C Overaa & Co.

C OVERAA & CO C Overaa and Company and Robert Browne Laborers' Union Local No 324, Laborers' Interna tional Union of North America , AFL-CIO and Robert Browne Cases 32-CA-8934 and 32- CB-2665 November 8 1988 DECISION AND ORDER BY MEMBERS JOHANSEN CRACRAFT AND HIGGINS On April 12 1988 Administrative Law Judge Jerrold H Shapiro issued the attached decision The Charging Party filed exceptions and a support ing brief and the Respondent Employer filed a brief in support 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 I and conclusions2 and to adopt the recommended Order The judge found Charging Party Browne failed to testify that his wife came over to the telephone and overheard a conversation in which the Re spondent s vice president Verrinder made certain threatening statements We find that the record does not support this finding However this erro neous finding does not affect our decision to affirm the fudge ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis missed i No exceptions were filed regarding the judge s finding that this case was inappropriate for deferral nor were any filed regarding the judge s refusal to rule on the Union s estoppel defense 2 The Charging Party has excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administra tive 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 re versing the findings Barbara D Davidson for the General Counsel Lawrence H Kay (Stanton & Kay) for the Respondent Employer Paul D Supton (Van Bourg Weinberg Roger & Rosen feld) for the Respondent Union Gerald A Becker for the Charging Party DECISION STATEMENT OF THE CASE 589 JERROLD H SHAPIRO Administrative Law Judge This proceeding in which a hearing was held on Janu ary 19 through 21 1988 is based on unfair labor practice charges filed by an individual Robert Browne (Browne) against C Overaa & Company (Respondent Employer) and Laborers Union Local No 324 Laborers Interna tional Union of North America AFL-CIO (Respondent Union) The charges were filed by Browne on May 18 1987 and he filed a first amended charge against the Re spondent Union on June 30 1987 Subsequently the Re gional Director of the National Labor Relations Board (Board) for Region 32 consolidated these cases and on September 25 1987 on behalf of the Board s General Counsel issued a consolidated amended complaint based on the charges alleging that Respondent Employer was engaging in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act (the Act) and that Respondent Union was engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) of the Act The amended consolidated complaint alleges in sub stance that Respondent Employer violated Section 8(a)(1) and (3) of the Act by laying off Browne on No vember 19 1986 and thereafter refusing to recall him be cause of his protected concerted activities and further alleges in substance that Respondent Employer also vio lated Section 8(a)(1) of the Act in November 1986 when Respondent Employers vice president Howard Ver rinder threatened Browne with the loss of employment because of Browne s efforts to enforce certain terms and conditions of employees employment contained in the collective bargaining agreement between the Respondent Employer and the Northern California District Council of Laborers Regarding the Respondent Union the amended consolidated complaint alleges in substance that in late November 1986 Respondent Union violated Sec tion 8(b)(1)(A) of the Act when in violation of its duty of fair representation it failed and refused to initiate and/or to otherwise process Browne s grievance con cerning his layoff by the Respondent Employer Respondents filed answers to the amended consolidat ed complaint denying the commission of the alleged unfair labor practices Their answers were amended at the start of the hearing without objection to affirmative ly allege that the complaints unfair labor practice allega tions were barred by the 6 month limitations provision contained in Section 10(b) of the Act and to further of firmatively allege that the alleged unfair labor practices were cognizable under the grievance arbitration provi sions in the collective bargaining agreement between the Respondent Employer and the Northern California Dis trict Council of Laborers and that under the circum stances the Board should defer the exercise of its juris diction to the governing contractual grievance arbitra tion machinery On the entire record from my observation of the de meanor of the witnesses and having considered the 291 NLRB No 99 590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD posthearing briefs of the General Counsel and Respond ents I make the following FINDINGS OF FACT I THE BUSINESS OF THE RESPONDENT EMPLOYER AND THE RESPONDENT UNION S STATUS AS A LABOR ORGANIZATION Respondent Employer is a corporation incorporated in the State of California with its office and place of busi ness in Richmond California It is a general contractor engaged in the construction of public and commercial buildings During the 12 month period immediately pre ceding the issuance of the amended consolidated com plaint the Respondent Employer purchased and received goods and services valued over $50 000 from sellers and suppliers located within the State of California which sellers or suppliers received such goods in substantially the same form directly from outside the State of Califor nia and during the same period of time the Respondent Employer sold and shipped goods or provided services valued over $50 000 directly to customers or business en terprises who themselves meet one of the Board s juris dictional standards other than the indirect inflow and in direct outflow standards Respondent Employer is now and has been at all times material an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act Respondent Union is now and has been at all times material a labor organization within the meaning of Sec tion 2(5) of the Act II RESPONDENTS CONTENTION THAT THE COMPLAINTS ALLEGATIONS ARE BARRED BY THE 6 MONTH LIMITATIONS PROVISION OF SECTION 10(B) OF THE ACT Section 10(b) of the Act provides in pertinent part That no complaint shall issue based on any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made Section 11(4) of the Act provides in pertinent part that Complaints orders and other process and papers of the Board may be served by certified mail It also provides that [t]he verified return by the individual so serving the same setting forth the manner of such service shall be proof of the same and the return post office receipt shall be proof of service of the same i An unfair labor practice charge is process amenable to service by certified mail pursuant to Section 11(4) See NLRB v Clark 468 F 2d 459 463 (5th Cir 1972) NLRB v McGahey 233 F 2d 406 408 (5th Cir 1956) Section 102 112 of the Board s Rules and Regulations provides in pertinent part that [t]he date of service ' This portion of Sec 11(4) has been incorporated into Sec 102 113 of the Board s Rules and Regulations shall be the day when the matter served is deposited in the United States Mail Section 102 111(a) of the Board s Rules and Regula tions provides in pertinent part that [i]n computing any period of time prescribed or allowed by these rules the day of the act event or default after which the designat ed period of time begins to run is not to be included The complaints unfair labor practice allegations in volving Respondent Employer s termination of Browne and Vice President Verrinder s threat to Browne oc curred on November 19 and 18 1986 respectively The complaints unfair labor practice allegations involving Respondent Union s refusal to process Browne s termina tion grievance occurred initially on November 20 or 21 1986 The unfair labor practice charges filed by Browne were filed on May 18 1986 and docketed by the Re gional Office on that date at 11 18 am The record also reveals that copies of the charges were transmitted by certified mail to the Respondents places of business lo cated in Richmond California that these copies were de posited in the United States mail on May 18 1987 and were subsequently delivered to the Respondents by the United States Postal Service The aforesaid facts when evaluated in the light of the Board s above described Rules and Regulations and Sec tion 11(4) of the Act establish the following The Act s 6 month limitations period began to run on November 20 1986 concerning Browne s November 19 1986 termi nation and on November 19 1986 concerning Vice President Verrinder s alleged November 18 1986 threat to Browne the Act s 6 month limitations period began to run on November 21 or November 22 1986 concerning Respondent Union s alleged refusal on November 20 or 21 1986 to process Browne s termination grievance the charges were filed and served on Respondents on May 18 1987 when they were deposited in the United States mail on that day I therefore find that the charges which were filed by Browne against the Respondents on May 18 1987 were timely filed and serviced within the mean ing of Section 10(b) of the Act as to all the complaint s unfair labor practice allegations See MacDonald s Indus trial Products 281 NLRB 577 (1986) Electrical Workers I UE (Spartus Corp) 271 NLRB 607-607 (1984) Labor ers Local 264 (D & G Construction) 216 NLRB 40 fn 1 43 (1975) enfd 529 F 2d 778 (8th Cir 1976) In concluding that copies of the charges were deposit ed in the United States mail on May 18 1987 to be de livered to the business addresses of the Respondents I relied on the affidavits of service signed by an employee of the Regional Office which in pertinent part certified that on May 18 1987 the signer served each of the charges by post paid certified mail on Respondents at their Richmond California business addresses 2 This is 2 The affidavits of service were authenticated by an employee em ployed by the Regional Office in its docket section She testified in effect that the affidavits of service were what they purported to be and had been signed by an employee employed in the Regional Office s docket section whose signature she identified Under the circumstances I have not decided whether affidavits of service such as the ones used by the Regional Office in this case are self authenticating C OVERAA & CO 591 sufficient in my opinion to raise a presumption that the charges were deposited in the United States mail on May 18 1987 In the case of the charge mailed by the Regional Office to the Respondent Employer the presumption that it was deposited in the United States mail on May 18 1987 is reinforced by the fact that the return receipt returned to the Regional Office by the United States Postal Service in the space entitled Date of Delivery contains the handwritten notation 5-19-87 thus indicating the charge must have been mailed no later than the previous day May 18 1987 I realize that in the case of the charge mailed by the Regional Office to the Respondent Union that the United States Postal Services return receipt is stamped May 21 1987 in the space entitled Date of Delivery This does not warrant the inference that even though Browne s charges against Respondents were each filed and docket ed on May 18 at 11 18 am and even though it is plain that the copy of the charge against Respondent Employ er was mailed to Respondent Employer on May 18 that the copy of the charge against Respondent Union was not mailed to Respondent Union on May 18 Rather it is just as likely that the delay in the delivery to Respondent Union of Browne s charge was caused by the United States Postal Services normal delay in delivering certi feed mail to Respondent Union s Richmond office Thus the record reveals that Respondent Union s Richmond office normally is only open for business from 7 30 to 9 a in and that on two other occasions when documents connected with this case were mailed by certified mail to each of the Respondents Richmond places of business on the same day the documents were delivered by the United States Postal Service to Respondent Employer on the day after they were mailed whereas Respondent Union did not receive them for several days 3 In addi tion the record shows that when the Regional Office mailed to Respondent Union by certified mail a copy of Browne s charge against it that the Regional Office at the same time mailed to Respondent Employer by certi feed mail a copy of that charge and Respondent Em ployer received that copy the next day May 19 1987 4 even though Respondent Union s copy was not delivered until May 21 1987 It is for the foregoing reasons that I conclude the Gen eral Counsel has made a prima facie showing that the charges delivered by the United States Postal Service to Respondents places of business were deposited in the United States mail on May 18 1987 the date on which they were docketed In reaching this conclusion I con sidered that the Regional Office does not do its own mailing but employs a private mailing service to pick up and transport the mail each day at approximately 4 30 3 The amended consolidated complaint was mailed from the Regional Office on September 25 1987 the postal return receipts show it was de livered to Respondent Employer the next day September 26 1987 but not delivered to Respondent Union until September 30 1987 Likewise an order rescheduling the hearing in this case was mailed from the Re gional Office on October 13 1987 and the Postal Service s return re ceipts show that the order was delivered to Respondent Employer the next day but not delivered to Respondent Union until October 21 1987 4 The postal return receipt returned to the Regional Office in the space entitled Date of Delivery contains the handwritten notation 5-19-87 p in to a United States Postal facility for mailing and that no evidence was presented as to whether the mail delivery service picked up i and mailed the Regional Of fice s mail on May 18 1987 In the circumstances of