Graphic Communications Local 1-M (Bang Printing)

National Labor Relations Board - Board Decisions

Jun 11, 2002

337 N.L.R.B. 662 (N.L.R.B. 2002)

662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Graphic Communications International Union, Local
1-M (Bang Printing, Inc.) and Timothy Kelm.
Case 18–CB–4076–1
June 11, 2002
DECISION AND ORDER
BY CHAIRMAN HURT GEN AND MEMBERS LIEBMAN
AND COWEN
On July 31, 2001, Administrative Law Judge William
J. Pannier III issued the attached decision. The Respon­
dent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
brief and has decided to affirm the judge’s rulings, find­
ings,1 and conclusions as modified below and to adopt
the recommended Order as modified.2 The judge found
that the Respondent Union violated Section 8(b)(1)(A)
and (2) by reporting the possibility of sexual harassment
by Charging Party Timothy Kelm to his Employer in
retaliation for his dissident activities. In affirming the
judge’s finding, we agree with the judge that Union Vice
President Stanton’s failure to investigate Kelm’s con-
duct, in the absence of any basis to suspect that Kelm had
recently engaged in misconduct, is a factor indicating the
Union’s unlawful motivation. See General Motors Corp .,
272 NLRB 705, 711 (1984). Given our finding that the
report was made for a retaliatory reason, i.e., to retaliate
against Kelm’s Section 7 activities, we do not pass on
whether a union would otherwise have a duty under the
NLRA to investigate allegations that a represented em­
ployee engaged in sexual harassment before reporting
such allegations to an employer.
In its exceptions, the Union argues that Title VII of the
Civil Rights Act of 1964 requires unions to immediately
report sexual harassment allegations to management. The
Union acknowledges that no court decision so holds, and
we have found none. Again, however, given our finding
of retaliatory motivation, we need not pass on whether a
union has a duty under Title VII to immediately report,
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis­
trative law judge’s credibility resolutions unless the clear preponder­
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 We shall modify the judge’s recommended Order in accordance
with our decisions in Indian Hills Care Center, 321 NLRB 144 (1996);
and Excel Container, 325 NLRB 17 (1997). We shall also substitute a
new notice in accordance with our recent decision in Ishikawa Gasket
American, Inc., 337 NLRB 175 (2001).
i.e., report without investigation, such allegations to the
employer.
ORDER
The National Labor Relations Board adopts the rec­
ommended Order of the administrative law judge and
orders that the Respondent, Graphic Communications
International Union, Local 1-M, its officers, agents, and
representatives, shall take the action set forth in the Or­
der as modified.
1. Substitute the following for paragraph 2(b).
(b) Mail, at its own expense, a copy of the attached no­
tice to all employees employed by Bang Printing, Inc. in
Brainerd, Minnesota, who have been represented by
Graphic Communications International Union, Local 1-
M since September 26, 2000. Such notices shall be
mailed to the last known address of each of those em­
ployees. Copies of the notice shall be signed by its au­
thorized representative and mailed immediately upon
receipt of the forms provided by the Regional Director.
2. Substitute the attached notice for that recommended
by the administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES

POSTED BY ORDER OF THE

NATIONAL LABOR RELATIONS BOARD

An Agency of the United States Government

The National Labor Relations Board has found that we vio­
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain collectively on
your behalf
Act together with other employees for your bene­
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT attempt to cause Bang Printing, Inc., or
any other employer, to investigate, discharge, or other-
wise discriminate against Timothy Martin Kelm, or any
other employee, to discourage criticism of our perform­
ance, or to discourage activities to refrain from continu­
ing to support us, as your exclusive collective-bargaining
representative.
WE WILL NOT restrain or coerce you in the exercise of
rights protected by the National Labor Relations Act, by
reporting to your employer that you may have engaged in
misconduct, because you have criticized our performance
and have expressed an intention to refrain from continu-
337 NLRB No. 100
GRAPHIC COMMUNICATIONS LOCAL 1-M (BANG PRINTING) 663
ing to support us as your exclusive collective-bargaining
representative.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of rights guaranteed you by
the National Labor Relations Act.
Eddie E. Clopton Jr. and Pamela W. Scott, Esqs., for the Gen­
eral Counsel.
Richard A. Miller, Esq. (Miller O’Brien), of Minneapolis, Min­
nesota, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I heard
this case in Brainerd, Minnesota, on April 25, 2001. On De­
cember 28, 2000,1 the Acting Regional Director for Region 18
of the National Labor Relations Board (the Board) issued a
complaint and notice of hearing, based on an unfair labor prac­
tice charge filed on October 13, alleging violations of Section
8(b)(1)(A) and (2) of the National Labor Relations Act (the
Act). All parties have been afforded full opportunity to appear,
to introduce evidence, to examine and cross-examine witnesses,
and to file briefs. Based on the entire record, on the briefs
which have been filed, and on my observation of the demeanor
of the witnesses, I make the following
FINDINGS OF FACT
I. THE ALLEGED UNFAIR L ABOR PRACTICES
A. Introduction
It is an unfair labor practice, under Section 8(b)(1)(A) of the
Act, for labor organizations “to restrain or coerce . . . employ­
ees in the exercise of the rights guaranteed by section 7 of the
Act.” Among those Section 7 rights is “the right to refrain
from” forming, joining, or assisting labor organizations. An-
other is refraining from “bargain[ing] collectively through rep­
resentatives of [employees’] own choosing.”
Section 8(b)(2) of the Act provides that it is an unfair labor
practice for labor organizations “to cause or attempt to cause an
employer to discriminate against an employee in violation of
subsection (a)(3)” of the Act—that is, “in regard to hire or ten­
ure of employment or any term or conditions of employment to
encourage or discourage membership in any labor organiza­
tion.” This factually uncomplicated, but analytically subtle,
case presents allegations that both those sections of the Act
were violated by Respondent, Graphic Communications Inter-
national Union, Local 1-M, a labor organization within the
meaning of Section 2(5) of the Act.
More specifically, the complaint alleges that on September
26 Respondent reported to the Employer, Bang Printing, Inc,2
1 Unless stated otherwise, all dates occurred during 2000.
2 Respondent admits that, at all material times, the Employer has
been a Minnesota corporation with principal office and place of busi­
ness in Brainerd, Minnesota, where it engages in the operation of a
book printing facility and, further, at all material times has been en-
gaged in commerce within the meaning of Sec. 2(2), (6), and (7) of the
Act. That conclusion is based on the admitted allegations that, in con-
that an employee, Timothy Martin Kelm, had engaged in inap­
propriate conduct toward female employees, even though Re­
spondent had no legitimate basis for believing that Kelm actu­
ally had engaged in such misconduct. It further alleges that by
making that report to the Employer, Respondent’s ultimate
objective had been to retaliate against Kelm for having voiced
his unwillingness to support Respondent, and his desire that its
representation of the Employer’s employees be terminated,
thereby restraining and coercing Kelm and other employees in
the exercise of the rights protected by Section 7 of the Act.
Moreover, it is alleged that Respondent’s ultimate objective had
been to generate an investigation by the Employer that might
cause the latter to discipline, most likely discharge, Kelm.
Respondent denies that it had been unlawfully motivated in
reporting Kelm to the Employer and, furthermore, points out
that there is no evidence whatsoever that it had demanded that
the Employer discharge, discipline, or take any particular
course of action concerning Kelm’s continued employment.
The General Counsel concedes that there is no evidence that
Respondent ever made an express demand that the Employer
discharge, or otherwise discipline, Kelm. Nevertheless, “direct
evidence of an express demand by [a labor organization] is not
necessary where the evidence supports a reasonable inference
of a union request.” (Citations omitted.) Avon Roofing & Sheet
Metal Co., 312 NLRB 499, (1993). “It is immaterial that no
explicit threat or demand was made,” Carpenters Local 2396
(Tri-State Ohbayashi), 287 NLRB 760, 763 (1987), since it is
long-settled that the statutory requirement of “cause or attempt
to cause” is satisfied by an “efficacious request,” San Jose
Stereotypers (Dow Jones & Co.), 175 NLRB 1066 fn. 3 (1969),
or by “an inducing communication . . . in terms courteous or
even precatory.” NLRB v. Jarka Corp. of Philadelphia, 198
F.2d 618, 621 (3d Cir. 1952). In addition, a labor organization
which is the exclusive collective-bargaining representative “of
the employees in a bargaining unit . . . has a duty, implied from
its status under §9(a) of the NLRA . . . to represent all members
fairly,” and to refrain from “conduct toward a member of the
bargaining unit [that] is arbitrary, discriminatory, or in bad
faith.” (Citations omitted.) Marquez v. Screen Actors Guild,
Inc., 525 U.S. 33, 44 (1998). That duty is violated, argues the
General Counsel, whenever a labor organization approaches an
employer to adversely affect an employee’s employment situa­
tion, because of that employee’s dissident attitude and conduct.
More specifically, the General Counsel argues that, during a
meeting with employees of the employer, Respondent’s execu­
tive vice president, Robert Dean Stanton—an admitted statu­
tory agent of Respondent—had been subjected to criticism of
Respondent’s bargaining performance by Kelm and other em­
ployees. During an informal conversation about those dissident
comments, occurring immediately after that meeting, there was
discussion about Kelm’s forced resignation during early 1998,
ducting those business operations during 1999, the Employer sold
goods and services valued in excess of $50,000 which were shipped
from its Brainerd facility directly to customers located outside of the
State of Minnesota and, in addition, during that same calendar year
purchased goods and material valued in excess of $50,000 which it
received at Brainerd directly from points outside of Minnesota.
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the face of an allegation of sexual harassment of or, at least,
inappropriate conduct toward a female employee, Carole Krak­
lau. The possible recurrence of such conduct was also sug­
gested. Acting solely on that suggestion, argues the General
Counsel, during a meeting the next day with the Employer’s
human resources manager, Sandra Anderson, Stanton men­
tioned that Kelm, at least, might be engaging in inappropriate
conduct toward a female employee or female employees. The
Employer has a published policy against sexual harassment by
its employees and, urges the General Counsel, it was reasona­
bly foreseeable that such a report by Respondent would gener­
ate an investigation by the Employer of Kelm—an investigation
that could lead to discipline, even discharge, of Kelm, depend­
ing upon what some female employee or employees might
choose to say about him. Because Stanton’s report to Anderson
had been truly motivated by an effort to cause or, at least, at-
tempt to cause Kelm to suffer adverse employment-related
action at the hands of his employer, urges the General Counsel,
and because Stanton had made that report because of Kelm’s
dissident comments, Respondent violated the Act.
Not so, counters Respondent. Stanton had not been truly
motivated by any dissident activities or comments on the part
of Kelm. Rather, he had been genuinely motivated by concern
that one bargaining unit member might be harassing one or
more female employees who, also, were bargaining unit mem­
bers. If so, Respondent had no procedures for correcting such
misconduct but, of course, the Employer could do so. Thus,
when he had spoken to Anderson about Kelm on September 26,
Stanton had been doing no more than taking action “necessary
to the effective performance of [Respondent’s] function of
representing its constituency.” Operating Engineers Local 18,
204 NLRB 681 (1973), enf. denied on other grounds 496 F.2d
1308 (6th Cir. 1974). See also Stage Employees IATSE Local
720 (AVW Audio Visual), 332 NLRB 1 (2000). In conse­
quence, proceeds Respondent’s argument, although Kelm may
have been restrained and coerced, and while Stanton’s report to
Anderson may have caused Kelm to be investigated and possi­
bly disciplined, the report to Anderson had not been made be-
cause of a statutorily prohibited motivation.
For the reasons set forth post, I conclude that credible evi­
dence does not support a conclusion that “the ‘true purpose’ or
‘real motive’ behind,” Lummus Corp. v. NLRB, 339 F.2d 728,
734 (D.C. Cir. 1964), Stanton’s report to Anderson about Kelm
had been genuine belief that Kelm may have been harassing
one or more female coworkers. Instead, a preponderance of the
credible evidence establishes that the report to Anderson had
been actually motivated by Kelm’s expressions of dissatisfac­
tion with continued representation by Respondent. Obviously,
an employee is restrained and coerced in the exercise of statuto­
rily protected “refrain from” activities whenever a labor organi­
zation, because of that activity protected by Section 7 of the
Act, chooses to report possible misconduct by that employee to
that employee’s employer. Indeed, such reporting represents
nothing other than an attempt to cause that employee to be dis­
ciplined, should some other employee make a complaint, espe­
cially a false one, during the employer’s ensuing investigation
of such a report motivated by unlawful considerations under the
Act. Therefore, I conclude that Respondent has violated the
Act in the manner alleged in the complaint.
