Iron Workers Local 15

National Labor Relations Board - Board Decisions

Mar 11, 1986

278 N.L.R.B. 914 (N.L.R.B. 1986)

914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Northern District of Connecticut Iron Workers
Local Union No. 15 , Joint Apprenticeship Com-
mittee and Bruce Gilbert. Case 39-CA-2434
11 March 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 8 August 1985 Administrative Law Judge
Harold B. Lawrence issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a reply brief to
the Respondent's exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings," and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent , Northern
District of Connecticut Iron Workers Local Union
No. 15, the Joint Apprenticeship Committee, Hart-
ford, Connecticut , its officers, agents, and repre-
sentatives, shall take the action set forth in the
Order.
' The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cit. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
Astrid Garcia, Esq., for the General Counsel.
Burton S. Rosenberg Esq., of Hamden, Connecticut, for
the Union.
Bruce Gilbert, pro se, of Colchester, Connecticut.
DECISION
STATEMENT OF THE CASE
HAROLD B . LAWRENCE, Administrative Law Judge.
This case was heard by me at Hartford, Connecticut, on
25, 26, and 27 March 1985 . The charge and amended
charge were filed by Bruce Gilbert on 29 November
1984 and 31 January 1985, respectively , and the com-
plaint issued on 31 January 1985 . The substantive basis of
the complaint, as amended at the hearing, is that the
Northern District of Connecticut Iron Workers Local
Union No. 15, Joint Apprenticeship Committee, the Re-
spondent, violated Section 8(a)(3) and (1) of the National
Labor Relations Act by discharging Gilbert from his po-
sition as coordinator or training director because of his
internal union activities . The Respondent asserts that
such considerations played no part in the dismissal and
that Gilbert was dismissed solely because he was not per-
forming his duties properly.
The parties were afforded full opportunity to be heard,
to call, examine , and cross-examine witnesses , and to in-
troduce relevant evidence . Posthearing briefs have been
filed on behalf of the General Counsel and on behalf of
the Respondent.
On the entire record, including my observation of the
demeanor of the witnesses , and after consideration of the
briefs filed by the General Counsel and the Respondent,
I make the following
FINDINGS OF FACT
1. JURISDICTION
There is no jurisdictional issue, the Respondent having
admitted in its answer the allegations of the complaint to
the effect that Respondent is, and at all pertinent times
has been , an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and that
Local Union No. 424 and Local Union No. 15, Interna-
tional Association of Bridge, Structural and Ornamental
Iron Workers are labor organizations within the meaning
of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES'
A. The Joint Apprenticeship Committee
Local 15 and Local 424 are and have been parties to
collective-bargaining agreements with the Labor Rela-
tions Division , Associated General Contractors, an asso-
ciation made up of construction firms specializing in steel
erection and related services . These agreements have
provided for the maintenance of apprentice and journey-
man training programs which are operated by the Joint
Apprenticeship Committee (JAC), an unincorporated as-
sociation, whose members are appointed by Local 15 and
by Associated General Contractors . It is supposed to be
made up of three management and three labor members,
who serve without compensation for 3-year terms. It is
financed through an educational fund which it estab-
lished by the collective-bargaining agreements.
The JAC establishes and oversees the operations of
schools for apprentices and journeymen , who attend
night classes 2 nights a week . Instruction is pursuant to
guidelines published by the International Association of
Bridge , Structural and Ornamental Ironworkers. The
JAC periodically upgrades apprentices and, on their suc-
cessful completion of the course, notifies the Internation-
al, which issues their journeymen's books.
' The matters narrated without evidentiary comment are those facts
found by me on the basis of admissions in the answer , data contained in
the exhibits, stipulations between or concessions by counsel , undisputed
or uncontradicted testimony, and, in instances where conflicts in the testi-
mony did not warrant discussion , the testimony which I have credited.
278 NLRB No. 131
IRON WORKERS LOCAL 15 915
'B. Gilbert's Job
The actual supervision and implementation of training
is carried on for the JAC by an executive assistant
known as an apprentice coordinator and, sometimes,
since the institution of journeyman training , as a training
director. Gilbert became the coordinator in 1979, having
applied for the position after 25 years as an ironworker.
He submitted a resume and was selected from a field of
16 to 18 candidates . For the next 5 five years he con-
ducted the routine day-to-day operations of the appren-
ticeship program, overseeing all aspects of it for each
class, from the time the JAC would authorize the institu-
tion of a class of apprentices until they graduated 3 years
later. He ran both "the apprenticeship school and the
journeymen's -school ." He procured supplies for them.
He placed apprentices for on-the-job experience. He per-
formed various administrative functions in connection
with the program.
C. Gilbert's Discharge
At a meeting of the JAC held on the evening of Tues-
day, 31 July 1984,2 Gilbert was fired by unanimous vote
of the committee , while Gilbert sat outside the meeting
room unaware of what was transpiring . The committee
members who were present that evening were Carl A.
Johnson and Robert McDermott, management . appoint-
ees, and Lloyd Etkin, Wesley E. Smith, and Chester
Hale, labor appointees . Johnson was the chairman.
Gilbert gave the following uncontroverted picture of
his dismissal . On the evening in question, he presented to
the JAC some bills and his letter to the employers updat-
ing the apprentices:
Q. Now, what happened after you presented-
you came into the meeting , you presented the
letter-
A. I presented that letter along with my bills. •I
was immediately asked to leave the room by Carl
Johnson. I went out into the other part of the union
hall and I sat there for about-I don't know-ten
minutes, maybe 15 minutes. I was called back in.
Chairman Johnson said to me we no longer need
your services.
