Blount Brothers Corp.

National Labor Relations Board - Board Decisions

Jun 28, 1977

230 N.L.R.B. 586 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blount Brothers Corporation and David Chilson. Case
38-CA-2855-2
June 28, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND MURPHY
On March 10, 1977, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, the General Counsel
filed a brief in support of the Decision, and the
Respondent filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Blount Brothers
Corporation, Byron, Illinois, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
I The Respondent 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 respect 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 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing her findings.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge: This
proceeding was heard in Rockford, Illinois, on November
15 and 16, 1976, pursuant to a charge filed on August 3,
1976, and a complaint issued on September 30, 1976. The
issue presented is whether Respondent Blount Brothers
Corporation violated Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended (hereinafter
called the Act), by discharging the Charging Party, David
Chilson.
Upon the entire record (see, infra, fn. 12), including my
observation of the witnesses, and after due consideration of
the briefs filed by Respondent and by counsel for the
General Counsel (hereinafter called the General Counsel),
I hereby make the following:
230 NLRB No. 92
FINDINGS OF FACT
1. JURISDICTION
Respondent is a Delaware corporation with an office and
place of business in Oregon, Illinois, where it is engaged in
the business of general commercial and industrial construc-
tion. During the year preceding the issuance of the
complaint, a representative period, Respondent purchased
goods and materials valued at more than $50,000 which
were transported to its Oregon, Illinois, facility directly
from States other than Illinois. I find that, as Respondent
concedes, it is engaged in commerce within the meaning of
the Act, and that exercise of jurisdiction over its operations
will effectuate the policies of the Act.
Carpenters Local No. 792, affiliated with the United
Brotherhood of Carpenters and Joiners of America, AFL-
CIO, is a labor organization within the meaning of the Act.
It. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is the general contractor on the construction
of a nuclear power plant in Byron, Illinois. At all times here
relevant, Respondent has recognized the Union as the
bargaining representative for Respondent's carpenters on
that project. At the time of Chilson's allegedly unlawful
discharge, Respondent employed about 350 carpenters and
about 35 carpenter foremen on that job. All 385 were
members of the Union. Respondent was then employing a
total of about 1,000 men on the project.
The uncontradicted evidence establishes that at least
until later in 1975, Louis J. Nimm was a carpenter
substeward at the sawshed on that job, that Chilson
eventually replaced him as substeward, and that Nimm
eventually became foreman over the sawshed. However,
there is a conflict in the testimony about when Chilson
replaced Nimm and when Nimm became foreman. Union
Business Representative Henry Lewis Blais (who uses his
middle name rather than his first name) testified that he
told Nimm that he was going to be replaced as substeward
because Blais had found out that Nimm was working as a
foreman and drawing foreman's pay. If accepted, Blais'
testimony as a whole about dates would indicate that he
named Chilson to replace Nimm as substeward in January
or February 1976. Chilson testified that he became
substeward about Christmas 1975. Nimm testified that he
was substeward until mid-March 1976, and became
foreman about May 1, 1976. He was not asked what
occasioned his loss of the substeward's position. Nimm
testified that he received a raise when he became a
foreman. Because Blais' recollection about dates seemed
superior to Chilson's, because Nimm was in general a
highly unreliable witness (see, infra, part II, F), and
because Respondent failed to produce its payroll records to
show when Nimm became a foreman, I conclude that
586
BLOUNT BROTHERS CORP.
Chilson became a substeward in January or February 1976,
and after Nimm became a foreman.1
Respondent's answer avers that Nimm was "a foreman
and supervisor at some, but not all times material herein."
Respondent appears to rest its limited denial of Nimm's
status in this respect on Nimm's discredited testimony
about the date he became a foreman. In view of the at least
tacit admission in Respondent's answer that Nimm became
a supervisor when he became a foreman, in view of the
credited evidence that he became a foreman before Chilson
became substeward, and in view of my finding, infra, that
Chilson became substeward before engaging in the activity
for which he was discharged under the General Counsel's
theory of the case, I conclude that Nimm was a supervisor
at all times material herein.
Supervisor Nimm was a foreman at the form area,
referred to in the record as the sawshed or sawshack.
Nimm was under Elmo Elder, who was the general
foreman over the sawshed area. It is undisputed that
Chilson was discharged because of his activities in the
sawshed area, and that Nimm played a part in the
discharge decision. Elder testified, and I find, infra, that he
participated in the discharge decision. Respondent's
answer admits that Elder was a supervisor at all times
material herein, and it is uncontradicted that he supervised
Chilson. Moreover, Respondent contends that Elder
reproved Chilson for some of the conduct which allegedly
motivated his discharge. Accordingly, I find that supervi-
sors Nimm and Elder were Respondent's agents at all
material times.
It is undenied that Chilson wore a badge stating that he
was a carpenter steward. Chilson did not specify the date
when he began to wear this badge, and General Foreman
Elder could not recall when he first saw Chilson's badge. 2 I
infer from the probabilities of the situation that Chilson
began to wear his steward's badge shortly after becoming
substeward in January or February 1976. I do not credit
the testimony of Nimm, whose demeanor was extraordi-
narily unpersuasive, that he did not notice Chilson's badge
until about early April 1976. In this connection, I note that
even accepting Nimm's testimony about dates, Chilson
began to wear his steward's badge about 2 weeks after
Nimm lost his substeward's position.
B. Duties of "Chief Steward" ("Bull Steward") and
"Job Steward" ("Substeward")
On an undisclosed date between October 1975 and
February 27, 1976, the Union sent Respondent a "Job
Steward Organizational Chart." This chart named William
T. Johnson as chief steward and paired his name with Bill
Beesing, who is Respondent's project superintendent. The
chart also named a number of job stewards. Paired with
each individual listed as job steward was the name of an
individual identified as foreman. One of these pairs
consisted of Nimm (who became substeward in October
1975) and Foreman Elder. The chart further stated:
I By letter dated February 27, 1976. William J. Beesing, Respondent's
project superintendent, acknowledged receipt from the Union of a chart
which stated that Nimm was a "job steward," meaning substeward. This
chart provides no assistance in determining when Nimm left that position in
view of the limited evidence about when the Union sent the chart to
Respondent. See, infra, part II, B
INSTRUCTIONS FOR STEWARDS ARE AS FOLLOWS:
1. JOB STEWARD: Discusses grievances with
immediate foreman. If grievance is not settled
reports that to Chief Steward. Check for mem-
bers' dues deficiencies . ..
2. CHIEF STEWARD: Takes up grievances with
representative of [Respondent] and reports that
to the Business Representative. Reports any
jurisdictional problems to the Business Repre-
sentative. Reports any new carpenter contrac-
tors to Business Representative. Reports mem-
bers' dues deficiencies to Union.
By letter to Business Representative Blais dated Febru-
ary 27, 1976,3 Project Superintendent Beesing stated:
Blount Brothers Corporation has no objection to
your chart and the instructions for the stewards. Our
only objection is per Article V of your agreement, the
job steward has certain privileges. The only steward we
recognize as having these privileges, is William T.
Johnson.
Article V of the contract effective during February 1976
is not in evidence. Article V of the succeeding agreement is
set forth in part infra.
C. Allegedly Relevant Provisions of the 1976
Bargaining Agreement and its Amendments
On an undisclosed date (see infra), the Union entered
into a collective-bargaining agreement, effective May i,
with the Northern Illinois Building Contractors Associa-
tion, Inc., acting on Respondent's behalf. The contract
contained the following provisions as to the assignment of
work:
ARTICLE I
SECTION 1: BARGAINING UNIT The bargaining unit
shall be comprised of all employees engaged in the
work described in Sections 5 and 6 of this Article. The
territory covered by this Agreement is as described in
Section 2 of this Article ...
