Mighigan Dist. Council No. 77

National Labor Relations Board - Board Decisions

Apr 14, 1972

196 N.L.R.B. 362 (N.L.R.B. 1972)

362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Michigan District Council No. 77, American Federa-
tion of State, County, and Municipal Employees,
AFL-CIO and Association of Union Representa-
tives. Cases 7-CA-8554(l), 7-CA-8554(2), 7-
CA-8554(3)
April 14, 1972
DECISION AND ORDER
BY MEMBERS FANNING , JENKINS , AND KENNEDY
On November 26, 1971, Trial Examiner Robert E.
Mullin issued the attached Decision in this proceed-
ing. Thereafter, General Counsel filed exceptions and
a supporting brief, and Respondent filed a brief in
answer and opposition to exceptions of General
Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member' panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, finding,' and conclusions and to adopt his
recommended Order as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
Michigan District Council No. 77, American Federa-
tion of State, County, and Municipal Employees, Dated By
AFL-CIO, its officers , agents , and representatives,
shall take the action set forth in the Trial Examiner's
recommended Order, as herein modified:
1. Insert the following as paragraph 1(c) to the Trial
Examiner's recommended Order and reletter the re-
maining paragraphs accordingly:
"(c) Recommending to the employees that they
abate their union organizational efforts."
2. Substitute the attached Appendix for the Trial
Examiner's.
i The Trial Examiner credited testimony that on or about November 30,
1970, Van Zandt, then Respondent 's executive director, recommended to one
or more employees that the staff representatives lighten up on their pressure
for a staff union . In view of the finding that Respondent had unlawfully
suspended negotiations at the time , the Trial Examiner found that the above
remark constituted a violation of Sec . 8(aX5). We find that Respondent, by
the above remark , additionally violated Sec . 8(axl) in that it interfered with,
restrained , and coerced employees in the exercise of their rights guaranteed
in Sec. 7 of the Act.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT withdraw or withhold recognition
from any certified representative of our staff rep-
resentatives except as provided by law.
WE WILL NOT change the working conditions of
our staff representatives without consulting their
statutory representative.
WE WILL NOT recommend to employees that
they abate their organizational efforts.
WE WILL NOT refuse to bargain collectively with
the statutory representative of our staff repre-
sentatives, nor in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of their right to self-organization, to
form, join, or assist any labor organization, to
bargain collectively through representatives of
their own choosing, and to engage in concerted
activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain
from any or all such activities.
MICHIGAN DISTRICT COUNCIL
No. 77 , AMERICAN FEDERATION
OF STATE , COUNTY, AND
MUNICIPAL EMPLOYEES,
AFL-CIO
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 500 Book Building, 1249 Washington
Boulevard, Detroit, Michigan 48226, Telephone 313-
226-3200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ROBERT E. MULLIN , Trial Examiner : This case was tried
196 NLRB No. 56
MICHIGAN DIST . COUNCIL NO. 77
in Detroit, Michigan, on August 10, 11, 12, and 13, 1971,
pursuant to charges duly filed and served,I and a consolidat-
ed complaint issued on April 30, 1971. The complaint, as
amended, presents q uestions as to whether the Respondent
violated Section 8(a)(1),(3),(4), and (5) of the National La-
bor Relations Act, as amended. In its answer, and amended
answer, the Respondent conceded certain jurisdictional
facts but denied all allegations that it had committed any
unfair labor practices.
All parties appeared at the trial by their attorneys and
were given full opportunity to examine and cross-examine
witnesses, to introduce relevant evidence, to argue orally at
the close of the trial and to file briefs. Oral argument was
had by the General Counsel and Counsel for the Respon-
dent. On September 23, 1971, the Respondent submitted a
brief.
Upon the entire record in the case, including the argu-
ments and the brief of counsel, and from his observation of
the witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT EMPLOYER
The Respondent, herein called Council 77 or Council,
was chartered directly by American Federation of State,
County and Municipal Employees, AFL-CIO, herein called
AFSCME, or International. The International has its prin-
cipal office in Washington, D.C., whereas Council 77 has its
primcipal office in Detroit, Michigan. The Respondent is a
labor organization representing employees employed by
governmental entities, profit and voluntary agencies, hospi-
tals, and convalescent homes. All local unions of the AF-
SCME in the Detroit area are required by the constitution
of the International to become an affiliate of the Respon-
dent. At the time of the hearing, Council 77 was made up
of 27 such locals. The latter had bargaining rights for ap-
proximately 16,600 employees, approximately 12,600 of
whom were dues paying members of AFSCME.
The Respondent's constitution provides for payment
each month to Council 77 of a per capita tax levied on the
monthly dues payments received from each individual
member . This tax revenue is submitted to the Council by the
local unions affiliated with the Respondent and the latter,
in tur nsmits such per capita taxes to the International
at its hea q ters in Washington, D.C. During the calen-
dar year ending December 30, 1970, the Respondent trans-
mitted in excess of $50,000 in per capita taxes directly from
Michigan to the aforesaid International.
Upon the foregoing facts, the Respondent concedes, and
the Trial Examiner finds, that Council 77 is engaged in
commerce within the meaning of the Act. Local 423, Labor-
ers Intl. Union, et al., 179 NLRB 558; Brotherhood of Loco-
motive Firemen and Enginemen Local 425, AFL-CIO, 168
NLRB 677.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent concedes, and the Trial Examiner finds,
that Association of Union Representatives (herein AUR, or
Union) is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
i The charges on which the complaint was based were filed as follows- In
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Background and Sequence of Events
363
In 1969, at a time when the Council had seven staff
representatives, the AUR was organized to represent and
bargain collectively on their behalf. In December of that
year the Respondent recognized it as the bargaining agent
for its staff representatives. At that time and until February
197 1, William S. Van Zandt was the executive director and
the principal managing agent for the day-to-day operations
of the Council. During the incumbency of Van andt, the
AUR and the Respondent had several collective-bargainin
sessions at which agreement was reached on a number of
matters, but no completed contract was ever finalized.
In the fall of 1970, the Respondent questioned the inclu-
sion of one Walker in the unit and the Union filed a unit
clarification petition with the Board, Case 7-UC-57. In
December of that year the Regional Director denied this
petition.
On February 1,1971, Van Zandt became area director for
the State of Michigan for the International and Lloyd J.
Simpson, president of Council 77, succeeded him as execu-
tive director for the Respondent. Thereafter, in mid-March,
Simpson discharged James T. Wright and Bernie R. Webb,
president and vice president, respectively, of the AUR.
Their discharges are an issue in this case. Sometime later,
the Respondent resumed negotiations with the AUR and in
August 1971 it signed a collective-bargaining agreement
with the bargaining agent for its staff representatives. From
the record, however, it is unclear whether, at this point, the
AUR had ceased to exist, or whether the memiiers had
changed the name of their labor organization to "Union of
Professional Staff Employees."2
The Respondent conceded, and the Trial Examiner finds,
that all staff representatives of the Respondent, excluding
the executive director, the assistant to the executive director,
and all other employees, constitute a unit appropriate for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act. The Trial Examiner further finds
that at all times material since December 1969, the AUR,
or its successor organization, has been the representative for
the purposes of collective bargaining of the employees in the
aforesaid unit.
