Tri-State Carpenters

National Labor Relations Board - Board Decisions

Jul 23, 1980

250 N.L.R.B. 901 (N.L.R.B. 1980)

TRI-STATE CARPENTERS & JOINERS DISTRICT COUNCIL
Tri-State Carpenters & Joiners District Council and
Office & Professional Employees International
Union, Local 179. Case 10-CA-13624
July 23, 1980
DECISION AND ORDER
BYt CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On May 30, 1979, Administrative Law Judge
Benjamin Schlesinger issued the attached Decision
in this proceeding. Thereafter, the General Counsel
and the Charging Party' filed exceptions and sup-
porting briefs, and Respondent filed a brief in op-
position to exceptions filed by counsel for the Gen-
eral Counsel.
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 but only to the extent consistent herewith.
We agree with the General Counsel and OPEIU
that Respondent has refused to bargain with
OPEIU, the representative of Respondent's office
employees, in violation of Section 8(a)(5) of the
Act. We also agree with the General Counsel and
OPEIU that Respondent's discharge of Betty
Newton on December 16, 1977, violated Section
8(a)(3) and (1) of the Act.
The basic facts are not in dispute. For several
years prior to 1975, OPEIU represented Respond-
ent's office clerical employees under an oral agree-
ment. At the beginning of OPEIU's representation
of the office employees, Respondent only em-
ployed one office clerical, Betty Newton. In 1975,
OPEIU sought a written agreement with Respond-
ent covering the office unit and such an agreement
was ultimately executed on March 1, 1976, effec-
tive from November 1, 1975, to October 31, 1976.
On March 1, 1976, Respondent also hired Hubert
Hill as a second office clerical employee. 2 On
August 30, 1976, Business Agent Gray, on behalf
of Respondent, and pursuant to the terms of the
contract, served written notice on OPEIU of Re-
spondent's desire to "alter, amend or annul" the
agreement. Harris, OPEIU's business representa-
tive, responded on September 3, 1976, suggesting
' Herein called OPEIU
2 During the pendency of the arbitration proceedings, Responldcnl, in
December 1976, hired Joanne Weyers a% an office emplosee Like
Newton and Hill, Weycrs,. shortrly after her employment, xolunltaril,
joined OPEIU
several dates for bargaining during October 1976.
Gray did not respond to Harris' letter.
Prior to Respondent's August 30, 1976, notice to
amend the contract, Gray, on July 6, 1976, dis-
charged Betty Newton. OPEIU grieved Newton's
discharge. Respondent rejected the grievance and
the issue was eventually submitted to arbitration.
More than a year after the discharge, on October
29, 1977, the arbitrator rendered his award finding
that Newton was not discharged for just cause and
ordering her reinstated to her former position. On
October 31, 1977, Gray requested a reconsideration
and clarification of the arbitrator's award. The ar-
bitrator's decision on reconsideration affirming his
original award was rendered on November 25,
1977.
From the time of Harris' September 3, 1976, re-
sponse to Gray's letter of August 30, 1976, and
during the pendency of Newton's grievance and ar-
bitration proceeding, neither party made any fur-
ther attempt to meet and negotiate a new collec-
tive-bargaining agreement for the office employees.
Notwithstanding this extended period, both Hill
and the subsequently employed Weyers remained
dues-paying members of OPEIU.
On November 2, 1977, 5 days after the arbitra-
tor's award ordering Respondent to reinstate
Newton, Hill and Weyers wrote a letter to Harris
suggesting that since they were such a small unit
they would conduct their own negotiations unless
Harris indicated, by November 9, that OPEIU
would negotiate on their behalf. On November 7,
Harris responded to their letter advising that he
was ready to negotiate and enclosed a copy of a
letter he sent to Gray suggesting several dates in
November for negotiations. On November 9, Gray
responded to Harris' letter of November 7, noting
that the contract had long since expired and that:
. . . by no stretch of the imagination could
one call this a continuation of negotiations
after the lapse of one (1) year and two (2)
months.
Gray continued:
If it is the desire of your union to negotiate an
agreement, and if a majority of our employees
who would be in the bargaining unit want to
be represented by your union you should so
inform us.
On November 15, Gray again wrote Harris stat-
ing:
In my letter dated November 9, 1977, I stated
if it was your desire that your union negotiate
an agreement with us that you should notify us
250 NLRB No. 125
9O1
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that you represented the majority of the em-
ployees in the bargaining unit.
As of this date I have not received any com-
munication from you in this regard, therefore,
I assume that you no longer have any desire to
negotiate an agreement on behalf of our em-
ployees.
On November 21, Harris responded to Gray's
letter of November 15, by reminding Gray that
Harris had sought negotiation dates in his letter of
November 7, and pointing out that one suggested
date, November 30, remained available at this time.
Harris then suggested various dates he would be
available in December and requested Gray's choice
of dates to resume negotiations. Harris also advised
Gray that OPEIU had three members:
. . . two of whom are currently employed by
your organization, with the other awaiting
return in accordance with an arbitration deci-
sion: Joanne S. Weyers, Hubert W. Hill and
Betty Newton.
Harris also reminded Gray that there was a need to
negotiate the effects of the arbitration award as
soon as possible.