SECTION 2: TERRITORIAL SCOPE The territory or area
covered by this Agreement consists of the whole of
Winnebago County; the north part of Ogle County and
. . . the entire county of Boone, all within the State of
Illinois.
SECTION 4: PERFORMANCE OF WORK BY EMPLOYEES IN
BARGAINING UNIT The employees in the bargaining unit
and only such employees shall perform all of the work
covered by this Agreement.
SECTION 5: RECOGNITION The Employer recognizes
the Union as the sole and exclusive bargaining
2 There is no evidence that Elder ever saw the stewards' organizational
chart approved by Beesing on February 27, 1976.
3 All dates hereafter are 1976 unless otherwise stated.
587
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representative for the employees now or hereafter
employed in the bargaining unit, with respect to wages,
hours or [sic] work and all other terms and conditions
of employment. This Agreement covers all employees
in the bargaining unit, including foremen, journeymen,
apprentices and helpers.
The Union recognizes that the Employer has the
right to plan, direct and control operations of Construc-
tion projects. A procedure is set up in this contract
under Article 11, Section 2, for the settlement of
Grievances and in general the policy of "work now -
grieve later" shall be adhered to.
The Employer shall in no way be held liable for
jurisdictional disputes. Work will be assigned where
possible to Carpenters under the terms of this Agree-
ment. The UNION agrees that it will resolve all
differences with other unions over the jurisdiction of
work. Copies of Jurisdiction Claims, Awards, and
Agreements with other unions will be furnished to the
Employer on request.
SECTION 6: OCCUPATIONAL SCOPE This Agreement
covers all work of all branches of the trade as set forth
in the constitution of the United Brotherhood of
Carpenters and Joiners of America except that work as
set forth and covered under the Millwright and Heavy
and Highway Agreements and includes, but is not
limited to the milling, fashioning, joining, assembling,
erection, fastening, or dismantling of all material of
wood, plastic, metal, fiber, cork, and composition, and
all other substitute materials; the manufacturing of all
materials where the skill, knowledge and training of the
employees are required, either through the operation of
machine or hand tools; Carpenters and Joiners, Pile
Drivers, Bridge, Dock and Wharf Carpenters, Divers,
Underpinners, and Timberman and Core Drillers: Ship
Wrights, Boat Builders and Ship Carpenters, Joiners
and Caulkers, Cabinet Makers, Bench Hands, Stair
Builders, Millmen, Wood and Resilient Floor Layers,
and Finishers, Carpet Layers, Shinglers, Siders, Insula-
tors, Acoustic and Dry Wall Applicators; Shorers and
House Movers, Loggers, Lumber and Sawmill Workers,
Casket and Coffin Makers; Furniture Workers, Reed
and Raaton Workers, Shingle Weavers, Box Makers,
Railroad Carpenters and Car Builders; and all those
engaged in the operation of wood working or the
machinery required in the fashioning, milling or
manufacturing of products used in the trade, or
engaged as helpers to any of the above divisions or sub-
divisions, and the handling, erecting and installing
material on any of the above divisions or sub-divisions;
burning, welding, rigging and the use of any instrument
or tool for layout work, incidental to the trade. When
the term "Carpenter and Joiners" is used, it shall mean
all the sub-divisions of the trade.
Employees in the bargaining unit will perform all
work assigned by the Employer.
This contract shall apply to the sub-divisions of the
trade in its entirety and without limitation. The parties
understand that it is an impossible task to spell out in
complete detail the work for the bargaining unit.
Accordingly, even though specific work may not be
specifically spelled out above, it will, never-the-less be
considered as and treated as part of the bargaining unit
work if it is traditionally work of the Carpenters.
SECTION 7: MANAGEMENT RIGHTS It is understood and
agreed that the direction of working forces and the
right to suspend, transfer, lay off, promote, demote, or
relieve employees of their duty shall be vested exclu-
sively in the EMPLOYER, provided, however, that the
EMPLOYER shall not use this right for the purpose of
discriminating against any employee because of his
membership or legitimate activities in the UNION.
There shall be no limit on production by workmen
nor restrictions on the full use of tools or equipment.
There shall be no restriction, other than may be
required by safety regulations, on the number of men
assigned to any crew or to any service.
In addition, the contract contained the following provi-
sions regarding grievances and arbitration:
SECTION 2: GRIEVANCES AND ARBITRATION
A. Whenever any difference or dispute shall arise
as to interpretation or application of the terms of this
Agreement, such dispute or difference shall be resolved
in the following order:
(1) In conference between the Business Agent
and the designated representative of the Employ-
er, and if not satisfactorily adjusted within 48
hours, step two shall immediately be initiated.
(2) In the event the dispute was not resolved, it
shall then be referred to a conference between the
designated committees of the Union and the
Association which must meet within 48 hours
after notification of the grievance.
(3) Unless so resolved, the matter shall then be
submitted to a Board of Five Arbitrators, who
shall commence the arbitration talks within 48
hours after they have received notice of com-
plaint. Two to be selected by the Union, two to be
selected by the Association, and the fifth to be
chosen by the four so selected. Upon the failure
to so select a fifth arbitrator, the selection shall
then be made in accordance with the rules and
procedures of the American Arbitration Associa-
tion.
B. HEARING The Board of Arbitration so selected
shall hear all evidence and render its decision by a
majority vote based on evidence and the contract.
C. DECISION The decision so rendered shall be final
and binding upon both the Union and the Employer.
SECTION 3: JOINT COMMITTEE The Association and the
Union agree to submit to each other the names of three
(3) persons to be known as a Joint Committee whose
duties will be to meet and determine for clarification,
items that may from time to time come into dispute. It
shall also act as the Committee designated in Step 2 of
the Grievance and Arbitration Clause in Article 2,
Section 2 above.
Also, the contract contained the following provisions
relating to the Job Steward:
588
BLOUNT BROTHERS CORP.
ARTICLE V
Job Steward
The parties agree that the following basic principles
apply to the selection of a Job Steward:
I. The Union requires that a Steward must fully
protect the interest of the Union.
2. The EMPLOYER requires that the Steward be a
carpenter who can efficiently perform his duties
as a carpenter and who will not disrupt the job
unnecessarily in discharging his duties as a
Steward.
3. To meet the two basic principles agreed to by
the parties, it is further agreed:
(a) The Job Steward shall be a working
carpenter.
(b) The Steward shall be selected by the
Business Representative of the Union.
* * *
(d) The Union shall have the right to replace
any Steward at any time.
* *
(f) If there is any dispute as to any of the
Sections or sub-sections of this Article, the
provisions of Article II will apply.
(g) No steward shall be laid off for acting in
the capacity of a steward and performing the
duties as outlined in paragraph 4 of this Article.
4. The duties of the Job Steward shall be to
report to the Business Representative of the
Union:
(a) Members dues delinquencies;
(b) Violations of the Collective Bargaining
Agreement;
(c) Carpenters employed seven (7) days or
more, who have not become members of the
Union;
(d) Disputes and grievances of members. 4
5. He shall not have authority to:
(a) Adjust violations of the Collective Bargain-
ing Agreement;
(b) Collect any money due the Union from
any person or applicant for membership or any
other person.
6. Whenever one or more carpenters are re-
quired to work, one of their members shall be the
' In addition to a union-shop clause with a 7-day grace period, the
contract also provides (art. I1 sec. 3), "The Union realizing its duty under the
[Act and to the extent that it is the exclusive bargaining representative,
recognizes that it must represent all employees in the bargaining unit
equally, irrespective of membership or non-membership in the Union."
regularly designated steward, or someone desig-
nated by him. No steward shall be laid off unless
prior notice is given to the Union.
At the Byron Nuclear Power project, the chief steward
was called the "bull steward" and the job stewards were
called "substewards." Union Business Representative Blais
testified that, as a job steward, Chilson had no right to
adjust a grievance, and that his sole function was to
observe a problem or violation, to try to settle it with the
foreman, and, if Chilson could not settle it with the
foreman, to report the matter to Blais.
