Groves-Granite

National Labor Relations Board - Board Decisions

Apr 19, 1977

229 N.L.R.B. 56 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Groves-Granite, a Joint Venture and Leroy C.
Baublitz
Carpenters Local No. 2205, United Brotherhood of
Carpenters & Joiners of America and Leroy C.
Baublitz. Cases 19-CA-8454 and 19-CB-2640
April 19, 1977
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On December 15, 1976, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, Respondent Union and
Respondent Employer filed exceptions and support-
ing briefs.
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 his 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, Groves-Granite,
a Joint Venture, Bridgeport, Washington, its officers,
agents, successors, and assigns, and the Respondent,
Carpenters Local No. 2205, United Brotherhood of
Carpenters & Joiners of America, Wenatchee,
Washington, its officers, agents, and representatives,
shall take the action set forth in the said recommend-
ed Order.
I Respondent Union and Respondent Employer have 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 his findings.
DECISION
STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
matter was heard before me in Wenatchee, Washington,
from September 28 through October 1, 1976. The charges
in both cases were filed March 26 and amended June 28,
1976, by Leroy C. Baublitz, in his individual capacity. The
229 NLRB No. 15
complaint issued May 19 was amended August 19, 1976,
and during the hearing, and alleges certain violations of the
National Labor Relations Act by Groves-Granite, a Joint
Venture, and by Carpenters Local No. 2205, United
Brotherhood of Carpenters & Joiners of America (herein
called Local 2205).
The parties were permitted during the hearing to
introduce relevant evidence, examine and cross-examine
witnesses, and argue orally. Briefs were filed for the
General Counsel, for Groves-Granite, and for Local 2205.
I. ISSUES
The complaint alleges that Local 2205: (1) violated
Section 8(bX)(XA) of the Act by failing to represent
Baublitz in his efforts to pursue a grievance after being
discharged by Chaussee Corporation on October 30, 1975,
and (2) violated Section 8(b)(2) and (IXA) by attempting to
cause Groves-Granite to discharge Steve Stevenson on
January 8, 1976, and Baublitz on March 8, 1976; and by
causing the discharges of Stevenson on January 15, 1976,
and Baublitz on March 12, 1976.
The complaint alleges that Groves-Granite: (1) violated
Section 8(aX3) and (1) by discharging Stevenson on
January 15, 1976, and Baublitz on March 12, 1976, at the
behest of Local 2205, and (2) violated Section 8(a)(1) on or
about March 29, 1976, by interrogating an employee
concerning his testimony should the matters herein be
litigated, and by threatening that employee with discharge
or other reprisal should he testify adversely to Groves-
Granite.
The separate answers of Local 2205 and Groves-Granite
deny any wrongdoing.
II. JURISDICTION
Groves-Granite is a joint venture headquartered in
Bridgeport, Washington, where it was engaged at relevant
times in the construction of the Chief Joseph Dam.
Chaussee is a corporation headquartered in Redmond,
Washington, engaged in the construction of residences and
multiple dwellings. Each enterprise annually takes delivery
in Washington, directly from outside the State, of goods
and materials valued in excess of $50,000. Each is an
employer engaged in and affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
III LABOR ORGANIZATION
Local 2205 is a labor organization within the meaning of
Section 2(5) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
Background: This case involves two unrelated projects-
the construction of an apartment complex in Brewster,
Washington, by Chaussee, and the construction of Chief
Joseph Dam at Bridgeport, Washington, by Groves-Gran-
ite. Both projects were within the territorial jurisdiction of
Local 2205. The carpenters on both were represented by
Local 2205, and covered by labor agreements entered into
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GROVES-GRANITE
by umbrella organizations on behalf of their constituents,
which included the two employers on the one hand and
Local 2205 on the other.
Chaussee employed between 6 and 10 carpenters on the
apartment project. Its job superintendent was Robert
Omtvedt. He was accountable to Torkel Nilson, system-
wide project manager, who visited the project from time to
time.
Groves-Granite regularly employed 60 to 70 carpenters
on the dam project. They were divided among several
crews. Each crew had a so-called crew steward, designated
by Local 2205, over whom was a chief or "bull" steward.
The bull steward at relevant times was James Corn. Among
Groves-Granite's management personnel on the project
were Bev Trautman, project manager; Clay Vestal, who
was office manager and had primary responsibility for
labor relations; Thomas (Lucky) Wells, carpenter superin-
tendent; Tate Stack, superintendent of the carpentry shop;
and Wallace Henkel and Floyd Krutsinger, carpenter
foremen.
Local 2205 is headquartered in Wenatchee, Washington.
It is one of seven locals comprising the Columbia River
Valley District Council of Carpenters (herein called
District Council). Cecil Peaslee is the business representa-
tive of Local 2205, and the president of the District
Council. Wayne Cubbage is the secretary-treasurer of the
District Council. The District Council is an affiliate of the
Washington State Council of Carpenters (herein called
State Council), which in turn is an affiliate of District No.
7, United Brotherhood of Carpenters and Joiners of
America (herein called District No. 7). District No. 7
embraces six northwestern States. The executive secretary
of the State Council is Guy Adams, and the executive
officer of District No. 7 is Hal Morton, one of whose
assistants is Harlan Brown.
The Baublitz/Chaussee Situation: Baublitz was a carpen-
ter for Chaussee on the apartment project from October 3
to 29, 1975, when the events in question began to unfurl.
The great bulk of Baublitz' time was spent on the
ground, cutting materials to length and handing them to
other carpenters on scaffolding. He estimated that he may
have worked 3 days on scaffold between October 3 and 29.
Baublitz nevertheless instructed his wife, before going to
work October 29, to call the Washington State Department
of Labor and Industries that morning to report that the
scaffolding was substandard. He hoped that an inspector
would come to the project that day while he was there.
Baublitz reported for work at 7:30 a.m., October 29. It
was raining, an unusual occurrence in this part of
Washington; and, about 8 a.m., he asked Job Superinten-
dent Omtvedt if there was inside work. The carpenters had
worked inside on previous rainy days, doing finish work.
Omtvedt said there was none. Baublitz replied that, in that
event, he was going home until the rain stopped. Baublitz
This is a selective adoption of Baublitz and Nilson's testimony.
Omtvedt did not testify. Baublitz' further testimony that Omtvedt ordered
him "back on the scaffold" is discredited in part because of Nilson's
refutation and in part because Baublitz spent so little time on the scaffolds
that such an order would have been unlikely-at least in the literal sense.
Nilson, on the other hand, is discredited that the subject of the scaffolds was
not raised by Baublitz in some form or other. that subject having been
prominent in Baublitz' mind that day.
also mentioned the unsafe condition of the scaffolding,
although that had little effect on his own work situation.
Omtvedt directed that he "get back to work," warning that
he would be considered to have quit should he leave.
Omtvedt's words were echoed by Project Manager Nilson,
who was on the site that day and overheard the conversa-
tion. Baublitz countered that "my union tells me I don't
have to work when it's raining," and left. He said he would
be back the next day.'
Baublitz was the only workman to leave the project.
While he testified that he would have left, regardless of the
rain, because of the scaffolding, it is concluded that the
rain in fact was the reason. Not only did he rarely work on
scaffold, but he could not "really recall" if he did on
October 29. He did remember "it being muddy" on the
ground, however. Further indicative that the rain was the
reason was Baublitz' stated hope to be present should an
inspector come to check the scaffolding.
After leaving the job, Baublitz telephoned Business
Representative Peaslee of Local 2205, relating what had
happened and mentioning the scaffold peril for good
measure.2 Peaslee said that a man could not be terminated
for refusing to work "on account of rain," 3 and suggested
that Baublitz report for work the next day. Peaslee said he
would be at the site the next morning himself to look into
the matter.
Baublitz reported for work as usual on October 30. He
worked without incident until about 8:30, when Omtvedt
told him that he did not "belong" there; that he had quit.
Baublitz protested that he had not quit, to which Omtvedt
asserted: "Well, you're trespassing as far as I'm concerned.
