Oregon State Employees Assn.

National Labor Relations Board - Board Decisions

Jun 11, 1979

242 N.L.R.B. 976 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Oregon State Employees Associationl and Angelo E.
Stephenson and Rodney A. Brown and Alvin E. Bai-
ley. Cases 36-CA-3246, 36-CA 3246 2, and 36-
CA-3246-3
June 11, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND MURPHY
On January 29, 1979, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed cross-exceptions, a supporting brief, and an an-
swering brief.
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 at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that Respondent, Oregon State Employees
Association, Portland, Oregon, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
I The General Counsel has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefull)
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this consolidated proceeding was held before me
from September 25 through September 28, 1978,' and is
based upon unfair labor practice charges filed against Ore-
gon State Employees Association, herein called Respon-
dent, by Angelo E. Stephenson, Rodney A. Brown, and
Alvin E. Bailey. The charge in Case 36-CA-3246 was filed
t All dates hereafter shall refer to 1978 unless otherwise specified.
by Stephenson March 14 and amended June 12. The charge
in Case 36-CA 3246-2 was filed by Brown April 10 and
amended April 18 and June 12. The charge in Case 36-CA-
3246 3 was filed by Bailey April 18 and amended June 13.
A consolidated complaint issued June 14 on behalf of the
General Counsel of the National Labor Relations Board,
herein called the Board, by the Regional Director of the
Board's Region 19, alleging that Respondent has engaged
in unthir labor practices within the meaning of Section
8(a)( I . (2), and (3) oft' the Act.2 Respondent tiled an answer
denying the commission of the alleged unfair labor prac-
tices.
i. II Al lt.GllD) L NFAIR PRAC( 1(1S
A. Backgroulnd ard sl.sue.s
Respondent is a labor organization which represents pub-
lic employees in the State of Oregon. Its principal office and
headquarters are in Salem. Oregon, and it has field offices
in Salem and Medford, Oregon. Oregon has been divided
into approximately 12 geographical districts by Respon-
dent, and each district is further divided into several chap-
ters. Respondent's general council is its supreme governing
body, which meets once a year. Between sessions of the
general council, Respondent's board of directors, which is
composed of Respondent's officers and district directors,
governs the affairs of Respondent. The day-to-day affairs of
Respondent are administered by an executive director, who
is appointed by the board of directors.' Respondent's execu-
tive director is Morton Shapiro.
During the time material herein Respondent employed
approximately 30 employees. The Portland office employed
four: the Medford office, two: and the remainder worked in
Salem. The employees' terms and conditions of employ-
ment, except for the executive director's, are governed by a
collective-bargaining agreement effective from July 1, 1977,
to July 1, 1979, which was negotiated on behalf of the em-
ployees by an employees' committee.
The three alleged discriminatees were employed by Re-
spondent on its professional staff: Bailey and Brown as em-
ployee representatives in the Portland office and Stephen-
son in the Salem office as the executive director's assistant.
The ultimate questions to be decided are as follows:
(1) Whether Respondent refused to pay Stephenson's
educational expenses and changed his job duties because of
his union or other protected concerted activities.
(2) Whether Respondent transferred Brown and changed
his job duties and refused to pay the expenses he incurred
as a result of the transfer, all because of his union or other
protected concerted activities.
(3) Whether Respondent discharged Stephenson. Bailey,
2 It will effectuate the policies of the Act for the Board to assert jurisdic-
lion over these cases. The record establishes, and Respondent admits. it is an
employer engaged in commerce within the meaning of Sec. 2(6) and (7) of
the Act and meets the Board's applicable discretionary jurisdictional stan-
dard.
I Article 9 of Respondent's constitution provides that administration of the
affairs of Respondent is vested in its board of directors and further provides
that the board shall employ an executive director who shall be Respondent's
chief administrative officer and "who is authorized to employ such staff as
may be required to administer the affairs of [Respondent]l."
242 NLRB No. 150
976
OREGON STATE EMPLOYEES ASSN.
and Brown because of their union or other protected con-
certed activities.
(4) Whether Respondent dominated and interfered with
the administration of its employees' labor organization.
B. Bailev's and Stephenson l' Enplhvee Stamtus
1. Introduction
Respondent contends that, assuming its conduct toward
Bailey and Stephenson was illegally motivated, as alleged in
the consolidated complaint, it did not violate the Act, be-
cause Bailey was a statutory supervisor, and Stephenson
was either a statutory supervisor or a managerial employee:
hence, they were not entitled to the protection of the Act.
The evidence pertaining to this contention is set forth and
evaluated below. But first I shall set out the applicable prin-
ciples of law.