B. Respondent’s Report to the Employer
Regarding Kelm
Kelm first became employed at the Employer’s Brainerd fa­
cility during 1983. He worked steadily there until early 1998
when, under circumstances described below, he resigned.
Apparently Brainerd employees were unrepresented for, at
least, most of the 1980s. During approximately 1989 or 1990, a
majority of the production and maintenance employees there
voted in favor of representation by Respondent. There is no
evidence that Kelm had either supported or opposed election of
Respondent as the collective-bargaining agent of those employ­
ees. And following that election, Respondent represented those
employees continuously through the date when the hearing in
the instant matter was conducted. By that date, it was repre­
senting approximately 105 Brainerd employees of the Em­
ployer. Kelm became a member of Respondent. But he never
held any office in it and never attempted even to run for office.
At some point, the evidence does not disclose exactly when,
the Employer formulated and posted a “Policy Statement”
concerning “Preventing Sexual Harassment in the Workplace,”
in an effort “to maintain a work environment free of sexual
harassment.” To the extent pertinent, that policy prohibits,
“Unwanted sexual advances, requests for sexual favors and
other verbal, visual, or physical conduct of a sexual nature,”
which have “the purpose or result of unreasonably interfering
with an individual’s work performance or creating an intimidat­
ing, hostile or offensive work environment,” including “unwel­
come verbal behavior such as teasing or joking as well as
physical behavior such as patting, pinching, or other inappro­
priate physical conduct,” and “lewd or suggestive pictures,
drawings, photos, or gestures.” At two points the policy warns
of adverse consequences for violation of its proscriptions: “Any
employee found to have acted in violation of this policy shall
be subject to appropriate disciplinary action which may include
discharge,” and, “Any willful or deliberate violation of this
policy by any employee, or of any procedure devised or imple­
mented to give it force and effect, will be cause for serious
disciplinary action, up to and including dismissal.” So far as
the record shows, the policy was not formulated and published
as a result of collective bargaining.
During, apparently, late 1997, Kelm was accused of engag­
ing in conduct which ran afoul of that policy. There is no evi­
dence that Respondent did anything in connection with that
accusation nor, moreover, in connection with the ensuing inves­
tigation by the Employer of Kelm’s asserted misconduct. Ap­
parently, it had been employee Carole Kraklau, on her own,
who had made that allegation against Kelm. At the very begin­
ning of 1998, Kelm was summoned to a meeting during which
then-Vice President James Lorentz explained that, as a result of
the Employer’s investigation, Kelm would be fired unless he
resigned. Kelm chose to resign, he testified, “because I [did
not] want a blemish on my record,” even though he maintained
that the allegation against him had been a false one.
During the fall of 1999 he was rehired and, thereafter,
worked continuously for the Employer through the day of the
GRAPHIC COMMUNICATIONS LOCAL 1-M (BANG PRINTING) 665
hearing. Not everyone agreed that he should have been rehired.
It was rumored, at least, that employee Ila McFarlund quit
when she learned Kelm had been rehired.
By September 2000 Kelm was working on the third shift—
from 11 p.m. until 7 a.m.—as a J-1 large machine operator.
During that month, at least, four other employees also had been
working on that shift: stock person Robert Hummel, bindery
helper Katherine Johnson, large machine operator Devona
Schultz, and, starting on September 4, then-bindery worker
Teresa Morgan. Kelm’s immediate supervisor on that shift was
Jerry Waters.
Apparently employee-members of Respondent are obliged to
attend periodic meetings. But, Respondent does not maintain
any office or other facility in Brainerd. Its office is located in
St. Paul, Minnesota, which is a fair distance from Brainerd
where the Employer and its employees represented by Respon­
dent are located. So, Respondent arranges to conduct quarterly
meetings with those employees in Brainerd. On each of those
occasions, its officers conduct three separate meetings there,
one with employees working on each of the Employer’s three,
round-the-clock, shifts. One such set of meetings was con­
ducted on September 25.
Executive Vice President Stanton testified that during the
previous set of meetings machine operator Schultz had “dis­
cussed the fact that she just felt . . . that it wasn’t right that she
had to be a member of [Respondent] to work at [the Employer]
and over that next three months [prior to September 25] on a
number of occasions when I was talking with the shop chairs
[stewards] they said that that was something that was being
discussed within the shop.” In fact, on approximately Novem­
ber 20, Schultz filed a petition for a decertification election
among Respondent’s production and maintenance employees.
Respondent won that election. But only by three votes.
The first of Stanton’s three September 25 meetings at the
Employer was with third-shift employees. “The first meeting
began around 7:15,” he testified, with “the third shift people
just finishing up for the night,” and was conducted at the
Brainerd Holiday Inn, which had become the Ramada Inn by
the time of the hearing. Accompanying Stanton during that
meeting were the two shop chairs at the Employer, David
Galbraith and Anthony Banker, both employees of the Em­
ployer. According to Stanton’s estimate, the 7:15 a.m. meeting
lasted “say an hour—a little over an hour maybe—an hour and
a half maybe.” Of course, that meant that his next meeting with
a shift of the Employer’s employees would not be occurring
until midafternoon; either with swing shift employees before
they were scheduled to begin work at 3 p.m. or, alternatively,
with day-shift employees after their shift ended at 3 p.m. Thus,
seemingly Stanton would be left with some time on his hands
between the end of the meeting with third-shift employees and
the beginning of the next meeting with a shift of the Em­
ployer’s employees.
During that third-shift meeting Stanton first discussed events
involving Respondent’s international body. Then, he testified
that he described “what’s happening in negotiations and other
issues within the local level,” and “talk[ed] about issues at” the
Employer, after which he “open[ed] the meeting for discus­
sions—for issues currently going on.” During that period,
Stanton explained, he had “initiated” discussion of whether the
Employer’s employees had need for continuing representation
by Respondent, in light of the shop chairs’ above-mentioned
between-meetings statements about employee conversations
concerning having to be members of Respondent to continue
working for the Employer.
In the course of the ensuing exchange about that subject,
Stanton acknowledged that Kelm had said, “That he felt that
[Respondent] wasn’t necessary up there and that he felt [Re­
spondent] was ineffective.” Stanton also agreed that Kelm had
said that he felt that, instead, employees could handle issues
with the Employer through their own attorneys or through the
Board. As to the subject of decertification, Stanton testified
that “it wasn’t the focus, but yes, it was brought up.” However,
Stanton denied that Kelm had said specifically that he favored
decertification. Even so, Stanton acknowledged that, “[f]rom
what [Kelm] said I would—yes, make that conclusion,” that
Kelm favored decertification of Respondent as the bargaining
agent of the Employer’s employees.
Kelm did not disagree that he had not said specifically that
he favored decertification. He testified that he had said, during
the meeting, merely that “if a decert was to come through third
shift would decert.” He further testified that he had told
Stanton “that—with the contracts that we have coming up and
the ones that we got I don’t see us gaining any ground. We
have lost ground. There’s only two parties that are gaining
anything out of this and that’s the union and the employer,
not—the employees are losing ground.”
Stock Person Hummel essentially agreed that Kelm had told
Stanton “that he didn’t think that the current contract was help­
ing us and basically he wasn’t happy with the current contract,”
and “that he was unhappy with the way the union was handling
things.” Shop Chair Galbraith agreed that Kelm had said that
“he felt we didn’t need lawyers to handle—or we could get
lawyers to handle this, we didn’t need the union to represent us
and statements to that affect [sic].” Shop Chair Banker testified
that he had “engaged with” Kelm, during the meeting, “on a
comparison why or why not we would need a union at” the
Employer.
Kelm was not the lone employee who spoke out against Re­
spondent during that 7:15 a.m. September 25 meeting. For
example, Hummel testified that “other people on the third shift
were dissatisfied with the way things were being handled,” and
Galbraith testified that “third shift had stronger feelings about”
decertification of Respondent. In fact, Galbraith identified, as
most vocal during that meeting, “Tim [Kelm], Devona
[Schultz] and Chris was pretty vocal.” But, he added that, “I
suppose Tim” had been the most vocal of those employees.
That corroborated Kelm’s testimony that he had been the most
vocal of the third-shift employees in criticizing Respondent
during the meeting. None of the other witnesses—Stanton,
Banker, and Hummel—contradicted Kelm’s testimony, cor­
roborated by Galbraith, about having been the most outspoken
employee in criticizing Respondent’s performance during the
September 25 meeting with third-shift employees.
After the meeting ended, Stanton and the shop chairs re­
mained in the room. So, also, did some of the third-shift em­
ployees. “We are there after the meeting and people do stay
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
around,” Stanton testified, “and then people drift out, yes.”
“Yes,” acknowledged Stanton, during that postmeeting period,
he had discussed with the shop chairs “the anti-union senti­
ments of Kelm and other members at the third shift meeting.”
“Yes, I guess that would be accurate,” Stanton admitted, that
during that discussion of antiunion sentiments voiced during
the meeting, there also had been mention of Kelm and female
coworkers. As to what had been said about that subject, three
witnesses—Stanton, Banker, and Hummel—provided testi­
mony. That given by Hummel differed dramatically from that
advanced by Stanton and Banker.
Both Banker and Stanton attempted to portray what was said
as having started with Hummel taking the initiative to voice
concern about Kelm’s conduct at the workplace. In other
words, Banker and Stanton portrayed what Hummel had said as
having been entirely separate from any post-meeting discussion
of anti-union sentiments expressed during the meeting.
Banker testified that after the meeting, “I was approached by
Bob Hummel.” Banker was asked three times during direct
examination to describe what Hummel had said. Initially he
responded, “Hummel just expressed to me the concerns,” and,
“Bob had a concern about some inappropriate behavior of one
of the people on third shift with a female.” Asked to testify
what exactly Hummel had said, Banker answered, “Well, he
specified Tim and that Tim was acting inappropriately with a
certain female. I don’t know the girl’s name even.” Asked to
recite the conversation as best he could remember, Banker testi­
fied only, “He told me what his concerns were and then I said
something to the affect [sic] that I wouldn’t know what to do
with that or I had no idea of what to do with something like that
and that we should tell Dean [Stanton], and therefore we did.”
Further effort, to obtain a more particularized description of
Hummel’s purported words from Banker, was abandoned.
Banker testified that he and Hummel then had spoken to
Stanton. “Dean was talking with a couple other people on the
other side [of the room’s table] for a moment, and we brought it
to his attention” Banker first testified. Brought what to
Stanton’s attention? “I believe I told Dean what Bob had just
told me, just repeated it to Dean, and Dean said that we would
give it to the company in the morning.” All else aside,
Banker’s somewhat unparticularized account displays a bar-
gaining agent announcing that it would report one of the em­
ployees it represented, to that employee’s employer, on no basis
other than a generalized report of, at best, inappropriate action
with an unknown female coworker. So far as Banker’s testi­
mony shows, no more specific information had been sought
from Hummel. That situation did not change after Stanton had
given his account of what had been said.
“I received information from one of the shop chairs, Tony
Banker, that he had been approached by a coworker, Bob
Hummel, and Bob Hummel had made a statement to him that
Tim Kelm—that he felt that Tim Kelm was beginning to have
inappropriate . . . interactions . . . towards female coworkers,”
Stanton testified initially. Asked if he had been told by
Hummel that Kelm had been making “inappropriate sexual
comments,” Stanton answered firmly that only “[i]nappropriate
comments” had been the words used. Yet, in a prehearing affi­
davit Stanton had stated, “Hummel stated that Kelm was mak­
ing inappropriate sexual comments.” After the affidavit’s ac­
count was raised with him, Stanton was asked if he now re-
membered Hummel saying “sexual.” To that, Stanton re­
sponded, “I can only say, sir, that I put it in this statement, so at
the time I filled this statement out that would have been my
recall.” Nonetheless, as his testimony progressed, Stanton ap­
peared unwilling to concede that the word “sexual” had been
spoken in connection with Kelm’s asserted misconduct.