this case this factor is not sufficient to rebut the General Counsels prima facie showing that copies of the charges were deposited on May 18 1987 in the United States mail III RESPONDENTS CONTENTION THAT THE COMPLAINTS ALLEGATIONS BE DEFERRED TO THE PARTIES CONTRACTUAL GRIEVANCE ARBITRATION PROVISIONS Charging Party Browne was employed by Respondent Employer as a laborer Respondent Employers laborers are represented for purposes of collective bargaining by the Northern California District Council of Laborers (Council) The terms and conditions of employment of the laborers employed by Respondent Employer on the Triangle Housing project the project on which Browne was employed were governed by a collective bargaining agreement (agreement) between the Council and two em ployer associations the Bay Counties General Contrac tor Association and the Construction Employers Asso ciation of California Respondent Employer was either a signatory to the agreement or by virtue of its member ship in one of the two employer associations was obligat ed to honor the terms of the agreement The record re veals that Respondent Union one of several local unions affiliated with the Council administered the terms of the agreement including the grievance arbitration provi sions as an agent of the Council and that acting as the Councils agent was the de facto collective bargaining representative for the laborers employed by Respondent Employer on the Triangle Housing project The agreement includes a grievance provision that ends in binding impartial arbitration In this respect the agreement provides for a board of adjustment comprised of two members named by the Council two named by the employer associations and for an impartial arbitrator whose decision is to be final and binding if the employer and union members of the panel deadlock Relying on United Technologies Corp 268 NLRB 557 (1984) the Respondents at the start of the hearing amended their answers to allege that the complaint s unfair labor practice allegations be deferred by the Board to the parties contractual grievance arbitration provi sions For the reasons set forth hereinafter I find it would be inappropriate for the Board to defer this dis pute to the parties contractual grievance arbitration pro visions The Board will not defer an unfair labor practice alle gation to the parties contractual grievance arbitration provisions if the arbitration clause does not encompass the dispute at issue or where the interests of the union which might be expected to represent the employee filing the unfair labor practice charge are adverse to those of the employee United Technologies Corp supra 268 NLRB 557 558 560 In the instant case there is no evidence that the governing collective bargaining agree ment s arbitration clause encompasses Charging Party 592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Browne s dispute with Respondent Union namely the complaints allegation that in derogation of its duty of fair representation Respondent Union refused to process Browne s termination grievance In its postheanng bnef Respondent Union does not point to a provision in the agreement that even colorably encompasses this dispute and my examination of the agreement failed to discover one Even if I have overlooked such a provision it would still be inappropriate to defer the resolution of Browne s dispute with the Respondent Union to the agreement s arbitration provision because Browne s in terest in pursuing this grievance against the Respondent Union is adverse to the interests of the Respondent Union the labor organization that would ordinarily be expected to represent him during the arbitration proceed ing Nor is there any assurance that the representatives of the employer associations or the Council who to gether with the impartial arbitrator comprise the board of adjustment would conscientiously and fairly represent Browne in his dispute against Respondent Union espe cially when as here Respondent Union is affiliated with the Council and acts as its agent in representing the unit employees See Iron Workers Local 118 (Bostrom Bergen) 219 NLRB 467 fn 1 470 (1975) Laborers Northern Cali forma District Council (Baker Co) 275 NLRB 278 288 (1985) It is for the foregoing reasons that I find it would not effectuate the policies and purposes of the Act to defer to the arbitral forum the complaints allegations concerning Respondent Union s refusal to process Browne s termination grievance I am also of the opinion that because the interests of Browne and Respondent Union the Union that ordinari ly would be expected to represent him before the impar tial arbitrator are antagonistic it would be inappropriate to defer to the arbitral forum the complaints allegations concerning Respondent Employers termination of Browne because of his protected concerted activities 5 Thus Browne filed an unfair labor practice charge against the Respondent Union accusing it of violating Section 8(b)(1)(A) of the Act by refusing to process a grievance protesting his termination and in support of that charge Browne testified against Respondent Union in this proceeding and in so doing impugned the truth fulness of several of Respondent Union s officials includ ing its principal official Also Respondent Union has been forced to spend considerable time and money to defend itself against Browne s charge These circum stances warrant the inference that Respondent Union would be antagonistic toward both Browne and his grievance It would be unreasonable and unrealistic con sidering the circumstances to expect Respondent Union to conscientiously represent Browne before an impartial arbitrator with respect to his termination grievance I therefore find it would not effectuate the purposes and policies of the Act to defer to the arbitral forum the 5 I have considered that the Council as the sole union signatory to the governing collective bargaining agreement is Browne s bargaining repre sentative However as I have found supra the Respondent Union in ad ditton to being affiliated with the Council acts as the Councils agent in policing the governing collective bargaining contract and is the unit em ployees de facto bargaining representative Under the circumstances the interests of the Respondent Union and the Council are the same complaints allegations concerning Respondent Employ er s termination of Browne because of his protected con certed activities IV RESPONDENT UNION S CONTENTION THAT THE GENERAL COUNSEL IS ESTOPPED FROM LITIGATING THE COMPLAINTS ALLEGATIONS INVOLVING RESPONDENT UNION Respondent Union asserts the General Counsel erred by failing to litigate Browne s charge in Case 32-CB- 2665 and the complaint s allegations concerning that charge with the allegations set forth in the consolidated Cases 32-CB-2501 and 32-CB-2508 and that the Gener al Counsels failure to litigate such matters in the earlier proceeding preclude her from litigating these allegations in the present proceeding Respondent Union first raised this defense in its posthearing brief and did not plead it in its answer to the complaint nor mention nor litigate it during the hearing Pursuant to complaints and orders consolidating cases and notices of hearing issued on January 30 March 4 and May 29 1987 Cases 32-CB-2501 and 32-CB-2508 were consolidated and scheduled for hearing on July 28 1987 and were heard before Administrative Law Judge Clifford H Anderson on July 28-29 and August 17 1987 On January 27 1988 Judge Anderson issued a de cision in those cases in which he recommended that the complaints allegations be dismissed in their entirety The subject matter for litigation in those cases concerned alle gations that Respondent Union and Council in deroga tion of their statutory duty of fair representation violat ed Section 8(b)(1)(A) of the Act during October and No vember 1986 by failing to properly investigate the griev ance of employee member David Herrera the Charging Party protesting his discharge by the Fluor Contractors and by failing to properly represent him at an arbitration hearing concerning that grievance 6 In its posthearing brief Respondent Union contends that the General Counsel is estopped from litigating the alleged violations involving Respondent Union which occurred and were known to the General Counsel well before the start of the unfair labor practice hearing in Cases 32-CB-2501 and 32-CB-2508 In support of its ar gument that roughly concurrent unfair labor practices at tributed to the Respondent Union must be litigated in a single proceeding to prevent unnecessary harassment of the Respondent Union the Respondent Union cites Peyton Packing Co Inc 129 NLRB 1358 (1961) Jeffer son Chemical Co 200 NLRB 992 (1972) Union Electric Co 219 NLRB 1081 (1975) and ITT Lighting Fixtures 267 NLRB 709 (1983) I have not considered this estop pel argument because it was not timely raised Respondent Union s estoppel argument is in the nature of an affirmative defense and a party seeking to raise an affirmative defense as a defense to an unfair labor prac tice allegation must raise it in a timely manner In this regard the law is settled that a party raising either a de e The facts set forth in this paragraph were taken from Judge Ander son s January 27 1988 decision in Cases 32 -CB-2501 and 32-CB-2508 referred to in Respondent Union s postheanng brief C OVERAA & CO 593 ferral defense or a 10(b) limitations defense for the first time after the close of a hearing before an administrative law judge raises the defense too late and it is considered waived unless the defense was in fact litigated during the hearing McKesson Drug Co 257 NLRB 468 fn 1 (1981) Christopher Street Owners Corp 286 NLRB 253 (1987) Federal Management Co 264 NLRB 107 at 107 (1982) Maine Yankee Atomic Power Co 258 NLRB 832 at (1981) Geary Ford 261 NLRB 1149 (1982) In the in stant case Respondent Union first raised its estoppel de fence in its posthearing brief and did not plead it in its answer to the complaint nor mention nor litigate it during the hearing In view of these circumstances and because Respondent Union s estoppel defense is in the nature of an affirmative defense I find Respondent Union did not raise its estoppel defense in a timely manner and that the defense must be considered waived V THE ALLEGED UNFAIR LABOR PRACTICES A The Alleged Unfair Labor Practices Involving Respondent Employer 1 The setting Respondent Employer is a general contractor doing business in the vicinity of Richmond California where its place of business is located the Charging Party Robert Browne was employed by Respondent Employer as a laborer most recently at Respondent Employer s Triangle Housing project in Richmond California Respondent Employers vice president Howard Ver rinder is responsible for its field operations His office is in Respondent Employers Richmond place of business and he usually visited the project involved in this case the Triangle Housing project once a week or once every 2 weeks Respondent Employers projects are su pervised by project superintendents who are subordinate to Vice President Verrinder Respondent Employer s project superintendent at the Triangle Housing project was Joseph Kehoe He supervised the work being done by Respondent Employers subcontractors personally su pervised the work of the carpenters employed by Re spondent Employer and was generally in charge of the day to day operations at the project Respondent Em ployer s laborers employed at the project were super vised by Willie Turner the laborer foreman who was subordinate to Superintendent Kehoe The complaint al leges and Respondent Employers answer admits that Verrinder Kehoe and Turner are supervisors within the meaning of Section 2(11) of the Act and agents of the Respondent Employer As discussed supra the terms and conditions of em ployment of the laborers employed by Respondent Em ployer at the Triangle Housing project were governed by a collective bargaining contract between the North em California District Council of Laborers (Council) and two employer associations The Respondent Employer was obligated to abide by the agreement either as a sig natory or by virtue of its membership in one of the em ployer associations The Respondent Union as discussed supra administered the terms of the agreement as an agent of the Council and as the Councils agent was the de facto bargaining representative of Respondent Em ployer s laborers employed at the Triangle Housing project Section 13(C) of the agreement entitled Safety in pertinent part reads (1) The Union shall cooperate with the Individ ual Employer and with each employee in carrying out all pertinent rules and regulations dealing with health safety and welfare of employees promulgat ed by the Department of Industrial Relations of the State of California All employees shall perform their duties in each operation in such manner as to promote safe and efficient operations of each par ticular duty and of any job as a whole (2) All State and/or Federal and/or Local Safety Laws Standards Rules and Regulations shall be ap phcable to all work covered by this Agreement The Individual Employer is solely responsible for implementing and maintaining such Laws Stand ards Rules and Regulations Neither the Union or any Local Union is responsible for implementing or maintaining such Laws Standards Rules or Regula tions (4) No employee shall be discharged for refusing to work under conditions injurious to his health or safety as determined under any rule or regulation of the United States or State of California or any polit ical subdivision Such determination shall be made by a responsible agent of the State of California or OSHA or any of its political subdivisions or by a safety inspector from the applicable insurance carri er Browne began work for Respondent Employer as a la borer on March 28 1983 and worked for Respondent Employer in this capacity