7-CA-8554(l) on March 11, 1971; in 7-CA-8554(2) on March 15, 1971; and
in 7-CA-8554(3) on March 22.
2 On March 17, 1971, a "Union of Professional Staff Employees of Michi-
gan District Council No 77," filed a representation petition seeking an
election in the appropriate unit here involved, Case 7-RC-10465. The peti-
tion was signed by Thomas Evers, a staff representative On April 5 Evers
wrote the Regional Office requesting permission to withdraw the petition and
on April 13 the Regional Director approved the withdrawal Thereafter, in
a letter dated April 22, Herman Spearman notified Simpson that a new slate
of officers had been elected to head the AUR, and that Evers was the new
president, Verti Williams the vice president, Tom Plesha the secretary-treas-
urer, and Spearman the recording secretary. In another letter, dated May 3,
Evers notified Simpson that a bargaining team, consisting of the new officers
of the AUR, was ready to resume bargaining. In August 1971, however, when
the Respondent signed a collective-bargaining agreement for the unit of its
staff representatives, the other party to the contract was described as the
"Union of Professional Staff Employees," and Evers, Williams, and Plesha
executed the agreement as president, vice president, and secretary-treasurer,
respectively, of the latter organization The record does not explain when, if
at all, the name of the AUR was changed to Union of Professional Staff
Employees, nor did the General Counsel raise any issue as to whether the
latter was, in fact, the successor to the AUR.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Alleged Violations of Section 8(a)(1) and (5); the
Evidence; Contention of the Parties; Findings and
Conclusions in Connection Therewith
1. Events occurring prior to the 10(b) period
In December 1969, the Respondent recognized the AUR
as bargaining agent for its staff representatives . Shortly
thereafter James T. Wright became the president and Bernie
R. Webb the vice president of that organization . Prior to
being hired by the Respondent in 1968 , both had been
employed by the city of Detroit . Pursuant to the collective-
bargaining agreement between the city and the Respondent,
when they went to work for the Council their former em-
ployer granted them leaves of absence from their positions
with the municipal government.
In or about mid-January 1970, Wright submitted to the
Respondent, in writing , a proposed collective-bargaining
agreement and a request for negotiations . At some point
thereafter , Van Zandt agreed to meet on February 9 but did
not keep this appointment because of other commitments.
On February 13, he met with Writ and agreed to meet
with the AUR the following month .
On or about March 10, Webb and two other AUR repre-
sentatives met with Van Zandt. At this time the parties
discussed a proposed contract which the AUR had prepared
and agreement was reached on a number of items . However,
Webb , the only witness who testified about this session,
gave testimon which was extremely vague and, at least as
to the copy ofYthe proposed agreement which was used, his
testimony was contradictory . Van Zandt , on the other hand,
did not dispute Webb 's testimony that there had been such
a meeting and that agreement had been reached on various
paragraphs of the proposed contract.
In A ril 1970, the leadership of the Council sought in-
creaseYrevenue by proposing a raise in the per capita tax
on members . However , at a special convention held that
month , this proposal was defeated by the delegates. As a
consequence , the Respondent found it necessary to engage
in various economies , including a reduction in the number
of staff representatives from seven to four . After Van Zandt
made this announcement to the staff, Wright protested that
any layoffs should be on a seniority basis. It was undisputed
that Van Zandt declined to accept this proposal and that he
told the staff that the decision as to who would be retained
would be based on the current assignment of each man and
his ability to do the work required.
In a letter, dated April 20,3 Wright protested to Van
Zandt that the latter was refusing to discuss the pending
layoff with the AUR . The letter ostentatiously referred to
five of the staff representatives as members of the AUR 4
and gave the names of the two others s who were not.
Writ concluded this letter with the assertion that any
layo f other than one based on seniority would be consid -
ered as a deliberate attempt to destroy the Union. The
Respondent offered in evidence a letter dated April 24
which Van Zandt identified as the response which he pre-
pared and mailed to Wright . In Van Zandt's letter he took
issue with the AUR claim that he had refused to bargain
and restated the economic necessity for the layoffs . He fur-
ther noted that the reference in Wright's letter to the union
or nonunion status of each member of the bargaining unit
7 Until otherwise noted, all dates in this section of the decision are for the
year 1970.
4 Viz, William Arter , John Bradley , Joseph Hatcher, Bernie Webb, and
James Wright
51 e , Tom Evers and Tom Plesha.
implied that the layoffs would be determined by the stand-
ing of an individual as a member of the AUR. Van Zandt
emphasized that this was a completely unwarranted as-
sumption. He concluded the letter with a pledge to meet
with the negotiating committee at any time that would be
mutually agreeable.
On two different occasions during the course of the trial,
Wright testified that he never received any response to his
letter of April 20. Van Zandt's testimony to the effect that
he had prepared the letter of April 24 on the date it bore and
that he had it mailed at that time was completely credible.
In this connection Van Zandt was frank and convincing and
it is the conclusion of the Trial Examiner that neither in his
demeanor nor in any evidence in connection with this issue
was there the slightest hint that the document offered as his
letter of April 24 was any other than a communication
which Van Zandt prepared and mailed to Wright in re-
sponse to the letter ofWright which was dated April 20.
Wright may never, in fact, have recieved the letter. Howev-
er, his denial to that effect was totally unpersuasive.
The layoffs were announced shortly thereafter, to be ef-
fective on April 27. Van Zandt selected employees Hatcher,
Arter, and Bradley for layoff. Wright, who had the second
lowest seniority of any staff member, and Webb, who had
less seniority than Arter, were both kept. Similarly, Evers
and Plesha, the two nonmembers of the AUR, were re-
tained. In the proposed agreement which the AUR had
submitted to the Respondent, there was a provision accord-
ing supersenionty in any layoffs to officers of the union. At
the trial, Van Zandt testified that in a conversation with
Wright, subsequent to the announcement of the layoffs, he
advised Wright that he was being retained notwithstanding
his low seniority and in recognition of his position with the
staff union. In this connection, however, Vpan Zandt was not
persuasive. Wright denied that he had ever had such a con-
versation with the executive director and, in a pretrial affi-
davit, given to the General Counsel, Van Zandt did not
mention any discussion of superseniority with the union
officials .6
Webb testified that on July 1 the staff representatives
received a salary increase of $100 per month. Wright testi-
fied that Van Zandt had not discussed the matter prior to
that time with the AUR and that he first learned of it on
July 10 when he received a paycheck that reflected the raise.
Webb also testified that there were no negotiations as to this
increase . According to Webb, however, he learned of the
raise on June 10. However, the testimony of both of these
witnesses on this matter was of a very general, inconclusive
character, totally lacking in particulars and unconvincing.
Van Zandt testified that he brought up the prospect of
such a raise on a number of occasions at regular Friday
conferences which he held with the staff. According to Van
Zandt, at several of these conferences, he told the staff that
he would recommend to the executive board of the Council
that provision be made in the next fiscal budget for a $100
increase for the staff representatives. He also testified that
he told the staff that he would do this unless there were
6 Of the three staff representatives who were laid off in April 1970, only
Bradley returned to work at the first opportunity . Arter, on the other hand,
elected to return to work for the Detroit Street Railways where he had been
employed previously . He thereafter severed his employee connection with the
Council Van Zandt credibly testified that he offered Hatcher reemployment,
but because of a heart attack the latter was unable to accept. At the hearing,
Hatcher testified that in January 1971, he returned to the Council to seek
employment , but that Van Zandt refused to do anything for him and told
him "You used to be a nice guy until you decided tojoin the union ." Hatcher,
however , was not convincing and from his observation of this witness it is
the conclusion of the Trial Examiner that no credence should be accorded
Hatcher's version of his conversation with Van Zandt.