The difference between his testimonial and affidavit ac­
counts was not the only discrepancy which arose from
Stanton’s testimony about the post-meeting conversation re­
garding Kelm. Stanton denied that he had spoken to Hummel
about the issue of Kelm’s conduct: “I did not.” Yet, as pointed
out above, Banker testified that “we” (he and Hummel) had
talked to Stanton. That, also, was the testimony given by
Hummel.
In fact, Hummel’s testimony thoroughly contradicted that of
Banker and Stanton. Most significantly, he did not testify that
he had initiated discussion of Kelm’s conduct, nor that he had
done so by initially approaching only Banker, as the latter
claimed. “We sat around and talked afterwards,” testified
Hummel, “myself, Tony Banker and Dean Stanton.” During
that period, he further testified, “It was brought up that Tim was
not for the union or whatever and somebody stated that Tim
had been fired once before for sexual harassment,” to which
Hummel then “said that if one of the girls on the third shift
wanted to complain about it that, you know, they probably
could.”
Stanton denied only generally that he had spoken to Hummel
on September 25 about the subject of Kelm’s conduct: “I did
not.” Accordingly, he never denied with particularity
Hummel’s description of what had been said after the Septem­
ber 25 third-shift meeting.
Hummel denied having mentioned on September 25 the
name of any specific female worker: “I never expressed to a
certain female, I said, ‘If one of the girls wanted to complain,’
but I never expressed a certain girl”; “Not a specific girl.” In
fact, Hummel denied even that he had had a particular female
employee in mind when he had made his September 25 remarks
to Stanton and Banker. Banker agreed. Asked if Hummel had
named a specific woman, Banker answered, “No, he did not.”
Banker denied having asked Hummel any follow-up questions
regarding who such a potential woman might be. Not only did
Stanton not challenge that testimony, about no specific female
employee having been named, but he denied—“No, he did
not”—that Banker had told him about any particular conduct by
Kelm which might be considered inappropriate. Therefore,
when Stanton reported to the Employer about Kelm, as de-
scribed below, he did so on the basis of absolutely no particu­
larized information concerning what Kelm might have done
and, further, without even the name of any female employee to
whom Kelm might have directed inappropriate conduct. Nei­
ther Stanton nor Banker claimed that he had made the least
effort to ascertain such information from Hummel, before re-
porting Kelm to the Employer on the following day.
The usual procedure is for Respondent and the Employer to
meet after the former’s quarterly meetings with the Employer’s
employees, to discuss subjects raised during those meetings.
GRAPHIC COMMUNICATIONS LOCAL 1-M (BANG PRINTING) 667
Stanton, Banker, Galbraith, and Anderson agreed that such a
labor-management meeting was conducted on September 26.
Anderson testified that, as that meeting was ending, “Dean
Stanton said that he wanted to give me a heads up that someone
had reported to Tony [Banker] that we had a possible sexual
harassment issue on the third shift.” According to Anderson,
she “asked Dean to give me some more information,” and, in
response, Stanton said to Banker, “[W]ell, Tony, tell her what
you heard.” Banker then reported, testified Anderson, “One of
the individuals on the third shift, his name is Bob Hummel,
came to him and told him that Tim Kelm was harassing a
woman on the third shift by the name of Kathy Johnson.”
With respect to that testimony by Anderson, Stanton denied
only that he had indicated that Johnson was “the victim” of
Kelm’s actions. He never denied that Banker had told Ander­
son that the female coworker was Kathy Johnson. Further,
Banker never denied having told Anderson that Johnson was
the coworker whom Kelm was assertedly harassing.
As to what had been said, Banker testified only, “At the very
tail end of the meeting . . . Dean had told Sandy that this was
just a heads-up that one of the members had approached us with
this information, and that we were just handing it over to her.”
Banker never described what “information” Stanton had related
to Anderson. So, obviously, Banker’s testimony was not a
complete recitation of what had been said to Anderson on Sep­
tember 26. All else aside, his testimony makes no mention
whatsoever even of Kelm.
For his part, Stanton testified initially, “What I told Sandy
was that Tony Baker [sic] had been approached by a coworker
and that coworker had said that he believed that Tim Kelm was
acting inappropriately toward female coworkers.” Shortly af­
terward Stanton added to that account “that that coworker was
Bob Hummel.” Later he further added that “the opening state­
ment that I made to Anderson” had been that Respondent had
no charges and no jurisdiction concerning the allegation by
Hummel against Kelm.
Two additional points should be made in connection with
what had been reported to Anderson by Respondent on Sep­
tember 26. First, as described in subsection D below, the Em­
ployer conducted an investigation of Respondent’s September
report about Kelm. When that investigation was completed,
apparently before Kelm had filed his unfair labor practice
charge, Anderson prepared a three-page recitation of “NOTES”
concerning Respondent’s report and statements made by em­
ployees during the ensuing investigation. With respect to what
Banker had said to her on September 26, Anderson’s notes
state, “Tony said that Bob Hummel told him that Kathy John-
son was being harassed by Tim Kelm.”
To be sure, Anderson’s notes are hearsay. But, “[t]he Board
has ruled hearsay testimony admissible when it is probative and
corroborated by other evidence.” (Citations omitted.) Operat­
ing Engineers Local 12 (Winegardner Masonry), 331 NLRB
1669 (2000). There seems no reason to believe that the Board
takes a contrary position regarding documentary hearsay.
Anderson’s written account of Banker’s September 26 re-
mark about Johnson corroborates her above-quoted testimonial
account. Cf. Auto Workers Local 651 (General Motors), 331
NLRB 479 (2000). Beyond that, it most likely can be said that
the notes had been prepared by a human resources manager “in
the course of a regularly conducted business activity,” within
the meaning of Fed.R.Evid. Rule 803(6). To be sure, there is
no showing that “it was the regular practice of [the employer]
to make” such notes of an investigation, as is required in order
to apply that particular hearsay exception. But the notes were
not offered by the General Counsel in support of the com­
plaint’s allegations. Instead, they were offered by Respondent,
during cross-examination of Anderson. And they were offered
without stated restriction. Moreover, no objection or qualifica­
tion was voiced to subsequent consideration of any aspect of
their content. In short, the notes were offered and received
without restriction and, consequently, for full consideration.
Second, Johnson testified that, “I just heard that it was me
from different people” that Kelm had supposedly harassed:
“People just came up and told me they thought it was me.” By
“people,” she agreed, she was referring to “[c]oworkers,” as
opposed to management officials. Obviously, rumors and shop
talk can originate from any number of different sources. How-
ever, the record does not suggest any source for Johnson’s
name, in connection with Respondent’s report to Anderson
about Kelm, other than what Respondent’s officials had been
saying. That is, so far as the evidence discloses, only Banker
and Stanton could have initially mentioned Johnson’s name, as
a specific female employee purportedly harassed by Kelm.
Yet, as shown by the testimony reviewed above, neither official
had any reason to suggest her name to Anderson. That they, or
at least Banker, did so is some indication of Respondent’s ten­
dency to embellish a charge against Kelm, in an effort to fortify
to the Employer what can only be characterized as a vague
report to them about some sort of possible “inappropriate . . .
interactions” between Kelm and one or more of his female
coworkers.
C. Respondent’s Explanation of the September 26
Report to Anderson
Banker testified that he had heard that Kelm “had had some
inappropriate behavior in the past,” and “that he would be re-
leased for that kind of behavior,” should it be repeated. “I
wouldn’t want to see anything like that happen again,” testified
Banker. He claimed to have had “no idea with what to do with
that kind of information” related to him by Hummel. So, he
asserted, “I made the report [to Stanton] because I didn’t know
what I should do with [Hummel’s] information at all,” as sort
of “a normal chain [of command] kind of, you know.” Banker
denied that he had done that only because Hummel had named
Kelm. He testified that he would have gone to Stanton regard-
less of the employee named by Hummel.
Stanton denied that he had made his September 26 report to
Anderson because Kelm had expressed antiunion sentiments
during the September 25 meeting with third-shift employees.
He further testified that he had been concerned only about a
possibility of inappropriate conduct being directed toward fe­
male employees, and would have made such a report to the
Employer even had Kelm been a supporter of Respondent.
Stanton acknowledged that, as of September 26, he had been
aware of the 1997 allegations of sexual harassment by Kelm
and, also, that Kelm had resigned as a result of information
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
disclosed by the Employer’s investigation of those allegations.
By September, testified Stanton, sexual harassment had become
“a heightened issue” and, in view “of the past allegations” in­
volving Kelm, Stanton testified that he felt obliged to report to
the Employer what Hummel had said on September 25 about
Kelm. In that connection, Respondent adduced certain other
evidence.
First, Stanton testified, without dispute, that Respondent has
no written policy regarding what to do whenever allegations of
sexual harassment are voiced about an employee whom it
represents. Second, Stanton did not feel that Respondent could
take any action on its own to prevent such conduct by one em­
ployee it represents against another employee whom it also
represents. “Those issues fall outside of the contract,” he ex­
plained, and “[i]t is not the obligation of [Respondent] to inves­
tigate or discipline anything outside of the contract.” Such
misconduct “need[s] to be handled by the company,” with Re­
spondent becoming involved only if an employer does that
“inappropriately or disciplines inappropriately,” Stanton testi­
fied.
In connection with Stanton’s motivation for having reported
Kelm to Anderson, pursued in some detail was the subject of
whether or not Respondent had made any effort to investigate
Kelm’s conduct between Hummel’s statements after the Sep­
tember 25 morning meeting and Respondent’s report to Ander­
son on September 26. Of course, Stanton’s testimony described
in the immediately preceding paragraph shows, all else aside,
that he does not believe it is Respondent’s role “to investigate
. . . anything outside of the contract,” and sexual harassment
“issues fall outside of the contract,” thus “need[ing] to be han­
dled by the” Employer. Indeed, Stanton freely conceded that
he made no effort to investigate any conduct by Kelm, before
reporting to the Employer what he assertedly had heard. None­
theless, in connection with the lack of investigation of what
Hummel had said on September 25, Stanton advanced three
additional points.
First, he testified, without contradiction, that he was not al­
lowed on Respondent’s premises, save for the contractually-
specified “purpose of investigating a grievance, and then I have
to have the [Employer’s] permission, and . . . be accompanied
by somebody from management during all the time that I am
there.” In fact, even the quarterly labor-management meetings,
such as the one held on September 26, are conducted at loca­
tions other than the Employer’s premises. Of course, the two
shop chairs—Banker and Galbraith—are employees of the
Employer and, accordingly, presumably are regularly on the
Employer’s premises whenever scheduled for work. However,
testified Stanton, “[t]hey are not allowed to do union business
on the clock on the premises.”
Banker corroborated all of that testimony by Stanton. That
is, he testified, Stanton “is not allowed on the company prem­
ises,” and even the quarterly labor-management meetings are
not conducted “on the [Employer’s] premises,” but must be
conducted “at the library.” As to performing his own role as
shop chair, Banker testified, “you are discouraged” from doing
so during working hours. “I try to do any kind of paperwork
that I need to do at the shift change, so that I won’t cause a
problem,” he testified.
The second additional point made by Stanton relates to the
timing of Respondent’s report to Anderson on September 26,
the day after the September quarterly meetings with the Em­
ployer’s three shifts of employees. The seeming haste of the
report to Anderson is one factor pointed to by the General
Counsel in support of the complaint’s allegations. In an effort
to nullify such an argument, Respondent points out that it holds
meetings with the Employer only quarterly—only on days
following quarterly meetings with the Employer’s employees.
Thus, by September 25, Stanton’s September 26 meeting with
Anderson had already been scheduled. The next such quarterly
meeting with the Employer would not occur until, Stanton testi­
fied, “Three months later.”
Third, Stanton testified that his September 26 report to
Anderson had not been the first instance when he had reported
sexual harassment of a bargaining unit member. He testified
generally that, “Yes, I have,” passed along “allegations of sex­
ual misconduct or inappropriate activity to employers[.]”