continuously until April or May 1986 when he was injured while employed at a jobsite in Vacaville California The injury incapacitated him for several months Browne believed that his injury was the result of unsafe scaffolding and was Respondent Employers fault He filed a workmen s compensation suit against Respondent Employer which was pending at the time of the hearing in this case He also complained about the unsafe scaffolding to the State of California Department of Industrial Relations Division of Occupa tional Safety and Health (CAL OSHA) An inspector for CAL OSHA contacted Vice President Vernnder in 1986 shortly after Browne s injury He told Verrinder about Browne s complaint and visited the jobsite where Browne was injured to determine whether as Browne claimed the scaffolding was unsafe The inspector after inspecting the job notified Verrinder that Respondent Employer was not at fault in the matter On September 11 1986 7 Browne returned to work for Respondent Employer pursuant to a release from his physician stating he was authorized to return to work September 11 without any limitations He was reem ployed as a laborer and worked on September 11 and 12 7 All dates hereinafter unless otherwise specified refer to the year 1986 594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD doing janitorial type work at one of Respondent Em ployer s jobsites and on Monday September 15 was transferred by Verrinder to the Company s Triangle Housing project Respondent Employer had previously commenced work at the Triangle Housing project on August 27 The project consisted of 98 houses and a recreation center that were already built Respondent Employer entered into a contract to among other things remove the exist ing stucco from all 98 houses so it could be reapplied correctly by a lathing subcontractor The project s stucco removal was done by Respondent Employers la borers They cut through sections of the stucco and then pried the stucco off and hauled it away Initially when the job began on August 27 the labor ers cut the stucco using skill saws They were too heavy and cumbersome to do the job so they were replaced with small hand operated grinders They also were un satisfactory because they cut the stucco only with diffi culty and their motors burned out after 1 or 2 days Re spondent Employer replaced the small grinders with larger ones which had a larger blade and a more power ful motor The larger grinders did the job satisfactorily The larger grinders however did not have a safety guard to protect the operator from flying particles of stucco In an effort to protect them from the flying parti Iles of stucco Respondent Employer issued the grinder operators safety goggles and face shields Nevertheless on several occasions laborers employed at the Triangle Housing project while operating a grinder had particles of stucco get in their eyes If the first aid eye solution on the jobsite did not remedy the resultant eye irritation the injured laborer was sent to the local hospital to have his eye treated Browne on being assigned to the Triangle Housing project on September 15 was assigned by laborer Fore man Turner to operate one of the grinders to cut stucco By that time the larger grinders were being used During the remainder of his employment at the project-Sep tember 15 to November 19-Browne operated one of the grinders On three separate occasions-September 18 October 22 and November 18-Browne was forced to leave the jobsite in the middle of the workday and go to the hospital because while using a grinder flying parti Iles of stucco got past his safety goggles and lodged in one of his eyes thereby irritating the eye Also Glenn Watts another laborer who operated a grinder had to leave work and go to the hospital for treatment on No vember 17 because while using a grinder a particle of stucco got into his right eye In the injury report filled out by Superintendent Kehoe regarding Watts injury Kehoe wrote [T]he stucco cutting process creates a lot of dust & particles to fly in the air-often these get behind the cutters goggles (which Glenn was wearing) and into the eyes Subsequent to his September 18 eye injury Browne telephoned CAL OSHA s Berkeley California office and complained that Respondent Employer was using grind ers without safety guards at the Triangle Housing project He was told the project was geographically to cated within the jurisdiction of CAL OSHA s Concord California office and that his complaint would be re ferred to that office for investigation Browne did not identify himself when he made this complaint 8 There is a dispute whether Browne besides making an anonymous complaint to CAL OSHA about the lack of safety guards on the grinders also complained about this during the employees weekly safety meetings Browne testified that during his employment at the Triangle Housing project he attended three employee safety meet ings conducted by Superintendent Kehoe and laborer Foreman Turner and testified that during those meetings he complained to them that too many of the laborers were being injured when they operated the grinders be cause the grinders lacked safety guards and warned if safety guards were not installed someone would lose a hand Kehoe and Turner according to Browne respond ed by stating their hands were tied and explained to Browne that there was nothing they could do about his complaint because they were following Vice President Vernnder s express instructions to remove the safety guards from the grinders to use oversized blades and told Browne to be extra careful to avoid getting injured Glenn Watts one of the laborers employed at the project who operated a grinder testified for the General Counsel that he recalled Browne speaking out at two safety meet ings When on direct examination he was asked what comments he recalled Browne making Watts testified Well he made some comments about when he first started the job and we needed safety guards on the grinders and better eye protection At first we really did not have much at all Mainly it was the grinder guards We did not have grinder guards on anything and it was a pretty dirty dangerous job really When asked what response if any was made by Kehoe or Turner to Browne s above comments Watts testified Turner replied that s the best I can do and that Browne replied [S]ee what you can do you know you got to try to get the equipment Subsequently during his cross examination Watts testified yes when asked [N]ow you indicated that Browne commented at a couple of [safety meetings] concern over the guards on the grinder and concern over the stucco debris and when asked I think you also indicated that Turner said they would look into it and try to do something abut it testified yes Turner and Kehoe testifying for Re spondent Employer testified in effect that Browne did not complain during safety meetings about the lack of safety guards on the grinders and did not otherwise ex press any complaints at safety meetings about the use of the grinders 8 The finding that Browne complained to CAL-OSHA s Berkeley office is based on his testimony that was corroborated by Kay Zunino an inspector employed by CAL OSHA at its Concord California office Zunino testified that an anonymous person telephoned CAL OSHA s Berkeley office complaining about Respondent Employers use of grind ers without safety guards at the Triangle Housing project and further tes tified that on November 12 he received the paperwork from CAL OSHA s Berkeley office transferring the anonymous complaint to him I note that Browne did not testify that when he complained to CAL OSHA s Berkeley office he identified himself C OVERAA & CO On November 19 during the employees lunch break period Superintendent Kehoe notified Browne he was being laid off at the end of the workday Rather than work for the remainder of the day Browne left the job site immediately and later that day telephoned CAL OSHA s Concord office and spoke to CAL OSHA in Spector Zunino He introduced himself by name to Zunino stated he previously had complained to CAL OSHA about Respondent Employers Triangle Housing project explained his complaint to Zunino gave Zunino his home telephone number and told Zunino he had been fired that day by the Respondent Employer for complaining to CAL OSHA The next day November 20 CAL OSHA inspector Zunino visited the Triangle Housing project and spent approximately 5 hours there conducting a health and safety inspection of the entire jobsite He did not ask to inspect the grinders nor did he mention Browne s name or that Browne was the person who complained to CAL OSHA Zunino told Superintendent Kehoe that he was there to inspect some scaffolding that was allegedly unsafe He then inspected the entire jobsite When he came to the area where one of the grinders was being used to cut stucco he inspected the grinder and stated it was improper to use without a safety guard and instruct ed Kehoe to stop using the grinders immediately Kehoe complied with Zunino s instruction The next day the two grinders used on the project to cut stucco were sent by the Respondent Employer to a sheet metal shop where safety guards were attached to the grinders As a result of Zunino s November 20 inspection of the Triangle Housing project on November 25 CAL OSHA through Zunino and CAL OSHA s district manager issued two citations against the Respondent Employer The Respondent Employer did not contest the citations The first of the two citations listed eight separate viola tions of CAL OSHA health and safety regulations none of which involved the use of grinders The second of the two citations stated that Respondent Employer had been violating CAL OSHA s rules and regulations by using grinders without safety guards More specifically the ci tation stated The devices utilized as circular power saws did not have blade guards Note These devices are not to be used until they meet 78 CAC guarding require ments Subsequenty on December 3 in connection with the ci tation involving Respondent Employers failure to use safety guards on its grinders CAL OSHA s district man ager issued a Notice of Civil Penalty notifying Re spondent Employer it was fined a total of $325 on ac count of this misconduct Respondent Employer paid the fine 2 Discussion The General Counsel contends Respondent Employer laid off Browne because he complained to CAL OSHA about Respondent Employers failure to have safety guards on the grinders used to cut the stucco at the Tri angle Housing project and further contends that when 595 Browne made this complaint to CAL OSHA he was in yoking a collectively bargained right set out in the gov erning collective bargaining contracts safety provisions thus pursuant to the Board s Interboro doctrine 9 ap proved by the Supreme Court in NLRB v City Disposal Systems 465 U S 822 829 (1984) by laying off Browne for complaining to CAL OSHA Respondent Employer violated Section 8(a)(1) and (3) of the Act 10 Respondent Employer contends the General Counsel failed to prove that when Respondent Employer laid off Browne it knew or believed he had complained to CAL OSHA and for this reason urges that the General Counsel has failed to make a prima facie showing that Browne s layoff was motivated by his complaint to CAL OSHA I find in agreement with Respondent Employer the Gen eral Counsel failed to prove that when Respondent Em ployer laid off Browne it knew or believed he had corn plained to CAL OSHA In support of her contention that when Respondent Employer laid off Browne it knew he complained to CAL OSHA about the Company s use of grinders with out safety guards counsel for the General Counsel relies on Browne s testimony that he told Vice President Ver rinder he had made such a complaint to CAL OSHA his further testimony that the day before the layoff Ver rinder told him he would be terminated because of his complaint to CAL OSHA and his further testimony that Verrinder and Superintendent Kehoe admitted to him in effect that the reason given to him for his layoff was a pretext For the reasons set forth below I find Browne s above described testimony was not credible but was fab ricated In finding that Browne s above described testimony was fabricated I considered that the record reveals Browne gave false testimony about other matters when he felt it would advance his case He falsely testified that prior to his layoff when he complained to CAL OSHA he identified himself to CAL OSHA as the complainant falsely testified he worked approximately 4 more days in November than he was paid for working and concocted a bizarre story of marijuana being planted in his truck by Vice President Verrinder in an effort by Verrinder to find an excuse to fire him for complaining about Re spondent Employers failure to have safety guards on its grinders My reasons for concluding that Browne falsely testified about these matters follows Subsequent to making his anonymous telephone call to CAL OSHA s Berkeley California office to complain about Respondent Employers use of grinders without safety guards Browne testified he telephoned CAL OSHA s Concord California office the office that he had been told would be handling his complaint and spoke to Kay Zunino the CAL OSHA inspector as 9 Interboro Contractors 157 NLRB 1295 1298 (1966) 10 General Counsel does not argue alternatively that Browne was laid off because he was engaged in activities that constituted concerted ac tivity as that term has been defined by the Board in Meyers Industries 281 NLRB 882 (1986) In any event even when the record is viewed most favorably to the General Counsel there is a lack of evidence that when he expressed his complaints about grinders to either CAL OSHA or the Respondent Employer that Browne s activities were protected under the Board s Meyers decision 596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD signed to investigate his complaint Browne