A
MICHIGAN DIST . COUNCIL NO. 77
objections and that if there were any he would have to put
the question of raises off and deal with it as a matter of
bargaining. Van Zandt testified that Wright, Webb, and the
rest assured him that they had no objections to this course
of action. It is the conclusion of the Trial Examiner that Van
Zandt's testimony on this issue was credible and that the
raise in question was discussed and thereafter effectuated
substantially as he described the circumstances.
The General Counsel relied on the testimony of Wright
and Webb, set out above, to establish a pattern of unilateral
action on the part of Respondent as to the layoffs and the
salary increases. The credible testimony of Van Zandt, how-
ever, established that the layoffs were necessitated by a
budgetary crisis and that he did, in fact, discuss the issue
with the staff. Here, it is apparent that the Union was given
notice of Respondent's economic dilemma which would
require a reduction in force and an opportunity to discuss
it with Van Zandt. It has been held that in such circum-
stances the action of the employer is not unilateral and that
it does not constitute a violation of the Act. N.L.R.B. v.
Newberry Equipment Co., 401 F.2d 603, 609-160 (C.A. 8).
Similarly, as to the Respondent's conduct with reference to
the salary increase, it is evident that when the union repre-
sentatives were apprised of the prospect of Van Zandt's
being able to secure an increase , they discussed it with him
and voiced no objection to his proposed action. Where a
union acquiesces in a wage increase , the Act is not violated
when the employer makes it effective. General Electric Com-
pany, 127 NLRB 346, 347-348. Consequently, it is the con-
clusion of the Trial Examiner that, even if the General
Counsel were not barred by Section 10(b) from alleging a
violation of Section 8(a)(5) and (1) as to the above matters,
there would be no basis, on the facts set forth earlier herein,
for making such a finding.
2. Events subsequent to September 11, 1970 7
During the course of the period that extended from the
time the AUR was recognized until March 1971, when the
initial charge was filed, the AUR representatives submitted
four written requests to bargain. All were signed by Wright
and all were addressed to Van Zandt. The first, as found
earlier, was written in January 1970. The second was dated
September 25, 1970. The third communication was a tel-
egram which Wright sent to Van Zandt on November 18
1970, and the fourth was a letter dated January 25, 1971.4
The first formal bargaining session was held about March
10, 1970, at which time the parties discussed the Union's
proposed contract and, admittedly, reached agreement on
a number of items . A second proposed agreement was sub-
mitted to the Respondent at some time during the summer
or fall, but precisely when is impossible to ascertain from
the testimony of Wright and Webb. Thus, Webb testified at
one point during the trial that he submitted this second
proposal to Van Zandt in July. Wright, however, testified
that Webb took this action on August 28. On the other
hand, at another point in his testimony, Webb stated that
he could not recall when he gave the second proposed con-
7 The original charge having been filed on March 11 , 1971, under Sec 10(b)
of the Act, it related back to the 6 -month period which began on September
11 970.
I In the Respondent's brief, reference is made to a fifth written request for
negotiations which was dated February 2, 1971. At the trial , Wright testified
that he wrote such a letter bearing that date, addressed to Simpson , the new
executive director . However , Wright later conceded that he had no recollec-
tion of ever having actually sent this letter to Simpson As a result, the
General Counsel did not offer , nor did the Trial Examiner receive, such letter
in evidence.
365
tract to Van Zandt.
The second formal bargaining conference was held about
October 5, at which time the Union's proposed contract was
discussed at length and numerous provisions in it were
agreed upon by the parties, among them being articles on
a union shop and a checkoff. There was disagreement, how-
ever, as to whether one individual, Flora Walker, was in the
bargaining unit. Wright and Webb has asked that Walker
be permitted to attend the meeting, but Van Zandt refused
on the ground that Walker, then newly hired, was only a
temporary probationary employee and not a member of the
unit which the AUR represented.
Subsequent to this meeting and as a result of the question
raised as to Walker's status, the Union filed a petition with
the Board seeking a unit clarification, Case 7-UC-57.
Thereafter, on November 18, when Wright sent a telegraph-
ic request for a bargaining conference, Van Zandt declined.
In a letter dated November 19, the executive director stated
that the pendency of the unit clarification proceeding made
it inappropriate to meet until such time as the Board decid-
ed the unit question. On December 17, 1970, and after a
hearing, the Regional Director issued a decision wherein he
denied the Union's proposed clarification of the bargaining
unit.
After the AUR made its fourth written request for nego-
tiations in Wright's letter of January 27, 1971,9 Van Zandt
answered, in a letter dated January 29, that he would be
unable to confer with the Union because he was being re-
placed by Simpson on February 1.
On February 5, and in keeping with a tradition estab-
lished by Van Zandt, Simpson held a regular Friday busi-
ness meeting with the staff representatives. At this time he
announced a number of work rules with which he requested
compliance. In addition to requiring that each staff member
report in each day and maintain close liaison with the gffice,
Simpson announced that henceforth each staff representa-
tive would have to (1) submit a written activity report each
Friday that would reflect a complete description of his work
during the week, (2) attend Saturday classes being spon-
sored by Council 77, as a condition of employment, and (3)
make a detailed report as to expenditure of expense allow-
ance money.
Wright testified that during the meeting he requested that
Simpson meet with the AUR to negotiate a contract. Ac-
cording to Wright, Simpson told him that he could not meet
with them at the time because at that point he still did not
know what the individual employees were worth. When
Simpson took the stand later in the trial his testimony was
in substantial accord with this aspect of Wright's account.
According to Simpson, he told Wright and the staff that
before he could engage in an negotiations he would have
to get his feet on the groundyand have an opportunity to
learn what the staff was doing.
Simpson testified that thereafter, on February 9, he wrote
the following letter to Wright:
Mr. Jim Wright
16861 Wyoming
Detroit, Michigan
Dear Jim:
Concerning the questions you raised with me about
getting together on contract provisions covering the
staff, as soon as you have your written proposals ready
let me know and I will set aside a full day so that we
ma discuss them in depth.
Iywant to say at the outset that I am not familiar with
9 Unless otherwise noted, dates which appear hereafter are for the year
1971.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any proposals that you have made to Bill Van Zandt.
I am aware that there has been a continuing argument
about who should be covered by the contract.
Lets you and I get down to business and see if we can
resolve these questions so that we can all continue the
job of servicing our members which is our real function
as Union representatives.
I must be guided by the decisions of the National
Labor Relations Board which deal with the composi-
tion of the Council Staff that your organization bar-
gains for.
Because the records I must refer to at the Council are
not as complete as they should be will you make sure
that you present your demands in writing . As I have
pointed out in the staff meeting I must have a record
of each staff man's work assignment in order to de-
termine if we have sufficient personnel to carry out our
function , or if we have a surplus of personnel.