However, Stanton never identified even one of those employ­
ers, other than the Employer. Nor, putting aside any names of
people reported, did Stanton describe with any particularity
incidents or types of conduct about which he had purportedly
made such reports.
The one specific prior incident he did describe with some
particularity was, Stanton testified, “a slanderous situation, but
I believe it was of a sexual nature” that he had reported to
Anderson “early in September, about the September 6, I’m
going to say.” But, while the target of that assertedly improper
activity had been a bargaining unit employee, testified Stanton,
the individual engaging in the purportedly improper activity
had been a supervisor. Thus, inherently, the situation is not
truly comparable to reporting one bargaining unit employee’s
alleged improprieties toward another bargaining unit employee
or toward other bargaining unit employees. Beyond that, there
were other problems with Stanton’s account of this incident.
Anderson denied flatly that she had been told anything by
Stanton, or by any official of Respondent, about a supervisor’s
harassment of a female employee. She did agree that “there is a
grievance out right now dealing with conduct of another indi­
vidual that [Stanton] feels a supervisor was out of line.” But,
testified Anderson, Stanton “never contacted me with any in-
formation I believe it was sexual harassment . . . of an em­
ployee by a supervisor, he has not told me anything like that
ever.”
Beyond that, Stanton claimed that he had learned about that
purported supervisory harassment of an employee from Banker:
“She brought it to the attention of my shop chair, Tony
Banker.” Banker appeared as a witness for Respondent. But,
he never corroborated that testimony by Stanton—never testi­
fied to having received a report from a bargaining unit em­
ployee about a supervisor’s sexual harassment.
To the contrary, Banker gave some testimony tending to be
at odds with Stanton’s testimony about an early September
report by an employee about supervisory harassment. For, as
set forth at the beginning of this subsection, Banker testified
that he had “no idea with what to do with this kind of informa­
tion” provided by Hummel on September 25. Yet, that testi­
mony seems at least somewhat inexplicable, if Banker truly had
GRAPHIC COMMUNICATIONS LOCAL 1-M (BANG PRINTING) 669
received a report from an employee earlier that same month
regarding sexual harassment. If that had actually occurred, then
seemingly Banker would have known on September 25 what to
do with Hummel’s information: follow the same course as he
had purportedly followed earlier that same month. Rather than
having “no idea with what to do with [Hummel’s] kind of in-
formation,” seemingly Banker would have known on Septem­
ber 25 to take that information to Stanton. Of course, Banker
did do that. But, he claimed that on September 25 he had done
so out of lack of knowledge about what to do with such a re-
port, instead of based upon any course he assertedly had fol­
lowed less than a month earlier.
In addition to the problems posed by Stanton’s testimony re­
garding purported prior reports of sexual harassment—the de­
nial by Anderson, the lack of corroboration by Banker, the lack
of particularity concerning supposed reports of harassment to
other employers—there were some additional problems inher­
ently posed by Respondent’s effort to cast legitimacy on its
September 26 report to Anderson. For example, it was not
really accurate that Respondent would have to wait until De­
cember to make such a report, if it failed to do so on September
26. Anderson testified that Stanton could telephone her at any
time and talk about union matters. In fact, she testified, without
contradiction, that Respondent “contacts us when people are
behind in their dues”—that is, “will notify us someone is delin­
quent in their dues.” There is no basis in the record for infer­
ring—much less concluding—that Respondent could not have
further investigated Hummel’s September 25 statements and,
then, written, telephoned or arranged to meet with the Em­
ployer after September 26, but before December, to discuss
Kelm’s conduct, were its investigation to disclose some basis
for such a discussion. In short, there is no basis in the evidence
for concluding that it had been absolutely essential for Stanton
to make his report to Anderson on September 26, under pain of
being foreclosed from doing so until December.
Beyond that, no one contested the testimony that shop chairs
are discouraged from conducting union business when they are
supposed to be working. Probably that comes as no great sur­
prise to anyone. In fact, Anderson testified that, “Frequently
shop chairs are only in the press room, which maintains con­
tinuous operation,” and “I think it’s part of their responsibilities
of their position to stay at their work station [sic].” Of course,
under the Act employers are entitled to expect that employees,
even ones who are union officers, will devote full attention to
their duties whenever they are performing them.
Even so, there is no basis in the evidence for concluding that
the Employer’s employees are not free to discuss among them-
selves whatever they want to discuss during break and lunch
periods. That is, there is no evidence that Galbraith and Banker
had not been free to speak with third-shift female employees
about Kelm during lunch and break periods. Nor, for that mat­
ter, is there any basis in the evidence for concluding that one or
both of the two shop chairs could not have done so before and
after those employees’ shifts began and ended. In sum, so far
as the record discloses, there were periods during which Banker
and/or Galbraith seemingly had ample opportunity to discuss
with third-shift female employees whether or not one or more
of them were being subjected to inappropriate conduct by
Kelm. To the contrary, as discussed in the following subsec­
tion, there is some evidence that Galbraith found opportunity to
discuss Kelm with a female employee.
As to Stanton, no one contests that his access to employees is
restricted whenever those employees are on the Employer’s
premises—that he is not allowed to simply wander through the
Brainerd facility, talking to whomever he desires. But, it was
not necessary for him to do so on September 25 to seek addi­
tional information about the possibility of misconduct by Kelm.
In the first place, no one disputes that Hummel had remained
after the meeting with third-shift employees that morning.
Seemingly, nothing prevented Stanton from inquiring further
from Hummel about specifics of possible misconduct by Kelm:
names of purportedly harassed female employees, conduct in
which Kelm might have engaged, specific incidents of Kelm
engaging in such asserted harassment. But, neither Stanton nor
Banker did so. And neither one explained why no effort what-
soever had been made, during the September 25 conversation,
to elicit further information from Hummel.
Beyond that, the meeting with third-shift employees had
been the first of Respondent’s September 25 meetings with
employees on each of the Employer’s shifts. That first meeting
had begun at approximately 7:15 a.m. and, according to
Stanton’s own estimate, had lasted for approximately an hour to
an hour and a half. By the end of that meeting, presumably,
day shift employees had already begun their work. Not until
after 3 p.m. would Stanton be able to meet with them. To be
sure, he may have met with swing shift employees before they
began their shift at 3 p.m. Even so, however, he would seem­
ingly not be doing so until sometime between 1:30 and 3 p.m.
That time line is significant. For it shows that Stanton had
some time on his hands between the end of his first meeting,
with third-shift employees, and the beginning of his next meet­
ing with a shift of the Employer’s employees.
Respondent has not contended that it lacks addresses or, at
least, telephone numbers of employees it represented at the
Employer. It was conducting its meeting with those employees
at a motel, where presumably public telephones are available.
Seemingly, therefore, it had ample opportunity to attempt con­
tacting some third-shift female employees, between 9 a.m. and
1:30 p.m., by visit or phone call, concerning Kelm. In fact,
during that same period Stanton seemingly had an opportunity
to attempt to contact Kelm, to ascertain his position on any
accusation about his conduct involving female coworkers. But,
Stanton never did that.
In addition, Stanton returned to Brainerd on the following
day, for the labor-management meeting with the Employer.
Seemingly, on that morning another opportunity existed for him
to speak with Kelm and/or third-shift female employees—after
they completed their shift and were leaving work for the day.
Again, however, Stanton made no apparent effort to do so.
Other than his general assertion of no obligation to investigate
non-contractual misconduct, Stanton never advanced any ex-
planation for having foregone those opportunities to further
investigate, with Kelm and third-shift female employees, what
Hummel had said about Kelm during the morning of September
25.
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
D. Investigation and Clearance of Kelm
After hearing Respondent’s September 26 report, the Em­
ployer undertook an investigation of Kelm’s conduct. Kelm
learned about Respondent’s report during the day on September
27. He had telephoned then-Vice President Lorentz to discuss
vacation time that Kelm felt he was owed. During that tele­
phone conversation, Lorentz said that he had “a letter of inap­
propriate touching from the union.” Lorentz did not appear as a
witness, though there is neither evidence nor representation that
he was not available to testify. So, the record is devoid of ex-
planation for his remark to Kelm about “a letter . . . from the
union.” In any event, Kelm testified that he had told Lorentz,
“I did not touch anybody,” and “just hung up the phone,” after
Lorentz had replied, “Well, that’s what we have here.”
That same morning Anderson, who was assigned responsi­
bility for investigating possible misconduct by Kelm, spoke
with Third-Shift Supervisor Jerry Waters. Waters also did not
appear as a witness though, again, there is neither evidence nor
representation that he was not available to testify. Anderson
testified that she asked Waters “if he had heard of anything or
observed anything or had received any complaints and he said
that, no, to answer all those questions,” after which Anderson
told him “to be aware to be extra careful to watch what was
going on” during his shift. That was the extent of Anderson’s
testimony about her conversation with Waters during her inves­
tigation of Kelm’s conduct. But her notes, described in subsec­
tion C above, recite certain additional statements made by Wa­
ters.
“Jerry said the only circumstance involving Tim and any fe­
male was on Monday evening 9/25/00 Tim had walked up to
Teresa Morgan, nudged her with his arm and leaned into her,”
the notes recite. They continue, “Jerry told Tim to ‘Watch it
with the ladies’ and Tim asked why he was telling him that, and
Jerry replied ‘Because it’s my job.’” The notes regarding that
incident conclude, “Jerry told Sandy [Anderson] that Tim is
playful, and Teresa gives it right back.” Of course, that inci­
dent occurred after Hummel’s post-meeting remarks to Stanton
and Banker during the morning of September 25.
As mentioned in subsection B above, Morgan was one of
three third-shift female employees with whom Kelm had been
working during September. During early October she was
transferred to the position of floor coordinator. When she ap­
peared as a witness for Respondent, she gave some testimony
which was damaging to Kelm, as described below. Interest­
ingly, however, when testifying she made no mention whatso­
ever of the September 25 “nudg[ing]” incident referred to in
Anderson’s notes.
Kelm had been put on notice by Lorentz about Respondent’s
report to Anderson, as described above. When he reported for
work that night, for his scheduled 11 p.m. starting time, he
spoke about what had been said by Lorentz to both large ma-
chine operator Devona Schultz and bindery helper Katherine
Johnson. Schultz testified that, “when I came to work,” Kelm
had told her “that someone had accused him of inappropriate
touching.” Johnson testified that Kelm had “said that we
couldn’t do no more goofing off, fooling around, throwing glue
anymore,” and later had asked her “if he had ever touched me
inappropriately.” She further testified that she had replied in
the negative to him and, in turn, had asked why Kelm was ask­
ing that. According to Johnson, Kelm “then told me that some-
body had turned him in for doing that.”
By way of explanation, glue-ball tossing among Kelm and at
least two other third-shift employees appears to have been a
sometimes game to relieve job-monotony. “We all did,” testi­
fied Johnson, when asked if jokes were told and things were
thrown around during third shift. “Everybody on the third shift
did the same thing,” she reiterated. “Yes,” answered Schultz,
when asked if she had seen Kelm and others throwing glue
balls around. “A couple times,” testified Schultz, she had done
that herself. “It’s just to break the monotony because it does
get boring,” Kelm testified. Moreover, he testified, there had
been at least one occasion when a glue ball thrown at him had
landed in his shirt pocket. Conversely, he testified that there
had been at least one occasion when he threw a glue ball at
Johnson and it had landed in her T-shirt pocket, though he de­
nied having aimed it to land there. Apparently that occurrence
did not disturb Johnson. She made no mention whatsoever of it
when testifying.
As to other third-shift conduct, Schultz and Johnson each
testified that they exchanged jokes with Kelm. “We all did,”
testified Johnson, when asked if Kelm told jokes. Johnson
agreed that some of those jokes were a little off-color. Schultz
acknowledged that Kelm told jokes, but she did not agree—“I
don’t believe so”—that occasionally his jokes had some sexual
innuendoes. Interestingly, Hummel agreed that he had told the
Regional Office’s investigator that talk during breaks some-
times became “a little off color.” Yet, he added, “It does on the
day shift too now that I’m on it.” Moreover, he acknowledged
that such joking had been engaged in by both males and fe­
males.