Article XI, section 14, of the contract as originally
executed provided, "A maximum break of ten (10) minutes
in duration will be allowed during the period of 9 a.m. to 11
a.m. during a regular workday. It is understood that the
Employee shall take his breaks in close proximity to his
working area." By agreement between Respondent and the
Union's parent International, the foregoing article XI,
section 14, was deleted as to the Byron Nuclear Power
project and the following provision was added, "the
present conditions prevailing on the job shall continue and
be improved to further the harmonious relationships
between the Company and the Union. It is also agreed that
should the Company grant to any trade more beneficial
working conditions than those now enjoyed by the
Carpenters, except for those conditions now provided in
the current collective-bargaining agreements, the Company
will immediately grant the same conditions to the Carpen-
ters." The agreement to amend recites that it was "Signed
this date, April 30, 1976," whereas the contract so amended
recites that it was "made and entered into as of this Ist day
of May, 1976."5 Standing alone, the credible testimony of
Blais (who signed the 1976 bargaining agreement), Beesing,
and Nimm indicates that the amendments were executed
after the 1976 bargaining agreement went into effect. Their
testimony in this respect both corroborates and is corrobo-
rated by Chilson's testimony, which for demeanor reasons I
credit over Elder's denial, that during May and part of
June 1976, Elder permitted the carpenters to take coffee-
breaks in the electrical shack.
During the effective period of the contract in effect
before May 1976, which did not provide for a coffeebreak,
carpenters on the Byron Nuclear Power project were not
permitted to leave their work area to drink coffee, but were
permitted to drink a cup of coffee at their workplace in the
morning. Project Superintendent Beesing, General Fore-
man Elder, Foreman Nimm, Union Business Representa-
tive Blais, Carpenter Substeward Chilson, and rank-and-
file carpenter Thore Henningson all testified that this prior
practice was also followed beginning no later than some
time in June 1976.
D. Events Assertedly Leading to Chilson's
Discharge
Nimm joined the Union in 1953, and was still a member
at the time of the November 1976 hearing. While
I Project Superintendent Beesing testified that "1 think May of '76 [the
1976 collective-bargaining agreement I was renegotiated."
589
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substeward, he had never processed any grievances. A few
days after becoming substeward, Chilson saw Nimm, who
by this time was a carpenter foreman, working "quite
often" with a laborer in the carpenters' sawshack. Chilson
reported to Carpenter Business Representative Blais that
Nimm was having laborers do carpenters' work. A couple
of days later, Blais went to Nimm and told him that he was
frequently using laborers to do carpenters' work (namely,
carrying materials from the stockpile, feeding saws, and
hauling tools), and this had to stop. Nimm told Blais not to
worry about it, that Nimm was a foreman up there, and
that Blais should mind his own business. Nimm further
said that Chilson was a troublemaker and an agitator, that
he was "over here on [Nimm's] back," that Chilson was
always "jumping" Nimm about laborers' doing carpenters'
work and was keeping the men agitated, that Chilson had
the men in a "constant uproar ... talking about work,"
and that if Chilson did not watch his step, Nimm would get
rid of him. Blais went to the men on the job and asked if
they were having any problems with Chilson. In view of
Blais' testimony that he did not tell Chilson to stop
agitating the men because Blais did not think Chilson had
been doing this, I infer that the employees told Blais that
they were not having any problems with Chilson.
A few days later, and thereafter in June, Nimm again
told Blais that Chilson was "agitating the men."
About July 23, when Blais came to the jobsite, Chilson
told him that there were still some instances where laborers
were doing carpenters' work. Blais told Chilson to try to get
it stopped. Then, Blais told Nimm that Blais was still
getting reports that there were laborers doing some
carpenters' work, like feeding the saw. Nimm said not to
worry about this, he would take care of it. After Blais left
the project, Chilson saw Nimm working with a laborer
called "Gerald." Gerald was hauling 2 by 4's to the saw
and laying them on the bench. After Nimm had guided
them into the saw and cut them into short pieces, Gerald
would haul them outside into the pile. Chilson and Blais
credibly testified to a belief that the work being performed
by Gerald was carpenters' work. About an hour and a half
later, Chilson went to Nimm and told him "that he would
have to kind of cool it a little bit because there was a lot of
complaint about him working with the laborer." Nimm
said nothing, but "just kind of looked at [Chilson] and
slowed up and went right back to work."
About a half hour later, Gerald and Nimm together
hauled a piece of plywood to the saw bench and put it on
the bench. Then, Gerald turned the saw on and he and
Nimm guided the plywood through the saw. Chilson and
Blais credibly testified to a belief that this was normally
carpenters' work. Upon seeing this incident, Chilson went
to Nimm and, in Gerald's presence, said that Chilson had
just spoken to him, and this was going to have to stop or
Chilson would have to report it to Blais, "there would be
trouble." Nimm said nothing, but just looked at Chilson.
A little later, according to Chilson's uncontradicted and
credited testimony, he saw Nimm going into General
Foreman Elder's office. Thereafter, Elder called Chilson
into the sawshack and said that "there was enough of this
R This finding is based on Chilson's credited testimony. Elder testified, in
effect, that any such conversation occurred where Chilson was working, but
Elder could not recall what was said.
piddly ass argument going on around here," to which
Chilson replied that Nimm "had a laborer doing carpen-
ters' work, and it had to stop." 6 Chilson credibly testified
that this incident occurred about a week before he was
fired; Elder testified that he and Nimm decided about a
week before Chilson's discharge that he would be dis-
charged "if he didn't straighten out;" and Nimm testified
(see infra) that Chilson's discharge was decided on a week
before it was effected. This testimony aside, there is no
direct evidence about the content of the Nimm-Elder
conversation in Elder's office.
The following Monday, July 28, at a weekly safety
meeting with laborers and carpenters, Elder admittedly
stated that he did not like Chilson's "piddly ass arguing
going on," referring to Chilson's complaints about laborers'
doing carpenters' work.
Nimm testified that, the latter part of July, he told Blais
that in 1 week Nimm was going to fire Chilson because "he
was causing too much commotion" (by which, Nimm
meant that Chilson was agitating the men) and "he was
using too much coffee break and he is hurting the other
men by doing it." Still according to Nimm, after he rejected
Blais' protests, Blais said that he would try to get Chilson
transferred to "the hole" (that is, the excavation area), and
Nimm said "okay." Elder testified that the latter half of
July, Blais told Elder that "Blais" [sic] was about to fire
Chilson, and asked Elder to transfer Chilson to "the hole,"
to which Elder, who had no jurisdiction over "the hole,"
replied that it was "all right with" him but "You have got
to go down and do that yourself." Beesing testified that in
July 1976, Blais told him that there was a personality
conflict between Chilson and Elder, and asked Beesing to
transfer Chilson to "the hole." Still according to Beesing,
he checked with Elder and Nimm and found that they had
"nothing but trouble" with Chilson-more specifically,
that he "continually seemed to think he could sit down and
have a coffeebreak even though he had been told on
numerous occasions that that was not the policy. He
agitated the personnel around the sawmill by going to the
men continually and saying, 'Hey, you shouldn't be doing
that, and you should be doing this.' ... that is not his job.
Even if he was a steward, if he sees that going on, he should
go to the foreman and have the foreman straighten it out."
When asked whether Blais could have asked Beesing to
transfer Chilson to another job, Blais testified, "I don't
know. I don't recall it." When further asked whether he
asked Beesing to transfer Chilson because he had a
personality conflict with Elder, Blais replied, "I don't think
I ever made a statement like that." Also, Blais testified that
Nimm never told him that Chilson was taking coffee-
breaks, and that Blais understood Nimm's reference at
various times to Chilson's "agitating the men" as referring
to other people doing carpenters' work. I discredit the
testimony of Nimm, Elder, and Beesing that Blais tried to
procure Chilson's transfer. In so finding, I rely on the
witnesses' demeanor, and on the improbability that Blais
would have tendered Beesing the explanation of a Chilson-
Elder personality conflict if the discharge threat had come
from Nimm and was based at least partly on Chilson's
590
BLOUNT BROTHERS CORP.
steward activities encouraged by Blais. In any event, for
the reasons set forth infra, the result herein would be the
same accepting the foregoing testimony by Respondent's
witnesses.