Will you please make sure that your reports are pre-
sented in complete detail.
As appears from the above , the letter was addressed to
Wright at the Council Office . According to Simpson, imme-
diately after the letter was prepared and signed it was placed
in Wright's box, where the latter customarily received all
office notices and mail. Simpson was a credible witness.
Furthermore , there was no aspect of either Simpson's testi-
mony or of any other testimony in the record which would
tend to indicate that Simpson had prepared the letter at any
time other than February 9, or to suggest that he had dis-
patched it to Wright in any manner other than the fashion
he recounted at the trial . Wright denied that he ever re-
ceived the letter in question. However , as was the case with
another piece of correspondence , discussed earlier, which
the Respondent 's executive director averred had been pre-
pared and mailed to Wright , the denial of the latter to the
effect that he had ever received the letter was not convinc-
ing.
Apart from the written requests which the AUR made for
a bargaining conference , Wright and Webb testified as to
numerous occasions when they allegedly asked Van Zandt
for an opportunity to meet and he declined or, having prom-
ised them that he would do so at a certain time and place,
thereafter failed to keep his appointment. Neither Wright
nor Webb had an impressive recollection as to the details
of such meetings that were allegedly scheduled or arranged.
Wright , for instance , testified that at a staff meeting on
January 26 , 1970, Van Zandt promised that he would meet
with the Union on January 27, but that he failed to do so.
Van Zandt credibly denied having made any such arrange-
ments and testified that such a discussion could not have
occurred at a staff meeting on January 26 , because that was
a Monday and he had a long-established practice of holding
staff meetings only on Fridays. Webb testified at some
length about numerous meetings which Van Zandt allegedly
promised to attend and to which the executive director
thereafter never came . Thus, Webb testified that he person-
ally scheduled approximately eight ntiating sessions
with Van Zandt during the period from May
egg
othrough July
1970, but that on none of these occasions did Van Zandt
fulfill his commitment and attend a meeting . Van Zandt
denied that Webb ever asked to meet with him and testified
that he had never met with Webb alone in connection with
any matters involving the AUR . According to Van Zandt,
all arrangements for bargaining conferences with the AUR
were made with Wright, or, for a short while early in 1970,
with William Arter . Van Zandt was a credible witness on
this particular issue , whereas Webb was not.
Throughout the period from the Respondent 's recogni-
tion of the AUR and until Van Zandt left the post of execu-
tive director in February 1971, there were obviously many
occasions when Wright and Webb, as well as other members
of the staff, discussed with him questions as to wages, hours,
and working conditions. This plainly occurred in numerous
instances at the regular Friday staff meetings as well as at
other times. The office force was small in number, and an
obvious camaraderie prevailed which led to many such dis-
cussions which could not be described as formal bargaining
sessions , but during which the participants made their posi-
tion clear. Evidence of the foregoing is relevant with respect
to several of the instances alleged by the General Counsel
to have constituted unlawful unilateral action by the Re-
spondent.
Thus, the General Counsel alleged that in December 1970
Van Zandt unlawfully bypassed the AUR by advising the
employees that they would receive a $100 increase in paV Y.
Wright testified that, at a staff meeting in December, an
Zandt mentioned the prospect of a $100 increase and ad-
vised the staff to decide among themselves how they would
want that amount to be distributed. Wright also testified,
however, that later he met with Van Zandt and told him that
at that time the staff representatives would prefer a $50
increase in basic salary along with a $50 increase in their
automobile allowance and then another $100 increase the
following July. According to Wright, during this conversa-
tion, the executive director told him that there was only
$100 available and that for this reason there was no need for
a meeting to discuss the matter any further.
Van Zandt testified that at a regular staff meeting at this
time the staff questioned him as to whether the annual
budget, which he was then preparing, would include provi-
sion for a salary increase. According to Van Zandt, Wright
and others present made suggestions as to how any such
money should be expended. Van Zandt testified that he told
those present that he would consider their recommenda-
tions . He also testified that the employees were not told that
they would receive $100 or any other amount as an increase
in pay, and that all he told them at this time was that in the
forthcoming budget there would be money included for
salary increases, but that the amount of such increases
would have to be the subject of negotiations. Van Zandt's
version of these conversations was credible. It is the conclu-
sion of the Trial Examiner that, contrary to the General
Counsel, by his conduct at this time Van Zandt did not
engage in individual bargaining with unit employees.
The General Counsel also alleged that immediately after
Simpson became the executive director, the Respondent
engaged in illegal unilateral action by announcing the insti-
tution of a requirement that employees submit biweekly
activity reports, instituting new rules as to vacations, and
establishing a compulsory requirement of attendance at ed-
ucational classes on Saturdays. Earlier, it was found that
during the first week in his new role as executive director,
Mr. Simpson told the staff that henceforth they would have
to submit regular and detailed activity reports and that they
would have to attend the Saturday educational courses. On
March 5, his assistant , William Barnes, in Simpson's ab-
sence , but at the behest of the executive director, repeated
these requirements to the staff. He also told them that any
vacation time which they did not use before December 31
would be lost, and that they would not be permitted to carry
over any unused vacation time.
The General Counsel's contention that all of the forego-
ing requirements were newly imposed by Simpson was sup-
ported by the record only in part.
Thus, it was undenied that during the prior administra-
tion Van Zandt had required activity reports from the staff
MICHIGAN DIST . COUNCIL NO. 77
members, and Van Zandt himself credibl testified that
while he was the executive director each staff representative
filed from 20 to 30 activity reports a year.
As to vacations , both Wright and Webb testified that
prior to Simpson's arrival they had been permitted to carry
over unused vacation time from 1 year to the next . Wright,
`however, conceded that he had never had occasion to do so.
Webb testified as to one instance when he had been permit-
ted to carry over some of his vacation . On the other hand,
neither Wright nor Webb were credible or persuasive wit-
nesses as to this issue . Van Zandt credibly testified that
during his administration he had required all members of
the staff to use up their vacation during the year it was
earned and that the one occasion when Webb had been
permitted to carry over a limited amount of vacation time
had been the only exception he had permitted during the
entire period that he had been the executive director. Simp-
son also testified that early in February 1971 Webb and
Wright sought him out to tell him that they had additional
vacation time owed them from the prior year . According to
Simpson, he told them that the office records indicated that
they had used all of their 1970 vacation, and that later he
questioned Van Zandt about the matter and learned from
him that, contrary to their claims , there was no vacation
time left or due either Webb or Wright. Simpson's testimony
as to this issue was credible and undenied.
Educational programs for the staff had been instituted
several years earlier . Simpson , while president of the Coun-
cil, had been instrumental in establishing a program with
Wayne State University whereby, for several years, that
institution had been providing a series of courses for not
only the staff of the Council, but also for the officers, busi-
ness agents and stewards of the affiliated locals . Some of the
earlier educational courses had been scheduled for Sat-
urdays and others had been held on evenings during the
week . It was , in any event , not unusual for the staff repre-
sentatives to have meetings or bargaining sessions to attend
on Saturdays . 1° Both in his original meeting with the staff
in February and in his message conveyed to the staff on
March 5, Simpson made it clear that attendance at these
courses would be required and that he would consider their
attendance a condition of employment . In this respect,
Simpson was announcing a change in the working condi-
tions of the staff representatives , for it does not appear from
any evidence in the record that at any time prior to March
of 1971 the Council had made attendance at the educational
workshops a condition of employment . It was likewise clear
that there had been no bargainin g with the AUR at any time
as to the imposition of any such conditions.