You have to get off this job." Baublitz repeated that he had
not quit, adding that, since he had not received a final
paycheck, he had not been terminated either. With that,
Omtvedt telephoned Nilson, who advised him to call the
police if Baublitz refused to leave. Baublitz remained
adamant, and a Brewster policeman was called. Baublitz
left only after being placed under arrest.
Once removed from the site, Baublitz was released from
custody without being charged. He immediately drove to
the office of the Department of Labor and Industries in
Okanogan, Washington, where he filed a complaint,
asserting:
Refused to work in the rain on scaffolding which also is
unsafe. No handrails, wet & slippery. Decking not wide
enough. By refusing to work on scaffolding in rain,
Supt. told me that he would say I quit so I could not
draw unemployment payments. I told him I was not
quitting and that I would come back to work when it
was fit.
Peaslee arrived at the site in the late morning of October
30. He spoke with Omtvedt, and the two of them spoke
with Nilson by telephone. Peaslee asked one or the other,
2 Baublitz is credited that he mentioned the scaffolding, Peaslee's denial
notwithstanding. Although concluding that Baublitz left the job only
because of the rain, I am persuaded that he saw the condition of the
scaffolding as an opportunity to augment his position, thus mentioning it at
every turn. Baublitz came across as a fully credentialed clubhouse lawyer.
3 Peaslee testified that the carpenters in the jurisdiction of Local 2205 are
"not used to the moisture," and "sometimes" go home when it rains.
57
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or both, that Baublitz be reinstated, and was denied.
Omtvedt told of Baublitz' encounter with the police that
morning, and said that Baublitz spent a lot of time
"wandering around, running around with a coffee cup in
his hand"; and Nilson reported that Baublitz "had built
fires in buckets" to keep warm on cold days, and "several
things like that." Peaslee remarked, after hearing all this,
that Local 2205 had "had a lot of trouble" with Baublitz4
and that it "just don't look like he's a normal person."
Nilson agreed that Baublitz could not be classified "as a
normal, everyday type of joe-blow we have on our work
force."
Persuaded by his conversations with Omtvedt and
Nilson that "there was more to it" than simply Baublitz'
refusal to work in the rain, Peaslee left the site with no
further intention of seeking his reinstatement. Peaslee
proffered some vague testimony that the "more to it" he
had learned about was "probably his [Baublitz'] work
record, inability to not [sic I stay steady on the job." Peaslee
observed: "It's pretty hard to-when a man does not
perform his work-to back him up."
Departing from the site, Peaslee spoke with Baublitz,
who had returned from Okanogan and was in his car,
parked across the street. Baublitz said he had just filed a
complaint against Chaussee, and called Peaslee's attention
to deficiencies in the scaffolding. Peaslee said he would talk
with Al Johnson, Local 2205's financial secretary, about
the situation. Peaslee did not go into the various aspects of
Baublitz' behavior that Omtvedt and Nilson had raised,
nor did he disclose his loss of interest in continuing to press
for Baublitz' rehire. 5
Peaslee intimated in his testimony that Baublitz' state
complaint against Chaussee was an added factor in that
loss of interest:
Well, when he told me that he was going to go to the
Labor and Industries and turn this in, you've got a hard
problem on your hands right there, that he had already
turned in against the Company, and the Company is
going to be very evasive, weren't they, after he's turned
them in ... ?
A state inspector, Ed Squire, visited the project on
October 31, finding that the scaffolding violated safety
standards in several particulars. In keeping with the
"normal practice" where there is union representation,
Squire called Peaslee to report his findings. During their
conversation, Peaslee said that Baublitz had been a
"troublemaker" in the past and "could create his own
problems" on a job.
In the succeeding several days and weeks, Baublitz
discussed the Chaussee situation with Peaslee or Financial
Secretary Johnson a number of times, both by telephone
and in person. Baublitz was insistent that the discharge had
4 The "trouble" Peaslee had in mind is not clearly identified on the
record. Baublitz, in a letter to Guy Adams of the State Council, mentioned
later in the body of this Decision, traced his difficulties with Peaslee to the
summer of 1972, when he complained about being laid off ahead of a
nonunion carpenter.
I Baublitz is credited, despite Peaslee's denial that he mentioned the
scaffolding. It would have been astonishing if he had not, having just come
from filing a complaint about it. Baublitz is not credited, however, that
Peaslee adverted to a refusal by Baublitz to work on scaffold on October 29.
been improper, and inquired about the procedure for
grieving. Peaslee invariably responded, whenever Baublitz
spoke to him: "We'll see what we can do."6 Baublitz also
complained of having been underpaid by Chaussee.
Johnson gave him a claim form for that, which Baublitz
filled out and returned.
On or about November 17, Baublitz received a copy of
the State's formal report on Chaussee's scaffold violations.
He promptly called Peaslee, citing it as "proof" that he had
a valid grievance against the Company. Peaslee replied, as
was his wont: "We'll see what we can do."
On January 6, 1976, Peaslee still having taken no action,
Baublitz telephoned Guy Adams, executive secretary of the
State Council. Adams asked that he put his story in letter
form, which Baublitz did. The letter, after reciting Baublitz'
version of the events at Chaussee, stated:
I don't know exactly why Cecil Peaslee has given me
such a hard time, only that in the summer of 1972 I
worked for Crane Service on a bridge in Mazama,
Wash. There was three Carpenters working, myself and
two others. We were lay off for exception of Homer
Grace, who stay to help stress the beams. The lay off
was only for a few days. During the time I was off, the
other Carpenter ... worked, and at this time he was
not a union member. I complained to Cecil Peaslee
about [it] and since that time I have had a hard time
getting work from the hall.
A few days later, Peaslee told Baublitz that he was "very
much concerned" about the letter, amplifying that the
assertions in it "better be true" for Baublitz' sake, because
Peaslee might take him before Local 2205's executive
board-"I can press charges, too." Baublitz responded:
"Good, that's where I would like to go anyhow."
An unemployment compensation hearing in connection
with the Chaussee discharge was scheduled for February
18, 1976. Meanwhile, as is more fully described later,
Baublitz was referred to the Groves-Granite dam project
on January 29. On or about February 16, Peaslee spoke
with Baublitz at the dam site, verifying the hearing's date
and time and saying he would try to appear for Baublitz.
Baublitz told Peaslee that he was counting on him being
there-"I need you to back me." Peaslee did not show up
at the hearing, nor did he give Baublitz or anyone else
advance notice that he would not attend. Later, asked by
Wayne Cubbage, the secretary-treasurer of the District
Council, why he had not gone, Peaslee said that "some-
thing more important came up." Cubbage exclaimed: "My
gosh, Cec, at least call the man and inform him." Peaslee
responded that it had "completely skipped" his mind.
On March 5, Baublitz filed an internal union charge
against Peaslee, alleging that he had violated certain
provisions of the constitution of the United Brotherhood of
Peaslee also denied this. Baublitz already has been discredited that he was
so ordered. It is concluded that both that "order" and this alleged comment
by Peaslee were inventions of Baublitz, designed to enhance his justification
for leaving the job.
6 Baublitz is credited that he regularly protested the impropriety of his
discharge and inquired about grieving. Peaslee at first denied that Baublitz
ever expressed concern about the termination, only to concede later in his
testimony: "Maybe he told me it was improper every time."
58
GROVES-GRANITE
Carpenters relative to both the Chaussee and Groves-
Granite projects. Concerning Chaussee, the charge stated:
I tried to get Cecil to help me several times, but he
would not. If it had not been for the Department of
Labor and Industries, Safety Inspection, I wouldn't
have been eligible for Employment Security.
On March 10, Peaslee did attend a second unemploy-
ment compensation hearing in Redmond, Washington, on
Baublitz' behalf. Peaslee stated to Cubbage, 2 or 3 days
before the hearing, that, after "all the trouble" he had had
with Baublitz, he did not know whether he should
represent Baublitz or the Company. Cubbage admonished
that Peaslee would "represent the member."
The labor agreement pertaining to the Chaussee project
provided for makeup work "in the event an employee loses
time due to actual inclement weather," and contained a
grievance procedure for disputes "involving the application
or interpretation of this Agreement," the procedure to be
invoked "by the offended party (either Employer or
Union)." There was no provision for the institution of
proceedings by an aggrieved individual. Local 2205 makes
no contention that Baublitz' discharge was not cognizable
under the grievance procedure.'