E. Chilson's Discharge
On Friday, July 30, Chilson reported to work as usual.
That morning, he worked with two other carpenters,
Henningson and Edmond Helsten. That morning, Hen-
ningson took a "coffee break" while the other two worked.
Henningson was not reprimanded for it. Then, at about 10
a.m., Chilson took a "coffee break" while the other two
worked. General Foreman Elder saw Chilson taking his
break, but said nothing. After Chilson finished his "coffee
break," Helsten took his "coffee break" while the other two
worked. So far as the record shows, management said
nothing to Helsten about the matter.
Chilson testified to the following effect: He continued to
work until 3 p.m. that day, an hour and a half before
quitting time. Then, Nimm came running out of the
sawshack jumping up and down yelling, "You are fired,
you are fired, you are fired." Chilson said that Nimm could
not fire him because Nimm was a carpenter who worked
with his tools, and was not a foreman. General Foreman
Elder then came over and said that Chilson was fired.
Chilson asked why. Elder said that Chilson "was sitting
down taking a coffee break and . . . was agitating the
men." Chilson asked what he meant by "agitating the
men." Elder replied, "just what I said, get your check."
Chilson then got Chief Steward Hunter, who asked Nimm
and Elder why Chilson had been fired. Nimm and Elder
replied that Chilson "had coffee breaks and ... was
agitating the troops."
Nimm testified on direct examination that he walked up
to Chilson, gave him his check, and said he was fired. Still,
according to Nimm, Chilson said that Nimm could not fire
him because Nimm was not a foreman, and Nimm said he
was because "under the contract you have a working
foreman." On cross-examination, Nimm gave internally
inconsistent testimony about when Elder found out about
Chilson's discharge; and, in addition, testified that after
Nimm discharged Chilson, Elder told Chilson to turn in his
equipment so he could get his check-which Nimm had
already given him, according to Nimm's direct testimony.7
Elder was not asked about either the termination interview
or any alleged subsequent contact with Chilson. In view of
the internal inconsistencies in Nimm's testimony, Elder's
failure to corroborate him, and demeanor considerations, I
7 Nimm's testimony was as follows:
JUDGE SHERMAN: You testified, did I understand you to say, that
both you and Mr. Elder knew at the same time about Mr. Chilson's
discharge?
THE WITNESS: Yes.
JUDGE SHERMAN: What is the basis for your statement that Mr.
Elder knew?
THE WitNESS: Well, he wanted to go back-went up and arranged it
to have the time--I told him I wanted him fired. And he went up to tell
him to go get his-turn his equipment in and stuff so he could get his
check.
JUDGE SHERMAN: Did this occur before or after you told Mr.
Chilson he was fired?
THE VWilNEss: After I told him-after that.
discredit the testimony of Nimm summarized in this
paragraph, and credit Chilson's testimony summarized in
the preceding paragraph.
After being fired, Chilson went to Blais' office that same
day. A day or two later, Blais went to Nimm and asked
why Chilson had been fired. Nimm replied that Chilson
was an "agitator," that he was "sitting around taking coffee
breaks and agitating the men," and that there was nothing
Nimm could do about his discharge.s Then, Blais went to
Project Superintendent Beesing, who said he would check
into Chilson's discharge. Later, about 4 days after Chilson's
discharge, Beesing told Blais that Chilson "was agitating
the men in the area, and that was it." Beesing said nothing
about coffeebreaks.
General Foreman Elder (a union member for 34 years)
testified that on an undisclosed date after Chilson's
discharge he prepared, and turned in to his superiors, a
termination slip stating that Chilson had been discharged
for sitting down taking 10-minute coffeebreaks and for
continually agitating the men.9 This slip was not produced,
nor was its absence explained. On or before August 16,
after talking to Elder and Nimm,l ° Project Superintendent
Beesing filled in a form letter to the Union asserting that
Chilson had been terminated for "Sitting down, taking 10-
minute coffee breaks, continually agitating the men," and
that he was not eligible for rehire by Respondent at the
Byron Power project. This letter was sent to the Union on
August 16.
When asked on cross-examination whether there was a
"jurisdictional problem at the saw shed," Blais testified,
"Yes, continually." Between January and November 1976,
Blais filed several written grievances which did not
specifically refer to the sawshed but which, in his opinion,
involved matters encompassing or related to the sawshed
problem.t l On each such occasion, after Blais initiated the
first step of the grievance-arbitration procedure, the matter
"would straighten itself out for a while." Blais tried to work
out these problems with the employees and management
representatives working in the area. He did not think that
taking these matters to arbitration would do any good, and
he never did so. Nor did Blais ever talk to Elder, Beesing,
or Project Manager Charlie Smith about the laborers'
conduct in performing the alleged carpenters' work of
carrying materials from the stockpile, feeding the saws, and
hauling tools around, because Blais thought the problem
would "resolve itself, with a little work."
The Carpenters filed what Project Superintendent Bees-
ing described as "numerous" written grievances at the
Byron Nuclear project, including 12 in June and part of
8 This finding is based on Blais' testimony on direct examination. I do
not accept his denial on redirect examination that Nimm mentioned
coffeebreaks. Nimm was not asked about this conversation.
9 Elder testified that he guessed he used the "wrong word" in using the
term "agitating the men." He testified that, by this language, he meant that,
while Chilson was supposed to be working, he engaged in conversations,
which Elder could not hear, with other employees as they went by. For the
reasons stated, infra, I do not credit Elder's testimony about Chilson's
conduct in this respect.
o1 This finding is based on Beesing's testimony. For demeanor reasons
and in view of the probabilities of the situation, I do not credit Nimm's
denial.
" My finding in this sentence is based on a composite of the testimony
of Blais and Beesing.
591
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
July. Two of these grievances went beyond the first step of
the formal contractual procedure. One of them was
considered by the joint committee (established by art. II,
sec. 3) under step 2 (art. I1, sec. 2A (2)). The Union lost at
this level, and took the matter no further. The other
grievance involved "retribution against three men." It was
submitted to "voluntary arbitration" which was directed or
suggested by court, and by which both the Union and
Respondent had agreed to be bound. The Union won, but
Respondent did not carry out the arbitrator's award.
F. Evidence Bearing on Respondent's Explanations
for Chilson's Discharge
I. Evidence relating to laborers' performance of
carpenters' work and vice versa
Respondent argues in its brief:
Chilson was discharged for the following conduct: he
continually ordered carpenter employees to carry
lumber from a stock pile located more than 80 feet from
the carpenter's work site. Chilson would holler at the
carpenter employees and his involvement in this
jurisdictional dispute held up work operations. Elmo
Elder, the general foreman at the saw shed, warned
Chilson that he should not talk to the men about this,
but should report to [Nimm] or Elder if he had a
problem [cf., infra, fn. 16]. Chilson disregarded these
warnings and continued to order the carpenters to
carry the material through a time period four days
before his discharge. Chilson himself testified that he
did tell carpenter employees that they should be
carrying lumber rather than the laborers. Chilson's
orders contradicting the orders of Elder and [Nimm]
and the established job practice on carrying of lumber
resulted in two carpenter employees complaining to
[Nimm ] that they were fed up and tired of being picked
on by Chilson with orders to carry heavy material. The
men threatened to quit and one of the men went into
the hospital for treatment of ulcers. [Nimml thought
that the hospitalization resulted from Chilson's coun-
termanding orders.