3. Concluding findings as to the alle ed violations of
Section 8(a)(5) and (1)
Although, as found earlier herein , the credible evidence
did not support many of the claims by Wright and Webb
that the Respondents representatives failed to keep ap-
pointments and repeatedly failed to meet with the Union,
there were , in fact , several occasions when the Council did
not fulfill its statutory duty to bargain and thus violated
Section 8(a)(5) of the Act . These violations were committed
by the Respondent in the following instances:
(1) When Van Zandt notified the Union by letter dated
November 19, 1970 , that he would suspend bargaining ses-
sions with the Union until the Board had resolved the ques-
tion raised by the UC petition filed by the AUR incase
10 Webb, for instance , testified that he frequently had to attend bargaining
sessions on Saturdays.
367
7-UC-57. Thereafter, notwithstanding a decision on De-
cember 17, 1970, of the unit placement issue (which in-
volved only one temporary employee), Van Zandt never
undertook to resume negotiations with the AUR. It is well
settled that the Employer is under a continuing obligation
to bargain with the majority representative and may not
suspend negotiations pending a resolution of an ancillary
issue such as that raised by the UC petition. N.L.R.B. v.
Sanson Hosiery Mills, Inc., -195 F.2d 350, 352-353 (C.A. 5),
cert. denied 344 U.S. 863; N.LR.B. v. Taormina Co., 207
F.2d 251, 255 (C.A. 5); N.L.R.B. v. Elliott-Williams Co., 345
F.2d 460,464 (C.A. 7); N.L.R.B. v. C.J. Glasgow Company,
356 F.2d 476, 479 (C.A. 7); N.L.R.B. v. Security Plating
Com any, Inc., 356 F.2d 725, 727 (C.A. 9)
(2) When it failed to meet with the AUR throughout
January, February, and March 1971. In January 1971, when
the Union sought a meeting, Van Zandt told its representa-
tives that this would be futile because he would soon be
replaced, and when Simpson became the executive director
on February 1, 1971, he told the AUR that he could not
meet with them until he had learned more about their "indi-
vidual worth," as he put it. Since an employer is under a
continuing obligation to meet with the statutory bargaining
agent, in this instance, that included the duty, during the
transitional period as Van Zandt's term ended and
Simpson 's began, to make a representative available who
would be authorized to bargain with the AUR. N.L.R.B. v.
Southland Cork Co., 342 F.2d 702,704-705 (C.A. 4); N.L.R.
B. v. Hibbard Dowel Co., 273 F.2d 565, 568 (C.A. 7); N.L.R.
B. v. Martin Bros. Box Co., 130 F.2d 202, 206 (C.A. 7).
(3) When Simpson unilaterally established the require-
ment that staff representatives would have to attend the
educational courses beginning on Saturday, March 6, 1971,
as a condition of employment. This was a term, or condition
of employment, created as such by Simpson's directive,
about which the AUR had a statutory right to have notice
and an opportunity to bargain. The Employer's obligation
to notify the duly constituted bargaining agent of any pro-
posed changes in hours or working conditions is well settled.
Whether the Union would have agreed to such changes as
a matter of course or disputed them, it was at least entitled
to the opportunity to consider them and, if it desired, bar-
gain with the Respondent as to such proposals. N.L.R.B. v.
Katz, et al., 369 U.S. 736, 743-745; M. Swack Iron and Steel
Co., 146 NLRB 1068, 1069, 1084-85, enf. J-4153 (C.A. 6),
October 20, 1965, 16 Ct. D. 115.
C. The Alleged Violations of Section 8(a)(1); Findings and
Conclusions in Connection Therewith
During the course of the trial, the alleged discriminatees
and Webb, in particular, gave testimony which, if believed,
would reflect seriously on Van Zandt's balance as to race
relations. Since that issue was injected by Webb's testimo-
ny, it is relevant to note that Wright and Webb are black
and Van Zandt is white. Simpson, who succeeded Van
Zandt as executive director and who discharged both
Wright and Webb, is black. William Barnes , who was assist-
ant to the executive director during Van Zandt's administra-
tion and who was retained in that post when Simpson
assumed the directorship, is also black.
The principal incident as to this issue occurred pat some
time in 1969 when Van Zandt was to a oint an
assistant to the executive
" planning
cdig to Webb, he
u Webb testified that the conversation occurred sometime between Sep-
tember and December of that year, and Van Zandt testified that it occurred
Continued
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Van Zandt met at a place known as the London Inn and
during the course of the discussion Van Zandt told him that
he knew about the effort of the staff to organize a union,
and that he felt that "the way to avoid this union association
was to disorganize us." Webb testified that Van Zandt then
offered him the
se
of assistant to the director and, in so
doing, described th job as that of "N.I .C.," or "nigger in
charge ." 12 According to Webb , he immediately stated that
he would not accept such an offer.
Van Zandt's account of this meeting differed substantial-
)y from that given by Webb . According to Van Zandt, it was
Webb who requested that they meet at the London Inn. Van
Zandt testified that upon arriving there it became apparent
that Webb's sole objective was to advance his own candida-
cy for the post of assistant to the director . Van Zandt testi-
fied that at the outset of their discussion Webb told him that
he had learned that Van Zandt proposed to appoint Barnes
as his assistant and that before this happened he wanted
Van Zandt to know that his own qualifications for that post
were better than those possessed by Barnes and that what
Van Zandt really needed was someone like himself in the
role of "H.N.I.C ." which Webb thereupon defined as a
"head nigger in charge ." According to Van Zandt , he reject-
ed such a proposal immediately , and, after citing his own
and the Council 's record of fairness in race relations, he
expressed to Webb his own dismay that Webb should have
assumed that he would entertain such a suggestion. Van
Zandt testified that before the discussion was concluded he
explained to Webb that although a final decision had not
been made as to the appointment of an assistant , he himself
felt that Barnes was the best qualified candidate because his
background over a period of many years included expe-
rience as a shop steward , as an officer of a large local and
finally as a member of the Council staff.
Sometime after this discussion , Van Zandt appointed
Barnes as his assistant , and later, when Barnes became an
assistant to Simpson, he was involved in the proceedings
which eventuated in Webb's dismissal . Whether this subse-
quent development had anything to do with the character
and venom of Webb's accusations is not subject to assess-
ment . Earlier herein , and in connection with other issues in
this case, the Trial Examiner found that Webb's testimony
was most unreliable . From Van Zandt's manner and bear-
ing when on the stand and throughout an extended exam-
ination and cross-examination it is difficult to believe that
he would have made the crude remarks attributed to him by
Webb at the time of this encounter . Consequently, and in
view of the foregoing , it is the conclusion of the Trial Exam-
iner that Van Zandt s account of this incident at the London
Inn was the more credible.
The General Counsel alleged that in the latter part of
November 1970 the Respondent threatened employee offi-
cers of the AUR with discharge or disciplinary action for
having sought to make arrangements for a union meeting.