In fact, Hummel never singled out Kelm as having engaged
in any specific conduct that Hummel, at least, considered to
have been inappropriate. Furthermore, Johnson and Schultz
each denied having ever been sexually harassed by Kelm, hav­
ing seen Kelm sexually harass any other third-shift female
worker and, finally, having ever seen Kelm sexually harass any
of the Employer’s female employees. Which leads to certain
above-mentioned testimony given by Teresa Morgan.
During cross-examination a series of clearly pointed ques­
tions were put to Kelm. He was asked if he had asked Morgan
to go have coffee or lunch with him. “Coffee—I asked every-
body on our shift goes out for coffee and I invite all of them”
he answered, but, “Lunch, no.” He was asked if he had invited
Morgan to a casino. “No,” he responded. “No,” he answered,
when asked if he remembered telling jokes with a sexual con-
notation around Morgan and others; “No, not that I recall.” He
was asked if any female at the Employer ever told him to quit
talking to her. “No,” he responded. “No,” he answered, when
asked if any woman had told him she did not like the way he
was talking to women. When called as a witness by Respon­
dent, Morgan gave testimony contradicting many of those deni­
als, though her testimony is hardly a model of reliability for a
conclusion that Kelm had sexually harassed Morgan or any
other female employee.
Asked during direct examination if Kelm had asked her for a
date, Morgan responded, “Well, yeah, going to the casino and
GRAPHIC COMMUNICATIONS LOCAL 1-M (BANG PRINTING) 671
going out for coffee, he would ask me to go.” Of course, at
least ordinarily, a mere request for a date, of itself, hardly rises
inherently to the level of sexual harassment. Morgan never did
describe with particularity what Kelm had assertedly said to her
about “going to the casino.” So, there is no basis for inferring
that he had done so in some sort of inappropriate manner.
During cross-examination she was asked if it were not true
that, as he had testified, Kelm would invite the whole shift for
coffee and, further, everybody had gone for coffee. “I don’t
know, I never went,” Morgan answered initially. Then she did
acknowledge that, “I heard them talking about going out, yah.”
Morgan never did testify about any occasion when Kelm had
asked her to go for coffee by themselves. So, there is no basis
for inferring any sexual harassment from Kelm’s inquiries to
Morgan about joining the shift for coffee after work.
She also testified that Kelm had thrown glue balls at her.
However, as described above, that was a somewhat common
recreation among at least some of the Employer’s third-shift
employees. “I mean, there was—I mean, there was a lot of
going—you know, and people—it was back and forth—” she
began to answer, before being cut off with another question.
Even so, with respect to glue-ball tossing, she earlier testified,
“I mean, there was a lot of glue. It was back and forth.” In
other words, Morgan appeared to be acknowledging that glue-
ball tossing was engaged in by employees other than Kelm, as
well as by Kelm. At no point did she attribute such activity
only to him. At no point did she testify that she had objected to
that game. At no point did she claim that she had regarded
glue-ball tossing as some sort of sexual harassment or as inap­
propriate conduct of a sexual nature.
What she did appear to be trying to portray as having consti­
tuted such conduct were incidents, first raised during her direct
examination, when “there had been times that he talked to me
and it was inappropriate and I had asked him not to talk to me
that way so we didn’t have a problem with it. I mean, it
stopped after that.” Asked later during direct examination what
comments Kelm had made to her, Morgan answered, “I don’t
really remember what some of them were, I mean, one time it
was about my ass in the jeans I had on that I—I mean, some of
the other ones I don’t remember.” When that subject was revis­
ited again during direct examination, Morgan testified, “I just
told him if he couldn’t carry on a normal conversation or what-
ever with me, that he didn’t need to talk to me,” but, once more,
“I can’t remember what was said or nothin’, I just—I just told
him if he couldn’t talk to me normal, don’t-—you know, don’t
talk to me at all.”
As an objective matter, it seems peculiar that someone would
remember her/his own response to assertedly offensive remarks
by someone else, but would not recall what those assertedly
offensive remarks had been. Yet, that was the position that
Morgan continued to assert during cross-examination. “It
wasn’t an argument, it was just something that he had said that
bothered me, and I said, ‘If you couldn’t talk to me in a human
way, then don’t talk to me at all,’” she claimed. “No, I don’t. I
don’t remember word for word what was said, no just that it
bothered me,” she next testified. Well, she next was asked, “it
wasn’t sexual, was it?” Morgan answered, “Well, it had some-
thing to do with something like that, but I don’t remember what
it was, whether it was, you know, ‘Let’s go out and do some-
thin’ or whether–I don’t remember.” She ended her testimony
regarding the substance of Kelm’s supposed remarks to her by
testifying, I’m just saying that—somethin’ that bothered me,
and I told him, you know, ‘If you can’t talk to me in a human or
normal conversation, don’t say anything.’”
In the final analysis, there is no firm basis based on Mor­
gan’s testimony for concluding that anything said by Kelm to
her can fairly be characterized as sexual harassment or, even, as
inappropriate in a sexual sense, as opposed to some sort of
argument between a male and female employee concerning
some subject never explained. Certainly, a conclusion of sex­
ual harassment or inappropriateness cannot be based upon a
showing of no more than “genuine but innocuous differences in
the ways men and women routinely interact with members of
the same sex and of the opposite sex.” Oncale v. Sundowner
Offshore Services, 523 U.S. 75, 81 (1998). Beyond what Mor­
gan’s testimony fails to establish, moreover, certain objective
factors further call into question the credibility of any testimony
by her about supposed inappropriate conduct by Kelm.
First, Morgan admitted that since October she had begun a
“dating” relationship with Shop Chair Galbraith. “A successful
showing of bias on the part of a witness would have a tendency
to make the facts to which he testified less probable . . . than it
would be without such testimony.” U. S. v. Abel, 469 U.S. 45,
51 (1984). “Bias is a term used in the ‘common law of evi­
dence’ to describe the relationship between a party and a wit­
ness which might lead the witness to slant, unconsciously or
otherwise, his testimony in favor or against a party,” the Court
explained, and “may be induced by a witness’ like, dislike or
fear of a party, or by the witness’ self-interest.” (Id. at 52.)
Galbraith is one of Respondent’s shop chairs at the Employer.
The fact that Morgan had begun dating him by the time of the
hearing, of itself, supplies some reason for her to, at least,
“slant” her testimony, so that it would favor Respondent’s in­
terests. And the second objective factor surely shows that her
testimony was slanted.
It is well-settled that prior statements of a witness which are
inconsistent with her testimony “suggest that [the witness] is
not a credible person.” U. S. v. Logan, 121 F.3d 1172, 1175
(8th Cir. 1997). During cross-examination Morgan was shown
a document that she had prepared and had given to Kelm, at his
request. She wrote, “I have worked with Tim Kelm on the 3rd
shift . . . and never had any kind of problems with him. We
have always worked as a team being very productive work
crew [&] being fun too [sic].”
It should be pointed out that cross-examining counsel never
afforded Morgan “an opportunity to explain or deny” those
statements which she had written, as should have been done
under Fed.R.Evid. Rule 613(b). On the other hand, opposing
counsel, who had called Morgan as a witness, never objected to
any aspect of cross-examination regarding the statements that
Morgan had earlier written nor, more importantly, to receipt
into evidence of that written document. During redirect exami­
nation, moreover, Morgan was examined concerning the cir­
cumstances under which she had prepared the document for
Kelm. During that redirect examination Morgan never denied
the truth of those written statements about Kelm. And, as will
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
be seen, the document was not the sole evidence of earlier
statements by Morgan denying that she had ever “seen or wit­
nessed or heard of any improper behavior at all,” as Anderson
put it, by Kelm.
Before leaving for home after third shift ended on September
28, Schultz and Johnson approached Lorentz. “Tim had asked
if I could go and talk to Jim and tell him my side of what went
on,” testified Johnson. So, she told Lorentz “that nothing had
happened, that we get along great,” she testified. Apparently
Schultz needed no request that she speak with Lorentz. For she
testified that she went to Lorentz when he “came in at 7
o’clock,” telling him “that I had heard what—that Tim had
been accused of inappropriate touching and that there was no
reason—I had never witnessed anything like that and I was
worried about him losing his job.” Later that day, according to
Anderson, Lorentz told her about those remarks and “told me
that I should speak with” those female third-shift employees.
She testified that she did that the following morning.
During those individual interviews, Anderson testified, “each
of them denied that anything like” coercion into stepping for-
ward to Lorentz had occurred, denied having any reason for not
doing so willingly, and denied having seen or witnessed or
heard of any improper behavior that “had taken place” involv­
ing Kelm. Morgan did not dispute that testimony to the extent
that those denials pertained to her. Asked if she had related,
during the interview with Anderson, a conversation when she
assertedly had asked Kelm to cease bothering her, Morgan
answered generally and vaguely, “Yah, I told them I—you
know, and I took care of it myself, and I didn’t need”—until cut
off by the examiner. But, no such statements are recited in
Anderson’s notes, as ones made by Morgan during Anderson’s
interview with her. There is no basis in the record for conclud­
ing that, had Morgan made such statements, Anderson had any
reason for omitting what Morgan would have said.
Johnson corroborated Anderson’s testimony and notes con­
cerning what had been said during the former’s interview. She
testified that she had said “the same thing I had told Jim [Lor­
entz], that nothing had ever happened and that we get along
good and some people just didn’t like to see us getting along so
good.” In like vein, Schultz testified, “I told Sandy that I
wanted her to know that I had never seen anything like this and
that I was worried about Tim losing his job and that from the
other girls that I had talked to they also said they didn’t know
where this came from.”
Then, Anderson turned to interviewing Hummel. In her
notes she recites that Hummel had said, “there were conversa­
tions during lunch between Tim and the women which Bob
[Hummel] feels is objectionable,” but that Hummel “wouldn’t
quote specific conversations, or say when he heard it.” Ander­
son testified that when, during the interview, “we asked him
what he had seen or what he had witnessed,” Hummel became
“real reluctant but he said that he . . . overheard some conversa­
tion at the picnic table that he thought was objectionable,” or
“that during their break at the picnic table there was conversa­
tion between Tim Kelm and the women on third shift that he
thought was objectionable.” However, when she “asked him
what exactly was said . . . he wouldn’t tell me. He refused to
say,” she continued. Anderson reiterated that, “He was real
vague. He didn’t say exactly when it was. He wouldn’t say
what exactly was said.”
Hummel never disputed any aspect of Anderson’s above-
quoted testimony and the substance of her notes about what he
had said during the investigative interview. “The company
called us in,” he testified, “and they asked if I had made a
charge against [Kelm] for sexual harassment and I told them
‘no.’” “I was surprised” at being contacted, he asserted, “be-
cause I didn’t think there was any merit to it.”
During cross-examination an effort was made to extract from
Hummel precisely what he had said to Anderson. Asked if he
had told anybody from the Employer about lunchtime conver­
sations between Kelm and women on his shift, Hummel re­
sponded, “Only in the meeting that Jim Lorentz and Sandy
called. They called me to ask about the meeting.” Asked what
he had told Lorentz and Anderson, Hummel answered, “The
same thing I said here.” Hummel was then asked, did that
mean that he had related lunch period conversations that he
thought might be inappropriate. “Well, whether I think it’s
inappropriate or not, doesn’t make any difference,” he re­
sponded, “it’s up to the person that thinks it is under sexual
harassment if a girl wants to complain about it then it’s up to
her to complain if she thinks it’s—if the person says to stop and
if they don’t stop then that’s sexual harassment in my eyes.” It
should not be overlooked that this testimony by Hummel has
some similarity to what he testified he had said to Stanton and
Banker on September 25: that “if a girl wants to complain . . .
then it’s up to her to complain.” At no point did Hummel claim
that he had described to Anderson and Lorentz any specific
female employee who had been subjected to sexual harassment
by Kelm on any particular occasion.
Having completed her investigation, Anderson testified that
“the only allegations that we had received or that we had re­
ceived word of were from Bob Hummel and those were so
vague and they were—we couldn’t substantiate anything.” So,
she testified, “we felt that nothing had taken place and no disci­
plinary actions were taken.” Asked her opinion of what would
have been the result had those allegations been substantiated,
Anderson answered, “Depending upon the severity, but quite
possibly Tim would have been dismissed immediately. That
would be my guess.” She was not alone in harboring that opin­
ion.
