Louisiana Council No. 17Download PDFNational Labor Relations Board - Board DecisionsJul 23, 1980250 N.L.R.B. 880 (N.L.R.B. 1980) Copy Citation DECISIONS OF NATIONAL LABOR RELATIONS BOARD Louisiana Council No. 17, AFSCME, AFL-CIO and Field Staff Representatives Union, Local Union No. I and Herbert Lincecum and Joseph Kermit Venable. Cases 15-CA-6584. 15-CA- 6584-1, 15-CA-6695, 15-CA-6584-2, and 15- CA-6651 July 23, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On December 21, 1978, Administrative Law Judge Henry L. Jalette issued the attached Deci- sion in this proceeding. Thereafter, the General Counsel and Charging Party filed exceptions and briefs in support thereof. Respondent filed cross-ex- ceptions and a brief in support thereof and in oppo- sition to the exceptions filed by the General Coun- sel and the Charging Party. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found, and we agree, that Respondent violated Section 8(a)(1) of the Act by creating the impression of surveillance of its employees' union activities, by threatening employees with reprisals if they attended a union meeting, by informing employees that other em- ployees had been suspended for their attendance at a union meeting, by promulgating a rule prohibit- ing employees from leaving their assigned work areas in order to stop the employees' union activi- ties, and by requiring employees to participate in interviews which the employees reasonably believe might result in discipline. The Administrative Law Judge also found, and we agree, that Respondent violated Section 8(a)(3) of the Act by suspending for I week employees Melvin Tate, Joseph Kermit Venable, and Herbert Lincecum for their union ac- tivities. The Administrative Law Judge further found, and we agree, that Respondent did not vio- late Section 8(a)(5) by modifying the contractual grievance procedure. I The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with re- spect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRH 544 (1950), enfd. 18 F2d 362 (3d Cir 1951). We have carefully examined the record and find no basis for re- versing his findings 250 NLRB No. 72 As noted, Respondent and General Counsel except to the Administrative Law Judge's findings. Respondent, in addition to attacking the merits of the Adminstrative Law Judge's findings that it vio- lated Section 8(a)(l) and (3) of the Act, urges dis- missal of the instant complaint on the ground that the Board, as a matter of policy, should decline ju- risdiction when, as here, employees are disciplined for their allegedly unprotected participation in in- ternal union politics. We find no merit in Respond- ent's contention. It is well settled that "when a labor organization takes on the role of an employer the Act applies to its operations just as it would to any other employ- er. " 2 Accordingly, since Respondent and its oper- ations meet all of the usual prerequisities for our as- sertion of jurisdiction, we conclude that it will ef- fectuate the purposes of the Act for us to assert ju- risdiction over Respondent. 3 The General Counsel excepts to the Adminstra- tive Law Judge's failure to find that Respondent violated Section 8(a)(1) of the Act by threatening to transfer employee Tate and by changing his job assignments. The General Counsel also excepts to the Administrative Law Judge's failure to find that Respondent violated Section 8(a)(3) of the Act by transferring and then discharging employees Lince- cum and Venable for their union activities. Finally, the General Counsel excepts to the Administrative Law Judge's failure to find that Respondent, by unilaterally rescinding credit card privileges, violat- ed Section 8(a)(5) of the Act. For the reasons set forth below, we find merit in the General Coun- sel's exceptions. Violations of Section 8(a)(1) and (3) Respondent Louisiana Council No. 17 is the chartered umbrella organization for 69 local unions affiliated with the American Federation of State, County and Municipal Employees Union (AFSCME). Respondent's operations are normally under the direction of an executive director4 and an executive board. However, on May 23, 1977, 5 2 Office Employees International Union. Local I1 [Oregon Teamsters] v. N.L.R.B. 353 US. 313 (1957). ' The Board has held that employees have no Sec 7 right to engage in activities "designed solely for the purpose of influencing or producing changes in the management hierarchy" Retail Clerks Union. Local 770 Retail Clerks International Association. AFL-CIO, 208 NLRB 356. 357 (1974) Accord: Butchers Union Local 115, affiliated with the Amalgamated Meat Cutters and Butcher Workmen of North America. AFL-CIO, 209 NLRB 806 (1974). In Retail Clerks. the Board found unprotected the em- ployees' attempt to oust the incumbent leadership of their union-employ- er Here in contrast. the employees were treated disparately by Respond- ent for engaging in the clearly protected activity of attending and partici- pating in a union meeting called for the purpose of addressing the dis- charge of a fellosw employee 4 The current director is Henr) LeBert ' All dates herein are in 1977. unless otherwise indicated. 880X LOUISIANA COUNCIL NO 17. AFSCME, AFt CIO pursuant to the provisions of AFSCME's constitu- tion, AFSCME President Jerry Wurf appointed an administrator,6 Roger Frazer, to assume operation- al responsibility for Respondent. The administrator- ship was imposed because of Respondent's operat- ing deficits and the belief that Respondent had de- veloped a subservient or dependent relationship with the state AFL-CIO. In this latter respect, there was expressed concern that the state AFL- CIO had become too involved in Respondent's in- ternal affairs, particularly its personnel problems. On May 23, the day of his appointment, Frazer convened a meeting of Respondent's staff in order to acquaint them with his program. Frazer an- nounced that henceforth employees were prohibit- ed from seeking the aid of the state AFL-CIO in resolving their problems with Respondent. Frazer made it clear that he would not tolerate circum- vention of the Council office. Frazer also an- nounced that he would honor Respondent's con- tract with the Field Staff Representatives Union (hereinafter called the Union).7 On August 8, Frazer discharged Staff Repre- sentative Eugene Guillot. Following the discharge, the Union announced that a meeting would be held at 5 p.m. on August 17 in the second floor library of the state AFL-CIO building in Baton Rouge. The purpose of the meeting was to discuss Guil- lot's discharge and to determine the Union's course of action. The day before the meeting, Frazer ap- proached Staff Representative Tate and questioned him about the union meeting and warned that the meeting would not be taken lightly, since Frazer viewed it as a blatant violation of his stated policy against taking Council business to the AFL-CIO. 8 The next day, Frazer confronted Tate with con- firmation that a union meeting was going to be held at the AFL-CIO building. Frazer reiterated his warning that he would not take the matter lightly. Tate asked whether that meant their pay- checks. Frazer replied, "[y]ou got the picture."" That same afternoon, Frazer called Staff Repre- sentative Bobby Garret and informed him that he was calling all the staff to warn them that if they attended the union meeting at the AFL-CIO office, "[t]hey would be in trouble."10 The executive board requested the administratorship. 7 Since 1971. Respondent has recognized the Union as the exclusive representative of the field staff representatives and has been a party to successive collective-bargaining agreements, the most recent of which ex- pired August I. 1978 a The Administrative Law Judge found that Frazer, by his statements to Tate, created the impression of surveillance in violation of Sec 3(a)( I) of the Act 9 The Administrative Law Judge found that this statement constituted a threat of reprisal in violation of Sec 8a)X 1) of the Act. In In conjunction with his finding that Respondent threatened Tate with reprisal. the Administrative Law Judge found that Frazer's state- The meeting was held at approximately 5 p.m. In attendance were employees Guillot, Tate, Herbert Lincecum, and Joseph Kermit Venable. The four employees voted to adopt a resolution calling for Guillot's reinstatement. The following day, August 18, Frazer notified Tate, Lincecum, and Venable that they were suspended for 1 week for attending the union meeting at the AFL-CIO building in direct contravention of his stated policy. 1 1 Following notification of their suspensions, the employees arranged to meet in New Orleans, on Saturday, August 20, with their attorney, Jerry Gardner, The purpose of the meeting was to devise a strategy for airing their grievances with Re- spondent. Apparently aware of the scheduled meet- ing, Frazer, on August 19, sent a mailgram to all staff employees advising them not to leave their area of assignment without his express approval. 2 In finding that Respondent violated Section 8(a)(3) by suspending Tate, Venable, and Lince- cum, the Administrative Law Judge rejected Re- spondent's defense that it was justified in suspend- ing these employees because they violated Re- spondent's policy against taking Respondent's busi- ness to the state AFL-CIO. In this regard, Re- spondent argued before the Administrative Law Judge that the suspensions were justified since the employees gave the appearance of disloyalty. In re- jecting Respondent's defense, the Administrative Law Judge noted that the employees had neither defamed Respondent nor sought to injure its inter- est. Further, citing the Supreme Court decision in N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 71 (1964), the Administrative Law Judge concluded that Respondent's mistaken belief, if any, as to the nature of the employees' conduct would be no de- ment to Garret constituted an unlawful threat of reprisal in ,iolation of Sec. 8(a)(l) of the Act i In notifying Tate of his suspension. Frazer emphasized that he ap- proved of the union meeting. but he did not approve of it at the AFL- CIO office. In notifying Lincecum of his suspension. Frazer made it clear that he knew who had attended the union meeting. who had said what. and what action had been taken Based on the foregoing, the Administra- tive Law Judge found that Respondent created the impression of surs eil- lance in violation of Sec. 8(aXI) of the Act. The Administrative Law Judge also found that Respondent further violated Sec. (a)(l) of the Act by notifying employees that the) had been suspended for attending a union meeting 12 In discrediting Frazer and rejecting the reasons advanced by him for the mailgram, the Administrative L asw Judge concluded that Re- spondent's real reason for the mailgram was to interfere wiih the sched- uled union meeting in New Orleans In reaching this conclusion, the Ad- ministrative I aw Judge relied oin Venahles, uncontro'erted testimony that he overheard Respondent's agents say that the mailgram was related to the union meeting with its attornes Based in V enable's testimoni andi the fact that Respondent had ne'er instituted rule, hs mailgram. the Ad- ministrative Lay" Judge foutld that Respondent, bs issuing the nmailgraini violated Sec 8(a)(I) of the Act 881 I)ECISI()NS ()1: NAII()NAI I LAB()R RELATIONS H()OAR) fense to its direct interference with the employees' protected activities. '": While we agree with the Administrative Law Judge that Respondent violated Section 8(a)(3) of the Act by suspending employees for attending the union meeting, we find that Burnup and Sims. supra, is not relevant here. According to the record, Respondent was well aware that the union meeting was called for the purpose of addressing Guillot's discharge-a purpose clearly within the zone of activity protected by the Act. Thus, on the day following the meeting, Frazer-in suspending Lincecum--confronted Lincecum with the fact that he knew who had attended the meeting, who had said what, and that action had been taken.'4 Despite its knowledge of the purpose of the meet- ing, Respondent nevertheless suspended Lincecum and two other employees because, Respondent argues, the meeting violated Respondent's policy of curtailing employee contacts with the state AFL- CIO.'5 In our judgment, Respondent's conduct is patently discriminatory and violates the Act. Re- spondent's unlawful motivation for the suspensions is demonstrated by its attempt, immediately follow- ing the suspensions, to prevent the employees from meeting with their attorney for the purpose of ad- dressing Respondent's actions. Since the employees were not meeting at the AFL-CIO building, and the subject matter of the meeting did not involve the state AFL-CIO, Respondent's action in issuing the mailgram restricting the employees to their area of assignment belies its claimed justification that its previous actions were taken solely because the employees had attended a union meeting at the state AFL-CIO building in violation of Respond- ent's policy. Indeed, there is testimony by Frazer indicating that his concern extended beyond his as- serted displeasure with the situs of the meeting and included the employees' "taking issue" with his dis- ciplining of staff members and soliciting aid from sources other than the state AFL-CIO. 6 '' In Burnup and Sims. the Court held that the employer violated the Act by discharging two employees despite its good-faith reliance upon a disclosure from another employee that the two employees. then engaged in organizing activities, had threatened to dynamite the plant. In fact, no such threats had been made by the employees In finding a violation of Sec. 8(a)(I) of the Act, the Court concluded that "protected activity would lose some of its immunity, since the example of employees who are discharged on false charges would or might have a deterrent effect on other employees " 14 During the suspension meeting. Lincrecum told Frazer that the sub- ject matter of the union meeting involved Local No. l's private business. specifically the dismissal of Guillot, and that it was therelore not any of Frazer's business. '5 Significantly, meetings of Local No. I had been held previously in the AFL-CIO building's library, which adjoins the offices of the law firm currently representing Local No1 I '6 In describing the reasons for Lincecum ' , discharge on September 12. Frazer testified Mr. Lincecum was involved Hwil othelr clajj peoph, inl loterm o Iling i cue with my diiiepl/inng our Iajfj people. iot hMe locul unions,. to the Assuming arguendo that Respondent had a legiti- mate objective in curbing employee contacts with the state AFL-CIO, that objective could not be used as a basis for interfering with the employees' protected activity. We do not believe that the pro- tection of Section 7 of the Act is removed when employees, in the pursuit of an object unquestiona- bly related to "wages, hours and working condi- tions," engage in conduct offensive to or at vari- ance with what may otherwise be a valid employer policy. So long as the concerted activity is not un- lawful, violent, in breach of contract or disloyal,' 7 the employees engaged in such concerted activity generally do not lose the protective mantle of the Act simply because their activity contravenes an employer's rules or policies. 18 The Reassignment of Duties, the Threat To Transfer, and the Transfers On August 26, Tate returned to duty following his suspension. That morning, Frazer informed Tate that one of his servicing assignments had been changed and advised Tate that he might thereafter be transferred from Baton Rouge to Lafayette, Louisiana. 