I said what do you mean you don't need my
services . He says we don't need you no more,
you're fired. I says for what. He says for the better-
ment of the apprentices . And, that's when I said to
Wes Smith and Chet Hale, the other two members
that was sitting there, what did I ever do to you
guys. I thought you guys were my friends for 20
years. I never did anything to anybody. I ran one of
the best apprentice programs on the east coast. It's
a known fact.
And, all of sudden I'm getting my heart cut out,
for what reason.
JUDGE LAWRENCE: Did they answer?
THE WrrNEss: They gave me no reason again
except that Carl Johnson said it was for the better-
ment of the apprentices.
2 All dates are in 1984 except as otherwise stated.
JUDGE LAWRENCE : Did the other two gentlemen
say anything?
THE WITNESS : They said absolutely nothing.
However, when Gilbert filed an application for unem-
ployment insurance benefits , JAC opposed it, asserting
that Gilbert had been discharged because the JAC was
not satisfied with his monitoring of the apprenticeship
program ; apprentices had been upgraded without follow-
ing state and Federal guidelines ; he had sent out a letter
incorrectly stating the apprenticeship status of an appren-
tice who had entered military service ; and he had failed
to pick up supplies donated by a contractor.
D. The Case that Gilbert's Discharge was Unlawfully
Motivated
1. Animus and threats
For much of the time that Gilbert worked as coordina-
tor the JAC had only four active members . It was Gil-
bert's unenviable position to be working for a committee
composed of a member with whom his relations were
terrible, Lloyd Atkin; two members who had been ap-
pointed by Etkin when Etkin was president of Local 15;
and a fourth member, from the management side, who
may have harbored animus toward Gilbert on 31 July
because of something Gilbert had done 2 weeks before.
On the night of his discharge the JAC consisted of these
four persons and a new member , Robert McDermott,
who was attending his first meeting of the JAC, having
been appointed that very month.
There is no question but that Etkin and Gilbert were
extremely antagonistic towards each other . When Etkin
testified, in the hearing before me , he literally bristled
with hostility toward Gilbert . It is the contention of the
General Counsel that his hostility was born of the politi-
cal wars. Whitey Korenkowicz was president of Local
15 from 1978 to 1981 . Etkin ran against him in 1981 and
was elected. In that campaign , Gilbert ran unopposed for
the office of vice president . Gilbert supported Kor-
enkowicz . In the 1984 election campaign , Gilbert first
announced his candidacy for president, but then
switched his support to Wayne Arey. Etkin, running for
reelection, lost to Arey by 10 votes . Gilbert ran for re-
election as vice president, losing to Dave Oliver. Dennis
Foley, defeating Michael Blackburn , was elected business
agent and financial secretary . The election was held on
28 June . Arey was sworn in on 25 July.
Michael Blackburn testified that the bitterness and an-
tagonism between Etkin and Gilbert seemed at times on
the verge of sparking physical violence . He stated he had
never seen them together when there was not friction.
Significantly, he places the beginning of this state of af-
fairs in January 1981 , which was when Gilbert began ac-
tively campaigning for Korenkowicz ' reelection as presi-
dent. Blackburn - testified that from that time on Etkin
and Gilbert clashed at every local executive board and
membership meeting, with Etkin expressly objecting to
Gilbert's carrying on of campaign activity . Etkin con-
tended that as coordinator he was precluded from such
activity. Etkin's statements frequently went to the ex-
treme of threatening Gilbert's job . According to Black-
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bum, Etkin repeatedly threatened that Gilbert would be
gone ater election time:
And, Lloyd's comments inevitably always end up
with he was going to see Bruce removed as coordi-
nator and as a president , or both, and that he was
going to get him.
Besides Etkin's statements indicating that Gilbert's job
as JAC coordinator was in jeopardy , and his highly criti-
cal comments on Gilbert's job performance, the General
Counsel notes Etkin 's insistence that Gilbert could not be
the coordinator and an officer of the Local at the same
time. I think Etkin must be held to have acted within his
rights in making that objection, both as a union member
and as a member of the JAC. It is pertinent, in those in-
stances, however, to ask whether his criticisms were
nothing more than part of his effort to oust Gilbert from
his job because Gilbert's internal union activities had
been to his detriment. The reasonableness or unreasonab-
leness of the criticism , the manner in which it was put
forth, and indications that Etkin did not seriously believe
them himself are pertinent . An example is his contention
that holding lodge office was inconsistent with the coor-
dinator's job and violated International regulations. Etkin
refused to obtain a ruling from the International on that
point.
There is convincing evidence , mostly uncontroverted,
that Etkin's statements to the effect that he wanted to
have Gilbert fired were often expressly linked to state-
ments by him that it was because of Gilbert's opposition
to him in the two campaigns . When Robert J. Johnson's
term on the JAC was about to expire in 1982 , Etkin,
then president of the Local,. refused to reappoint him.
Johnson, an instructor in the apprentices ' night school,
had been appointed in 1979 by Korenkowicz. Etkin gave
as his reason for refusing to reappoint him the fact that
Johnson was allied with Gilbert and that he, Etkin, was
"cleaning house." In a conversation just before the start
of a JAC meeting, he told Wheeler, a labor member of
the committee, that "when Bruce's time came that he
was going to have him replaced, somebody else could
have his job also." (He was referring to Wheeler.) Gil-
bert testified that over a period of a year Etkin threat-
ened Gilbert with loss of his job if he continued to seek
the presidency of the Local. On the day of the election,
28 June 1984, Etkin taunted Gilbert: "No matter how it
comes out today, Bruce, you're going to be a loser." Gil-
bert testified that Etkin explained that he was going to
get Gilbert's job just as he had been promising all year.