Hill and Weyers testified that during this same
period, the fall of 1977, they had advised Gray
that, although they wanted to remain members of
OPEIU, they did not want OPEIU to bargain on
their behalf. Hill and Weyers testified that they had
indicated this position to Gray prior to November
2, 1977, but that they had not at any time men-
tioned this position to Harris. Weyers also testified
that she and Hill had negotiated with Gray a wage
increase on September 1, 1977, which was to take
effect in November 1977. During this same period,
Gray issued copies of employee rules to both Hill
and Weyers, required them to read the rules, and
to acknowledge the same by signing their names at
the bottom of the page.3 Included, inter alia, was
rule 7, which reads as follows:
7. In general your services to the Council
and its elected officials must be performed in
such a fashion as to be above reproach. You
are not to discuss any of the business of the
office, job problems, grievances, work assign-
ments or critize [sic] any individual or activity
a Gray testified that the rules had been in existence for some months
three. four or fi've months.") heftre Newton returned to work on
November 30() He also testified that Weyers typed the rules but did not
remember whether Weyer, and Hill signed Ihem the day Weycrs typed
them or lsome days later Weyers did nol testify on signing tile rules Hiill
testified several times that he did nol recall whenr he signed the rules hut
esventuall) lestified it was ahout Ihree weeks hefore Newtonl returned to
work The Administrative Law Judge accepled Giray's version hb findirlg
that Hill and WcNers had signed the cards several months heforc (ray
presented then 1to Newton Ion Norember 30) See Adrminlistratise Iav
Judge's Decisionl at fi, 2.)
within the office except with the Business Repre-
sentative. Violation of these instructions will
result in your immediate dismissal. [Emphasis
supplied.]
As noted above, with regard to Betty Newton,
the arbitrator issued his award on October 29,
1977, and on November 25, 1977, denied Respond-
ent's motion for reconsideration. Pursuant to his
award, Newton returned to work on November 30,
1977. During the morning of her first day at work,
Gray handed Newton a written request that she
supply him with a weekly breakdown of her lost
earnings, giving her 2 days to present her claim. At
this time, Gray already had an appointment to have
lunch with Harris that same day, but Gray did not
make any request to Harris for this information,
nor did he advise Harris during the luncheon meet-
ing that he had requested the information from
Newton. Newton contacted Harris and made plans
to meet with him that afternoon, after his luncheon
meeting with Gray. Newton took a late lunch and
met with Harris at 1:30 p.m. Around 2:15 p.m.,
Newton and Harris realized that they could not
complete the computation within her lunch hour
and she called Gray advising him of her where-
abouts and that additional time would be needed.
However, the next day, Gray handed Newton a
letter reprimanding her for (I) changing her lunch
hour, and (2) returning late thereby
"circumvent[ing] all plans for your productive
work for the balance of the day." Gray also pre-
sented Newton with a copy of the employee rules,
discussed above, and had her read and sign a copy
of the rules.
After computing Newton's lost earnings, Harris
sent Gray a copy of Newton's claim for backpay
on November 30. On December 2, Gray, although
he had received Harris' November 30 letter, asked
Newton for the backpay information he had re-
quested. Although Gray responded affirmatively to
Newton's inquiry as to whether he had received
Harris' letter, he told Newton that he wanted a
statement from her. Newton complied by writing
Gray a short note and attaching thereto a copy of
Harris' computations. On December 5, Harris
wrote Gray protesting Gray's conduct on Novem-
ber 30, and his letter to Newton of that same date.
On December 7, Gray addressed another letter to
Newton criticizing her because of Harris' letter of
November 5. Gray wrote:
Now I have received a letter from a third
party who purports to have an interest in
same, and he has the effrontery to castigate me
for the letter.
902
TRI-STATE CARPENTERS & JOINERS DISTRICT COUNCIL
I wish to remind you that in the future I shall
expect you to discuss with me any problem
you may have during your employment here.
If you cannot do this you should so inform
me.
On December 13, Gray addressed another letter
to Newton setting forth his computation of the
backpay due her, and, on December 14, Newton
responded, objecting to several items in Gray's
letter. Gray discharged Newton 2 days later, on
December 16, 1977, giving as his grounds for the
termination a lack of work.
Respondent's Refusal To Bargain
Once a bargaining relationship is established,
there is a presumption of continued majority status
which can be rebutted by a showing on the part of
an employer that he has a reasonable doubt, based
on objective considerations, that a majority of the
unit employees, in an atmosphere free of unfair
labor practices, have decided that they no longer
want the union to represent them. 4
In dismissing this allegation, the Administrative
Law Judge relied on the testimony of employees
Hill and Weyers that they told Gray they did not
want the OPEIU to represent them, as well as the
fact that the General Counsel did not allege that
Respondent violated the Act in encouraging Hill
and Weyers to disavow their representative. The
Administrative Law Judge's conclusion fails, how-
ever, to take account of all the facts.
The Administrative Law Judge noted correctly
that the record is not precise as to the times, dates,
places, and content of the statements by Hill and
Weyers. The record does reveal, however, the fol-
lowing chronology. After receiving Respondent's
request to "alter, amend or annul" the agreement in
August 1976, the OPEIU responded by suggesting
several bargaining dates. Respondent never replied
to the OPEIU. During that period through the
events here, the OPEIU continued actively to
pursue Newton's grievance through arbitration. On
or about September I, 1977, Respondent's agent,
Gray, negotiated directly with Hill and Weyers a
wage increase to take effect in November 1977.
Hill and Weyers testified that they made their re-
marks about union representation to Gray in the
fall of 1977. Gray said he could not recall the date
but that it occurred before the arbitrator's award in
the Newton case which issued on October 29,
1977.5
* Terrell Machinle Cemnpauny. 173 NLRB 1480 (19s).
' This crucial evidence on which the Administrative L.av Judge
placed so much ,eight apparently did not make a very deep impression
on Gray Thus Gras responded to a question from Respondent', counsel
as follo"s
On November 2, 1977, several days after the ar-
bitrator's award issued, Hill and Weyers wrote to
the OPEIU stating that a "small unit can be bur-
densome on our union and you might say we are
'more trouble than we are worth,' however we do
intend to remain members." They offered to relieve
the OPEIU of its obligation to negotiate a new
contract on their behalf with Respondent. But they
left the choice to the OPEIU. This letter did not
indicate that Hill and Weyers no longer wanted the
OPEIU to represent them. The significance of this
letter, for our purpose here, is that Gray read the
letter "the same day, the next day, or a day or two
after" it was sent to the OPEIU and was, there-
fore, well aware that Hill and Weyers continued to
consider the Union to be their bargaining repre-
sentative. Further, the record shows that OPEIU
Representative Harris wrote to Hill and Weyers on
November 7 reassuring them that the OPEIU
would represent them and at the same time wrote a
letter to Gray about the continuation of negotia-
tions for contract renewal.