On or about November 17, 1970 , Wright placed a written
notice in the mailboxes of the union members at the Council
headquarters wherein he requested that they meet at the
Council office at 9 a .m. the following day for the purpose
of arranging a meeting of the AUR . On November 18, after
he learned of this action , Barnes sent a memo to Van Zandt
several months earlier . They agreed, however, that the London Inn was the
place where they had thei r discussion.
Since this incident occurred in 1969 , obviously the 10(b) limitation bars
any unfair labor practice finding based on such evidence . The General Coun-
sel readily conceded this , and offered the testimony of Webb only as "back-
ground."
12 The quotations in this paragraph are from Webb's testimony.
in which he stated that it was apparent that Wright, Webb,
and Walker were using office time for union business, not-
withstanding the fact that he had not given them permission
to do so during regular working hours on the Council prem-
ises . In his memorandum , Barnes recommended that Van
Zandt discuss this matter with the three involved and that
if they did not take corrective action that they be discharged
for insubordination.
Wright testified that about November 20 Van Zandt
called him to his office , told him of the Barnes' memo-
randum , and threatened discharge for an yone who attended
such a meeting . Van Zandt , on the other hand , testified that
after telling Wright about Barnes' recommendation he him-
self pointed out to Wright that it was impro er to call any
union meetings on the Council premises during working
hours . According to Van Zandt, at the same time he also
told Wright that if a room was needed for a meeting during
off-duty h ours the matter could be arranged very easily if
Wright would only ask his permission . Van Zandt testified
that there was no further discussion of this incident and that
the conversation was concluded when Wright agreed with
this criticism of his action . Van Zandt's testimony as to this
matter was credible.
It is too clear for argument or extended discussion that
the union officers had no statutorily protected right to hold
meetings on the employer's premises and during working
hours. The old adage, often cited in Board and court opin-
ions, that "working time is for work" (Peyton Packing Co., 49
NLRB 828, 843-8-44, enfd . 142 F.2d 1009 (C.A. 5)), plainly
applies to a situation such as that presented here . It is the
conclusion of the Trial Examiner on the foregoing evidence
that Wright's action merited an admonition , in that his no-
tice appeared to call for a meeting on company time and
property, and that at the same time that this admonition was
delivered by Van Zandt the executive director nevertheless
assured Wright that, if working schedules allowed and
Wright requested his permission , a room at the head-
quarters could be used for such a meeting . In view of these
findings, the Trial Examiner concludes that the General
Counsel has failed to support the allegations in paragraph
12(a) and (b) of the complaint to the effect that Respondent,
through Van Zandt , violated Section 8 (a)(1) by threatening
unit employees with discharge if they persisted in making
arrangements for a union meeting.
The General Counsel also alleged that about October 29
and November 30, 1970, Van Zandt threatened employee
officers of the AUR with disciplinary action if they contin-
ued their union activities . This allegation relies on certain
testimony offered by Wright and Webb as to two occasions
when they and Mrs . Walker were with Van Zandt, on one
occasion at the bar in the Ponchartrain, a nearby hotel and,
on another, during a lunch at a Stouffer's restaurant.
The General Counsel alleged that the first meeting oc-
curred on October 29. From the testimony of both Wright
and Van Zandt , however, it appears to have been about
mid-November . 13 Early on the evening in question Mrs.
Walker had an organizational meeting at the Veterans
Memorial Building for a group of municipal employees.
Van Zandt was the principal speaker . After the meeting Van
Zandt invited Walker, Wright , Webb, and several others to
the bar of the Ponchartrain Hotel where they remained for
from 5 to 6 hours.
Wright testified that during the course of the evening Van
Zandt stated that "if we intended to press for our Union that
some of the people on the staff may go back to their
original jobs" and that the executive director requested that
"we pull off of our insistence on getting the staff organized
13 Wright testified that it was about November 12, 1970.
MICHIGAN DIST. COUNCIL NO. 77 369
a contract signed . 14 Webb testified that there was much
ionious discussion on the subject of the Union, that
:i Zandt threatened that he would have a decertification
petition filed , and that Van Zandt further stated that if
Webb "continued pushing for the Union " 15 he would be
fired.
Van Zandt described the evening of this meeting as an
extended period of socializing with the staff and testified
that throughout the course of the conversation he endeav-
ored to keep the discussion away from the subject of the
AUR and its organizational problems . He denied all of the
anti-AUR remarks attributed to him by Wright and Webb.
That Van Zandt and those present that night engaged in
a vast amount of drinking was conceded by all the partici-
pants . The organizational meeting at the Veterans' building
had been a dinner party with an open bar both before and
after the meal. Webb and Wright testified to having had a
few drinks there and Van Zandt estimated that he and all
the others had about three drinks each before the dinner
and about the same number afterwards and before going to
the Ponchartrain . After arriving at the cocktail lounge in the
latter hotel the group remained there until the bar closed
early the next morning . It was evident from the testimony
of Wright , Webb and Van Zandt that everyone present had
numerous drinks and that the conversation covered a wide
range of topics . Van Zandt did not estimate the number of
drinks each member of the group had. However , he testified
that the total bill at the hotel was $86 . Since he further
testified that the charge was approximately $ 1.25 per drink
for the whisky and gin , simple arithmetic would establish
that Van Zandt, Wright, and Webb and the others in- the
group did, indeed , consume a tremendous quantity of li-
quor . 16 Under the circumstances , it seems unlikely that ay
of those present could have any more than a cloudy recol-
lection of what was said during the extended barroom ban-
ter and discussion that transpired . In any event , in view of
these facts and, in particular , the unreliability of Webb's
testimony , as noted earlier, it is the conclusion of the Trial
Examiner that, insofar as the complaint alleges that Van
Zandt made unlawful threats during this meeting , the Gen-
eral Counsel failed to establish by credible evidence that the
Respondent engaged in a violation of Section 8(a)(1) by any
of the conversation or remarks which Van Zandt made on
this occasion.
On or about November 30, 1970 , Van Zandt , Wright,
Walker , and Webb had another luncheon together. Wri ght
testified that this occurred after the hearing at the La or
Board office on the UC petition which the AUR had filed.
According to Wright, after the hearing closed , he, Webb
and Walker accompanied Van Zandt to a Stouffer 's restau-
rant for what he described as "dinner and some drinks."
Wright testified that during the course of the discussion
which ensued Van Zandt "recommended ... that we lighten
up on our pressure for a staff union ... and trying to get
a contract.' Van Zandt testified that he could not recall
having made any such comment . According to Van Zandt,
during the course of the discussion he assured the staff
members present that he assumed that it would be possible
to get a contract finalized at the earliest possible date. Earli-
er lierein, it was found that during the period that the UC
petition was pending , Van Zandt notified the AUR that he
14 The quotations are from Wright's testimony.
15 The quotation is from Webb's testimony.
16 For part of the time at the Ponchartrain there were three other individ-
uals with Van Zandt, Webb, Wright, and Walker. Van Zandt testified, how-
ever, that these three stayed with him and the staff members for only a short
while.
would, in effect, suspend bargaining until the unit clarifica-
tion issue was resolved by the Board and that this action by
the Respondent constituted a violation of Section 8(a)(5). It
is the conclusion of the Trial Examiner that Wright's testi-
mony was credible as to the remark which he attributed to
Van Zandt. The suggestion of the latter that the AUR
lten" its "pressure for a staff union" and "a contract"
diP'not constitute a threat of disciplinary action as the
General Counsel alleged. It was, however, in keeping with
the unlawful action of the Respondent in suspending nego-
tiations during the litigation of the unit clarification issue.