As defined by Section 2(11) of the Act, a "supervisor" is
"any individual having authority, in the interest of the em-
ployer, to hire, transfer, suspend, lay off, recall, promote,
discharge, assign, reward, or discipline other employees, or
responsibly to direct them, or to adjust their grievances, or
effectively to recommend such action, if in connection with
the foregoing the exercise of such authority is not merely of
a routine or clerical nature, but requires the use of indepen-
dent judgment." While it is settled that Section 2( i )'s list
of supervisory powers is to be read in the disjunctive, the
section also "states the requirement of independence of
judgment in the conjunctive (i.e., in connection) with what
goes before." (Emphasis in the original.) Poultry Enter-
prises, Inc. v. N.L.R.B., 216 F.2d 798, 802 (5th Cir. 1954). It
is, therefore, not enough that an individual has authority to
perform one of the functions listed in Section 2(1 1); such an
individual must consistently display true independence of
judgment in implementing this authority. Moreover, it is
settled that the performance of some supervisory tasks in a
merely routine, clerical, perfunctory, or sporadic manner
does not elevate a rank-and-file employee to the supervisory
level, nor do isolated or infrequent incidents of supervision
make an employee a supervisor. N.L.R.B. v. Security Guard
Service, Inc., 384 F.2d 143, 149 (5th Cir. 1967); N.L.R.B. v.
City Yellow Cab Company, 344 F.2d 575, 579-582 (6th Cir.
1965); Verlin L. Pulley and Caroln Pulley, dbla Capital-
Varsity Cleaning Co. v. N.L.R.B., 395 F.2d 870, 875 (C.A.
6); N.L.R.B. v. Doctor's Hospital of Modesto, Inc., 489 F.2d
772, 776 (9th Cir. 1973).
2. Bailey's employee status
Bailey was hired by Respondent in January 1976 and
assigned to its Salem office as an employee representative.
In March 1976 he was transferred to the Portland office,
wher. he joined employee representatives Ward and
DeLuca and an office clerical. DeLuca was in charge of the
Portland office; however, there is no evidence that he pos-
sessed the authority of a statutory supervisor. In approxi-
mately April or May 1977 DeLuca was transferred to Sa-
lem. In October 1977 the complement of employee
representatives in Portland was once again increased to
three, when employee representative Brown was transferred
from Salem.
In July 1977, approximately 2 or 3 months after
DeLuca's transfer, Bailey asked Executive Director Shapiro
to be placed in charge of the Portland office. Shapiro re-
fused. Hte explained to Bailec that he did not intend to
place anyone in charge of the Portland office, because such
an announcement would humiliate [)eLuca, who had just
recently been transferred out of that position, as it would
create the appearance that DeLuca's transfer had been an
act of discipline . Ihereafter, in 1977, following the negotia-
tion of the collective-bargaining agreement between Re-
spondent and the employees' committee, which established
the employees' terms and conditions of employment, Bailey
asked Shapiro for a merit raise over and above the raise he
would normally be entitled to under the terms of the new
bargaining agreement. Bailey also asked to be designated as
"special coordinator," with the authority to handle prob-
lems in the Portland office. Shapiro turned down this re-
quest. He explained to Bailey that he did not want to create
titles and did not feel that the Portland office needed a
managerial person, but acknowledged that Bailey's work
warranted a merit raise and indicated Bailey would receive
such a pay raise. In fact, Bailey's salary was raised to the
top of the contractual pay range for an employee represent-
ative. And, even though he had turned down Bailey's re-
quest for a title, Shapiro, at a staff meeting in October 1977,
announced that Bailey was "in charge" of the Portland of-
fice.'
There is no evidence, nor does Respondent apparently
contend, that Bailey possessed the authority to transfer, sus-
pend, lay off, recall, promote, reward, or discipline other
employees or to adjust their grievances. Quite the opposite,
the record reveals that Bailey was not consulted by Shapiro
concerning the transfer of employees6 or the reward of em-
ployees or employees' discipline, nor did Bailey evaluate
employees' work performances or schedule their time off.'
Respondent argues that Bailey was a statutory supervisor
because he possessed the authority to hire employees, as-
sign them work, and responsibly direct them in their work.
I disagree.
In urging that Bailey was authorized to hire employees,
Respondent points to the employment on August 1, 1977,
of Elsie Livingstone as a secretary in the Portland office.
The circumstances surrounding Livingstone's hire refute
this contention. In the latter part of July 1977 the secretary
employed in Portland, Pat Snyder, gave notice that she in-
tended to terminate her employment in the immediate fu-
ture. Bailey, acting upon Shapiro's instruction, directed
Snyder to have an employment agency refer several appli-
4 [ have rejected Shapiro's testimony that in July 1977 he notified Bailey
that Bailey was in charge of the Portland office. Bailey, in testifying about
his job duties and authonty. impressed me as the more credible witness;
hence. I have credited his testimony.
