Carpenters Local 925

National Labor Relations Board - Board Decisions

May 22, 1986

279 N.L.R.B. 1051 (N.L.R.B. 1986)

CARPENTERS LOCAL 925
United Brotherhood of Carpenters and Joiners of
America, Carpenters Local 925; Monterey Bay
District Council of Carpenters , United Brother-
hood of Carpenters and Joiners of America,
AFL-CIO and Charlene Seier . Case 32-CA-
5760
22 May 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 8 July 1985 Administrative Law Judge
Burton Litvack issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel and the Charging Party
filed cross-exceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings , findings,I and
conclusions only to the extent consistent with this
Decision and Order and to adopt the recommended
Order as modified.
While we adopt the judge's other findings, 2 we
do not adopt his finding that Local President
Kirby's warning to Local Business Agent Bishop
that he was "putting his job on the line" violated
Section 8(a)(1) of the Act. In Parker-Robb Chevro-
let,3 the Board stated that discharging a supervisor
for refusing to commit an unfair labor practice is
unlawful, but that discharging a supervisor for par-
ticipating in union or concerted activity is not.
Here, the judge found that Kirby warned Bishop
that he might lose his job because Bishop refused
to discharge Seier, and that Kirby's warning was
unlawful. We disagree.
i The Respondent has excepted to some of the judge 's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
Z Member Dennis would find that the Respondent violated Sec 8(a)(1)
when its business agent and supervisor Jim Bishop related to employee
Charlene Seier the executive committee 's reaction to her union activities
Bishop told Seier that "the executive board [got] very upset and that
there were comments made", that trustee Mascovich "hit the roof" and
said "he wasn ' t going to have another damn union run the office
This has happened once again We got rid of that girl We'll just have to
do the same to this one " In addition , following Seter's discharge, Bishop
told her that an executive committee member said that Seier would "still
have her job if it weren 't for this Union shit "
Member Dennis disagrees with her colleagues ' conclusion that, given
the friendly relationship between Bishop and Seier , his comments could
not have coerced or restrained her in the exercise of her Sec 7 rights
See Member Dennis' partial dissent in Paintsville Hospital Co, 278 NLRB
724 (1986)
3 262 NLRB 402 (1982)
1051
There is no evidence that Bishop had been told
prior to Kirby's warning that he would be asked to
execute the local executive board's decision to dis-
charge Seier.4 Further, as found by the judge,
Kirby's warning was specifically in response to
Bishop's July 12 letter to the local executive board
in which Bishop threatened to resign if they fired
Seier. Thus, it is clear that Kirby told Bishop he
was "putting his job on the line" not because
Bishop refused to discharge Seier, but because
Bishop threatened to resign if the executive board
did so. In this circumstance, contrary to the judge,
we find that the Kirby's warning did not constitute
a violation of the Act.
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 4 and renumber the
subsequent paragraphs.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, United Brotherhood of Carpenters and
Joiners of America, Carpenters Local 925, Salinas,
California, its officers, agents, representatives, and
assigns , shall take the action set forth in the Order
as modified.
1. Delete paragraph 1(b) and reletter the subse-
quent paragraph.
2. Substitute the attached notice for that of the
administrative law judge.
4 Indeed , as found by the judge , when Seier was later initially in-
formed that she was being terminated, it was Kirby, not Bishop, who
handed her the termination note, and the note was signed by the Local's
recording secretary While Bishop later did become involved in discharg-
ing Seier, this occurred at Seier's insistence
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT discharge our employees because
they have engaged in union activities or sought to
be represented by a labor organization.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
279 NLRB No. 145
1052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer Charlene Seier immediate and
full reinstatement to her former job or, if that job
no longer exists , to a substantially equivalent posi-
tion , without prejudice to her seniority or any
other rights or privileges previously enjoyed and
WE WILL make her whole for any loss of earnings
and other benefits resulting from her discharge, less
any net interim earnings, plus interest.
WE WILL notify her that we have removed from
our files any reference to her discharge and that
the discharge will not be used against her in any
way.
UNITED BROTHERHOOD OF CARPEN-
TERS AND JOINERS OF AMERICA,
CARPENTERS LOCAL 925
Bernard T Hopkins, Esq., for the General Counsel.
Michael B. Roger, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of San Francisco, California, for the Re-
spondents.
Michelle A. Welsh, Esq. (Stoner, Welsh & Schmidt), of Pa-
cific Grove, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
BURTON LIrvACK , Administrative Law Judge. This
matter was heard by me on November 27, 1984, and
April 9, 1985, in Monterey, California . On October 11,
1983, the Regional Director for Region 32 of the Nation-
al Labor Relations Board (the Board) issued a complaint
and notice of hearing , based on original and first amend-
ed unfair labor practice charges filed by Charlene Seier,
an individual , on August 1 and October 3, 1983 , respec-
tively, alleging that United Brotherhood of Carpenters
and Joiners of America, Carpenters Local 925, (Re-
spondent Local) and Monterey Bay District Council of
Carpenters , United Brotherhood of Carpenters and Join-
ers of America, AFL-CIO (Respondent District Coun-
cil) engaged in acts and conduct violative of Section
8(a)(1) and (3) of the National Labor Relations Act (the
Act). Both Respondents filed answers , denying the com-
mission of any unfair labor practices. At the hearing, all
parties were afforded the opportunity to examine and
cross-examine witnesses , offer all relevant evidence,
argue their legal positions orally , and file posthearing
briefs. Such briefs have been filed by the parties and
were carefully considered . Accordingly, based on the
entire record , including my observation of the demeanor
of the various witnesses and the posthearing briefs, I
make the following
FINDINGS OF FACT
1. JURISDICTION
Each Respondent denies that it is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act. The record establishes that
United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL-CIO (the UBCJA) has its headquarters in
Washington, D.C. According to its internal constitution
and laws (G.C. Exh. 2), the UBCJA consists of an "un-
limited" number of local unions and various district,
state, and local councils located throughout the United
States, which the UBCJA is empowered to establish and
charter and, among its sources of revenue, is the pay-
ment by its affiliated local unions of a per capita tax
based on the new and old members of each affiliate. Ac-
cording to its own internal bylaws and trade rules (G.C
Exh. 3), Respondent District Council, which is a labor
organization and an unincorporated association with a
place of business located in Castroville, California. It was
chartered by the UBCJA in conformity with the latter's
constitution and laws; is comprised of five UBCJA local
unions, including Respondent Local, located in the vicin-
ity of Santa Cruz and Monterey Counties ; and acts as
"the central governing body and shall have legislative
and executive powers on all matters relating to the gen-
eral interest and welfare" of the local unions.
Respondent Local, a labor organization and presum-
ably chartered by the UBCJA as an affiliated local
union , is an unincorporated association with a place of
business in Salinas , California , where it is engaged in the
business of representing employees in bargaining with
employers with respect to wages, hours, and other terms
and conditions of employment. As an affiliated local
union of the UBCJA, pursuant to the latter's constitution
and laws, Respondent Local is subject to the provisions
of General Counsel's Exhibit 2, which document inte-
grates the local unions into the UBCJA and subject to
the active control of the latter. Thus, under the constitu-
tion and laws, the UBCJA is empowered to establish or
dissolve any local union, to supervise the affairs of any
affiliate whenever the local union's affairs are conducted
in a manner detrimental to the "best interests" of the
UBCJA, and to "enforce laws for ... [the government]
of subordinate Locals and Auxiliary Unions . . . and
members thereof." Further, the general executive board
of the UBCJA may enforce discipline against the affili-
ated local unions and their officers. Moreover, any local
bylaws or trade rules may not conflict with any provi-
sion of the UBCJA constitution and laws and must be
approved by the latter before becoming law. Based on
the foregoing, the conclusion is warranted that Respond-
ent Local is an integral part of a multistate enterprise,
the UBCJA. NLRB v. Restaurant Employees Local 11,
302 F.2d 167, 169, 172-173 (2d Cir. 1962). Both the Su-
preme Court and the Board have long held that labor
unions should be treated like any other employer with
regard to their own employees. Office Employees Local
11 v. NLRB, 353 U.S. 313, 316 (1957); Air Line Pilots
Assn., 97 NLRB 929 (1951). One of the Board 's discre-
tionary standards for the assertion of jurisdiction over
multistate, nonretail enterprises is annual direct inflow or
direct outflow in excess of $50,000. Siemons Mailing Serv-
ice, 122 NLRB 81, 85 (1958). The record further estab-
lishes that, although Respondent District Council does
not remit any funds on its own behalf to the UBCJA, its
five affiliated local unions, in the aggregate, during cal-
endar year 1983, remitted to the UBCJA per capita taxes
CARPENTERS LOCAL 925
in an amount in excess of $100,000 and that, of the total
per capita tax amount, Respondent Local remitted in
excess of $28,000 to the UBCJA. Accordingly, the fur-
ther conclusion is warranted that the UBCJA, a multis-
tate and nonretail enterprise, during calendar year 1983,
had a direct inflow or direct outflow in excess of
$50,000, mandating the assertion of jurisdiction herein.