was positive this telephone conversation with Zunino occurred before his termination but was vague and evasive about when it occurred He testified at various times that it took place within a few days of his termination possibly a week before the termination approximately 1 1/2 to 2 weeks before his termination or on or about November 12 Browne testified he identified himself by name to Zunino during this conversation and Zunino stated among other things that the prior complaint made to CAL OSHA s Berkeley California office had been made according to CAL OSHA s records by an anony mous caller Zunino contrary to Browne s testimony testified Browne did not speak to him until November 19 about his complaint Zunino testified Browne telephoned him at CAL OSHA s Concord California office on that day and told him he was the person who had previously complained to CAL OSHA s Berkeley office about the Respondent Employer and now wanted to complain about the fact that he had been fired because he had made his complaint to CAL OSHA Zunino further testi feed Browne had not spoken to him prior to this Novem ber 19 conversation and testified that if Browne had spoken to him previously as a matter of normal business practice Zunino would have made a note of their con versation for his case file and testified he did not make any such note Zunino was a disinterested witness whose testimonial demeanor was good I credit his testimony and find it was on November 19 after Browne s layoff that Browne first identified himself by name to CAL OSHA as the person who previously called CAL OSHA s Berkeley California office with a complaint about Respondent Employers use of grinders without safety guards Although Browne was paid for only 1 hour of work by Respondent Employer for the 2 week period from Monday November 3 through Friday November 14 and even though Respondent Employers timesheets show he only worked 1 hour during that time period Browne in an effort to rebut Respondent Employer s contention that his absenteeism record was poor while employed at the Triangle Housing project testified he worked a total of approximately 4 days during that period for which he was not paid He testified that when he received his November 12 paycheck he discovered Respondent Employer had not paid him for approximate ly 4 days that he had worked and because of this he spoke to Superintendent Kehoe about the matter who after investigating told Browne he would be paid in his next paycheck for the 4 days in question On November 19 when he received his next paycheck Browne testi fled he noticed that Kehoe had not kept his promise and paid him the money for the 4 days that Respondent Em ployer owed him Browne however never said anything to anyone from the Respondent Employer nor did he file a complaint against Respondent Employer with the State of California s Labor Commissioner in an effort to col lect the money alleged owed him Concerning the more than $500 that Respondent Employer allegedly owed him for working the 4 days in question Browne testified I just wrote it off Browne s testimony is incredible It is unbelievable that Browne who filed a workmen s compensation suit against Respondent Employer when he was injured earli er in 1986 who complained to CAL OSHA about Re spondent Employers use of grinders without safety guards and about his November 19 layoff who filed the unfair labor practice charges herein against the Respond ents and who believed his November 19 layoff was unjust would have written off and forgotten more than $500 in back wages owed to him by the Respondent Em ployer I find he did not work the 4 days in question but fabricated this testimony to advance his case Browne in an effort to demonstrate that Vice Presi dent Verrinder was intent on finding an excuse to fire him because of his complaints about the lack of safety guards on the grinders testified that approximately 1 1/2 weeks before his November 19 layoff in the presence of other workers Browne threw a bag of marijuana which he had found hidden in his pickup truck onto Ver rinder s office desk and warned Vernnder never again to plant a bag of marijuana in his truck and threatened to break Verrinder s arm and in response Verrinder merely told him to return to his job Browne further tes tified that the day previously Verrinder had told him he was to work the next morning at the Chevron Oil Refin ery for 4 hours instead of reporting to work at the Tn angle Housing project That same evening according to Browne he received a telephone call from a man who refused to identify himself and whose voice Browne was unable to identify Browne testified that the caller after ascertaining that Browne had been assigned to work at the Chevron Oil Refinery the next morning told him there were drugs hidden in his truck Browne further tes tified he was not able to sleep that night as a result of this telephone call that he made two thorough searches of his pickup truck for the hidden drugs and that during the second search found a bag of marijuana that had been hidden in the area where the spare tire was stored The bag of marijuana according to Browne would have been discovered by the security guards when Browne drove the truck the next morning onto the premises of the Chevron Oil Refinery Browne testified he believed that because of his complaints about Respondent Em ployer s use of grinders without safety guards that Ver rinder planted the bag of marijuana in his truck in an effort to set him up for discharge when the marijuana was discovered by the Chevron security guards Verrinder testified he did not assign Browne to work at the Chevron Oil Refinery as Browne testified and further testified that the episode in which Browne sup posedly threw a bag of marijuana on his desk accused him of placing it in his truck and threatened him did not occur I find Browne fabricated the above described story That Verrinder sat in silence and merely directed Browne to return to work even though Browne in the presence of other employees threw a bag of marijuana on Verrinder s desk accused Verrinder of placing the marijuana in his truck and threatened to break Ver render s arm is inherently incredible Also Verrinder s C OVERAA & CO 597 testimonial demeanor was good when he testified that this episode never took place In assessing the reliability of Browne s testimony that prior to his layoff he informed Vernnder he had com plained or intended to complain to CAL OSHA about Respondent Employers use of grinders without safety guards and his testimony that Vernnder in effect admit ted Browne would be terminated because of his com plaint to CAL OSHA and his further testimony that Verrinder and Kehoe in effect admitted that the reason advanced by the Respondent Employer for Browne s layoff was a pretext I have considered as found supra that Browne falsely testified about other significant mat ters in an effort to build a case against Respondent Em ployer This consideration when coupled with the con siderations set forth below has persuaded me to reject Browne s testimony concerning his above described con versations with Verrinder and Kehoe in its entirety Browne testified that just before his first injury which as I have found supra occurred September 18 he com plained to Vernnder about the absence of safety guards on the grinders Verrinder according to Browne re sponded by stating that s all we got and by comment ing that Browne had been back at work for only a few days and already was complaining and called Browne an obscene name Browne also testified that subsequently he telephoned Verrinder and told him he had been injured again operating the grinder and that if something was not done about the grinders he intended to telephone OSHA and tell OSHA what was going on Browne testi fled initially that Vemnder did not respond by threaten ing Browne but simply told him that OSHA was not going to do him any good Later when retestifying about this conversation Browne inconsistently testified that in addition to telling him that complaining to OSHA would not do him any good Verrinder also stated that because it was not going to do him any good to com plain to OSHA [W]hy jeopardize your job or words to that effect Browne initially dated this conversation as occurring within 1 or 2 days of his second injury which the record reveals occurred October 22 but later testi feed it occurred 1 week before his November 19 terming tion Vernnder testified that neither one of the above de scribed conversations occurred His testimonial demean or was better than Browne s Browne testified that on November 18 when he re turned home from the hospital after having his injured eye treated he telephoned Verrinder and told him he had been injured again on the job and had telephoned CAL OSHA According to Browne Vernnder answered by stating Browne used to be a good company man before he had been injured on the Respondent Employ er s Vacaville job earlier in 1986 but had filed a work men s compensation suit against Respondent Employer in connection with that injury and was now saying he had turned the Company in to OSHA Browne further testi feed that Verrinder next stated to him that he was not playing in a baseball game but that in the game Browne was in two strikes constituted an out and stated that Browne was in the position of a sinking ship Browne testified that at this point in the conversation he inter rupted Vemnder and asked [W]hat did you say? and Vemnder replied [L]ike I was saying this is not a ball game there is two strikes and you re out and stated Browne was a sinking ship Browne was questioned about this conversation on direct and on cross examina tion and each time failed to testify that his wife came over to the telephone at his request and listened when as described above Browne asked Vernnder [W]hat did you say? Lisa Browne Browne s wife testified that at the point in the conversation when Browne asked Vernnder to repeat what he had just stated that Browne motioned for her to come to the telephone and held out the tele phone receiver and that they both listened to Vernnder repeat what he had just stated She testified Verrinder said something about Browne called OSHA and also stated that Browne used to be a good man and told Browne that [T]his is not a baseball two strikes you re out and called Browne a sinking ship Lisa Browne did not give the Board an affidavit and was first inter viewed at the Regional Office in November 1987 ap proximately 2 months before the hearing in this case ap parently during trial preparation for the scheduled hear ing As I have indicated supra Browne did not corrobo rate his wife s testimony that he called her over to the telephone to listen in or testified that she listened to part of the conversation and as I have also indicated Browne s testimony about what Verrinder said after he was asked by Browne to repeat what he had said differs significantly from his wife s testimony His wife attnb uted statements to Verrinder which according to Browne were made only once prior to the time she lis tened in on the conversation Verrinder testified this alleged conversation never oc curred When he gave his testimony his testimonial de meanor was better than the testimonial demeanor of either Browne or Browne s wife I am also skeptical that Vemnder would admit to Browne as Browne testified that he intended to terminate Browne s employment be cause Browne had filed a workmen s compensation suit against the Respondent Employer and had complained about the Respondent Employer to CAL OSHA In this regard I note that for the past several years Vernnder has been in charge of Respondent Employers labor rela tions and in that capacity deals with the several unions who represent its employees and with the several gov ernmental agencies that enforce the laws affecting its em ployees On November 19 Superintendent Kehoe in the pres ence of laborer Glen Watts spoke to Browne at the Tn angle Housing project during the laborers noontime lunch break and told him he had been laid off Browne testified Kehoe stated that even though Browne was the best guy here he had to let him go apologized for doing this and explained that Vernnder instructed him to give you this cockamamie story about bringing in la borers that had been with the company longer than you have Browne also testified Kehoe told him he could not finish out the rest of the workday and would have to leave the jobsite immediately and go to the Company s office to get his check because Vernnder stated he 598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD wanted to give him his check personally The conversa tion ended according to Browne with him shaking hands with Kehoe and leaving the jobsite but not before Kehoe again apologized for letting him go and stated that Browne was a good man and Kehoe knew there was something more to Browne s layoff than what Ver rinder was telling him and that Kehoe had no choice but to let Browne go Glenn Watts a witness for the General Counsel who was eating lunch with Browne testified Kehoe told Browne [H]e had to let him go to make room for people with more seniority and told Browne he could work the remainder of the day or leave immediately if he desired and that Browne replied he might as well leave and left the jobsite Kehoe testified he told Browne he was going to be laid off at the end of the workday and explained his layoff did not reflect on his capabilities as a worker but that his attendance had been poor and the Company was cutting back its crews and slowing down the stucco stripping work and was also laying off a carpenter that same day Browne responded according to Kehoe by objecting to his layoff and stated [T]here is more behind this than you know about and Kehoe replied That s true I don t know whatever s gone on in the past The conversation ended Kehoe testified with Kehoe telling Browne