Respondent's brief contains the following purported
summary of the evidence relating to Respondent's allega-
tions regarding Chilson's alleged orders that carpenters
carry lumber:
[Nimm] testified that in the early part of June
Chilson ordered two carpenters to carry lumber from a
stock pile 80 feet away to their place of work. (R. 113-
114). The two individuals who were so ordered by
Chilson came to [Nimm] and reportedly were all shook
up and wanted to quit (R. 113). The men, both in their
sixties, felt that they were being picked on by Chilson
with his orders to carry heavy material (R. 113, 120).
[Nimm] told the two men that it was laborers' work to
carry the material up to 15 feet away from the
12 The official transcript at this point gives the distance as "50" feet. In
giving the figure "15." Respondent's brief relies on this portion of the
transcript without pointing to the discrepancy or expressly seeking to amend
carpenters (R. 114). Shortly after this incident, one of
the men went into the hospital for treatment of ulcers
and [Nimm] thought the hospitalization resulted from
Chilson's directions to the man (R. 113).
However, Nimm initially testified that Chilson went to
two carpenters, John Basino and Carl Grafstrom, and "told
them that they had to quit carrying lumber from that stack
way over there, that was 80 feet away. .... He told them 3,
4 times. The poor guys got all shook up and they come in
and wanted to quit and said they couldn't put up with this
being picked on [emphasis supplied ]." Later, Nimm gave a
different version of Chilson's alleged instructions; namely,
that he "was on [Basino] all the time and [Chilson] made
him carry this lumber from 80 feet away [emphasis
supplied]." After that, Nimm gave testimony which twice
altered in midstream as to Chilson's alleged instructions:
"around the first of June .. [Basino and Grafstrom] said
that he got on them and told them that they can't carry that
stuff, that the laborers can't carry that stuff, that they had to
carry it from 80feet away and that if they didn't do it they
would get in trouble. .... I told the boys to go ahead and
carry it. That is our work, beyond [15] feet is carpenter's
work [emphasis supplied]. " 12 Still later, Nimm testified
that carpenter employees complained to him that Chilson
had "got on them for carrying that lumber and told them
they wasn't supposed to do it" and that the laborers, too,
complained about Chilson's conduct in this respect. After
that, Nimm testified that carpenters Basino and Grafstrom
had to bring the wood 80 feet, and that "over 15 feet is
brought in by laborers . . . carpenters bring everything in
within 15 feet." Also, Nimm initially testified to an opinion
that Basino got ulcers because of orders from Chilson to
quit hauling lumber from 80 feet away, and never
attributed Basino's ulcers to any "countermanding orders"
from Chilson. Additionally, Nimm initially testified that
Chilson made certain alleged statements (about carrying
lumber) to Basino and Grafstrom in early June and two or
three times thereafter; then that Chilson "kept constantly
on those two men.... That happened all the way
through.... From the time he was fired all the way
through"; and then that 3 or 4 days before Chilson's
discharge (I) he "got on the men"; (2) Basino was in the
hospital, and Chilson "got on" Grafstrom only; and (3)
"the boys came up and said they was fed up. They were
tired of being picked on with the-carrying all the heavy
material and they were 60 years old." Moreover, Nimm
denied telling Chilson at this time that he had to "knock it
off." In view of the internal inconsistencies and improba-
bilities in Nimm's testimony and demeanor considerations,
I discredit his testimony that Chilson issued orders to
Basino and Grafstrom in connection with carrying lumber
from a pile more than 80 feet away, and that Nimm
received employee complaints about such orders. Rather, I
credit Chilson's testimony that on one and only one
occasion he told one other carpenter, Chilson's partner,
that laborers were doing carrying work that should be done
by carpenters; that the materials then being carried were
the transcript. However, the General Counsel also understood Nimm as
saying "15" rather than "50," as did I.
592
BLOUNT BROTHERS CORP.
close enough to make carrying them carpenters' work; and
that "this was nothing that I really was going to follow up."
Moreover, Chilson credibly answered "No" to the ques-
tion, "But you know that both Elder and [Nimm] had told
the carpenters it wasn't their work, it was the laborer's
work, didn't you?" nor is there any evidence that Elder or
Nimm ever made any such statement.
In support of the allegation in Respondent's brief that
Chilson "would holler at the carpenter employees and his
involvement in this jurisdictional dispute held up work
operations," Respondent relies on portions of Nimm's
testimony which establish that he could not hear what
these alleged conversations were about.13
2. Evidence relating to Chilson's drinking coffee
on the job
Nimm testified, in effect, that he discharged Chilson
partly because he took overly long "coffee breaks" on
various occasions, including the day he was fired. How-
ever, Nimm's testimony varied about how often he had
seen Chilson take overly long "coffee breaks," what Nimm
said to Chilson about the matter, and how long a "coffee
break" Chilson took on the day he was fired. Thus, Nimm
initially testified on direct examination, "I warned him 3
times that there is going to be trouble" if he kept on taking
such a long "coffee break." Then, Nimm testified that he
"warned [Chilson] the day of the firing and 2, 3 times
before that." Still later on direct examination, Nimm
testified that Chilson took a 15-minute coffeebreak the day
he was fired, and further stated that one of Chilson's overly
long coffeebreaks was "20 minutes, and timing it, and one
of them was 15 minutes and two of them was 12 minutes,
that I know of. But I don't know how many other times."
Also, Nimm testified that on those occasions, "I told him if
he didn't cut it out, he wasn't [sic] going to get in trouble.
He was going to hurt it for the rest of the guys." However,
on cross-examination, Nimm testified that on July 30, upon
seeing Chilson drinking coffee "in the blue trailer," Nimm
merely told him that he had taken a long enough
coffeebreak, and did not tell him that Nimm was going to
fire him over it. Moreover, after complying with the
General Counsel's request to read Beesing's August 16
letter to the Union, which letter stated that Chilson had
been discharged for (inter alia) "taking a 10 minute coffee
break," Nimm testified that Chilson's coffeebreak that
morning was only 10 minutes.
Elder testified that on the morning of July 30 he saw
Chilson sitting down and drinking coffee for 15 minutes at
a location which Elder did not describe. However, Elder
further testified that he entered "10 minutes" on the
termination slip which he allegedly turned in. Moreover,
when asked whether he had any conversations with
Chilson that day, Elder testified, "Not particularly," thus
corroborating Chilson's testimony that Elder saw him
drinking coffee that morning but said nothing.
13 Other aspects of this testimony by Nimm are considered infra.
14 Elder testified to a policy of "Coffee, yes, but no breaks." When asked
whether he remembered any conversations with anyone under his jurisdic-
tion about a 10-minute coffeebreak. he said, specifically including Chilson.
"everyone under my jurisdiction knew that there was no such thing as a 10
In view of these inconsistencies in Nimm's and Elder's
testimony and demeanor considerations, I do not credit the
foregoing testimony by Nimm regarding the number and
length of any overly long coffeebreaks by Chilson, the
length and location of Chilson's July 30 coffeebreak, or
Nimm's warnings to Chilson about the matter. Nor do I
credit Elder's testimony regarding the length of Chilson's
July 30 coffeebreak. Rather, I credit Chilson's testimony
that, in effect, Nimm never talked to him about taking
coffeebreaks, and that on July 30, Nimm did not approach
him before firing him. Further, I credit Chilson's testimony
that, on July 30, he used about 8 minutes to drink his
coffee; that he drank it in a shady spot, on a bench in front
of the blue trailer, in the area where he was working; and
that he drank it with the labor foreman.
Chilson credibly testified that on three or four occasions,
whose dates he did not give, Elder told him to keep his
coffeebreaks under 10 minutes.t 4 Still according to Chil-
son's credible testimony, on one of these occasions Elder
also told him that he had taken more than 10 minutes.