Louisiana Council No. 17, AFSCME, 250 NLRB 880, 892
(1980); Restaurant Employees Local 11, 132 NLRB 960,
961 (1961); Laundry Workers Local 26, 129 NLRB 1446
fn. 2 (1961).
II. LABOR ORGANIZATION
The parties stipulated that Office and Professional Em-
ployees International Union, Local No. 29 (OPEIU) is a
labor organization within the meaning of Section 2(5) of
the Act.
III. ISSUES
1. Did Respondent District Council and Respondent
Local terminate the latter's employee Seier about July
19, 1983, because of her activities in support of the
OPEIU in violation of Section 8(a)(1) and (3) of the Act?
2. Did Respondent Local violate Section 8(a)(1) of the
Act by telling an employee that a former employee had
been terminated for engaging in union activities and
warning that that employee would suffer the same conse-
quences and by impliedly promising an employee that
she could keep her job if she ceased her union activities?
3. Did Respondent District Council violate Section
8(a)(1) of the Act by threatening a supervisor/agent of
Respondent Local with loss of employment if he did not
terminate an employee of the latter who engaged in
union activities?
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The record reveals that, pursuant to General Counsel's
Exhibit 3 the bylaws and trade rules of Respondent Dis-
trict Council, that organization has "legislative and exec-
utive powers" over its five affiliated local unions in the
Monterey Bay area. The affiliates, of which Respondent
Local is one, are each represented on the District Coun-
cil's executive board along with the latter 's executive
secretary who, at all times material herein, has been Wil-
liam Krebs . The record further reveals that the duties of
the executive secretary are to keep records of meetings,
execute the District Council's official documents, receive
all moneys, and to preserve ballots and other election
documents With regard to Respondent Local, the
record discloses that it is located in Salinas, California;
that its membership at the time of the instant hearing was
approximately 475 individuals; and that James Bishop is
its business representative and financial secretary' and
' These are two separate positions As business representative , a sala-
ned position, Bishop is responsible for organizing activities, handling em-
ployee grievances, policing collective-bargaining agreements, and negoti-
ating contracts As financial secretary of Respondent Local, which, ac-
cording to the International's constitution and laws, is an elected position,
Bishop is responsible for maintaining membership applications, receiving
1053
the Local's representative to the District Council. The
record further discloses that Respondent Local conducts
monthly membership meetings at which its normal busi-
ness is conducted and future policies debated and estab-
lished and that, pursuant to the constitution and laws of
the UBCJA, an executive committee, comprised of the
Local's elected officers2 and business representative, con-
ducts Respondent Local's business affairs between the
monthly membership meetings and recommends policies
which may or may not be adopted by the membership.
The executive board normally meets once a month but
does meet more frequently if necessary. At executive
committee meetings, only the elected officers are permit-
ted to vote; although all members may participate in de-
bates.
The instant matter concerns the desire of Charlene
Seier,3 who was employed by Respondent Local from
January 1978 until July 19, 1983,4 as a secretary, to be
represented by the OPEIU. Seier, who apparently per-
formed most, if not all, of Respondent Local's office and
clerical functions and who was the only individual regu-
larly in its office during most of 1982 and 1983,5 was so
motivated as the UBCJA would not permit her to retain
membership in the Local to be eligible to receive its con-
tractual fringe benefits. Although the record is unclear
about the date 6 of the UBCJA's action in that regard,
there is no dispute that, in February or March, Seier
began discussing the possibility of her representation for
purposes of collective bargaining by the OPEIU with
Bishop. According to the latter, at approximately that
time, he met in Respondent Local's office with William
Pearce, an OPEIU official, Seier, and Lynn Coombs, a
all moneys paid to the Respondent Local , keeping a correct account of
each member , including full name and address , maintaining complete
dues payment records , and filling out the monthly UBCJA financial
report
2 The elected officers of Respondent Local are its president, vice presi-
dent, recording secretary , financial secretary , treasurer , conductor,
warden , and three trustees At all times material herein, Respondent
Local 's president was David Kirby , Don Inwalle its vice president, and
two of the three trustees , who are responsible for supervising the funds
and property of the Local and for auditing the accounts of the financial
secretary and reporting on such to the Local , were Nick Mascovich and
Mark Schaper The elected positions are neither full time nor salaned
8 Seier 's father is a long -time member of Respondent Local He was its
financial secretary for 12 years and the official who hired Seier as a sec-
retary Also, her mother and sister had worked for the Local
' Unless otherwise stated , all dates are in 1983
5 While Respondent Local normally employed an assistant business
representative to assist the business representative in his duties, according
to Local President David Kirby, due to declining membership and other
factors, the Local was having financial difficulties and could not afford
an assistant for Bishop Therefore, he alone was responsible for the
Local's approximately 80-square -mile geographical area and , consequent-
ly, was away from the office a great deal of the time The inference from
Bishop 's testimony and conduct herein is that he relied greatly on Seier
to relieve him of most office responsibilities
With regard to their office relationship, Bishop testified that he was re-
sponsible for directing Seier ' s work but that "she knew what to do each
day " Stating that he would perform her duties if she was absent or away
from the office , Bishop added that he had veto authority over requests by
Serer to be absent from work or to leave work early for any reason
Also, Seier was required to discuss her vacation schedule with him
' Bishop stated that the UBCJA ordered Respondent Local to revoke
Seier's membership status in June or July 1982, while Seier placed it as
occurring in December 1981
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
secretary employed by Respondent District Council,'
who also sought representation by the OPEIU. Pearce
had told Bishop that he represented Seier and wanted to
negotiate a contract.8 Rather than reporting back to the
Local's executive committee, Bishop contacted William
Krebs and requested that the latter arrange a meeting of
the executive board of the District Council. Bishop testi-
fied, "The purpose of the meeting was that the girls
wanted to talk to the executive board about a possible in-
crease in wages or a contract to cover them under col-
lective bargaining " The executive board of Respondent
District Council met in March and present were repre-
sentatives of the affiliated locals, including Bishop,
Krebs, the president of the District Council, Seier, and
Coombs. Bishop spoke and said that the two women
wanted representation from the OPEIU, and said they
had a proposed contract with them. Seier and Coombs
were excused, and, according to Bishop, "we discussed it
for probably 20 or 30 minutes. And some of the execu-
tive board felt that it was feasible to look at it. And it
was also mentioned . . . we had no business sitting here
negotiating. . . . Because we were supposed to be nego-
tiating the contract as individuals." The result of the
meeting was that Krebs was instructed to meet with
Seier and Coombs. Without the knowledge of Pearce,
such a meeting occurred. According to Seier, she gave
Krebs a proposed contract which she drafted by herself.
Krebs told her to discuss the proposal with representa-
tives of the Local, saying he could not bargain on Re-
spondent Local's behalf. He did, however, suggest cer-
tain alternative proposals which he said she should con-
sider."
Subsequent to the meeting of the District Council's ex-
ecutive board, Bishop discussed representation with Seier
informally "off and on in the office" during April. Ap-
parently, such discussions were not in the context of bar-
gaining . Thereafter, later that month, he received a
typed contract proposal from the OPEIU for a collec-
tive-bargaining agreement between the latter and Re-
spondent Local and, on May 3, he presented the contract
to the Local's executive committee' ° for consideration.
"I made the comment that the contract seemed like it
was a good package, and it would be cheaper . . . to ap-
prove the contract like that than we were paying at the
present time." Bishop recalled that one response "was
that they should have time to look at the contract, study
it, see what was in it. And come back in another 30
days." He also recalled that the meeting concluded with
the executive committee having decided to pursue the
matter further and to arrange a meeting with an OPEIU
r Coombs apparently worked for the District Council on a regular
part-time basis-20 hours per week Her employment with Respondent
District Council was terminated pnor to the discharge of Seier
8 Bishop understood that Pearce wanted an identical contract with the
District Council covering Coombs
9 Seier admitted that Krebs did not appear "hostile" to some sort of
agreement and testified that she did no further bargaining with Respond-
ent District Council
10 According to Bishop , the executive committee meetings normally
are held on the same day as, but preceding , the general membership
meetings There is no formal agenda, and recommendations for discussion
at the general membership meeting are voted on after discussion Bishop
normally prepares the items for discussion
representative. t' While Bishop denied that terminating
Seier was among the options discussed that night, the
record contains clear indications that such was, indeed,
raised as a response to Seier's representation efforts.
Thus, the latter testified that she asked Bishop the next
morning (May 4) about the events of the night before.