5 Paula Chinn, an employee representative, testified that Shapiro's an-
nouncement to the staff that Bailey was in charge of the Portland office was
made in July 1977. Neither Shapiro nor any other member of the staff cor-
roborated this testimony. Bailey testified Shapiro made this announcement
in October 1977. On matters pertaining to his alleged supervisory status,
Bailey impressed me as a more convincing witness than Chinn. so I have
credited his testimony.
6 Shapiro transferred Brown from Portland to Salem without consulting or
even notifying Bailey.
7Once when Bailey allowed the office secretary to take a particular day
off, he was overruled by Business Manager Martens.
977
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
canis for Snyder to interview to determine which ones were
technically qualitied. Snyder then referred the applicants
she felt were qualified to Bailey, who interviewed them.
Bailey concluded that Livingstone was the most qualified
and told her she had the job. When Bailey told Shapiro that
he had hired a replacement for Snyder, Shapiro informed
him that he lacked the authority to hire an office secretary
and that Respondent's business manager, Martens, would
visit Portland the next day to interview all of the applicants,
including Livingstone. Martens interviewed the several ap-
plicants and, when she interviewed Livingstone, told Liv-
ingstone that Martens was the clerical employees' supervi-
sor and that whoever was hired to fill the clerical position in
Portland would take her orders directly from Martens. Sub-
sequently, Martens informed Livingstone that she had the
job and would he working for both Ward and Bailey. Mar-
tens also advised Livingstone that she would work directly
for Martens, who would schedule her vacations and handle
her raises. Martens, neither at that time nor at any time
never indicated to Livingstone that Bailey occupied a posi-
tion of authority in the Portland office.8
Regarding the work assignment of the employees as-
signed to the Portland office, the record establishes that
when DeLuca was in charge, the employee representatives
decided upon their work assignments by mutual agreement.
DeLuca did not assign them their work. The representa-
tives, based upon an agreement among themselves, divided
up the geographical area serviced by the Portland office so
that each representative was allotted certain areas either
alone or in tandem with another representative. This was
the same procedure used to assign the work during Bailey's
tenure. The sole exception to this procedure whereby the
employee representatives assigned to the Portland office de-
cided upon their work assignments by mutual agreement
was when Bailey assigned certain work to Ward at Sha-
piro's direction. Also, when Brown was initially assigned to
Portland, Shapiro's special assistant, Gallagher, directed
Bailey to assign Brown to service the agencies located in
certain designated geographical areas.9
On the subject of grievance processing, the record shows
that normally an employee representative handled those
employee grievances which were generated by the employ-
ees who worked at the agencies serviced by that representa-
tive. The grievances which were phoned into the office for
immediate attention were referred by the office secretary to
I Shapiro testified that the reason he vetoed Bailey's employment of Liv-
ingstone was that Bailey had acted contrary to Shapiro's instructions. Specif-
ically, Bailey did not use the employment agency Shapiro had specified and
did not, as Shapiro instructed, have Martens interview the applicants for
technical competence. Shapiro further testified that when he learned Bailey
had disobeyed his instructions, he vetoed the employment of Livingstone
until Bailey had carried them out. Shapiro significantly failed to testify con-
cernin o what was said, if anything, by him to Bailey when he learned of
Bailey's alleged flagrant disregard of his instructions, nor did Respondent
call upon Martens to corroborate Shapiro's testimony. Under these circum-
stances, plus the fact that Bailey impressed me as a credible witness when
testifying about this matter and the undenied testimony of Livingstone
which, consistent with Bailey's, indicates that Shapiro vetoed Bailey's deci-
sion to hire Livingstone because Business Manager Martens had the author-
ity to hire Livingstone, I have rejected Shapiro's testimony.
9 It appears that when Brown, Bailey, and Ward decided upon the particu-
lar geographical areas they would service, Gallagher's instructions were dis-
regarded in part.
whichever employee representative happened to be avail-
able. Bailey did not assign grievances to the employee rep-
resentatives for processing.