Chilson credibly testified to a belief that he had not
exceeded 10 minutes. I infer that any excess was insubstan-
tial. Elder credibly testified that when Chilson first started
to work on the project, in August-October 1975, Elder told
him about "staggered coffee." Elder further credibly
testified that he talked to Chilson "several different times
about that coffeebreak in '75, which I did all the boys on
the job along with the rest of them," referring to overly
long coffeebreaks. Elder did not testify to any 1976
conversations with Chilson about coffeebreaks.15 Elder
further testified that he had to warn "every employee we
had" about overly long coffeebreaks, and he had to remind
"most of all of them several different times."
Also, Elder testified that Chilson took longer coffee-
breaks than any other employee. I do not credit his
testimony in this respect, for demeanor reasons and in view
of his failure (see, supra, fn. 15) to testify that he
reproached Chilson for overly long coffeebreaks at any
time in 1976, Chilson having been discharged on July 30 of
that year.
In 1975, a complete crew of ironworkers was terminated
from the project because of taking a coffeebreak. Laborers
have also been terminated for that reason. Laying Chilson
to one side, at least six carpenters were fired from the
project prior to the November 1976 hearing for taking
coffeebreaks. Four of these were discharged "at one lick"
about mid-October, 2-1/2 months after Chilson's dis-
charge. At least some of the others were fired after Chilson.
Between January 1976 and the end of July 1976, Respon-
dent and the Union had several discussions, but not
arbitrations, with respect to coffeebreaks.
Nimm testified that he discharged Chilson partly
because, "more than 24 times," when taking a coffeebreak
Chilson tried to congregate other employees around him.
According to Nimm, on that day Chilson was discharged,
while taking his coffeebreak in the blue trailer he called
several other employees to talk to them. However, Elder
minute coffee break. I put their minds to that quite often." To the extent
that such testimony contradicts Chilson's, for demeanor reasons I credit
Chilson.
i' When asked whether he talked to Chilson about coffeebreaks in June
or July 1976, Elder replied, "I don't know whether I did or not."
593
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that Chilson engaged in such conduct "Right
where he was working.... He was supposed to be
working." Nimm testified that he attempted to break up
those meetings by walking up and saying, "let's go boys."
This testimony aside, there is no evidence that Chilson or
any of the other participants were ever reproved for such
conduct. In view of the inconsistency between Nimm's and
Elder's testimony regarding such conduct, the absence of
evidence that Chilson or anyone else was reproved for it,
and the absence of evidence that prior to the hearing
Respondent ascribed Chilson's discharge thereto, I discred-
it Nimm's and Elder's testimony about these alleged
incidents.
G. Analysis and Conclusions
Chilson became a substeward on the Byron Nuclear job
in January or February 1976, and began to wear a
steward's badge shortly thereafter. Shortly after becoming
substeward, Chilson saw Carpenter Foreman Nimm
working "quite often" with a laborer in the carpenters'
sawshack. Chilson reported to Carpenter Business Repre-
sentative Blais that Nimm was having laborers do carpen-
ters' work. A day or two later, Blais told Nimm that he was
frequently using laborers to do carpenters' work, and this
had to stop. Nimm told Blais not to worry about it, that
Nimm was a foreman up there, and that Blais should mind
his own business. Nimm further said that Chilson was a
troublemaker and an agitator, that he was "on [Nimm's]
back," that Chilson was always "jumping" Nimm about
laborers doing carpenters' work and was keeping the men
agitated, that Chilson had the men in a "constant uproar
. . . talking about work," and that if Chilson did not watch
his step, Nimm would get rid of him. A few days later, and
thereafter in June, Nimm again told Blais that Chilson was
"agitating the men."
About July 23, when Blais came to the jobsite, Chilson
told him that there was still some instances where laborers
were doing carpenters' work. Blais told Chilson to try to get
it stopped. Then, Blais told Nimm that Blais was still
getting reports that there were laborers doing some
carpenters' work, like feeding the saw. Nimm said not to
worry about this. After Blais left the project, Chilson saw
Nimm sawing wood which was being brought to and from
the saw bench by laborer Gerald. Chilson and Blais
thought the kind of work being performed by Gerald was
carpenters' work. Chilson then went to Nimm and told him
"that he would have to kind of cool it a little bit because
there was a lot of complaint about his working with the
laborer." Nimm said nothing, but "just kind of looked at
[Chilson] and slowed up and went right back to work."
About a half hour later, Nimm and Gerald together hauled
a piece of wood to the sawbench and, after Gerald turned
on the saw, together guided the wood through the saw.
Upon seeing this incident, Chilson went to Nimm and said
that Chilson had just spoken to him, and this was going to
have to stop or Chilson would have to report it to Blais,
"there would be trouble." Nimm said nothing, but just
looked at Chilson. A little later, Nimm went into Elder's
office. Then, Elder told Chilson that "there was enough of
this piddly ass argument going on" and Chilson replied
that Nimm had to stop having a laborer doing carpenters'
work. Inferentially, during this conference Nimm and
Elder decided to discharge Chilson the following week. On
the following Monday, July 28, at a weekly safety meeting
with laborers and carpenters, Elder stated that he did not
like Chilson's "piddly ass arguing going on," referring to
Chilson's complaints about laborers doing carpenters'
work.
On the morning of July 30, Chilson worked with two
other carpenters, Henningson and Helsten. While the other
two worked, Henningson took a coffeebreak without being
reprimanded for it. Then, while the other two worked,
Chilson took an 8-minute coffeebreak with the labor
foreman, both of whom sat on a bench in front of the blue
trailer in the area where Chilson was working. Elder saw
Chilson taking his break, but said nothing. After Chilson
finished his coffeebreak, Helsten took his break while the
other two worked. So far as the record shows, management
said nothing to Helsten about the matter.
Chilson took his coffeebreak about 10 a.m About 3 p.m.,
that day, an hour and a half before quitting time, Nimm
came out of the sawshack jumping up and down yelling,
"You are fired, you are fired, you are fired," referring to
Chilson. Chilson said that Nimm had no power to fire him.
Then, General Foreman Elder told Chilson that he was
fired. Chilson asked why. Elder said that Chilson "was
sitting down taking a coffee break and ... was agitating
the men." Chilson asked what he meant by "agitating the
men." Elder replied, "just what I said, get your check."
Later, in response to Chief Steward Hunter's inquiry about
why Chilson had been fired, Nimm and Elder replied that
Chilson "had coffee breaks and . . . was agitating the
troops." A day or two after Chilson's discharge, Nimm told
Blais that Chilson had been discharged because he was an
"agitator," that he was "sitting around taking coffee breaks
and agitating the men." A day or two later, after obtaining
time to check into Chilson's discharge, Project Superinten-
dent Beesing, without mentioning coffeebreaks, told Blais
that Chilson had been discharged because he "was
agitating the men in the area." On an undisclosed date
after Chilson's discharge, Elder prepared, and turned in to
his superiors, a termination slip which was not produced,
but which allegedly stated that Chilson had been dis-
charged for sitting down taking 10-minute coffeebreaks
and for continually agitating the men. On or before August
16, after talking to Elder and Nimm, Project Superinten-
dent Beesing filled in a form letter to the Union asserting
that Chilson had been terminated for "Sitting down, taking
10 minute coffee breaks, continually agitating the men."
The foregoing credited evidence strongly points to the
conclusion that Respondent discharged Chilson at least in
part because of Chilson's complaints to Nimm, both
directly and through Blais, that laborers were doing
carpenters' work. This conclusion gains further support
from Elder's testimony that he did not like Chilson's
conduct in allegedly talking during work time to certain
carpenters (rather than to Nimm or Elder) about laborers
doing carpenters' work, and from Beesing's testimony that
Elder and Nimm told him they had "nothing but trouble"
with Chilson in that, inter alia, "He agitated the personnel
around the sawmill by going to the men continually and
saying, 'Hey, you shouldn't be doing that, and you should
594
BLOUNT BROTHERS CORP.
be doing this.' . .. Even if he was a steward, if he sees that
going on, he should go to the foreman and have the
foreman straighten it out." It is true that Elder's and
Beesing's testimony in this respect was directed to
Chilson's alleged improper attempt to involve rank-and-file
employees in activities related to work assignment matters,
and that both Elder and Beesing conceded Chilson's right
to make work-assignment complaints to Elder or Nimm.