She was aware that Bishop was to present the OPEIU
contract to the executive committee, and "his response
was that the executive board [got] very upset and that
there were comments made " According to Seier, Bishop
mentioned that Trustee Nick Mascovich "hit the roof'
and said that "he wasn't going to have another damn
union run the office." Bishop said others made "deroga-
tory" comments that she was female, some just wanted
to fire her, and Mascovich had added that "This has hap-
pened once again . We got rid of that girl. We'll just do
the same to this one." Bishop did not deny this conversa-
tion with Seier, and, according to Seier, from what he
reported to her she formed the opinion that the execu-
tive committee was "very upset" over her request for
representation. Also, 2 weeks after the executive commit-
tee meeting , Bishop admittedly sent a letter to the
UBCJA's general president in which he wrote, "The
clerical girl here [has] been working in the office for five
years and does an excellent job. The Executive Board
. .. has suggested to me that since she wants to join the
Secretarial Union we should terminate her." Stating that
Seier was an "asset" to the office, Bishop requested in-
formation about whom was authorized to fire Respond-
ent Local's clerical help.' 2 Asked for the basis behind
his above-quoted statement, the business representative
averred "I believe it was because there was some that
felt that they didn't want to have her in the union, and
some felt they did. . . . I felt that I needed to get a little
more help on this. That's the reason I wrote the letter."
According to him, among those desiring to terminate
Seier was the vice president, Don Inwalle.
Having typed Bishop's May 17 letter' 3 to the UBCJA
in Washington, D.C., and having talked to him, Seier
was aware that members of the executive committee
wanted to discharge her and that Bishop had canceled
his scheduled meetings with OPEIU representatives ap-
parently at the executive committee's behest. Against this
background, according to the Charging Party, Bishop,
who obviously supported Seier 's representational aims,
asked if she could arrange to have more members attend
the July general membership meeting "that could sup-
port him into helping the executive board make the right
decision concerning the negotiations with Local 29. And
I told him that I could possibly send out a letter to a few
II Pursuant to his instructions, Bishop scheduled such a meeting but
canceled it, asserting as a reason , "My executive board didn 't give me the
power to meet at that time " Another meeting was scheduled for June 21,
Bishop again canceled it, explaining that Respondent Local's executive
committee was in the process of examining the contract
iz In a letter dated June 2, the general president replied that terminat-
ing the clerical for union activities would be unlawful and that the mem-
bership of the Local must ratify any termination Interestingly, Seier ac-
knowledged that the attorney for the Respondents herein also advised
against firing her for union activities
i I The record establishes that Seier typed all Bishop's correspondence
CARPENTERS LOCAL 925
of my friends." 14 Seier testified that, during a conversa-
tion about June 25, Bishop offered her the use of the
office ledgers, which contained the most recent addresses
of all Respondent Local's members , as an aid in the mail-
ing of the letter but that she refused.15 She further testi-
fied that, while at home, she composed and drafted the
suggested letter, later made approximatley 80 photocop-
ies, and , about June 29, mailed these to any members of
the Local whose names she could recall. She was able to
locate addresses for each of the addressees without resort
to the aforementioned ledgers, Seier maintained, because
she utilized the area telephone books, her own memory,
and that of her family. The letter, General Counsel's Ex-
hibit 7, reads as follows:
Dear Local #925 Member:
I, Charlene Seier, Secretary of Local #925, am
reaching out to you for support at the next General
meeting of Local #925 dated July 5, 1983 at 7:30. It
has reached that time where I feel that it is impor-
tant to me and this office and the members of Local
#925 to become a union member and a [sic] em-
ployee covered under a Labor Union contract.
Most of you are familiar with the help and aid
that I can give you because of my knowledge and
daily experience of working in this office over the
past four years. I am concerned and do my very
best to aid you with problems you have with vari-
ous Union benefits and etc. Wanting to be a Union
employee means a great deal to me and I see no
reason for Local #925 to denie [sic] me the rights
that you all share.
Enclosed is a copy of a letter that I wrote to you
all that was never read at the last general meeting
which I hope will explain how much this means to
me. I feel that this issue is important to you as well
as me.
My job is in jeopardy because I want Union rep-
resentation with the Secretarial Union Local #29.
For Local #925 to denie [sic] me the same rights
and protection you yourselves insist on, is embar-
rassing and hypocritical for what organized labor
stands for.
I ask you sincerely not to jeopardize your union
office and your own respect as a union member by
ignoring this issue . If you care as much as I do
please come to the meeting of July 5, 1983 and sup-
port me by voting in favor of Local #925 to sign
the Secretarial Contract. So that I also can have
union representation and can hold a union card
14 Bishop readily admitted encouraging Seier to write such a letter,
stating, "I believe I did talk to her about contacting the membership" for
support prior to the July meeting.
15 While admitting that the ledgers were mentioned during their con-
versations , Bishop denied giving Seier permission to utilize them for ob-
taining the addresses of those members to whom letters were sent He
could not recall Seter saying she did not have to utilize the Local's files
for such
1055
proudly the same as all of you, as a working
person. 16
The general membership meeting which Seier had im-
plored her potential supporters to attend occurred on
July 5. Prior to that, Respondent Local's executive com-
mittee met'' and, according to President David Kirby,
debated discharging Seier and hiring an assistant business
representative who would assist Bishop in his duties.
After discussion concerning the economic ramifications
of such personnel actions, the members voted to recom-
mend to the membership that the secretary's hours be re-
duced and the assistant to Bishop be hired. Accordingly,
at the membership meeting, attendance at which was
more than twice the normal attendance, Kirby presented
the executive committee's recommendation; however,
those in attendance voted to table it for future consider-
ation. Then, undoubtedly influenced by Seier's letter, a
motion was made to have the Local execute the pro-
posed OPEIU contract; that also was tabled by the mem-
bership. Next, a motion was raised to pen negotiations
with the OPEIU and, if not concluded after 30 days, to
sign the proposed contract as presented; the majority
voted to pass this motion. With regard to bargaining
with the OPEIU, the membership's decision meant to
Kirby that "we had at least to take another look at it."
Two days later, obviously in regard to what happened
at the membership meeting , Respondent Local's execu-
tive committee held a meeting. According to Bishop,
while instructing him to commence contract discussions
with representatives of the OPEIU, the committee tenta-
tively, at least, decided to discharge Seier and to hire an
assistant for him. Regarding the instruction to bargain
with the OPEIU, Bishop conceded that he normally
would not bargain over a unit with no employees; how-
ever, noting the termination vote, he said he was pre-
pared to negotiate in these circumstances "because I was
directed" to do so. Bishop testified further that the
reason the decision was not final resulted from the com-
16 Attached to each of the 80 letters was a copy of a Seter submission
to the Local 's executive committee in either late May or early April It
read as follows-
Do (sic] to a break down of communications , I would like to ex-
press myself in writing as to my reasons for joining a Union
I have worked for this office for almost five years now I have
learned to respect the Union and what it stands for I enjoy my job,
care and take great pride in what I do Beyond all the secretarial
responsibilities and financial duties of this office I try my best to help
members with various fringe benefit and membership problems I do
my best to represent the union as a liaison person between the mem-
bers and their Local I feel that it is important to this office and
myself that I be a union employee
I was proud to be a member of Local #925 but for reasons beyond
my control I lost that privilege My decision to affiliate myself with
the Secretarial Union and request Local #925 to negotiate a contract
is not a terrible dispicable (sic] idea, nor a weapon and not something
to cram down your throats I am not saying that I am unhappy with
my job and pay It is just that I believe in organized labor, I respect
it and since I work in a Union office I feel I should carry a union
card , participate in a union way and have Union representation
" Apparently, there was an executive committee meeting in June,
however, due to internal elections of officers that month, the full commit-
tee did not meet David Kirby testified that Seier 's representation by the
OPEIU was discussed but "postponed simply because we did not have
the full executive board to act upon it "
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mittee's uncertainty about its authority Five days later,
on July 12, another meeting of Respondent Local's exec-
utive committee was scheduled. Bishop suspected what
would be discussed and had Seier type the following
letter which he intended to submit to the members of the
committee that night:
July 12, 1983
David Kirby, President
Members of the Executive Board
Carpenters Local #925
The BICKERING and ARGUEING [sic] over
the Local #29 contract is more than any person
should half [sic] to bear. With all the problems of
Non-Union work in this area, you would think we
would ENCOURAGE UNION. I do, it is my job
to talk people into joining a UNION. All UNIONS
have a purpose. If you members of the EXECU-
TIVE BOARD think FIRING CHARLENE and
putting on a [sic] assistant B.A. will help this local
you are all OUT TO LUNCH! This office functions
just fine the way it is, "LEAVE IT ALONE!"
Spend some of our Savings and put an assistant
B A on for three months and SIGN Local #29's
contract and let Charlene & I get back to our jobs.
If you FIRE CHARLENE against my wishes
and the wishes of the members, YOU CAN
START LOOKING FOR A NEW BUSINESS
REPRESENTATIVE! ! !