2. The composition of the JAC
The JAC members present at the meeting of 31 July
were Etkin , who had appointed himself on 20 September
1983 , while he was still president of Local 15; Chester
Hale, who had been appointed by Etkin in 1981 and
whose term was due to expire on 16 October; Wesley
Smith , who had been appointed by Etkin in 1982; Carl
Johnson, of Berlin Steel , the chairman ; and Robert
McDermott, a management member appointed in July.
Michael Conte, appointed by management in late 1983,
appears to have still been a member, but he was not
present at the meeting on 31 July.
The close liaison between Etkin and the two other
union members , as claimed by the General Counsel, is
apparent . Etkin appears to have exerted an influence on
the management members as well, for reasons which are
not clear. It may have been for a reason as simple as the
.fact that Etkin showed great interest in the affairs of the
apprenticeship program . Whatever the reason was, how-
ever, it is clear that Etkin's arrival on the committee re-
sulted in significant changes in practice.
When Gilbert got the job in 1979, the JAC was made
up of Carl Johnson and two other members from man-
agement . The labor representatives were Michael Black-
burn, Whitey Korenkowicz (president of the Local), and
a third member. At that time, the JAC actually met
every 3 or 4 months, in meetings which were scheduled
by the coordinator. After Etkin joined the JAC on 20
September 1983, it began meeting every month . Accord-
ing to Gilbert, whose testimony was disputed, the meet-
ings would last from 7 to 11 p. m. or later, out of which
time only 10 minutes would be devoted to the appren-
ticeship program, and the rest would be devoted to an
inquisition respecting his bills , use of credit cards, and
numerous matters which had formerly been routinely ap-
proved , and to questions regarding his participation in
the union election campaign of 1983-1984. Wesley E.
Smith, a member of the JAC who had been appointed by
Etkin, denied that there had been such goings on, but it
is apparent from the testimony of several witnesses, in-
cluding Etkin , that an extensive inquiry was launched
into Gilbert's expenditures and activities . There is no
question but that a new spirit moved the JAC.
The General Counsel also contends that there existed a
specific reason for animosity on the part of Carl Johnson
towards Gilbert. Testimony was adduced from Black-
burn to the effect that he filed protests with the Interna-
tional following his defeat in the 1984 elections, which
were held for financial secretary, treasurer, and business
agent . One of his grounds was that Carl Johnson had
voted and had actively campaigned against Blackburn.
Johnson was an officer and, according to Blackburn, a
part owner of Berlin Steel, but he held. a union card in
Local 15 . The International sent a general organizer to
conduct an inquiry. At a hearing held in mid-July Gil-
bert testified in support of Blackburn's protest.
This fact, in and of itself, might not be a persuasive ex-
planation for Johnson's vote to discharge Gilbert 2
weeks later . Blackburn contested the election results on
several grounds and there is no evidence that Gilbert's
testimony related to Johnson specifically. In fact, there is
no evidence at all of the substance of his testimony at
that hearing. It is clear, however, that Blackburn and
Johnson were at odds and that Gilbert testified at the
behest of Blackburn . As will appear below , I was trou-
bled by Johnson's testimony . Had it presented a lucid
picture of a committee member voting to discharge an
unsatisfactory coordinator for well-defined reasons, this
incident would have no significance . However, Johnson's
testimony was of an altogether different character. Con-
sequently, the evidence of some cause for animosity on
IRON WORKERS LOCAL 15
his part toward Gilbert must be considered , along with
the rest of the evidence in the record , in evaluating the
events of 31 July.
(The General Counsel's suggestion that McDermott, a
new member of the committee , simply went along with
the majority is unjustified speculation . McDermott
should have been called to testify if there was any reason
to believe that his vote had been irresponsible . The fail-
ure to call him must count against the General Counsel's
case.)
3. The timing of the discharge
The survey of the committee members' identities must
be considered together with the timing of Gilbert's dis-
charge and the confluence of events on the calendar.
Etkin's term of office as president of Local 15 expired
in late July. Wayne Arey was sworn in as president on
25 July. Chester Hale's term on the JAC was due to
expire in October and it could be anticipated that Arey
would follow his predecessor's model by appointing him-
self to fill the vacancy. Manifestly there would be a less-
ening of Etkin 's influence thereafter.
What occurred, therefore, is the discharge of Gilbert
at a point in time when the composition of the commit-
tee was about to undergo a significant change from
Etkin's point of view.
4. Failure to state reasons at the time of discharge
The previously quoted description of the event of the
discharge given by Gilbert in his testimony is not contro-
verted by any other witness . What emerges most clearly
from Gilbert's account is the failure of the JAC members
to state any reason to him for their action and the
abruptness with which it occurred . He was told only
that he was being discharged "for the betterment of the
apprentices ." He was not told any respect in which his
continuance in the job would be to their - detriment or in
which his removal would be to their benefit.
Even when Arey called Johnson for an explanation,
the only answer he got from Johnson was that they had
thought it would be best for the apprenticeship program.
In September he got the same answer when he addressed
an inquiry to the board (Johnson, Etkin, Hale, and Smith
were present). I infer from the failure of the committee
to specify their reasons for discharging him that the
reason was an unlawful one.
5. Abruptness of discharge
When the JAC meeting began on the evening of 31
July, there was no intimation that Gilbert was about to
be ousted from a job which he had held for about • 5
years . There had never been a suggestion made in any
prior meeting of the committee that Gilbert be dis-
charged, let alone be replaced by any particular candi-
date for the position.
