Operating Engineers Local 302

National Labor Relations Board - Board Decisions

Jul 30, 1990

299 N.L.R.B. 245 (N.L.R.B. 1990)

OPERATING ENGINEERS LOCAL 302 245
International Union of Operating Engineers, Local
302 and Cay Shoemake and Office and Profes-
sional Employees International Union, Local 8.
Cases 19-CA-20237 and 19-CA-20319
July 30, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On October 18, 1989, Administrative Law Judge
George Chnstensen issued the attached decision
The Respondent filed exceptions and a supporting
brief, and the General Counsel and the Charging
Party Union filed cross-exceptions and briefs both
in support of the cross-exceptions and in reply to
the Respondent's exceptions The Respondent sub-
sequently filed a bnef m reply to the cross-excep-
tions
The National Labor Relations Board has delegat-
ed its authonty in this proceedmg to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions' and bnefs and
has decided to affirm the judge's rulmgs, 2 find-
mgs, 3 and conclusions as modified4 and to adopt
I The cross-exceptions of the General Counsel and the Charging Party
Union to the judge's dismissal of the complaint's 8(a)(5) allegations are
conditioned on the possibility of our reversal of the 8(a)(4) violation in
the Respondent's "economic layoff" of employee Cay Shoemake Be-
cause we are affirming the 8(a)(4) violation, we find It unnecessary to
review the 8(a)(5) dismissal, and we adopt the dismissal in the absence of
effective exceptions
2 We deny the Respondent's exception to the judge's evidentiary ruling
in admitting G C Exh 7, a copy of a letter dated Apnl 7, 1988, from
Warren Gore to employee Shoemake concerning her semonty status We
note that, in any event, the Respondent has demonstrated no prejudice by
the admission of the document There was other evidence establishing
Shoemake's semonty for layoff purposes, and the finding that the Re-
spondent failed to show that its layoff decision was justified by business
considerations is in no way dependent on that exhibit
3 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 Or 1951)
We have carefully examined the record and find no basis for reversing
the findings
In addition, some of the Respondent's exceptions imply that the judge's
rulings, findings, and conclusions demonstrate bias and prejudice On
careful examination of the judge's decision and the entire record, we are
satisfied that such contentions are without ment
4 In affirming the judge's finding that the Respondent violated Sec
8(aX1) by its agent Robert Anders' February 21, 1989 statements to em-
ployee Shena McAlister, Shoemake's sister, we note that the full meaning
and unlawful quality of the statements became clear no later than March
1, 1989, when Shoemake was terminated In this light, Anders' statements
unlawfully conveyed the message that McAlister and other employees
nsked the Respondent's surveillance as well as retaliation if suspected of
reporting information concerning charges of unlawful activity to the
Board Member Devaney finds It unnecessary to rely on this additional
rationale
the recommended Order as modified and set out in
full below 5
ORDER
The National Labor Relations Board orders that
the Respondent, International Union of Operating
Engineers, Local 302, Seattle, Washington, its offi-
cers, agents, and representatives, shall
1 Cease and desist from
(a) Making statements to employees indicating
that they risk surveillance of their activities and re-
taliation if suspected of reporting information con-
cerning charges of unlawful activity to the Board
(b) Terminating or laying off its clerical employ-
ees because it believes those employees furnished
information supporting charges that Local 302 has
engaged in unfair labor practices in violation of the
National Labor Relations Act
(c) In any like or related manner mterfenng
with, restraining, or coercmg employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Offer Cay Shoemake immediate and full rein-
statement to her former job or, if that job no
longer exists, to a substantially equivalent position
without prejudice to her semonty or any other
rights or privileges previously enjoyed, and make
her whole for any loss of earnings and other bene-
fits suffered due to the discnmmation against her,
in the manner set forth in the remedy section of the
judge's decision
(b) Remove from its files any reference to Cay
Shoemake's unlawful termination or layoff and
notify her in wntmg that this has been done and
that the termination or layoff will not be used
against her in any way
(c) Preserve and, on request, make available to
the Board and its agents, for examination and copy-
ing, all payroll records, social secunty payment
records, time cards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(d) Post at its Seattle, Washington, and Anchor-