Regarding its purpose, Bishop admitted that the letter
was his response to the decision, albeit tentative, of the
executive committee on July 7-a decision with which
he disagreed, and, concerning what he meant by the in-
troductory sentence, Bishop explained he was referring
to the discussion among the committee members that
day-"I had to listen to people .. . talking about this,
and I just finally got disgusted."
The executive committee did meet that night and, ap-
parently over Bishop's protest, decided to make the deci-
sion to terminate Seier final. According to Bishop, the
meeting began with the recording secretary reading
aloud the contents of Seier's June letter to the member-
ship and after he finished, Nick Mascovich raised a
motion to immediately discharge the Charging Party.
Discussion ensued and, according to David Kirby, Bish-
op's letter was a main topic- "I told him he was putting
his job on the line." Eventually, a vote was taken, and
the motion was passed. At the conclusion of the meeting,
Bishop informed Seier, who, through conversations with
the former and from typing his July 12 letter to the exec-
utive committee, was aware of such a possibility, of the
termination decision.
The next day, July 13, as she arrived at the Local's
office, Seier was confronted by Kirby, Bishop, and
Charles Barry, the treasurer. Kirby handed her a termi-
nation note, signed by the recording secretary, but re-
fused to give her a reason. Seizing upon the Local's offi-
cials' inexperience in personnel matters i 8 and stating she
did not recognize the executive committee's authority in
such situations, and would only accept discharge from
Bishop, Seier challenged her discharge and refused to
accept it. Uncertain about what to do, Respondent Local
permitted her to remain on the job for the next 6 days,
paying Seier her normal wages. Meanwhile, Bishop was
aware that the executive committee was "upset" with his
role in the Seier imbroglio and believed his job to be in
jeopardy unless Seier's discharge was consummated. Ac-
cordingly, on July 19, he visited the offices of Respond-
ent District Council, seeking the advice of William
Krebs i 9 concerning Seier Bishop testified, "I talked to
him about the decision of the executive board, and that I
protested against their decision, and he advised me that I
should go along with the executive board, or they may
accept my letter as a letter of resignation, and I didn't
want to lose my job."20 He further testified that he then
dictated a discharge letter for Seier to the District Coun-
cil's secretary, who typed it in letter form, and he signed
it 21 Thereupon, Bishop returned to Respondent Local's
office and, in the presence of Kirby and Barry, handed
the discharge letter to Seier. The document reads as fol-
lows.
Dear Mrs. Seier:
As of the July 13, 1983 Executive Board decision
and your admitted misuse of Confidential Records
and Files in this office, as the Executive Officer I
must comply with the Executive Board decision
and notify you that your services are terminated ef-
fective, Wednesday, July 13, 1983.
I respectfully request that you turn in to me all
properties of Carpenters Local Union #925 includ-
ing any keys or materials immediately.
Attached please find:
1. Two (2) weeks severance pay.
2. Two (2) weeks vacation pay.22
Seier read the letter; she testified that she asked Bishop
what he meant by "misuse of confidential files" and that
he replied "I don't know. This is just the way it has to
be."23 Two other matters bear upon the discharge. Thus,
18 The record discloses that they are all carpenters by trade and not
salaned officials
19 David Kirby testified , without contradiction , that Respondent Dis-
tract Council does not instruct Respondent Local about hiring and firing.
He further testified that William Krebs is not a member of the latter,
comes to local meetings only when invited , does not participate in the
Local's executive committee 's meetings , and played no role in the Seier
termination
40 Bishop was adamant that he sought out Krebs that day and that the
latter did not seek a meeting
2' Bishop was "positive" that Krebs did not dictate the discharge letter
or compose its language but averred that Krebs "may have" corrected
the spelling in the letter
22 Asked by counsel for the General Counsel to explain what he
meant, Bishop stated that such referred to the June letter to the member-
ship but admitted, "1 don't believe she ever did admit to me, but just by
her sending out the letter was admittance " Bishop added that he be-
lieved what he wrote in the discharge letter
22 Seier testified that she spoke to Bishop prior to the arrival of either
Kirby or Barry and that Bishop told her "he was going to have to fire
Continued
CARPENTERS LOCAL 925
Bishop admitted that, in either August or November, he
spoke to Seier and told her that he "had heard that she'd
still have a job if it weren't for this Union shit." He fur-
ther admitted attributing the comment to either Nick
Mascovich or Mark Schaper.24 As for the comment
itself, Bishop recalled hearing it between July 13 and 19,
was unable to recall "where I heard it, but I did hear it."
Finally, responding to a question posed by the Charging
Party's attorney, Bishop admitted informing the Califor-
nia unemployment compensation agency that Seier was
terminated for "economic reasons."
Turning to consideration of Respondent Local's de-
fense to the complaint allegations relating to the dis-
charge of Seier , 25 such appears to be an amalgam of a
claim of economic necessity and asserted malfeasance by
Seier concerning her support letter prior to the July
membership meeting. David Kirby, Respondent Local's
president , was its main witness concerning these matters.
He testified that, in early 1983, the Local was in the
throes of a financial bind which had been ongoing for
approximately 18 months (regarding revenues, there was
"more going out than coming in") and which had result-
ed from a steadily declining membership26 and a conse-
quent decrease in revenues and that, as a cost-saving
measure, the Local had been operating with only two
full-time employees, Bishop and Seier, and without an as-
sistant business representative, a position normally uti-
lized to aid the business representative in his duties. Re-
tired member Virgil Fransen corroborated Kirby in this
regard and stated that this arrangement helped the
Local's financial standing. However, an unfortunate
result, explained Kirby, was that, while Seier was able to
perform all the office work, "our field representation
was nil to none. It just was not enough. The area was
much too great." Further, regarding Seier and Bishop,
the financial outlook of Respondent Local in early 1983
was that "we did not have enough members within the
Local then to afford their salaries combined." Accord-
ingly, Kirby testified, "[W]e determined that . . . the
only way to get more money coming in is to get new
members in " And, "we finally decided. Okay , we'll get
the bull by the horns, let's go ahead and get some repre-
sentation out in the field, and how can we still cutback
our expenses " A decision, he further testified, was
reached, not by an actual vote but rather by a consensus
understanding of the executive committee members
("[w]e basically sat down and went over the situation
.. . and . came up to the same conclusion") to hire
an assistant business representative and to defray the in-
me, and that he couldn 't take the pressure any more from Mr. Krebs and
the executive board concerning this problem " She asked Bishop if the
OPEIU contract was the "only problem," and Bishop answered, "Yes,
that is the problem " Bishop did not deny this conversation
Y4 Schaper denied the attributed comment Mascovich did not appear
during the second day of the hearing for work-related reasons
25 No representatives of Respondent District Council testified during
the hearing It is obvious , however, that its defense is one of noninvolve-
ment in the discharge , a matter left solely in the hands of Respondent
Local
25 Kirby testified that membership in Respondent Local declined from
625 to 475 over that time period
1057
creased expenses of such by reducing the hours of the
office secretary.27
Kirby maintained that Respondent Local's executive
committee reached its aforementioned decision pnor to
mid-April-at which time he became aware that Seier
was seeking to be represented by the OPEIU.28 He cor-
roborated Bishop to the extent the latter presented the
matter for consideration by the committee at approxi-
mately that time, but he discounted its importance, stat-
ing that internal union elections were to be held in June
and there was not even a full committee present. In any
event, according to Kirby, the OPEIU contract matter
was discussed. Regarding this, although he denied that
anyone made a suggestion to terminate Seier or any
motion in that regard, he admitted that he considered
raising the subject of bargaining with the OPEIU over
Seier as "untimely" due to the Local's existing financial
situation. In any event, Bishop had only one copy of the
proposed OPEIU agreement, which was not enough for
any in-depth consideration. Concerning instructions for
Bishop, "we told [him] to get with the Local 29 repre-
sentative . . . At least start something. . . . And then
hopefully . . . after the elections . . . take it from there."
Acknowledging that no meetings with the OPEIU were
held, Kirby did not know why and denied ever instruct-
ing Bishop not to meet. Kirby stated that an executive
committee meeting was held in June29 and that the
OPEIU contract covering Seier was raised, but discus-
sion was "postponed simply because we did not have the
full executive board to act upon it."
Subsequent to the June elections, Respondent Local's
complete executive committee did not meet until prior to
the general membership meeting on July 5. Kirby testi-
fied that this was a special meeting regarding "who
could actually hire or fire the office help." Also appar-
ently discussed was the executive committee's prior deci-
sion to hire an assistant business representative . Several
motions were made in that regard, including either termi-
nating Seier or reducing her hours to help finance the
cost of the new assistant. Evidently, Seier's cost compari-
son figures were discussed, for Kirby further testified
that some committee members argued it made no sense
to discharge a less costly clerical and to hire an individ-
ual who would be far more costly to the Local. In fact,
Kirby believed there was "dissension within the local"
on this issue , with members questioning who would
handle their insurance problems or answer other ques-
27 Kirby defined the problem-"[w]hat can we do to increase the
membership What can we do to get the representation out in the field?