he could work for the remainder of the day or leave immediately and he testified that when Browne stated he intended to leave immediately Kehoe told him he would receive his paycheck as soon as Kehoe phoned the Company s office with Browne s hours of work and that they would prepare the pay check Kehoe s demeanor when he testified about his No vember 19 conversation with Browne was better than Browne s demeanor when he testified about this conver sation I also note Watts failed to corroborate significant portions of Browne s testimony and contradicted Browne s testimony that Kehoe refused to allow him to stay on the job for the rest of the workday but instruct ed him to leave the jobsite immediately I have consid ered that Watts who did not give a written statement to the Board during the investigatory or trial preparation stages of this proceeding and was presumably not ques tioned about this conversation until the trial preparation stages of the case was testifying about a conversation that occurred approximately 14 months prior to the hear ing and that because Watts was not a party to the con versation he had no reason to pay particular attention to what Kehoe was saying to Browne and had no reason during the several months thereafter to keep this conver sation fresh in his mind Nonetheless I believe that if it had been expressed Watts would have remembered Kehoe s highly unusual statement that he was being re quired to lay off Browne even though Browne was the best laborer on the job and that he had been instructed by Vice President Verrinder to make up a cockamamie story to justify Browne s layoff On November 19 later in the afternoon Browne and Verrinder had a conversation at Respondent Employer s office Browne testified Verrinder gave him his paycheck and told him the reason he had been laid off was that things were slow and when Browne asked for a termina tion slip Verrinder stated he did not have to give him one and ended the conversation by stating I warned you that you should not have been starting no prob lems and in reply Browne stated he would find an other job and left Verrinder on the other hand gave a completely dif ferent account of what occurred He testified he handed Browne his paycheck as well as a termination slip told him the reason he was being laid off was that they were running out of work because work was slow that there were others also being laid off that the only job avail able for him was a short term one at Chevron and that Verrmder would not ask him to shave off his beard to work at Chevron for only a few days that Browne was a good man who would not have been laid off if there had been sufficient work available that Browne was eli gible for rehire and should check back with Respondent Employer at a later date and if there was work he would be reemployed Browne according to Verrinder re sponded by stating Respondent Employer was a no good outfit and he would find himself another job Verrinder s testimonial demeanor was better than Browne s when they testified about this conversation Browne testified that approximately 2 weeks before his November 19 layoff he telephoned Respondent Union s Martinez California facility and spoke to Respondent Union s business agent Jesse Duran Browne testified that he told Duran that himself and other laborers em ployed by Respondent Employer at the Triangle Hous ing project were being injured because of the lack of safety guards on the grinders they were operating Duran according to Browne refused to do anything about his complaint he stated to Browne that Respond ent Employer was a good company and there was noth ing that the Respondent Union could do about Browne s complaint Browne initially testified that during this con versation he did not tell Duran he had reported this matter to OSHA On cross examination however Browne for the first time testified that either during the above conversation or during another conversation with Duran which he testified would have occurred a couple of weeks prior to his November 19 layoff that he told Duran over the telephone that he had reported Re spondent Employer to OSHA and further testified that at the time he had in fact not yet called OSHA but lied about this to Duran in an effort to get him to do some thing about his complaint I' Browne also testified that the day after his above de scribed conversation with Duran Verrinder spoke to him and stated [G]oing to the hall did not do you any good did it and Browne replied [N]o it sure did not Verrinder on the other hand testified he did not have such a conversation with Browne Verrinder also testi fled that no one from Respondent Union including Duran spoke to him about Browne until several months after his layoff at which time a representative from the Respondent Union spoke to him about the unfair labor As discussed in greater detail infra Duran testified that before the hearing in this case he had never heard of Browne and never had a con versation with him C OVERAA & CO 599 practice charges Browne had filed in this case As I have indicated supra Verrinder s testimonial demeanor was better than Browne s Having rejected Browne s testimony that he told Vice President Verrinder he had complained to CAL OSHA about Respondent Employers failure to have safety guards on his grinders having rejected Browne s testi mony that on November 18 Verrinder stated in effect that he intended to terminate Browne s employment be cause he had complained to OSHA 12 having rejected Browne s testimony that on November 19 Verrinder and Kehoe in effect admitted to Browne that the reason given to him by the Respondent Employer for his layoff was a pretext having found it was not until his layoff that Browne identified himself to CAL OSHA as the person who had complained to CAL OSHA about Re spondent Employer and inasmuch as there is insufficient circumstantial evidence from which an inference might be drawn that Respondent Employer knew of his com plaint to CAL OSHA when it laid him off I find the General Counsel has failed to prove that when Respond ent Employer laid off Browne it knew he had com plained about Respondent Employer to CAL OSHA 13 In addition to alleging Respondent Employer violated the Act by laying off Browne for complaining to CAL OSHA about unsafe working conditions the amended consolidated complaint also alleges that his layoff violat ed the Act because it was motivated by his complaints to the Respondent Union and/or Respondent Employer about unsafe working conditions These allegations are without meet because there is a lack of credible evi dence that Browne complained to the Respondent Em ployer about unsafe working conditions and even if Browne complained to the Respondent Union about unsafe working conditions there is a lack of credible evi dence that the Respondent Employer learned of this complaint Assuming that Browne as he testified complained to Respondent Unions Business Agent Duran about Re spondent Employers failure to use safety guards on its grinders there is no credible evidence as I have found supra to establish that Duran or anyone else from the Respondent Union ever communicated this to the Re spondent Employer And with respect to Browne having complained to the Respondent Employer about the 2 It is for this reason that I shall recommend the dismissal of the com plaint s allegations that on November 18 in violation of Section 8(a)(1) of the Act Verrinder threatened Browne with the loss of employment be cause of his attempts to enforce certain terms and conditions of the gov erning collective bargaining contract 13I considered the uncontradicted testimony of Glenn Watts that 2 days after Browne s layoff Respondent Employers laborer Foreman Willie Turner in response to Watts comment that it was a shame Browne was laid off stated to Watts [T ]hat s what happens if you make waves This statement when viewed in the light of the whole record is not sufficient to warrant the inference that Turner was referring to the complaint Browne had made to CAL OSHA I also note that even though Watts testimony was not contradicted I formed the distinct im pression that the approximately 14 months that had elapsed since his con versation with Turner and the hearing had dulled his memory to such an extent that he was not a reliable witness In this regard I note that when Watts testified Turner stated [T]hat s what happens if you make waves he immediately qualified this testimony by further testifying that those were only more or less the words Turner expressed grinders being unsafe as I have set forth in detail supra the record contains conflicting testimony Browne testi feed that at three employee safety meetings conducted by Superintendent Kehoe and laborer Foreman Turner he complained that operating the grinders without safety guards was not safe I reject his testimony because Kehoe and Turner whose testimonial demeanor was better than Browne s testified he did not complain about the lack of safety guards on the grinders I have consid ered that Glenn Watts testified that during two safety meetings Browne expressed his concern about the lack of safety guards However I received the impression that Watts was not a reliable witness because the approxi mately 14 months that had passed between the date of the hearing and the safety meetings involved seemed to have dulled his memory of what occurred at those meet ings 14 In this regard with respect to his testimony con cerning Browne s comments made during safety meet ings when asked during direct examination what com ments Browne expressed during the safety meetings he answered Well he made some comments about when he first started the job and we needed safety guards on the grinders and better eye protection At first we really didn t have much at all Mainly it was the grinder guards We didn t have grinder guards on anything and it was a pretty dirty dangerous job really This answer in part garbled and in part unresponsive does not reveal what Browne said Moreover Watts al though also testified that Turner responded to Browne s comments by stating [T]hat s the best I can do later during cross examination Watts inconsistently testified Turner responded by stating they would look into what Browne was saying and try to remedy the situation I am persuaded that Watts garbled unresponsive and incon sistent testimony was due to the fact that Watts had no memory of what if anything Browne stated during the safety meetings held more than 14 months previously It is for the foregoing reasons that I find the General Counsel has failed to make a prima facie showing that as alleged in the amended consolidated complaint Respond ent Employer violated Section 8(a)(1) and (3) of the Act when on November 19 it laid off Browne 15 I also find without merit the complaint s allegation that Respondent Employer subsequent to Browne s No vember 19 layoff violated the Act by failing and refus ing to recall him to work I have considered that in De I note that Browne did not furnish the Board with an affidavit nor any other substantially verbatim recitation of the matters he testified about Thus it is a fair presumption that Watts was not interviewed by the General Counsel until shortly before the hearing in this case and be cause of this had no reason to even think about what had occurred at the safety meetings for at least I year-from the date he attended the meet ings until the date he was initially questioned by counsel for the General Counsel about the meetings I In view of the basis for this determination I have not decided whether in whole or in part Browne s alleged concerted activity-com plaining to CAL OSHA and/or to Respondent Employer and/or to Re spondent Union about unsafe working conditions-constituted concerted activity within the meaning of Sec 7 of the Act 600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cember Respondent Employer rehired Eduardo Pena as a laborer16 and in 1987 hired approximately 18 laborers 15 of whom never worked for Respondent Employer yet Browne whom Respondent Employer considered a good worker was not offered reemployment 17 Howev er there is no evidence that Browne either when laid off or thereafter indicated to the Respondent Employer he wanted to be recalled to work Quite the opposite as I have found supra on the day of his layoff when in formed by Verrinder that he was eligible for rehire and should check with the Employer at a later date to find out if there was any work available he replied that the Respondent Employer was a no good outfit and stated that he intended to get a job with another employer Moreover there is no evidence that when it failed to notify Browne about laborer job openings Respondent Employer had a policy of notifying laid off workers about job openings and there is no evidence Respondent Employer treated Browne differently than any other laid off worker who was eligible for rehire Also rele vant in assessing the legality of Respondent Employer s motivation in not offering Browne reemployment follow ing his layoff is the lack of credible evidence that Re spondent Employer felt antagonistic toward him for en gaging in any of the concerted activity alleged in the complaint nor other than the fact that after Browne s layoff Respondent Employer acquired knowledge he had complained to CAL OSHA 18 does the record contain evidence of any of the other indicia normally associated with a finding of illegal motivation It is for all these rea sons that I find the General Counsel has failed to make a prima facie showing that as alleged in the consolidated amended complaint Respondent Employer violated Sec tion 8(a)(1) and (3) of the Act by failing and refusing to recall Browne Accordingly I shall recommend the dis missal of these allegations in their entirety B The Alleged Unfair Labor Practices Involving the Respondent Union 1 The setting The Charging Party