19 According to Tate, Frazer prefaced his remarks with the statement that he would not hold any of Tate's union activity or meeting in un- execulivi' board metnbers o1 the Council. circumvinenting the Coauncil office. laking our buhritlsr to the tate A.4FL-CI'O office and 5olhcting all the oulside interirence' that he could possibly do [a)fter caution- ing him about this and talking to him about his continuing deteriorat- ing altitude. I haid to lake disciplinary. actirn in the form of a suspen- sion before I finally terminated him [Emphasis supplied I In his letter denying the griceances filed over the suspensions. Frazer denounced the efforts of the Union as "purposefully creat[ing] conflict and discord between AFSCME and the Louisiana AFL CIO ." Ac- cording to} Lilcecum's undisputed testimony. Frazer, concerning the adoption of the resolution requesting (;uillot's reinstatement, referred to, the Union as that "fink indepenldent union." " See V.L. RB . v Wash/ingtln Alurminum Conpuny, Itc.. 370 U S 9 (1962) We find no merit in Respondent's contention that the employees, by holding their union meeting at the AFL-CIO building. thereby engaged in a disloyal act Sec 7 of the Act is clearly broad enough to encompass the employees' decision to choose, free of employer interference, the situs of their union meeting. Nor did the employees engage in unprotected activity in securing the assistance of State AFL CIO President Bussie in transmitting to AFSCME President Wurf the resolution calling foir Guillot's reinstate- ment. A bargaining representative has broad discretion in selecting those individuals and organizations it desires to act (in its behalf It also has largely unfettered discretion in seeking and tobtaining from others the aid it may need to fulfill its responsibilities as the statutory represenlative of the unit employees See l'he Williasnon Co.. 244 NLRB No. 147 (1979) i See Plasritle Corporation. 153 NLRB 180 (1963). enfd as modified on other grounds 175 F. 2d 343 (8th Cir. 19671 (The application of Sec 7 of the Act "does not depend on the tnmanner in which employees choose to press the dispute. hut rather on the manutler they are protesting.") (Em- phasis supplied I But see. e g.. V L.R B. s In,lurance , .Ag'int' Iternlatioaul Union. .4FL-CIO [Prudeniual In surance C.] . 361 US. 477. 492 494 (19tt); Pactjic h'/ephone and l'ch,gruph Compuany. 107 NLRB 1547 (19541 I!' Prior Io the reassignment. tate had been servicing AFSCME locals in Batonl Rouge and L afayeltte A, a result of the reassignment. late was given an additional Lafayette local to service and was relievcd iof the duty of servicing a latlntl Rouge local X82 I()OUISIANA C(()'NCII N() 17. AFSCMI-E. AFI.-C () authorized places against him. Frazer said that, "We are going to start from [this] date and move into the future." That same day, Frazer notified Lincecum and Venable that they were being trans- ferred to New Orleans and Alexandria, respective- ly. The Administrative Law Judge concluded that Frazer's remarks to Tate belied any claims of con- tinuing animus against him and contradicted the complaint's allegation that Tate's new assignment was unlawful or that Tate was unlawfully threat- ened with transfer. The Administrative Law Judge also concluded that Respondent did not violate Section 8(a)(3) of the Act by transferring Venable and Lincecum. Although conceding that Venable and Lincecum had been the objects of Respond- ent's unlawful conduct immediately preceding the transfers and that the timing of the transfers was prima facie proof of unlawful motivation, the Ad- ministrative Law Judge concluded that the trans- fers were legitimately grounded in Respondent's re- organization and growth program. Noting that Lin- cecum's and Venable's lobbying assignments had ended with the adjournment of the legislature, the Administrative Law Judge determined that the transfers were appropriate at that time. Further, the Administrative Law Judge found that the trans- fers were predicated in part on complaints concern- ing Lincecum's and Venable's servicing of the Baton Rouge locals and on the need for experi- enced employees in New Orleans and Alexandria. Although recognizing that in transferring Lince- cum and Venable Frazer ignored seniority and may have even breached the collective-bargaining agreeement, 20 the Administrative Law Judge nev- ertheless concluded that there was insufficient evi- dence that the transfers were discriminatorily moti- vated. Contrary to the Administrative Law Judge, we find that Respondent violated Section 8(a)(3) of the Act by transferring Venable and Lincecum and in- dependently violated Section 8(a)(1) of the Act by threatening Tate with transfer and reassigning his job duties. Considering the timing, Respondent's demonstrated animus, and its earlier unfair labor practices, it is clear that these actions were a fur- ther punitive response to the protected activities of Tate, Venable, and Lincecum. Thus Respondent's action came on the heels of its unlawful suspension of these employees for attending the August 17 union meeting and for soliciting the aid of outside labor organizations. And these actions closely fol- lowed Respondent's attempt, through a hastily pro- mulgated and invoked rule restricting employee "' The collectir -hargaining agreement proiides that tranllfer, ulll he according to seniorily assuming "all other faxctors are equal movements, to prevent a second union meeting in- volving the Union's attorney and called to address, among other things, the suspensions. Neither of Re- spondent's attempts to prevent the meetings was successful. Angered by its inability to prevent the union meetings and viewing the employees' actions as insubordination, Respondent reacted viscerally with further punitive action designed to separate and thereby discourage the employees responsible for, and participating in, the union meetings. Clear- ly, Respondent was retaliating against these em- ployees for their protected union and concerted ac- tivities. Respondent accordingly violated Section 8(a)(3) and (I) of the Act by transferring Lincecum and Venable, and independently violated Section 8(a)(l) of the Act by threatening to transfer Tate and by reassigning his job duties. 2 ' In so holding, we, unlike the Administrative Law Judge, do not construe Frazer's statement that he would not hold Tate's union activities against him as indicating an absence of animus. Frazer's meeting with Tate occurred on the day Tate re- turned from his unlawful suspension. Since Tate apparently viewed the suspension as discriminato- ry, Frazer understandably sought to allay Tate's well-founded fears that the reassignment of his duties and the prospect of future transfer were dis- criminatorily motivated. But, by referring to Tate's earlier union activity, Respondent strengthened Tate's belief that he and the other employees had been treated disparately for engaging in protected conduct. Significantly, Frazer never apologized for his earlier actions nor sought to rectify the effect of that earlier misconduct. In these circumstances, these statements were entirely self-serving and merely reinforced Tate's belief that he was being singled out for disparate treatment. 22 Further, unlike the Administrative Law Judge, we are not persuaded that the transfers were moti- vated by legitimate business concerns. 2 3 Lincecum Z1 The complaint does not allege tile reassignment of job duties , a ·niolation of Sec. 8(aX3) of the Act ;2 Significantly. Tate testified, without c.ontradiction. that Respond- ent's public affairs director informed him that Frazer viev.ed unfas orahl) Tate's conduct in having a grie'ance and unfair labor practice charge filed against Respondent o,er his suspension Thus Tate testified that on September 13 he had a conversation with Owen King. the Council', public affairs director, wherein King told him that he was creating a "hell of an image . and not helping yourselrf by filing charges 'ith the Board and grievsances under the contract King told 'rale hat he should drop his charges with the Board. that he could not xii.o and that he was hurting himself in Frazer's eyes The Administratise L aw Judge fiund that these statements constituled implied threal. aimed at l alte sx- ercise of hi, Sec 7 rights and that the) hereby ,iolated Sec SW(a I) of the Act :' We nlte that the Admlnirlratise [ a.1 Judge conceded that accept- anlTc tf Respontdent's asserted reasons for the tranusfer, "require an act of faith and an almostl bhnd hbelef il Frazer', c redblhil ' A.s ct stlaled blhl Xe, k hxc. hei. Respoidetlit's notrlle for the trinMsfers s.a, rCprisal for ( 'nulrlu. d DECISIONS O(F NATIONAL LABOR RELATIONS BOARD had been assigned to the Baton Rouge area since 1967; and Venable had been assigned to Baton Rouge since 1972. Both were experienced lobbyists for Respondent in the state legislature.2 4 Although the regular legislative session had ended on July 11, neither employee was given notice then of any intention to transfer him. Indeed, no notice was forthcoming even though the legislature did not re- convene for a special session until August 7. Yet Frazer had been aware in late June that Lincecum and Venable had been requested for organizing duty in Alexandria. 25 Further, Frazer testified that, as early as June, he had perceived Respondent's needs to be in Baton Rouge and Alexandria. 2 6 And, even though Lincecum reported to Frazer on the afternoon of August 17-the day the special session of the legislature ended-Frazer never gave the slightest hint that a transfer was being contem- plated. Only after Frazer had taken issue with Lin- cecum's and Venable's attendance at the union meeting and after their return from their suspen- sions did he announce the transfers. The sudden and unexpected announcement of the transfers con- trasted sharply with Frazer's ability to provide Tate with notice that a transfer to Lafayette could be expected in the future. Further, although Frazer advised Lincecum that other employees were being reassigned, only Lincecum and Venable were sin- gled out for transfers. In light of the foregoing, we find that the reason for Respondent's precipitate conduct was a desire to punish these employees for their union activities. In this connection, we disagree with the Admin- istrative Law Judge's finding that the alleged serv- icing complaints registered against Lincecum and Venable were, in part, reasons for the transfers. According to Lincecum, Frazer never spoke to or counseled him concerning the alleged servicing complaints nor did Frazer tell him that such com- plaints were a reason for the August 26 transfer. Finally, Frazer, in discussing the transfer with Venable, did not mention the alleged servicing complaints to him as the reason for the transfer. To the contrary, Frazer had commended Venable on the employee union activities which included, inter alia, their attendance at the union meetings of August 17 and 20. 24 Both Lincecum and Venable also serviced AFSCME locals in the Baton Rouge area. However, soon after the May 23 meeting, Lincecum was relieved of his servicing assignment so that he could devote full time to his legislative responsibilities. 2a International Representative Terry Adkins testified that he spoke with Frazer in late June and specifically requested the assistance of Lin- cecum and Venable in organizing the Alexandria area 26 This, of course, contradicts Respondent's contention that Lincecum was needed in New Orleans. Significantly, on July 20, Frazer had sug- gested to Venable the prospect of a transfer to Lafayette where, in the past. Venable, according to Frazer, had been "real productive" After Venable indicated he did not desire to transfer. Frazer dropped the matter In a meeting with Venable on July 29, Frazer agreed to allow Venable to remain in Baton Rouge his work in Baton Rouge and Lafayette. Indeed, Frazer testified that he selected both employees for their experience, work performance, and ability. While Frazer testified generally to receiving servic- ing complaints from rank-and-file members, it is evident that, if there was a servicing problem, it was longstanding and not one suddenly evident on August 26. Lincecum's Discharge Lincecum reported to New Orleans on August 29. He worked 4 days and was not scheduled to work again until September 6 because of the long Labor Day weekend. He did not work on Septem- ber 6 because of his daughter's illness. On Septem- ber 9, Lincecum was told to report to Frazer's office on September 12. On September 12, Lince- cum met with Frazer and was discharged. Frazer testified that he discharged Lincecum be- cause of: (1) his attitude toward fellow staff mem- bers, (2) his failure to cooperate with Respondent's program, and (3) his "constant belligerent attitude." When asked at the hearing in this case for specific incidents supporting these complaints, Frazer cited Lincecum's alleged deficiency in completing activi- ty and expense reports. However, Frazer testified that Lincecum's reporting deficiencies were inci- dental to the primary reason for the discharge, which Frazer cited as Lincecum's abusive lan- guage, total attitude, and improper performance of his work duties. Frazer then testified that Lince- cum's deteriorating attitude led to his termination. In contrast to the above testimony, Frazer then tes- tified that Lincecum's abrasive attitude played no part in the decision to terminate him. Retreating again, Frazer testified that Lincecum's abrasive at- titude was "one of the reasons leading up to the first occasion [Lincecum] gave [me] for taking dis- ciplinary action against him." However, Frazer tes- tified that Lincecum's abrasive attitude "was a con- tributing factor in the beginning of my administra- tion and it did not develop to the point I thought disciplinary action was needed." When asked to explain how he thought Lince- cum was being uncooperative with Respondent's program, Frazer responded that he "couldn't get a proper dialogue going with him," that he "couldn't get him to properly submit reports," and that he "had to work with him about putting unauthorized items on his expenses." When asked whether he specifically relied on these matters in discharging Lincecum, Frazer replied that these matters were the result of his investigation and that he used them as a basis for new policies and reporting proce- dures. Frazer then reiterated his inability to estab- lish "proper communication[s]" with Lincecum. 884 LOUISIANA COUNCIL NO(. 17, AFSCME, AFL-CIO When queried as to what other conduct formed the basis for his conclusion that Lincecum was uncoo- perative, Frazer cited Lincecum's "taking issue" with his disciplining of fellow staff employees and taking Council business to the AFL-CIO and else- where.2 7 Although Frazer testified that Lince- cum's reporting and servicing deficiencies and his placing unauthorized items on his expense account were factors in the decision to discharge him, Frazer-in his letter to the Union in response to the grievance concerning Lincecum's discharge- stated that "It is the irresponsible conduct and in- subordinate behavior of Mr. Lincecum between August 26 and September 12 which led directly to his discharge."2 8 (Emphasis supplied.) The Administrative Law Judge found that Re- spondent's reason for discharging Lincecum was his attitude toward Respondent's program, rather than his union activities. In support of this determi- nation, the Administrative Law Judge cited a number of incidents upon which Frazer allegedly relied in reaching his decision to terminate Lince- cum. These incidents included, inter alia,2 9 making disparaging references to fellow staff representa- tives,3 0 failing to demonstrate initiative, 3s and fail- ing to follow instructions.3 2 Based on the forego- ing, the Administrative Law Judge, while noting that some of these incidents were largely based on 27 See fn. 16, supro These activities, as we have discussed above. w'ere protected. 