Finally, the record does not support the contention that
Bailey responsibly directed other employees.' 0 There is no
evidence that Bailey exercised any kind of control over the
day-to-day work of the employee representatives who
worked in Portland. Rather, the record indicates that Ex-
ecutive Director Shapiro kept a close watch over the opera-
tion of the Portland office and responsibly directed the
work of that office by means of reviewing the weekly re-
ports which each employee representative was required to
submit to Shapiro, by speaking personally to the employee
representatives at the weekly staff meetings, and by speak-
ing with Bailey either personally or over the phone during
the course of the workweek, at which time Bailey kept Sha-
piro informed of the day-to-day problems encountered in
Portland." Indeed, in the case of handling grievances, the
record indicates that if anyone other than Shapiro was exer-
cising "supervision" over the employee representatives'
grievance handling, it was employee representative Webb,
not Bailey. Thus, early in January at a board of directors'
meeting, Shapiro announced that employee representative
Webb, who was assigned to the Salem office, had been ap-
pointed by Shapiro to be the supervisor of the employee
representatives. Thereafter, Webb visited the Portland of-
fice and met with the employee representatives, at which
time he discussed the grievances which they were handling,
particularly those which the representatives indicated to
Webb they were having problems handling.
Based upon the foregoing I find that Bailey is not a su-
pervisor within the meaning of Section 2(11) of the Act. In
reaching this conclusion I have considered: (I) Shapiro's
announcement to the staff that Bailey was "in charge" of
the Portland office: 2 (2) that when Bailey applied for a job
' The only evidence pointed to by Respondent in support of its argument
that Bailey exercises such authority is that Bailey, after first consulting with
Shapiro and then with employee representatives Ward and Brown, instituted
a procedure in the Portland office whereby Bailey would personally visit
those grievants whose grievances were not meritonous and explain to them
Respondent's decisions not to process their grievances. While there are indi-
cations that this procedure was adopted pursuant to an effective recommen-
dation by Bailey to Shapiro or was instituted unilaterally by Bailey, after
consulting with the other employee representatives, it is an isolated instance
of the exercise of supervisory authonty which is insufficient to establish su-
pervisory status.
" Considering the fact that this case involves union business representa-
tives, it is not surprising that Shapiro, although his office is in Salem, is in a
position to supervise the work of the employee representatives who work in
the Portland area. Thus, as the Board has noted in past cases involving union
business representatives, the work of these employees militates against close
supervision, as of necessity they must exercise considerable discretion and
are expected to discharge their responsibilities with a minimum of supervi-
sion. See International Ladies' Garment Workers' Union, AFL-CIO v.
N.L.R.., 339 F.2d 116, 123 (2d Cir. 1964); Retail Store Employees Union
Local 880, Retail Clerks InlernationalAssociation, AFL-CIO, 153 NLRB 255
(1965); American Federation of Labor and Congress of Industrial Organiza-
tions, 120 NLRB 969, 972-973 (1958).
12 The law is settled that certain words which supposedly attach supervisor
status to an individual, such as "direct," "supervise," "instruct," or "work
under," do not establish that a person is a supervisor in the statutory sense
absent evidence that the person possessed at least one of the indicia of a
supervisor set forth i Sec. 2(11) of the Act. See Westinghouse Electric Corpo-
ration v. N.L.R.B., 424 F.2d 1151, 1156 (7th Cir. 1970). ("There is enough
play in the meaning of those terms [referring to direct or supervise, etc.l that
the board is not bound to equate them with supervision in the statutory
sense.")
978
OREGON STATE EMPL.OYEES ASSN.
with another employer, he described his position with Re-
spondent as that of "Director" of the Portland office, where
he "supervised" the employees; (3) that Bailey received a
substantial increase in pay at the time Shapiro announced
that he was in charge of the Portland office; and (4) that
employee representative Ward regarded Bailey as a mem-
ber of management. In my opinion, consideration of this
evidence, which is only secondary indicia of supervisory
status, is not controlling, because there is a lack of evidence
of actual possession of supervisory authority.