Robert Browne was employed continuously since 1983 by Respondent Employer as a 6 Prior to December Pena was employed in 1986 by Respondent Em ployer as a laborer for approximately 5 months Immediately preceding his reemployment in December Pena visited Respondent Employers office each morning for several consecutive days asking for work This was the reason that when a job opening occurred Vice President Ver under reemployed him 7 Respondent Employers payroll records also show that on Novem ber 25 it hired Juan Garcia as a laborer However it is undisputed that Garcia was not in fact employed by Respondent Employer He was em ployed by Respondent Employers landscaping subcontractor but was placed on Respondent Employers payroll as a matter of convenience because the subcontractor did not have a collective bargaining agreement with a labor organization 18 The record reveals that following Browne s layoff he filed a claim for unemployment insurance in which he apparently contended that he was terminated for having complained to CAL OSHA and that in De cember Respondent Employer was notified by an agency of the State of California that handles employees unemployment compensation claims that this was Browne s contention Also as I have found infra 2 days after Browne s layoff Respondent Union s Business Agent Allen told Re spondent Employers laborer foreman Turner that Browne believed he had been laid off for complaining to OSHA laborer and after his employment with Respondent Em ployer was interrupted for approximately 4 months in 1986 because of an injury he resumed work for Re spondent Employer in September and was assigned to work at the Triangle Housing project as a laborer where he worked until his November 19 layoff Browne while employed by Respondent Employer was a member of the Respondent Union which as an agent of the North ern California District Council of Laborers represents Respondent Employers laborers Also in its capacity as the Council s agent Respondent Union administered the terms of the collective bargaining contract the agree ment which covered the laborers employed by Respond ent Employer at the Triangle Housing project The agreement contains a two step contractual grievance pro cedure The first step provides for the grievant to specify the date of the alleged contractual violation and the sec tion of the agreement applicable to the grievance and to submit the grievance to representatives of the involved employer and the Respondent Union who shall attempt to adjust it at the jobsite level The second step provides that if the grievance is not satisfactorily adjusted at step one of the grievance procedure within 3 days after its submission to the involved employer the grievance may be submitted to a board of adjustment comprised of an equal number of employer and union members and an impartial arbitrator and further provides that if the em ployer and union members deadlock the arbitrators de cision shall be final and binding During the approximately 3 to 4 years prior to the hearing in this case that Vice President Verrinder has been in charge of the Respondent Employers labor rela tions the Respondent Union has not filed a grievance on behalf of an employee pursuant to the contractual gnev ance procedure The contractual disputes it has had with the Respondent Employer have been settled by the par ties without the filing of any formal grievances The record also reveals that Respondent Union has filed con tractual grievances on behalf of employees it represents who are employed by employers other than Respondent Employer Respondent Union has three separate facilities They are located in Martinez Richmond and Pittsburg Cali fornia During the time material it employed three bust ness agents-Paul Jones Carter Allen and Jesse Duran-each of whom was assigned to a different facile ty Allen to the Richmond facility Jones to the Pittsburg facility and Duran to the Martinez facility The Martinez facility was open to the membership from approximately 7 to 5 p in and its dispatch hall op erated from approximately 7 30 to 9 a m The Richmond facility was open from 7 30 to 9 a in the hours of its dis patch hall Duran the business agent employed at the Martinez facility was normally there during the hours of the dispatch hall-7 30 to 9 a in -and for the remainder of the day was usually away from the facility in the field but there were occasions when he returned to the Martinez facility later during the day The three business agents are subordinate to Respond ent Union s principal official Charles Evans its business manager/secretary treasurer Although Evans office is C OVERAA & CO in the Martinez facility he visits the Richmond facility at least once weekly and when he visits arrives there at ap proximately 8 40 am and stays until the dispatch hall closes at 9 a in He spends his time there in the dispatch hall talking with members who are seeking job referrals The business agent employed at the Richmond facility Carter Allen in response to a leading question testified that during the time material he was Respondent Union s business agent assigned to the Respondent Employer However Business Agent Duran employed at the Marti nez facility testified he was the business agent who vis ited Respondent Employers projects that were located within the geographical area serviced by the Martinez fa cility He further testified that Respondent Employer s Triangle Housing project was not his responsibility be cause it was located in Richmond California It is undis puted that the Triangle Housing project was within the jurisdiction of Business Agent Allen who was assigned to Respondent Union s Richmond office 2 The General Counsels case Browne testified he met Respondent Union s business agent Jesse Duran under the following circumstances Late in 1985 while employed by Respondent Employer on a job located in Concord California he was having lunch at the jobsite with another laborer when Duran approached them 19 Duran introduced himself to Browne and asked what local union he belonged to and asked to see his dues card Browne stated he was a member of, the Respondent Union and showed him his dues card Duran explained to Browne that he had asked to see his dues card because he had never seen Browne at Respondent Union s dispatch hall or at a membership meeting Browne stated he never used the dispatch hall because he was permanently employed by Respondent Employer and did not attend membership meetings be cause he did not get involved in the affairs of the Union but just did his job Browne testified his next conversation with Duran oc curred approximately 1 year later in November under these circumstances Early in November 2 or 3 weeks before his November 19 layoff Browne testified he tele phoned Respondent Union s Martinez facility and inas much as he had forgotten Duran s last name asked the clencal who answered the telephone if he could speak to Jesse A person then came to the telephone who intro duced himself as Jesse and asked how he could help Browne Browne stated he was employed by Respondent Employer at the Triangle Housing project and that he and other laborers employed there were being injured because there were no safety guards on the ganders being used to cut the stucco Duran replied by stating that Respondent Employer is a good company and stated that because of that the Respondent Union could do nothing about Browne s complaint Browne pleaded with Duran to help the laborers and stated that s what 'B Duran testified he was assigned to service the laborers represented by Respondent Union who were employed in the geographical area ex tending from Martinez to San Ramon California It appears from a map of the State of California that Concord California was within Duran s geographical territory 601 we pay you for Duran told him there was nothing the Respondent Union could do for him and warned that if Browne did not quit harassing Respondent Employer by complaining to the Employer about the lack of safety guards on the grinders that Duran would file a suit against him Browne pointed out that the governing collective bargaining contract guaranteed the laborers a safe work environment and by its refusal to speak to the Respondent Employer about the lack of safety guards on the grinders Respondent Union was not enforcing the contract Duran repeated [T]here is nothing we can do for you On direct examination Browne further testified that he did not think he told Duran he was going to speak with OSHA about his complaint During cross ex animation he testified for the first time that during this conversation or during another conversation with Duran that took place also in November he informed Duran he had reported the Respondent Employer to OSHA Browne was unable to place this conversation in context and admitted that when he told this to Duran he had not in fact complained to CAL OSHA but lied to Duran to get Duran to do something about his complaint Browne did not explain why the lie that he had already contacted CAL OSHA about his safety complaint would have given Duran an incentive to investigate the corn plaint Browne testified that a day or two after his November 19 layoff he telephoned Respondent Union s Martinez facility and told the clerical who answered the telephone that he needed to speak to a business agent and testified that a person who identified himself as Jesse came to the telephone 20 His testimony concerning what was said during the ensuing conversation follows Browne identi feed himself to Jesse Duran and told him he had been fired by Respondent Employer for calling OSHA and that he needed his job back because he had several chil dren to feed Duran responded by stating [T]hat s what you get for ratting on them and told Browne he did not intend to do anything to help him get his job back Browne demanded that Duran file a grievance or take whatever steps necessary to get his job back Duran an swered [Y]ou should not have ratted on them This apparently ended the conversation Later the same day Browne testified he telephoned Duran again and again asked him to file a grievance on his behalf and that again Duran refused Browne testified Duran worded his refusal in terms of [T]here was noth ing that they were going to do about it [Respondent Employer] was a good company employed a lot of men and they were not going to do nothing against [Respond ent Employer] The conversation ended with Browne stating [Y]ou have not heard the last of this or words to that effect The afternoon of the day following Browne s above described telephone conversation with Duran Browne testified he went to Respondent Union s Martinez facili ty accompanied by his wife and father and had another 20 During cross-examination Browne testified he told the clerical who answered the telephone that he needed to speak to a business agent whereas during direct examination he testified he specifically asked if he could speak to Jesse 602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD conversation with Duran Browne s testimony about what occurred when they were at the Martinez facility follows Browne spoke to the clerical at the dispatch window and asked to speak with Jesse The clerical left and returned with Jesse Duran 21 Browne told Duran they had spoken previously over the telephone and he felt if they spoke face to face they could work out something so Browne could get back his job with Respondent Employer Duran replied [W]hat more can I tell you there is nothing that we can do for you at all Browne stated he needed his job back and asked isn t there something I can fill out Duran answered [Y]eah its called a grievance I in not going to help you Browne accused Duran of working for Respond ent Employer rather than for Browne and demanded that Duran do something for him Duran repeated he did not intend to do anything for Browne and in saying this looked toward the area in the hall where several men were playing cards and suggested that Browne leave the facility Browne told Duran not to threaten him and stated that Duran did not scare him Browne observed that some of the men whom Duran had looked toward had left the facility and were standing in the parking lot in the vicinity of Browne s pickup truck Browne warned Duran that if the men did anything to his truck that he would hold Duran personally responsible He then left with his wife and father Browne also testified that during his conversation with Duran that a man who had been sitting and reading in the hall came over and asked Browne Are you hard of hearing don t you hear what he is saying to you and that Browne told the man to mind his own business Browne s wife Lisa Browne testified she accompanied her husband and her father in law to Respondent Union s Martinez facility a few weeks after Browne s November 19 layoff She had absolutely no recollection of the time of day they made this visit She testified that her hus band did not say why he wanted her to accompany him that in fact it was her idea to accompany him that she had no special reason for going and also testified that neither she nor her husband suggested that Browne s father accompany them Lisa Browne s version of what took place at the union hall follows Browne asked the clerical at the dispatch hall window to see Jesse and Jesse Duran then came to the window and Browne asked him to file a grievance on his behalf 22 Duran re fused and expressed his refusal in the context of stating that Respondent Employer is a good company Browne repeated his request that Duran file a grievance on his behalf and Duran reiterated his refusal and warned Browne that for health reasons Browne had better leave the premises and also warned Browne that if he did not stop harassing them that he could be sued During this conversation a man who had been reading started to come over to where Browne and Duran were talking and Browne