As pointed out at the beginning of subsection C above,
Banker testified that, in light of Kelm’s 1997–1998 experience,
Banker had heard “the rumor . . . that [Kelm] would be released
for that kind of behavior,” after Kelm’s rehire. Apparently
Stanton also would have realized that Kelm would be fired for
repetition of sexual harassment. For, he acknowledged that by
September he had known “what had been shared at the shop,
which would be rumor” concerning the earlier accusation
against Kelm and his resultant resignation. Stanton also ac­
knowledged knowing that by the time that Kelm had been re-
hired, sexual harassment had become a heightened issue: “That
is true.”
Two other events arose in connection with the Employer’s
investigation of Respondent’s September 26 report about Kelm.
First, as described in subsection C above, Stanton portrayed
Respondent’s quite limited ability to have investigated any
GRAPHIC COMMUNICATIONS LOCAL 1-M (BANG PRINTING) 673
misconduct by Kelm on the Employer’s premises. Both
Stanton and Banker testified that shop chairs were not permit­
ted to engage in union business “on the clock on the premises,”
as Stanton put it. All else aside, however, their explanation
becomes somewhat difficult to fully credit in light of an inci­
dent recounted in Anderson’s notes: “Wednesday afternoon
9/27/00 [Shop Chair] David Galbraith approached Carole Krak­
lau, and asked her about a previous incident with Tim Kelm.
(There had been an investigation of harassment in January of
1998, where Tim had allegedly been harassing Carole.)” Un­
able to locate Lorentz, Kraklau complained to Bindery Manager
Todd Stordahl that “some press guy was grilling her,” the notes
continue, and that she wanted “nothing to do with this circus,”
after which a “very upset” Kraklau was excused from work for
the remainder of that day.
Second, Hummel acknowledged that he “came to Kelm” af­
ter his investigative interview, and “just basically apologized to
him for the statement that I made at the union meeting because
it wasn’t intended to get him in trouble or anything like that. It
wasn’t a charge against him for sexual harassment and I just
never meant it to go that far.” Asked to further recite what he
had said to Kelm, Hummel testified, “That I had said that
somebody had said that he had been fired before for sexual
harassment and that I had brought up the subject that if one of
the girls wanted to complain that they could and I was sorry for
saying that . . . because . . . there wasn’t really any merit to it.”
Hummel’s above-quoted testimony at least tends to show
that he had made his September 25 statements with some reali­
zation that Kelm might suffer some employment disadvantage,
were his statements to be repeated to the Employer. That be-
comes even more apparent from Kelm’s testimony about
Hummel’s apology —testimony that Hummel never disputed.
Kelm testified that Hummel “did not relate . . . to me” what he
had told Banker on September 25. But, according to Kelm,
Hummel did say “that he was approached after the union”
meeting on that date by “Dean Stanton and Tony Banker” and
that they “asked how to get rid of Tim Kelm and he said he just
told them that if you get him on sexual harassment like you did
before then—go do it.” Throughout cross-examination, Kelm
held firm in that testimony that Hummel had said “the union
had asked me how to get rid of you”; “get him on sexual har­
assment”; and, “how to get rid of me.”
I. DISCUSSION
According to the General Counsel’s argument, Respondent’s
September 26 report to the Employer had been made because of
Kelm’s dissident—“refrain from,” within the meaning of Sec­
tion 7 of the Act—expressions during the September 25 morn­
ing meeting. Furthermore, Respondent had made that Septem­
ber 26 report with the understanding that it would lead the Em­
ployer to investigate Kelm’s conduct and, should some female
employee choose to complain about him, Kelm would be disci­
plined, even discharged, thereby eliminating one of the dissi­
dent employees from the bargaining unit. In the process, that
would demonstrate to other dissident, and potential dissident,
employees that Respondent was not reluctant to attempt to ad­
versely affect their job opportunities should they engage in or
continue to engage in statutorily protected “refrain from” ac­
tivities. In the final analysis, that argument rests on three well-
settled premises under the Act.
First, labor organizations have “a statutory obligation to
serve the interests of all members without hostility or discrimi­
nation toward any, to exercise [their] discretion with complete
good faith and honesty, and to avoid arbitrary conduct.” (Cita­
tion omitted.) Vaca v. Sipes, 386 U.S. 171, 177 (1967).
Second, there is a “wall erected by the Act between organ­
izational rights and job opportunities.” Lummus Co. v. NLRB,
339 F.2d 728, 734 (D.C. Cir. 1964). “Integral to the policy
underlying Section 8(b)(1)(A) and (2) of the Act is the intent to
separate membership obligations owed by employees to their
bargaining representatives from the employment rights of those
employees.” (Footnoted citations omitted.) Electrical Workers
IBEW Local 1547 (Rogers Electric), 245 NLRB 716, 717–718
(1979). Thus, for example, whenever a labor organization’s
“action, directed to an employer was intended . . . to encourage
individuals to accept the authority of union officers,” id., that
action crosses over the above-mentioned “wall” that the Act has
erected to “separate membership obligations” from “employ­
ment rights of employees.” So central to the statutory prohibi­
tion is that separation that whenever a labor organization
“causes the discharge of an employee, there is a rebuttable pre­
sumption that [the labor organization] acted unlawfully because
by such conduct [it] demonstrates its power to affect the em­
ployees’ livelihood in so dramatic a way as to encourage union
membership among the employees.” (Citation omitted.) Oper­
ating Engineers Local 478 (Stone & Webster), 271 NLRB
1382, fn. 2 (1984).
It is from those two premises that the General Counsel ad­
vances the argument that Respondent acted discriminatorily in
making the September 26 report to the Employer and, in doing
so, it clearly understood that the Employer would make an in­
vestigation that, depending upon whether some female em­
ployee was willing to accuse Kelm of harassment, could cause
Kelm to be discharged. Not so, counters Respondent. In initi­
ating the September 26 report, it urges, Stanton had been moti­
vated by nothing other than genuine concern with at least the
possibility of inappropriate conduct by Kelm toward female
employees.
No question that, read literally, Sections 8(b)(2) and 8(a)(3)
of the Act specify only, in essence, failure to satisfy union secu­
rity obligations as a basis for allowing labor organizations to
lawfully cause or attempt to cause an employer to discharge an
employee. That, of course, is not the situation presented here.
Even so, under the Act a labor organization can engage in statu­
tory “cause or attempt to cause” conduct “not only when the
interference with employment was pursuant to a valid union-
security clause but also in instances where the facts show that
the union action was necessary to the effective performance of
its function of representing its constituency.” Operating Engi­
neers Local 18, supra.
True, ordinarily that “necessary to the effective perform­
ance” qualification or limitation, to the basic statutory prohibi­
tion, arises in hiring hall settings. See, e.g., Stage Employees
IATSE Local 720 (AVW Audio Visual), supra. Clearly, how-
ever, its application is not confined to hiring hall settings. It
also is applicable in other contexts arising under Section
674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8(b)(1)(A) and (2) of the Act. For example, the Board held in
Millwrights Local 1102 (Planet Corp.), 144 NLRB 798, 800–
801 (1963), that the limitation or qualification encompassed a
discharge demand based on the, in effect, conspiracy between
an alleged discriminatee-employee and his employer to violate
provisions of a collective-bargaining contract between that
employer and the respondent. Such a discharge demand
“would not have had the effect of preferring union members
over nonmembers, or one class of union members over an-
other,” the Board pointed out, because the contractual “provi­
sion was clearly for the benefit of employees generally,” and
noncompliance with it could “properly” be viewed “as under-
mining an important element of its negotiated” contract provi­
sions.
In like vein, demand that an employee be discharged for
“embezzlement of a substantial amount of union funds” was
held not to violate the Act in Philadelphia Typographical Un­
ion 2 (Triangle Publications), 189 NLRB 829 (1971). In reach­
ing that conclusion, the Board pointed out that the embezzle­
ment was “so inconsistent with ordinary concepts of honesty as
to dispel any notion that the Union’s interference might be
construed as having a foreseeable consequence of encouraging
union membership.” (Id. at 830.)
The foundation issue here, therefore, is the actual motivation
of Respondent—specifically, Stanton—for initiating a report
about Kelm to the Employer on September 26. For, the third of
the above-mentioned well-settled principles is that it is “the
‘true purpose’ or ‘real motive’ behind the actions of,” Lummus
Co. v. NLRB, supra, a labor organization which determines
whether its demands were actually motivated by “purely per­
sonal or arbitrary reasons,” Fruin-Colnon Corp. v. NLRB, 571
F.2d 1017, 1023 (8th Cir. 1978), or, instead, were “necessary to
the effective performance of its function of representing its
constituency.” Operating Engineers Local 18, supra.
It would be difficult to argue that the “effective perform­
ance” qualification or limitation does not encompass reports to
an employer by a labor organization of one bargaining unit
member’s sexual harassment of another bargaining unit mem­
ber or members. “Sexual harassment which creates a hostile or
offensive environment for members of one sex is every bit the
artificial barrier to sexual equality at the workplace that racial
harassment is to racial equality.” Henson v. Dundee, 682 F.2d
897, 902 (11th Cir. 1982), quoted with approval Meritor Sav­
ings Bank, FSB v. Vinson, 477 U.S. 57, 66–67 (1986). Primary
and most immediate and effective ability to prevent sexual
harassment at workplaces lies with employers who control
those workplaces. See, e.g., Faragher v. City of Boca Raton,
524 U.S. 775 (1998). So, it can hardly be contended, at least in
the abstract, that labor organizations act for other than “the
benefit of employees generally,” Operating Engineers Local
478 (Stone & Webster), supra, whenever reporting to employers
sexual harassment of bargaining unit members, even when the
perpetrator of such misconduct is another bargaining unit em­
ployee.
Even so, “the Board must evaluate the union’s conduct not in
the abstract, but in terms . . . of its ‘true purpose’ or ‘real mo­
tive.’” Millwrights Local 1102 (Planet Corp.), supra, at 800.
The unfortunate fact is that it is not unprecedented under the
Act for a party to utilize protected-class status as, in effect, a
pawn to try disguising motivation actually unlawful or, at least,
aimed at accomplishing objectives elsewhere. For example, a
charging party-employee attempted to cloak as statutorily pro­
tected activity what turned out to be false accusations about
supposed derogatory racial and sexual-orientation remarks by a
respondent’s executive board members. That employee’s true
objective for doing so had been aimed actually at either “pun­
ishing the executive board for not having rescinded her suspen­
sion or . . . to compel [the] executive board to bend to her
wishes” regarding a termination grievance. Communication
Workers Local 6360, 268 NLRB 812, 820 (1984). In Handi­
cabs, Inc., 318 NLRB 890 (1995), enfd. 95 F.3d 681 (8th Cir.
1996), cert. denied 521 U.S. 1118 (1997), a respondent-
employer attempted to justify its unfair labor practices by ad­
vancing as a defense the plight of the handicapped and dis­
abled. Most significant to the situation presented in the instant
case, a respondent-union reported to an employer supposed
racial slurs by a dissident-employee as a vehicle for attempting
to have that employee “suffer discipline from the employer,
discipline which would have affected his job security or tenure
and discouraged him from engaging in protected activities,”
Paperworkers Local 1048 (Jefferson Smurfit Corp.), 323
NLRB 1042, 1044 (1997).
Consequently, the foundation issue here is whether Re­
spondent’s “true purpose” or “real motive,” in making the
September 26 report to Anderson, had been genuine belief
that Kelm might be engaging in inappropriate conduct toward
female coworkers or, rather, had been motivated not by such a
genuine belief, but had been no more than a vehicle for possi­
bly causing Kelm to “suffer discipline” for having engaged in
activity protected by Section 7 of the Act, thereby “dis­
courag[ing] him [and other dissident, or potentially dissident,
employees] from engaging in” activity protected by the Act.
If the latter, then Respondent’s September 26 report had con­
stituted an effort to restrain and coerce employees from en-
gaging in “refrain from” activity protected by Section 7 of the
Act and, also, to attempt to cause an employee to be dis­
charged.