And they just about had to go hand in hand "
28 Why, if such a decision had been reached no later than April to hire
an assistant business representative and reduce Seier 's hours, a recommen-
dation in that regard had not been made until July, Kirby could only re-
spond , "That 's a good question "
29 That hiring an assistant business representative and possibly replac-
ing the female clerical was a topic under consideration by the executive
committee early in 1983 seems clear Thus, Seier testified that, after May
3 but prior to June 7, she prepared C P Exh 1, a cost comparison for the
employment by Respondent Local of a full-time male employee against
the employment of a full -time female employee She said , "Bishop had
come to me and asked me to prepare that up so that he could take it to
the executive board "
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions if Seier was discharged . S° Finally , what was agreed
on as the executive committee's recommendation to the
membership was as stated above . 91 There can be no
doubt that the general membership 's decision to table the
above recommendation to hire an assistant business rep-
resentative and reduce Seier's hours and to have the
Local enter into bargaining with the OPEIU over a con-
tract covering Seier and sign the proposed agreement if
said negotiations were not resolved within 30 days an-
gered the executive committee members . As Kirby ad-
mitted, "Nobody likes having anything crammed down
your throat."
Despite the fact that the general membership had
tabled the recommendation to merely reduce her hours,
corroborating Bishop , Kirby admitted that the executive
committee met again 2 days later (July 7) and that the
decision was reached to terminate her. Saying that nu-
merous "options" were discussed, including utilizing
Seier on a part-time basis , "we figured we'd probably
catch 'what for' at the next meeting, but there had never
been . . . any kind of a proposal of any kind coming
from the membership as to what we should do . . . and
we made a decision, and figured we'd take our lumps
from there." Therefore, Kirby asked the recording secre-
tary to seek clarification of certain provisions of the
UBCJA constitution and laws in that regard . Five days
later, according to Respondent Local's president, the ex-
ecutive committee met again and, on the motion of Nick
Mascovich , voted to make the discharge decision final.32
Asked to explain the rationale underlying the decision to
fire Seier, Kirby mentioned the "dissension" over her
continued employment , as described above , and the fi-
nancial condition of the Local at the time.33 However,
according to Kirby, what precipitated the ultimate deci-
sion on July 12, the "final straw ," was Seier's sending
the letters, seeking support for her representation effort,
to the Local's members prior to the July membership
meeting , the sending of which did not come to the notice
of the executive committee members until about July 12.
More specifically, notwithstanding that no one directly
questioned Seier about mailing the letters , Kirby testified,
"she had admitted that she got into the personnel files
30 Kirby asserted this dissension "had been going on for several
months "
31 Bishop readily accepted the motion to merely reduce Seier's hours
"because I felt that I 'd rather have her four hours a day than none at
all"
32 Kirby acknowledged that Bishop 's letter , protesting the possible dis-
charge of Seier, was received by him and was discussed Kirby admitted,
"I told him he was putting his job on the line "
Further, Kirby stated that the discharge motion was earned "100 per-
cent This was contradicted by Bishop who stated that he voted "no" on
the termination as "I never thought [Se [er] misused" the Local's files Of
course, such contradicts his earlier stated belief that what he wrote in her
discharge letter was true
39 Bishop corroborated Kirby that the financial condition of the Local
was discussed as a reason for the termination Although saying "Yeah,
the finances had a lot to do with it," Bishop acknowledged that there is
no mention in Respondent Local's minutes of the July 12 meeting of a
financial reason for Seier 's discharge Contradicting the assertion that the
Local's financial condition could have been a reason for discharging
Seier was Virgil Fransen who testified that, at the time of discharge, the
Local had a "$1,000 or so" budget surplus Respondent Local did not
dispute this or offer any records to corroborate testimony about its finan-
cial condition in July
and written those letters . . . . We figured that was more
than justifiable reasons there for going ahead and termi-
nating her."34
With regard to Seier 's asserted admission , Kirby,
during direct examination , explained that Seier did not
actually make such an admission to him ; rather , "she had
told that to Mr. Bishop, and which he related to me."
Asked what Bishop told him, Kirby stated, "That Ms.
Seier had gone into the personnel files and used them,
and she was writing letters . . . against her termination."
He also testified that "we checked into it" and "numer-
ous members had got letters . We knew then that the per-
sonnel files had been gotten into ." Kirby specifically
denied that Seier 's activities vis-a-vis the OPEIU were a
factor in the discharge decision . During cross-examina-
tion, he repeated that Bishop was the individual who re-
ported that the secretary had utilized Respondent Local's
files to write her letter , protesting her discharge. When
asked by counsel for the General Counsel how she could
have been protesting her discharge in June when the
final decision in that regard was not made until July 12,
Kirby replied cryptically, "[i]t came up in the July meet-
ing," but then agreed that reducing her hours was dis-
cussed , not termination . Further , when he was asked to
read Seier's letter (G.C. Exh. 7) and whether or not it
was true that Seier did not mention possible termination,
Kirby replied , "She must have known something when
she wrote the letter." Moreover, Kirby reiterated that his
only basis for knowing that Seier used the Local's files
was "simply that Mr. Bishop had told me. We had dis-
cussed it."35 Then, "when I investigated and found the
letters myself, that confirmed it." Finally, Kirby consid-
ered the misuse of Respondent Local's files as-"it was
simply that sending out the letters."36 After a recess in
the hearing and after he had been excused, Kirby was
permitted to resume his testimony, and he thereupon
proceeded to recant his previous testimony, stating that,
rather than Bishop,37 it was Ron Lindsay, another exec-
utive committee member, who first advised him of
Seier's entry into the Local's records. However, when
asked by me what Lindsay told him, Kirby could only
recall Lindsay saying , "That people had come to him
with letters from Ms. Seier ." Thereafter, the president
3' Under questioning by counsel for the General Counsel, Bishop also
stated that the reason for the termination was "for [Seier 's] involvement
in that letter, as far as sending it out to the membership " Elaborating, he
stated that "they came to the conclusion there was no other way she
could get addresses, other than using the Union's files," and this was the
reason for the termination-not the contents of the letter
Notwithstanding the testimony of Kirby and Bishop that the matter
was discussed , during cross-examination , Kirby admitted that no mention
of either Seier having written a letter to the Local's membership or
having utilized the Local's files for addresses for the letter appears in the
minutes of the July 12 meeting
35 Although Kirby did not believe Bishop would deliberately lie to the
executive committee , the latter denied that Seier admitted to him that she
utilized the ledger files for addressing her letters or that he ever ques-
tioned her about that Further, contradicting Kirby, Bishop testified that
he never told Kirby that Seier had obtained addresses from the Local's
personnel files
3' Kirby conceded it was possible Seier could have obtained members'
addresses from sources other than the ledger files
97 Now, Kirby could not recall what, if anything , Bishop may have
told him regarding Seier
CARPENTERS LOCAL 925
spoke to a member who had received one of Seier's let-
ters, Carlos Madrigal, who, according to Kirby, "told me
he had received the letter . . . looked at it, and . . .
wasn't even sure what it was all about, because . . . he
didn't hardly know Ms. Seier." From this, Kirby contin-
ued, "[W]e pretty well concluded .. . it had to come
from the files to get an address." Asked by me why he
reached such a conclusion when he previously acknowl-
edged that Seier might well have obtained the addresses
from other sources, Kirby maintained that the conclusion
was warranted given Madrigal's comment that he hardly
knew Seier. When asked by me for further explanation
given the facts that Seier only had to know members'
names and did not have to be personally acquainted with
them and that addresses could have been obtained from
the telephone book, Kirby insisted "that the indication I
got from Mr. Madrigal was simply that he had no con-
nection at all with Ms. Seier." Again pressed for an ex-
planation, he denied reaching a conclusion that he
wanted to reach-finding Seier had utilized the ledger
records-and said, "80 people is a lot of names and ev-
erything from memory."38 Finally, under cross- examina-
tion by counsel for the General Counsel, Kirby said that
he did have conversations with Bishop about investigat-
ing the letters; the latter denied any executive committee
direction to investigate the situation.