28 This period, of course. coincides with the period immediately fol- lowing Lincecum's transfer to New Orleans and ending with his dis- charge Frazer's statement thus directly contradicts his testimony that Lincecum's servicing and reporting deficiencies and placing unauthorized items on his expense account Asere factors in the decision to discharge Lincecum. 29 Staff Representative Wilbur Bateman testified that he felt uneasy working with Lincecum because, after certain organizing meetings, Lin- cecum made phone calls and Bateman thought that Lincecum was report- ing the substance of those meetings Another staff representative, Roger White, testified to an incident in which he and Lincecum met with certain employees during their lunch hour Although the meeting had originally been approved by the employ- ees' supervisor, the supervisor subsequently questioned the employees and generally harassed them Based on this incident, White concluded that he could do a better job without Lincecum White also testified that Lincecum showed lack of participation in ex- ecuting his assignments White further testified to a conversation with Lincecum in which Lincecum stated. in the context of his problems with Frazer, "Some people do not understand Louisiana politics [and that] sometimes it is necessary to crack the rats' skulls so some of the knowl- edge will seep in " DO Jada Hirschmann. Respondent's secretary-treasurer. testified that Lincecum referred to a staff representative that had replaced him as a "nigger" and referred to another as a "prostitute." Lincecum's denial of these statements was discredited by the Administrative Law Judge. a3 The New Orleans area coordinator. Joe Volpi, testified that, while following Volpi's instructions and carrying out his assignments. Lince- cum was not showing the initiative expected of an experienced organizer 32 Volpi testified that, on August 29. he assigned Lincecum to distrib- ute newspapers to various highway units, with instructions to distribute the papers either before the employees' starting time or during the em- ployees' lunch hour Later that day. 'volpi received a report that a dis- trict engineer in the highway department had been admonished for allos,- ing the Union to meet with the employees during working hours. Volpi. by implication, assumed that Lincecum was responsible for the incidents suspicions, nevertheless concluded that Respondent had sufficient cause for discharging Lincecum. Ac- cordingly, the Administrative Law Judge dismissed the complaint's allegation that Respondent's dis- charge of Lincecum violated Section 8(a)(3) of the Act. We disagree with the Administrative Law Judge's conclusion. In our judgment, the Adminis- trative Law Judge failed to consider Lincecum's discharge in the context of Respondent's overall pattern of unlawful conduct directed against Lince- cum and the other employees, and this failure to consider the context in which the discharge oc- curred was compounded by the Administrative Law Judge's failure to find that the transfer was discriminatorily motivated. There is persuasive evi- dence in the record-in addition to the abruptness of the discharge and its timing 3 3 -that the real motive for the discharge was reprisal for Lince- cum's protected union and concerted activities. As noted, Frazer was piqued at Lincecum and the other employees for having taken issue with his disciplining of staff employees and for having sought outside aid in resolving their problems with Respondent. Clearly resenting this affront to his au- thority, Frazer had made it plain that these em- ployees would be "in trouble" for failing to heed his directive against such activity. In addition to unlawfully restricting these employees' movements in order to prevent a second union meeting, Re- spondent-for the admitted reason of penalizing these employees for their above-described activi- ties-suspended Lincecum and the others.3 4 On the day Lincecum returned to duty following his sus- pension, he was transferred to New Orleans for reasons which we have found were pretextual.3 5 After working only 7 days, Lincecum was dis- charged. Respondent defends its discharge of Lincecum by referring, inter alia, to the incidents of Lince- cum's alleged misconduct cited by the Administra- tive Law Judge. Respondent's defense, however, rings hollow since there is testimony in the record-by Frazer himself-linking the discharge to Lincecum's protected activities.36 Thus there is a" See Rolywon Aluminum Products. Inc. 231 NL.RB 422, 427 (1977) (citing N'L.R.B : .Monigomeo'r Ward & Co. Inc. 242 F 2d 497, 502 (2d Cir 1957), cert denied 355 U S 829 (1957)) a' See fn 16, supra lb Additionally, as discussed ahoe, the employees through their attor- ne) filed grievances and unfair labor practice charges against Respondent over the suspensions As swe have noted. Respondent disapproved of the employees taking such action :" Ii addition to the testimonyi cited at fn. 16, supru, there is the fol- losing testimony by Frazer connecting the dscha;rge to I incecum's pro- tected activities Continued 885 Dl)tCISIONS ()F NATIONAL LAIOR RELA'I'IONS BOARD convincing evidence that the discharge stemmed from unlawful considerations-a conclusion but- tressed by the timing and precipitate manner of the discharge. Further, Respondent's proffered reasons for the discharge are largely rooted in suspicions, rather than concrete proof. In this connection, the reports by Volpi and White concerning organizing incidents allegedly involving Lincecum were based on suppositions, rather than any objective determi- nation of fact. There is no indication in this record that either of the above employees or Frazer inves- tigated the incidents referred to above. 3 7 In addi- tion, Respondent's willingness to rely on-without question or further investigation-such unsubstanti- ated allegations draws into question its asserted rea- sons for the discharge. When the foregoing is con- sidered in light of Respondent's inability to settle on a clearly articulated explanation for the dis- charge,3 8 it is evident that the discharge was moti- vated by unlawful considerations. The whole hall of wax is centered into a total failure to cooperate in the new program that was created this administratorship and his taking our business outside of the confines. arguing it concerning th in- ternal problems of our union, his failure to conform to supervision and his constant belligerent attitude toward me [Emphasis sup- plied.l 37 Equally undeserving of merit is Bateman's report that he "felt uneasy" working with Lincecum We note that at Lincecum's discharge interview, Frazer never mentioned White's reports or the complaints about Lincecum's purported lack of initiative. Although the Admininstra- tive Law Judge found that Respondent relied on Volpi's reports in dis- charging Lincecum, the record shows that Volpi did not submit a written report to Frazer until after Lincecum had been discharged. Volpi testi- fied-contrary to Frazer-that he did not relate Lincecum's work per- formance to Frazer in any telephone conversation. The most serious allegation of misconduct concerned Lincecum's epi- thets directed against two fellow employees. While we in no way con- done these utterances, we note that they related to the transfer and were uttered by Lincecum in response to his belief that the transfer was discri- minatorily motivated. 38 It is well settled that when the asserted reasons for a discharge fail to withstand examination, the Board can infer that there is another reason-an unlawful one which the employer seeks to conceal-for the discharge. Shattuck Denn Mining Corporation (Iron King Branch) v. N.L.R.B., 362 F.2d 466. 470 (9th Cir. 1966); San Lorenzo Lumber Compa- ny, 238 NLRB 1421 (1978). Similarly, an unfavorable inference can be drawn from an employer's shifting explanations for its treatment of an employee. See N.L.R.B. v. Mid State Sportswear. Inc., 412 F.2d 537, 539 (5th Cir. 1969) (proof of discrimination has been found in an employer's vacillation and assignment of a multiplicity of reasons for a discharge, particularly against a background of union animus). See also Branthaven. Inc. d/b/a Hospitality Home, 192 NLRB 1062. 1063 (1971); Winter Garden. Inc., 235 NLRB 19 (1978); Taft Broadcusting Company, 238 NLRB 588 (1978). Andrew Craft. a role proprietor d/b/a VItyl Craft Fence Co., 241 NLRB 607 (1979). As the First Circuit stated in N.L.R.B. Teknor-,4pex Co.. 468 F2d 692. 694 (1972): A]in unfavorable inference may be drawn against the company for its inability to settle upon an explanation foir the discharge. This fail- ure in itself lends support to the theory that [the employee's] union support was the real explanation. Here Respondent has offered a myriad iof reasons for the discharge. The explanations which Respondent has proffered for the discharge have not been maintained consistently throughout the hearing in this case: rather Respondent has vacillated over the reasonsl unlderlyirng its dis- charge decision See text supra In1 these circumsallnces. we dral Ihe in- ference that Lincecum vwas discharged for his unioni aciti ity Moreover, even assuming arguendo that Lince- cum's post-transfer conduct might otherwise consti- tute justifiable grounds for discharge, that will not serve to legitimize Respondent's actions here since Respondent unlawfully created the circumstances to which Lincecum reacted with foreseeble dis- pleasure and a "poor attitude." We have adhered to the principle that "[a]n employer cannot pro- voke an employee to the point where [the employ- er] commits .. . an indiscretion . . . and then rely on this to terminate [the] employment." 3 9 Thus where, as here, the employer's wrongful provoca- tion is serious and compelling, we will permit the employee a certain amount of leeway in response. As the court stated in M & B Headware Co., supra:4 0 The more extreme an employer's wrongful provocation the greater would be the employ- ee's sense of indignation and the more likely its excessive expression. Here Respondent, through its unfair labor prac- tices, made Lincecum's working conditions burden- some and then relied on Lincecum's response to justify his discharge.4 t In these circumstances, we will not allow Respondent to transfer the onus for the discharge to Lincecum, for to do so would permit Respondent to benefit from its wrongdoing. We therefore find that Lincecum's post-transfer conduct was not so unreasonable in relation to Re- spondent's provocative unfair labor practices as to justify his discharge. Accordingly, we find that Re- spondent violated Section 8(a)(3) of the Act by dis- charging Lincecum. The Denial of Union Representation to Lincecum at His Disciplinary Interview Prior to and during the discharge meeting of September 12, Lincecum requested union represen- 39 N.L.R. B v. M & B Headware Co.., Inc., 349 F.2d 170, 174 (4th Cir 1965). See Blue Jeans Corp., 170 NLRB 1425 (1968) (employee that had threatened to "kill the s.ob." who had informed on her union activities and that had threatened a supervisor with a pair of scissors did not forfeit her right to reinstatement. since her misconduct was provoked by the employer's unfair labor practices) See also Max Factor & Co., 239 NLRB 804 (1978); Trustees of Boston University v N'L.R.B.. 548 F 2d 391 (Ist Cir, 1977) 4" 349 F 2d at 174 See Trustees of Boston University. supra at 391. In M & B Headware. the employee had been discharged for union activity. The employer argued that reinstatement was unwarranted because of her post-discharge insubordination consisting of a threat to harm the supervi- sor who had observed her union activities and her rude behavior to the vice president of the company While the court did not condone the em- ployee's actions. it refused to close its eyes to the fact that the employer's discriminatory treatment of the employee gave rise to her misconduct 41 In his meeting with Frazer on August 26. Lincecum made it clear that he considered the transfer discriminatory and in retaliation for his having attended union meetinigs and for having filed grievances and unfair labor practice charges against Respondent over, itter alia. his sus- pension I incecum also made it clear that the permanelt transfer would work a hardship ont his faimily stice his wife had a busiless in Balon Rouge and his son went to school there XX86 1.()OIISIANA COUNCll. NO 17. AFSCM[-. AFL CIO tation, which Frazer denied on the ground that the contract provided no right to union representation. The Administrative Law Judge. relying on Certi- fied Grocers of California. Ltd., 227 NLRB 1212 (1977), found the denial of union representation to be unlawful and ordered Respondent to reinstate Lincecum. We agree with the Administrative Law Judge that Respondent's denial of union representa- tion to Lincecum at the September 12 meeting vio- lated Section 8(a)(1) of the Act. However, we do so for reasons apart from those relied on by the Administrative Law Judge. We have recently decided that the Certified Gro- cers decision is inconsistent with the teachings of the Supreme Court in N.L.R.B. v. J. Weingarten, Inc., 420 U.S. 251 (1975). Thus, in Baton Rouge Water Works, 246 NLRB No. 161 (1979), which issued subsequent to the Administrative Law Judge's Decision herein, the Board reversed Certi- fied Grocers, holding that the right to representa- tion under Weingarten arises only with respect to investigatory interviews and does not extend to an employer-employee meeting where the sole pur- pose is the imposition of predetermined disci- pline. 