age, Alaska facilities copies of the attached notice
marked "Appendix "6 Copies of the notice, on
5 Our Order corrects several Inadvertent errors in the judge's recom-
mended Order, notably the inclusion in the cease-and-desist order of lan-
guage inconsistent with his findings, the omission of a prohibition against
like or related conduct, and the imposition of a posting requirement that
goes beyond the scope of the violations found
° If this Order is enforced by a judgment of a United States court of
appeals, the words in the nonce 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"
299 NLRB No 30
246 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
forms provided by the Regional Director for
Region 19, after being signed by the Respondent's
authorized representative, shall be posted by the
Respondent immediately upon receipt and main-
tained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted Reasonable steps
shall be taken by the Respondent to ensure that the
notices are not altered, defaced or covered by any
other matenal
(e) Notify the Regional Director in wntmg
within 20 days from the date of this Order what
steps the Respondent has taken to comply
/
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
Section 7 of the Act gives employees these nghts
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities
WE WILL NOT make statements to you that indi-
cate that you risk surveillance of your activities
and retaliation if we suspect you of reporting infor-
mation concerning charges of unlawful activity to
the National Labor Relations Board
WE WILL NOT terminate you or lay you off or
otherwise discriminate against you because we be-
lieve you have furnished information supporting
charges that we have engaged in unfair labor prac-
tices in violation of the Act
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL offer Cay Shoemake immediate and
full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any
other rights or pnvileges previously enjoyed, and
WE WILL make her whole for any loss of earnings
and other benefits resulting from her unlawful
layoff, with interest
WE WILL notify her that we have removed from
our files any reference to her unlawful layoff and
that the layoff will not be used against her in any
way
INTERNATIONAL UNION OF OPERAT-
ING ENGINEERS, LOCAL 302
Scott Burson, for the General Counsel
Steven B Frank (Frank & Rosen), of Seattle, Washington,
for Local 302
DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Administrative Law Judge
On June 6 and 7, 1989, 1 I conducted a heanng at Seattle,
Washington, to try issues raised by those portions of a
consolidated complaint issued on May 22, based on
charges filed by Shoemake on March 29, and by Office
and Professional Employees International Union, Local 8
(Local 8) on May 10 2
The General Counsel (GC) alleges and Local 302
denies (1) Local 302 violated Section 8(a)(1) of the Na-
tional Labor Relations Act (Act) by remarks addressed
to Shena McAlister by Local 302 Distnct Representative
Robert Anders, (2) Local 302 violated Section 8(a)(1)
and (4) of the Act by terminating or laying off Shoemake
because its officials suspected Shoemake provided infor-
mation to agents of the National Labor Relations Board
(Board) supporting Gore's charges against Local 302,
and (3) Local 302 violated Section 8(a)(1) and (5) of the
Act by terminating or laying off Shoemake without pnor
notice to Local 8, her collective-bargaining representa-
tive, and affording Local 8 an opportunity to bargain
over the termination or layoff and its effects
The issues created by the foregoing are (1) whether
Anders made the remarks attnbuted to him, (2) if so,
whether Local 302 thereby violated the Act, (3) whether
Local 302 terminated or laid off Shoemake because its
officials suspected Shoemake provided information to
Board agents supporting Gore's charges against Local
302, (4) if so, whether Local 302 thereby violated the
Act, (5) whether by terminating or laying off Shoemake
without prior notice to Local 8 and without affording
Local 8 an opportunity to bargain over the termination
or layoff and its effects, Local 302 violated the Act
The GC and Local 302 appeared by counsel and were
afforded full opportunity to adduce evidence, examine
and cross-examine witnesses, to argue, and to file bnefs
The GC and Local 302 filed briefs
' Read 1989 after further date references omitting the year
2 Cases 19-CB-6465 and 19-CB-6482, based on charges filed against
International Union of Operating Engineers, Local 302 (Local 302) by
Warren Gore and Gregg Ortega as individuals, were initially consolidat-
ed with Cases 19-CA-20237 and 19-CA-20319 for hearing and decision
Prior to hearing, however, those portions of the consolidated complaint
stemming from the Gore and Ortega charges were severed by the Gener-
al Counsel due to settlement thereof