B. Analysis
The complaint alleges that, acting jointly, Respondent
District Council and Respondent Local discharged Seier
in violation of Section 8(a)(1) and (3) of the Act. Elabo-
rating in his postheanng brief, counsel for the General
Counsel contends that the executive committee of Re-
spondent Local directly terminated her "in order to meet
the membership's directive that it negotiate with [the
OPEIU]," and that Respondent District Council became
directly liable for its constituent Local's conduct when
William Krebs "became an activist participant . . . tell-
ing Bishop that if he did not fire Seier then the executive
[committee] of Local 925 might relieve him of his
duties." Counsel for the General Counsel further argues
that Krebs was doing nothing less than conditioning
Bishop 's contrived employment upon the commission of
an unfair labor practice and that the District Council's
authority over the Local in this regard is rooted in the
former's position as the "central governing body" over
the affairs of its member local unions. Asserting that
Seier's discharge was not unlawfully motivated and,
hence, not violative of the Act, counsel for Respondent
District Council and Respondent Local argues that the
latter did not oppose Seier 's right to be represented by
the OPEIU and, in fact, authorized negotiations with the
latter; that there existed a valid economic reason why
Respondent Local could not afford a full-time clerical
employee; that all the latter did was to terminate "a dis-
loyal employee," which act is not violative of the Act;
and that Respondent District Council had no part in the
decision to terminate Seier or in the implementation of
38 Examined on this statement by counsel for the General Counsel,
Kirby admitted that, on July 12, he was aware of only "approximately
ten" copies of the Seier letter
1059
such, other than Krebs listening to Bishop telling him
what Bishop was going to do and a secretary typing the
termination letter.
A determination of the legality of Seier's discharge is
governed by the traditional precepts of Board law in
8(a)(1) and (3) discharge cases , as modified by the
Board's decision in Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981).99 Thus, in order to
establish a prima facie violation of Section 8(a)(1) and (3)
of the Act, the General Counsel must establish (1) that
the alleged discriminatee engaged in union activities;40
(2) that the employer had knowledge of the activities; (3)
that the employer's actions were motivated by union
animus ; and (4) that the discharge had the effect of en-
couraging or discouraging membership in a labor organi-
zation . WMUR-TV, 253 NLRB 697, 703 (1980). Further,
the General Counsel has the burden of proving the
aforementioned by a preponderance of the evidence.
Gonic Mfg. Co., 141 NLRB 201, 209 (1963). Although
the aforementioned analysis was easily applied in cases in
which the employer's motivation was straightforward,
conceptual problems arose in cases in which a plurality
of motivation was involved-the presence of both a
lawful cause and an unlawful cause for the discharge In
order to resolve this ambiguity, in Wright Line, supra,
the Board established the following causation test in all
8(a)(1) and (3) cases involving employer motivation.
"First, we shall require that the General Counsel make a
prima facie showing sufficient to support the inference
that protected conduct was a `motivating factor' in the
employer's decision. Once this is established, the burden
will shift to the employer to demonstrate that the same
action would have taken place even in the absence of the
protected conduct." Id. at 1089. Two points are relevant
to the foregoing test. First, in concluding that the Gener-
al Counsel has established a prima facie violation of the
Act, the Board will not "quantitatively analyze" the
effect of the unlawful motive. The existence of such is
sufficient to make a discharge a violation of the Act. Id.
at 1089 fn. 14. Second, while apparently warranting the
identical analytical approach, pretextual discharge cases
should be viewed as those in which the "defense of busi-
ness justification is wholly without merit." Id. at 1084 fn.
5.
99 The Board's Wright Line rationale was specifically upheld by the
Supreme Court in NLRB v Transportation Management Corp, 462 U S
393 (1983)
40 Counsel for Respondent argues that, pursuant to the Board 's deci-
sion in Meyers Industries, 268 NLRB 493 ( 1984), the complaint allega-
tions, regarding Seier's discharge, must be dismissed inasmuch as her con-
duct was not "concerted" that is, Seier "was a sole employee who appar-
ently was seeking to have union representation " In this regard , counsel
notes that, in the view of the Board , Sec 7 of the Act requires that indi-
viduals must be involved in some sort of "group" activity to fall within
the protection of that section of the Act Contrary to counsel, the Su-
preme Court has recognized that Sec 7 "defines both joining and assist-
ing labor organizations-activities in which a single employee can engage-
as concerted activities" (emphasis added ) and that "Section 7 lists these
and other activities initially and concludes the list with the phrase `other
concerted activities,' thereby indicating that the enumerated activities are
deemed to be 'concerted "' NLRB Y City Disposal Systems, 465 U S 822
fn 8 (1984) Accordingly, by definition, Seier's activities were concerted
within the meaning of Sec 7 of the Act, without regard to the fact that
she may have acted alone
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With regard to whether the General Counsel has es-
tablished a prima facie violation of Section 8(a)(1) and
(3) of the Act, I note, at the outset, that other than with
regard to motivation , there is no dispute about much of
the record evidence. However, when the record was
contradictory, I have generally credited the testimony of
James Bishop whose demeanor impressed me as being
that of an honest and forthright witness. In particular, it
was obvious to me that testifying was particularly diffi-
cult for him as a great deal of what he related consisted
of admissions clearly adverse to the interests of Respond-
ent Local of which he is both an elected official and sal-
aried employee.4 t Therefore, whenever he conflicted
with Charlene Seier or David Kirby, I gave credence to
the testimony of Bishop . Seier did not impress me as a
credible witness , leaving me with the belief she basically
was attempting to buttress her own position . I credited
her testimony only when corroborated by Bishop or the
record as a whole and when undenied by the latter.
Kirby seemed to be a rather disingenuous witness, par-
ticularly when testifying about what was allegedly said
to him-and by whom-concerning Seier's purported ad-
mission about utilizing Respondent Local's ledger files to
obtain members' names and addresses for her letters, re-
questing support for her representational efforts at the
July general membership meeting. In accord with these
credibility resolutions, there can be no doubt about the
existence of substantial record evidence establishing that
Respondent Local 's executive committee 's desire to
avoid bargaining with the OPEIU over the office secre-
tarial position and to squelch the movement among the
membership, evidenced by the twice-than-normal attend-
ance at the July meeting, supporting Seier's request for
such bargaining were motives underlying her discharge.
Even prior to July, members of the committee seemingly
were so motivated. Thus, Kirby believed that Bishop's
submission of the proposed OPEIU collective-bargaining
agreement covering Seier to the executive committee at
its May meeting was "virtually" due to Respondent
Local's lingering financial difficulties and the proposed
solution to these, which included reducing the secre-
tary's hours of work. That certain members of the execu-
tive committee42 reacted with outrage, including speak-
41 I did not credit Bishop on two aspects of his testimony These, how-
ever , in no way disturb my belief about his overall credibility , for not
believing a portion does not require rejection of the whole of a witness'
testimony Flatiron Materials Co., 250 NLRB 554, 558 fn 7 (1980), Carob-
na Canners, 213 NLRB 37 (1974 ), "Nothing is more common than to be-
lieve some and not all of what a witness says ." Edwards Transportation
Co, 187 NLRB 3, 4 (1970), enfd 437 F 2d 502 (5th Cir 1971)
42 As stated earlier, the Supreme Court has made it clear that when a
labor organization assumes the role of employer, the Act applies to its
operations just as it would to any other employer Office Employees,
supra "The Board regularly finds elected or appointed officials of an or-
ganization to be agents of that organization While the holding of elective
office does not mandate a finding of agency per se, such status is persua-
sive and substantial evidence which will be decisive absent compelling
contrary evidence " Electrical Workers IBE W Local 453 (National Electri-
cal Contractors), 258 NLRB 1427, 1428 (1981) In this regard , the Board
also "regularly" finds members of a labor organization 's executive board
and its business representatives to be its agents within the meaning of
Sec 2(13) of the Act Carpenters Local 1780, 244 NLRB 277, 279 (1979),
Painters Local 1555 (Maska Constructors), 241 NLRB 741, 747 (1979)
Herein , the record establishes that Respondent Local's executive commit-
tee is comprised of all its elected officials It appears to be the primary
ing of the secretary's possible termination, is clear. Thus,
notwithstanding that Bishop could not recall the com-
ments , he did not deny Seier's testimony that the morn-
ing after the executive committee meeting , in response to
her question, he stated that Trustee Nick Mascovich "hit
the roof" over her possible representation saying that
"he wasn't going to have another damm union in the
office" and "this has happened once again. We got rid of
that girl. We'll just do the same to this one."43 Further,
2 weeks after the meeting, Bishop wrote to the UBCJA
general president , stating that the executive board "has
suggested to me that since she wants to join the
[OPEIU], we should terminate her." He named the vice
president, Don Inwalle, as one espousing such a view.
Although Seier was not terminated and although the
committee did agree to commence bargaining with the
OPEIU, the record suggests that the latter was merely
intended to placate Seier and her supporter, Bishop, and
was an utterly meaningless gesture . Thus, although told
to schedule meetings with OPEIU representatives,
Bishop was twice told to cancel negotiating sessions,
with no explanation other than that the executive com-
mittee instructed them to do so.