4 2 Turning to the facts here, we find that Respond- ent's meeting with Lincecum was clearly of the kind envisioned by the Court in Weingarten as war- ranting the presence of a union representative. Ac- cording to Lincecum, Frazer, during the meeting, 42 In Baron Rouge. the Board stressed that the right to the presence of a union representative is not diminished because the employer chooses to characterize or mask in otherwise investigatory interview as disciplinarv. Nor is the right to representation necessarily foreclosed because the deci- sion to discipline the employee antedated the interview. As the Board stated in Baton Rouge: Ilif the employer engages in any conduct beyond merely informing the employees of a previously made disciplinary decision, the full panoply of protections accorded the employee under Weingarten may be applicable Thus, for example, were the employer to inform the employee of a disciplinary action and then seek facts or evidence of a support of that action, or to attempt to have the employee admit his alleged wrongdoing or to sign a statement to that effect, or to sign statements relating to such matters as workmen's compensation, such conduct would remove the meeting from the narrow holding of the instant case, and the employee's right to union representation would attach. (246 NLRB No. 161.) Chairman Fanning concurs in the finding here on the basis of his sepa- rate opinion in Baton Rouge. Member Penello agrees with his colleagues' finding that Respondent denied Lincecum union representation in violation of Sec. 8(aXI) of the Act. However, Member Penello notes that in his dissenting opinion in Baton Rouge he expressed the view that: [T]he Section 7 right of an employee to request the presence of his union representative at a disciplinary interview was firmly estah- lished by Board law prior to the Supreme Court's decision inl e'ein- gurcen. and as indicated by a Board majority il Certfiied Grwervr. the Supreme Court's decision in Weigurtlen merely reaffirmed the exist- ence of that Section 7 right. Thus unlike the majority in both Butol, Rouge and the instalit case, he recogni7es no meaningful distinctionl between an employee's right to utiton represenltation it all in vestigatory initervisew as opposed to a "dis- ciplinary" intervie'. In Member Ptenello',s sie an employce'es rights under WHeingarten arc the sa;me ii either instance accused Lincecum of being "hell bent on not fol- lowing my programs." After seeking clarification, Lincecum. in defense, recited his past and present work assignments. Frazer reiterated his accusation that Lincecum had been disrupting his program. When Lincecum requested specifics, Frazer men- tioned that Lincecum had transcribed two full legal pads of notes at the August 26 meeting and imme- diately ran to the state AFL-CIO office to recount the meeting. Lincecum denied the accusation and retraced his activities after the staff meeting. When Frazer appeared to accept his explanation, Lince- cum again requested specifics. Frazer then queried Lincecum why he had not signed up any new members. Lincecum explained that he had been in New Orleans only a short time and that his assign- ments with staff members had affected his signing up new members. Again, Frazer seemed to accept Lincecum's explanation. Frazer then queried Lince- cum on the substance of his conversations with Ba- teman, accusing Lincecum of talking with Batemen about his problems and his "case." Frazer also asked whether he had been contacting members of the Council's board. Lincecum admitted that he had contacted Secretary-Treasurer Hirschmann. Frazer mentioned Hirschmann's report regarding the "name calling" directed at two fellow staff rep- resentatives. When Lincecum denied the allegation, Frazer said the conversation was over. Frazer prodded Lincecum to resign, but he refused. Frazer thereupon discharged him. The foregoing reveals that, by seeking additional information bearing on Lincecum's conduct, Re- spondent went beyond the act of imposing disci- pline. Such an inquiry indicated that Respondent was continuing, on a substantive basis, its investiga- tion of Lincecum's overall conduct. In these cir- cumstances, Lincecum was entitled to representa- tion. In agreeing that Lincecum was denied union representation in violation of Section 8(a)(1) of the Act, we do not pass on whether the Administrative Law Judge properly recommended reinstatement as a remedy for this violation. We have already found that Respondent violated Section 8(a)(3) of the Act by discharging Lincecum and the remedy for that violation, as ordered below, is reinstate- ment. Venable's Discharge Venable reported to Alexandria on August 29 as directed. On September 16, a grievance session was held before Frazer concerning the suspensions of Tate, Venable, and Lincecum . At that session, Venable accused Frazer of lying about having dis- cussed the transfer with him. Subsequently. Vena- ble, in his daily activity report, reiterated his alle- )F. CISIONS ()F NATIONAl LABOR RELATIONS BOARD gation that Frazer had lied at the grievance session. On September 19, Venable attended a staff meeting at a motel. Following the meeting, Venable en- gaged in a "rap session" with Staff Representative Garrett and Area Coordinator Adkins. According to the record, Garrett attributed to Frazer a remark that staff representatives had no rights. Adkins replied that their loyalty was strictly to those who did not tell them who their friends were going to be, but they could tell them what they could discuss with their friends. Venable said he knew that Adkins was referring to his relationship with the state AFL-CIO. Venable made it clear that he would not terminate his friendship with them and that they could not tell him what he could discuss with his friends. He then made a ref- erence to Frazer and Wurf as "pricks" who were going to leave the State, leaving him "to continue working with these people." On September 20, Venable and Staff Representa- tive Jim Robinson were assigned to attend the AFL-CIO central labor council meeting. Accord- ing to Robinson's credited testimony, 43 Venable, in addressing the meeting, brought up the subject of his transfer and his problems with Respondent's discharge of Guillot. Venable also stated that he did not approve of the International and Frazer being there. Venable said no one could stop free- dom of speech and that, despite Wurf and Frazer, he would say what he wanted. After emphasizing his good work in the legislature and in serving the locals, Venable said that he would continue serving the membership, no matter what he was told by Frazer or Wurf.4 4 On September 22, Frazer summoned Venable to his office. According to Venable's undisputed testi- mony, Frazer began the meeting by referring to Venable's "negative attitude" toward the Union. Venable corrected him, stating that his negative at- titude was directed at Frazer, not the Union. Frazer confronted Venable with the remarks made in the September 19 staff meeting wherein Venable referred to Frazer and Wurf as "pricks" and sug- gested that the language was inappropriate for a staff meeting. Venable admitted making the re- marks but explained that the statements occurred in the context of a "rap" session. Frazer then berated Venable for using red ink in his activity reports and writing such detailed reports. Frazer equated 4a' The Administrative Law Judge refused to credit Venable's account of the meeting. The Administrative Law Judge also discredited the testi- mon) of two other individuals who essentially corroborated Lincecum's account of the meeting 4" Katherine Honeycut, a AFSCME volunteer, essentially corroborat- ed Robinson's account of the meeting According to Honeycut, Venable stated that he had been suspended and transferred because of what he said about Guillot's discharge He also stated that he would continue to lobby in the legislature despite what Friazer and Wurf told him the red ink and detailed reporting with hostility toward his program. Venable, in turn, pointed out that Adkins requested detailed reports and that he had previously used red ink. Frazer then turned to a report that he had received concerning Venable's speech before the Central labor body. Venable denied the statements. Frazer pointed to his daily activity report wherein Venable had called him a "liar." Venable related that he felt Frazer had lied at the grievance session and that he simply trans- ferred that belief to his daily activity report. Frazer queried why Venable had not signed up any new members. Venable explained that he and the Inter- national staff were having difficulty meeting the people. The meeting concluded with Frazer recon- firming Venable's resentment of Frazer's presence in Louisiana. On September 23, Venable was dis- charged. The Administrative Law Judge found that Vena- ble's admission that he resented Frazer, and his vulgar references to Frazer and Wurf, supported a determination that Venable was discharged for cause. In this connection, the Administrative Law Judge noted that Venable's resentment of Frazer indicated that he could no longer continue to per- form his staff representative duties as required by his employer. Accordingly, the Administrative Law Judge concluded that Venable's conduct fol- lowing his transfer constituted good cause for dis- charge. For the reasons advanced for finding Lincecum's discharge unlawful, we find-contrary to the Ad- ministrative Law Judge-that Respondent dis- charged Venable in violation of Section 8(a)(3) of the Act. Venable, like Lincecum and Tate, had been the object of Respondent's extensive unfair labor practices for having been a participant in the union meetings and for having been a party to so- liciting aid from outside labor organizations in re- solving the employees' problems with Respond- ent. 4 5 For his union activities, Venable was re- buked, suspended, and then transferred to Alexan- dria. Respondent's unlawful actions against Vena- ble coincided with similar unfair labor practices di- rected against Lincecum and Tate. From Respond- ent's efforts to curb these employee protected, con- certed activities emerges a pattern of similar treat- ment of these employees for discriminatory rea- sons. The discharge of Venable was merely the culmination of Respondent's efforts to mute these 46 As we have noted, to the extent the employees' solicitation of the state AFL-CIO involved matters of mutual concern relating to wages, hours. and working conditions, it is protected. Thus, as noted by the Ad- ministrative Law Judge, the Union's seeking and obtaining the aid of State AFL CIO President Bussie in transmitting the Guillot resolution to AFSCME President Wurf was protected activity X88X LOUISIANA COUNCIL NC). 17. AFSCME, AFL-CIO employees who, by their protected activities, had been a source of irritation for Respondent. Re- spondent has not proffered any convincing reasons for doubting that Venable's discharge was other than a continuation of its earlier discrimination against him. Considered in this context, it becomes clear that Respondent discharged Venable in viola- tion of Section 8(a)(3) of the Act. In reaching this conclusion, we have carefully considered Venable's post-transfer conduct in relation to the degree of provocation evident from Respondent's discrimina- tory actions. As noted, Venable had been suspended for a week and then transferred 100 miles from his home.4 6 The transfer was a continuing reminder that Venable was in Alexandria because of protect- ed activities. The abrupt discharge of Lincecum on September 12 and Frazer's out-of-hand rejection of Venable's suspension grievance on September 16 undoubtedly served to impress upon Venable the futility of seeking redress from Respondent and the inevitability of his discharge. Against this back- drop, it is understandable that Venable reacted with vehemence against the perpetrator of the unfair labor practices, i.e., Roger Frazer. While we do not condone Venable's post-transfer conduct, we will not allow Respondent to rely on that con- duct as a basis for discharging Venable. For, it is plain that but for Respondent's unlawful actions, the conduct attributed to Venable and relied on by Respondent, would not have occurred. According- ly, we find, contrary to the Administrative Law Judge, that Respondent violated Section 8(a)(3) of the Act by discharging Venable. The Alleged 8(a)(5) Violation The Unilateral Rescission of Credit Card Privileges In mid-June, Frazer, without bargaining or nego- tiating with the Union, announced that employees would no longer be able to use Respondent's credit cards. Instead, employees would submit a voucher reflecting payment of the item and they would thereafter receive reimbursement from Respondent. It is uncontroverted that, since 1972, Respondent and the Union have bargained about and agreed to the credit card privilege for employees. The Administrative Law Judge held that, even if the use of company credit cards is a condition of employment, Respondent was under no obligation to bargain over this change in the credit card privi- lege. Citing the Board's decision in Peerless Food 4- When Iold of the Iransfer. Venable expressed hi, belier that Ihc s.ui- pension and tranlfer were discriminatoril. motivated, and that, hb tranlls- ferring him to an area where Respondent knes he s ould be unproduc- live. Respondent was ill effect setting the stage for his discharge Products, Inc., 236 NLRB 161 (1978), and noting that travel vouchers were processed and employees reimbursed within a week, the Administrative Law Judge concluded that the change was not material. substantial, or significant. 4 7 We disagree. The law is clear; once the employees have se- lected the Union as their bargaining representative, an employer violates Section 8(a)(1) and (5) when it unilaterally-without consultation or negotiation with the Union-affects changes in wages, hours, and other terms and conditions of employment. 48 In this regard we have held that an employer's cancellation of credit card privileges constitutes a material change affecting working conditions.4 9 Thus, here the employees will be forced to use their own money, rather than Respondent's, and will be forced to wait up to a week or more for reimbursement. Accordingly, we find that Re- spondent violated Section 8(a)(5) of the Act by uni- laterally rescinding credit card privileges. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent. Louisiana Council No. 17, AFSCME, Baton Rouge, Louisiana, its officers, agents, and repre- sentatives, shall: 1. Cease and desist from: (a) Creating the impression of surveillance of the union activities of its employees by telling them of its awareness of a scheduled union meeting and thereafter telling employees of its knowledge of who had attended the union meeting and what had been said. (b) Threatening employees with reprisals if they attend a union meeting at the premises of the AFL-CIO. (c) Threatening employees with reprisals for en- gaging in the protected activity of filing charges with the Board and grievances under the contract. (d) Threatening employees with reprisals if they exercise rights guaranteed by Section 7 of the Act. (e) Promulgating a rule prohibiting employees from leaving their areas of assignment for the pur- pose of interfering with employees' union activities or the exercise of Section 7 rights. (f) Requiring employees to participate in meet- ings without union representatives, wvhern requested by employees, when employees have reasonable 7' The AdrllililSlirti e Las Judge also hrled Ih.ll. hbclctae et the ready aa lllhilily f of personal credit cards, the )loss ofl tire on ip.r! rcdl card pri, ileges s..s aiot material, subsiitantial, olr ignlificantil Is \ .L. R B Krtz, d/rhu WihamhirJ , Sfi, Prdu,,it (I , W.r I1 S 73 S l ( 1 2 -!* Sec firtd a SHw ld i Corp, 211 NRB 192i fi ?) " I)I'CISI()NS (): NAI'I()NA I .AB()OR REL.A I()NS O()ARI) grounds to believe that the matters to be discussed may result in their being disciplined, and actually imposing discipline. (g) Discouraging membership in or activities on behalf of Field Staff Representatives Union, Local Union No. I, or any other labor organization of its employees, by suspending employees because of their activities on behalf thereof, or otherwise dis- criminating in regard to their hire or tenure of em- ployment, or any terms or conditions of employ- ment of its employees. (h) In any other manner interfering with, re- straining, or coercing its employees in the exerise of their rights to self-organization; to form, join, or assist labor organizations; to bargain collectively through representatives of their own choosing; and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion guaranteed by Section 7 of the Act, or to re- frain from any or all such activities. (i) Threatening employees with transfer for en- gaging in protected union and concerted activities. (j) Reassigning job duties in order to retaliate for employees' protected union and concerted activi- ties. (k) Discouraging membership in or activities on behalf of the above-named Union by transferring employees because of their protected union and concerted activities. (I) Discouraging membership in or activities on behalf of the above-named Union by discharging employees because of their protected union and concerted activities. (m) Refusing to bargain collectively with the above-named Union by unilaterally rescinding credit card privileges. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Offer Herbert Lincecum and Joseph Kermit Venable full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiv- alent jobs, without prejudice to seniority or other rights and privileges, and make them whole for any loss of pay suffered by reason of their discharge, in the manner provided in F. W Woolworth Company, 90 NLRB 289 (1950), with interest as prescribed in Florida Steel Corporation, 237 NLRB 651 (1977). See, generally, Isis Pumbing & Heating Co., 138 NLRB 716 (1962). (b) Make Kermit Venable, Herbert Lincecum, and Melvin Tate whole for any loss of pay suffered by them by reason of their unlawful suspension by payment to them of the amount they would nor- mally have earned as wages during the period of their suspension in the manner set forth in the sec- tion of the Administrative Law Judge's Decision entitled "The Remedy." (c) Upon request, bargain collectively with the Union as the exclusive bargaining representative of Respondent's employees in the appropriate unit with respect to wages, hours, and other terms and conditions of employment. (d) Reinstate and give effect to the policy per- mitting employees to use Council credit cards. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at its Baton Rouge, Louisiana, facility copies of the attached notice marked "Appen- dix." 5 0 Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by the Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 15, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. '" In the ecenlt that this Order is enforced by a Judgment of a United States Court ,of Appeals, the word, in the notice reading "Posted by Order of the National Labor Relations Hoard" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Bonard." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT tell employees that we know about their union activities and create the im- pression that we are engaging in surveillance of their union activities. WE WILL NOT threaten employees with re- prisals if they attend a union meeting at the x') II.()L'ISIANA C()ONCII. N(). 17. AESCMIL. AFl -CI() premises of the AFL-CIO, or exercise rights guaranteed by Section 7 of the Act. WE Wl I. NOT threaten employees with re- prisals for engaging in the protected activity of filing charges with the National Labor Rela- tions Board or grievances under the existing contract. WE WIL I NOT tell employees they have been suspended because of their attendance at a union meeting at the premises of the AFL- CIO. WIE WIL. NOT promulgate a rule prohibiting employees from leaving their areas of assign- ment for the purpose of interfering with em- ployees' union activities or the exercise of rights guaranteed by Section 7 of the Act. WE WILL NOT require employees to partici- pate in meetings without union representation, when requested by the employee, when em- ployees have reasonable grounds to believe that the matters to be discussed may result in their being disciplined, and actually imposing discipline. WE WILL NOT suspend employees because of their activities on behalf of Field Staff Rep- resentatives Union, Local Union No.1, or any other labor organization. WE WILL NOT threaten employees with transfer for engaging in protected union and concerted activities. WE WIL . NOT reassign employees job duties in order to retaliate for employees' protected union and concerted activities. WE WILL NOT transfer employees because of activities on behalf of the above-named Union, or any other labor organization. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of rights guaranteed them under Section 7 of the National Labor Rela- tions Act, as amended. WE WILL make Kermit Venable, Herbert Lincecum, and Melvin Tate whole for any loss of pay suffered by them by reason of their un- lawful suspension by paying them the amount they normally would have earned as wages during the period of their suspension, with in- terest. WE WILL offer to reinstate employees Her- bert Lincecum and Joseph Kermit Venable to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to seniority or other rights and privi- leges, and make them whole for any loss of pay suffered by reason of their discharge. Wi WNr I , upon request, bargain collectisely with the above-named Union as the exclusive bargaining representative of our employees in the appropriate unit with respect to wages, hours, and other terms and conditions of em- ployment. WIF wili. reinstate and give effect to the policy permitting employees to use Council credit cards. You a;e free to become or remain members of Field Staff Representatives Union Local No. I, or any other labor organization. LOUISIANA COUNCIl AFSCME, AFL-CIO No. 17, DECISION SIAT1IMENI OF TIHt CASE HENRN L. JAI t r[i, Administrative Law Judge: This consolidated proceeding involves allegations that the above-named Respondent, a subordinate body of the American Federation of State, County and Municipal Employees, AFL-CIO (hereinafter referred to as AFSCME), in its capacity as an employer, violated Sec- tion 8(a)(1), (3), and (5) of the Act by threatening, sus- pending, and discharging employees because of their union and/or protected activities by denying employees union representation at a disciplinary meeting, and by unilateral changes in working conditions without notice to, or consultation with, Field Staff Representatives Union, Local Union No. I (hereinafter referred to as the Union), the representative of certain of its employees. The proceeding was initiated by charges filed by the Union in Cases 15-CA-6584 and 15-CA-6584-1 on August 23 and September 23, 1977,' and by a charge filed by Herbert Lincecum, a discharged employee of Respondent, in Case 15-CA-6584-2 on September 15. Pursuant to such charges, a consolidated complaint was issued on October 17. On October 3, Joseph Kermit Venable, another discharged employee of Respondent, filed the charge in Case 15-CA-6651, and pursuant thereto an order consolidating cases and complaint issued on November 2. On November 10. the Union filed a charge in Case 15-CA-6695, and pursuant thereto an order consolidating cases and complaint issued on No- vember 22. On January 9 through 13, 1978, a hearing was held in Baton Rouge, Louisiana. Upon the entire record,2 including my observation of the witnesses, and after due consideration of the briefs of the parties, I hereby make the following: Unlicss othcrwxisc indicated, all datec hercinaftcr re rc 1'977 GeJ'nctridl Counscl's unopposed motII to orrel the r.cord is hcrchb grazied DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I. TI H BUSINESS OF RESPONDENT AFSCME is a national labor organization with head- quarters in Washington, D.C., and with chartered locals in all States of the United States. Respondent is a subor- dinate body of AFSCME with its principal office in Baton Rouge, Louisiana. Respondent was created pursu- ant to article IX, section 15, of AFSCME's constitution and exists "to extend membership, to coordinate the ac- tivities of local unions, and to render greater service to the membership . . . ." Article IX, section 18, of AFSCME's constitution requires all local unions, unless permission is otherwise granted, to affiliate with the council proper to them, and, at all times material herein, Respondent has had a membership in excess of 10,000 persons in 69 affiliated locals. Both Respondent and AFSCME are supported finan- cially by per capita taxes required by AFSCME's consti- tution, article IX, sections 7 and 16. The per capita tax payable to AFSCME is $2.90 per member per month and to Respondent $3.40 per member per month. The parties stipulated that the Louisiana locals affiliated with Re- spondent who did not participate in an AFSCME joint account arrangement transmitted across state lines to AFSCME in Washington, D.C., per capita taxes in the approximate amount of $250,000 in 1977 and a similar amount in 1976. During the period from July 1976 to December 1977, the same locals paid per capita taxes to Respondent in an amount in excess of $250,000. Twenty-eight of the locals affiliated with Respondent handle disbursements of dues and per capita taxes through an account styled "American Federation of State, County and Municipal Employees Joint Account." Deposits are made in this account by Respondent and consist of dues checked off the wages of employees by employers which have been transmitted to Respondent. From this account are disbursed per capita taxes to AFSCME and to Respondent, and the remainder is transmitted to the local unions. For the period from July 1976, through December 1977, $100,182.65 was transmit- ted from this joint account to AFSCME as per capita tax. Based on the foregoing facts, which are either stipulat- ed or undisputed, General Counsel contends that the as- sertion of jurisdiction over the operations of Respondent is warranted. Specifically, the complaint alleges that, during the 12-month period preceding issuance of com- plaint, locals affiliated with Respondent transmitted across state lines to AFSCME per capita taxes valued in excess of $250,000, of which sum in excess of $50,000 was transmitted by Respondent. In Michigan District Council No. 177, American Federation of State, County and Municipal Employees, AFL-CIO (Association of Union Representatives), 196 NLRB 362 (1972), the Board assert- ed jurisdiction over another council affiliated with AFSCME where it had transmitted in excess of $50,000 in per capita taxes directly from Michigan to AFSCME. General Counsel relies on that decision for the assertion of jurisdiction herein. Respondent asserts that the case is not authority for the assertion of jurisdiction in this case, because all that the case reports are general statements about money transfers in the context of an uncontested assertion of jurisdiction, and that, in any event, Respond- ent herein does not transmit per capita taxes to ASFCME; rather, they are transmitted from a joint ac- count for which Respondent serves only a clerical and mechanical function. It is, in my judgment, unnecessary to rely upon the Michigan District Council No. 77 case or to determine whether the fact that moneys are transmitted by means of a joint account has any legal significance. In Chain Service Restaurant, Luncheonette & Soda Fountain Em- ployees Local 11, AFL-CIO, et al., 132 NLRB 960 (1961), the Board asserted jurisdiction over Local 11 as an inte- gral part of a multistate labor organization whose affili- ated locals remitted to the International across state lines dues and initiation fees exceeding $250,000. In this case, it is abundantly clear that Respondent is an integral part of AFSCME, that it is controlled by AFSCME, and, in fact, was placed under administratorship thereby leading to the unfair labor practices herein alleged. Accordingly, as an integral part of AFSCME which annually receives dues from locals affiliated with it in excess of $250,000, Respondent meets the Board's inflow standard for the as- sertion of jurisdiction. In light of the foregoing, it is unnecessary to consider other arguments for or against the assertion of jurisdic- tion except for Respondent's argument that jurisdiction should not be asserted for policy reasons. The so-called policy reasons are that the issues herein presented in- volve a "political" dispute within Respondent. The argu- ment is not persuasive and the authorities cited are inap- posite. It is rejected. 11. THE I ACUAL SETFING As noted in the discussion above, Respondent is a sub- ordinate body of AFSCME with an office in Baton Rouge, Louisiana, where it is engaged, inter alia, in orga- nizing employees, servicing affiliated locals, and servic- ing and negotiating collective-bargaining agreements. In nearly all cases, the employees are employed by various state agencies. The employees of Respondent who per- form such services are field staff representatives. Since August 1971, Respondent has recognized the Union as the exclusive representative of the field staff representa- tives and has been party to successive collective-bargain- ing agreements with the Union, the most recent of which has effective dates of August 1, 1977, to August 1, 1978. :3 Prior to May 23, Respondent was under the direction and supervision of a state director and an executive board. On May 23, pursuant to provisions of AFSCME's constitution, article IX, section 27, Roger Frazer, an AFSCME area director, was appointed administrator of Respondent. According to Frazer, the problems of the council were twofold: financial difficulties and lack of control over the staff because staff members were not re- :' It is clear. and I find. that the Ullion is an organization ill which em- ploy)eet paricipatle arid which exits wh, ll. or in part. for the purpose of dealing v ith Responldent conlcerning uages, rales of pay anld other terms ;and crtldilion, or employmC nl ilnad Ihat it i a labor organiilaiioin 'lhil the mealing of Sectlion 2(5) of the Act 892 LOUISIANA COUNCIL NO(). 17. AFSCME, AFL-CIO sponsive to the council office and were obtaining direc- tion from the state AFL-CIO. By virtue of his appointment, Frazer became the oper- ating head of Respondent displacing the executive board and the state director. On the day he took over the ad- ministration of Respondent, Frazer held a staff meeting to introduce himself and explain his policies. In particu- lar, he told the staff representatives that he had conclud- ed that they had never properly responded to the execu- tive director of the council and had looked to the AFL- CIO to resolve their internal problems with the council. He told them he would not tolerate circumvention of the council office. In mid-June, Frazer held another meeting at which he announced that staff representatives were no longer au- thorized to use credit cards for council business and the representatives turned in all credit cards in their posses- sion and they were destroyed. On or about August 8, staff representative Eugene Guillot was discharged. On August 17, staff representatives Herbert Lincecum, Kermit Venable, and Melvin Tate attended a union meet- ing at the AFL-CIO building in Baton Rouge. On August 18, they were suspended for I week. On August 20, Lincecum, Venable, Tate, Guillot, and staff representative Garland Webb, president of the Union, went to New Orleans to confer with the Union's attorney, Jerry Gardner. That same day, staff representa- tives received a mailgram from Frazer stating "none of the council 17 field staff personnel had permission to leave his area of assignment without specific approval by me." On August 26, Lincecum was transferred from Baton Rouge to New Orleans. On September 12, Lincecum was discharged. On August 26, Venable was transferred from Baton Rouge to Alexandria. On September 23, Venable was discharged. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Interference, Restraint, and Coercion As noted above, on August 17 the Union held a meet- ing at the AFL-CIO office building in Baton Rouge. Melvin Tate, recording secretary of the Union, testified that on the afternoon of August 16 he went to Frazer's office to talk about a business matter and before he could do so Frazer told him he had heard a rumor that there was to be a union meeting at the Louisiana AFL-CIO. He said, "what do you know about it?" Tate knew noth- ing and said so. Frazer then said, "Well, I want to tell you something. I am not going to take this lightly . . . it's going to be taken by me as a blatant violation of my verbally stated policy to you on May 23 about taking council 17 business to the AFL-CIO." Tate told Frazer this involved a union meeting and he asked Frazer what business it was of his. Frazer asked him again if he knew anything about the union meeting and Tate again said he did not. Frazer said he just wanted to know if Tate knew anything about it, that he had received some information there was going to be a meeting and he said he was not going to take it lightly. The following day, in a telephone conversation, Frazer told Tate he had confirmed the matter of the meeting at the AFL-CIO office and he repeated he was not going to take this lightly. Tate said, ". .. I believe you are talking about our paychecks, right?" Frazer said, "You got the picture." Bobby Garrett, a staff representative, testified that he received a call from Frazer on August 17 and that Frazer told him anyone attending the meeting at the AFL-CIO office would be in trouble, that this was in direct conflict with his policy against taking problems to the AFL-CIO. The complaint alleges that the foregoing conduct of Frazer created the impression of surveillance of union activities and also contained unlawful threats of reprisal against employees if they engaged in union activities.4 The foregoing testimony is uncontradicted and clearly supports a finding that Frazer created the impression of surveillance by his statements to Tate concerning the union meeting. It is equally clear that his statements to Tate and Garrett constituted implied threats of reprisals. Respondent contends the statements were not unlawful because they were directed not to attendance at union meetings as such, but to taking council business to the state AFL-CIO. This argument is discussed below rela- tive to the suspensions and is found lacking merit, essen- tially because an employer cannot tell its employees where they can conduct their union meetings. I find Re- spondent violated Section 8(a)(1) of the Act, as alleged. Lincecum testified that on August 18, in the conversa- tion wherein Frazer suspended him, Frazer told him he knew Lincecum had attended the union meeting, who the other participants were, what was said and by whom, and what action was taken. The complaint alleges, and I find, on the basis of this testimony that Respondent thereby created the impression of surveillance in viola- tion of Section 8(a)(1) of the Act. That same day, Lincecum, Venable, and Tate were told they were suspended because they had attended the union meeting at the AFL-CIO office. On August 19, according to Garrett, Frazer telephoned him and told him he had suspended Lincecum, Tate, and Venable for attending the union meeting. The complaint alleges that such statements to employees are independently violative of Section 8(a)(1). I agree and so find.5 On August 26, Tate returned to work and was in- formed his assignments were being changed and told he might be transferred to Lafayette sometime in the future. The complaint alleges that Tate's duties were changed and he was threatened with a transfer because he had at- tended the August 17 union meeting. I find no merit to the allegation. According to Tate's own testimony, at the very start of his meeting with Frazer, Frazer said, "We I There is no allegation of unlawful inierrogation I At a grievance meeting on September 16. relative to Ihe suspension, of Venable. Tate. and I incecunm. Frazer again staled that Ihe reason for the suspensions was Iheir attendance at the union meeting at the AFL- CIO office and he restated the same position on September 23 in denying the grievance General Counsel contends Respondent therehy committed Iwo additional i(aX I) violation, I see no reason to pass on thi, cumula- tion of allegations from what is essentiall one incident which makes no change in the remedy 893 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are going to start from [this] date and move into the future. I'm not going to hold any of your union activity or meeting in unauthorized places against you." After Frazer told late of his new assignment, Tate sought to discuss the matter of the union meeting and Frazer said, "Look, Mel, I don't want to talk about the past. Let's move forward. Let's make some progress in this program of ours." Tate testified that after that date Frazer did nothing which was inconsistent with his remarks. In my judg- ment, the remarks belie any claims of continuing animus against Tate and contradict the allegation that Tate's new assignment was unlawful or that he was unlawfully threatened with transfer. In this connection, I note that Tate's new assignment consisted in taking one Baton Rouge local away from him and assigning him one in Lafayette where the other locals he was servicing were located. I shall dismiss the allegations relative to this in- cident. As noted above, on August 19, Frazer sent a mailgram to all staff representatives stating "none of the council 17 field staff personnel has permission to leave his area of assignment without specific approval by me." The com- plaint alleges that Respondent promulgated and enforced the rule therein contained to discourage union and other protected concerted activities by its employees. In his brief, General Counsel contends that the rule is facially unlawful. I do not agree. Facially, the rule is wholly unrelated to union activity and can be deemed unlawful only if it is shown that it was intended to apply to the union activities of the employees. It is clear, and I find, that it was so intended, it fact, that it was intended to interfere with a meeting of employees with the Union's attorney, Gardner, in New Orleans on Saturday, August 20, relative to their grievances with Respondent. This finding is based on the uncontradicted testimony of Venable that on August 26 he overheard International representatives Terry Adkins, Owen King, and R. A. Carraway, and auditor Charles Glascoe talking in the office and King, an admitted agent, said the mailgrams had been sent because Respondent had learned of the meeting scheduled in Gardner's office. In light of this testimony, the timing of the mailgram, the fact that Re- spondent had never before instituted rules by mailgram and offered no evidence of an emergency, the finding is warranted that the rule appearing in the mailgram was adopted to interfere with the employees' union activities and the exercise of Section 7 rights and Respondent thereby violated Section 8(a)(l) of the Act. Frazer's ex- planation for the mailgram and his denial of knowledge of the meeting scheduled in New Orleans for Saturday is belied by all the circumstances and is not credited. Any suggestion that the policy was valid because an employer may prohibit union activity on company time is rejected as the policy on its face purported to apply to all times. Tate testified, without contradiction, that on Septem- ber 13, he had a conversation with Owen King, the council's public affairs director, at the Green Turtle Lounge in Lafayette, Louisiana, wherein King told him that he was creating a "hell of an image . . . and not helping yourself' by filing charges with the Board and grievances under the contract. King informed Tate that he should drop his charges with the Board, that he could not win, and that Tate was hurting himself in Frazer's eyes. The complaint alleges that King's remarks constituted threats of unspecified reprisals violative of Section 8(a)(1) of the Act. It is clear that the remarks contained implied threats aimed at Tate's exercise of Section 7 rights and that Respondent thereby violated Section 8(a)(1) of the Act if King was an agent of Respondent. Respondent stipulated he was an agent, but not a super- visor and contends that it cannot be held liable for King's remarks absent some evidence beyond the stipula- tion of agency. Essentially this is an argument that the remarks of King were not actually authorized. Under Section 2(13) of the Act they need not be. As public af- fairs director, King was clearly identifiable as part of management and employees could reasonably believe that he was expressing the views of management. I find Respondent violated Section 8(a)(l) of the Act, as al- leged. On September 12 Lincecum was discharged. Prior to and at the meeting with Frazer at which he was dis- charged Lincecum requested union representation. The request was denied. General Counsel contends that Lin- cecum had reasonable grounds to believe that the meet- ing to which he was summoned by Frazer might result in discipline and that, therefore, Respondent violated Section 8(a)(l) of the Act. I agree." Respondent does not really argue otherwise. Its only arguments are that the occurrence was isolated and inconsequential and that Lincecum was not harmed or prejudiced. The arguments lack merit. B. The 8(a)(3) Allegations 1. The suspensions of Lincecum, Tate, and Venable As noted earlier, on August 17, the Union held a meet- ing at the state AFL-CIO office in Baton Rouge to dis- cuss the discharge of staff representative Eugene Guillot, Jr. The meeting was attended by Guillot, Melvin Tate, Herbert Lincecum, and Kermit Venable. On August 18, Tate, Lincecum, and Venable were suspended for I week. The complaint alleges that the suspensions were attributable to their attendance at a union meeting and were therefore violative of Section 8(a)(1) and (3) of the Act. Respondent denies that the suspensions were attrib- utable to the attendance at a union meeting and contends rather that they were attributable to the fact that the meeting was held at the AFL-CIO office in violation of Respondent's directive to the employees to keep the Louisiana AFL-CIO out of Respondent's business. The distinction which Respondent makes is a fine one, but it is supported by the record. Thus, Tate testified that in the conversation on August 18 when Frazer sus- pended him he criticized Frazer for scaring people away from the meeting although, from what Tate had been told, Frazer approved it. According to Tate, Frazer said, "I did approve of it. I didn't approve it at the AFL-CIO Office." Lincecum testified that at a grievance meeting ; N.L R B. , J Weingurin. I, c, 42() U S 251 (11975. 894 L()UISIANA COUNCIL NO 17. AFSCME. AFL-CIO() relative to the suspensions Venable explained that the meeting was held in the library of the AFL-CIO office and Frazer replied, "I don't care .... You could have met anywhere you wanted to, ten thousand other places but you violated my policy when you met in that build- ing." Venable testified that when he was suspended Frazer told him it was for violating his policies and Ven- able told Frazer he did not feel Frazer had the right to tell "us where we can hold our Union meetings." On the basis of the foregoing, I find that Respondent suspended Lincecum, Tate, and Venable because the union meeting they attended was held at the AFL-CIO office. Respondent contends that in so doing Lincecum, Tate, and Venable were violating a valid directive of their employer and were disloyal to their employer, and that consequently their conduct was not protected. In support of this contention, Respondent cites cases where- in it was held that certain employee conduct was unpro- tected: E.g., N.L.R.B. v. Red Top Cab & Baggage Co.. et al., 383 F.2d 547 (5th Cir. 1967); N.L.R.B. v. Knuth Bros., Inc., 537 F.2d 950 (7th Cir. 1975); Firehouse Res- taurant, 220 NLRB 818 (1975); Southwestern Bell Tele- phone Company, 200 NLRB 667 (1972). The difficulty with Respondent's argument, however, is that he fails to point out in what respects the employees in this case were disloyal on August 17, apart from the fact that they went to the AFL-CIO office. There is no evidence that they defamed Respondent or sought to injure its inter- ests. As a matter of fact, the results of their meeting was a resolution directed to the International to direct Re- spondent to reinstate Guillot. Surely, Respondent does not contend that this activity was unprotected. As the record shows, when Frazer rejected other grievances he advised the Union of a right of appeal to the Internation- al. Respondent contends that the fact the employees met at the AFL-CIO office gave the appearance of disloyal- ty and it was justified in acting on such appearance. This is a Burnup & Sims, Inc.,7 argument, and it fails because whether or not Respondent believed the employees had engaged in disloyal conduct is no defense where, in fact, the record shows they have not engaged in such con- duct. The uncontradicted testimony here indicates that all the employees did at the AFL-CIO office was meet among themselves. There is no showing they conferred with any AFL-CIO official. Respondent's defense of dis- loyalty must therefore be rejected, and, inasmuch as the site to hold union meetings is a function of union activity interrelated to the exercise of the right to engage in union activities as protected by Section 7 of the Act, I find that Respondent violated Section 8(a)(1) and (3) of the Act by suspending Lincecum, Tate, and Venable for attending a union meeting at the AFL-CIO office. The record indicates that the day following the union meeting at the AFL-CIO office, Victor Bussie, president of the Louisiana AFL-CIO, made a trip to Washington to present the resolution adopted at the union meeting to Jerry Wurf, president of the International. It is clear from this that at some point after the union meeting the employees involved the AFL-CIO in the affairs of Re- 7 379 U S 21 ( 14I4) spondent contrary to Frazer's directive. In this circum- stance, it may be argued that it is splitting hairs to hold that the suspensions vwere unlawful because the AFL- CIO involvement was procured after the union meeting rather than at the union meeting. This would seem to me to be a sahd argument. How- ever, it leads to a question never answered by Respond- ent. What is disloyal or unprotected in seeking the assist- ance of Victor Bussie to present a grievance? Were not the employees and their union free, and did they not have the Section 7 right, to select Bussie as their spokes- man? Respondent has failed to show how this action de- famed it or was injurious to its legitimate interests or that there existed a conflict of interest between Bussie and it. In this connection, it must be carefully noted that the in- volvement of Bussie was in connection with the condi- tions of employment of the employees, and not in con- nection with the execution of Frazer's policies vis-a-vis organizing employees. Accordingly, I conclude that the involvement of Bussie relative to the resolution did not render the activities of the employees in connection with the union meeting unlawful. 