It was not until after the above-described ex-
change of letters, on November 9, that Gray first
told the OPEIU that they would have to show its
majority status before Respondent would resume
negotiations. Whatever the import of Hill's and
Weyers' earlier remarks to Gray, it is clear that
Gray did not act on those remarks and that he was
well aware from the November 2 letter that Hill
and Weyers had not abandoned the OPEIU as
their bargaining representative.
In addition it cannot be overlooked that Hill's
and Weyers' remarks to Gray in the fall of 1977
occurred after Respondent in September 1977 ne-
gotiated separately with them a pay increase to
take effect in November 1977. Also, these remarks
occurred in the context of Respondent's unilateral
promulgation and application of employee rule 7
which strikes at the heart of the OPEIU's relation-
ship with its members. 6
In the circumstances here, we find that Respond-
ent did not have reasonable grounds based on ob-
Q Did they contact you with reference to whether or not they;
wanted you to negotiate a contract with the Charging Party'
A A cold yes or no is difficult to answer that with, hut. I'd as.
yes. they told me they did not desire a contract with the Offrce
Workers Urnion.
The Administrative La"s Judge found that rules I and 7 siolated Sec
8(a)(I) if the Act IIl the absence of exceptions b) Respondenlt to Ihis
finding. sse adiopt it prnforirnu
The Administrative Lau Judge al¥so found that the G(encral Counsel
has nolt lcomplained that Respontdent xiolated the Act in encouraging IHill
and Wever, Io disavouw their represenCtati.e We note. howsc. er. that the
hurden was a not on the General Counsel to sho, tIhalt Iill and Weser
talked with Gray hecause oif Rcsponldenit', unfair lahor practices Intltead,
the burden is on Resprlndenlt 1to sho, .tha is u, llidriv.\al of rcognlitioll
skas predicated on ,bjectlse conlsidrations ;illd that it occurred in an al-
mos,pherc frec of unfalir labor praltihes
903
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
jective considerations, in an atmosphere free of
unfair labor practices, for doubting OPEIU's ma-
jority status in November 1977. Accordingly, we
find that Respondent's refusal to bargain with
OPEIU as the representative of its office employ-
ees violated Section 8(a)(5) and (1) of the Act.
The Discharge of Betty Newton
The Administrative Law Judge concluded that
"Newton was finally terminated solely because of
the personality conflict between her and Gray, and
for no reason relating to union or protected con-
certed activities." Although the Administrative
Law Judge may well have observed during the
hearing "a mutual and intense distaste [between
Gray and Newton] for one another" and there may
well have been a personality conflict between
them, Respondent did not claim that Newton was
discharged because of a personality conflict. In-
stead, Respondent told Newton that she was dis-
charged because of a lack of work.
We do not adopt the Administrative Law
Judge's conclusion. Thus, Respondent did not
claim either at the time of the discharge or at the
hearing that Newton was discharged because of a
personality conflict with Gray. Hence we find reli-
ance on evidence of personality conflict during the
hearing to be misplaced.
Nor can we accept Respondent's explanation
that Newton was discharged because of a lack of
work. Thus, we note that the Administrative Law
Judge found that, after Newton was discharged on
July 6, 1976, Respondent hired Joanne Weyers in
December 1976, apparently to take up the slack
caused by Newton's discharge. It is understandable,
therefore, that the arbitrator's award ordering the
reinstatement of Newton may well have resulted in
an extra employee. But it cannot be overlooked
that Newton was the senior employee, having been
hired first in July 1970. The other two unit em-
ployees, Hill and Weyers, were hired in March and
December 1976, respectively. Gray's only explana-
tion for having selected the most senior of three
employees for discharge was that he chose to keep
the "most efficient employee, nothing else entered
into it." Gray offered no explanation for how he
arrived at his conclusion that Newton was the least
efficient of the three office employees.
We find that Newton's discharge on December
16 flowed directly and inexorably from her union
and protected concerted activities. Thus, we note
that the arbitrator found that Gray discharged
Newton in 1976 because she had attempted to
secure her contractually mandated vacation bene-
fits. Upon her return to work, pursuant to the arbi-
trator's award ordering that Newton be reinstated
to her "former position" or a "reasonably equiva-
lent position," Respondent instead assigned
Newton to perform menial and meaningless tasks.
Gray immediately pressed Newton for her backpay
computations and insisted that she provide them
personally even after Union Representative Harris
had provided the figures to Gray. Furthermore,
Gray complained to Harris about Newton's ap-
pointment as contract representative for negotia-
tions. In addition, Gray reprimanded Newton be-
cause she sought out her OPEIU agent and be-
cause her OPEIU agent wrote to Gray complain-
ing about Gray's treatment of Newton. In this
latter connection, Gray demanded that Newton
"take her problems solely to him and not to her
Union representative." This demand was an overt
attempt to apply to Newton the unlawful rules pro-
hibiting employees from discussing, inter alia, "job
problems, grievances, work assignments . . .
except with the Business Representative." New-
ton's discharge followed directly on the heels of
her letter to Gray concerning backpay computa-
tions and informing Gray that she was asking
Union Representative Harris to seek advice from
OPEIU's general counsel, Finley, on the status of
the arbitration award.