told him no one was talking to him The only thing Lisa Browne said during the conversa 21 During the hearing in this case Browne identified Jesse Duran as the person to whom he spoke when he visited the Martinez facility with his wife and father 22 During the hearing in thi case Lisa Browne identified Jesse Duran as the person whom her husband spoke to at the Martinez facility tion was when she told her husband lets go Lisa Browne also testified that when the three of them left the union hall there were three men standing by Browne s pickup truck who did not speak to them Browne s father Henry Browne testified that early in the afternoon on a November day shortly before Thanks giving he accompanied his son and daughter in law to Respondent Union s Martinez facility Henry Browne who lives a distance from his son and daughter in law in another city testified that his son did not ask him to go to the union hall that when his son and daughter in law came to his house that day and mentioned they were going to the union hall and that Henry Browne told his son that he was going there with them When asked whether he had any reason for accompanying them to the union hall Henry Browne testified I did not want him out there by himself and his wife Henry Browne s version of what occurred at Respondent Union s Marti nez facility follows The Charging Party Browne spoke to a clerical at the dispatch window and either asked to speak to Jesse or asked to speak to a union business agent or a union executive A man named Jesse came to the window Browne told Jesse he wanted to file a grievance against Respondent Employer for the purpose of getting his job back Jesse responded by stating he would not file such grievance on Browne s behalf be cause Browne had caused trouble for Respondent Em ployer by reporting that Company to OSHA Browne accused Jesse of protecting the Respondent Employer and Jesse stated to Browne that for health reasons he had better leave the premises and made a motion with his head in the direction of several men who were seated in the back of the hall The men in response to the motion walked outside Finally Henry Browne testified that when he his son and his daughter in law left the union hall they found there were three men standing aside of Browne s pickup truck that Browne asked them what they wanted that the men mumbled something and that the Brownes left Browne testified that within 1 week after his above de scribed meeting with Duran at Respondent Union s Mar tinez facility he telephoned Duran and told him he needed a job and asked whether Duran had filed a gnev ance to get him his job back Duran according to Browne answered by stating that he could get Browne another job When Browne asked [C]an t you get me my old job back9 Duran according to Browne broke off the conversation by stating that both he and Browne were busy that this is the end of it there s nothing more we re going to do for you Having been unable to persuade Duran to submit a grievance to the Respondent Employer contesting his layoff Browne testified that immediately after his above described telephone conversation with Duran that he telephoned Respondent Union s Richmond facility the same day early in the morning and that the phone was answered by a man who identified himself as Charles Evans Respondent Union s business manager/secretary treasurer Browne testified he identified himself to Evans and gave him a run down about the guards being off the grinders and me being fired and Jess what he was C OVERAA & CO 603 doing and that Evans answered by stated [W]ell if Jesse can t help you I don t know what I can help you and ended the conversation by telling Browne he would look into the matter and see what he could do about it Browne testified that when Evans did not call him back he again telephoned Respondent Union s Rich mond facility and spoke with Evans two more times He further testified he was only able to recall the second of the two conversations which he testified occurred late in January 1987 Regarding this conversation he testified that when he telephoned the Richmond facility the phone was answered by a man who identified himself as Charles Evans On direct examination Browne testified Evans told him there was nothing more that he could do about Browne s problem that he had spoken to Duran and could do nothing more than Duran for him and told Browne that they did not need guys like him in the union anyway because we were troublemakers to which Browne replied by stating he was not causing any trouble and had never filed a grievance previously or had anything to do with the union before this problem arose During cross examination Browne added to his above described testimony now testifying Evans also told him he no longer had any hiring status in the union because he had not paid his union dues Later during cross examination Browne admitted that in the affidavit he submitted to the Board during the investigation of this case he had stated that during this conversation he had demanded that Evans file a grievance to get his job back that Evans refused and also advised Browne that the International does not need guys like you anyway and stated [Y]ou know you are under suspension for non payment of union dues Browne testified that he never spoke to Respondent Union s Business Agent Carter Allen the agent stationed at Respondent Union s Richmond facility and never even heard of Allen prior to the hearing in this case 3 Respondent Union s case As I have found supra Jesse Duran was the business agent assigned to Respondent Union s Martinez facility during the time material Respondent Employers Trian gle Housing project the project on which Charging Party Browne was employed was not located within the geographical jurisdiction of the Martinez facility thus Duran was not responsible for dealing with the laborers employed on that project or for otherwise policing the contract the covered that project As described in detail supra Browne testified that on several occasions after his November 19 layoff he spoke to Duran about his layoff and that in those conversations Duran refused to accept a grievance from Browne protesting the layoff Duran on the other hand testified he never met Browne or spoke with him personally or over the telephone and that he saw him for the first time at the heanng in this proceeding As I have noted supra the office of Respondent Unions principal official Charles Evans its business manager/secretary treasurer is located in the Martinez facility The only time Evans goes to the Richmond fa cility is when just prior to the facility s 9 am closing time at least once a week for a 20 minute period he visits the facility and while there spends all of his time in the dispatch hall talking with the members present for job referrals As described in detail supra Browne testa fled that on three occasions following his November 19 layoff he spoke to Evans at the Richmond facility over the telephone and that Evans like Duran refused to accept Browne s grievance protesting his layoff Evans on the other hand testified he never spoke to Browne either over the telephone or personally As I have found supra the business agent responsible during the time material for dealing with the laborers employed by Respondent Employer at the Triangle Housing project was Carter Allen the business agent as signed to the Richmond facility which was located in the same city as the Triangle Housing project Also as described in detail supra Browne testified he never spoke to Allen and never even heard of him before the hearing in this case Allen on the other hand testified that sometime during the period from October to Janu ary 1987 he received a telephone call at the Richmond facility from Browne who told him he had been em ployed by Respondent Employer for several years and felt he had been unjustifiably laid off by Respondent Em ployer because of a call he had made to OSHA com plaining about the Respondent Employers use of a grinder that did not have a safety guard Allen respond ed by telling Browne he would go out to the jobsite and check into the matter Allen testified Browne did not ask him to file a grievance on his behalf against the Re spondent Employer and testified he did not consider that Browne had filed a grievance but considered him to be a man who felt that he had been unjustifiably laid off and I felt I should go out there and talk to the supervisor on the job and see what was really going on Allen testified that after his above described telephone conversation with Browne he visited the Triangle Hous ing project and spoke to Willie Turner Respondent Em ployer s laborer foreman Allen testified his reason for going to the project and speaking with Turner insofar as they talked about Browne s layoff was to find out exact ly what reason Respondent Employer was giving for Browne s layoff Allen s testimony about his conversa tion with Turner follows Allen told Turner that Browne stated he thought he had been laid off for calling OSHA Turner replied this was not true and stated Browne had been laid off as a result of a reduction in force Nothing else was said Turner a witness for Respondent Union testified that approximately a couple of days after Browne s Novem ber 19 layoff Allen visited the jobsite and spoke with him about Browne s layoff Turner s testimony about this conversation follows Allen asked why Browne had been laid off Turner told him [W]e just had to reduce the work force due to a lack of work Allen then either stated Browne had filed a grievance or Browne had filed something similar to a grievance and advised Turner that there may be a problem for the Respondent Em ployer on account of Browne s layoff This was the extent of the conversation Allen testified that 1 or 2 days following his visit with Foreman Turner Browne telephoned him Allen s testi 604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD mony about their conversation follows Browne asked what Allen had done Allen told him he had talked to Foreman Turner and Turner had stated Browne was laid off because of a reduction in force Browne stated Turner was not telling the truth that he was a good la borer who had worked for Respondent Employer for several years and felt he was terminated because he com plained to OSHA not because of reduction in force Allen responded by telling him to come down to the hall and we would file a grievance if he felt he was un justifiably laid off Browne who sounded concerned stated he would do this Allen testified this was the last time he ever heard from Browne Marian Nugent the dispatcher employed at the Marti nez facility whose work station is at the dispatch hall s front window testified she never observed Browne or Browne s wife in the hall Also Business Manager Evans and bookkeeper Barbara Conway whose offices have video monitors that enable them to see who is at the Martinez facility s dispatch window testified they never observed Browne at the Martinez facility Neither Evans nor Conway is employed to spend their working time monitoring who is in the union hall inasmuch as they have other duties to perform Allen testified that when a member of the union speaks to a business agent about a complaint that the business agent pursuant to Respondent Union s policy first inves tigates the complaint and then instructs the member to come down to the union hall to reduce the complaint into writing He testified he was following this procedure when he told Browne to come to the hall if he was inter ested in filing a grievance Evans testified that when a member of the union speaks to a business agent about a complaint the Re spondent Union s policy is for the business agent to go out and check it out and come back and let me know about it and to instruct the member to go to Evans office at the Martinez facility where the member s griev ance will be reduced into writing and signed by the member and a typed copy prepared Evans further testi feed that if in speaking to the business agent the member indicates he wants to file a grievance the business agent pursuant to Evans instruction should immediately tell the member to go to Evans office where as described above the grievance will be reduced into writing It is undisputed that it was not until Browne filed his charge against Respondent Union in this case that Evans learned about Browne s layoff and his complaint about the layoff 4 Discussion23 The consolidated amended complaint alleges that since November acting through its business agent Jesse Duran and its business manager/secretary treasurer Charles Evans Respondent Union has failed and refused to ini tiate and/or to otherwise process [Browne s termination] grievance and engaged in this conduct for arbitrary invidious and/or discriminatory reasons in derogation ofits duty of fair representation thereby violating Section 8(b)(1)(A) of the Act These allegations are based entirely on the testimony of Charging Party Browne set forth in detail supra that he spoke to Duran and Evans on several occasions after his layoff and asked them to accept a grievance on his behalf protesting his layoff and that they refused to accept his grievance For the reasons set forth hereinafter I find Browne was not a credible witness As described in detail supra Duran and Evans testified they did not have any conversations with Browne about the filing of a grievance concerning his layoff Their tes timonial demeanor which was good was better than Browne s In addition the inherent probabilities of the situation are more in keeping with their denial that Browne ever spoke to them about his layoff than with Browne s testimony that he had several such conversa tions with them Neither Duran nor Evans was responsi ble for dealing with the laborers employed on the Trian gle Housing project the project where Browne was em ployed The business agent