2. The transfer of Venable and Lincecum Venable was a staff representative who had been em- ployed since January 1967. At the time Frazer became administrator, Venable's assignment was the servicing of local unions in the Baton Rouge area, plus duties in the state legislature in connection with legislation favored by Respondent. As noted above, on August 18, he was sus- pended for I week because of his attendance at a union meeting at the AFL-CIO office. He returned to work on August 26 and was told by Frazer that he was being transferred to Alexandria. Lincecum was employed by Respondent in May 1965 as a staff representative and, beginning in January 1967, his area of assignment was Baton Rouge where he serv- iced various locals and worked in the state legislature. While the legislature was in session, his entire time was devoted to the legislature. As noted earlier, on August 18, Lincecum was suspended for I week for attending the union meeting at the AFL-CIO office. On his return to work on August 26, he was told by Frazer that he was being transferred to New Orleans, The complaint alleges that the transfers of Venable and Lincecum were attributable to their union activities and violative of Section 8(a)(1) and (3) of the Act. Inasmuch as Venable and Lincecum had been the ob- jects of Respondent's unlawful conduct immediately pre- ceding the transfers, the very timing of the transfers and the fact that only they were transferred is prima facie proof of unlawful motivation. Respondent would rebut these circumstances on the ground that the transfers were part of a reorganization and a growth program being instituted by Frazer. Acceptance of Respondent's position almost requires an act of faith and an almost blind belief in Frazer's credibility I use the wrord "almost," because there is some record support for Re- spondent's position. Thus, on August 26, Frazer did more than transfer Venable and Lincecum. In addition, he held a staff meeting w here he spelled out the objec- X95 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tives of the growth program and he set up three areas of responsibility under various coordinators. It is true that the reorganization resulted in the geographical transfer of only Venable and Lincecum, but reasons were ad- vanced for this circumstance which I find plausible and credit. In Lincecum's case, it was appropriate to reassign him because he had been assigned full time to the legislature and the legislative session had ended. In Venable's case, a major part of his assignment had been to the legislature and he therefore also needed an assignment. Of course, both could have been reassigned to service locals and do organizational work in the Baton Rouge area as they had done for years. Respondent contends that its decision not to do so was predicated on what it perceived as a greater need for experienced representatives in New Orleans and Alexandria, its desire to assign to those areas employees of the council, rather than project staff (that is, tempo- rary employees of the International), and the fact that there had been complaints about Lincecum's and Vena- ble's performance in servicing the Baton Rouge locals in the past. There is a factual support for these assertions and I credit them. Thus, in Alexandria, by reason of the transfer, Venable became the only council employee and it is reasonable to want a long-tenured employee and a resident of the State to undertake a program that may endure for years, rather than employees only temporarily assigned to the area by the International. In New Or- leans, the area coordinator, Joe Volpi, was an employee of the council and it was not equally essential to Re- spondent's purpose that Lincecum be the one sent there, but this is a question of judgment which can be support- ed on other grounds, such as the complaints about Lince- cum's servicing of the Baton Rouge locals in the past. As to this latter point, I am persuaded that complaints had been registered about Lincecum and Venable and that Frazer was motivated in part by that circumstance. On the basis of the foregoing, I conclude that the evi- dence is insufficient to support a finding that the trans- fers were discriminatorily motivated. In reaching this conclusion, I have considered the fact that Frazer ig- nored seniority and perhaps even breached the contract.8 However, the issue before me is not one of a breach of contract, but one of motivation and, in this connection, General Counsel has not shown who Respondent could have transferred instead of Lincecum and Venable and still accomplished its legitimate objectives. I have also considered the fact earlier described that when Tate returned from his suspension, Frazer told him "we are going to start from this date and move into the future. I am not going to hold any of your union activity or meeting in unauthorized places against you." There is no indication that Frazer made the same remark to Ven- able and Lincecum, yet it is noted that in Frazer's memo- randum to Lincecum on August 26 relative to the trans- fer (G.C. Exh. 9) Frazer expressed the hope that "when you returned from your suspension we could put the ' While the contract does rnot make seniority the sole criteri.on il trillls- fer% (it provides for "all other factors are equal"), the record indicates that Frazer ignored Ihe contracl proivnision completely According Io .in- cecum', unconlradicted teslimony, Frazer told him the conitract had nothing to do with seniority on transfers issue behind us and go forward together in the task of rebuilding our union." These sentiments belie a discrimi- natory purpose. 3. The discharge of Venable Venable reported to Alexandria on August 29 and began performing the assignments given him by Area Coordinator Terry Adkins. On September 19, after a staff meeting at a motel, the representatives had a rap session which was participated in by Adkins. In the con- versation, Staff Representative Bobby Garrett remarked that Frazer had said staff representatives had no rights whatsoever. Adkins concurred and said their loyalty was strictly for the people who gave the orders. He said they could not tell them who their friends were going to be, but they could tell them what they were going to talk to their friends about. Venable spoke up and said he knew that Adkins was referring to his relationship with the people from the AFL-CIO and that that friendship was not going to cease, they were not going to tell him what to talk to his friends about on his own time. He said, "you bunch of pricks are going to leave this state and I am going to have to continue to work with these people." Adkins said he did not appreciate being referred to that way and asked Venable if he was referring to Frazer. Venable said if the shoe fits wear it. On September 22, Venable met with Frazer at Frazer's request. According to Venable, the meeting began by Frazer telling Venable he had called him in to talk to him about his attitude; namely, that Venable had a very negative attitude toward the Union. Venable denied that and said that his negative attitude was towards Frazer. Frazer said that Venable had a negative attitude because of the statement he had made to Adkins at the staff meet- ing described above. Venable repeated what he had said to Adkins and, Frazer said, "in other words, you are in- sinuating that Wurf and I are pricks...." Venable said, "if the shoe fits, wear it." Frazer then accused Venable of submitting reports in too much detail. He referred to the fact that they were written in red ink, which he viewed as showing hostility towards his program. Vena- ble denied that and claimed he had written reports in red ink because he happened to have a red pen at that time which he liked. As to the details in his reports, he said he was doing so under direct orders from Terry Adkins. Frazer accused him of making statements to the cen- tral labor council to the effect that he was going to do whatever he wanted to and would not pay any attention to what Frazer and Wurf had to say. Frazer claimed Staff representative Robinson had given him this report and Venable called Robinson a liar. Frazer referred to the fact that in his reports Venable had called Frazer a liar. Venable admitted it, but stated that in doing so he was merely reporting what had occurred at a grievance meeting in which he had accused Frazer of lying about transferring him. Frazer asked Venable if he resented his being in the State and Venable said he did because he thought Frazer was there to hurt the organization and he resented the fact that he was taking those actions. Frazer said that he did not see that he could do or say anything to change that attitude and he told Venable he would 896 LOUISIANA COUNCIl NO() 17. AFSCME, AFL-CIO( notify him by mail as to what his status with the organi- zation was. On September 23, Venable was discharged. General Counsel contends that Venable was dis- charged because of his union activities and in continu- ation of the discrimination practiced against Venable be- ginning with his suspension and followed by his transfer. Respondent contends that Venable was discharged be- cause of his attitude. While there are disputes about certain of the facts, there is no dispute about what occurred at what turned out to be the termination conversation between Venable and Frazer on September 22. What has been set forth above in that regard is Venable's description of the con- versation and, in my judgment, Venable's admission of his resentment of Frazer and his vulgar reference about Frazer and Wurf, without more, would support a finding that Venable was discharged for cause. General Counsel contends, however, that Venable had been provoked by the unlawful treatment he had previously received at the hands of Frazer in suspending him and transferring him. In such a circumstance, General Counsel asserts that "a certain amount of leeway is to be granted an employee's reaction to his employer's wrongful provocation," and he cites Trustees of Boston University v. N.L.R.B., 548 F.2d 391 (Ist Cir. 1977), enforcing 224 NLRB 1385 (1976). General Counsel's argument loses its force in view of my conclusion that the transfer of Venable was not dis- criminatorily motivated. Be that as it may, assuming, ar- guendo, the transfer was unlawful, it is evident that there is a substantial difference between an employee reaction to discriminatory treatment consisting of a single impul- sive act of brandishing a pair of scissors and a reaction reflecting an attitude so hostile to the employer as to render the employee unfit for continued employment. In my judgment, the resentment against Frazer displayed by Venable on September 22 indicates clearly that he could not have continued to perform the duties of staff repre- sentative as required by his employer. Venable's hostility towards Frazer and his program was demonstrated by conduct prior to his termination conversation. As a matter of fact, it was such conduct which led to Frazer's summoning Venable to his office on September 27. The conduct consisted of derogatory remarks about Frazer and Wurf made to Jim Robinson, an International field representative with whom Venable worked in the Alexandria area; remarks of Venable at a control labor council meeting on September 20; and re- marks of Venable to Coordinator Adkins about Vena- ble's weekly reports, in particular the report wherein he stated Frazer "should have been an actor. He is by far the best liar I have ever seen." As to these matters. there is no substantial contradiction except for the incident at the central labor council meeting and, in this matter, I credit witnesses Robinson and Honeycutt. My reason for so doing is that what is alleged to have been said by Venable on that occasion is of a piece with the remarks he admittedly made on other occasions. As to the liar comment in his weekly report, I do not accept the expla- nation that it was part of his description of his activities; in my judgment, the remark wvas gratuitous and provoca- tive.9 In summary, I conclude that Venable's conduct fol- lowing his transfer constituted good cause for discharge. 4. The discharge of Lincecum Lincecum reported to New Orleans on August 29. He worked 4 days and was not scheduled to work until Sep- tember 6 because of a long Labor Day weekend and he did not work on September 6 because of his daughter's illness. He worked September 7, 8, and 9, and on Sep- tember 9 he was told to report to Frazer on September 12. On September 12, Lincecum met with Frazer and was fired. General Counsel's contention relative to the motive for Lincecum's discharge is the same as that asserted re- garding Venable's discharge; namely, that it was attribut- able to his union activities and in continuation of the dis- crimination practiced against him earlier. Respondent contends that Lincecum was discharged because of his attitude toward Frazer's program. The motive behind the discharge of Lincecum is more difficult to determine than was the case with Venable, because the facts supporting Respondent's assertion that it was his attitude are not as clearly established as they were in Venable's case. One matter on which Respond- ent relied was Lincecum's alleged reference to a staff representative who had replaced him as a "nigger" and to another as a prostitute. Jada Hirschmann, secretary- treasurer of the council, testified Lincecum made such remarks to him on August 28. Lincecum denied making the remarks. I do not credit him. Lincecum did not im- press me favorably and in this matter "doth protest too much." As to Hirschmann, I can see no purpose for him to concoct such a conversation as he described. Another matter on which Respondent relied was re- ports from Area Coordinator Joe Volpi that while Lin- cecum was doing his assignments he was really doing little else, showing no initiative to act on his own as ex- pected of an experienced organizer. At the very outset of his assignment, Lincecum expressed disagreement over Volpi's description of AFSCME'S problem vis-a-vis state employees. Volpi attributed the problem to organization from the top down and said AFSCME had to start acting like a stronger union and Lincecum said that was not so. Volpi also testified that he began to experience diffi- culties organizing. For example, prior to Lincecum's transfer, the representatives had been allowed to meet with highway employees on State property before and after work and during their lunch period. On August 29, Lincecum was assigned to distribute newspapers to var- ious highway units and was instructed to do it before work or at lunch break. Later that day, Volpi received a report that a district engineer of the department had been chewed out for allowing the Union to meet with 9 I would not regard the fact that the reports were written in red ink as showing hostility The fact that Frazer did so put into question what his real mosive was in discharging Venahle. hut. On balance, I conclude the malter was insufficient to overcome shat I viewed as substantial evi- dence of cause for discharge 897 I)t'OlSI()NS ()F NA I'I()NAI. IAi()R REL.AlTIO()NS BO()ARI) employees during working hours. By implication, Volpi blamed L.incecum for this. Volpi described a similar oc- currence relative to a meeting scheduled for 7:30 p.m. that night. In this instance, however, the chewing out occurred before the meeting ever took place, and Volpi told Lincecum "apparently some s.o.b. blew the whistle on us." Volpi testified Lincecum acted surprised, but by implication,. he blamed Lincecum. Staff Representative Wilbur Bateman testified he worked with Lincecum I day and asked Volpi not to send Lincecum with him again because he felt uneasy. He attributed his uneasiness to the fact that during the few hours he worked with Lincecum, Lincecum made phone calls after each meeting Bateman set up and Bate- man felt Lincecum was reporting what was going on. Roger White, another staff representative who worked with Lincecum in New Orleans, testified that there was a lack of participation on Lincecum's part in executing as- signments given to him. He testified that Lincecum asked him how he would feel if he had been replaced by a black man and a woman and transferred 100 miles away and asked if White felt he could be very committed or could White really involve himself in the program. He also