Even as an objective matter, it is difficult to conclude that,
based on his own testimony about the scant and indefinite
information stated by Hummel on September 25, Stanton
could have genuinely believed that Kelm might have engaged
in improprieties toward female coworkers. As set forth in
section I,B, supra, Stanton testified that he had been told only
that Hummel “felt that Tim Kelm was beginning to have in-
appropriate . . . interactions . . . toward female coworkers,”
and had been making “inappropriate sexual comments” or, at
least, “[i]nappropriate comments” to female employees. That
is all the information that Stanton testified had been made
available to him. Thus, it had been only such scant and in-
definite information that, according to Stanton, had motivated
him to make his report to Anderson on the following day.
Comments so vague are surely slender reeds for a labor or­
ganization to rely on in later asserting that it acted in “com­
plete good faith and honesty,” Vaca v. Sipes, supra, when
reporting an employee for misconduct to his employer. All
else aside, no one disputes that Hummel had been present
GRAPHIC COMMUNICATIONS LOCAL 1-M (BANG PRINTING) 675
when Stanton testified to having been given the above-quoted
information. Yet, there is no evidence whatsoever that
Stanton had made the least effort to learn from Hummel what
specific “interactions” and “comments” had been occurring.
Instead, so far as the evidence shows, Stanton had simply
seized on those vague and unparticularized statements by
Hummel and, during the following day, reported to the Em­
ployer “that [a] coworker had said that he believed that Tim
Kelm was acting inappropriately toward female coworkers.”
The fact is that even that testimony by Stanton was not cor­
roborated by Hummel, the source of the adverse September
25 remarks about Kelm. As set forth in section I,B, supra,
Hummel testified that, during a post-meeting conversation
that day about Kelm “not [being] for” Respondent during the
meeting, “somebody stated that Tim had been fired once be-
fore for sexual harassment,” and it had been that statement
which had led him to volunteer “that if one of the girls on the
third shift wanted to complain about that . . . they probably
could.” Note that Hummel did not testify that there actually
was a female employee who had a complaint about Kelm’s
conduct. Nor did he testify that any female actually would
complain about Kelm. He stated no more than that a female
employee might want to complain about Kelm. Moreover,
based on Hummel’s testimony there is a direct connection
from discussion of Kelm’s statutorily protected “refrain from”
activities and expressions, to discussion of Kelm’s past sexual
harassment consequences and, then, to an expression of pos­
sibility that some female employees might want to, in effect,
again complain about Kelm. “The inference of a cause-and-
effect relationship . . . is a strong one.” NLRB v. Adams De-
livery Service, 623 F.2d 96, 99 (9th Cir. 1980). That is, that
the possibility of complaint about Kelm was being considered
directly because of his expressions of dissatisfaction with
continuing to support Respondent as the bargaining
representative of the Employer’s employees.
That connection is shown even more graphically by
Hummel’s later undisputed remark to Kelm, during the apol­
ogy conversation described in section I,D, supra. At that
time, Hummel stated that Stanton and Banker had “asked how
to get rid of Tim Kelm and [Hummel] . . . just told them that
if you get him on sexual harassment like you did before
then—go do it.” Regardless of the validity of Hummel’s
opinion of 1997–1998 events, his undisputed remark to Kelm
shows that attributing inappropriate conduct toward females
by Kelm, on September 25, had been raised directly in re­
sponse to a conversation about “how to get rid of Tim Kelm,”
because of the latter’s statutorily-protected “refrain from”
activities and expressions.
While testifying Hummel appeared somewhat akin to a
deer caught in the headlights. He did not seem opposed to
Respondent, nor to continued representation by it. On the
other hand, he did not seem to harbor any hostility toward
Kelm. He had made a seemingly spontaneous remark on
September 25 to Stanton and Banker and, it turned out, that
remark had been utilized as a springboard for Respondent’s
report to the Employer that led to trouble for Kelm—to an
investigation that could have led to Kelm’s discharge. In
consequence, when testifying, Hummel found himself caught
between opposing forces, neither of which he opposed—
found himself caught between crossing the road to one side or
returning to the other side. However, unlike Morgan,
Hummel did not appear disposed to tailor his testimony to the
disadvantage of either side. Instead, he sometimes resorted to
vague and unparticularized testimony. Other times he ap­
peared to retreat into pleas of lack of recollection. When he
did provide concrete accounts, Hummel appeared to be testi­
fying candidly and, further, that testimony found support for
the most part in other, more objective, evidence. I credit
Hummel’s accounts of a direct “cause-and-effect relation-
ship,” id., between September 25 conversation about dissatis­
faction with Kelm’s “not [being] for” Respondent and a pos­
sibility that some female employee might again complain
about Kelm’s misconduct toward her—a complaint that, Re­
spondent realized, would likely cause Kelm to be fired,
thereby removing him and his dissidence from the bargaining
unit at the Employer.
In addition to Hummel’s testimony, Stanton’s credibility was
not aided by the conflicts between his testimony and that of
other witnesses, as described in sections I,B, and C, supra.
Moreover, there are certain objective factors present which
reinforce a conclusion that, rather than being motivated by any
genuine concern about improprieties by Kelm toward female
employees, Respondent’s true motive for reporting him to the
Employer on September 26 had been retaliation for Kelm’s
antiunion expressions during the September 25 meeting with
third-shift employees, and the potential for subsequent opposi­
tion to Respondent should a decertification election eventuate.
First, during the September 25 third-shift meeting Kelm had
been one of the employees—the most vocal one, according to
Shop Chair Galbraith—who voiced dissatisfaction with Re­
spondent’s representation and, Stanton admitted, who ex-
pressed the view that continued representation by Respondent
“wasn’t necessary.” To the extent that those remarks expressed
desire to “refrain from” continuing to assist Respondent, and
continuing to bargain with the Employer through Respondent,
they are remarks protected by Section 7 of the Act.
When evaluating employer-motivation under Section 8(a)(3)
of the Act, the fact that an alleged discriminatee has been a
union activist is one indicium for inferring unlawful motivation.
See Handicabs, Inc., supra, at 897, and cases cited therein.
There seems no logical reason for not applying that same ana­
lytical indicium to statutorily protected “refrain from” activi­
ties, when evaluation motivation by labor organizations.
True, Kelm was not the lone third-shift employee who
voiced “refrain from” sentiments during the September 25
meeting with those employees. But he was the most vocal of
those employees, according to Galbraith. In any event, as is
true when evaluating employer-motivation, id. at 897–898,
unlawful motivation is not somehow disproved by the fact that
a respondent did not retaliate against each and every employee
engaging in statutorily protected activities. To the contrary,
selection of even a single one of them for retaliation serves the
objective of creating an example of what can befall other em­
ployees, should they engage or continue engaging in similar
statutorily-protected activities, NLRB v. Shedd-Brown Mfg. Co.,
213 F.2d 163, 175 (7th Cir. 1954), thereby creating “an in ter-
676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
rorem effect,” Rust Engineering Co. v. NLRB, 445 F.2d 172,
174 (6th Cir. 1971), on others who harbor, or might come to
harbor, “refrain from” attitudes. Indeed, by using Kelm as an
example of what could befall a dissident, Respondent could
effectively try to quell dissident-sentiment which could lead to
filing of a petition to decertify it as the bargaining agent of the
Employer’s production and maintenance employees, thereby
“so extinguish[ing] seeds [of opposition to its continued repre­
sentation that] it would have no need to uproot sprouts,” Ethan
Allan, Inc. v. NLRB, 513 F.2d 706, 708 (1st Cir. 1975), during a
decertification election campaign.
A second, most compelling, indicium of unlawful motivation
is timing. Kelm objected to continuing support for Respondent,
and to its continued representation of the Employer’s employ­
ees, during a meeting on September 25. The report to Ander­
son about Kelm supposedly “acting inappropriately toward
female coworkers” was made on the very next day. Such
“stunningly obvious timing,” NLRB v. Rubin, 424 F.2d 748,
750 (2d Cir. 1970), “render[s] the motive suspect,” NLRB v.
J.W. Mortell Co., 440 F.2d 455, 457 (7th Cir. 1971), and
“vulnerable,” NLRB v. Dee’s of New Jersey, 395 F.2d 112, 115
fn. 4 (3d Cir. 1968). See also NLRB v. Council Mfg. Co., 334
F.2d 161, 164 (8th Cir. 1984).
Respondent seeks to rebut any such inference based on tim­
ing—indeed, to attempt to turn it on its head—through
Stanton’s testimony, described in section I.C., supra, that there
would have been no labor-management meeting after Septem­
ber 26 for 3months, until December. Thus, proceeds its argu­
ment, Stanton would have had to wait 3 months to report any
improprieties by Kelm. Any such must-do-it-now-or-wait-for-
3-months argument, however, founders in the face of certain
other evidence. As also set forth in section I,C, supra, Ander­
son testified that Stanton could always have telephoned her
with information. In fact, Respondent had contacted the Em­
ployer about employees who became delinquent in their dues,
she further testified. Neither Stanton, in particular, nor Re­
spondent, in general, challenged any aspect of that testimony.
Indeed, at no point did Respondent explain why it could not
have, first, investigated further what Hummel said on Septem­
ber 25, assuming that it genuinely lent some credence to what
Hummel was saying, and, then, telephoned Anderson to arrange
a meeting to discuss any specific and concrete information
about Kelm. As it turns out, the fact that Stanton advanced so
inherently unreliable an explanation, for having chosen to re-
port Kelm on September 26, serves to further undermine reli­
ability that might be accorded to his testimony.
That latter point leads to consideration of a third indicium of
unlawful motivation: Respondent made no effort whatsoever to
“engage in any independent investigation of” Handicabs, Inc. v.
NLRB, 95 F.3d 681, 685 (8th Cir. 1996), cert. denied 521 U.S.
1118 (1997), what Hummel had said on September 25. Related
to that indicium is a fourth one: Respondent made no effort,
before reporting to the Employer, to contact Kelm and afford
him an opportunity to explain his side of the suggestion made
by Hummel. Failure to at least do that “shows that Respondent
was not truly interested in whether misconduct actually had
occurred.” (Citations omitted.) Handicabs, Inc., supra, 318
NLRB at 897.
As described in section I,C, supra, Respondent attempts to
explain away its failure to conduct any investigation, before
having reported Kelm to the Employer on September 26, by
arguing that Stanton has virtually no access to bargaining unit
employees while they are on the Employer’s premises and,
further, that shop chairs are not allowed to conduct union busi­
ness during worktime. The evidence underlying those argu­
ments is not disputed. But, that evidence does not supply a
reason for Stanton’s above-mentioned failure to have ques­
tioned Hummel further after the September 25 third-shift meet­
ing, to try ascertaining if there was any concrete basis for a
conclusion that Kelm might have been engaging in appropriate
actions toward female employees.
Furthermore, as pointed out in section I,C, supra, after con­
cluding his morning meeting with third-shift employees,
Stanton seemingly had some time on his hands until being able
to meet with the next shift of the Employer’s employees.
Surely it was possible, during that hiatus, for him to have made
some effort to at least try to telephone one or more of the third-
shift female employees, in an effort to ascertain if any of them
believed she had been harassed inappropriately by Kelm. For
that matter, surely it was possible for Stanton to have at least
tried to telephone Kelm during that period, to ascertain whether
he denied, or at least could explain, any conceivably inappro­
priate conduct toward one or more third-shift female employ­
ees. Taking the matter one step further, Stanton was in
Brainerd on September 26, to participate in the labor-
management meeting. No evidence explains why, on that day,
he had not first gone to the perimeter of the Employer’s prem­
ises and, there, made an effort to speak with Kelm and third-
shift female employees, as they left work, about any supposed
improprieties toward female employees by Kelm. Beyond that,
of course, shop chairs seemingly had access to those employees
during breaks, lunch, and, as well, before and after work.
In sum, Stanton’s limited access to the Employer’s premises
and restrictions on shop chairs while working do not truly sup-
port an argument that Respondent lacked opportunity to inves­
tigate Kelm’s conduct, and to afford him an opportunity to deny
or explain his conduct, before rushing to report Kelm to the
Employer. But Respondent has another string to its bow of
defense for failure to conduct any investigation: that it had no
obligation to conduct any investigation.