Although it is probably true that, as of the July mem-
bership meeting, a majority of the executive committee
members were not prepared to terminate Scier based on
her demand for representation by the OPEIU,44 what
occurred there, I believe, coalesced the views of the
committee members and precipitated the decision to dis-
charge the secretary. As stated, those members in attend-
ance rejected the proposal to reduce Seier's hours and
voted to direct the executive committee not only to ne-
gotiate with the OPEIU over a collective-bargaining
agreement, covering Seier, but also to execute the pro-
posed contract if the negotiations were not concluded
within 30 days. The record warrants the inference that,
based on the directive, the executive committee members
reacted unlawfully-agreeing that the only way to avoid
having to bargain with the OPEIU over a position,
which they did not believe was financially feasible to
maintain as a full -time position anyway, was to discharge
Seier. Thus, Kirby admitted the executive committee's
governing body of the Local and is responsible for the operation of the
Local between membership meetings There is no compelling evidence
against finding the executive committee members to be Respondent
Local's agents and I find them , therefore , to be its agents, thereby bind-
ing Respondent Local by their conduct Electrical Workers IBEW Local
453, supra Further , the record establishes that Bishop exercises authority
as a supervisor within the meaning of Sec 2(l1) of the Act Thus, he
must approve Seier 's absences from work and her vacations, directs the
work of the assistant business representative, and, to some extent, directs
the work of Seier
49 Contrary to counsel for the General Counsel, I do not find this vio-
lative of Sec 8(a)(i) of the Act Thus, whatever was said by Bishop was
in response to Seier's inquiry Further, the two were obviously friends
and he supported her representational efforts Thus, to find that Bishop
was somehow threatening Seier strains credulity I, therefore , shall rec-
ommend dismissal of par 5 (a)(i) of the complaint
44 I note that , at the July executive committee meeting, which preced-
ed the general membership meeting , while motions were made to termi-
nate Seier, the previously decided-on economic course of action, to
reduce her hours, was agreed on as the recommendation to the member-
ship
CARPENTERS LOCAL 925 1061
anger45 at what the membership mandated-"nobody
likes having anything crammed down your throat." Fur-
ther, just 2 days after the membership meeting and with
apparently nothing more, on which to base its decision,
that what was known at its prior meeting on July 5, the
executive committee decided, tentatively at least, to ter-
minate Seier, a decision which would anger the member-
ship. Five days later, now aware that, by letter, Seier
had solicited membership support at the general meeting
and obviously gained such, the executive committee de-
cided to make its decision final. That Seier's effort to
gain representation from the OPEIU was, indeed, a
factor is clear from Bishop' s admission that either Nick
Mascovich or Mark Schaper, during the time period July
13 to 19, told him that Seier would "still have her job if
it weren't for this Union shit."48 Given the reaction of
the executive committee to what the Local's membership
directed on July 5, I view that remark as the representa-
tive view of the entire executive committee, with the ex-
ception of James Bishop. Support for this view is seen
from the near unanimity of the termination vote and in
the uncontroverted testimony of Seier that, on the day of
her ultimate termination (July 19), Bishop remarked to
her he could no longer withstand the pressure caused by
"this problem"-the OPEIU contract. In these circum-
stances, I conclude that the General Counsel has present-
ed sufficient evidence to establish a prima facie showing
that Seier's effort in obtaining contractual representation
by the OPEIU was the motivating factor underlying her
discharge by Respondent Local.
With matters in this posture, the burden shifted to Re-
spondent Local to establish that it would have terminat-
ed Seier notwithstanding her efforts at obtaining repre-
sentation by the OPEIU. Based on the record as a
whole, I believe Respondent Local failed to meet its
burden in this regard. Initially, it is noted that the indi-
vidual who established the main tenets of Respondent
Local's defense to the 8(a)(1) and (3) allegations herein,
David Kirby, was found by me not to have been a credi-
ble witness. Accordingly, I place no reliance on his as-
sertions that financial problems or "dissension" among
the Local's members were considerations underlying the
decision to discharge Seier . Regarding the former, al-
though Bishop also mentioned that such was discussed
on July 12 by the executive committee, he admitted that
45 1 agree with counsel for the General Counsel that neither Kirby nor
any other executive committee member contemplated the membership re-
jecting its recommendation or directing it to bargain with the OPEIU
Further, they could not have anticipated the large attendance , undoubt-
edly influenced by Seier's letter
46 I credit Bishop that he heard such a comment from an executive
committee member, either Mascovich or Schaper
Par 5(a)(u) of the complaint alleges that when Bishop reiterated this
comment to Seier, he acted in violation of Sec 8(axl) of the Act Con-
trary to the General Counsel , I do not view the statement as an implied
promise that she could keep her job if she stopped her union activities
Rather, I view the comment as nothing more than a statement of fact,
illustrating an unlawfully motivated discharge In this regard, contrary to
the complaint allegation , the remark was repeated to Seier by Bishop in
August or November-subsequent to the discharge Further, given the
relationship between the two, I do not believe that repetition of what
Bishop heard coerced or restrained Seier in violation of Sec 8(a)(1) of
the Act Therefore, I shall recommend dismissal of the complaint allega-
tion
the minutes of that meeting contain no reference to such
a discussion, nor do I believe the financial condition of
Respondent Local was ever raised as a discharge reason.
Concerning the dissension within the Local, no other
witness corroborated the existence of such a problem,
and I do not believe such was actually a concern. Turn-
ing to the matter of Seier's asserted misuse of Respond-
ent Local's records, the fact that Seier even mailed her
letters, soliciting support from members for her repre-
sentative efforts, apparently did not come to the atten-
tion of Kirby, Bishop, or the other executive committee
members until either shortly before or on July 12. This is
significant, for both Bishop and Kirby admitted that a
tentative decision to terminate Seier was made 5 days
earlier, on July 7. However, neither Local official was
able to enumerate the reasons underlying the decision
reached on that day, leaving the justifiable inference
that , coming just 2 days after the July general meeting
and faced with a directive "crammed down" its throat,
what motivated the executive committee was its anger at
Seier for having sought representation by the OPEIU
and its desire to moot the directive of the membership to
do what , I believe , it wished to avoid-negotiate and
execute a contract covering Seier's job.47 Further, it is
clear that what rendered this unlawfully motivated deci-
sion tentative had nothing to do with why the executive
committee so acted. Rather, I believe, the lack of finality
resulted from the committee's realization that what it
proposed to do was illegal.48 This conclusion is warrant-
ed as both the UBCJA general president and Respondent
Local's attorney advised that firing the secretary for her
union activities would violate the Act. An excuse, a pre-
text, was therefore necessary; I further believe such was
presented to the executive committee 5 days later when
it gained knowledge of Seier's letter. The conclusion that
such was utilized as an excuse and was not the precipi-
tating cause for the discharge is fully supported by the
record. Thus, the "significance" of whatever upset the
executive committee is diminished by the lack of any
mention, either of Seier's letter or the conviction that she
utilized the ledger records, in the minutes of the July 12
meeting . Further, there exists no record evidence that
Seier admitted that she perused Respondent Local's
ledger files in order to obtain the names and addresses of
its members to Bishop or anyone else. Moreover, given
the failure of any Local official to question Seier about
the source of the addresses for her letters and Kirby's
concession it was "a possibility" for Seier to have ob-
tained addresses from sources other than the Local's
ledger files and, given my impression that Kirby's testi-
47 Counsel for Respondent Local contends that , in fact, the executive
committee did that day instruct Bishop to meet and bargain with the
OPEIU as the membership directed Therefore, he contends, there could
be no motive on the executive committee 's part to avoid bargaining or to
seek revenge against Seier for demanding such Contrary to counsel,
there is no record evidence that, once the discharge of Seier was accom-
plished , Respondent Local made any effort to bargain with the OPEIU
Indeed , Bishop testified that he would not bargain over a unit with no
employees Thus, I believe, the executive committee was paying no more
than "lip-service" to the membership 's bargaining directive, having no in-
tention of carrying it out
48 I do not believe that procedural problems delayed a final discharge
decision on July 7 and do not credit Bishop ,about this
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony was not at all candid, particularly on the so-called
admission of Seier and who informed him of what facts,
the contention that the mere act of writing the letters
was believed by the executive committee to constitute an
admission by Seier of malfeasance , seems ludicrous and
not worthy of belief. Finally, rendering Seier's conduct a
pretext to conceal Respondent Local's true motivation
herein is the comment attributed to executive committee
members Mascovich or Schaper, by Bishop, that Seier
would not have been terminated but for "this Union
shit." Lastly, with regard to Respondent Local's defenses
to the allegation that it unlawfully discharged Seier, its
attorney, in his posthearing brief, asserts that the Local's
"leadership" was merely ridding itself of "a disloyal em-
ployee" who "was attempting to invoke her support
within the membership . . . in order to `protect' her own
position." My problem with this contention stems from
the fact that neither Kirby, nor Bishop, nor any other
witness ever testified that Seier's loyalty to Respondent
Local was a concern vis-a-vis her termination. Further,
the discharge letter, given to her by Bishop, is not con-
cerned with any lack of loyalty to the Local exhibited by
Seier. Rather, consistent with the testimony of Kirby, the
letter only mentions her "admitted" misuse of the Local's
files. No witness asserted that the mere fact of the send-
ing of the letter, even had Seier clearly used sources for
addresses other than the Local's files, would have result-
ed in her discharge for disloyalty. In short, counsel's
"defense" has no basis in the record and is found to be
without merit . 49 Based on the foregoing , I do not be-
lieve that Respondent Local would have terminated
Seier notwithstanding her demand for representation and
the membership's directive that the executive committee
bargain with the OPEIU over her position. Accordingly,
I find that Seier was discharged in violation of Section
8(aXl) and (3) of the Act.