OPERATING ENGINEERS, LOCAL 302 247
Based on my review of the entire record, observation
of the witnesses, perusal of the briefs and research, I
enter the followmg3
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT AND THE
LABOR ORGANIZATIONS INVOLVED
The complaint alleged, the answer admitted, and I find
at all pertinent times Local 302 was an employer en-
gaged in commerce in a business affecting commerce and
Locals 302 and 8 were labor organizations within the
meaning of the Act
II THE ALLEGED UNFAIR LABOR PRACTICES
A Facts
Local 302's jurisdiction extends over the western por-
tion of the State of Washington and the entire State of
Alaska It is organized into districts and maintains
offices/hiring hallsqn each district at Seattle, Wenatchee,
and Yakima, Washington, plus Anchorage, Fairbanks,
and Juneau, Alaska
Its Seattle office is also its headquarters
Each district is headed by a district representative,
who assigns and directs the district's field representa-
tives, dispatcher, and clencals (including hiring and dis-
charging the latter)
An election of officers of Local 302 was held in the
summer of 1988 It was contested and resulted in the
ouster of the incumbent administration, including Busi-
ness Manager Frank Polsak and Financial Secretary
Warren Gore, who were replaced by Val Albert and
Henry Amoux The new administration assumed office
on September 6, 1988 Two of the nine clericals em-
ployed at the Seattle headquarters/offices/hiring hall re-
signed their employment at the time the defeated incum-
bents left office and were not replaced
Carrying out their major campaign promise of reduc-
ing Local 302's expenditures, 4 the new administration in-
stituted a number of economies, it did not replace the
two clericals who resigned in early September 1988, it
reduced the salaries and expenses of the business manag-
er, his administrative assistant, district representatives,
and field representatives, reduced the number of field
representatives, reduced clerical overtime, etc, so by the
beginning of 1989 Local 302's current mcome was suffi-
cient to meet current expenses
In April 1982, Shoemake was hired as a clerical by
then District Representative Warren Gore at Local 302's
Anchorage office/hiring hall In 1984 the Anchorage
office installed a computer and Shoemake assumed the
duties of programming and utilizing the computer It was
3 While every apparent or nonapparent conflict in the evidence has not
been specifically resolved below, my findings are based on my examina-
tion of the entire record, my observation of the witnesses' demeanor
while testifying, and my evaluation of the reliability of their testimony,
therefore any testimony in the record which is inconsistent with my find-
ings is discredited
4 For some time under Local 302's previous administration, current ex-
penditures exceeded current income and the former administration was
selling assets to meet current bills
used to maintain constantly updated out-of-work lists,
member registrations, dispatches, registration removals
(due to dispatch, failure to timely reregister, death, un-
availability, etc ), as well as to maintain dues payment
records, fund payment records, generate reports, etc All
input and output were entered and extracted by Shoe-
make She also handled correspondence, communications
with registrants, and other duties, including responses to
inquiries by Board agents concerning aspects of the An-
chorage hiring hall operations
In 1987, Gore was appointed Local 302's financial sec-
retary and moved to Local 302's Seattle headquarters
Robert Anders became the Local 302 district representa-
tive in charge of the Anchorage office Following Gore's
departure from Anchorage, Shoemake continued in her
capacity as an Anchorage clerical and her sister, Shena
McAlister, was hired as an additional Anchorage cleri-
cal
In March 1988, Gore asked Shoemake to accept a
transfer to Local 302's Seattle office/hiring hall to install,
program and operate the same computer system he in-
stalled at Anchorage As an inducement, Gore formally
offered Shoemake her original hiring date at Anchorage
as her seniority date at Seattle 5
Shoemake accepted Gore's offer, moved to Seattle,
and set up and activated the same computer program she
instituted at Anchorage Her Seattle vacation entitle-
ments and grant, both in 1988 and 1989, were based on
her years of service at Anchorage and Seattle
The newly elected business manager, Val Albert, as-
sumed office on September 6, 1988 He promptly ap-
pointed his brother, Joe Albert, as his administrative as-
sistant Anders remained as charge of Local 302's Dis-
trict 6 (Anchorage), Shena McAlister continued in Local
302's employ as a clerical at Anchorage and Shoemake
continued in Local 302's employ as one of the seven
clencals actively employed at Seattle after September 6