responsible for dealing with the projects laborers was Carter Allen the business agent stationed at Respondent Union s Richmond facili ty located in the same city as the Triangle Housing project Allen as described in detail supra testified Browne did in fact telephone the Richmond facility and spoke to him about his layoff Allen s testimony in this regard is corroborated by the testimony of laborer Fore man Willie Turner described in detail supra that ap proximately 2 days after Browne s layoff Allen visited the project and asked Turner why Browne was laid off and told Turner there might be a problem for the Re spondent Employer concerning Browne s layoff because Browne was complaining 24 Also it is highly unlikely that as Browne testified when he telephoned the Rich mond facility that on each occasion Business Manager Evans personally answered the telephone and spoke with him about his grievance and during the first conversation agreed to look into the grievance Allen not Evans was the business agent stationed at the Richmond facility and was the business agent responsible for dealing with the laborers employed at the Triangle Housing project whereas Evans office was in the Martinez facility and he visited the Richmond facility only approximately once a week for 20 minutes and spent all his time there on the floor of the dispatch hall talking with members Also relevant in assessing Browne s credibility is the fact that it is inconceivable that Duran and Evans expe 23 Respondent Union contends that due to Browne s delay in filing his charge and due to the General Counsels delay in processing the charge witnesses memories have been dimmed by the passage of time which had prejudiced Respondent Union s defense and also prejudiced Respond ent Union in terms of any monetary liability it might incur as a result of the charge This contention is without merit There is no provision in the Act requiring Browne s charge to have been filed immediately The only statutory requirement is that a charge be filed within 10(b) s 6 month lim itations period And with respect to Respondent Union s further conten tion that Browne should be penalized because of the General Counsels delay in processing his charge the law is to the contrary See NLRB V Katz 369 US 736 748 fn 16 (1962) NLRB Y J H Rutter Rex Mfg Co 396 U S 258 265 (1969) NLRB Y Iron Workers Local 480 466 U S 720 (1984) 24 Turner s testimonial demeanor was good when he gave this testimo ny C OVERAA & CO 605 rienced union business representatives 25 would refuse to permit Browne to submit a grievance to the Respondent Union for investigation This is not a situation where the Respondent Union is being accused by Browne of con ducting a perfunctory investigation of his grievance or of failing to investigate his grievance Rather if Browne is believed Duran and Evans refused to even allow him to submit a grievance to the Respondent Union protesting his layoff It is highly unlikely that experienced business representatives such as Duran and Evans would engage in this type of misconduct particularly where as here the governing collective bargaining contracts grievance provision expressly gave Browne the right to submit such a grievance to Respondent Union Moreover it is also highly unlikely that even if Duran engaged in the conduct Browne attributes to him that he would have admitted to Browne as Browne testified that the reason Duran would not accept Browne s grievance was that Respondent Employer was a good employer and Browne was the one at fault for turning the Respondent Employ er in to CAL OSHA 26 Likewise it is highly unlikely that such an experienced business representative as Evans in refusing to permit Browne to submit a gnev ance to Respondent Union would have point blank in formed Browne that they did not need guys like him in the union anyway because [t]hey were troublemakers Browne s testimony that Business Representatives Duran and Evans refused to even allow him to submit a grievance to Respondent Union protesting his layoff does not ring true for the additional reason that there is a lack of evidence to explain why they would have engaged in such conduct27 and the record also reveals such conduct would have been contrary to Respondent Union s usual practice of inviting members to come to the offices of Respondent Union and submit their grievances in writ ing if as in Browne s case the member indicated to a business agent that he or she desired to file a grievance Lastly in evaluating the credibility of Browne s testi mony that Duran and Evans refused to allow him to submit a grievance to Respondent Union rotesting his layoff I have taken into account that as I have found supra when Browne testified in support of the com plaint s allegations charging Respondent Employer with illegally laying him off he testified in complete disregard of the truth he fabricated whenever he thought it would 25 During the time material to this case Duran had been employed by Respondent Union for approximately 6 years as a business agent and Evans for approximately 8 years as business manager 26 I also find it inconceivable that a business agent as experienced as Duran would as Browne testified refuse to even check into Browne s complaint that the projects laborers were being injured because of the Respondent Employers failure to provide safety guards on the grinders and as Browne further testified couple his refusal with the explanation that Respondent Employer was a good employer and warn Browne that if Browne did not stop harassing Respondent Employer by making such complaints Duran would file a lawsuit against him 27 It is undisputed that Browne a member of Respondent Union pre viously only had minimal contacts with Respondent Union and Its offs cials and had done nothing that would explain the highly unusual con duct that Browne attributes to Duran and Evans I note that although there are indications in the record that Browne became delinquent in his union membership dues payments the record further reveals this did not occur until after his layoff and until after Duran had already supposedly refused to allow him to submit a grievance protesting his layoff advance his interests This consideration when coupled with the other considerations set forth immediately above have persuaded me that Browne s testimony was false when he testified that he spoke to Duran and Evans about his layoff and when he testified that they refused to accept his grievance protesting the layoff In discrediting Browne s testimony that he complained to Duran about his layoff and that Duran refused to accept his grievance protesting the layoff I considered the testimony of Browne s wife Lisa Browne and his father Henry Browne described in detail supra which corroborates Browne s testimony that he visited Re spondent Union s Martinez facility and unsuccessfully at tempted to persuade Duran to accept his layoff griev ance I discredited Lisa and Henry Browne s testimony for the following reasons Lisa Browne s testimony is very suspect because as I have found supra in an effort to help her husband prove Respondent Employer laid him off because he com plained to CAL OSHA she falsely testified that the night before his layoff she overheard Vice President Vernnder in effect admit to her husband that Vernnder intended to terminate him because he had filed a com plaint with CAL OSHA I believe her testimony about her husband s alleged meeting with Duran at the Marti nez facility was similarly fabricated in an effort to sup port his case In this regard I also note that Lisa Browne s testimony about this meeting in certain signifi cant respects does not jibe with her husbands account Lisa Browne testified that Duran told her husband that his reason for refusing to accept his grievance was that Respondent Employer was a good company She fur ther testified Duran warned her husband that for health reasons he had better leave the union premises and tes tified Duran also warned her husband that if he did not stop harassing them he could be sued Her husband s account of the conversation which allegedly took place between himself and Duran on this occasion does not at tribute any one of these remarks to Duran Regarding the testimony of Browne s father Henry Browne given the fact that he lives a significant distance from his son and daughter in law in a different city he was unable to give a convincing explanation of why he was present with his son and daughter in law when they visited the union hall and spoke to Duran In addition his testimony about what was stated by Duran differs significantly from his son s testimony Henry Browne tes tified that in response to his son s request that Duran file a grievance on his behalf Duran stated he would not file the grievance because Browne had caused trouble for Respondent Employer by reporting the Employer to OSHA Neither the account of Browne nor the account of his wife about the conversation which supposedly took place on this occasion between Browne and Duran attributes this remark to Duran Also Henry Browne s testimony that Duran warned his son that he had better leave the premises for health reasons does not jibe with Browne s testimony The foregoing considerations coupled with the fact that Duran whose testimonial demeanor was good testi feed that no such conversation took place between him 606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD self and Browne have persuaded me to reject Lisa Browne s and Henry Browne s testimony Having discredited in its entirety the Brownes testi mony that Duran refused to initiate or otherwise process Browne s grievance and having discredited Robert Browne s testimony that Evans also engaged in this con duct there is a lack of credible evidence in the record to warrant the finding that as alleged in the consolidated amended complaint Respondent Union through Duran or Evans failed and refused to initiate and/or otherwise process Browne s termination grievance in derogation of the Respondent Union s duty of fair representation I therefore shall recommend the dismissal of the com plaint s allegations charging Respondent Union with having violated Section 8(b)(1)(A) of the Act Counsel for the General Counsel argues in the alterna tive that even if the Brownes are not credible witnesses a violation of Section 8(b)(1)(A) was proven by Business Agent Carter Allen s testimony that in response to Browne s complaint to Allen that he was laid off for complaining to OSHA Allen merely visited the jobsite and asked Laborer Foreman Turner the reason for the layoff and conducted no other investigation General Counsels position is that such a perfunctory handling of an employees grievance constitutes a breach of a union s duty of fair representation and therefore violates Section 8(b)(1)(A) of the Act I seriously doubt that the General Counsels alterna tive theory is encompassed by the complaints allegations that Respondent Union through Business Agents Duran and Evans breached its duty of fair representation by failing and refusing to initiate or to otherwise process Browne s grievance If it was not encompassed by the pleadings I seriously doubt whether the issue posed by the alternate theory was litigated In any event when viewed in its entirety Allen s testimony does not support the General Counsels alternate theory As described in detail supra Allen testified his sole purpose in speaking to Foreman Turner about Browne s layoff was to deter mine what reason or reasons the Respondent Employer was relying on to justify Browne s layoff and testified that after getting this information from Turner he had a second conversation with Browne in which he asked Browne to come to the union hall to reduce his gnev ance into writing Thus Allen s testimony does not estab lish that Respondent Union processed Browne s gnev ance in a perfunctory manner rather it shows that Allen consistent with Respondent Union s practice asked Browne to visit the union hall to file a formal grievance protesting his layoff but Browne did not do so The General Counsel contends and I agree that Browne s failure to go to the union hall and reduce his grievance into writing as supposedly requested by Allen makes Allen s testimony that he asked Browne to do this extremely suspect This is so because at the time Browne had instituted a workmen s compensation suit against Respondent Employer and had complained about the Respondent Employer to CAL OSHA concerning unsafe working conditions and his layoff He thereafter filed the charges in this case against the Respondents and a civil suit concerning his layoff against the Respondent Employer In view of these circumstances I believe it is inconceivable that Browne would have failed to visit the union hall to file a formal grievance protesting his layoff if he had been asked to do this Nevertheless the fact that Allen s testimony concerning his second conversa tion with Browne appears to be implausible at least in part does not warrant the inference that the truth is the opposite of Allen s testimony where as here the sur rounding circumstances which include Browne s false testimony that he never spoke to Allen about his gnev ance do not warrant such an inference 28 On these findings of fact and conclusions of law and on the entire record I issue the following recommend ed29 ORDER The consolidated amended complaint is dismissed in its entirety 29 Regarding Allen s first conversation with Browne about his gnev ance as I have found supra Allen s testimony concerning that conversa tion is corroborated by Foreman Turner s testimony that Allen approxi mately 2 days after Browne s layoff visited the project and asked Turner why Browne was laid off and advised Turner that there might be a prob lem for Respondent Employer concerning Browne s layoff because Browne was complaining 29 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