International Association Of Firefighters, Afl--Cio

National Labor Relations Board - Board Decisions

Mar 9, 1990

297 N.L.R.B. 865 (N.L.R.B. 1990)

FIREFIGHTERS 865
International Association of Firefighters, AFL-CIO
and Betty Ann Morrison. Case 5-CA-18553
,
March 9, 1990
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On June 7, 1989, Administrative Law Judge
Norman Zankel issued the attached supplemental
decision 1 Thereafter, counsel , for the General
Counsel and the Charging Party filed exceptions
and supporting briefs, the Respondent filed cross-
exceptions and supporting and answering bnefs,
and the Charging Party filed an opposition to the
Respondent's cross-exceptions
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the judge's decision
and the record in light of the exceptions and briefs,
and has decided to affirm the judge's rulmgs, 2 find-
ings, 3 atid conclusions, 4 and to adopt his recom-
mended Order
'On February 10, 1989, the Board issued a decision (292 NLRB 1025)
which asserted jurisdiction over the Respondent and remanded this pro-
ceeding to the judge for a decision on the merits
2 The judge rejected as untimely the Respondent s proffer of a district
court decision involving these same parties (other than the General
Counsel), holding OLFSP personnel to be Independent contractors rather
than employees The Respondent contends that decision should be given
collateral estoppel effects in this proceeding We have taken judicial
notice of that decision, made under Sec 502(a) of the Employee Retire-
ment Income Security Act (ERISA) of 1974, as amended, but find no
merit in the Respondent's collateral estoppel assertion based on the
court's own analysis The court observed
[The NLRB decision at 292 NLRB 1025] is inapposite in any event
Although the NLRB found that the OLFSP employees were "em-
ployed" by the IAFF, seemingly contrary to what this Court finds
the NLRB panel applied a different definition of "employed"
for purposes of NLRB jurisdiction than this Court must apply for
purposes of standing under ERISA
Accordingly, it is manifest that the court did not consider the issue of
employee status under the National Labor Relations Act Moreover, the
court's alternative finding—that OLFSP personnel, even if employees,
would not be entitled to pension benefits—shows that the court s decision
does not rely solely on its nonemployee finding and for that additional
reason does not provide a basis for collateral estoppel See Allbritton
Communications Co v NLRB, 766 i 2d 812, 819-820 (3d Or 1985),
enfg 271 NLRB 201 (1984), rehearing denied Sept 3, 1985, cert denied
474 US 1081 (1986)
3 The parties have excepted to a number of the judge's resolutions of
credibility The Board's established policy is not to overrule an adminis-
trative law judge's credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect Stand-
ard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Or
1951) We have carefully examined the record and find no basis for re-
versing the findings
4 The judge found insufficient evidence of unlawful motivation for the
Respondent s dropping sponsorship of OLFSP, partly based on his rejec-
tion of some of employee David Best s testimony as inadmissible hearsay
Best testified that he was told by Apprenticeship Director Higgins that
President Gannon and Secretary Whitehead were "pissed off" at OLFSP
Director Mayeske Contrary to the judge, we find that the statement at-
tributed to Higgins, an admitted supervisor and agent of the Respondent,
ORDER
The National Labor Relations Board adopts the
findings of the administrative law judge and orders
that the Respondent, International Association of
Firefighters, AFL-CIO, Washington, D C, its offi-
cers, agents, and representatives, shall take the
action set forth in the recommended Order
Is an admission by a party-opponent and therefore admissible See
Fed R Evid 801(d)(2), Southern Illinois Petrol, 277 NLRB 160 fn 1
(1985) Our further consideration of Best's testimony, however, shows
that it is vague, ambiguous, and insufficient to require alteration of the
judge's findings
In adopting the judge's dismissal of the complaint allegation of unlaw-
ful interrogation, Member Cracraft relies primarily on the fact that the
Respondent s questions were directed to a statutory supervisor
Mark F Wilson, Esq and Sharon Effatt Howard, Esq , for
the General Counsel
Thomas A Woodley, Esq (Mulholland & Hickey), of
Washington, D C for the Respondent
Kathleen A Murray, Esq (Beim, Axelrod, Osborne &
Mooney, P C ), of Washington, D C, for the Charging
Party
SUPPLEMENTAL DECISION
NORMAN ZANMKEL, Administrative Law Judge This
Supplemental Decision is being issued pursuant to the
Board's "Decision and Order Remanding Proceeding,"
292 NLRB 1025 (1989), which reversed my initial rec-
ommendation to dismiss the complaint for lack of juris-
diction 1 The Board's remand decision directed me to
decide the merits of the unfair labor practice allegations
and issue a supplemental decision containing such deter-
mination
The complaint, as amended at hearing, alleges that Re-
spondent, as an employer, violated Section 8(a)(1), (2),
and (3) of the National Labor Relations Act (the Act),
by (a) having unlawfully interrogated its employees, (b)
having unlawfully assisted in the formation of a labor or-
ganization to represent certain of its employees and solic-
iting those employees to join that organization, (c) discri-
minatorily terminating the employment of Charging
Party Morrison and two other employees, David Martin
and Shivanna King, because they did not join the alleg-
edly unlawfully formed organization and because they
sought legal counsel regarding their rights, and (d) dis-
criminatorily terminating the employment of supervisor
Betty Jo Mayeske
Respondent's timely answer admits certain allegations,
denies an employer-employee relationship existed be-
tween it and each of the alleged discnminatees, and, in
any event, denies it committed any of the alleged unfair
labor practices
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
posthearmg briefs filed by counsel for all the parties
I My original decision (JD-I4-88) Issued on January 29, 1988, and is
attached to the cited Board s decision
297 NLRB No 146
866 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
before I issued my original decision in this matter, I
make the following
FINDINGS AND CONCLUSIONS
I JURISDICTION
Respondent, an unincorporated association, is a labor
organization engaged in the business of representing pro-
fessional, public sector firefighters in collective bargain-
ing with employers throughout the United States and
Canada Respondent's international headquarters in
Washington, D C, houses its top officers and support
staff, and all individuals employed in its federally funded
programs One of such programs was known as Open
Learning Fire Service Program (OLFSP) during times
material to this proceeding 2
The Board found it appropriate to assert jurisdiction
over Respondent "as the employer of (the OLFSP)