What transpired was therefore truly extraordinary:
Gilbert was sent out of the room , a discussion took
place, assertedly respecting his upgrading of apprentices
without advance approval by the committee , a motion to
fire Gilbert was made and passed , and a motion to hire a
named replacement was also passed.
917
The JAC's action was so abrupt that, notwithstanding
the harshness of its behavior towards him, the committee
had to ask Gilbert to remain at his post for the remainder
of the week so that the transition would be orderly. Ac-
cording to Chester Hale, the appointment of Thomas J.
Milne as coordinator effective 1 August was only provi-
sional, as no one could come up with a name because
they were "taken by surprise."
The evidence in the record presents a clear picture of
two men, Gilbert and Etkin , on opposite sides politically
in union affairs , engaged in periodic battles to secure
union office for themselves and those associated with
them, and bristling with hostility towards each other.
The evidence shows that over the course of a consider-
able period of time , Etkin made numerous statements to
the effect that he would pry Gilbert loose from his job as
JAC coordinator and that, in addition, he made state-
ments linking that intention to the fact that Gilbert had
worked against him in the Union. Etkin's.campaign of
criticism against Gilbert began when Gilbert started
working in support of his political foes and against him
in January 1981 . In July 1984 the JAC, on the labor side,
consisted of Etkin and two of his own appointees to the
committee . The management representatives consisted of
Carl Johnson , against whose position in an investigation
of a union election Gilbert testified a scant 2 weeks
before his discharge, and McDermott , who, on 31 July,
was attending his first JAC meeting . The discharge reso-
lution was offered at a time when Hale 's term was draw-
ing to a close and an Etkin adversary , Arey, was pre-
sumably going to replace him (as in fact he subsequently
did). A diminution of Etkin's influence in the committee
was inevitable . Etkin's dissatisfaction with Gilbert's work
began to be expressed after Gilbert worked against Etkin
in an election campaign . Thus, their bitter relations,
Etkin's prior statements, the composition of the commit-
tee in July and impending changes, and the timing of the
discharge all assume great importance in and of them-
selves and in connection with the utter failure of Gil-
bert's employers to state any meaningful reason for dis-
charging him at the time they did so.
A convincing prima facie case of violation of the Act
was thus made out and placed upon the Respondent the
burden of going forward with proof that Gilbert was dis-
charged for bona fide legal reasons, whether or not the
circumstances alleged by the General Counsel also exist-
ed.
D. The Inadequacy of Respondent's Explanation
Carl Johnson , the chairman of the JAC, testified re-
specting the reasons for the discharge of Gilbert.
• He asserted that the reasons for Gilbert's discharge
were Gilbert's practice of upgrading apprentices without
the advance approval of the committee, an occurrence
known as the Hoops incident which took place in the fall
of 1983 , Gilbert's failure to make sufficiently frequent
visits to the jobsites , his failure to give the apprentices
enough attention , and the failure to pick up a supply of
welding rods donated by a contractor. He expressly lim-
ited the rationale for the act:
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
JUDGE LAWRENCE: ... Are there any reasons
other than the reasons you have already stated for
Mr. Gilbert's dismissal?
THE WITNESS: No, basically, failure to,follow the
direction of the JAC as manifested in those inci-
dents is the reason he was discharged.
Q. (Ms. Garcia, resuming) Did you ever give
anyone else any other reasons for discharging Mr.
Gilbert other than the ones you have given me
now?
A. The reasons for the discharge are as stated.
Subsequently we found out some additional reasons.
Some additional things that were not favorable in
the conduct of an Apprentice Coordinator.
Q. When?
A. But, at the time we had no other reasons.
Q. By the time of discharge?
A. That is right.
Q. When did you fmd these other reasons that
you are talking about?
A. In-subsequent of the discharge in August,
September, October of '84.
1. Upgrading of apprentices
One of the most important reasons asserted for dis-
charging Gilbert was because he continued to upgrade
apprentices without advance approval of the JAC. This
was asserted, especially in Etkin's testimony, to have
been an action on Gilbert's part, taken in July 1984 in
advance of the JAC meeting scheduled for 31 July,
which angered and outraged the committee members be-
cause it was done in direct violation of instructions
which he had been given.
I fmd that I am unable to give credence to this posi-
tion of the Respondent. To begin with, such instructions,
had they been given, would have been contrary to long-
standing existing practice and would have created serious
disruption. Gilbert's explanation in this regard was not
controverted. The Respondent's position is based on
what I perceive to be deliberate obfuscation respecting
the process of educating and elevating apprentices.
The process of elevating apprentices to journeyman
status involves several steps. They are eligible on com-
pleting successfully 3000 hours of training. The practice
had been that a meeting would be scheduled with the
JAC for 20 or 30 apprentices at a time, at which they
would be introduced to the committee individually at the
rate of about three an hour. Their records would be
before the committee. The JAC members would chat
with them about the program. A further meeting would
be scheduled for approximately 1 month later with an
examining committee consisting of three members. The
apprentices would complete a written questionnaire or
examination and then be examined orally by the examina-
tion committee, which would score the written and oral
examinations . The JAC would furnish scores for its own
interviews with the candidates. When an apprentice
passed, his papers were sent to the International, and he
was issued a book as a journeyman ironworker.
It would take time to set up these meetings and con-
duct the examinations, as'a result of which the practice
developed of advancing or upgrading the apprentices in-
sofar as their wage rates were concerned as a routine
matter, independently of the actual upgrading of status.
If this were not done, apprentices, who were entitled to
semiannual wage increases while they were in training if
they completed a particular number of hours, would be
underpaid. For this reason, Gilbert gave notification to
the employers of the apprentices' entitlement to their
new and higher wage rate on an automatic basis at the
appropriate time. His doing so did not elevate them to
journeyman status-only the committee could do that-
but it got their money for,them.
