis- criminating against employees, with respect to wages, hours, or terms and conditions of employment. (c) In any like or related manner interfering with, re- straining, or coercing 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 Bobby Lee Murray and Al Grubb, Jr. imme- diate reinstatement to their former positions, without prejudice to their seniority, or other rights and privi- leges, provided that those positions are still available, and make them whole for any loss of earnings they may have suffered by reason of the discrimination against them in the manner set forth in the remedy section of this decision. (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) Post at its Louisville, Kentucky office and all job- sites within the territorial jurisidiction of Local 207, Mill- wrights and Piledrivers, affiliated with United Brother- hood of Carpenters and Joiners of America, AFL-CIO, copies of the attached notice marked "Appendix A."39 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Re- spondent Employer's authorized representative, shall be posted by the Respondent Employer immediately upon receipt, and maintained for 60 consecutive days in con- spicuous places including all places where notices to em- ployees are customarily posted. Reasonable steps shall be 38 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. 39 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." ZINIZ, INC. 897 taken by the Respondent Employer to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent Employer has taken to comply. B. Respondent Local 207, Successor to Local 1241, Millwrights and Pile Drivers, a/w United Brotherhood of Carpenters and Joiners of America , AFL-CIO, Co- lumbus, Ohio, its officers, agents, and representatives, shall 1. Cease and desist from (a) Threatening employees with physical harm because they have declared their intention to file, or have filed, either intraunion, or unfair labor practice charges. (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) Post at all meeting halls and places where notices to members or applicants for referral are posted copies of the attached notice marked "Appendix B."40 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Respondent Union's authorized representative, shall be posted by the Respondent Union immediately upon receipt and main- tained for 60 consecutive days in conspicuous places, in- cluding all places where notices to members are custom- 4° See fn. 39. arily posted. Reasonable steps shall be taken by the Re- spondent Union to ensure that the notices are not al- tered, defaced, or covered by any other material. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent Union has taken to comply. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 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. WE WILL NOT threaten employees with physical harm because they have declared their intentions to invoke in- ternal union disciplinary procedures or to file unfair labor practice charges with the National Labor Relations Board. 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. LOCAL 207, SUCCESSOR TO LOCAL 1241, MILLWRIGHTS AND PILEDRIVERS, A/W UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, AFL-CIO