employees" and "with respect to these employees of
the Respondent " (292 NLRB 1025, 1027) 3 Ac-
cordingly, I find jurisdiction is clear and that Respond-
ent, at all material times, has been an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act
II PRELIMINARY PROCEDURE
On April 4, 1989, Respondent spontaneously delivered
to me a copy of a Memorandum Opinion and Judgment
issued on March 30, 1989, by Judge Royce C Lamberth,
U S District Court for the District of Columbia in the
matter of Betty Jo Mayeske v International Association of
Fire Fighters, Civil Action No 86-3283
In a covering letter, Respondent's attorney asserted
the district court case was a "parallel" action to the in-
stant case, and that Judge Lamberth (a) "made certain
conclusions of law which apply to essentially the same
issues raised in the instant proceeding", (b) found the al-
leged discnmmatees were independent contractors and
not Respondent's employees, (c) found Respondent free
of discriminatory motive, and (d) found the alleged dis-
cnminatees were "largely autonomous" nonpermanent
grant employees retained on a yearly basis
General Counsel and the Charging Party's attorney
submitted separate motions to strike Respondent's April
4 submission, Respondent submitted a memorandum in
opposition to the motions to strike, General Counsel filed
a response to Respondent's opposition to the motions to
strike, and Charging Party's attorney filed a reply in sup-
port of motions to strike
Section 102 42 of the Board's Rules and Regulations
contains the procedure for filing briefs with its adnunis-
2 Respondent sponsored OLFSP from 1977 through November 30,
1986, when Federal funding for It terminated
'Clearly, the quoted phrases from the Board's remand decision are
merely generic references to the status of the alleged discriminatees, be-
cause the Board's decision contains no analysis of their status based on
the record evidence I find the remand decision does not affect the par-
ties' agreement that Betty Jo Mayeske was a supervisor
The complaint alleges Mayeske as a supervisor Though Respondent's
answer denies her supervisory status, Respondent acknowledges (Tr 243)
Mayeske "was a managerial employee or supervisor (R Br 28), if, as is
the case, the Board were to find the existence of an employer-employee
relationship between Respondent and OLFSP personnel
trative law judges A request to file such a brief is to be
made "before the close of hearing" and, upon such re-
quest, the judge sets a filing date This procedure was
followed on the final hearing date on October 1, 1987
Subsequently, as indicated above, briefs were submitted
to me by counsel for all parties None of the prescribed
procedures in Section 102 42 was followed with respect
to the documents Respondent delivered to me on April
4, 1989
Respondent's April 4 cover letter and Judge Lam-
berth's opinion are in the nature of a brief If they were
not so intended, there was no reason to submit them to
me Arguably, I could grant retroactive authority for
filing those documents, and then permit the opposing
parties to submit countervailing arguments
However, I am bound by the Board's decisions unless
and until. they are overruled by the U S Supreme Court
(Waco, Inc , 273 NLRB 746 fn 14 (1984), citing Iowa
Beef Packers, 144 NLRB 615, 616 (1963)) I need not
follow the holdings of even U S circuit courts, if they
are contrary to Board law Thus, I am unable to accord
precedential value to Judge Lamberth's conclusions and
findings This is especially true in the present circum-
stances because his findings are not derived from a final
adjudication on the merits of the issues before the
Board 4
Upon the above discussion relative to Respondent's
April 4, 1989 submission, I grant General Counsel's, and
Charging Party's, motion to strike However, to preserve
the record for possible appeals, I shall place Respond-
ent's April 4, 1989 submission, together with each of the
documents filed by every party relating to that submis-
sion, in a rejected exhibit file which will be transmitted
by me to the Board, together with the official transcript
and exhibits, upon issuance of this supplemental deci-
sion 5
III THE ISSUES
A Did Respondent's conduct regarding an organiza-
tion known as "Association of IAFF Grant Employees"
constitute assistance to and domination of a labor organi-
zation in violation of Section 8(a)(2) and (1) of the Act?
B Did Respondent interrogate its employees in viola-
tion of Section 8(a)(1) of the Act?
C Did Respondent discriminatorily discharge OLFSP
personnel King, Martin, Mayeske, and Morrison in viola-
tion of Section 8(a)(3) and (1) of the Act?
I shall find Respondent violated Section 8(a)(1) of the
Act by rendering unlawful assistance to the formation of
a labor organization, but did not engage in any other vio-
lation of Section 8(a)(1), or any other section, of the Act
4 See Phoenix Newspapers, 294 NLRB 47 fn 5 (1989)
5 These documents will not be assigned exhibit numbers Instead, they
will be put Into a single envelope marked 'Rejected and transmitted in
that form No other exhibits in the record are designated as rejected
FIREFIGHTERS

867
IV THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
The operative facts are substantially undisputed 6 The
allegations of Respondent's discnmmatory activity ema-
nate from its decision to terminate its sponsorship, and
operation, of OLFSP at the end of November 1986 The
unlawful assistance and interrogation allegations are de-
signed both as independent violations of the Act and also
evidence that Respondent's conduct was unlawfully mo-
tivated
At all material times, John A Gannon was Respond-
ent's president, and Alfred K Whitehead, its secretary-
treasurer OLFSP became one of Respondent's projects
before Gannon became president 7 As president, Gannon
consistently gave whole-hearted support to OLFSP For
example, he gave testimony favorable to OLFSP to three
congressional committees in 1982, urged Respondent's
executive board, in 1983, to oppose an effort by the Na-
tional Fire Academy (NFA)8 to remove OLFSP from
Respondent's operation, in 1984, reported to Respond-
ent's annual convention that he thought It "is important
that [Respondent] continue to administer [OLFSP]"and
"This project is essential to our members and should
continue under [Respondent's] direction" (G C Exh 72,
p 24), wrote, in a spring 1986 OLFSP newsletter, that
he is "proud to say that [Respondent] has consistently
supported [OLFSP] [and Respondent] has wanted to and
needed to support the OLFSP from day one We
have protected and encouraged the development of
Open Learning through many difficult times We plan to
continue this attitude I am proud that [Respondent]
has been instrumental in developing this program" (G C
Exh 75), wrote to an education conference, on May 2,
1986, that he "will, most assuredly, continue [his] sup-
port of [OLFSP]" (G C Exh 74), and testified during
the instant hearing that he was generally protective of
the program (Tr 688/130)
The four alleged discriminatees comprised the entire