Blackburn, who had been chairman of the JAC from
late 1978 to late 1982 or early 1983, testified that appren-
tices were upgraded every 6 months by the coordinator,
who sent notices out to the contractors without advising
the JAC. He testified that there was never any discussion
about upgrading in meetings of the committee.
As a practical matter the wage increments had to be
handled as a routine matter. As Gilbert testified, he had
to send 'letters to the- contractors in order to make sure
the apprentices received their increases, and to avoid
bookkeeping confusion in the contractors' offices. The
increments were arranged for 1 January and 1 July and
could not be deferred pending the infrequent meetings of
the JAC without causing great disruption. Considering
that instructions to Gilbert not to continue administra-
tively expediting the pay increases of the apprentices
would have been an illogical and unlikely action on the
part of the JAC, it is not surprising that the evidence ac-
tually fails to support the Respondent's contention that
he was given and violated such instructions.
Carl Johnson had been a member of the JAC for ap-
proximately 10 years at the time of the hearing. He is a
vice president of Berlin Steel and Blackburn referred to
him as part owner of that company. Superficially, he
would appear to have been the most disinterested and
impartial witness in the proceedings. His testimony dis-
abused me of any such notion.
Johnson asserted that Gilbert "was specifically told
that whenever the name of the committee was used on a
piece of paper or any decision was made" that should
have been decided by the committee, that he was to spe-
cifically check with us first." Yet he conceded that the
coordinator, as the executive arm of the committee, in
past years had routinely upgraded the pay of apprentices
without being censured for having done so. He asserted
that sometimes the committee approved the upgrading
and sometimes it was done as a matter of course. He
conceded that apprentices were upgraded once or twice
a year-in 6-month stages-and that he had seen Gil-
bert's form letter notifying the employers. Nevertheless,
he asserted that though it had been left to the coordina-
tor to determine who should or should not be upgraded
until June or July 1983, at that time "the committee
began to take a much more active role and began to get
more involved in-specifically wanted to get more in-
volved with the apprentices and see actually how they
were doing more closely than they had been." Yet, when
IRON WORKERS LOCAL 15 919
pressed as to whether Gilbert had ever been given ex-
plicit instructions not to upgrade the pay of apprentices
without checking with the committee, his response at
one point in his testimony was that he did not remember,
and at another point that he "believed" such instructions
had been given. This supposedly occurred at a meeting
of the JAC on 7 February at which the JAC reviewed
with Gilbert a list of things it wanted done-more visits
to jobsites and apprentices, and consultation with fore-
men to see how the apprentices were coming along. The
minutes of the meeting, however, do not indicate such a
specific instruction, although they indicate that "Training
Director Gilbert has been advised by the Committee of
his duties. That the position will specifically exclude any-
thing other than responsibilities involved in apprentice
and journeyman training." (When asked why they
waited until February 1984 to curb Gilbert, all Johnson
could say was, "Sometimes it had been brought before
the committee.")
Johnson could not testify to the verbatim contents of
the instructions to Gilbert and could only say what he
thought had been said to Gilbert. His uncertain recital in-
cluded a prohibition against "raising apprentices up."
However, Chester Hale also conceded that Gilbert had
never been specifically told not to upgrade apprentices
without the JAC's approval. He would go only so far as
to say that Gilbert "was just told not to do anything
without first notifying us." The meaning of that kind of
instruction to an administrator who is running a program
on a daily basis in accordance with set practice for a
committee that only meets monthly was not explained.
No one contended that it was clearly applicable to a
salary updating process which took place semiannually
on 1 January and 1 July. The matter was finally laid to
rest when Etkin was asked whether Gilbert, prior to
having upgraded the last group of apprentices, had been
specifically instructed not to do so without advance con-
sultation with the committee . His responses to repeated
questions were so evasive that I had to intervene in the
examination:
JUDGE LAWRENCE: Mr. Etkin, a question has
been put to you at least five times and you have not
answered it. I am going to try what must be at least
the sixth time.
I would like you to be very careful in your re-
sponse because it is an important question. The
committee got very mad because Mr. Gilbert up-
graded a class of apprentices.
The question being put to you is, before he did it,
before he did it and got them so mad, had the com-
mittee specifically said , Gilbert, do not do that on
your own, come to us first'?'
Now, did they do it or did they not do it? That is
the question we want from you. -
THE WITNESS: You want a yes or no on that.
JUDGE LAWRENCE: Yes.
THE WITNESS: To the best of my ability, I-I-I
say no.
2. The Hoops incident
In the fall of 1983 an apprentice, who was the son of a
longtime union member entered military service. Gilbert
wrote a letter to the effect that his apprenticeship was
thereby terminated. He was in error. The apprentice was
supposed to be reclassified. The apprentice's father com-
plained, and Etkin made himself champion of the cause,
which enabled him to pillory Gilbert for an obvious and
careless error.
Patently, however, Gilbert's error did not constitute a
violation of instructions from the JAC. He made an error
which Etkin fueled into an uproar.
Michael Conte, a management member of the JAC
from 1963 to 1973 and from September 1973 to May
1984, testified that the Hoops matter was pressed-by
Etkin and his testimony makes it clear that, aside from
Etkin, none of the committee members became inordi-
nately excited about the matter: they simply reviewed
the matter and decided that the correct procedure for
classifying apprentices who entered military service was
something that had to be looked into. Gilbert was not
reprimanded by the committee for his handling of the
matter up to that point.