In sum, we find that Gray's conduct between
November 30 and December 16 shows that he was
not about to accept Newton's successful grievance
and her return to work. 7 In addition, it is clear that
Gray's ire with Newton was enhanced by her seek-
ing advice and assistance from OPEIU Representa-
tive Harris, contrary to the unlawful rules restrict-
ing employees' discussions recently adopted by Re-
spondent. Thus, we find that Respondent's asserted
reason for Newton's discharge was pretextual and
that the real reason was her union and protected
activities. Accordingly, we conclude that Respond-
ent violated Section 8(a)(3) and (1) by discharging
Newton on December 16.
CONCLUSIONS OF LAW
1. Respondent Tri-State Carpenters & Joiners
District Council is an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
7 There is testimony by Newton and Harris concerning remarks alleg-
edly made by Gray that he 'Was not about to accept Nev;ton's return to
work but was going to make a move to gel rid of her The Administra-
tive Law Judge has not described these remarks in his Decision and has
not made specific credibility findings as to the testimony of Newston,
Harris, and Gray. Although such remarks further support our cinclu-
sions, we find it unnecessary to rely on them here We have relied instead
on correspondence between Gray and Harris and between Gray and
Newtonl inl arriving at our conclusiont
904
TRI-STATE CARPENTERS & JOINERS DISTRICT COUNCIL
2. Office & Professional Employees International
Union, Local 179, is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent, by reprimanding and threatening
employee Betty Newton with discipline for seeking
the advice of and consulting with her union repre-
sentative, and by promulgating, maintaining, and
applying rules prohibiting employees from discuss-
ing their job problems, grievances, work assign-
ments and criticizing any individual or activity
within the office, except with Respondent's busi-
ness representative, has interfered with, restrained,
and coerced its employees in the exercise of their
rights guaranteed under Section 7 of the Act, in
violation of Section 8(a)(l) of the Act.
4. By discharging Betty Newton on December
16, 1977, Respondent violated Section 8(a)(3) and
(I) of the Act.
5. By refusing on or about November 9, 1977,
and at all times thereafter, to recognize and bargain
collectively with the above-named labor organiza-
tion as the exclusive bargaining representative of
all of Respondent's office clerical employees, Re-
spondent has violated Section 8(a)(5) of the Act.
6. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Respondent has engaged in
unfair labor practices, we shall order that it cease
and desist therefrom and take certain affirmative
action designed to effectuate the policies of the
Act.
Having found that Respondent unlawfully dis-
charged Betty Newton, we shall order Respondent
to offer her immediate and full reinstatement to her
former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to
her seniority and other rights and privileges, and
make her whole for any loss of earnings she may
have suffered by reason of the discrimination
against her, by payment to her of a sum of money
equal to that which she normally would have
earned from the aforesaid date of her termination
to the date of Respondent's offer of reinstatement,
less her net earnings during such period. The back-
pay provided herein shall be computed with inter-
est thereon in the manner prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977). 8
8 See, generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962).
In accordance with his dissent in Olympic Medical Corporatrion, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
Having found that Respondent unlawfully re-
fused to bargain with the Union, we shall order
that, upon request, it bargain with the Union as the
exclusive representative of all employees in the ap-
propriate unit, and, if an understanding is reached,
embody such understanding in a signed agreement.
In light of the variety, seriousness, and severity
of Respondent's misconduct, which amply demon-
strates a general disregard for employees' statutory
rights, we shall issue a broad cease-and-desist
order. Hickmott Foods, Inc., 242 NLRB 1357
(1979).
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,
Tri-State Carpenters & Joiners District Council,
Chattanooga, Tennessee, its officers, agents, succes-
sors, and assigns, shall:
i. Cease and desist from:
(a) Reprimanding its employees for seeking the
advice of and consulting with their union repre-
sentatives.
(b) Promulgating, maintaining, and applying
rules prohibiting employees from discussing their
job problems, grievances, and work assignments
and criticizing any individual or activity within the
office, except with Respondent's business repre-
sentative, insofar as the rules interfere with, re-
strain, or coerce employees in the exercise of their
rights guaranteed under Section 7 of the Act.
(c) Discharging or otherwise discriminating
against any employee because of his or her activity
on behalf of Office & Professional Employees In-
ternational Union, Local 179, or any other labor
organization.
(d) Refusing to bargain collectively concerning
rates of pay, wages, hours, and other terms and
conditions of employment with the above-named
labor organization as the exclusive bargaining rep-
resentative of its employees in the following appro-
priate unit:
All office clerical employees employed by Re-
spondent at its Chattanooga, Tennessee, busi-
ness office, but excluding all other employees,
guards and supervisors as defined in the Act.
(e) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Offer Betty Newton immediate and full rein-
statement to her former job or, if that job no
905
DEFCISIO)NS ()F NATIO()NAL LAIO()R RELATIONS BO()ARD
longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other
rights and privileges previously enjoyed.
(b) Make Betty Newton whole for any loss of
pay she may have suffered as a result of her unlaw-
ful discharge in the manner set forth in the remedy
section of this Decision.
(c) 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.
(d) Recognize, and, upon request, meet and bar-
gain collectively with Office & Professional Em-
ployees International Union, Local 179, as the ex-
clusive representative of the employees in the
aforesaid appropriate unit with respect to wages,
rates of pay, hours of employment, and other terms
and conditions of employment.
(e) Post in conspicuous places at its business of-
fices and meeting halls, including all places where
notices to employees are customarily posted, copies
of the attached notice marked "Appendix."9
Copies of said notice, on forms provided by the
Regional Director of Region 10, after being duly
signed by an authorized representative, shall be
posted by Respondent 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.
(f) Notify the Regional Director for Region 10,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
9 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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.
WEt WILL NOT reprimand our employees for
seeking the advice of and consulting with their
union representatives.