cadre of OLFSP personnel during times material to the
instant case As the Board noted in its remand decision,
"the OLFSP employees enjoyed working conditions
almost identical to those of the Respondent's other em-
ployees, including office clerical employees represented
by a labor organization" (292 NLRB -1025, 1027) The
record reflects only one disparity in working conditions
The OLFSP personnel (and those in Respondent's ap-
prenticeship program, also under federal grants) were
not encompassed within any pension plan which covered
virtually all other of Respondent's employees
6 Not every bit of evidence, or argument based on it, is reported My
factual recitation is a composite of contents of unchallenged documentary
evidence, stipulations, and uncontrachcted testimony Where material tes-
timonial discrepancies occur, they are resolved in the text Not all evi-
dence, or argument based on it, is reported Omitted matter is deemed
irrelevant, superfluous, or of no probative value
9 OLFSP s genesis, general and fiscal operations, are fully described by
the Board in its remand decision Such descriptions need no repetition or
elaboration , -
9 NFA is the academic arm of the Federal Emergency Management
Agency (FEMA), the Federal agency which was the source of funding
for OLFSP
At some point in 1985, Respondent was advised it
faced a potential tax liability if it failed to meet Internal
Revenue Code requirements for preferential tax treat-
ment because the pension plan did not meet the Internal
Revenue antidiscrimination test There were two possible
solutions to this problem OLFSP personnel either could
be included in a pension plan or become subject to col-
lective-bargaining for such a benefit
In March 1986, Whitehead alluded to the pension
problem during a discussion with Respondent's legisla-
tive staff assistant, Cheryl Gannon, who also was then
chief steward for Respondent's unionized clerical em-
ployees ° Whitehead told Steward Gannon that he
wanted her union to represent OLFSP and the grant em-
ployees in the apprenticeship program Steward Gannon
testified, without contradiction, that Whitehead asked
such representation be limited to bargaining only for
fringe benefits
Also, Whitehead noted that the Steward's union al-
ready affected the grant employees' working conditions
because whatever conditions, except the pension plan,
that were negotiated for the unionized employees were
also instituted by Respondent for the grant employees
Finally, Whitehead told Steward Gannon that if her
union declined to represent OLFSP (and the other grant)
employees, he (Whitehead) would "direct" those em-
ployees to form a separate association 10
Steward Gannon gave no answer to Whitehead during
their March 1986 conversation However, she consulted
with her Union's staff representative and its attorney On
April 2, Steward Gannon told President Gannon and
Whitehead that the Union was leaning against accepting
the proposal to represent the grant employees only for
fringe benefit purposes, but could not give them a final
response that day President Gannon and Whitehead
asked for an answer in a week_
About 10 days later, Steward Gannon went to Presi-
dent Gannon's office She told him her Union declined
the offer to represent grant employees President Gannon
told the Steward to convey that information to White-
head She immediately complied Steward Gannon credi-
bly testified that Whitehead told her he would "permit"
the grant employees to proceed with the formation of an
independent association for collective bargaining
In June, President Gannon spoke with Jack Higgins,
director of the apprenticeship program Respondent oper-
ated under grant funding Gannon told Higgins of the tax
problem regarding the pension plan and of its relation-
ship to Respondent's employees who worked in the
grant programs The two of them discussed the possibili-
ty of grant employees being represented by Steward
Gannon's union President Gannon told Higgins the
Union had earlier rejected such a suggestion Then, one
9 To distinguish Cheryl Gannon from Respondent's president Gannon,
she will hereafter be called Steward Gannon or the steward
10 I fully credit Steward Gannon, particularly with respect to her de-
scriptions of conversations with Whitehead He did not appear as a wit-
ness in these proceedings She was forthright, comprehensive, and pre-
cise During cross-examination, she was unshaken and satisfactorily ex-
plained any apparent inconsistencies derived from her prehearmg affida-
vit
868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
or the other proposed organizing a separate association
for grant employees ii
Higgins then asked President Gannon's administrative
assistant to help draft a document by which Respond-
ent's federal grant employees could associate themselves
to confer with Respondent over fringe benefits A docu-
ment was prepared with the assistance of Respondent's
attorneys and delivered to Higgins
The document was entitled "Agreement Establishing
the Association of IAFF Grant Employees" The asso-
ciation agreement explicitly stated the organization was
"for the purpose of meeting and conferring with IAFF
officials concerning the establishment of fringe benefits
which may be made available under the grants to the
members of the Association" (R Exh 55)
Near the end of June, Higgins delivered a copy of the
association agreement to the OLFSP personnel He
spoke to them about it Specifically, Higgins said the as-
sociation's purpose was to enable the grant employees to
seek additional fringe benefits, told them it was to their
benefit to sign the agreement, and represented that his
apprenticeship program staff already had signed the doc-
ument
None of the OLFSP personnel signed the association
agreement Instead, they discussed among themselves
whether they should sign it Mayeske participated in that
discussion The OLFSP personnel agreed to refuse to
sign the agreement Mayeske asked Steward Gannon for
advice, and the steward suggested contacting her attor-
ney
Such a consultation occurred OLFSP personnel met
with Charging Party's attorney, Kathleen A Murray On
June 27, Murray hand-delivered a letter (G C Exh 57)
to President Gannon Murray wrote that Charging
Party's law firm had been retained by the OLFSP em-
ployees regarding "their participation rights in [Respond-
ent's] pension plan, and a proposal currently being circu-
lated to form an association of grant employees" Mur-
ray's letter also asked for the production of certain pen-
sion documents
On July 2, President Gannon spoke to Mayeske about
Murray's notification of representation of OLFSP em-
ployees The conversation took place in the OLFSP
office and in the presence of all OLFSP personnel Both
Gannon and Mayeske testified concerning this conversa-
tion Their narrations are substantially similar I credit
each of them, and my description of what was said is a
composite of their accounts Thus, I find Gannon asked
Mayeske if grant funds were used to obtain that legal as-
sistance Gannon asked, "What are you doing this for?"