3. Stephenson's employee status
In urging that Stephenson was a supervisor within the
meaning of Section 2(1 1) of the Act, Respondent contends
that he possessed the authority to responsibly direct the
work of employee representative Webb in the southern part
of Oregon; responsibly directed the collective-bargaining
negotiation work of all the employee representatives and
assigned them this type of work, using his independent
judgment; disciplined employee representatives or effec-
tively recommended their discipline; effectively recom-
mended personnel decisions involving employees' work as-
signments and discharged employees; assigned statewide
grievances to employee representatives, using his indepen-
dent judgment; and effectively recommended the hiring of
employees. I reject these contentions for the reasons set
forth herein and conclude that the evidence is insufficient to
establish that Stephenson possessed any of the statutory in-
dicia enumerated in Section 2(11) of the Act.'" In conclud-
ing that Stephenson is not a statutory supervisor, I have not
overlooked the record evidence concerning nonstatutory
criteria, such as his higher earnings than those of other em-
ployees and the fact that certain employees regarded him as
a part of management. However, it is settled that disparity
in compensation cannot be "accorded litmus paper signif-
icance in the absence of solid evidence of actual possession
of supervisory responsibility." Oil, Chemical and Atomic
Workers Internation Union, AFL-CIO v. N.L.R.B., 445
F.2d 237, 242 (D.C. Cir. 1971). Likewise, the fact that some
employees viewed Stephenson as a part of management is
not dispositive inasmuch as consideration of such evidence
1 Likewise I reject Respondent's alternative contention that the record
establishes that Stephenson was a managerial employee. The record fails to
establish that Stephenson formulated and effectuated management policies
or that he had discretion to perform independent of company policy. See
N.L.R.B. v. Bell Aerospace Company, Division of Textron, Inc., 416 U.S. 267
(1974). The substantive terms of the agency contracts Stephenson negotiated
were initially submitted to him by the membership. After Stephenson drafted
the contract language, but prior to its submission to the employers, the con-
tract language was submitted to the membership for approval. Even after
management's approval of a final agreement, it had to be ratified by the
membership. Likewise, in negotiating the terms of the central contract, Ste-
phenson was required to comply with the wishes of the membership on
whose behalf he was negotiating and who had the right to ratify the contract
before it became binding. In addition, Stephenson's proposals had to con-
form to the bargaining policies developed by Respondent's central negotia-
tion and planning committee. In short, I am of the opinion that Stephenson's
role in the negotiation of' collective-bargaining agreements was not signifi-
cantly different than the role of the union representatives who have in the
past been found not to have been managenal employees. See American Fed-
eration of Labor, supra, 120 NLRB at 973 974: ILGWU v. N.L. R.B., supra at
123; Retail Clerks International Association, AFL-CIO, et al v N.L.R.B.,
366 F.2d 642, 645 (D.C. Cir. 1966).
is not controlling until there is evidence of actual possession
of supervisory authority.
The record, as described herein, does not establish that
while he was in charge of the southern part of Oregon,
Stephenson possessed a single indicia of supervisory status
enumerated in Section 2(1 1) of the Act.
In September 1975 Stephenson was hired as an employee
representative and assigned by Executive Director Shapiro
to service the agencies located in the southern part of Ore-
gon. In about May 1976 Shapiro hired Gordon Webb as an
employee representative, at which time Shapiro divided the
southern part of Oregon into two and assigned one part to
Stephenson and the other to Webb and announced to the
staff that Stephenson was in charge of the southern part of
the State" and that Webb was assigned to that part of the
State. Webb had no experience as a union business repre-
sentative, so Stephenson accompanied him initially on his
assignments and instructed him how to perform his job.
Thereafter, Webb consulted Stephenson whenever he had
any problems. Shapiro's announcement that Stephenson
was in charge of the southern part of the State did not result
in Stephenson being given a title indicating he was a mem-
ber of management, nor is there any evidence or contention
that he was granted a pay raise. Stephenson. like Webb,
remained an "employee representative," who continued
working full time servicing the bargaining units assigned to
him by Shapiro until, as described supra, he was appointed
Shapiro's special assistant. Webb and Stephenson sub-
mitted weekly reports to Shapiro and attended the weekly
staff meetings conducted by Shapiro.
Webb's conclusionary testimony that Stephenson as-
signed him his work does not establish Stephenson's super-
visory status. No evidence was presented which establishes
that Stephenson exercised his independent judgment rather
than merely acted in a routine manner when he made work
assignments to Webb. I am not prepared to infer that Ste-
phenson exercised independent judgment or that the assign-
ments were otherwise nonroutine where, as here, during the
period he allegedly supervised Webb in the southern part of
the State, there is a complete lack of evidence that Stephen-
son possessed even one of the other indicia of a supervisor
enumerated in Section 2( 1) or possessed any of the second-
ary indicia normally associated with supervisory status.'
Based on the foregoing, I am of the opinion that the work
relationship between Stephenson and Webb in connection
with Webb's work in the southern part of the State was
'4 Shapiro's announcement that Stephenson was in charge of the southern
part of the State does not establish that he was a supervisor in the statutory
sense where, as here, there is a lack of evidence that Stephenson possessed at
least one of the indicia of a supervisor enumerated in Sec. 2( 1). See, Oil,
Chemical and Atomic Workers International Union v. N.L R.B., supra 445
F.2d at 243-244; Westinghouse Electric Corp. v. N LR.B., supra, 424 F.2d
1151, 1156.
'' Although Stephenson's once verbally reprimanded Webb for deviating
from his work schedule, this is insufficient to establish Stephenson's supervi-
sory status within the meaning of the Act. The reprimand was an isolated
episode. In addition, it was given only after Stephenson had gotten Shapiro's
permission, and there is no evidence or contention that the repnmand had
any effect on Webb's employment record
979
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merely that of an experienced employee giving instruction
to a less knowledgeable one in order that the inexperienced
employee might effectively perform his work and that in
exercising this kind of supervision Stephenson was not a
supervisor within the meaning of Section 2(11) of the Act.'"