WE WILL NOT promulgate, maintain, en-
force, or apply any rules or regulations prohib-
iting our employees from discussing their job
problems, grievances, and work assignments
and criticizing any individual or activity
within our office, except with our business
representative, insofar as such rules or regula-
tions interfere with, restrain, or coerce our em-
ployees in the exercise of their rights guaran-
teed under Section 7 of the Act. Insofar as our
rules restrict the rights of our employees, they
are hereby rescinded.
WE WILL NOT discharge or otherwise dis-
criminate against any employee because of his
or her activity on behalf of Office & Profes-
sional Employees International Union, Local
179, or any other labor organization.
WE WILL NOT refuse to bargain collectively
with the above-named labor organization as
the exclusive bargaining representative of our
employees with regard to rates of pay, wages,
hours, and other terms and conditions of em-
ployment. The bargaining unit is:
All office clerical employees employed by
us at our Chattanooga, Tennessee, business
office, but excluding all other employees,
guards and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed them in Section 7
of the National Labor Relations Act.
WE WILL. offer Betty Newton immediate
and full reinstatement to her former job or, if
that job no longer exists, to a substantially
equivalent position, without prejudice to her
seniority or any other rights and privileges
previously enjoyed.
WE WILL make Betty Newton whole for
any wages she may have lost as a result of our
discrimination against her, plus interest.
TRI-STATE CARPENTERS & JOINERS
DISTRICT COUNCIL
DECISION
STATEMENT OF THE CASE
BENJAMIN SCHLESINGER, Administrative Law Judge:
This proceeding involves two issues: (I) whether em-
ployee Betty Newton was issued a warning notice,
threatened, and then discharged by Respondent Tri-State
Carpenters & Joiners District Council (Carpenters Union
herein) because of her membership in, and activities on
IRI-ST.AT:- CARPI.NF'rl RS & J()INFRS I)IS'RICI C()INCIL
behalf of, Charging Party Office & Professional Employ-
ces International Union. Local 179 ()ffice Employees
Union herein) and because she engaged ill concerted ac-
tivities for the purposes of collective bargaining and
other mutual aid and protection, in violation of Section
8(a)(3) and (1) of the Act: and (2) whether Respondent
Carpenters Union failed and refused to bargain with
Office Workers Union in violation of Section 8(a)(5) of
the Act. The hearing was held in Chattanooga, Tennes-
see, on January 27, 1979, based on a complaint, dated
June 7, 1978. The underlying unfair labor practice
charge was filed by Office Employees Union on April
27, 1978.
Upon the entire record, including my observation of
the demeanor of the witnesses, and after due considera-
tion of the briefs filed by the General Counsel, Office
Employees Union, and Carpenters Union, I make the fol-
lowing:
FINDIN(iS oF FACT
I. JURISDICTION
Carpenters Union admits, and I find, that it is a labor
organization with its office and place of business located
in Chattanooga, Tennessee, and is and has been at all
times material herein engaged as an intermediate service
body for United Brotherhood of Carpenters & Jointers
of America, AFL-CIO (Carpenters Internationl herein),
with various locals located in Chattanooga, Tennessee
and vicinity. Carpenters Union, during the 12 months
preceding the issuance of the complaint, which period is
representative of all times material herein, has received
gross revenues in excess of $150,000 in per capita assess-
ments from its affiliated local labor organizations and
during the same time period has received gross revenues
in excess of $5,000 directly from an affiliated local labor
organization located outside the State of Tennessee. Fur-
ther, Respondent is affiliated with, and an integral part
of, Carpenters International which during the same time
period received dues and initiation fees in excess of
$1,000,000 directly from its affiliated locals located in
various States of the United States. Accordingly, I find,
as Carpenters Union admits, that it is and has been at all
times material herein engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
I further find, as Carpenters Union admits, that Office
Employees Union is, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Refusal To Bargain
I. The facts
It cannot be said that there was a lengthy formal bar-
gaining relationship between Carpenters Union and
Office Employees Union, although there has been for
many years a tacit recognition of Office Employees
Union by Carpenters Union for its sole office employee.
During the hearing, reference was made to a 1949 collec-
tive-bargaining agreement; but it was not introduced, and
I do not know how long it was in effect, if there was
such an agreement. However, General Counsel concedes
that there was an "unusual pattern of representation that
. . . existed since 1949 [reflecting] a preference that,
absent problems, no written contract was deemed neces-
sary."
Newton was first employed in July 1970, and some 5
years later she decided that the informal arrangement be-
tween the two Unions was insufficient to protect her so
she sought the aid of Office Employees Union to secure
a written agreement. Negotiations were held in late 1975
and early 1976, and a written agreement was signed on
March 1, 1976, for a term commencing on November I,
1975, and continuing to October 31, 1976, and thereafter
until written notice was given by one of the parties to
alter, amend, or annul the agreement. That was the first
and last written agreement involved in this proceeding.
When Newton was discharged on July 6, 1976, Hubert
Hill, who had been hired on March 1, 1976, was then
employed by Carpenters Union as a clerk. In December
1976, Joanne Weyers was hired, apparently to take up
the slack caused by Newton's discharge. Those three em-
ployees, the only employees of Carpenters Union cov-
ered by the collective-bargaining agreement,' became
and remained members of Office Employees Union up to
the time of the hearing.