However, the credited evidence establishes that Chilson
did not in fact thus attempt to implicate his fellow
employees but, instead, that he merely attempted to resolve
the work assignment matter by complaining to Nimm,
directly or through Blais, and to Elder. Accordingly, as to
the propriety of Respondent's motives for discharging
Chilson, the foregoing testimony by Elder and Beesing is
the legal equivalent of testimony directed to Chilson's sole
actual activity of complaints to Nimm and Elder. N.L.R.B.
v. Burnup and Sims, Inc., 379 U.S. 21 (1964).'16 Respondent
does not appear to contend, nor would such a contention
have merit, that Chilson engaged in improper conduct in
the course of Section 7 activity by once remarking to one
fellow carpenter, while they were working as partners and
without any attempt to follow up on the matter, that
laborers were doing carpenters' work. Accordingly, I need
not and do not discuss the extent of any right Chilson may
have had to direct carpenters to do carpenters' work but
not laborers' work and laborers not to do carpenters' work,
in view of the contractual provisions relating to work
assignments, to job stewards' rights and duties, and to the
grievance-arbitration procedure, and in further view of the
parties' prior exchange regarding substewards' rights and
duties. Cf. Stop & Shop, Inc., 161 NLRB 75 (1966), affd. sub
norm Gary A. Machaby, 377 F.2d 59 (C.A. 1, 1967); Pathe
Laboratories, Inc., 141 NLRB 1290 (1963); Newspaper
Printing Corporation, 221 NLRB 811, 824-825 (1976).
I have previously found unworthy of belief most of the
evidence on which Respondent's brief bases its contention
that Chilson was not engaged in conduct protected by
Section 7 of the Act when he complained about laborers
doing carpenters' work. At the hearing, Respondent's
counsel seemed to be suggesting that Chilson's complaints
were unprotected because their subject matter allegedly
excluded them from the contractual grievance-arbitration
procedure. I regard any such contention as unmeritorious.
As Respondent does not appear to dispute, Section 7's
protection of a steward's grievance activity is not limited to
the presentation of grievances which are in fact meritori-
ous. Rather, such protection extends to the presentation of
grievances which the steward believes in good faith to be
meritorious, at least where such a belief is reasonable.' 7 In
the instant case, Chilson credibly testified to a belief that
the work performed by laborer Gerald was carpenters'
i' In any event, Elder did not testify, as Respondent's brief may imply
(supra, part II, F, I), that his remarks to Chilson were prompted by any
orders by Chilson directing carpenters to carry lumber from more than 80
feet away, or by any hollering by Chilson at carpenter employees. Rather,
Elder testified that his remarks to Chilson about complaining to Elder and
Nimm rather than to employees were prompted by reports to Elder by
"different ones" that Chilson was talking to certain carpenters, during
working hours, about laborers doing carpenters' work.
i? Tan-Tar-A Resort, 198 NLRB 1104. 1109 (1972); Diversified Industries,
a Division of Independeni Stave Company, 208 NLRB 223. 238 (1974); Quality
Manufacturing Company, 195 NLRB 197 (1972) (Cochran), enfd. in material
work, and I perceive no reason to question the sincerity of
Chilson's prior complaints that laborers were performing
carpenters' work. Further, I regard such complaints as
having a reasonable basis.18 Thus, Project Superintendent
Beesing testified that Blais brought Respondent a copy of a
1965 agreement between the Carpenters' International and
the Laborers' International which provided, inter alia, "The
moving from one stockpile to another stockpile for
convenience sake or near the point of installation, shall be
the work of the Laborers. The locations of stockpiles shall
not exceed 30 feet apart. Carpenters will not be required to
go over 15 feet to obtain his material." According to
Beesing, after inspecting this agreement and conferring
with the two Internationals, "we started having the
carpenters only go 15 feet from their workplace to pick up
material. And the laborers took it to that point and
stopped." Similarly, Nimm testified at one point that
moving material to the sawshack from less than 15 feet was
carpenters' work. Furthermore, Beesing tacitly conceded
that using the saw to cut wood was carpenters' work.
Moreover, there is no evidence that any representative or
member of the Laborers' Union ever told anyone that
laborers were entitled to perform any of the tasks whose
performance by them was protested by Chilson. Also,
taken as a whole, article I of the bargaining agreement at
least arguably constitutes an undertaking by Respondent
to assign carpenters' work to carpenters alone. Particularly
supportive of this position are the provisions, "The
employees in the bargaining unit and only such employees
shall perform all of the work covered by this Agreement
.... Work will be assigned where possible to Carpenters
under the terms of this Agreement . . . even though
specific work may not be specifically spelled out above, it
will, nevertheless be considered as part of the bargaining
unit work if it is traditionally work of the Carpenters." This
reading of the contract gains further support from
Beesing's testimony that Respondent "probably could"
change a "gross mis-assignment" of work without consult-
ing the Internationals involved.'9
This same testimony by Beesing undermines any conten-
tion that work assignments of the kind complained of by
Chilson could not reasonably be regarded as cognizable
under the contractual grievance-arbitration procedure
because of the contractual provision, "The Employer shall
in no way be held liable for jurisdictional disputes," and
the reference in the formal grievance-arbitration procedure
to "any difference or dispute . .. as to interpretation or
application of this Agreement."20 At least, arguably, such
provisions should be read in light of the very detailed
contractual recitation of the bargaining unit's "occupation-
al scope" and the article I provisions quoted in the
preceding paragraph. It could reasonably be urged that at
part 481 F.2d 1018 (C.A. 4), remanded with instructions to enforce in full
420 U.S. 276.
"A Accordingly. I find it unnecessary to consider whether a steward
engages in Sec. 7 activity when he raises grievances which he in good faith
but unreasonably believes to be meritorious.
19 Similarly, Blais credibly testified to a belief that Respondent could of
its own volition accede to the Carpenters' desire to switch work from the
laborers to the carpenters, if the assignment to the laborers violated a
specific agreement between the International affiliates of the two locals.
20 However, the contract elsewhere describes this procedure as directed
to "the settlement of Grievances."
595
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
least absent evidence that the Laborers' Union is affirma-
tively contending that a particular task should be done by
laborers, Respondent engages in a grievable breach of its
contract with the Carpenters by taking the initiative in
assigning to laborers a task which constitutes work
specified in the Carpenter contract, work traditionally
performed by carpenters, or work given to carpenters by a
Carpenters-Laborers agreement.
Further, at least arguably, stewards are not limited to
complaining about matters cognizable under the formal
grievance-arbitration procedure. Rather, the stewards'
duties as specified in the bargaining agreement include
reporting not only "Violations of the ... Agreement," but
also "Disputes and grievances." Moreover, the February
1976 letter agreement between Respondent and the Union
affords the substeward the right to discuss "grievances"
with the immediate foreman. Finally, even assuming that
neither the bargaining agreement nor the February 1976
letter agreement affords substewards the right to complain
that laborers were doing carpenters' work, this circum-
stance would not effect a waiver of Chilson's statutory
right, as an employee, to make a good-faith complaint that
such conduct violated the bargaining agreement or was
otherwise depriving carpenters of work that was rightfully
theirs.21
For the foregoing reasons, I find that Chilson's com-
plaints to Nimm and Elder about laborers' doing carpen-
ters' work constituted union activity protected by Section 7
of the Act. Accordingly, his discharge therefor violated
Section 8(a)(3) and (1).