Well, neither has Respondent shown that it is obligated to
report infractions of the Employer’s sexual harassment policy.
The fact is that, whenever a labor organization undertakes to
report a work-rule infraction by an employee whom it repre­
sents, it creates an inherent conflict in its position: that of ac­
cuser and of representative during any subsequent grievance
proceeding arising from action an employer may take against
that employee. See, e.g., Tenorio v. NLRB, 680 F.2d 598 (9th
Cir. 1982). Certainly, as pointed out above, labor organizations
are allowed to do so under the Act for “effective performance
of [their] function of representing [their] constituenc[ies].”
Operating Engineers Local 18, supra. But, given the “wall
erected by the Act between organizational rights and job oppor­
tunities,” Lummus Co. v. NLRB, supra, and given their obliga­
tion to deal with employees they represent “with complete good
faith and honesty, and to avoid arbitrary conduct,” Vaca v.
GRAPHIC COMMUNICATIONS LOCAL 1-M (BANG PRINTING) 677
Sipes, supra, that inherent conflict gives rise to a statutory obli­
gation that labor organizations conduct some investigation be-
fore putting an employee’s job at jeopardy through factually
baseless accusations to an employer.
A contrary conclusion allows labor organizations to take ac­
tion that, at the very least, is fairly characterized as being arbi­
trary—“so far outside a ‘wide range of reasonableness,’ Ford
Motor Co. v. Huffman, 345 U.S. 330, 338 (1953), as to be irra­
tional.” Air Line Pilots v. O’Neill, 499 U.S. 65, 67 (1991),
quoted in Stage Employees IATSE Local 720 (AVW Audio Vis­
ual), supra. Not only could such a report lead an employer to
take action that adversely affects the reported employee’s job,
but it leaves the labor organization in the inherently conflicting
position of having to represent in ensuing disputes resolution
proceedings the very employee whom, though its report to the
employer, it caused to be disciplined.
In any event, there is no credible evidence supporting Re­
spondent’s contention that it had genuinely believed that Kelm
had engaged in improprieties toward female coworkers, when it
made the September 26 report to the Employer. Instead, as
reviewed above, a preponderance of the credible evidence es­
tablishes that the “true purpose” or “real motive” for that report
had been an intention to retaliate against an employee for en-
gaging in “refrain from” activities and expressions protected by
Section 7 of the Act. In short, Respondent’s “true purpose” or
“real motive” had been a discriminatory one. From that foun­
dational conclusion, certain consequences flow under the Act.
Based on the evidence reviewed in section I,D, supra, in fact
there is no credible basis for concluding that Kelm had engaged
in any improprieties toward female employees. To be sure,
there had been horseplay among, at least, some of the Em­
ployer’s third-shift employees. But, there is no evidence that it
rose to the level of harassment, nor even impropriety, given
“genuine but innocuous differences in the ways men and
women routinely interact with members of the same sex and of
the opposite sex,” Oncala v. Sundowner Offshore Services,
supra, in their workplaces. That is the best that the evidence
shows had been occurring during the Employer’s third shift
prior to September 25.
Kelm obviously was aware that that was the situation as of
that date: that he had not, in fact, been engaging in any sexual
harassment of, nor improprieties toward, his female coworkers.
So, too, were third-shift female employees aware that they had
not been targets of sexual harassment or improprieties by Kelm.
In addition, those third-shift employees, including Kelm, knew
that Kelm had voiced dissident remarks during Respondent’s
meeting with third-shift employees on September 25. More-
over, they became aware that it had been Respondent who had
taken the action which had led the Employer to investigate
Kelm’s conduct. As an objective matter in the totality of those
circumstances, employees would naturally conclude that there
was a cause-and-effect relation between Kelm’s dissident re-
marks during the September 25 meeting and Respondent’s
baseless report to the Employer which led the latter to initiate
an investigation of conduct by Kelm in which he had never
engaged.
That investigation could have adversely affected Kelm’s em­
ployment opportunities. The fact that it had been initiated by
Respondent’s report, accordingly, had a natural tendency to
serve as a warning to employees about what could happen to
them, should they choose to speak out against Respondent, or
take action which could terminate its continued representation
of the Employer’s production and maintenance employees.
Therefore, Respondent’s conduct had a natural tendency to
restrain and coerce employees in the exercise of statutorily
protected “refrain from” activities, and violated Section
8(b)(1)(A) of the Act.
Respondent attempts to escape that conclusion by arguing
that its agents did not publicize what was reported to Anderson
on September 26—never told any employee that it had made
such a report to her. That is accurate. But it does not salvage
Respondent’s situation. “As long as the employees had actual
knowledge of the Respondent’s illegal [conduct], it is irrelevant
whether they learned of the Respondent’s action directly from
the Respondent’s agent or from another source.” Graphic
Communications Local 458 (Noral Color), 300 NLRB 7, 11 fn.
13 (1990). And in the final analysis it should have seemed
foreseeable to Respondent that employees would learn that it
had been the source of that report.
Stanton admittedly knew that the Employer would be
conducting an investigation based upon his report to Anderson.
It was foreseeable that at least some employees would question
why they were being asked about Kelm’s conduct. Surely,
Kelm would be questioning the cause of the investigation,
given that he had to defend his own conduct against, at least,
the implication of improprieties toward female coworkers. It is
long settled “a man is held to intend the foreseeable conse­
quences of his conduct.” Radio Officers v. NLRB, 347 U.S. 17,
45 (1954). Therefore, Respondent is not somehow absolved of
its violation of Section 8(b)(1)(A) simply because its agents did
not publicize the fact that it had made the report which had led
the Employer to investigate Kelm.
Turning, secondly, to the alleged violation of Section 8(b)(2)
of the Act, it should be emphasized that that statutory provision
does not simply prohibit conduct rising to the level of “cause.”
It also prohibits labor organizations from “attempt[ing] to
cause.”
Respondent could fairly foresee that some consequence
would occur as a result of its September 26 report to Anderson.
Indeed, Stanton effectively conceded that he anticipated that an
investigation by the Employer would be the result of that re-
port. As concluded above, Respondent has not credibly shown
that Stanton genuinely believed that Kelm may have engaged in
sexual harassment and improprieties toward female coworkers.
Rather, a preponderance of the credible evidence shows that he
made that report in retaliation for Kelm’s statutorily protected
“refrain from” activities. Yet, had some female employee
falsely complained about Kelm during that investigation, as
Morgan appeared to be attempting to do when appearing as a
witness, then all knew that Kelm would have likely been dis­
charged. In fact, there is a strong suspicion that that had been
what Galbraith had been attempting to accomplish through his
conversation with Carole Kraklau, discussed in section I,D,
supra. After all, Kraklau had not been involved with Kelm
during 2000, so far as the evidence shows, but she had been the
one who had complained about him almost 3 years earlier.
678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In any event, the Act prohibits both causing and, separately,
attempting to cause employer-discrimination. It does not re-
strict the unfair labor practice which it prohibits to successful
action by labor organizations. By making the September 26
report for unlawful reasons, Respondent obviously anticipated
that the ensuing investigation might unearth some information
that would lead the Employer to fire Kelm. That expectation,
based on an unlawfully motivated report, is sufficient to estab­
lish an “attempt to cause” within the meaning of Section
8(b)(2) of the Act. For, the Act “aims at every practice, act,
source or institution which in fact is used to encourage and
discourage union membership by discrimination in regard to
hire or tenure, term or condition of employment. Teamsters
Local 357 v. NLRB, 365 U.S. 667, 676 (1961). Any contrary
conclusion would leave dissident employees at the mercy of
labor organization efforts to retaliate against dissidents through
the simple device of making false and unlawfully motivated
reports about misconduct, in the hope that investigation of
those reports might disclose some information that would leave
those employees vulnerable to discharge. The very fact of an
employer’s investigation would naturally tend to discourage
statutorily protected “refrain from” activity by employees.
CONCLUSION OF LAW
Graphic Communications International Union, Local 1-M, a
statutory labor organization, has committed unfair labor prac­
tices affecting commerce by reporting the possibility of mis­
conduct by Timothy Martin Kelm to his employer, Bang Print­
ing, Inc., in retaliation for Kelm’s dissident activities protected
by Section 7 of the Act, rather than because of any genuine
belief that Kelm had engaged in such misconduct, thereby re-
straining and coercing Kelm and other employees from engag­
ing in activities protected by Section 7 of the Act, in violation
of Section 8(b)(1)(A) of the Act, and, in addition, attempting to
cause the discharge of Kelm, in violation of Section 8(b)(2) of
the Act.3
REMEDY
Having concluded that Graphic Communications Interna­
tional Union, Local 1-M has engaged in unfair labor practices, I
shall recommend that it be ordered to cease and desist there-
from and, further, that it be ordered to take certain affirmative
action to effectuate the policies of the Act. With respect to the
latter, ordinarily a labor organization committing unfair labor
practices would be ordered to post a notice at its office, place of
business and meeting places, with a copy of that notice mailed
to the employer of the employees involved for posting, that
employer being willing. Those remedial measures are ordered
here. The problem, however, is that the affected employees are
located in Brainerd, where Graphic Communications Interna­
tional Union, Local 1-M has no office, place of business or
meeting place. In situations where there is no existing facility
at which a respondent can effectively post a notice that affected
3 To the extent that the motivation concluded to have existed may
differ from that pled in the complaint, that subject has been fully liti­
gated and, accordingly, can be evaluated and concluded to have vio­
lated the Act. McKenzie Engineering Co. v. NLRB, 182 F.3d 622, 626–
627 (8th Cir. 1999).
employee will see, the Board has ordered that respondent to
mail a copy of the notice to each affected employee. See, e.g.,
Bridgeport Rolling Mills Co., 288 NLRB 275, 276 (1988); TIC-
The Indistrial Co., 320 NLRB 1122 fn. 2 (1996). Accordingly,
an order to mail the notices to employees shall be ordered here.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
Graphic Communications International Union, Local 1-M,
its officers, agents, and representatives, shall
1. Cease and desist from
(a) Restraining or coercing Timothy Martin Kelm and any
other employee by reporting employee-misconduct to Bang
Printing, Inc., or to any other employer, as a means for retaliat­
ing against Kelm, or any other employee, for having criticized
its performance, and having expressed an intention to refrain
from continuing to support it, as the exclusive collective-
bargaining representative of employees of Bang Printing, Inc.,
or any other employer.
(b) Attempting to cause Bang Printing, Inc., or any other
employer, to investigate, discharge, or otherwise discriminate
against Timothy Martin Kelm, or any other employee, for criti­
cizing its performance, and for activities to refrain from con­
tinuing to support it, as the exclusive collective-bargaining
representative of those employees.
(c) In any like or related manner restraining or coercing em­
ployees in the exercise of rights guaranteed them by Section 7
of the National Labor Relations Act.
2. Take the following affirmative actions necessary to effec­
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its St.
Paul, Minnesota office, place of business and meeting places
copies of the attached notice marked “Appendix.”5 Copies of
the notice on forms provided by the Regional Director for Re­
gion 18, after being signed by its duly authorized representa­
tive, shall be posted by Graphic Communications International
Union, Local 1-M and maintained for 60 consecutive days in
conspicuous places including all places where notices to em­
ployees and members are customarily posted. Reasonable steps
shall be taken by it to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Mail, at its own expense, a copy of the attached notice to
all employees employed by Bang Printing, Inc. in Brainerd,
Minnesota, who have been represented by Graphic Communi­
cations International Union, Local 1-M since April 13, 2000.
Such notices shall be mailed to the last known address or each
of those employees. Copies of the notice shall be signed by its
4 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.
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na­
tional Labor Relations Board” shall read “Posted Pursuant to a Judg­
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
GRAPHIC COMMUNICATIONS LOCAL 1-M (BANG PRINTING) 679
authorized representative and mailed immediately upon receipt (d) Within 21 days after service by the Region, file with the
of the forms provided by the Regional Director. Regional Director a sworn certification of a responsible official
(c) Sign and return to the Regional Director sufficient copies on a form provided by the Region attesting to the steps it has
of the notice for posting by Bang Printing, Inc., if willing, at all taken to comply.
locations where notices to its employees are customarily
posted.