By letter dated August 30, 1976, Carpenters Union
gave notice to Office Employees Union that it desired to
alter, amend, or annul the agreement. Thus, the agree-
ment expired by its terms on October 31, 1976. Although
by return letter dated September 3, 1976, Office Employ-
ees Union notified Carpenters Union of dates its repre-
sentative would be available to meet and negotiate and
requested Carpenters Union to select one of those dates,
Carpenters Union never replied to the letter; and the
issue of continuing negotiations became dormant for
more than a year (except possibly one meeting in late
1976 or early 1977, which merely touched upon the issue
of the delays encountered in continuing negotiations)
until after an arbitration award was rendered finding that
Newton had not been terminated with just cause and or-
dering her reinstatement. On November 7, 1977, Harris,
president and business representative of Office Employ-
ees Union, advised Carpenters Union that Newton would
return to work and, with her return, Office Employees
Union desired that negotiations commence for a new
agreement. Both Hill and Weyers testified that, by then,
each of them had advised Carpenters Union business
agent, Howard Gray, that they did not want Office Em-
ployees Union to represent them in collective-bargaining
negotiations. Nonetheless, on November 2, 1977, Weyers
and Hill wrote to Harris stating that they had been
working without a contract, but that they had received
increases in wages and benefits in the interim; that they
knew that a small unit "like us" can be burdensome and
The parties agreed ihat all office clerical employees employed by
Carpenters Union at its Chattanooga. Tennessee, business office. but ex-
cluding all other employees, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purpose, of collective bargaining
within the meaning of the Act. The 1975 76 agreement covered the
office manager, secretary. steno-bix)kkeeper. stenographer. clerk, file
clerk, and typist
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"more trouble than we are worth"; that "If you feel that
the interests of the Union can be preserved without our
having an agreement we would be satisfied to work out
our own arrangements with" Carpenters Union; and, fi-
nally, that if they received no response from Harris by
November 9, 1977, they would proceed to consummate
an agreement for themselves and relieve Harris and
Office Employees Union of that responsibility.
By letter dated November 7, 1977, Harris replied that
shortly after Newton was dismissed, Gray informed him
that both Weyers and Hill were "perfectly agreeable" to
continuing to receive the benefits of the agreement
which expired on October 31, 1976, and that Harris had
received no request from them since that date that they
wanted him to assist in negotiating an agreement. Harris
further stated that it was his belief that "bargaining
should await the participation of the local union desig-
nee," Newton, who is "our contract representative," and
that Harris had already written to the president of his in-
ternational union for strike authorization in case Carpen-
ters Union took an adamant position. Notwithstanding
this advice, Weyers and Hill struck their own bargain
with Gray in late December 1977.
On the same day that Harris wrote to Weyers and
Hill, November 7, 1977, Harris also wrote to Gray re-
questing the resumption of bargaining. On November 9
and 15, Gray wrote that he would bargain only if Harris
demonstrated that Office Employees Union represented a
majority of Carpenters Union employees. On November
21, Harris wrote Gray stating that Newton, Weyers, and
Hill were members of the Office Employees Union, but
Gray ignored the advice.
2. Conclusions
The principle has long been established that after a
collective-bargaining agreement has expired, an employer
may lawfully withdraw recognition from an incumbent
union because of an asserted doubt of the union's contin-
ued majority, if its withdrawal occurs in a context free of
unfair labor practices and is supported by a showing of
objective considerations providing reasonable grounds
for a belief that a majority of the employees no longer
desire union representation. Peoples Gas System, Inc., 214
NLRB 944 (1974). Here, there was a change in two-
thirds of the bargaining unit and, although both Hill and
Weyers became members of Office Employees Union
and continued their membership to the date of the hear-
ing, both testified that they openly expressed to Gray
that they did not want Office Employees union to repre-
sent them in collective-bargaining negotiations; and
Gray, in turn, corroborated this testimony. That is suffi-
cient to create a good faith doubt of Office Employees
Union's majority status vis-a-vis bargaining and provides
the necessary objective considerations.
I recognize that Gray's actions, and indeed those of
Weyers and Hill, were not wholly consistent with their
professed intent not to bargain with the assistance of
their union. The letter of November 2, 1977, from
Weyers and Hill to Harris leaves open the question of
the members' authority to Harris to negotiate on their
behalf, pending Harris' favorable reply, which they in
fact received. Gray's letters to Harris do not state that
Weyers and Hill did not desire that Office Employees
Union negotiate on their behalf; all he questions is
whether that Union represented a majority of his em-
ployees. Further, at the meeting on November 30, 1977,
when Harris requested the resumption of negotiations,
Gray merely replied that he did not know whether or
not he would do so.
Nonetheless, I am faced with the testimony of both
Weyers and Hill that they did not want Office Employ-
ees Union to represent them and so stated to Gray prior
to his refusal to bargain. Although their testimony may
not have been precise as to times, dates, places, and con-
tents of statements, Grand Lodge of Ohio, Independent
Order of Odd Fellows d/b/a Odd Fellows Rebekah Home,
233 NLRB 143 (1977), I cannot question their clearly ex-
pressed intent to bargain for themselves, find a violation
of the Act, and order Carpenters Union to bargain in
their behalf, when they clearly do not desire that result.
Office Employees Union questions in its brief the bona
fides and justification for the actions of Weyers and Hill.
That is not at issue: an employee may opt out of repre-
sentation by a union for valid reasons, for invalid rea-
sons, or for no reasons at all.
Further, General Counsel has not complained that
Carpenters Union violated the Act to encourage Weyers
and Hill to disavow their representative. In light of the
fact that the bargaining relationship herein was, at best,
casual, with Harris' recognition in his November 7, 1977,
letter of Carpenters Union's right to make unilateral
changes in wages and other conditions of employment,
Gray's direct discussions with his employees and adjust-
ments of their pay were seemingly condoned, as they
had been, with one exception, for almost 30 years of this
most unusual collective-bargaining relationship. I would
be remiss if I did not make note of Gray's encourage-
ment of the membership of Weyers and Hill in Office
Employees Union, including his loan of money to Hill to
pay his initiation fees. Finally, I find that there is nothing
wholly inconsistent between Hill's and Weyers' desire to
remain members of a union, while refusing to consent to
that union's negotiating in their behalf. I will, therefore,
recommend that this portion of the complaint be dis-
missed.
B. The Discharge of Betty Newton
1. The facts
As stated above, Betty Newton was discharged on
July 6, 1976. Office Employees grieved and claimed in
arbitration that she was discharged without just cause.