In this connection the Trial Examiner finds that the last
quoted remark by Van Zandt constituted a violation of
Section 8(a(5).
D. The Alleged Violations of Section 8(a)(3) and (4); Find-
ings and Conclusions in Connection Therewith
In separate letters dated March 12, 1971, Simpson noti-
fied Writ and Webb that he was terminating them as of
March 19, 1971. During their employment by the Respon-
dent both were on leaves of absence from their employment
with the city of Detroit. Under a contractual arrangement
that was designed primarily to preserve their pension rights
and other fringe benefits with the municipal government,
and city paid them their regular salaries while they worked
for the Council and the Council, in turn, reimbursed the city
for the amounts so paid.
The General Counsel alleges that the termination of
Wright and Webb was discriminatory within the meaning
of Section 8(a)(3) and (4) of the Act. The Respondent denies
these allegations in their entirety.
On February 5, 1971,17 and at his first staff meeting after
taking over as executive director, Simpson made clear to the
staff that he would insist that they file regular activity re-
ports to account for the manner in which they employed
their time during duty hours and that they also file reports
on their disbursement of expense money allowed them by
the Council. Simpson testified that, at the next biweekly
meeting, held on February 19, he again talked with the staff
about the importance of filing detailed activity reports and
told them about numerous deficiencies which were evident
in some of the reports which he had examined . As found
earlier, he also announced at these meetings in February
that in March a weekend training program would be initiat-
ed which all would be required to attend.
On March 5, and at the time of the regularly scheduled
staff meeting, Simpson was out of the city. Barnes, his assist-
ant, held the meeting in his stead. As found earlier, it was
at this time that Barnes reminded the staff that the Saturday
classes would begin the following day and that all would be
required to attend. Barnes also reiterated Simpson's earlier
orders about activity reports and the scheduling of vaca-
tions. The principal source of controversy, however, cen-
tered about the announcement as to the Saturday classes.
Barnes testified that after he told the staff that Simpson
expected everybody to attend the classes that would begin
the next morning, both Webb and Wright immediately ob-
jected. According to Barnes , Webb protested with the excla-
mation "Who in hell does Lloyd think he is?" and thereafter
Wright said "Yeah, he's not going to tie up all of my week-
ends." Barnes testified that he spoke to both Wright and
Webb after the staff meeting and suggested that if they did
not want to attend the class they should speak to Simpson
about the matter either the next morning or on the following
Monday. On March 6, neither Wright nor Webb attended
the Saturday classes that were held that day.
17 All dates hereinafter are for the year 1971, unless otherwise noted.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Barnes testified that on the following Monday morning
he advised Wright to talk with Simpson about his absence
from the Saturday classes , but that the latter merely stated
that he would discuss the matter with Webb. Later, accord-
mg to Barnes , Wright told him that he and Webb had decid-
ed that they would not talk with Simpson about their
absenteeism. Barnes also testified that thereafter in another
conversation with Webb the latter declared, "I'm not going
to beg for my ]'ob. If the director wants to see me, let him
call me in." Wright denied that Barnes talked with him
about this occasion, but his denial was not convincing.
Barnes' testimony, on the other hand, was credible. It is the
conclusion of the Trial Examiner that the events at the staff
meeting and on the following Monday occurred substantial-
ly as Barnes testified.
Simpson testified that, when he discovered on Saturday
that neither Webb nor Wright was at the classes, he asked
Barnes for a full report on the matter. The latter related to
him the comments which Wright and Webb had expressed
at the staff meeting on Friday, including the remarks which
they had made about Simpson. Simpson testified that there-
after he talked with other members of the staff who had
attended the meeting on Friday and found that they corro-
borated the report which Barnes made to him. According to
Simpson, since Barnes reported that both of these employ-
ees had stated that they would see the executive director on
Monday, he assumed that they would call at his office. In
fact, however, they never did so, notwithstanding the fact
that Simpson was there on each of the next 5 days.18
In letters dated March 12, Simpson notified Wright and
Webb that he was terminating them because of their incom-
plete and ambiguous activity reports and their unexcused
and unexplained absence from the training class on the
preceding Saturday. In these letters, Simpson stated that
their conduct constituted insubordination and that he was
terminating them as of Friday, March 19. He concluded by
informing them that they would receive their final checks on
the latter date, and that in the meantime he would notify the
City of Detroit that they would be ready for return to their
employment with the municipal government on Monday,
March 22.
At the trial, after having testified as to his aggravation at
the manner in. which Wright and Webb had flouted his
order that everyone attend the Saturday classes and there-
after never offering any excuse for their action, Simpson
also recounted the basis for his dissatisfaction with their
activity reports. According to the executive director, the
reports which Wright and Webb submitted were inadequate
and sketchy, and, notwithstanding his criticism, they failed
to correct these deficiencies. Simpson testified that he had
not had any such problem with the reports of the other staff
representatives.19 Simpson also testified that, in addition to
18 In addition to Wright and Webb, one other employee missed the Sat-
urday class. Simpson excused her, however, on the ground that she sought
him out on the following Monday and explained the reason why it had been
im?ossible for her to attend.
9 Simpson's testimony in this respect was credible . It is of some signifi-
cance that, after his testimony on this issue , the General Counsel served a
subpoena on the Respondent directing it to produce all of the activity reports
of its staff representatives . The following morning, in response to this subpoe-
na, the Respondent turned over to the General Counsel a large collection of
these reports for his inspection. After availing himself of a recess for that
purpose , and having examined these documents , the General Counsel did not
thereafter offer any of them in evidence . One inference from this develop-
ment could be that the activity reports of the other staff members were, in
fact, detailed and complete and that their presence in the record would reflect
unfavorably on the activity reports of Wright and Webb which had already
been received in evidence.
his irritation at their insubordinate conduct as to the
urday classes and the activity reports, he felt that wh,
first became executive director they had tried to dupe I .-
into giving them more vacation time than they were entitles
to have. This was a reference to the occasion, early in Feb-
ruary, described herein, when Wright and Webb asserted
that they had unused vacation time from the preceding year
to their credit and Simpson concluded, after checking with
Van Zandt and examining the office records, that there was
no basis for this claim.
Simpson testified that before making a final decision as
to what he should do, he discussed the matter with Van
Zandt and the latter advised him that, rather than dis-
charging anyone, he should give Wright and Webb a warn-
ing and accord them a chance to rectify their failingS.
According to Simpson, after considering this counsel, he
rejected the suggestion and thereafter dictated the discharge
letters which have been described above.
Webb testified that on March 19 he reported to Simpson's
office to get his final check and that at that time he told the
executive director that he understood that he was being
discharged for having filed unfair labor practice charges
against the Respondent 20 According to Webb, Simpson's
only response to this remark was a contemptuous smirk.
Simpson denied that this occurred. According to the latter,
when Webb came to his office on March 19, the only subject
discussed was a complaint by Webb that his final check did
not credit him with all the vacation pay to which he was
entitled. Simpson specifically deniedpthat there was any
discussion of the unfair labor practice charge. It is the con-
clusion of the Trial Examiner that Simpson's account of this
meeting is more credible than the version offered by Webb.