As previously noted, I have discredited testimony which
would tend to show as follows: Nimm told Blais that
Nimm intended to discharge Chilson for reasons which, in
context, meant Chilson's Section 7 protected complaints
that laborers were doing carpenters' work. Blais then said
that he would try to forestall Chilson's discharge by getting
Chilson transferred to a job outside Nimm's jurisdiction,
and Nimm said "okay." However, Beesing refused the
transfer, although apprised by Blais that it was requested to
protect Chilson's job status, owing to statements by Nimm
and Elder that they had had "nothing but trouble" from
Chilson because, inter alia, he "agitated the personnel by
telling them who should do what job," and "even if
[Chilson] was a steward," he should have gone to the
foreman instead. If credited (as it has not been), such
testimony would independently show that Chilson's dis-
charge was unlawful. For reasons previously stated,
Beesing's testimony about why he refused to transfer
Chilson is the legal equivalent of testimony that Beesing
refused because of Chilson's Section 7 protected conduct in
complaining about laborers doing carpenters' work. Burnup
& Sims, supra, 379 U.S. 21. Furthermore, Beesing must
have suspected that Blais was asking for the transfer in
order to keep Chilson from losing his job. Accordingly, in
consequence of Chilson's Section 7 conduct, Beesing
knowingly left Chilson exposed to Nimm's imminent
discharge action. Moreover, Beesing must have suspected
2' Ben Pekin Corporation, 181 NLRB 1025 (1970), enfd. 452 F.2d 205
(C.A. 7); Murphy Diesel Co. v. N.LR.B., 454 F.2d 303, 307 (C.A. 7); Tan-
Tar-A Resort, supra, 198 NLRB at 1109; Allelulia Cushion Co., Inc., 221
NLRB 999 (1976): Sandpiper Builders, 152 NLRB 796 (1965); H. O. Seiffert
Co., 199 NLRB 960, 966-967 (1972), enfd. 86 LRRM 2152, 75 LC 1110,568
that this discharge action would be based partly on
Chilson's activity as a substeward, in view of Blais'
reference to a "personality conflict" with Elder, Nimm's
jurisdiction over Chilson, and Elder's and Nimm's state-
ment that they had had "nothing but trouble" with Chilson
because of, inter alia, conduct related to his capacity as
substeward. In any event, I find that Respondent was
chargeable with Nimm's motives for the prospective
discharge which Beesing was, in effect, refusing to
forestall. 22 In short, if credited, this testimony would show
that in consequence of the very Section 7 activity which
caused his unlawful discharge on July 30, Chilson was
denied a July 23 transfer which would have forestalled that
discharge.
Respondent's brief contends that Chilson was discharged
partly because of his coffeebreak practices. I do not think
that such practices were a real reason for his discharge.
Thus, both Elder and Nimm testified that at least a
tentative decision to discharge Chilson was made about
July 23, 1976, and there is no credible evidence that
management said anything to Chilson in 1976 about his
coffeebreak practices until the day of his discharge on July
30. Furthermore, General Foreman Elder said nothing
about Chilson's July 30 coffeebreak when Elder saw him
taking it, and Chilson was not discharged until about 5
hours after taking it. Moreover, Elder admittedly had to
warn all the employees, most of them repeatedly, about
overly long coffeebreaks. Also, so far as the credible
evidence shows, during his at least 9 months on the job
Chilson had taken, at most, one overly long coffeebreak.
Further, so far as the record shows, nothing was said to the
two other sawshack carpenters who took coffeebreaks that
morning. In addition, Beesing said nothing about Chilson's
coffeebreaks when about 4 days after the discharge and
after obtaining a chance to check on it, Beesing gave
reasons therefor to Blais. Although Chilson's sitting down
during his break was mentioned in Beesing's August 16
letter to Blais about Chilson's discharge, and was allegedly
mentioned in Elder's unproduced termination slip, Nimm's
testimony did not allude to this circumstance as a reason
for the discharge until the General Counsel, on cross-
examination, showed Nimm Beesing's August 16 letter. In
any event, the fact that Chilson was discharged at least
partly because of his protected union activity renders his
discharge unlawful even assuming he was also discharged
partly because of his coffeebreak practices. Dilene Answer-
ing Service, Inc., 222 NLRB 462 (1976); N.LR.B. v. Tom
Wood Pontiac, Inc., 447 F.2d 383, 386 (C.A. 7, 1971).
CONCLUSIONS OF LAW
i. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
(C.A. 9, 1974); Carlson Corporation, 195 NLRB 218, 221 (1972), enfd. 82
LRRM 2392 (C.A. 1, 1972).
22 See N.LR.B. v. Wire Products Manufacturing Corp., 484 F.2d 760, 765
(C.A. 7, 1973); United Aircraft Corporation v. N.LRB., 440 F.2d 85, 92
(C.A. 2, 1971).
596
BLOUNT BROTHERS CORP.
3. Respondent has violated Section 8(aX3) and (1) of
the Act by discharging David Chilson to discourage
activity on behalf of the Union.
4. Such unfair labor practices affect commerce within
the meaning of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I shall recommend that it be required to
cease and desist therefrom. Because the unfair labor
practices found consist of an employee's discharge to
discourage union activity, Board precedent calls for the
issuance of a broad order. Brom Machine and Foundry Co.,
222 NLRB 74 (1976). Accordingly, I shall recommend that
Respondent be required to cease and desist from infringing
on employee rights in any other manner. Further, I shall
recommend that Respondent be required to offer Chilson
immediate reinstatement to the job of which he was
unlawfully deprived, or, in the event such job no longer
exists, a substantially equivalent job, and make him whole
for any loss of pay he may have suffered by reason of his
unlawful discharge to the date of a valid offer of
reinstatement, to be computed in the manner described in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as
described in Isis Plumbing & Heating Co., 138 NLRB 716
(1962). 1 shall also recommend that Respondent be
required to post appropriate notices.
Upon the foregoing findings of fact and conclusions of
law, and the entire record, and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended Order:
ORDER 23
The Respondent, Blount Brothers Corporation, Byron,
Illinois, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Discouraging membership in Carpenters Local No.
792, affiliated with the United Brotherhood of Carpenters
and Joiners of America, AFL-CIO, or any other labor
organization, by discharging employees, or otherwise
discriminating in any manner in regard to their hire or
tenure of employment or any terms or conditions of
employment.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of rights guaranteed
in Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer reinstatement to David Chilson, and make him
whole for any loss of pay he may have suffered by reason
of his discharge.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary or useful to analysis of the amount of backpay
due under the terms of this Order.
(c) Post at its Byron Nuclear Power Plant job copies of
the attached notice marked "Appendix."2 4 Copies of said
notice, on forms provided by the Officer-in-Charge of
Subregion 38, after being duly signed by 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 Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Officer-in-Charge of Subregion 38, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
23 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
24 In the event the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law by discharging David Chilson. We have been
ordered to post this notice. We intend to carry out the
order of the Board and abide by the following:
WE WILL NOT discharge or otherwise discriminate
against any employee to discourage membership in
Carpenters Local No. 792, affiliated with the United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, or any other union.
WE WILL NOT in any manner interfere with, restrain,
or coerce employees in the exercise of these rights.
WE WILL offer David Chilson reinstatement to his
old job, or, if such job no longer exists, to a
substantially equivalent job, and make him whole, with
interest, for loss of pay resulting from his discharge.
The National Labor Relations Act gives the following
rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the purpose
of collective bargaining or other mutual aid or
protection
To refrain from any such activities.
Our employees are free to exercise any or all of these
rights, including the right to join or assist Carpenters Local
No. 792, or any other union. Our employees are also free to
refrain from any or all such activities, except to the extent
that union membership may be required by a collective-
597
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining agreement as a condition of continued employ-
ment as permitted by Section 8(f)(2) or the proviso to
Section 8(a)(3) of the Act.
BLOUNT BROTHERS
CORPORATION