With a reduced clerical staff, the Albert brothers ex-
panded Shoemake's duties to include relieving the office
receptionist, assisting the bookkeeper, handling outgoing
mail, assisting the clerical in charge of processing dues
records, etc (in addition to manning the computer locat-
ed in the hiring hall) 6
In performing duties associated with dispatches from
the Seattle hiring hall, Shoemake made appropriate en-
tries into the dispatch computer and on a record card
She followed the practice of noting unusual dispatches
(dispatches not in accordance with normal procedure) on
the appropriate record card
On September 7, 1988, she noted on the card of David
Albert, Val's son and Joe's nephew, David Albert's reg-
istration and dispatch to a job despite his nonentitlement
to such dispatch under normal practice, noting the out-
5 The Anchorage clencal employees were not represented by any
labor organization or covered by any collective-bargaining agreement
The Seattle clerical employees were represented by Local 8 and covered
by a collective-bargaining agreement for a term extending from January
I, 1988, through March 31, 1991 containing benefits provisions (such as
vacation entitlement) and layoff provisions based on semonty
6 The hiring hall operations were conducted on the first floor while
other clerical functions were conducted on the second floor of the build-
ing (including the use of a second computer)
248 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
of-order dispatch was authonzed by Joe Albert Similar-
ly, on January 24, 1989, she noted on the card of Donald
Thompson, Thompson's dispatch to a job despite his
nonentitlement to such dispatch under normal practice,
noting the out-of-order dispatch was authorized by Val
Albert
When 1989 vacations were scheduled for the Seattle
clencals, Shoemake was scheduled to take a portion of
her vacation entitlement between February 13 and 28, re-
turning to work March 1 7
Shoemake's last day at work prior to her vacation was
Friday, February 10 She received no intimation, either
on that or any earlier date, her continued employment
following her vacation was in jeopardy 8
The day prior to Shoemake's last day at work prior to
her vacation (February 9), Gore filed his charge in Case
19-CB-6465 with the Board's Seattle office, alleging
Local 302 violated the Act by operating its hiring hall in
a discriminatory fashion The same day, Gore telephoned
Shoemake, advised her of his charge, and requested she
provide the Board with any information in her posses-
sion concerning the merits of his charge
The evening of February 10, a Board agent investigat-
ing Gore's charge contacted Shoemake and asked her if
she was aware of any unusual dispatches from Local
302's Seattle hiring hall She responded by detailing the
David Albert and Donald Thompson dispatches set out
above
On February 13, Local 302 received a copy of Gore's
February 9 charge and on February 16, the GC repre-
sentative investigating the Gore charge sent a letter to
counsel for Local 302 confirming his earlier advice the
Board was investigating the legality of Local 302's dis-
patch of David Albert on September 7, 1988, and
Donald Thompson on January 24, 1989
During the week beginning February 15, Joe Albert
and Anders attended an AFL-CIO conference at Juneau,
Alaska Albert asked Anders how well he knew Shoe-
make Anders replied he knew her fairly well Albert
told Anders someone in the Seattle office was leaking in-
formation about dispatching practices there and asked
Anders if there was any connection between Gore and
Shoemake Anders replied any connection was limited to
business, Gore only asked Shoemake to transfer to Seat-
tle so she could install at Seattle the same computer dis-
patch procedures instituted at Anchorage, if someone
was leaking information regarding Seattle dispatches not
to suspect Shoemake Albert closed the conversation by
stating he and Val were investigating, he hoped the in-
7 The vacation schedules for 1988 and 1989 listed Shoemake as enti-
tled to 3 weeks of vacation per year under the Local 302-Local 8 con-
tract, based on service or seniority commencing in April 1982, the 1988
schedule showed she took 2 of the 3 weeks of her 1988 vacation entitle-
ment in 1988, carrying over 1 week to 1989, and took part of her 4-week
1989 entitlement between February 13-28
a To the contrary, Val and Joe Albert resisted her taking so long a va-
cation on the ground the current workload required the presence of all
seven clericals and reluctantly consented to her going on her scheduled
vacation following advice by Local 8 shop steward it was customary
practice for clencals to take vacations of whatever duration and timing
they desired plus her assurance other clencals would carry Shoemake's
workload during her absence