The Baublitz/Groves-Granite Situation: Baublitz was a
carpenter for Groves-Granite on the dam project from
January 29 to March 12, 1976, when he was discharged. He
was referred to the job by Local 2205. His immediate
supervisor was Carpenter Foreman Wallace Henkel, who
in turn was accountable to Tate Stack, superintendent of
the carpentry shop.8
Henkel told Baublitz about 4 p.m. on March 12 that he
was fired. Henkel gave no reason, saying only: "Go to the
warehouse and pick up your check." A few minutes later,
Baublitz went to Stack for verification.9 The termination
notice, signed by Carpenter Superintendent Lucky Wells,
said that Baublitz was "unqualified for work assigned."
That Wells signed the slip does not mean he participated in
the discharge decision. He signed all carpenter termination
slips.
Henkel testified that he "instigated the decision" to
discharge Baublitz; and stated, in a pretrial affidavit, that
the decision "was entirely my own." The reasons cited by
him were Baublitz' "attitude" and that he had made "quite
a few mistakes." Henkel did not elaborate, testifying only
that, in his opinion, Baublitz "was hindering me from
? Replying to a question from counsel for Local 2205, Peaslee testified
that he would have initiated grievance proceedings against Chaussee if only
Baublitz had asked. The General Counsel belatedly objected on the ground
that the question called for a self-serving and conjectural answer. The
objection was sustained. This is mentioned only because the General
Counsel frames an argument around this testimony in his brief, overlooking
the effect of the ruling on his objection.
I The complaint alleges and the answers deny that Henkel was a
supervisor under the Act. Henkel testified that he was told, when hired, that
he had the power to fire; and Stack testified that Henkel could fire and
reprimand without first clearing with him. It is concluded, based on this,
that Henkel was a supervisor.
9 Stack recalled saying: "Yes. It's just tough shit. You're on your way."
1' The transcript has been corrected so that "out" reads "our."
:" Stack testified that "tramped," in construction parlance, means fired.
12 Stack testified that he warned Baublitz, 2 or 3 days before the
discharge, to take care of his assigned job or "you're not going to be here
getting our '0 work done." Henkel denied that the decision
was influenced by Local 2205.
Henkel notwithstanding, Stack testified that the dis-
charge decision was his, "perhaps influenced by some of
the things Wally [Henkel] said," and that the "sole reason"
was Baublitz' "not staying with and performing assigned
work." Stack elaborated that Henkel had mentioned to him
that Baublitz "was wandering around the deck bothering
other people," and carrying on like "a foreman or
superintendent." Stack continued that Henkel had said
that, "if Baublitz doesn't straighten out, I think he ought to
be tramped."" Stack testified that, because of Henkel's
comments, he watched Baublitz, "made the observance for
myself, and made my own decision."1 2 Stack emphasized
that Baublitz' work mistakes were not a factor-"every-
body is subject to mistakes .... I can pardon mistakes."
Stack, like Henkel, denied that the decision was influenced
by Local 2205.
Wells denied any part in the decision, testifying that,
when Stack told him of his intention, Wells stated: "It's up
to you." Clay Vestal, Groves-Granite's office manager,
testified, however, that Wells raised the idea of transferring
Baublitz to a different area in lieu of discharging him, and
that Vestal rejected the idea.'3 Wells denied in his
testimony that he considered such a move until faced with
his pretrial affidavit. The affidavit states:
When Stack told me about firing Baublitz, I thought
about transferring Baublitz to the hole, but I decided
against it because it doesn't usually work out.
Wells and Vestal both denied union complicity in Baublitz'
fate.
Baublitz telephoned Cubbage of the District Council the
evening of March 12, reporting the discharge. On March
13, after a District Council meeting, Cubbage asked
Peaslee if he had heard the news. Stunned, Peaslee blurted:
"They fouled me up. They said they would transfer him." 14
Peaslee then asked, "What do I do now?" Cubbage replied
that they should attempt to get Baublitz' job back, and
Peaslee said he would try.
Peaslee called Baublitz later, on March 13, saying that he
would seek a March 17 meeting with management to take
up Baublitz' reinstatement. On March 15, unable to reach
Peaslee, Baublitz left word with Local 2205 that he could
not attend a meeting on March 17. Peaslee met with Vestal
and Project Manager Bev Trautman on March 17, just the
much longer." Baublitz denied ever receiving such a warning. Stack seemed
to be embellishing, while Baublitz' denial carried conviction. Baublitz is
credited.
13 Vestal testified that, when Wells proposed Baublitz' transfer, Vestal
asked why he was being terminated. Wells answered that it was "because he
can't do his work," to which Vestal asked: "Well, is it going to change if you
transfer him?" Wells replied that it would not, and Vestal said: "Well, then
terminate him for what you're terminating him."
14 In attempted explanation of this remark, and in seeming conflict with
the assertion in Wells' affidavit that transfers generally are avoided because
they do not "usually work out," Peaslee testified: 'IWlhen they call for
these men, they stated an X amount of men would be put on the panel yard
and X amount in the hole. The X amount in the panel yard was only good
for about two to three weeks, but if they could be, they would be consumed
in the hole." This explanation is discounted as a self-serving after-the-fact
effort at salvation.
59
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same. Vestal and Trautman refused to relent from the
discharge, according to Peaslee, because Baublitz' "work
record was too bad." Vestal disclosed that Peaslee exerted
less than a determined effort on behalf of Baublitz. He
testified that Peaslee routinely broached reinstatement with
him concerning "everyone that was terminated for any
reason other than reduction in force," but that, in Baublitz'
case, "we didn't pursue it that much ... so I wouldn't say
that he's all that insistent every time."
On March 18, Peaslee told Baublitz some of what had
happened, and held out the prospect of another meeting
since Baublitz was not present on March 17. Baublitz
stated that it was Peaslee'sjob to back him, and that he had
not attended "because I didn't have proper counsel."
Peaslee countered that Local 2205 had obtained a check
from Chaussee for the wage differential owing Baublitz,
which "ought to show I'm doing something." Baublitz
responded: "If it wouldn't have been for the District
Council, I wouldn't have gotten anywhere."' 5 With that,
Peaslee announced: "There's not going to be any meet-
ing'6 at Groves-Granite .... I'm not going to give you
your job back."
Peaslee told Cubbage, sometime after March 17, that the
"intent of the meeting" had been to show, "once and for
all," that Baublitz "was not a qualified carpenter and . . .
that he was terminated for cause."
During his time with Groves-Granite, Baublitz filed a
grievance through one of the stewards protesting Henkel's
working with the tools of the carpentry trade. The
controlling labor agreement forbade foremen from working
"with tools other than those necessary for layout work." As
a result, Bull Steward Corn twice "dressed him [Henkel]
down."'7 And, on March 5, Baublitz filed the internal
union charge against Peaslee previously mentioned. The
charge alleged, concerning the dam project, that Peaslee
"has been causing dissension among the Carpenters" on
the project; that Peaslee "along with the Shop Stewart [sic]
have collaborated with Groves-Granite Co."; and that
"there has been a lot of Carpenters from other areas,
outside Local 2205 get jobs over the Carpenters who had
priority in this area."
Peaslee admittedly was "kind of a little shocked" when
Baublitz "preferred charges against me." On March 8,
during a visit to the project, Peaslee told Baublitz he was
"shocked" and that the charge could cost him his position
as business representative. Baublitz said that, if Peaslee had
adequately represented him, the charge would not have
been filed, and they argued back and forth in that fashion
for 15 or 20 minutes, shouting and otherwise evincing
anger. Henkel finally ended the affair by saying that they
1' Cubbage of the District Council had written Chaussee on January 13,
mentioning its "oversight" in underpaying Baublitz and expressing the hope
that Chaussee would "remit the difference to Mr. Baublitz at the earliest
possible time." Baublitz received a check on March 22.