Mayeske told him it was to obtain pension rights for
OLFSP personnel Gannon retorted "You have no pen-
sion nghts," 2 The record contains no further evidence
" President Gannon's and Higgins testimony conflicts regarding
which of them made this proposal I do not consider this discrepancy sig-
nificant Higgins authority within the apprenticeship program ran paral-
lel to that of Mayeske in OLFSP Thus, I find the proposal was initiated
by a person with supervisory or managerial authority on behalf of Re-
spondent
12 Mayeske described this part of Gannon's remarks in more than one
form, but finally settled on the one I have quoted (see Tr 495-496) I
find this is the actual statement Gannon made It is consistent with
Mayeske s other testimony by which she said she was told, at time of her
of conversations between any OLFSP employee and any
of Respondent's officials
Respondent was faced with other concerns relative to
OLFSP, apart from the above-described tax problem
over pension plans In late 1985, FEMA undertook an
assessment of OLFSP to determine whether OLFSP was
delivering sufficient value relative to Federal funds
which were being expended for it FEMA was con-
cerned with whether OLFSP had peaked and whether
the program should be done by an entity other than Re-
spondent
FEMA used two methods as the basis for its evalua-
tion one was to have its Inspector General's office con-
duct an audit of OLFSP's financial activity from 1982
through 1985, and the other was to employ an independ-
ent nongovernmental consulting firm, Washington Con-
sulting Group (WCG) to evaluate OLFSP
WCG was retained by FEMA in September 1985
WCG's evaluation had three objectives (1) to assess the
OLFSP's cost effectiveness since its implementation in
1977, (2) to assess the program's impact on its partici-
pants, and (3) to assess OLFSP's operational efficiency
and determine "whether more desirable alternatives for
implementing the program are both available and feasi-
ble" (R Exh 16,3 )
WCG engaged in its study from January into Septem-
ber 1986, when it submitted a final report That report
(R Exhs 17 and 70) contained three alternative courses
of action (1) cancel OLFSP, (2) modify it, or (3) transfer
the program's administration to FEMA WCG's ultimate
recommendation included transfer of OLFSP from Re-
spondent to FEMA, where FEMA would operate it for
a tnal period of 2-3 years, after which another assess-
ment would be made
In June, President Gannon and FEMA's associate di-
rector orally discussed WCG's study and also the audit
results 13 Gannon was told WCG probably would rec-
ommend removal of OLFSP from Respondent, that
FEMA was greatly concerned over the unfavorable
audit results, and that (in Gannon's words) "the new ad-
ministration of FEMA was determined to cut back in
areas and things looked rather bad for both" OLFSP and
the apprenticeship program (Tr 688/160)
President Gannon could not recall whether the con-
versation reported immediately above occurred in June
or July (see Tr 688/159, L 4-7) I find It took place in
June That finding is chronologically consistent with
Gannon's activity in early July
On July 2, two things occurred that involved Gannon
That was the day Gannon spoke to OLFSP personnel (as
described above) about his receipt of attorney Murray's
letter advising him those employees had consulted her
and requesting Respondent to furnish pension informa-
tion Also on that date, Gannon wrote memoranda to
Mayeske (for OLFSP) and to Higgins (for the appren-
hire, that she would have no pension, and that she, in turn, similarly ad-
vised all other OLFSP personnel when she hired them
13 FEMA's audit of OLFSP took place in February-March In March,
the auditor reported to Respondent's comptroller that the audit uncov-
ered $173,678 apparently improperly spent by OLFSP Such a finding, if
not satisfactorily resolved, became a financial liability on Respondent
FIREFIGHTERS 869
ticeship program) to cancel their plans to attend, and to
set up booths at, Respondent's biennial convention be-
cause Respondent had no firm FEMA commitments for
continued funding of either program Later, Gannon
learned Mayeske's and Higgins' convention attendance
was included in their program's budget On July 17,
Gannon wrote Mayeske, rescinding his July 2 memoran-
dum and authorizing her to attend the convention (Hig-
gins, too, was finally authorized to attend, but the date of
such authorization is not in the record )
After Respondent's convention in August, Mayeske
wrote President Gannon on August 26 (R Exh 12), and
asked him to examine her first draft of a proposal for
federal funding of OLFSP for 1986-1987 Such proposals
customarily were submitted annually, and always with-
out hesitation or disapproval on Gannon's part during his
tenure as president On September 7, Gannon orally told
Mayeske to send the proposal to FEMA On September
9, Mayeske forwarded OLFSP fiscal year 87 proposal
(dated June 30, 1986) to FEMA's project director
Mayeske then prepared a letter of support for the pro-
posal for Gannon's signature The letter (G C Exh 59)
was dated September 10 Gannon did not sign that letter,
although it was in the form which he typically had
signed in previous years to accompany Respondent's sub-
mission of OLFSP funding proposals
Mayeske expressed her concern that Gannon had not
signed the September 10 letter of support in a September
22 memorandum to Gannon (G C Exh 51, R Exh 34)
In that memorandum, Mayeske reminded Gannon he had
authorized her to submit the funding proposal, but he
had not yet mailed the September 10 letter Then,
Mayeske wrote "Given the short time before the No-
vember 30 [termination of current OLFSP funding], do
you [Gannon] wish [Respondent] to continue to sponsor
[OLFSP], or do you not wish [Respondent] to continue
to sponsor [OLFSP]?" This memorandum ended with
Mayeske writing "I respectfully request an answer, so
we may take immediate action based upon your deci-
sion " -
Respondent's executive board was scheduled to meet
during the very week Mayeske wrote her September 22
memorandum Gannon placed OLFSP on the agenda
Vice President James L Hill, of Respondent's seventh
district testified in a forthright, candid, articulate, direct,
and spontaneous manner concerning what occurred re-
garding OLFSP at the executive board deliberations I
fully adopt his account
Hill testified that Gannon reported that Federal fund-
ing for OLFSP was "in the process of shutting down
and the possibilities of any future funding were pretty
bleak" Hill said the executive board members engaged
in general discussion concerning the program He testi-
fied that some members argued the program was not
necessarily serving the intended population of paid fire-
fighters but was, instead, being utilized by volunteer fire-
fighters or those who are paid but not Respondent's
members 14
14 it is a violation of Respondent's constitution and bylaws, art XV,
par 5, to support volunteer fire departments or associations (see R Exh
38)
Hill also testified that Whitehead reported Respondent
was vulnerable to repay the $173,678 15 which FEMA's
audit labeled as improper OLFSP expenses Hill recalled
that Gannon referred to the WCG study and its recom-
mendations in response to a question as to what would
happen to OLFSP if Respondent decided to discontinue
its sponsorship Gannon answered that question by
saying WCG recommended the program's transfer to
NFA 16
Hill testified it was he, independent of anyone else,
who made the motion that Respondent withdraw its
sponsorship of OLFSP Hill claimed a variety of reasons
existed for making the motion Specifically, he said he
was influenced by the reports on the future of Federal
funding, a concern Respondent ought not educate volun-
teer firefighters, and his personal conclusion that OLFSP
was a "formal" educational program more attuned to the
NFA He impressively denied he had consulted anyone
else before making that motion, and was not challenged
in this regard
Hill's motion called for Respondent to discontinue af-
filiation and support of OLFSP at the termination of the
then-current funding period, November 30 The execu-
tive board took a roll call vote Fifteen members voted
in favor of the motion, and two members voted against
it President Gannon did not vote There is no evidence
Gannon was especially prominent in the prevote discus-
sion His participation essentially involved reporting the
status of various phases of OLFSP activity and answer-
ing questions from executive board members
President Gannon advised Mayeske of the executive
board's vote by memorandum dated September 30 (G C
Exh 35, R Exh 53) The memorandum reflects it was in
response to Mayeske's September 22 written question to
Gannon regarding whether or not Respondent continues
to support OLFSP- Thus, Gannon wrote that he present-
ed that question to Respondent's executive board during
the preceding week "and the response is that [Respond-
ent] does NOT wish to continue to sponsor [OLFSP] "
Also, on Septemb'er 30, Gannon wrote FEMA's direc-