Johnson asserted as the basic reason for Gilbert's dis-
charge "his failure to follow the direction of the JAC as
manifested in those incidents ...." There were no prior
instructions in the Hoops matter. When the matter was
raised noisily, by Etkin, the proper procedures were as-
certained and complied with. I could understand how an
incident of this type could lessen an employer's confi-
dence in an employee, but the JAC members who testi-
fied did not support their action on that ground but on
the ground that he disobeyed instructions. The Hoops
situation was not a case of disobedience to instructions,
but was nevertheless cited as such.
3. Failure to visit jobsites and to check apprentices'
progress
There is evidence that Gilbert only rarely visited cer-
tain jobsites. There is no evidence that he did not moni-
tor the progress of apprentices.
There was evidence of reports from foremen that Gil-
bert did not visit with sufficient frequency a jobsite with
12 apprentices on it, and Johnson discovered, on making
inquiry, that Gilbert had rarely visited two of the largest
jobs which had the most men and apprentices on them.
On closer examination, however , even by Johnson's
own testimony, the complaints appear insubstantial. The
two large jobs referred to by Johnson had a total of
three apprentices working on them , at a time when 50
men were in apprenticeship training. Gilbert testified that
he put his time in at the trouble spots, not at sites where
things were running smoothly.
When Johnson was asked whether there were any
standards or criteria which would indicate how often
Gilbert was supposed to visit any particular jobsite, his
response was, "No, it is left to the discretion of the coor-
dinator and/or the committee."
Conte testified that the comments regarding Gilbert's
supposed inattention to jobsite visitation came from
Etkin.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the absence of specific visitation requirements, and
considering Gilbert's comments on the use of his time, it
appears that the asserted ground for discharge is alto-
gether unreasonable . It appears more so in the light of
the fact that all of the complaints relied on by the Re-
spondent were supposed to have been made in the fall of
1983. Comment has already been made about the ques-
tionable timing of the discharge. No explanation was af-
forded for the Respondent having taken action in July
1984 for misfeasances supposedly committed in the fall of
1983, but in any event their magnitude and significance is
diminished by the delay.
4. Failure to pick up welding rods
A contractor had some unneeded welding rods at one
of its jobsites and donated them to the apprenticeship
training program . According to Etkin, the word that the
rods were available came to Wesley Smith, who was a
member of the JAC, and Smith left word at the office of
Local 15 for Gilbert to pick up the rods. Gilbert testified
that Etkin himself left the message . Gilbert did not pick
up the rods and they were finally picked up by members
of another trade and thus lost to the apprenticeship pro-
gram.
The Respondent's witnesses, especially Etkin, treated
this as a major failure on the part of Gilbert to obey
orders . Etkin noted that the need for speed was apparent
at the outset, warning having been given by the contrac-
tor that if the apprenticeship program did not pick up
the rods someone else would , and that Gilbert failed to
move on it for a period of a month.
The assertion of Gilbert's failure to pick up the rods as
one of the influential factors in the JAC's decision to dis-
charge him smacks of insincerity.
At the meeting held on 31 July no one asked Gilbert
why he had not picked up the rods. Gilbert introduced
evidence at the hearing which tended to show that he
did not believe, with good reason, that the material was
suitable for use in the training program . Whether his
belief was justified or not, he was never asked about it
by the committee. The failure to ask him leads me to be-
lieve that its importance has been highly exaggerated
since his discharge became a legal issue . Johnson, as
always somewhat unsure of his recollection of the perti-
nent events, seemed to believe that the matter of the rods
came up at an earlier JAC meeting, but it was only one
item on a long agenda and Gilbert was simply told to
pick up the rods, without further discussion . It was not a
major topic.
Johnson's testimony was troublesome , however, on the
question of the relationship of this incident to the dis-
charge . He testified that it only became important later
as one of the things Gilbert failed to do which he had
been directed to do. Johnson , who had voted for Gil-
bert's discharge, gave as his- understanding of the expla-
nation for his failure to pick up the rods "[T]hat he had
just never gotten to it." It turned out, however, that this
was what Johnson presumed had been the reason: that he
just did not do it, without any reason . However, he
never asked Gilbert for an explanation , asserting that
there was no reason to ask since the rods were gone at
that point. Though he stated he was curious as to the
reasons, he made no effort to find out. Then he said,
"Frankly, I don't remember a lot of this particular inci-
dent." He had no conception of the reason for Gilbert's
not picking up the rods other than his own surmise.
.Johnson's explanation of his action, to the extent that
he could remember a reason, is extremely important be-
cause of the strain it places on the credibility of all of the
witnesses to this particular facet of the case. The story
was that the JAC was furious : Gilbert had been told to
pick up donated welding rods for the training program,
had failed to do so , and as a result someone else picked
them up and they were lost to the program.
Etkin was asked whether , at the time Gilbert was
fired, the JAC knew that the rods had not been picked
up. Considering that this was asserted as a reason for
Gilbert's discharge , and that Johnson had not bothered
asking Gilbert about it because the rods were gone al-
ready, Etkin's answer should have been straightforward
and in the affirmative . Instead, he gave testimony which
demonstrated his proclivity for telling whatever story
would tend to justify the action taken against Gilbert.
He started by testifying that Milne was sent to get the
rods, after his appointment as acting coordinator. Ac-
cording to Etkin , he "threw the name on the table." It
thus appears that the JAC understood the rods still to be
available . Etkin went on to testify that when the coordi-
nator got there, the rods were already gone . If that is
what happened, then the JAC obviously acted only on
the basis of Gilbert not having obeyed the direction to
pick them up.
Not satisfied with that, Etkin insisted that they already
knew the rods were gone when they fired Gilbert.