16 The transcript has been corrected so that "union" reads "meeting."
" Corn initially testified, without qualification, that Baublitz had filed a
grievance over Henkel's use of tools. Corn later equivocated, testifying that
he "couldn't specify it was actually Mr. Baublitz who made the complaint
.... " Corn's first version is credited.
iR Stack's denial that Peaslee mentioned the Baublitz charge is not
credited. Not only was Peaslee obviously preoccupied with Baublitz that
day, but Williams impressed me as a sincere and capable witness. Similarly,
had argued long enough and it was time "to get some work
done."
Peaslee then went into the saw shop, along with Stack
and Henkel. What happened among them, if anything, is
left to speculation. A while later returning to Baublitz,
Peaslee asked to see his union membership card. Peaslee
explained that he wished to check the status of Baublitz'
dues. The labor agreement contained a 9-day union-
security clause, and stated:
Failure of any employee to pay or tender normal
initiation fees or dues as required by this Agreement
shall, upon the request of the Union in writing, result in
termination of such employee.
After looking at the card, which showed Baublitz to be
paid up, Peaslee observed: "Well, maybe you'll get a good
night's sleep tonight. You'll forget about these charges."
Peaslee next went into Stack's office, as did Henkel. The
record reveals little of what then happened, although Cliff
Williams, presently to become a crew steward, credibly
testified that he heard Peaslee say: "I guess Baublitz is
going to sue me." Williams recalled that Stack "didn't pay
no attention to" the comment.8s Emerging from Stack's
office, Peaslee again spoke to Baublitz, iterating the remark
about getting a good night's sleep and forgetting the
charge.
On March 12-the day of Baublitz' discharge-Peaslee
spent several hours at the jobsite, his primary concern
ostensibly being the designation of a new crew steward in
the area where Baublitz worked.19 Also on March 12, Wells
and Peaslee conversed in the parking lot at the site.20
As earlier mentioned, during the week between Baublitz'
filing of the internal union charge against Peaslee and his
discharge, Peaslee stated to Cubbage that, after "all the
trouble" he had had with Baublitz, he did not know
whether he should represent Baublitz or Chaussee in a
March 10 unemployment hearing.
The Stevenson Situation: Stevenson was a carpenter for
Groves-Granite on the dam project from January 8 to 15,
1976, when he was discharged; then, from January 22 to
the present.
He first registered on Local 2205's out-of-work list in
July or August 1974, shifting his membership from a sister
local in so doing. He told Business Representative Peaslee
at the time that he was hopeful of working on the dam
project. In July 1975, he was referred to Tisdale Construc-
tion Company, which was erecting the project's administra-
tion building, with whom he remained until laid off in
November 1975. The beginnings of hostility surfaced
between Peaslee and Stevenson when Stevenson first
Peaslee's denial that he ever mentioned the Baublitz charge to management
is not credited, in part because the charge implicated Groves-Granite as
having collaborated with Peaslee.
19 Peaslee testified that he offered the steward position to Baublitz on
March 12. It is concluded that, even if Peaslee said the words, they were not
seriously intended.
20 Steve Stevenson testified that he observed the conversation from some
distance, so could not hear what was said, and that it lasted about 20
minutes. Wells testified that this was "untrue, a hundred percent wrong";
rather, that he and Peaslee did nothing more than exchange greetings.
Peaslee denied any recall of the conversation.
60
GROVES-GRANITE
registered on the out-of-work list, Stevenson questioning
the need to shift his membership. Those feelings were
reinforced during Stevenson's tenure with Tisdale, as he
second-guessed Peaslee's handling of matters relating to
that job from time to time.
Upon his layoff by Tisdale, Stevenson telephoned
Peaslee that he and two others, just laid off, Tip Holloway
and Bob Johnston, wished to be placed on the out-of-work
list. A month or so later, having learned that Johnston had
been referred to Groves-Granite, Stevenson complained to
Peaslee that he should have been ahead of Johnston on the
out-of-work list, and thus gone out first, because he had
called in the names. Peaslee replied that he had entered
Stevenson's and the other two names in no particular
sequence; and that, as it happened, Stevenson's was next
after Johnston's. Stevenson then complained about the
referral of one Don Thompson to Groves-Granite, inas-
much as Thompson had only recently transferred his
membership from a sister local. Peaslee answered that he
was "running the union," or words to that effect, and
Stevenson countered: "I'd better go to work in two weeks
or I'm going to know the reason why."
Around January 1, 1976, 2 weeks later, Stevenson called
Peaslee. Peaslee accused Stevenson of "trying to black-
mail" his way into a job, to which Stevenson said that he
"just wanted what was mine." A day or so later, having
heard that Peaslee had told some of the Groves-Granite
carpenters that Stevenson wanted him "to run somebody
else off out there" so Stevenson could be referred,
Stevenson again called Peaslee. He stated that he did not
want to cause anyone's layoff, but that he did want "what
was mine." Peaslee replied, as he had before, that he was
"running the local" and was not going to be blackmailed.
Stevenson thereupon telephoned Hal Morton of District
No. 7, asserting that he was being passed over at the hiring
hall. About the same time, during a District Council
meeting, Morton's assistant, Harlan Brown, confronted
Peaslee with Stevenson's complaint. Brown told Peaslee
that Stevenson "should be put to work." He suggested that
Peaslee tell Groves-Granite he had a "problem" concern-
ing Stevenson, and ask that the Company find a job for
him as an accommodation. Wayne Cubbage of the District
Council also discussed the matter with Peaslee at this
meeting. Morton previously had told Cubbage that he was
going to order Peaslee to put Stevenson to work.
On January 7, Peaslee informed Cubbage that Groves-
Granite was willing to hire Stevenson. Later that day,
Peaslee telephoned Stevenson, stating that he was "sup-
posed to put" Stevenson to work and that he should report
to Groves-Granite at the dam site on January 8.21 Also on
January 7, two Groves-Granite carpenters, Ron Savage
and Bud Ward, told Stevenson that they had heard Bull
Steward Corn say that Stevenson would be laid off after a
week or so.22
21 Peaslee testified that Stevenson. being next on the out-of-work list,
would have been referred in any event.
22 Neither Savage nor ward testified. and Corn denied saying any such
thing. The hearsay character of the remark attributed to Corn is recognized.
22 Stevenson is credited that Corn made this remark. Corn's denial
notwithstanding. Stevenson impressed me as believable on the point. while
various of Corn s denials, this one among them, were mechanically rendered
and devoid of suasive thrust. It is altogether plausible, moreover. that Corn
would have heard about Stevenson and would have said this.
Stevenson was assigned to work with Corn the first day
or so, after which he "partnered" with others. Corn
commented, upon Stevenson's arrival the first day: "I've
heard all about you." 23 Because of the "rumors" that he
was quickly to be laid off, and having been advised to do so
to protect himself "in case something happened," Steven-
son took a small notebook to the job with him, recording
anything suspicuous that he saw or heard as time allowed.
Corn once asked about his notetaking. Stevenson said he
was keeping a record of his time. Corn testified that most
of the carpenters on the project carried notebooks, in
which they recorded their time, materials used, etc.
One of the days before Stevenson's discharge, Eugene
O'Dell, who was partnering with Corn, noticed that Corn
himself was jotting in a notebook. O'Dell regarded this as
"kind of unusual." Apparently sensing O'Dell's puzzle-
ment, Corn asked him if he knew Stevenson and about the
"trouble" Stevenson "had been involved in." Corn contin-
ued that Stevenson "wasn't going to last" on the job; that
he, Corn, had been instructed by Lucky Wells, the
carpenter superintendent, to "keep a record of Stevenson's
activities during the day; . . . and that when they felt they
had enough evidence to fire him with a 'not-for-rehire' slip
that they could make stick that he would be terminated." 24
Stevenson was told of his discharge by Floyd Krutsinger,
his foreman, on January 15. As Stevenson credibly
recalled, Krutsinger explained that Wells had seen Steven-
son writing in his notebook three different times, and that
this was "part of the reason." Krutsinger said that he had
no part in the decision-it is "completely out of my
hands"-and that it had "nothing to do with the union."
For reasons undisclosed, Krutsinger did not testify.