In its brief, the Respondent contends that the termination
of Wright and Webb should not be considered in the same
category as those cases where an employee is discharged at
a time when unemployment rates are high and another job
would be difficult to secure. In a sense there is some merit
to this argument, in that both Wright and Webb were able
to go immediately after their termination by Simpson to
their former employment with the city of Detroit from
which they had been on leave from the time they had come
to work for the Respondent. On the other hand, the only
issue before the Trial Examiner is not whether their punish-
ment was harsh or lenient, but whether the action was taken
for discriminatory reasons within the meaning of the Act.
In support of the General Counsel's contention that the
situation here presents a classic case of discrimination there
is the fact that both Wright and Webb were well-known
union members, they had been two of the principal propo-
nents of the organizational drive among the staff represent-
atives, they had been engaged in contract negotiations with
the Respondent for over a year, and the Respondent, as
found earlier, had unlawfully refused to bargain during that
period. Moreover, they had irritated Simpson durin their
short association with him, and the day after they filed an
unfair labor practice charge against the Respondent the
executive director prepared a letter announcing their termi-
nation. Notwithstanding the foregoing, which, if considered
alone, would dictate a finding that Wright and Webb were
discriminatorily terminated, there is much more to be con-
sidered.
Thus, there is the fact that from the time that Simpson
became the executive director, the performance of these two
individuals left much to be desired. Whereas Van Zandt had
been satisfied with their activity reports, Simpson was not.
When Simpson reiterated a rule on vacations, the manner
20 On March 11, Wright had filed the unfair labor practice charges in Case
7-CA-8554 (1).
MICHIGAN DIST. COUNCIL NO. 77
which they thereafter claimed to have vacation time ow-
.g to them caused Simpson to doubt their integrity. Simp-
son, when on the stand for what was a lengthy examination
both on direct and cross , impressed the Trial Examiner as
an unusually able, articulate , and energetic leader . As presi-
dent of the Council , he had been instrumental in estab-
lishing educational workshops for the stewards, business
agents , officers and members of the full -time staff . When he
became executive director he immediately set out to expand
upon this program in an effort to make all of the regular
employees at the council headquarters more effective in
accomplishing the goals of the AFSCME . Shortly after he
assumed his new post Simpson received an unfavorable
impression of Webb and Wright when they made what
Simpson concluded was a spurious claim for extra vacation
credit. A short while later he found much to criticize in their
activity reports. Thereafter when he was about to initiate the
new educational program of which he considered himself
the architect , Wright and Webb expressed open defiance at
his order that all staff representatives attend. After having
failed to re
p
ort for the first of the Saturday classes, both
Wright and Webb undoubtedly concluded that their days
on the staff were numbered . It is for this reason that the
Trial Examiner does not consider the filing of the unfair
labor practice charge on March 11 to have been the event
which triggered the Respondent's decision to terminate
these two employees . On this record, the Trial Examiner
concludes and finds that Simpson 's decision to send Wright
and Webb back to their jobs with the City of Detroit was
made before , rather than after , the unfair labor practice
charge was filed , and that this decision was made for cause,
rather than for discriminatory reasons. Consequently, it is
the conclusion of the Trial Examiner that the General
Counsel has not proved by a preponderance of the evidence
that the Respondent violated Section 8(a)(3) and (4) of the
Act.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the
Union is a labor organization , all within the meaning of the
Act.
2. All staff representatives of the Respondent , but exclud-
ing the executive director , the assistant to the executive
director , and all other employees , constitute an appropriate
unit for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
3. At all times material herein the Union was the exclusive
representative of the employees in the aforesaid unit for the
purposes of collective bargaining with respect to rates of
pay, wages , hours of employment , and other terms and
conditions of employment.
4. By refusing on November 19, 1970 , and thereafter to
bargain collectively with the aforesaid labor organization,
the Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(5) and ( 1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. The Respondent did not violate Section 8 (a)(3) and (4)
with respect to the termination of James T. Wright and
Bernie s
p
T. Webb.
THE REMEDY
Having found that the Respondent has engaged in and
is engaging in certain unfair labor practices , it will be rec-
ommended that the Respondent be ordered to cease and
371
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. Since it has been
found that the Respondent refused to bargain collectively
with the Union, the normal remedy would include an order
that the Respondent be required to bargain with that labor
organization . As noted earlier , however , the record is un-
clear as to whether the AUR is still in existence." The
situation presented by this development is not dissimilar
from that in another case in the recent past where the Board
held that since "the rights of employees have been violated,
and collective -bargaining representative chosen by the em-
ployees in the unit is entitled to a remedy which would
protect it from similar future violations ." Chevron Oil Com-
pany, 168 NLRB 574, 575. Accordingly, and consonant with
the decision of the Board in the last cited case , the Trial
Examiner will recommend that the Respondent be ordered
to cease and desist from violating Section 8 (a)(5) of the Act,
and that the Respondent be directed to bargain collectively
with the statutory representative of its employees.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act,
the Trial Examiner hereby issues the following recom-
mended:22
ORDER
Michigan District Council No. 77, American Federation
of State, County, and Municipal Employees, AFL-CIO, its
officers , agents, and representatives, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with , or withdrawing
recognition from , any certified representative of its staff
representatives , except as provided by law.
(b) Making changes in the working conditions of its staff
representatives without consulting their statutory represent-
ative.
(c) In any like or related manner interfering with, re-
straining , or coercing its employees in the exercise of the
right to self-organization , to join or assist any labor organi-
zation , to bargain collectively through representatives of
their own choosing , and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities,
except to the extent authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which is neces-
sa to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the statutory
representative of its staff representatives and embody in a
signed agreement any understanding reached.
(b) Post at its headquarters in Detroit , Michigan , copies
of the attached notice marked "Appendix."23 Copies of said
notice, on forms provided by the Regional Director for
21 As found hereinabove , the same officers of the AUR who had been
negotiating with the Respondent during the spring and summer of 1971, at
sometime in August 1971, as officials of the "Union of Professional Staff
Employees", signed a collective -bargaining agreement with the Respondent.
The General Counsel did not protest the legitimacy of the new organization
as a successor to the AUR , nor did any other party.
22 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall , as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings , conclusions , and Order , and all objections thereto shall be deemed
waived for all purposes.
23 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board " shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Region 7, after being duly signed by the Respondent's au- as to what steps the Respondent has taken to comply he,
thortzed representative, shall be posted by it for 60 consecu- with 24
tive days thereafter, in conspicuous places, including all IT IS ALSO ORDERED that the complaint be dismissed insofar
places where notices to employees are customarily posted. as it alleges violations of the Act not specifically found.
Reasonable steps shall be taken by the Respondent to en-
sure that said notices are not altered, defaced, or covered by 24 In the event that this recommended Order is adopted by the Board after
any other material. exceptions have been filed, this provision shall be modified to read : "Notify
(c) Notify the Regional Director for Region 7, in writing the said Regional Director, in writing, within 20 days from the date of this
within 20 days from the date of the receipt of this Decision, Order, what steps the Respondent has taken to comply herewith."