On October 29, 1977, arbitrator E. H. Rayson rendered
his award ordering that she be reinstated within 10 days,
with backpay through March 31, 1977. Carpenters Union
requested that the arbitrator reconsider and clarify cer-
tain portions of his award, but by decision dated Novem-
ber 25, 1977, the arbitrator refused to do so and reiterat-
ed his finding that Newton was entitled to reinstatement.
Newton returned to work on November 30, 1977.
It is not necessary to detail the causes of Newton's
first discharge, except to note that the relationship be-
tween her and Gray was at best hostile, Gray accusing
908
TRI-STATE CARPENTERS & JOINERS DISTRICT COUNCIL
her of meddling into internal union politics, "bad mouth-
ing" him, "knifing [him] in the back," and creating strife
and dissension against him; and Newton accusing Gray
of being a "dictator," aided by a lot of "pimps." Upon
her return to work, with this background of animosity, I
find that Gray had no intention of keeping Newton on.
By that time he had Weyers, whom he considered to be
an accomplished stenographer and bookkeeper, as con-
trasted with Newton, whom he considered "very poor
and antagonistic and arrogant, and because of that I
detest her attitudes, her conduct, her responses, her arro-
gance, her stubborness." Further, Gray stated (and Gen-
eral Counsel concedes in his brief) that he had no need
for a third employee, for whom he did not have ade-
quate space. Thus, Weyers was given tasks which were
continuing jobs to do, whereas Newton was given filing
of papers dating back to 1968 and other "make work"
until the work dried up and she was laid off. Whether
she was reinstated to her job pursuant to the arbitrator's
decision is presently sub judice before the United States
District Court in Tennessee; but it is apparent that, from
November 30, 1977, the first day of her reinstatement,
much of Newton's former work was being performed
and thereafter continued to be performed by Weyers.
Of course, the General Counsel contends that Newton
was laid off because of her activities on behalf of Office
Employees Union and protected concerted activities, in
violation of Section 8(a)(3) and (1) of the Act. There is
no doubt that, from the time of her reinstatement, tem-
pers had not cooled. On November 30, 1977, Gray re-
quested by letter that Newton furnish "a weekly break-
down statement showing loss of hours and wages [she]
incurred from July 7, 1976 through March 31, 1977 . . .
by December 2, 1977. If, however, additional time is
needed [she] should request this in writing immediately."
The formality of Gray's letter and the 2-day notice with
the possibility of an extension of time to comply, upon
written request, demonstrates Gray's desire to make life
as uncomfortable for Newton as possible.
Newton, in turn, took it upon herself to change her
lunch hour that day from 12 noon to I p.m. and left at
1:30 p.m. to meet with Office Employees Union president
and business representative Harris. She returned to Car-
penters at 4 p.m. that afternoon. Her 2-1/2 hour lunch
period, taken without the consent of Gray, gave Gray
ammunition to warn Newton by letter given to her the
following day, accompanied with the statement that "as
far as he was concerned, the matter was not closed." 2
2 On the same day, Gray gave Newton a paper containing written
rules of employment and asked her to sign the same, which she did In-
cluded in the rules were the following:
I, The confidentially [sic) of the District Council is not to be
abridged. This includes the activity of all officers, all business
agents, other employees, telephone conversations. correspondence
and oral conversations Violation of this will result in your imme-
diate dismissal
7 In general your services to the Council and it's [sic] elected offi-
cials must be performed in such a fashion as to be above reproach
You are not to discuss any of the business of this office. job prob-
lems. grievances, work assignments or critize [sic] any individual
or activity within the office except with the Business Representa-
The letter expressed Gray's displeasure with some of
[her] activities during [her] first day upon return to
work, notified her that he would not tolerate her con-
duct, and warned her that if similar conduct occurred,
she would be subject to immediate termination. Gray's
objections to Newton's lengthy lunch break were that
she "upset the plans" that Gray made in her behalf and
"circumvented all plans for your productive work for
the balance of the day." Although it is an employer's
prerogative to assign work to its employees, which I do
not question, it is clear that the filing of paperwork from
1968 was singularly unimportant and unproductive to
Gray. However, the nature of Gray's objection is in-
structive of his intent to harass and torment Newton
from the time she was reinstated.
The conflict between the two continued when on De-
cember 2, 1977, Gray asked Newton if she had the fig-
ures of her backpay ready. Newton asked Gray whether
he had received the letter from Harris which set forth
the amounts claimed under the award. Gray said that he
had received such a letter, but his request was for a
letter sent by her. Newton then went to Harris' office,
typed up a letter, attached Harris' letter, and gave both
to Gray.
On December 5, Harris wrote to Gray complaining
about his reprimand of Newton in the November 30
letter, stating that it was "a good example of the chil-
dishness which makes a good relationship with you diffi-
cult," and explaining that Newton was with him on No-
vember 30 "because of the short deadline imposed upon
her" to prepare the statement of backpay and the diffi-
culty of Harris' schedule to meet with her. On December
7, Gray gave the following letter to Newton:
Upon your return to work on November 30, 1977,
you were told by me that there was not a collective
bargaining agreement in effect between the Tri-
State Carpenters District Council and the
O.P.E.I.U.
I gave you a letter requesting a statement from you
which would show the amount of hours and wages
lost from July 7, 1976, through March 31, 1977.
Upon receiving the letter you stated you wanted to
talk to Mr. Harris about it to which I replied that it
was none of my business who you talked with but I
wanted a statement from you. It was necessary for
me to remind you again on December 2, 1977, that
I desired the statement or if you needed additional
time you should so state in writing. You then pre-
sented the statement on December 2, 1977.
On December 1, 1977, I gave you a letter of repri-
mand stating it would become a part of your file.