vestigation did not lead to Shoemake but if it did, she
"was going to be gone"
On the first workday following the Washington Birth-
day holiday (Monday, February 20), Anders called Shoe-
make's sister, Shena McAlister, into his Anchorage
office and told her he saw and conversed with Joe
Albert the previous week at Juneau and asked McAlister
if her sister had been communicating with Gore, McAlis-
ter replied she did not think so, Anders then told McA-
lister someone at the Seattle office was giving informa-
tion about job dispatches, the Alberts suspected Shoe-
make and, while he told Joe Albert he did not think it
was Shoemake and Joe should look elsewhere, he
wanted McAlister to know about the Alberts' suspicions
and Shoemake to be careful, since the Alberts were
watching her
On March 1, Shoemake returned to work She was
called into Val Albert's office shortly after her arrival
and handed a letter informing her he decided to cease
utilizing a computer for dispatch purposes, there was in-
sufficient other work to warrant her continued employ-
ment, she was the junior clerical employee at the Seattle
office, 9 and he therefore was laying her off Albert
handed her a check for termination and accrued vacation
pay, pursuant to applicable provisions of the Local 302-
Local 8 collective-bargaining agreement
Prior to Shoemake's March 1 termination or layoff,
Local 302 neither notified Local 8 of its intention to ter-
minate or lay off Shoemake nor bargained with Local 8
regarding the layoff or its effects
No replacement for Shoemake has been hired by
Local 302 since her termination or layoff, since that time
dispatches have been accomplished under the system in
effect prior to the installation of the computer system,
e, by hand entry onto cards and their filing in appropri-
ate order, Local 302, however, has continued to utilize a
computer in its other office operations at Seattle and in
both its office and dispatch operations at Anchorage and
Fairbanks 10
Anders testified the use of a computer at Anchorage
improved the dispatch operation there, enabled correla-
tion of data with other offices, and facilitated report
preparation That testimony is credited
B Analysis and Conclusions
1 The alleged Anders' violation
Section 8(a)(1) of the Act provides an employer vio-
lates that section by interfering with, restraining, or co-
ercing an employee in the exercise of his or her Section
7 right to (1) form, join, or assist a labor organization,
(2) bargain collectively through a representative of his or
her choosing, or (3) engage in other activity for the pur-
pose of mutual aid or protection
9 Based on the date she began work at Seattle, she was the junior cleri-
cal
10 While Anders testified Joe Albert Instructed him to discontinue use
of a computer for dispatch purposes at Anchorage, he was unable to fix
the timing of that instruction and Joe Albert did not testify either to the
Issuance of the instruction or its timing The record does not indicate
whether or during what periods the computers were in use at Local 302's
Wenatchee, Yakima, and Juneau offices/hiring halls
OPERATING ENGINEERS, LOCAL 302 249
Clearly Anders' February 21 remarks to McAlister did
not interfere with, restrain, or coerce McAlister's exer-
cise of her right to form, join, or assist a labor organiza-
tion or to bargain collectively through a representative
of her choosing
However well intentioned Anders' remarks may have
been, however, they carried the unmistakable message
McAlister and other clericals employed by Local 302
risked surveillance of their working and personal activi-
ties by Local 302 officials in the event those officials sus-
pected she or they were attempting to aid job registrants
at hiring halls operated by Local 302 by reporting what
she or they believed to be discriminatory and unlawful
administration of the job referral system in violation of
the Act and that she and they risked discipline if those
officials decided there was any basis for their suspicions
I find by Anders' conveyance of that message to
McAlister, Local 302 interfered with, restrained, and co-
erced McAlister's exercise of her Section 7 right to aid
employee/registrants at Local 302's hiring halls and
thereby violated Section 8(a)(1) of the Act
2 The alleged discriminatory discharge
The complaint alleged Local 302 violated Section
8(a)(1) and (4) of the Act by terminating or laying off
Shoemake for providing information supporting Gore's
unfair labor practice charges
Gore filed charges alleging Local 302 was administer-
ing its Seattle hiring hall in a discriminatory, unlawful
fashion violative of the Act on February 9 The same
date Gore advised Shoemake he had filed that charge
and requested she supply representatives of the GC with
information supporting his charge The following day
(February 10) Shoemake informed the GC representative