II.
Early in 1977 Executive Director Shapiro notified em-
ployee representatives Gallagher and Stephenson that they
were appointed to the newly created positions of special
assistants to the executive director. Shapiro explained that,
as his special assistant, Stephenson would report directly to
him and "oversee" collective-bargaining negotiations. Sha-
piro stated that the reason for Stephenson's appointment
was Shapiro's belief that he had a special talent for negoti-
ating collective-bargaining contracts and was the only em-
ployee representative qualified to negotiate the central con-
tract." In addition, Shapiro told Stephenson that, as his
special assistant, he would be responsible for drafting the
contract language and negotiating the central contract, re-
opening the agency contracts for negotiation in a timely
fashion, and drafting contract language for the several
agency contracts, negotiating these contracts, and "getting
the negotiators for the [agency] contracts.""
Immediately after he notified Gallagher and Stephenson
about their promotions, Shapiro announced it to the staff,
at which time he also stated that Stephenson would be Re-
spondent's chief negotiator for collective-bargaining nego-
tiations and that two persons would be assigned to work for
Stephenson negotiating contracts. This description of Sha-
piro's announcement to the staff is based upon the testi-
mony of employee representative Webb, a witness called by
Respondent, who, on this subject, impressed me as a more
credible witness than either employee representative Bailey
or Chinn, who also testified about this announcement.
Chinn, on matters involving Stephenson's job duties, did
not impress me as a reliable or trustworthy witness, and
because of this, unless otherwise indicated, I have rejected
her testimony concerning this subject matter in each in-
stance where it has been specifically denied or otherwise
contradicted and has not been corroborated by the testi-
mony of a credible witness. In this regard, I also note that
Chinn testified that, following their appointments as special
assistants, either Gallagher or Stephenson chaired the
weekly staff meetings and that Shapiro only infrequently
attended such meetings. This testimony is without corrobo-
16 It is settled that "routine direction of the type customarily exercised by
experienced employees over those less skilled does not confer supervisory
status within the meaning of the Act." Beth Israel Medical Center, 229
NLRB 295 (1977), and Westinghouse Electric Corp. v. N.L.R.B. supra, 424
F.2d at 1156 fn. 5.
1" Rt pondent negotiates a central contract with the State of Oregon which
covers each unit represented by Respondent and establishes the wages,
hours, and other conditions of employment which are common to all the
units. Following the negotiation of the central contract, Respondent and the
various state agencies whose employees are represented by Respondent ne-
gotiate separate agency contracts which cover the terms and conditions of
employment unique to those agencies.
l" This description of Shapiro's comments about Stephenson's job duties,
which were voiced to Stephenson and Gallagher, is based upon Gallagher's
testimony. Shapiro and Stephenson also testified about this meeting; how-
ever, Gallagher on this subject impressed me as the more credible witness.
ration, and the credible testimony of Brown, Bailey, and
Stephenson establishes that Shapiro continued to regularly
chair the weekly staff meetings and that Stephenson chaired
such a meeting only once, when, due to the press of other
business, Shapiro was absent, so Gallagher and Stephenson
agreed that Stephenson would chair the meeting inasmuch
as Stephenson had certain matters to discuss with the staff
that day.
During the negotiations of the central contract in 1977,
Stephenson, on behalf of Respondent, drafted the contract
language and was Respondent's chief negotiator. Following
the completion of negotiation of the central contract in
1977, Stephenson drafted contract language for the agency
contracts and personally negotiated 50 percent of them.
The remaining ones were negotiated by other members of
the staff. The record reveals that Stephenson assigned ap-
proximately seven or eight agency contracts to other em-
ployee representatives for negotiation but that Shapiro, un-
der circumstances described infra, assigned the majority of
these contracts to other negotiators.
Generally speaking, a description of the agency contract
negotiations follows. Andrea Blum, Stephenson's secretary,
notified the employee representative assigned to negotiate a
particular agency contract when it was scheduled to reopen.
The employee representative then met with the members of
the bargaining unit to find out what bargaining demands
they wanted Respondent to submit on their behalf to man-
agement. The employee representative took the members'
contract demands to Stephenson, who drafted contract lan-
guage, which was then transmitted back to the members for
approval and then was transmitted to management at the
bargaining table.' If Stephenson personally negotiated the
contract, he supervised its ratification by the unit members,
and if another employee representative had negotiated the
contract, he or she would supervise its ratification. Follow-
ing the contract's ratification, it was signed by Shapiro.