Wells did, asserting that the discharge decision was made
by Krutsinger, who later explained to him that Stevenson
had not been doing his assigned duties and had been
"running behind the forms 25 making notes about half the
time." Although disclaiming involvement in the decision,
Wells admittedly had asked Krutsinger the day before
about Stevenson's notebook, prompting Krutsinger to say
that he would "take care of it." Wells signed Stevenson's
termination slip, which cited "unsatisfactory work" as the
cause of discharge. As previously stated, this did not signify
Wells' participation in the discharge decision.
Wells denied-"no way"-that Local 2205 ever put
"pressure" on him to fire anyone, or that he ever talked to
Peaslee about Stevenson's employment. Corn in turn
denied any role in the discharge, or that it had been
prearranged as an adjunct of Stevenson's referral. He
testified that he learned of it, after the fact, from
Krutsinger. Peaslee also denied any part in the matter,
averring that he first learned of the discharge from
Stevenson himself, the day after it happened.
Soon after the discharge, according to both Peaslee and
Office Manager Vestal, Peaslee spoke with Vestal and Bev
24 This is based on O'Dell's credible testimony, including his past-
recollection-recorded adoption of his pretrial affidavit. O'Dell testified that
he considered Stevenson to be "kind of a loudmouth," and otherwise
indicated that Stevenson was not a particular fnend of his; and there was no
specific refutation of this testimony by Corn.
25 The transcript has been corrected so that "foremens" reads "forms."
61
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trautman, project manager, in an unsuccessful effort to
have it reversed. 26 As earlier noted, Vestal testified that
Peaslee did this on every discharge that was not part of a
reduction in force, but was "not all that insistent every
single time." Peaslee testified that he could not "truthfully
say" if he reported the results of this meeting to Stevenson.
Soon after the discharge, also, Stevenson drew up
internal union charges against Peaslee and Corn. He did
not file them, but did give copies to Cubbage and Harlan
Brown, telling them that he intended to file if the "mess"
concerning his discharge were not straightened out. This, in
combination with numerous other member complaints
concerning Local 2205's handling of the dam project,
caused Hal Morton of District No. 7 to direct that
Cubbage and Brown undertake an immediate investiga-
tion.
Cubbage and Brown obtained signed statements from 20
or 30 disgruntled members, and interviewed Peaslee and
Corn as well. During one of their conversations with
Peaslee, Peaslee complained that Morton had "chewed him
out" for having "an agreement" with Groves-Granite that
Local 2205 would "back the company" when it discharged
troublemakers.27 Peaslee further complained about Mor-
ton's lecturing him that he "represented the men regardless
of what their attitudes were," saying that Morton was not
giving him proper support.
Their investigation led Cubbage and Brown to conclude
that Peaslee and Wells, together, were "trying to gag our
members on that project from voicing any opinions"; and
that Peaslee, having referred Stevenson "under duress,"
had "engineered his dismissal." The record does not supply
the evidentiary and deliberative particulars behind these
conclusions. On or about January 21, Cubbage and Brown
met with Trautman, Vestal, and Wells of Groves-Granite,
along with Peaslee and Corn, to report their conclusions.
Laying the 20 or 30 signed statements on a table, Cubbage
or Brown stated that they had numerous "charges" or
"complaints" against Local 2205 and Groves-Granite.
Alluding to the Stevenson situation, one or the other said
that the investigation had caused them to believe there had
been a cabal between Local 2205 and Groves-Granite "to
terminate someone." Stevenson's reinstatement was then
demanded.
The management officials caucused, whereupon Vestal
reputedly ascertained from Wells that Stevenson had never
been warned about his notebook. The three of them
consequently decided, according to Vestal, that Stevenson
"had been treated unfairly" and should be offered
reinstatement, provided that he leave his notebook home
25 Trautman did not testify.
27 Cubbage credibly testified that Peaslee spoke of such an agreement,
adding that he understood Peaslee to be referring to "any dissension, people
instigating walkoffs or problems of that sort." Brown did not testify. Peaslee,
while never identifying anyone from management with whom he may have
had such an agreement, did not refute Cubbage's testimony. Peaslee testified
that his frame of reference was people who provoked "wildcat" strikes,
which had been a recurrent problem on a project at Grand Coulee Dam, but
which admittedly had not been a concern on the Chief Joseph project.
Management witnesses denied any knowledge of such an agreement.
28 Respondents contend that Stevenson's reinstatement was conditioned,
among other things, upon there being no unfair labor practice charge over
his discharge. Construed most favorably to Respondents, and without
passing on the dubious proposition that such a condition can validly be
and that all charges against Groves-Granite be dropped.
Emerging from the caucus, management conveyed this
proposal to Cubbage and Brown, who accepted.2 8 Steven-
son returned to work January 22. He received no backpay
for the time between discharge and reinstatement.
The Alleged Interrogation and Threat: As earlier noted,
the charges herein were filed by Baublitz on March 26,
1976. Not long afterward, another carpenter on the dam
project, George Dennison, was directed to Stack's office by
Henkel. Stack and Henkel were there, later to be joined by
Lucky Wells. Stack began by asking Dennison what "the
score" was regarding the charges Baublitz had filed. To
Dennison's answer that he did not know, Stack explained
that Groves-Granite had been charged with firing Baublitz
because of his union activity.
Henkel then stated that Dennison had recommended
Baublitz as "a good man" when he was hired. Dennison
replied: "I still believe he is and I wouldn't change my
testimony no way." Stack interjected that he did not think
Baublitz was "the best man in the world"; that he made
mistakes, wanted to be superintendent, etc. Stack contin-
ued that, while Henkel had "tramped" Baublitz, he would
have done the same. Dennison repeated that he thought
Baublitz was a good man. The discussion proceeded in this
vein for several minutes, Stack and Henkel commenting
upon Baublitz' imperfections and Dennison disagreeing.
Wells, who had listened in silence, finally said: "I don't
see no problem here. You fellows know what to do with
employees who don't cooperate. You can handle this."
Wells then left, and the meeting broke up.29
Dennison testified that he did not know why Stack and
Henkel were so insistent that Baublitz had been a poor
worker, "other than the fact that I had recommended Mr.
Baublitz in the beginning." "The point of the whole
conversation," Dennison felt, "seemed to be that they were
trying to blame me partly for Mr. Baublitz' failure, you
know."
B. Analysis
The Baublitz/Chaussee Situation: The General Counsel
contends that Local 2205 "failed and refused to represent
Baublitz in his efforts to pursue a grievance with respect
to" the Chaussee discharge, thereby violating Section
8(b)(1)(XA).
A union is permitted a wide range of discretion in
determining whether and how to handle employee griev-
ances, so long as its determination is not colored by
imposed, the evidence on this point is conflicting and vague, falling well
short of establishing that a waiver of recourse to the NLRB was
contemplated.
29 his is Dennison's credited version of the meeting. Wells, Stack, and
Henkel all denied that anything like this ever happened, Stack adding that
"George Dennison is a liar." Dennison's general demeanor was excellent,
and his command of the details of the meeting indicated that he was
testifying from experience rather than make believe. Further, had he
manufactured the entire meeting from whole cloth, he likely would have told
a story much more incriminating of Groves-Granite. In addition, Groves-
Granite's counsel states in his brief that he is "inclined to believe" that
"Stack called Mr. Dennison in to discuss exactly what Mr. Dennison
testified that they did discuss .... "
62
GROVES-GRANITE
considerations that bear on union membership or are
otherwise arbitrary or in bad faith.30 Misconduct ordinari-
ly cannot be inferred from a union's simple refusal to
institute grievance action; 31 nor does negligence or poor
judgment, untainted by improper considerations, give rise
to a violation.3 2 As in other dealings with those it
represents, however, a union may not purposely keep
employees uninformed or misinformed concerning their
grievances; 3 and, having committed itself to the prosecu-
tion of a grievance, a union is under a duty to present it
most favorably to the employee.3 4
Applying this overlay of legal principle to the present
situation, it is concluded that Peaslee fell short of his
obligation in several respects; and, in so doing, violated
Section 8(bX I )(A). First, although ostensibly seeking
Baublitz' reinstatement, and in fact asking for it, Peaslee
disparaged Baublitz and undermined the effort by telling
Nilson and Omtvedt that he had "had a lot of trouble" with
Baublitz; that it "just don't look like he's a normal person."