adverted to an incident wherein a black chair person on one of the organizing committees asked him not to send Lincecum to a particular location because she did not feel there could be a working relationship between Lincecum and that organizing committee. She based her request on the fact she was black and she felt Lincecum had a problem with that. He described the incident wherein he and Lincecum had visited a particular build- ing during a lunch period to meet with certain employ- ees. The meeting had been in accordance with an agree- ment with a supervisor, yet the following day the em- ployees were questioned about the meeting by a supervi- sor and generally harassed. White concluded he could do a better job without Lincecum. In addition to the foregoing incidents relative to Lin- cecum's attitude, Respondent adduced testimony such as that of White that Lincecum told him, in the context of his problems with the administratorship, that "Some people do not understand Louisiana policies. Sometimes it is necessary to crack the rats' skulls so some of the knowledge will seep in." Jada Hirschmann testified that in his August 28 conversation with Lincecum, Lincecum adverted to the fact that the union literature was printed as AFSCME this and AFSCME that with no mention of the AFL-CIO, and that the automobile tags on the coun- cil lot were all out-of-state. Lincecum told Hirschmann he would need his support but he never described what it was. The foregoing conduct of Lincecum is not so nearly egregious as that of Venable. As a matter of fact, the most serious part, the possibility that he was deliberately causing problems with the organizational campaign, is based on suspicions. Nevertheless, I am persuaded that the matters described support Respondent's assertion that the motive for Lincecum's discharge was not related to his union activities, but rather to his attitude toward Fra- zer's program. In reaching this conclusion, I am aware of the great weight I am giving to Frazer's testimony about his reasons when I have discredited him on another matter (the mailgram). Nevertheless. I am convinced from my observation of Lincecum and from my sense of the record as a whole that Frazer's assessment of Lince- cum was fully justified. Accordingly, I shall dismiss the allegation that his discharge was violative of Section 8(a)(1) and (3) of the Act. C. The 8(a)(5) Allegations I. The change in the grievance procedure Article VIII of the collective-bargaining agreement be- tween Respondent and the Union in effect at the times herein material provides, in relevant part, as follows: All grievances arising under the terms of this agreement shall be handled as follows: A. Between the grievance committeemen of F.S.R.U., the grievant and the State Director or his designee. 1. The grievance filing shall be limited to thirty (30) days. 2. The state Director or his designee shall render a decision within five (5) working days following the hearing. B. Between the grievance committeemen of F.S.R.U., the grievant and the Council Executive Board. I. The Executive Board shall render a written decision within five (5) working days after the hear- ing. C. All grievances will be handled originally at the level at which they occur. On August 22, the Union filed a grievance with Henry LeBert, state director of Respondent, over the suspen- sions of Staff Representatives Lincecum, Tate, and Vena- ble and the discharge of Guillot. On August 24, LeBert advised the Union that in light of the administratorship he was referring the grievance to Frazer. On August 26, grievances were filed over the transfer of Lincecum and Venable and they, too, were referred to Frazer by LeBert. On September 16, a grievance hearing was held in Frazer's office relative to the suspensions and on Septem- ber 30, one was held relative to the transfers. On September 23 Frazer denied the grievance relative to the suspensions and, on October 7, he denied the grievance relative to the transfer. In his letters setting forth his actions, Frazer advised the Union that his deci- sion was subject to review by International Union Presi- dent Jerry Wurf. General Counsel contends that the foregoing proce- dure constituted a modification of the contractual griev- ance procedure set forth above in that it eliminated the second step relating to appeals to Respondent's executive board and created a new second step of appeals to Wurf. I find no merit in the General Counsel's contention, nor do I deem the cases cited by him and by the Union to be apposite. We are not faced here with a successor's obligation to bargain, nor is economic necessity or good faith at issue. Nor are we faced with a withdrawal of I ()UISIANA CO()UNCIl NO. 17. AFSC ME, AFL. CIO recognition or a repudiation of a contract. Rather, we are faced with the fact of an administratorship imposed on Respondent and the legal effects thereof on only one aspect of the contract; namely. the grievance procedure In concluding that Respondent did not violate Section 8(a)(5) of the Act as alleged in the complaint, I rely upon the fact that whatever change occurred was the result of Respondent's having been placed under adminis- tratorship, a matter which involved a managerial deci- sion, not subject to bargaining. I also rely upon the fact that the change was minimal and consistent with the powers vested in the administrator by virtue of article IX, section 35, of AFSCME'S constitution wherein the administrator is empowered, among other things, to sus- pend from office any officers. In this connection, the record indicates that at a staff meeting on May 23, Frazer advised the staff representatives, among whom were the officers of the Union, that he had assumed the authority of the executive board and executive director. As a result, Staff Director LeBert no longer had an oper- ative post and the executive board was without authori- ty. Instead, Frazer was vested with the functions former- ly performed by both. Accordingly, when Frazer there- after undertook to hold a hearing on the grievances filed by the Union and to render a decision thereon, he was in effect standing in the shoes of State Director LeBert. Since the executive board no longer had any authority, the provision of the girevance procedure for the second step appeal to the executive board was no longer capable of performance. Accordingly, and as the offer of an appeal to International Union President Wurf was a tender of an alternative avenue of appeals, which the Union was free to accept or reject, I find that Respond- ent did not violate Section 8(a)(1) and (5) of the Act. 2. Revocation of credit card privileges At a staff meeting in mid-June, Frazer informed the employees that all oil companies had been instructed to cancel credit cards issued to Respondent and he request- ed the employees to turn in the credit cards which had been issued to them. The contract did not provide for credit cards, but according to the uncontradicted testi- mony of Garland Webb, president of the Union, and Hubert Lincecum, the privilege of using credit cards for the purchase of gasoline and oil in connection with busi- ness travel had been negotiated with and agreed to by Respondent since 1972. General Counsel contends that by discontinuing the privilege without notice to and con- sultation with the Union Respondent violated Section 8(a)(1) and (5) of the Act. Respondent's defense appears to be that it was justified in acting unilaterally because of the difficult financial straits in which Frazer found Respondent, including $7,000 in unpaid oil company bills, and that, in any event, the discontinuance of the credit card privilege was at best a de minimis change in employee working condi- tions. Economic justification is, of course, no defense to a charge of unilateral conduct. If the matter is a condi- tion of employment and a proper subject of bargaining within the meaning of Section 8(d) and 8(a)(5) of the Act, the fact that there was economic justification is no defense. Peerlcss Food Products, Inc., 236 NLRB 6Ih1 (1978). The question that is posed, then, is whether the use of credit cards in Respondent's name for business purchases is a condition of employment. In Florida Steel Corpora- tion, 231 NLRB 651 (1977), the Board appeared to so hold, but there were different factual considerations. In my judgment, assuming arguendo that the use of credit cards for business purposes is a proper subject for bar- gaining and relates to a condition of employment. a find- ing that Respondent violated Section 8(a)(5) by its unilat- eral action is not warranted. As the Board stated in Peer- less Food. supra, not every unlawful change in conditions of employment constitutes a breach of the bargaining ob- ligation. The change mus, be "a material, substantial, and a significant" one. In the instant case, the record indi- cates that travel vouchers were processed and employees reimbursed within a week. In this circumstance, and con- sidering the ready availability to all people of a variety of credit cards which staff representatives could utilize in their own names and not be required to use cash, a find- ing that the change here in question was a material, sub- stantial, or significant change is not warranted. I shall dismiss the allegation relative thereto. IV. THE EFFECT OF THE UNFAIR I.ABOR PRACTICES UPON COMMFERCF The activities of Respondent set forth above, occur- ring in connection with its operations described above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. THE REMEDY Having found Respondent has engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, I shall recommend that it be ordered to cease and desist therefrom and take appropriate and affirmative action designed to effectuate the policies of the Act. As to Respondent's refusal to permit Lincecum to have union representation at his termination meeting with Frazer, General Counsel has requested a remedy consistent with the remedy in Certified Grocers of Califor- nia, Ltd., 227 NLRB 1211 (1977). In that case, an em- ployee was required to participate in a meeting with the employer's representative and at such meeting was given a 2-week disciplinary layoff. To remedy the unfair labor practice, the Board ordered the employer to rescind the disciplinary action and to make him whole for the loss of pay resulting therefrom. I assume, therefore, that in re- questing a remedy herein similar to that in Certified Gro- cers, the General Counsel is requesting that Lincecum be reinstated and made whole for any loss of pay suffered by reason of his discharge. In fashioning the make-whole remedy in Certified Gro- cers, the Board did not articulate its rationale. An exami- nation of the decision does not reveal any causal rela- tionship between the denial of union representation and the disciplinary layoff. One can conjecture that the Board's rationale was either that had the employee been D)[CISIONS OF NATIONAL LABOR RELATIONS BOARD granted his statutory right to representation he would not have been disciplined, or that, at the very least, Re- spondent by denying him union representation created a situation where it was impossible to determine what would have happened had the employee been granted his statutory right and Respondent must therefore suffer the consequences. Or yet again, the Board may simply have concluded that restoration of the status quo ante was es- sential in order to give meaning to the statutory right which had been violated. Initially, it appeared to me that a remedy similar to that in Certified Grocers was inappropriate in this case, because I had concluded that Lincecum was discharged for cause. However, in Anchortank, Inc., 239 NLRB 430 (1978), the Administrative Law Judge had found that an employee was discharged for cause; however, the em- ployee had been denied his right to union representation at the disciplinary meeting and the Board held that his discharge resulted from the disciplinary meeting and it ordered him reinstated. The Board's conclusion that the discharge resulted from the disciplinary meeting was not based on any facts in the record but was a legal con- struct derived from the facts that he was denied his right to union representation and was discharged. Similarly here, there are no facts to support a finding that Lince- cum's discharge resulted from, or was a consequence of, the disciplinary meeting at which he was denied union representation."' To put it another way, there is no showing of cause and effect. Nevertheless, I deem myself bound by the Board's approach to the situation in An- chortank. Inc., and I shall recommend that Lincecum be offered immediate and full reinstatement to his former position or, if such position no longer exists, to a substan- tially equivalent position, without prejudice to his senior- ity or other rights and privileges previously enjoyed, and to make him whole for any loss of earnings he may have suffered by reason of his discharge by payment to him of money equal to that which he normally would have earned as wages, from the date of his discharge to the date of the offer of reinstatement, less net earnings, and interest thereon to be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Flor- ida Steel Corporation, 231 NLRB 651 (1977).'1 1o In this connection, it is noteworthy that in Venable's case, which is substantially similar to Lincecum's, Venable's request for union represen- lalion was granted He was also discharged I See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). As to the suspensions of Kermit Venable, Herbert Lin- cecum, and Melvin Tate, I shall recommend that Re- spondent make them whole by paying them the wages which they lost by reason of their unlawful suspension computed in the manner specified above. CONCLUSIONS OF LAW 1. Louisiana Council No. 17, AFSCME, AFL-CIO, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Field Staff Representatives Union, Local Union No. 1, is a labor organization within the meaning of Section 2(5) of the Act. 3. By creating the impression of surveillance of the union activities of its employees, by threatening employ- ees with reprisals if they attended a union meeting at premises of the AFL-CIO, or exercise rights guaranteed by Section 7 of the Act, by telling employees that em- ployees have been suspended because of their attendance at a union meeting at premises of the AFL-CIO, by pro- mulgating a rule prohibiting employees from leaving their areas of assignment for the purpose of interfering with employees' union activities or the exercise of Sec- tion 7 rights, and by requiring employees to participate in meetings without union representation, where such union representation has been requested by employees, where employees have reasonable grounds to believe that the matters be discussed may result in their being disciplined and discipline actually imposed, Respondent engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(l) and Section 2(6) and (7) of the Act. 4. By suspending Herbert Lincecum, Kermit Venable, and Melvin Tate, because of their attendance at a union meeting at premises of the AFL-CIO, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. 5. General Counsel has not established by a preponder- ance of the evidence that Respondent violated Section 8(a)(1) and (3) of the Act by reason of the transfer and discharge of Kermit Venable and Herbert Lincecum, or Section 8(a)(l) and (5) of the Act by changing the griev- ance procedure and revoking credit card privileges. [Recommended Order omitted from publication.] ')X) Copy with citationCopy as parenthetical citation