tor that Respondent no longer desired to sponsor
OLFSP and would not be requesting continuation of the
"project" This letter contained the suggestion that
OLFSP be transferred to NFA Respondent's formal af-
filiation with OLFSP ended on November 30
B Analysis
1 Unlawful Assistance
With respect to the alleged 8(a)(2) violation, paragraph
5 of the complaint asserts Respondent "rendered aid, as-
is Hill's recollection was that the amount stated 'was in excess of
$150,000' (Tr 861) This is one, but not all-inclusive, example of the un-
rehearsed character of Hill's testimony, a factor which demonstrates its
spontaneity
18 Neither the discussion over the audit nor WCG s recommendation is
explicitly referred to in the minutes of the executive board proceedings
(R Exh 52, 21-22) Nonetheless, I credit Hill's testimony that such dis-
cussions actually took place because, as Hill credibly explained (Tr 862),
the printed minutes summanze executive board activity and are not
meant to contain each Item discussed The cover of the minutes expressly
bears the designation Summary of (see 0 C Exh 60)
870 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sistance and support to the formation of an Association
of grant employees" by (1) initiating its formation and (2)
soliciting grant employees to sign the "association"
agreement
In its conclusory paragraph 12 regarding Section
8(a)(2), the complaint asserts in general terms that by its
actions described in complaint paragraph 5, Respondent
"dominated and interfered with the formation, and ren-
dered unlawful assistance and support to, a labor organi-
zation " (Emphasis added )
General Counsel's brief contains no explicit claim or
argument that, or how, Respondent's actions constituted
unlawful domination
Charging Party's brief, on the other hand, contains a
"domination" theory as its principal theme concerning
the 8(a)(2) allegations Yet, that brief requests issuance of
a cease-and-desist order only (see C P Br 33) and does
not expressly seek the customary Board order to dises-
tablish the allegedly dominated organization 17
Respondent, of course, contends it neither unlawfully
assisted in the formation of a labor organization, nor
dominated it in any way proscribed by the Act At
worst, Respondent argues, its conduct amounts to no
more than permissible cooperation with employee exer-
cise of their statutory rights Also, Respondent contends
no 8(a)(2) violation can be found here because the "As-
sociation of Grant Employees" was not a labor organiza-
tion within the meaning of the Act and because it never
achieved de facto existence
I agree with Respondent that the evidence does not
support the finding of an 8(a)(2) violation, but this conso-
nance does not end the inquiry over whether Respondent
violated the Act by the conduct adduced to prove a vio-
lation of that particular section of the Act
An underlying predicate to an 8(a)(2) violation is the
actual existence of some entity designed as an instrument
for employee collective bargaining with the employer of
its constituents It is true, as General Counsel and Charg-
ing Party contend, that the entity need not possess all the
trappings of, and actually be formalized as, a labor orga-
nization within the Act's definition (Texas Bus Lines, 277
NLRB 626 (1985), Butler Mfg Go, 167 NLRB 308
(1967))
However, none of the other numerous decisions cited
by all parties, including those uncovered by my inde-
pendent research, involved situations where employees
had not established an interrelationship (however minute,
tentative or fragile) designed for collective-bargaining
purposes For example, in Texas Bus, where the Board
reversed its administrative law judge's failure to find an
8(a)(2) violation because the allegedly supported entity
did not meet the labor organization criteria, an employee
committee actually existed and also met with the employ-
er
There can be, and is, no dispute that no entity called
"Association of Grant Employees" actually ever existed
Accordingly, I conclude an essential element of an
8(a)(2) violation is absent from the instant case Howev-
er, the question remains what is Respondent's unfair
17 This omission could be attributed to the absence, as I shall find
below, of any organization to which such a remedy could be applied
labor practice liability, if any, from the suggestion to
form the association of grant employees, the preparation
of the association agreement, and solicitation of grant
employees to sign it?
Clearly, President Gannon, together with Secretary-
Treasurer Whitehead conceived the idea that OLFSP
and other grant employees should have their own orga-
nization to negotiate with Respondent for pension bene-
fits However efficacious their motives, it is the actions
which promoted. their idea that determine whether or
not there is a violation of the Act Those actions include
enlisting Higgins' assistance Higgins promptly arranged
for an association agreement to be drafted and solicited
the OLFSP personnel to sign it
There is no evidence that anyone other than admitted
supervisory and managerial personnel was involved in
these initial organizational stages of the association of
grant employees Employer encouragement of employees
to create, or associate themselves into, an entity for col-
lective-bargaining purposes by the methods used in the
present case, I find, so interferes with employees' Section
7 rights freely to form, join, or assist labor organizations,
or to refrain from doing so, as to constitute a violation of
Section 8(a)(1) of the Act (Texas Bus Lines, supra)
Finally, as to the 8(a)(2) allegations, I find no proba-
tive evidence on which to conclude Respondent unlaw-
fully dominated any labor organization or employee asso-
ciation Even in situations, unlike this case, where em-
ployers are found to have unlawfully assisted or inter-
fered with the formation of labor organizations, it does
not necessarily follow that a finding of unlawful domina-
tion must be made (Spiegel Trucking Go, 225 NLRB 178,
179 (1976))
The key element of a domination theory is the degree
to which an employer controls the allegedly dominated
organization (Texas Bus Lines, supra, fn 6 and accompa-
nying text) Arguably, Respondent's agents' participation
in drafting the agreement to establish the association of
grant employees in the case at bar, upon terms and pur-
poses conceived by Respondent's representatives, is evi-
dence of Respondent's control over the employee asso-
ciation
In Rideout Memorial Hospital, 227 NLRB 1338, 1342
(1977), the Board adopted Administrative Law Judge
Earldean V S Robbins' unlawful domination findings In
that case, the employer engaged in conduct far more
widespread than present here In Rideout, the employer
determined the structure and function of the employee
organization, presented it as an accomplished fact to the
employees, set a time for the employees to elect officers,
conducted the elections in a mandatory departmental
meeting, announced the election results, met with em-
ployee representatives on company time, and retained
and exercised power to veto changes to the bylaws of
the employee organization The reservation of control
over the bylaws was principal support for the domina-
tion finding
Even assuming the association actually had been
formed (an event which I have concluded did not
occur), no OLFSP employee signed the association
agreement, no meetings were held between any repre-
FIREFIGHTERS 871
sentative of an employee group and Respondent to do
anything resembling or remotely connected to collective
bargaining, no elections were scheduled or held, and all
efforts to promote the creation of the grant employees'
association were dropped upon receipt of Attorney Mur-
ray's letter when OLFSP personnel indicated they were
not inclined to sign the association agreement The con-
text before me is readily distinguishable from that in RI-
deout and cases cited in it Therefore, I conclude there
can be no finding here that Respondent dominated an
entity in violation of Section 8(a)(2) of the Act 18
2 Interrogation
General Counsel and Charging Party assert President
Gannon's July 2 conversation with Mayeske in front of
the OLFSP employees included unlawful interrogation
concerning a protected concerted activity, namely, the
consultation with Attorney Murray Respondent claims
no violation of the Act occurred during the July 2 dis-
cussion
The Board, in Rossmore House, 269 NLRB 1176
(1984), affd sub nom Hotel & Restaurant Employees
Local 11 v NLRB, 760 F 2d 1006 (9th Cir 1985), held
that interrogation which, under all the circumstances,
tends to restrain, coerce, or interfere with protected em-
ployee rights is violative of Section 8(a)(1) Further, the
Board cautioned that the various factors weighed in con-
sidering the effect of alleged unlawful interrogations
should not be mechanically applied (Rossmore House,
supra, fn 20)
The evidence shows Gannon asked Mayeske why she
was "doing this," referring to his receipt of Attorney.