In point is this observation by the Seventh Circuit:
It is one thing for a grievant to attempt to pursue his
remedy without [union] assistance and opposed only by
one adversary. When that situation is compounded by
two opponents, one of whom is supposedly his "own
people," the bearing on the likelihood of his success
assumes substantial significance. When one's own
representative . .. proclaims a lack of merit, it is
indeed likely to be a coup de grace to the claim.35
Second, Peaslee's abandonment of interest in Baublitz'
reinstatement plainly was influenced by considerations
that were both arbitrary and in bad faith. Thus, while the
issue posed by the termination was whether Baublitz had
been within his rights in refusing to work in the rain, which
Peaslee concededly believed him to have been, the
comments just mentioned reveal that Peaslee's handling of
the matter was dictated by his view of Baublitz as a
troublemaker and an abnormal person. This was indicated
later, as well, when, in response to State Inspector Squire's
report about the substandard condition of Chaussee's
scaffolding, Peaslee observed that Baublitz was a "trouble-
maker" and "could create his own problems" on a job.
Arbitrariness and lack of good faith also were indicated
by Peaslee's inability to provide meaningful detail in
support of his testimony that he had been persuaded by
Nilson and Omtvedt that "there was more to it" than just a
refusal to work in the rain. Invited to amplify, Peaslee
30 Vaca v. Sipes, 386 U.S. 171 (1967); Bazarte v. United Transportation
Union, 429 F.2d 868 (C.A. 3, 1970); Figueroa v. Sindicato de Trabajadores
Packinghouse, AFL-CIO, 425 F.2d 281 (C.A. 1, 1970); Buffalo Newspaper
Guild Local 26, American Newspaper Guild (Buffalo Courier Express), 220
NLRB 79 (1975); Local 575, Packinghouse Division, Amalagmated Meat
Cutters and Butcher Workmen (Omaha Packing Co.). 206 NLRB 576, 579
(1973).
31 Vaca v. Sipes, supra at 386 U.S. 191.
32 Bazarte v. United Transportation Union, supra at 872.
33 Cf., Local No. 324, International Union of Operating Engineers
(Michigan Chapter, AGC), 226 NLRB 587 (1976); Asbestos Workers, Local
No. 5 (Insulation Specialties Corp.), 191 NLRB 220, 221 (1971).
3' Aaron Kesner v. N. LR.B., 532 F.2d 1169 (C.A. 7, 1976), affg. sub nom.
Truck Drivers, Oil Drivers and Filling Station and Platform Workers, Local
No. 705 (Associated Transport, Inc.), 209 N LRB 292 (1974).
35 Kesner v. N.L. R. B., supra at 1175.
offered lamely that it was "probably his [Baublitz'] work
record, inability to not (sic] stay steady on the job." Even
more damning was Peaslee's intimation that another
reason for his inaction was the state complaint Baublitz
had filed against Chaussee-"you've got a hard problem
on your hands right there." The filing of such complaints
being an activity protected by the Act,36 this amounted to a
confession that Peaslee was motivated in part by proscrib-
ed discriminatory considerations.
In short, Peaslee's halting testimonial attempts to justify
his conduct revealed with arresting eloquence that, as the
Board once noted in a similar case, he "just did not 'give a
damn.' "37
A third respect in which Peaslee failed in his duty to
Baublitz was in his failure ever to tell Baublitz, after Nilson
and Omtvedt had induced him to reverse his field, that he
had no further intention of seeking Baublitz' reinstatement.
He instead misled Baublitz to the contrary, perhaps
irreparably harming Baublitz' ability to obtain redress
through alternative channels, by stating, whenever Baublitz
asked about the matter: "We'll see what we can do."
Peaslee committed yet another violation of Section
8(bXl)(A) by threatening Baublitz with executive board
action for writing the letter to Guy Adams of the State
Council complaining about Peaslee.3 8 Although this
conduct is not alleged as a violation, it was fully litigated. It
is therapeutically desirable, moreover, that the unlawful
finding be made.
The Baublitz/Groves-Granile Situation: The General
Counsel contends that, "for arbitrary and invidious
reasons," Local 2205 attempted to and did cause Groves-
Granite to discharge Baublitz, thereby violating Section
8(bX2) and (IXA). He further contends that Groves-
Granite discharged Baublitz in collaboration with Local
2205, thereby violating Section 8(aX3). There is no
contention that the discharge was improper if not induced
by Local 2205. 39
It is concluded that both Respondents violated the Act
as alleged. While the evidence is heavily circumstantial, it
warrants findings that Peaslee and Wells had worked out
an accord that Baublitz should be transferred; and that, as
a direct outgrowth of this, Vestal prevailed on Wells to go
ahead and discharge him. Not only did Respondents fail to
bring forth persuasive evidence to overcome the presump-
tion of wrongdoing that attends a union-influenced change
in job status,4 but the record leaves no doubt that their
actions were in specific response to Baublitz' having
36 Alleluia Cushion Co., Inc., 221 NLRB 999 (1975).
37 United Steelworkers of America, AFL-CIO (Interroyal Corp.), 223
NLRB 1184 (1976). Peaslee's vast and seemingly willful indifference to
Baublitz' needs was graphically shown in other ways also, as when, after
failing to appear at the February 18 unemployment hearing, he explained to
Cubbage that "something more important came up" and that he had not
notified Baublitz of this because it had "completely skipped" his mind.
38 Buffalo Newspaper Guil4 supra.
33 Although the record gives rise to a contrary suspicion, there is neither
contention nor proof enough to support a finding that Baublitz was
discharged in part for complaining about Henkel's working with the tools.
40 Quoting from International Union of Operating Engineers Local 18.
AFL-CIO (William F Murphy), 204 NLRB 681 (1973):
When a union . .. causes an employee's discharge. it has
demonstrated its influence over the employee and its power to affect his
(Continued)
63
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brought an internal union charge against Peaslee-activity
protected by the Act in any event.4 '
On the threshold issue of union causation, there is, first,
provocation. Baublitz filed his internal charge against
Peaslee on March 5-just I week before the discharge
occurred. Peaslee was "shocked" by Baublitz' action,
engaging him in a bitter argument over it on March 8. It
would not be surprising, therefore, if Peaslee were vindic-
tively disposed toward Baublitz, particularly since there are
sundry record indications that Peaslee does not accept
criticism with equanimity. That he indeed was so disposed
was revealed by his comment to Cubbage, sometime
between March 5 and 12, that he did not know if he should
represent Baublitz or Chaussee in the unemployment
hearing because of "all the trouble" Baublitz had caused,
and by his checking the currency of Baublitz' dues, with its
union-security implications, shortly after the March 8
argument.
Although there is no explicit evidence that Peaslee's
irritation translated into an attempt to affect Baublitz' job
status, there is ample basis for inferring that the discharge
was precipitated by some kind of understanding between
Peaslee and Wells on that general subject, their denials
notwithstanding. 42 Indicative of this, Wells raised with
Vestal the idea of a transfer instead of a discharge, and
Peaslee reacted, upon learning of the discharge: "They
fouled me up. They said they would transfer him." There
was, in addition, the testimony of Henkel and Stack.
Henkel testified, on the one hand, that the discharge
decision was entirely his own, based upon Baublitz'
mistake-proneness and attitude; Stack, on the other, that
the decision was his, based on Baublitz' "wandering
around the deck," and that mistakes had nothing to do
with it. While either of these versions, if credited, would
destroy any notion of union complicity, their inconsisten-
cies and vagueness are at once self- and mutually
destructive, consequently tending in the opposite direc-
tion.43
True, Peaslee may have discussed Baublitz' being
transferred with Wells for reasons having nothing to do
with the internal union charge-perhaps even to save
Baublitz from discharge. But, if something like that were
so, why did they not so testify? Wells instead denied even
that a transfer had been considered until faced with his
affidavit, and both he and Peaslee denied to the end ever
livelihood in so dramatic a way that we will infer-or, if you please,
adopt a presumption that-the effect of its action is to encourage union
membership on the part of all employees who have perceived the
exercise of that power.