Though he testified that Milne was sent to pick up the
rods "on a Monday ," which had to be the Monday after
the Tuesday on which Gilbert was fired, Etkin testified
that he knew the rods were gone because an engineer at
the site-the day steward-told him the engineers had
picked up the rods . He could not remember the exact
date of the conversation with the steward, but he was
sure it was within the week that Gilbert was fired "be-
cause Milne was hired and he went down on a Monday,
I think, and we-I already knew the rods were gone be-
cause the steward." That meant that Etkin had let Milne
go down to get the rods which Etkin knew were not
there. He let the JAC vote to send Milne for them.
Etkin's inner turmoil while he gave this testimony must
have been excruciating, for he sought refuge in the prop-
osition that though he learned the rods were gone after
Tuesday evening , 31 July, when Gilbert was fired, he
found out about it later that same week-and since Gil-
bert was paid to the end of the week , the fact was
known before he was fired:
Q. So you didn't know until , let's say , Thursday
or Friday of that week?
A. I knew before then.
Q. I'm sorry?
A. I knew before then.
Q. When did you know it?
A. In that week, the week that he was let go.
IRON WORKERS LOCAL 15
Q. My question to you is, he was let go on July
31st which is a Tuesday . Did you know on that
Monday or Tuesday that the rods were gone?
A. I've got to correct you. He wasn't let go on a
Tuesday. He was paid up until Friday . He had the
week to finish out.
Q. So, when did you learn about the rods?
A. It was-it could have been Wednesday or
Thursday.
Etkin excused the failure to ask Gilbert why he had
not picked up the rods on the ground that Gilbert had
angrily stalked out of the committee meeting room after
being fired , a fact which Gilbert readily admitted . Plain-
ly, if the members of the JAC had had any real curiosity
and sense of fairness about the matter, they would have
asked him before they fired him. Milne would not have
waited 5 days to pick them up if there had been a genu-
ine need for haste . Each of Etkin's inconsistent stories is
incredible-that the committee sent someone to pick up
rods that they knew had already been taken by others,
and that their hurriedly elected successor to Gilbert tar-
ried for 5 days before he went for them.
I do not credit the testimony of Etkin and Johnson re-
specting this incident . There is.convincing evidence that
they acted contrary to information which they had or
ought to have had.
Stephen Fazikias, an owner/operator in the welding
field and the department head welder at Southeastern
Technology, who helped start the welding program for
Local 15 in September 1983 and taught in it , testified
that Gilbert, when Fazikias notified him what was
needed , worked very hard to get material for the use of
the program; that the westinghouse rods, the donated
material which Gilbert failed to pick up , had been used
before and found unsuitable for training purposes for
technical reasons , and because the apprentices were
tested at the end of the program with a different type of
welding rod; that the material that had been used before,
and had been found deficient, had been obtained for the
training program as a result of negotiations by Gilbert
with the contractor, and that, because it was unsuitable,
existing supplies of it had had to be abandoned; and that
other material Gilbert had obtained for the program had
been used successfully.
Gilbert testified that another instructor , besides Fazi-
kias, had also complained about the rods donated previ-
ously, asserting that Westinghouse rods were the wrong
kind of rods to train apprentices on. Gilbert testified that
when Etkin left the message about the new donation he
called Etkin back and told him that they already had 500
pounds, picked up in February , that were unusable. He
told Etkin there was no sense in picking up more and re-
peating the first mistake . Etkin was adamant , but Gilbert
told him he would only take orders from the JAC acting
as a committee, and not from individual members.
In short, this was not inattention or oversight . Gilbert
did not pick up the rods because they were worthless to
the program , and the JAC, if it did not actually know
that, should have known it . Etkin made numerous inquir-
ies of Fazikias regarding the program, and should have
921
had direct knowledge that the earlier rods had not been
used and were unusable.
5. Conclusion
I find that the basic reason cited by the Respondent
for the discharge of Gilbert-that he had failed to
comply with instructions of the full Joint Apprenticeship
Committee-is pretextual . The Respondent's witnesses
uniformly cited the above -mentioned instances as exam-
ples of Gilbert's noncompliance , and in each instance
either I find evidence that completely controverts their
claim, or I find that their position, considered on its own
merits, fails to make sense . Thus, the Hoops incident, se-
rious and embarassing as it was, appeared to me to have
been blown up out of all proportion by Etkin for the ex-
press purpose of getting Gilbert's scalp . It was not a re-
current situation and obviously had not resulted from a
failure to follow instructions given to Gilbert by the
JAC.
In the case of the welding rods, the utility of the do-
nated rods remains an open question in the, light of Gil-
bert 's showing that they may not have been worth the
trouble of picking up. In any event , there is substantial
evidence that the matter was not a priority item on the
agenda of the JAC and was of little importance until the
JAC had to justify its action in firing Gilbert. The testi-
mony of the JAC members convinces me that their origi-
nal assertion that they were upset that he had let the
rods be taken by somebody else is simply not true. Their
own testimony showed that , at the time they fired Gil-
bert, they did not know that it was already too late to
pick up the rods, and they sent Milne to get them.
(Milne, who was on the stand on two separate occasions
during the hearing , gave no testimony at all on the point,
having been asked by neither side.)
All of the complaints , which are supposed to have
been received from foremen, that Gilbert rarely visited
the training sites date from the autumn of 1983. There
appears to have been no reason to think Gilbert was
remiss in that respect between then and 31 July, but the
JAC went back to 1983 to find justification for their
action in dismissing him. Gilbert's own comments on the
matter convinced me that the training at the one or two
jobsites involved in the complaints (assuming complaints
were in fact received) did not require frequent supervi-
sion by.him.