During contract negotiations Stephenson coordinated the
negotiation of the several agency contracts in the sense that
he checked to make sure that the provisions of the several
contracts were not inconsistent with one another. Also, em-
ployee representatives who negotiated the various contracts
kept Stephenson advised about the progress of their nego-
tiations and consulted with him about problems which de-
veloped during negotiations. The more experienced repre-
sentatives communicated much less with Stephenson than
did those with less experience. Finally, in the administra-
tion of the contracts which he had personally negotiated,
Stephenson, at staff and membership meetings, explained
the intent of the various contractual provisions. Other rep-
resentatives gave similar explanations concerning the con-
tract provisions included in contracts they had negotiated.
Respondent contends that in connection with his duties
involving collective-bargaining negotiations, Stephenson re-
sponsibly directed the work of employee representatives
and assigned them work, using his independent judgment. I
disagree. As I have described above, Stephenson did not
normally make the assignments for the negotiation of the
19 In those instances where experienced employee representatives were in-
volved in the negotiations, it appears that these persons would draft the
contractual language entirely by themselves or not rely on Stephenson's as-
sistance to the extent that those representatives with less experience did.
980
OREGON STATE EMPLOYEES ASSN.
agency contracts. Normally, Stephenson personally negoti-
ated the contract, or Shapiro assigned another employee
representative to negotiate it. Of the approximately seven or
eight assignments made by Stephenson. one involved the
assignment of an employee representative. Chinn. to negoti-
ate an agreement with the agency she was already assigned
to service; two involved assignments to a statutory supervi-
sor, Gallagher; and three or four involved assignments to
employee representative Lund, who, Stephenson was subse-
quently informed by Shapiro, would consult with Shapiro,
not Stephenson, concerning the negotiations. These circum-
stances, in particular the infrequent instances when Ste-
phenson actually assigned negotiation work to other em-
ployees, persuade me that the record fails to establish that
Stephenson possessed the statutory authority to assign work
set forth in Section 2(11) of the Act. Any doubt of this is
removed by what took place when Stephenson, upon being
appointed as Shapiro's special assistant, attempted to assign
negotiating work to other employees. When Shapiro failed
to assign two persons to assist Stephenson to negotiate the
agency contracts, as he had announced at the staff meeting,
Stephenson assigned several employee representatives to
negotiate agency contracts. Shapiro promptly revoked these
assignments. He explained to Stephenson that he disagreed
with Stephenson's assignments and that he, Shapiro, would
assign the employee representatives to negotiate the agency
contracts. Thereafter, Shapiro made his own assignments
for these contracts. 2 Plainly, Shapiro's conduct of vetoing
Stephenson's work assignments and making the assign-
ments himself, conduct which Shapiro did not deny or ex-
plain, indicates that, whatever Shapiro might have told Ste-
phenson or the staff when he appointed Stephenson as his
special assistant, Shapiro did not intend to grant Stephen-
son the authority to assign negotiating work to other em-
ployees, using his independent judgment. Under these cir-
cumstances, the fact that Stephenson did on a few occasions
assign employee representatives to negotiate agency con-
tracts is insufficient to establish that he was a supervisor
within the meaning of Section 2(11).
Nor does the fact that Stephenson gave instruction and
advice to employee representatives about the negotiation of
agency contracts establish that he possessed the authority
to responsibly direct them. His instructions related to his
special technical competence in negotiating contracts. In
other words, the directions which Stephenson gave to the
employee representatives who were negotiating the agency
contracts were merely a necessary incident of the applica-
tion of his technical competence.'
Any doubt that Stephenson did not possess the authority
to responsibly direct employees in the negotiation of agency
2 One of the employee representatives whom Stephenson assigned to ne-
gotiate gency contracts was Bailey, to whom Stephenson assigned eight or
nine different contracts. Shapiro, however, instructed Bailey to disregard
Stephenson's assignments. He explained to Bailey that Bailey was not as-
signed to negotiate those contracts but that Shapiro would make the assign-
ments for agency contract negotiations at a later date. Thereafter, Shapiro
assigned Bailey to negotiate several agency contracts.
21 As indicated previously, it is settled that "routine direction of the type
customarily exercised by experienced employees over those less skilled does
not confer supervisory status within the meaning of the Act." Beth Israel
Medical Center, 229 NLRB 295. Also see Westinghouse Electric Corp. v.