Murray's letter which reflected OLFSP personnel had
sought legal counsel The phrase I have quoted is ambig-
uous Gannon did not explain what he meant No one
asked him to do so However, the context of the July 2
discussion makes it reasonable to presume, as I do, that
his question related to OLFSP personnel's consultation
with Attorney Murray BeCause the record reflects the
consultation was to determine their rights regarding the
request to sign the agreement to form the grant employ-
ees' association and pensions, and because all OLFSP
personnel were jointly involved in that effort, I conclude
they were engaged in protected concerted activity
within the meaning of the Act
Nevertheless, I am persuaded that nothing Gannon
said to Mayeske on July constituted a violation of the
Act It is generally true, as General Counsel and Charg-
ing Party claim, that employer questioning of employees
regarding the reasons they engaged in protected concert-
ed activity violates Section 8(a)(1) of the Act (Club
Monte Carlo Corp, 280 NLRB 257 (1986)) But, applica-
tion of such a principle requires the presence of factors
from which it reasonably can be concluded that the in-
terrogation bears the effect proscribed by Rossmore
For example, the Club Monte Carlo interrogation,
though conducted (as here) by high management, oc-
curred in an atmosphere in which the employees' status
' 6 In any event, no useful purpose would be served by such a finding
in this case because no organization exists for a disestablishment order to
be effective
as employees was so tenuous that it easily could be un-
derstood their responses might immediately affect the
very existence of their jobs Also, the interrogation
found unlawful in the cited case was undertaken by the
employer as part of an investigation to uncover the insti-
gator of the employees' concerted activity, and the ques-
tions as to why the employees were involved in concert-
ed activities were asked in that backdrop
To conclude an atmosphere similar to that in Club
Monte Carlo attended Gannon's July 2 questioning re-
quires removing his words from their context Gannon's
reaction to receipt of Attorney Murray's advice that
OLFSP personnel consulted her came on the heels of
learning FEMA's audit produced doubted expenditures
and also that WCG was going to recommend OLFSP's
transfer to NFA It -was no secret that the audit and
WCG's study were under way Viewed in this light, I
find it plausible that Gannon would ask whether OLFSP
funds were being used to finance the employees' legal ex-
penses, and find that question did not tend to have the
requisite unlawful effect for a violation
In a similar fem, Gannon's question regarding why the
employees consulted an attorney bears no coercive tend-
ency That particular question relates to what he learned
from Murray's letter As earlier reported, Murray's letter
informed Gannon the OLFSP had consulted her con-
cerning "their participation rights" in Respondent's pen-
sion plans and asked him to furnish certain pension docu-
ments Gannon and each OLFSP employee fully under-
stood that a pension plan was not part of their employ-
ment benefit package In such circumstances, I find it
perfectly natural for Gannon to have asked why the em-
ployees would have consulted an attorney for advice on
a plan in which they had no entitlement
Evaluated against all relevant background, I conclude
Gannon's exclamation that OLFSP personnel had "no
rights" refers to the pension plan and not to the Act's
Section 7 rights, as General Counsel and Charging Party
urge That the OLFSP personnel who may have heard
Gannon's statement readily could have understood it as I
conclude is highlighted by the fact Gannon made it as an
immediate retort to Mayeske having told Gannon that
the employees had consulted an attorney (in Mayeske's
words) "to get pension rights"
I note Gannon's allegedly unlawful interrogation were
not part of a systematic effort (as in Club Monte Carlo)
to ferret out information concerning employee protected
activity They were made as a one-time, spontaneous re-
sponse to his receipt of Attorney Murray's letter
Though possibly intemperate, such a characterization
does not raise Gannon's statements to the level of unfair
labor practices in all the circumstances before me
Finally, I can find nothing in any of Gannon's July 2
remarks by which the OLFSP employees could feel their
jobs were in jeopardy That was the case in Club Monte
Carlo In the instant case, the OLFSP personnel knew
their jobs depended upon adequate Government funding
Gannon said nothing from which it could even be im-
plied that the visit to an attorney, the pursuit of pension
benefits, or the nature of the response to his questions
would affect the award of funds for OLFSP
872 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
On the record as a whole, I am unable to attach the
sinister significance proposed by General Counsel and
Charging Party to any of Gannon's July 2 statements
Accordingly, I find Respondent did not interrogate em-
ployees on that date in violation of Section 8(a)(1) of the
Act
3 Discrimination19
Under Wright Line, 251 NLRB 1083 (1980), affd 662
F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982),
approved in NLRB v Transportation Management Corp,
462 U S 393 (1983), the General Counsel has the initial
burden to prove that union or other activity protected
by the Act was a motivating factor in an employer's ad-
verse action against an employee If this burden is met,
the employer then has the burden to show it would have
taken the same action even in the absence of the protect-
ed activity These burdens of proof govern disposition of
the instant matter
General Counsel and Charging Party contend Re-
spondent's discontinuance of OLFSP was in retaliation
for the failure of OLFSP personnel to join in the forma-
tion of the association of grant employees and for seek-
ing advice of an attorney Respondent asserts the record
contains no probative evidence of unlawful motivation
and that, in any event, OLFSP would have been discon-
tinued even in the absence of OLFSP personnel's pro-
tected activities
There are factors present here which tend to support a
finding that Respondent's withdrawal from sponsorship
of OLFSP was motivated by discriminatory consider-
ations However, I am persuaded that the countervailing
evidence overndes and negates the unlawful effect of
those factors
At the outset, I note that this case arose in a back-
ground devoid of hostility between Respondent and
OLFSP personnel and, indeed, any other of Respond-
ent's employees The theories of violation focus upon
Respondent's apparent precipitous attitude change
toward OLFSP and its personnel That change is attrib-
uted to receipt of knowledge that OLFSP personnel had
engaged in protected activity
General Counsel and Charging Party cite a number of
events which occurred after July 2 (the date on which
Gannon told Mayeske he had received attorney Murray's
letter) to show Respondent embarked in a program of
hostile harassment from which its discriminatory intent
flows These events include President Gannon's July 2
memo to cancel OLFSP's booth at Respondent's conven-
tion which, as reported above, was later rescinded
Previously unreported evidence is also urged as a basis
for me to infer the existence of an unlawful motive That