Gilbert's action in upgrading apprentices on 1 July
was shown to have been in conformity with past practice
and not in violation of any express directions which had
been given to him by the JAC. In the light of the evi-
dence in the record, the insistence of the JAC members
who testified that he should have consulted the commit-
tee first actually appears to be unreasonable , for no one
contends that any of the apprentices involved should not
have been upgraded and the action apparently was over-
due.
There is no evidence that Gilbert was ever warned
that he faced discharge if he failed to comply with the
directions of the JAC. Even if the shaky testimony about
the meeting of 7 February is accepted in toto , it amounts
only to a showing that Gilbert had been given instruc-
r'
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions along the lines asserted by Johnson, previously dis-
cussed. Johnson never said that Gilbert had been warned
of the consequences of failure to follow those instruc-
tions. There is no evidence that he was ever told that his
job was in jeopardy.
Accordingly, I find that Gilbert was discharged for
the reasons alleged by the General Counsel.
The General Counsel had urged, as an additional basis
for reaching this conclusion, the fact that at various
times subsequent to the discharge additional reasons
were, either stated or hinted at, and that therefore the
Respondent had presented "shifting reasons" for dis-
charge. In the period since the discharge, allegations
have been made or specific grounds of dissatisfaction
have been expressed regarding Gilbert's performance by
members of the JAC. Following his discharge, Etkin
conducted a full audit of Gilbert's expenses (and told him
he was doing it) and questions were raised about pur-
chases of propane gas tanks, vehicle repair bills for the
JAC vehicle which Gilbert had been authorized to use,
and his gasoline purchases.
However, although the JAC was unquestionably look-
ing into these matters, and may have made or hinted at
such accusations, during the hearing the testimony was
very clear that these were matters which were looked
into subsequent to Gilbert's discharge and were not
claimed to be the reasons for the committee's action.
That was said several times by the witnesses and there
never was any question but that the reasons claimed as
having prompted their action were those which I have
analyzed above. The grounds asserted for the discharge
never varied.
(Robert B. O'Connor, who made inquiries of the JAC
on behalf of Arey respecting the reasons for Gilbert's
discharge, was given additional complaints about Gilbert,
but testified that in mentioning these matters to him, the
members of the JAC did not differentiate between infor-
mation which had been in their possession prior to 31
July and information which they acquired subsequently.)
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The violations of the Act found to have been commit-
ted by the Respondent have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce
among the several States, and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Respondent violated Section 8(a)(3) and (1) of
the Act by terminating the employment of Bruce Gilbert
because he had engaged in protected concerted activities.
3. The Respondent did not commit any violations of
the Act except those found herein.
4. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent engaged in unfair
labor practices I shall recommend that the Respondent
be directed to cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act. I
shall recommend that the Respondent be directed to
offer Bruce Gilbert reinstatement to his former position
or, if that position is not available, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any
loss of earnings and other benefits which he may have
suffered by reason of his discharge, with backpay to be
computed in the manner prescribed in F. W. Woolworth
Co., 90 NLRB 289 (1950), with interest thereon to be
computed in the manner prescribed in Florida Steel
Corp., 231 NLRB 651 (1977); and Isis Plumbing Ca, 138
NLRB 716 (1962). I further recommend that, notwith-
standing the small size of the Respondent's administrative
establishment, it be required to expunge from its records
any reference to the unlawful discharge of Gilbert, and
provide him with written notice of such expunction, and
notice that his unlawful discharge will not be the basis of
any future personnel action against him.
It is unclear from the record whether the JAC has
physical facilities apart from the space provided for it in
the headquarters of Local 15. I have therefore made ad-
ditional provision in the recommended Order for mailing
a copy of the notice provided for to the members of
Local 15.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The Respondent, Northern District of Connecticut
Iron Workers Local Union No. 15, Joint Apprenticeship
Committee, Hartford, Connecticut, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Discharging employees for exercising their right to
engage in protected concerted activities under Section 7
of the Act.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Bruce Gilbert immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or any other rights or privileges previously
enjoyed, and make him whole for any loss of earnings
and other benefits suffered as a result of the discrimina-
tion against him, in the manner set forth in the remedy
section of the decision.
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.
IRON WORKERS LOCAL 15
(b) Preserve and , on request, make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records , timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(c) Remove from its files any reference to the unlawful
discharge and notify Gilbert , in writing , that this has
been done and that the discharge will not be used against
him in any way.
(d) Post at the offices of the Joint Apprenticeship
Committee copies of the attached notice marked "Ap-
pendix."' Copies of the notice , on forms provided by the
Officer in Charge for Subregion 39 after being signed by
the Respondent 's authorized representative , shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to are customarily
posted . Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered , defaced, or
covered by any other material.
(e) Mail a copy of the attached notice marked "Ap-
pendix"to each apprentice and journeyman enrolled in its
training program and to each member of Local 15.
(f) Notify the Officer in Charge in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
* 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
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
923
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered 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 discharge or otherwise penalize em-
ployees for engaging in protected concerted activity
under Section 7 of the National Labor Relations Act.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act
WE WILL offer Bruce Gilbert immediate and full rein-
statement to his former job or, if that job no longer
exists , to a substantially equivalent position , without prej-
udice to his seniority or any other rights or privileges
previously enjoyed, and WE WILL make him whole for
any loss of earnings and other benefits resulting from his
discharge , less any net interim earnings , plus interest.
WE WILL notify him that we have removed from our
files any reference to his discharge and that the dis-
charge will not be used against him in any way.
NORTHERN DISTRICT OF CONNECTICUT
IRON WORKERS LOCAL UNION No. 15,
JOINT APPRENTICESHIP COMMITTEE