investigating the Gore charges of what she believed to
be discriminatory, unlawful September 7, 1988, and No-
vember 30, 1988 violative of the Act dispatches of David
Albert, the son of Val Albert and nephew of Joe Albert,
and of Donald Thompson on January 24, 1989
On February 10 and during the preceding week, Shoe-
make performed her normal job functions (entering and
retrieving information into and from the computer locat-
ed in the dispatch section of Local 302's Seattle offices,
entering hand-entries on the card system utilized in dis-
patch, etc ) Prior to her leaving work on February 10
for her planned vacation through February 28, neither
Shoemake nor the other six clericals employed at Local
302's Seattle office received any inkling the Alberts were
planning any changes in either operations or personnel
To the contrary, both Val and Joe Albert expressed con-
cern over the effect on Local 302's clerical operations of
Shoemake's absence
Following their February 13 receipt of a copy of
Gore's February 9 charges and information provided by
the GC representative investigating its merits that the
charges were supported by the September 7, 1988, and
November 30, 1988 dispatches of David Albert and the
January 24, 1989 dispatch of Donald Thompson, the
most cursory inspection of those registrants'dispatch
cards readily disclosed Shoemake noted the irregularity
of those dispatches and their special authorization by the
Alberts That the Alberts checked those dispatch records
and suspected Shoemake provided the information there-
on was evidenced the following week when Joe Albert
voiced that suspicion to Anders, stated he and Val were
watching her, and stated she was "going to be gone" if
they decided their suspicions had merit
As so often the situation in cases of this type, the evi-
dence recited above is circumstantial I nevertheless find
and conclude it sufficient to support a conclusion the Al-
berts decided Shoemake supplied the information con-
cerning the David Albert and Thompson dispatches
Gore and the GC representative investigating his charges
relied upon as basis for the Gore unfair labor practice al-
legations and terminated or laid off Shoemake therefor,
noting further the Alberts had to rely on Shoemake's
date of hire at Seattle to justify laying off Shoemake
rather than another clerical with a later seniority date—
despite their recognition she was entitled to vacations
based on her Anchorage hiring date under the terms of
the Local 302-Local 8 collective-bargaining agreement 11
I further conclude Local 302 failed to rebut the GC's
prima facie case Shoemake's termination/layoff was ef-
fected because of the Alberts' determination recited
above
Local 302's economic defense is destroyed by the fact
Local 302's economic health had been restored prior to
the Shoemake termination/layoff, which included reduc-
ing the clerical staff by two following Val Albert's as-
sumption of office The Alberts' decision to discontinue
use of a computer in its dispatch operations at Seattle is
readily explainable as a sham or subterfuge designed to
provide a basis for the Shoemake termination/layoff, par-
ticularly in view of Anders' testimony computer use
made the dispatch and report procedures and practices
faster and more efficient, plus Local 302's failure to es-
tablish the direction that Anders cease such use occurred
before the Shoemake termmation/layoff 12
Similarly, Local 302's contention Shoemake's April
1982 seniority date is invalid on the ground Gore lacked
authority to grant her that semonty date under the Local
302-Local 8 collective-bargaining agreement lacks merit
The constitution governing Local 302 provides its finan-
cial secretary shall perform various financial duties and
"such other duties which from time to time may be
delegated to him by the Local Union or other authori-
ties," Local 302's bylaws provide its business manager is
"in direct charge of all office employees and vested
with full authority to employ same," and Gore's un-
disputed testimony 13 established the then Local 302 busi-
" While Local 302 terms the Shoemake separation from employment a
layoff, it is readily apparent it Intends that separation to be permanent,
1 e, permanent in the sense if they avoid expanding the clencal staff for a
defined time period, under the terms of the collective-bargaining agree-
ment Shoemake will lose any recall rights (as well as the possibility Shoe-
make may fail to meet the terms for retention of recall nghts, such as a
monthly re-registration for possible recall)
12 It is more likely the direction was Issued by Joe Albert after the
Shoemake termination/layoff, to provide additional support for a defense
the elimination of computer use in dispatches was the basis for the Shoe-
make termination/layoff
' a Which I credit