evidence includes questioning of Morrison by Whitehead
regarding routine expenses, the suspension of Mayeske's
parking privilege, a very generalized account by B
Vole! (secretary to Gannon's administrative assistant) to
19 As reported at the beginning of this decision, the allegations of un-
lawful discrimination against OLFSP personnel also raise the separate
issue of whether Mayeske, as an admitted supervisor, is entitled to the
Act s protections under Sec 8(a)(3) I shall not deal further with this sep-
arate Issue, because of my overall conclusion that Respondent's conduct
was not chscrumnatonly motivated
the effect that she overheard Gannon, Whitehead, and
Higgins make adverse comments about Mayeske in late
June, hearsay testimony of former apprenticeship pro-
gram employee D Best that Higgins told him in July
that Gannon and Whitehead were "pissed off" at
Mayeske because she had not signed the grant employee
association agreement, and a curt one-line memorandum
from Gannon to Mayeske on September 19 questioning
why Respondent's logo did not appear on OLFSP's con-
vention booth
I have considered each of the elements upon which
General Counsel and Charging Party rely concerning
motive and conclude they amount to no more than suspi-
cious circumstances when viewed in light of all the cir-
cumstances First, I accord little probative value to the
testimony of Volel and Best Volel's account of the criti-
cal conversation was unspecific, and Best's was rank
hearsay, given only after considerable leading interroga-
tion .
Each of the other allegedly harassing events has been
evaluated in light of testimony which was adduced to ex-
plain it I am satisfied each such explanation tends to di-
minish, or negate, its use in development of a discrimina-
tory motive Thus, although Whitehead had not formerly
questioned routine expenses of OLFSP, what Morrison
described coincided with Respondent's receipt of the
audit report and Whitehead accepted Mornson's explana-
tions regarding the expenses, rescission of Mayeske's free
parking space was based on Respondent's records, con-
firmed by a memorandum from Mayeske herself in May
1985 (G C Exh 12), that only one garage space was al-
located to OLFSP and that had been given to Morn-
son, 2 ° and the tone of Gannon's message regarding Re-
spondent's absent logo shows that he was personally
upset by that state of affairs, but contains nothing to as-
sociate his anger with any employee's protected activity
Also, I have considered the impact of Mayeske's testi-
mony, not previously reported, that Gannon rejected her
request to seek an extension of the OLFSP grant at no
cost to Respondent, although he had sought such exten-
sions in past years, and that neither Gannon nor White-
head offered expressions of regret to her at OLFSP's ter-
mination, and that Respondent changed the lock on the
door to the OLFSP office on the day the program's
funding expired
Respecting the no-cost extension, Gannon credibly tes-
tified Mayeske's request came after the executive board
voted to terminate its sponsorship of OLFSP There was
no apparent reason to request the extension Finally,
Mayeske's testimony concerning the absence of sympa-
thetic remarks and changing the lock are more psychic
complaints than probative evidence of unlawful motiva-
tion At best, they present suspicious circumstances Sus-
picions cannot serve as a basis for finding discriminatory
conduct on Respondent's part See Mason & Hanger, 270
NLRB 383, 385 and cases cited at fn 7 (1984) But the
inquiry does not end here
20 I do not consider it relevant that Morrison paid a rental fee for the
space That fact does not alter the number of garage spaces available for
OLFSP personnel use
FIREFIGHTERS 873
There is ample evidence that President Gannon, for
Respondent, was an enthusiastic supporter of OLFSP for
many years before 1986 His various expressions of such
support are reported in section IV, A, above The most
recent such reported comment was in May 1986
The question arises why was there an apparent
change in view concerning OLFSP in late June, early
July, and thereafter? Proponents of a violation claim the
single intervening event was the refusal of OLFSP per-
sonnel to sign the agreement forming the association of
grant employees and their consultation of an attorney
General Counsel and Charging Party rely heavily upon
the timing of this activity and Gannon's July 2 discussion
with Mayeske as the basis of an inference that Gannon
was motivated by discriminatory intent when he placed
the issue of OLFSP on Respondent's executive board
agenda the following September
Even assuming all the events between July 2 and the
executive board vote were directly attributable to anger
over OLFSP employees' failure to participate in forma-
tion of the association of grant employees, it does not
automatically follow that anger rises to the level of ille-
gality
I observed above that the record contains no back-
ground evidence of Respondent's hostility to employees'
protected activities Moreover, I have found no merit at-
taches to the instant allegation that Respondent commit-
ted an independent 8(a)(1) violation by unlawful interro-
gation on July 2 Therefore, Gannon's confrontation of
Mayeske on that date provides no basis of support to a
finding of unlawful motivation
In the absence of background, or concurrent, evidence
of demonstrated hostility toward employee protected ac-
tivity, Respondent's claim that OLFSP was terminated
for nondiscriminatory reasons is plausible Contrary to
General Counsel and Charging Party, I find the manifes-
tations of changes toward, and treatment of, OLFSP be-
tween 1986 and prior years were a direct result of the
completion of the audit in March and the WCG recom-
mendations which were announced in June In my view,
those events led Respondent's agents to pursue a course
different from earlier years regarding OLFSP 21 The
record as a whole does not persuade me the different
course was unlawful
Mayeske encountered the brunt of the changes After
the July 2 discussion with Gannon, and receipt of memo-
randa canceling (then reinstating) OLFSP convention
participation, Mayeske was faced with Gannon's delay in
responding to her August 26 request for his review and
approval of a funding proposal for the next year
Though Mayeske finally obtained Gannon's oral author-
ity to send the new proposal on September 7, she was
unable to successfully elicit Gannon's customary cover
letter recommending FEMA's approval of the proposal,
although Mayeske prepared and submitted such a letter
to Gannon for his signature on September 10
21 I acknowledge evidence exists that suggestions had been made to
transfer the program to NFA, and that availability of funding was ques-
tionable, in years before 1986 However, It was in 1986 that these Issues
became more of a reality than before, having resulted from the comple-
tion of the audit and WCG study
The events described in the paragraph immediately
above led Mayeske to write her September 22 memoran-
dum to Gannon I find that document (the full text of
which appears in section IV, A, above) possesses an anx-
ious quality It pointedly asks Gannon whether or not
Respondent desired to continue OLFSP's sponsorship
Mayeske's memorandum ends with language reflecting