See also Bricklayers Local No. 7, Bricklayers, Masons and Plasterers
International Union of America, AFL-CIO (Masonry Builders, Inc.), 224
NLRB 1021, (1976); Millwrights' Local 1102, United Brotherhood of
Carpenters and Joiners of America AFL-CIO (Planet Corporation), 144
NLRB 798, 800 (1963). "Union membership," in this context, has been
defined to include "participation in union activities." Radio Officers' Union
of the Commercial Telegraphers Union, AFL [A. H. Bull Steamship Co.] v.
N.L.R.B., 347 U.S. 17, 40(1953).
1i E.g., Warehouse Union Local 860, Teamsters (Admiral Corp.), 195
NLRB 68 (1972); United Brotherhood of Carpenters & Joiners of America,
Local 1281 (Raber-.Kief Inc.), 152 NLRB 629 (1965); Hod Carriers' and
Construction Laborers' Union, Local No. 300 (Desert Pipe Line Construction
Co.), 145 NLRB 1674 (1964).
42 It is not necessary to violation that the precise dialogue underlying the
discussing Baublitz with each other. Remembering the
adverse presumption under which they were laboring, it is
not for me to hypothesize an acceptable scenario in
defiance of their own resolute "stonewalling."
Peaslee's postdischarge meeting with Vestal and Traut-
man, purportedly in quest of Baublitz' reinstatement, was
not at odds with Peaslee's having played a role in the
discharge. Not only was Peaslee acting on a mandate from
Cubbage, but, as Vestal observed, he was not "all that
insistent" that Baublitz be reinstated. More telling, Peaslee
himself depicted the meeting as cosmetic in purpose,
admitting to Cubbage that the "intent of the meeting" had
been to show, "once and for all," that Baublitz "was not a
qualified carpenter and . . . that he was terminated for
cause."
The Stevenson Situation: The General Counsel's conten-
tions concerning Groves-Granite's discharge of Stevenson
are identical to those concerning its discharge of Bau-
blitz-that, "for arbitrary and invidious reasons," Local
2205 attempted to and did cause the discharge, thereby
violating Section 8(bX2) and (IXA); and that Groves-
Granite effected the discharge in collaboration with Local
2205, thereby violating Section 8(aX3). Again, there is no
contention that the discharge was improper if not induced
by Local 2205.
It is concluded, relying once more on evidence more
circumstantial than direct, that Local 2205 violated the Act
as alleged. It is further concluded, however, that the record
does not support a violation by Groves-Granite, certain of
the evidence essential to the conclusion regarding Local
2205 being hearsay as to Groves-Granite.
That Local 2205 was party to Stevenson's discharge is
suggested, first, by Peaslee's undoubted animosity toward
him. Stevenson not only had accused Peaslee of mismanag-
ing the hiring hall to Stevenson's detriment, but obtained
referral to Groves-Granite only after bringing pressure
from those higher in the hierarchy of the United Brother-
hood of Carpenters. Peaslee would have been less than
human for this not to have angered him, and his natural
anger likely was compounded by his notable intolerance of
criticism-a trait earlier mentioned.
The inference against Local 2205 gains vital impetus
from the admission of Bull Steward Corn to Eugene O'Dell
that Stevenson "wasn't going to last" on the job; that he,
Corn, had been instructed by Wells to "keep a record of
understanding be fleshed out. As stated in Northwestern Montana District
Council of Carpenters' Union and United Brotherhood of Carpenters and
Joiners of America, Local No. 911 (Glacier Park Co.), 126 NLRB 889, 897-
898 (1960): "An express demand or request is not essential to a violation of
Section 8(bX2) of the Act. It suffices if any pressure or inducement is used
by the union to influence the employer."
43 As stated in Shattuck Denn Mining Corp. v. N.LR.B., 362 F.2d 466,
470(C.A.9, 1966):
[Tlhe trier of fact may infer motive from the total circumstances
proved. .... If he finds that the stated motive for a discharge is false,
he certainly can infer that there is another motive. More than that, he
can infer that the motive is one that the employer desires to conceal-
an unlawful motive-at least where ... the surrounding facts tend to
reinforce that inference.
See also Grede Foundries, Inc., 211 NLRB 710, 712 (1974): "The offering of a
spurious defense, of course, supports an inference as to the unlawfulness of
the real reason."
64
GROVES-GRANITE
Stevenson's activities during the day; . .. and that when
they felt they had enough evidence to fire him with a 'not-
for-rehire' slip that they could make stick that he would be
terminated."
The adverse inference takes added strength from the
brevity of Stevenson's tenure--I week-before being
discharged; from the seemingly pretextuous stated reason
for the discharge, conceded even by Groves-Granite on
reconsideration to have been unworthy; and from Peaslee's
complaints, made in the context of the postdischarge
investigation by Cubbage and Brown, that Morton had
taken issue with his agreement to back Groves-Granite in
its discharge of troublemakers, and that Morton had
lectured him that he "represented the men regardless of
what their attitudes were."
This aggregate of circumstances warrants a finding that
Local 2205 was instrumental in Stevenson's discharge.
And, much as in the case of Baublitz, Local 2205 not only
failed to bring forth persuasive evidence to meet the
attendant presumption of wrongdoing, but the record
establishes that its action was in reprisal for Stevenson's
going over Peaslee's head concerning the way he operated
the hiring hall-activity protected by the Act, regardless.
As indicated above, not all of the elements comprising
the case against Local 2205 are available in assessing the
conduct of Groves-Granite. Specifically, Corn's admission
to O'Dell that he was collaborating with Groves-Granite in
setting up Stevenson's discharge, and Peaslee's admission
to Cubbage and Brown about an agreement with Groves-
Granite over the discharge of troublemakers, were hearsay
as to Groves-Granite and thus cannot be used against it."
Those elements removed, there is insufficient basis for
inferring that Stevenson's discharge was union connected.
To be sure, there remain the suspect circumstances that the
discharge was accomplished within a few days of referral,
and for a seemingly pretextuous stated reason. Then there
is the added factor that the reputed decisionmaker,
Krutsinger, inexplicably did not testify-an oversight
hardly accruing to Groves-Granite's benefit.45 But the
pretextuousness of a stated reason is not tantamount to an
unlawful reason, 48 and Krutsinger's absence simply does
not offset the missing nexus.
The Alleged Interrogation and Threat: The General
Counsel contends that Groves-Granite, by Wells, Stack,
and Henkel, interrogated and threatened George Dennison
in an attempt to influence his testimony concerning the
present charges, thereby violating Section 8(aX)().
It will be recalled that, shortly after Baublitz filed the
charges, Dennison was called to Stack's office. Stack asked
what Dennison knew about the charges, after which Stack
and Henkel berated Baublitz and disputed Dennison's
44 Rule 801(d) of the Federal Rules of Evidence states: "A statement is
not hearsay if. . .(2) The statement is offered against a party and is. ..(E)
a statement by a co-conspirator of a party during the course and in
furtherance of the conspiracy." Corn's critical admission to O'Dell
unquestionably satisfies the "during the course" criterion. It does not,
however, meet the "in furtherance or' requirement, and thus cannot be used
against Groves-Granite. See, generally, Wong Sun v. United States, 371 U.S.
471, 490-491 (1963); Krulewitch v. United States, 336 U.S. 440, 443-45
(1949): N. LR.B. v. Local 776, International Alliance of Theatrical and Stage
Employees (Film Editors) [Caseade Pictures Co. of California], 303 F.2d 513
(C.A. 9, 1962); N.LR.B. v. Amalgamated Meat Cutters & Butcher Workmen
insistence that he was "a good man." Wells stated, at the
end of the meeting: "I don't see no problem here. You
fellows know what to do with employees who don't
cooperate. You can handle this." Dennison testified: "The
point of the whole conversation seemed to be that they
were trying to blame me partly for Mr. Baublitz' failure,
you know," inasmuch as Dennison had "recommended
Mr. Baublitz in the beginning."
If Wells, Stack, and Henkel were trying to influence the
testimony Dennison might give to the NLRB, they
obviously did not make their purpose understood to him.
He gave the impression, moreover, of possessing normal
acumen. Recognizing that Dennison's subjective percep-
tion is not dispositive, it nevertheless is concluded, based
on that perception in combination with an objective
evaluation of the evidence, that the record is too ambigu-
ous to carry the General Counsel's burden as concerns
these allegations.