250 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ness manager authorized and instructed him to offer
Shoemake her Anchorage date of hire as her seniority
date at Seattle and he made that offer in reliance on that
authority, Shoemake accepted his offer in reliance on its
validity, and Local 302 recognized and applied that se-
niority date to Shoemake's conditions of employment
thereafter 14
Based on the foregoing, I find and conclude Local 302
violated Section 8(a)(1) and (4) of the Act by its March
1, 1989 termination or layoff of Shoemake
3 The alleged refusal to bargain
The GC contends Local 302 violated Section 8(a)(1)
and (5) of the Act by failing to notify Local 8 of its in-
tention to terminate or lay off Shoemake and by failing
to bargain with Local 8 concerning the termination or
layoff and its effects prior to the termination or layoff
The Local 302-Local 8 collective-bargaining agree-
ment contains provisions for the layoff of Local 302's
clerical employees in seniority order, recall in the inverse
order, retention of seniority while on layoff for a speci-
fied time period, monthly notice to Local 302 during
layoff of availability, loss of recall rights if a laid-off em-
ployee fails to report for work within 5 days of receipt
of notice of recall and that Local 302 will not hire any
new employees until and unless all laid-off employees
have been offered recall
These provisions clearly confer upon Local 302 discre-
tion to effect layoffs, provided it applies the governing
provision (layoff in accordance with semonty standing)
and therefore relieves Local 302 of any duty under the
Act to notify and bargain with Local 8 prior to effecting
the layoff of an employee concerning its decision or the
effects thereof
I therefore recommend dismissal of those portions of
the complaint alleging by failing to notify and bargain
with Local 8 concerning its decision to terminate or lay
off Shoemake or its effect, Local 302 violated the Act
CONCLUSIONS OF LAW
1 At all pertinent times Local 302 was an employer
engaged in commerce in a business affecting commerce
14 It is further noted It was undisputed Gore negotiated and signed the
current Local 302-Local 8 collective-bargaining agreement pursuant to a
similar assignment and authorization by Local 302's then business manag-
er, the self-same agreement whose terms Local 302 relies upon as basis
for the Shoemake termination/layoff, and the self-same agreement Local
302 admittedly has applied since its execution to the rates of pay, wages,
hours, and working conditions of its Seattle clencals
and both Local 302 and Local 8 were labor organiza-
tions within the meaning of Section 2 of the Act
2 At all pertinent times Val Albert, Joe Albert, and
Robert Anders were supervisors and agents of Local 302
acting on its behalf within the meaning of Section 2 of
the Act
3 Local 302 violated Section 8(a)(1) of the Act by
Anders' February 21, 1989 statement to McAlister to the
effect Local 302's clerical employees risked surveillance
of their working and personal activities in the event
Local 302 officials suspected they were attempting to aid
registrants at Local 302's hiring halls by reporting what
they believed were discriminatory, unlawful job dis-
patches violative of the Act affecting those registrants
and risked retaliatory action against them if those offi-
cials felt their suspicions had merit
4 Local 302 violated Section 8(a)(1) and (4) of the Act
by terminating or laying off Shoemake on March 1, 1989
because its officials (Val and Joe Albert) believed Shoe-
make informed Gore and the GC representative investi-
gating Gore's unfair labor practice charges against Local
302 concerning what she believed were discriminatory,
unlawful dispatches violative of the Act of David Albert
and Thompson from the Local 302 Seattle hiring hall, at
the behest of Val and Joe Albert, which information
formed the basis of the Gore charges
5 Local 302 did not otherwise violate the Act
THE REMEDY
Having found Local 302 engaged in unfair labor prac-
tices, I recommend Local 302 be directed to cease and
desist therefrom and to take affirmative action designed
to effectuate the purpose of the Act
Having found Local 302 discnmmatonly terminated or
laid off Cay Shoemake, I recommend Local 302 be or-
dered to immediately reinstate Shoemake to her former
position or, if that position is not available, to an equiva-
lent position, with all seniority and other rights and
privileges restored, and to make Shoemake whole for
any wage and benefit losses she suffered by virtue of the
discrimination practices against her, less any interim
earnings, with the amounts due and interest thereon com-
puted in accordance with the formulas of New Horizons
for the Retarded, 283 NLRB 1173 (1987), Florida Steel
Corp, 231 NLRB 651 (1977)
[Recommended Order omitted from publication ]