her question is not rhetorical because she wrote "imme-
diate action" would be "based upon [Respondent's] deci-
sion" Gannon placed the OLFSP question on the execu-
tive board's agenda immediately after receipt of
Mayeske's September 22 memorandum
Arguably, Gannon's move is susceptible to the inter-
pretation it was retaliatory and that Gannon seized upon
the fortuitous receipt of Mayeske's September 22 memo-
randum to shift responsibility for his allegedly unlawful
intentions to the executive board in a subtle way How-
ever, the record reflects the executive board was not
convened only to consider the OLFSP issue Instead,
Mayeske's memorandum coincided with a regular quar-
terly executive board meeting scheduled for September
23-26
Also most significant is the fact that the record not
only is bare of evidence even slightly suggestive of collu-
sion between Gannon and other executive board mem-
bers, but affirmatively reveals (through executive board
member Hill's credited and impressive testimony) that
the audit and WCG recommendations were among the
items debated before the motion to discontinue OLFSP
sponsorship was overwhelmingly (15 to 2) approved
There is not a scintilla of evidence that any reference
to the activities relating to the formation of the associa-
tion of grant employees or the consultation of OLFSP
personnel with an attorney, both 3 months earlier, was
made at any executive board meeting (or to any member
of that board) prior to taking the discontinuation vote
There is also no evidence that Gannon, or any other Re-
spondent representative, lobbied or otherwise sought to
influence the outcome of the executive board vote, or
took a prevote poll to determine its results In sum, I can
find no nexus between the employees' protected activi-
ties and the executive board vote
In the above-described context, I conclude and find
that Gannon's action in submitting the OLFSP issue to
the executive board was nothing more than Gannon's
way to obtain a definitive and objective response to
Mayeske's September 22 question regarding OLFSP's
future—an answer which presumably might have avoid-
ed the very challenge being made here that it was his
personal predilections which determined whether Re-
spondent would continue its OLFSP sponsorship
Accordingly, I find insufficient evidence to conclude
Respondent's decision to terminate its OLFSP sponsor-
ship, and termination of employment of personnel who
worked in that program was motivated by considerations
which are discriminatory within the meaning of Section
8(a)(3) and (1) of the Act
I also find, in the event my conclusion concerning the
existence of a discriminatory motive is reversed by an
appellate tribunal, that Respondent has successfully ful-
filled its burden of showing that OLFSP would have
874 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
been terminated even in the absence of the employees'
failure to join in formation of the grant employee asso-
ciation or their seeking legal advice
CONCLUSIONS OF LAW
1 International Association of Firefighters, AFL-CIO
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act
2 Respondent did not violate Section 8(a)(2) of the
Act in any respect alleged in the complaint
3 Respondent did not violate Section 8(a)(3) of the
Act in any respect alleged in the complaint
4 Respondent interfered with, restrained, and coerced
employees in violation of Section 8(a)(1) of the Act by
encouraging them to form an association, causing an as-
sociation agreement to be drafted, and soliciting employ-
ees' signatures on an association agreement, the purpose
of which was to engage in collective bargaining with Re-
spondent
5 The above unfair labor practice affects commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
My finding that Respondent has engaged in unlawful
interference with, and restraint and coercion of, employ-
ees requires that it be ordered to cease and desist from
that activity and post an appropriate notice by which it
agrees not to again engage in the instant violation
No evidence was presented to show Respondent has a
proclivity to violate the Act Accordingly, there is no
need for my Order to contain broad proscriptive lan-
guage Instead, Respondent shall be ordered to refrain
from, in any like or related manner, engaging in the con-
duct found violative here
Because former OLFSP personnel Shivanna King,
David Martin, Betty Jo Mayeske, and Betty Ann Morri-
son are no longer employed by Respondent, and there-
fore are unable to view the notice which Respondent
will be ordered to post, I find it appropriate to order Re-
spondent to mail a copy of such posted notice to each of
these individuals See Transportation Management Corp,
257 NLRB 760, 771 (1981), enfd 686 F 2d 63 (1st Cir
1982)
On the above findings of fact and conclusions of law,
and on the entire record, I issue the following recom-
mended22 .
- ORDER
The Respondent, International Association of Fire-
fighters, AFL-CIO, Washington, D C, its officers,
agents, successors, and assigns, shall
1 Cease and desist from
(a) Assisting, by any means, in the formation of an em-
ployee association for the purpose of engaging with it in
collective bargaining on behalf of any of its employees
32 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
(b) In any like or related manner interfering with, ret.
straining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Post at its principal office in Washington, D C,
copies of the attached notice marked "Appendix "23
Copies of said notice, on forms provided by the Regional
Director for Region 5, after being signed by Respondent
authorized representative, shall be posted by it immedi-
ately upon receipt, and maintained for 60 consecutive
days, in conspicuous places, including all places where
notices to employees are customarily posted Respondent
shall take reasonable steps to ensure that said notices are
not altered, defaced, or covered by any other material
(b) Mail a signed copy of the "Appendix," within 5
days of its posting as provided in the paragraph immedi-
ately above, to Shivanna King, David Martin, Betty Jo
Mayeske, and Betty Ann Morrison Upon completion of
such mailing, Respondent shall forthwith submit to the
Regional Director a written certification that the mailing
has been accomplished, and showing the addresses to
which such mailing was directed
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply
IT IS FURTHER ORDERED that the complaint is dis-
missed with respect to allegations upon which no viola-
tion has been found
23 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"
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered
us to post and abide by this notice
Section 7 of the Act gives employees these rights
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these protect-
ed concerted activities
WE WILL NOT interfere with, restrain, or coerce you
by rendering unlawful assistance to the formation of any
labor organization which would represent you in collec-
tive bargaining with us, nor will we cause the drafting of
FIREFIGHTERS 875
an agreement designed to form such a labor organization,
nor solicit your signatures on such an agreement
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the free exercise of any
of the rights listed at the top of this notice
INTERNATIONAL ASSOCIATION OF FIRE-
FIGHTERS, AFL-CIO