Although finding that Respondent Local acted unlaw-
fully, contrary to the allegations of the General Counsel,
I do not believe that Respondent District Council played
any role in the termination of Seier sufficient enough to
arise to a level necessary to be likewise violative of Sec-
tion 8(a)(1) and (3) of the Act. Thus, analysis of this alle-
gation must start with the uncontroverted fact that nei-
ther William Krebs who, as the executive secretary of
the District Council, admittedly acted as its agent within
the meaning of Section 2(13) of the Act, nor any official
of the Respondent exhibited any hostility to the prospect
of Seier being represented for purposes of collective bar-
gaining by the OPEIU. Indeed Seier's own testimony re-
veals that Krebs advised her that bargaining was the re-
sponsibility of Respondent Local and that he suggested
possible alternate contract language to that of her initial
proposal. Turning to the events of July 19 which, evi-
dently, form the crux of the General Counsel 's allega-
tions against Respondent District Council, Bishop's testi-
49 Assuming arguendo that Seier 's lack of loyalty was the underlying
motivation for her discharge by Respondent Local, it is apparent that her
disloyalty resulted from her seeking union representation Thus, executive
committee members demanded her termination in May because she
sought representation from the OPEIU and the entire committee evident-
ly ratified the comments of Mascovich or Schaper in July that "this
Union shit" caused her termination
mony was uncontroverted, and is credited, that he initi-
ated his meeting that day with Krebs; that he did so,
seeking the advice of the District Council official regard-
ing his predicament-his desire not to terminate Seier for
having engaged in her union representation activities,
conduct which he supported, balanced against (given
Kirby's warning that his job as business representative
was "on the line,")50 the consequences of refusing to do
so; and that Krebs merely advised that the executive
committee might indeed, act on the warning. The com-
ment was not offered in the context of a superior speak-
ing to a subordinate , as in the context of the warning
from Kirby to Bishop;51 there is no evidence to indicate
that such was offered in a coercive atmosphere or that
Krebs acted in an "aggressive" manner in saying what he
did;52 and, most significantly, there exists nothing in the
record suggesting that Bishop would not have terminat-
ed Seier on July 19 but for whatever was said to him by
Krebs. Finally, I do not credit Seier's comment, attrib-
uted to Bishop, that Respondent District Council was
one source of the pressure to resolve the Seier contract
problem. Even if true, it is too ambiguous to change the
result herein. In these circumstances, I find no basis for
concluding that the District Council shares any responsi-
bility for the unlawful act of Respondent Local in termi-
nating Seier and shall recommend dismissal of the 8(a)(1)
and (3) complaint allegations against it.
CONCLUSIONS OF LAW
1. Respondent Local is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.5a
2. The OPEIU is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Charlene Seier on July 19 because
she sought representation by the OPEIU, Respondent
Local engaged in conduct violative of Section 8(a)(1)
and (3) of the Act.
4. By threatening to terminate James Bishop unless he
discharged Seier for having engaged in union activities,
so Although not alleged as an unfair labor practice , Kirby's admission,
combined with my belief that Seier was terminated for her activities in
support of the OPEIU, must be found to be violative of Sec 8(aXl) of
the Act Thus, it is obvious that Kirby was so speaking to Bishop in the
former's capacity as the president of the Local and that Bishop was being
so warned in his capacity of business representative , a salaried official
Such a threat of loss of employment for failing to terminate another em-
ployee (Serer) for engaging in union activities constitutes a violation of
Sec 8(aXl) of the Act Parker-Robb Chevrolet, 262 NLRB 402 (1982)
b' The General Counsel asserts that Krebs' role must be viewed in
light of the "governing" power held by the District Council over the
Local However, the uncontroverted testimony of Kirby on this point
was that Krebs rarely attends Respondent Local's membership meetings,
never attends executive committee meetings, had no input in the decision
to terminate Seier , and did not instruct Kirby to do so. Thus, Krebs' or
any other District Council official's authority to interject himself or the
District Council's affairs is , at least, questionable and certainly not suffi-
cient enough to establish that the words of Krebs to Bishop were mean-
ingful in the context of Sec 8(ax1) and (3) of the Act
52 Unlike the explicit warning from Kirby to Bishop , I do not view the
words of Krebs to be violative of Sec 8(axl) of the Act and shall recom-
mend dismissal of that complaint allegation
bS In view of my findings and conclusions , I need not decide whether
jurisdiction should be asserted over Respondent District Council
CARPENTERS LOCAL 925 1063
Respondent Local engaged in conduct violative of Sec-
tion 8(a)(1) of the Act.
5. Other than concluded above, Respondent Local en-
gaged in no other unfair labor practices.
6. Respondent District Council engaged in no unfair
labor practices herein.
7. The above-enumerated unfair labor practices are
unfair labor practices affecting commerce within the
meaning of the Act.
THE REMEDY
Having found and concluded that Respondent Local
has engaged in unfair labor practices violative of Section
8(a)(1) and (3) of the Act, I shall recommend that it be
ordered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the purposes and
policies of the Act, including the posting of a notice, ex-
plicating its obligations herein. With regard to the dis-
charge of Charlene Seier on July 19, 1983, the General
Counsel seeks a limited remedy for such conduct. In this
regard, the record establishes that the membership of Re-
spondent Local, about November 1, 1983, abolished the
position of office secretary. Further, there is no allega-
tion that such action was unlawfully motivated. 54 Ac-
cordingly, I shall order Respondent Local to make Seier
whole for any loss of wages she may have suffered as a
result of her unlawful discharge, with interest, dunng the
time period July 19 through November 1, 1983. Backpay
shall be calculated in the manner set forth in F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest borne in
accord with Florida Steel Corp., 231 NLRB 651 (1977),
and Isis Plumbing Co., 138 NLRB 716 (1962). Further,
Respondent Local shall be ordered to offer reinstatement
to Seier to her former position if the clerical position is
reinstituted or to a substantially equivalent position if
such is instituted to handle Respondent Local's office af-
fairs. Finally, Respondent Local shall be ordered to
remove from its records all references to the unlawful
termination of Seier and report, in writing, to Seier that
such has been done.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edas
ORDER
The Respondent, United Brotherhood of Carpenters
and Joiners of America, Carpenters Local 925, Salinas,
California, its officers, agents, and representatives, shall
64 Regarding the contentions missed by Seier 's attorney in postheanng
brief, absent evidence that such was discnnunatonly motivated-and
there exists no evidence in that regard , it cannot be established , nor will I
find , that, no matter how economically short -sighted , the membership's
actions in November were unlawful.
66 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1. Cease and desist from
(a) Discharging employees because they engage in ac-
tivities in support of and seek representation by a labor
organization.
(b) Threatening to terminate its supervisory employees
for refusing to terminate employees in violation of the
Act.
(c) In any like or related manner threatening , restrain-
ing, or coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Charlene Seier whole, with interest, for any
earnings she may have lost as a result of her unlawful
discharge in the manner set forth in the remedy section
of the decision.
(b) Offer Seier reinstatement to her former position if
such is reinstated by Respondent Union or to a substan-
tially equivalent office position if such is instituted.
(c) Preserve and, on request, make available to the
Board or its agents , for examination and copying, all
records pertaining to its backpay liability herein.
(d) Remove from its files any reference to the unlaw-
ful termination of Seier and notify her, in writing, that
such has been done and that it will not use the discharge
against her in any way.
(e) Post at its business office , union hall, and meeting
places copies of the attached notice marked "Appen-
dix."56 Copies of this notice, on forms provided by the
Regional Director of Region 32, after being executed by
its duly designated representative, shall be posted imme-
diately upon receipt thereof and be maintained for a
period of 60 consecutive days thereafter in conspicuous
places , including all places where notices to members are
customarily posted. Reasonable steps shall be taken by it
to ensure that the notices are not altered, defaced, or
covered by other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that , concerning Respondent
District Council, all the allegations of the complaint be
dismissed and, concerning Respondent Local, the com-
plaint be dismissed insofar as it alleges that Respondent
Local violated Section 8(a)(1) of the Act by telling an
employee that a former employee had been terminated
for engaging in union activities and she would suffer the
same fate and by impliedly promising an employee that
she could keep her employment if she ceased her union
activities.
se If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 "