Also on this same date I asked you to read a list of
instructions concerning your activities while em-
tive Violation of these instructions will result in your Immediate
dismissal
General Counsel makes no claim that the imposition of these rules,
',hich had been signed by 9 eyers and ill seeral months before. iolal-
ed the Act Gray testified that he prepared the rules as a result of the
Nes iton arbitration proceeding. during which Office Employees Uniton
made much of the fact that Carpenters, Unionll hatd no such rules
909
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployed here. After you read them you asked if I
wanted you to sign it and when I replied "yes" you
signed it and handed it to me with a request you be
given a copy. I complied with your request.
Now I have received a letter from a third party
who purports to have an interest in same, and he
has the effrontery to castigate me for the letter.
I wish to remind you that in the future I shall
expect you to discuss with me any problem you
may have during your employment here. If you
cannot do this you should so inform me.
In America one choose's their own friends and asso-
ciates with whomever they please, and I would be
the last one to infringe upon this, however, it is not
incumbent upon me to accept any criticism directed
to me by any of your acquaintances or associates. I
hope this doesn't happen again.
Newton was discharged 9 days later.
2. Conclusions
Clearly, the object of Gray's wrath in his letter of De-
cember 7, 1977, was Harris, the Office Employees Union
representative who had successfully processed Newton's
grievance before the arbitrator. Although Gray professed
in his letter that Newton had the right to talk to anyone
about the amount of her backpay liability, Gray's refer-
ence to the rules of Newton's employment followed by
his reference to the receipt of Harris' letter clearly points
to a violation of the rules, specifically those contained in
footnote 2, supra, i.e., that she spoke to someone outside
the office about her problems at her job. I find that
Newton had the right to request her union representa-
tive's aid and assistance in the arbitration and grievance
machinery under the terms of the then subsisting collec-
tive-bargaining agreement and that Newton's actions, in
so doing, constituted protected concerted activities. Fur-
ther, the invocation of the rules regarding activities of
employees constituted a threat of "immediate dismissal,"
in violation of Section 8(a)(l) of the Act. Finally, the
rules themselves are susceptible of banning all concerted
actitivies among Carpenters Union's employees-that
they cannot discuss job grievances or problems, except
with Gray-and constitutes an unwarranted imposition
upon the rights of employees under Section 7 of the
Act.3 Despite the fact that no specific allegation of the
complaint alleges that the rules themselves violated the
Act, they are inextricably tied to the allegations of para-
graph 12 of the complaint, regarding the December 7
letter, and the issue has been fully litigated. I, therefore,
find that paragraphs I and 7 of the rules violate Section
8(a)(1) of the Act. Southwestern Bell Telephone Company,
237 NLRB 110 (1978). 4
' Although this proceeding is brought against the Recpondent labor or-
ganizationl because of its activities as an employer. I must openly vwonder
what Carpenters Union would have done if one of the enployers with
whom it was in onitractual relatil,ns prohibited emphloi)ecs from conlsull-
ing "with the Union or discussing job-related grievanlLces or problems.
under penalty of immediale dismissal
4I find that the unilateral bargaining in December 1977 hbelweenl Ciray
and 'cyers and Hill. as alleged by the Charging ParIl wa,, notII fully liti-
gated
However, I hold that the first letter of reprimand,
dated November 30, 1977, constituted merely criticism,
of Newton, justified or not for taking a 2-1/2-hour lunch
period without permission either as to duration or as to
time. The statement made on December I that, "as far as
[Gray] was concerned, the matter was not closed," in the
context of this case, meant only that Gray intended to
hold Newton to the rules of her employment and would
not countenance any deviation. Of course, all of that was
aimed at Gray's attempt either to justify another termina-
tion of Newton-this time, however, with cause-or
lacking such cause to ensure that she would be made as
uncomfortable as possible.5 Gray made this patently
clear during his conversation with Harris on November
30, before Newton took her long lunch, by stating that
he "was going to make a move to get rid of his prob-
lem" and by refusing to respond when Harris stated that
he knew that Gray was going to terminate Newton.
Gray's problem was Newton, not Office Employees
Union.
For all of the foregoing reasons, and after examining
the record carefully, including observing both Newton's
and Gray's demeanor, which demonstrated a mutual and
intense distaste for one another, and including Harris' ad-
missions that he was well aware of the animosity of the
two, that they were not getting along together, and that
Harris would never have permitted the same kind of dis-
ruption to occur in his own office, I have no alternative
but to find that Newton was finally terminated solely be-
cause of the personality conflict between her and Gray,
and for no reason relating to union or protected concert-
ed activities.
I will, therefore, recommend that the complaint be dis-
missed, except as hereinabove set forth.
III. THE EFItTCIT 01: TH UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent Carpenters Union, as set
forth in section 11, above, occurring in connection with
the operations of Respondent, described in section I,
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.
CONCI.USIONS OF LAW
I. Respondent Tri-State Carpenters & Joiners District
Council is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Office & Professional Employees International
Union, Local 179, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By reprimanding and threatening employee Betty
Newton with discipline for seeking the advice of and
consulting with her union representative, and by promul-
gating, maintaining, and applying rules prohibiting em-
' (Office Employees Ulltilr recognized this ill its brief "Ii as appareill
from the Inornenll Bretty Newtotn returned to [".ork after the arbitration
asaird that Gray. a delermined manll. as not likel Ito enidure her
retllrll"
910
TRI-STATE CARPENTERS & JOINERS DISTRICT COUNCIL
ployees from discussing their job problems, grievances,
work assignments and criticizing any individual or activi-
ty within the office, except with Respondent's business
representative, Respondent has interfered with, re-
strained, and coerced its employees in the exercise of
their rights guaranteed under Section 7 of the Act, in
violation of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not engaged in any other conduct
violative of the Act.
THI Ri Ml t)Y
Having found that Carpenters Union has engaged in
unfair labor practices within the meaning of Section
8(a)(I) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]
911