CONCLUSIONS OF LAW
1. By threatening Baublitz with executive board action
because he wrote a letter complaining of the way the
business representative performed his union duties, as
found herein, Local 2205 violated Section 8(bXIXA) of the
Act.
2. By failing to represent Baublitz adequately after
Chaussee had discharged him-specifically, by disparaging
the worthiness of the cause to management officials; by
abandoning interest in Baublitz' reinstatement based on
considerations that were arbitrary, in bad faith, and
discriminatory; and by misleading Baublitz concerning
Local 2205's position in the matter-as found herein, Local
2205 further violated Section 8(bX IXA) of the Act.
3. By causing Groves-Granite to discharge Stevenson
on January 15, 1976, and Baublitz on March 12, 1976, in
violation of Section 8(aX3) of the Act, as found herein,
Local 2205 in each instance violated Section 8(bX2) and
(IXA) of the Act.
4. By discharging Baublitz in response to improper
union influence, as found herein, Groves-Granite violated
Section 8(aX3) and (1) of the Act.
5. These unfair labor practices affect commerce within
Section 2(6) and (7) of the Act.
6. There is insufficient evidence to sustain the other
allegations of misconduct by Groves-Granite.
Upon the foregoing findings of facts, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
of North America, Local No. 127, 202 F.2d 671 (C.A. 9, 1953); McCormick,
Evidence 645-646 (2d ed. 1972); Levie, Hearsay and Conspiracy, 52 Mich. L.
Rev. 1159(1954).
4s See Goodyear Tire &d Rubber Co. v. N. L R. B., 456 F.2d 465, 468 (C.A. 5,
1972).
46 Maple Shade Nursing Home, Inc., d/b/a Maple Shade Nursing and
Convalescent Center, 223 NLRB 1475 (1976).
65
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER47
A. Respondent Carpenters Local No. 2205, United
Brotherhood of Carpenters & Joiners of America, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Threatening Leroy C. Baublitz or any other employee
with executive board action for complaining in a manner
protected by the Act of the way the business representative
performs his duties.
(b) Failing to represent Leroy C. Baublitz or any other
employee adequately in grievance matters, by disparaging
the cause to management officials; by abandoning interest
in the grievance based upon considerations that are
arbitrary, in bad faith, or discriminatory; or by giving
misleading information to the aggrieved employee concern-
ing the Union's position in the matter.
(c) Causing or attempting to cause Groves-Granite, or
any other employer, to discharge or otherwise discriminate
against Steve Stevenson, Leroy C. Baublitz, or any other
employee, in violation of Section 8(a)(3) of the Act.
(d) In any other manner restraining or coercing employ-
ees in the exercise of their rights under the Act.
2. Take this affirmative action necessary to effectuate
the policies of the Act:
(a) Promptly request of Chaussee Corporation that it
submit to grievance proceedings the propriety of Chaus-
see's discharge of Leroy C. Baublitz on or about October
30, 1975.48
(b) Jointly with Groves-Granite, or severally, make
Leroy C. Baublitz whole for any loss' of earnings and
benefits suffered because of the misconduct resulting in his
discharge by Groves-Granite on March 12, 1976, backpay
to be computed in accordance with F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing &
Heating Co., 138 NLRB 716 (1962).
(c) Make Steve Stevenson whole for any loss of earnings
and benefits suffered because of the misconduct resulting
in his discharge by Groves-Granite on January 15, 1976,
backpay to be computed in accordance with F. W.
Woolworth Company and Isis Plumbing & Heating Co.,
supra.
(d) Preserve and, upon request, make available to the
Board, or its agents, for examination and copying, all
records necessary for determination of the amounts owing
under the terms of this Order.
(e) Post at its offices, meeting halls, and hiring halls,
copies of the attached notice marked "Appendix A."4 9
Copies of said notice, on forms provided by the Regional
Director of Region 19, after being signed by an authorized
representative of Local 2205, 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 members customarily
are posted. Reasonable steps shall be taken to ensure that
said notices are not altered, defaced, or covered by other
material.
(f) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps Local 2205 has taken to comply herewith.
B. Respondent Groves-Granite, a Joint Venture, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees in collaboration with, or in response to unlawful
pressures from, Carpenters Local No. 2205, United
Brotherhood of Carpenters & Joiners of America, or any
other labor organization.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise-of their rights under the
Act.
2. Take this affirmative action necessary to effectuate
the policies of the Act:
(a) Jointly with Carpenters Local No. 2205, or severally,
make Leroy C. Baublitz whole for any loss of earnings and
benefits suffered because of the unlawful discharge of him
on March 12, 1976, with backpay to be computed in
accordance with F. W. Woolworth Company and Isis
Plumbing & Heating Co., supraz
(b) Preserve and make available, upon request, to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all records necessary to
analyze the amounts of backpay and benefits owing under
the terms of this Order.
(c) Post at its project at Chief Joseph Dam, Bridgeport,
Washington, the notice which is attached and marked
"Appendix B." 50 Copies of the notice, on forms provided
by the Regional Director for Region 19, after being duly
signed by Groves-Granite's authorized representative, shall
be posted by it immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Groves-Granite to ensure that the notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 19, in
writing, within 20 days from the date of this Order, what
steps Groves-Granite has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the unproven allega-
tions against Groves-Granite be dismissed.
47 All outstanding motions inconsistent with this recommended Order
hereby are denied. 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. 102AS8 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.
4e Rather than now attempt to figure whatever wage and benefit loss
Baublitz may have suffered because of Local 2205's failure to represent him
adequately regarding the Chaussee discharge, it is recommended that the
Board retain jurisdiction over this matter for the purpose of entertaining a
timely motion to reopen the proceeding, following exhaustion of the
grievance process, to deal with any unresolved questions of economic
detriment. E.g., Local 485, International Union of Electrical, Radio &
Machine Workers, AFL-CIO (Automotive Plating Corp.), 170 NLRB 1234
(1968), and 183 NLRB 1286 (1970); and Port Drum Company, 170 NLRB
555 (1968), and 180 NLRB 590 (1970).
49 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."
1o See fn. 49, supra.
66
GROVES-GRANITE
APPENDIX A
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten Leroy C. Baublitz or any
other employee with executive board action for com-
plaining in a manner protected by the Act of the way
the business representative performs his duties.
WE WILL NOT fail to represent Leroy C. Baublitz or
any other employee adequately in grievance matters, by
disparaging the cause to management officials; by
abandoning interest in the grievance based upon
considerations that are arbitrary, in bad faith, or
discriminatory; or by giving misleading information to
the aggrieved employee concerning the Union's posi-
tion in the matter.
WE WILL NOT cause or attempt to cause Groves-
Granite, or any other employer, to discharge or
otherwise discriminate against Steve Stevenson, Leroy
C. Baublitz, or any other employee, in violation of
Section 8(a)(3) of the Act.
WE WILL NOT in any other manner restrain or coerce
employees in the exercise of their rights under the Act.
WE WILL promptly request of Chaussee Corporation
that it submit to grievance proceedings the propriety of
Chaussee's discharge of Leroy C. Baublitz on or about
October 30, 1975.
WE WILL, jointly with Groves-Granite, or severally,
make Leroy C. Baublitz whole for any loss of earnings
and benefits suffered because of the misconduct
resulting in his discharge by Groves-Granite on March
12, 1976.
WE WILL make Steve Stevenson whole for any loss of
earnings and benefits suffered because of the miscon-
duct resulting in his discharge by Groves-Granite on
January 15, 1976.
CARPENTERS LOCAL No.
2205, UNITED
BROTHERHOOD OF
CARPENTERS & JOINERS OF
AMERICA
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or otherwise discriminate
against employees in collaboration with, or in response
to unlawful pressures from, Carpenters Local No. 2205,
United Brotherhood of Carpenters & Joiners of
America, or any other labor organization.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
rights under the Act.
WE WILL, jointly with Carpenters Local No. 2205, or
severally, make Leroy C. Baublitz whole for any loss of
earnings and benefits suffered because of our unlawful
discharge of him on March 12, 1976.
GROVES-GRANITE, A JorNT
VENTURE
67