N.LR.B., 424 F.2d 1151, 1156.
contracts, but was merely exercising routine direction of the
kind customiarily exercised by a more experienced or skilled
employee over those less skilled, is illustrated by the record
evidence which indicates the constraints placed upon Ste-
phenson's sphere of responsibility in the negotiation of col-
lective-bargaining contracts. Thus, (I) all written communi-
cation from management concerning agency contract
negotiations had to be referred to Shapiro.22 (2) When prob-
lems developed in agency contract negotiations involving
significant matters, Stephenson was without authority to
even give advice to the negotiators, but would refer them to
Shapiro for their instructions. (3) There is a lack of evidence
that if a negotiator disagreed with Stephenson's advice, Ste-
phenson had authority to direct the negotiator to do things
Stephenson's way. To the contrary, the sole evidence in the
record which is addressed to this subject establishes that
when employee representative Allen and Stephenson dis-
agreed upon the desirability of certain contractual provi-
sions which Allen had negotiated, Allen, rather than accept
Stephenson's opinion, took the matter personally to Sha-
piro. And (4) early in 1978, in response to Stephenson's
request that employee representative Lund keep Stephen-
son informed about the progress of Lund's agency contract
negotiations and any problems which arose in such negotia-
tions, Shapiro notified Stephenson that Lund would consult
with Shapiro, not Stephenson, about his contract negotia-
tions.'
On the subject of whether Stephenson possessed the au-
thority to discipline employees or effectively recommend
that employees be disciplined, the record contains an iso-
lated instance of Stephenson issuing a reprimand to em-
ployees. In the fall of 1977 Stephenson was assigned by
Shapiro to meet with the managment of a particular agency
to resolve numerous per diem grievances which had been
filed by Respondent's employee representatives who ser-
viced the agency on behalf of the membership. To prepare
himself for his meeting with management, Stephenson re-
viewed all of the grievances which had been submitted and
discovered they were so poorly drafted that it was impossi-
ble for him to determine what the grievants were complain-
ing about. Stephenson notified Shapiro about this state of
affairs and, after telling Shapiro he intended to reprimand
the employee representatives for their workmanship, ver-
bally reprimanded them. This was the sole instance where
the record reveals that Stephenson reprimanded employ-
ees.2 ' There is no evidence or contention that this reprimand
had any adverse effect on the employee status of the em-
ployee representatives involved. Under the circumstances,
the record does not establish that Stephenson possessed the
2 I also note that at all times Shapiro was up to date on the status of each
agency contract being negotiated and the progress of the negotiations, inas-
much as each employee representative is required to submit a weekly report
to him concerning his work.
21 Based upon Stephenson's testimony which was not specifically denied or
otherwise contradicted by Shapiro. I reject Lund's uncorroborated testimony
that Shapiro instructed him to obey Stephenson's instruction. In any event.
Lund's testimony is insufficient to rebut Stephenson's testimony that Shapiro
informed him that Lund would consult with Shapiro, not Stephenson, con-
cerning contract negotiations.
24 Once, Stephenson complained to an employee representative about the
length of time it was taking him to prepare contract language for the negotia-
tion of an agency contract, but did not repnmand the representative.
981
I)E(CISIONS OF NATIONAL LABOR RELATIONS BOARD
authority to discipline employees or to effectively recom-
mend that employees he disciplined.
The evidence concerning Respondent's contention that
Stephenson effectively recommended personnel decisions
involving employees' work assignments and the discharge
of employees is as follows.
When employee representative Allen was hired, both
Gallagher and Stephenson recommended that Allen, who
had prior experience representing employees at health care
institutions, be assigned this duty with Respondent in place
of employee representative Polanski, whose work they indi-
cated they were not happy with. Shapiro followed their rec-
ommendation.
Stephenson informed Shapiro that he felt employee rep-
resentative Bailey could do a good job in the Portland of-
fice, and Shapiro reassigned Bailey to the Portland office.
Stephenson complained about the work performance of
employee representative Schoonover and recommended
that he be terminated. Shapiro then questioned Gallagher
and several of Respondent's members employed in the unit
which Schoonover serviced. They all complained to Sha-
piro about Schoonover's work performance. At this point
Shapiro fired Schoonover. Clearly, under these circum-
stances, Stephenson's recommendation was not an effective
one, as the record is clear that Shapiro made the decision to
terminate Schoonover on the basis of his own independent
investigation.
In sum, the record reveals that in two instances involving
the assignment of three employees, Stephenson participated
in personnel decisions wherein he effectively recommended
decisions that were made by management. Because of the
isolated and sporadic nature of this conduct, it is insuffi-
cient to establish that Stephenson possessed the authority to
effectively recommend the assignment of employees.
The evidence which bears upon Respondent's contention
that Stephenson possessed the authority to assign statewide
grievances to employees is as follows.
Stephenson told employee representative Lund to push
dues-deduction grievance against Oregon State University
as far as he could, because Stephenson said he felt it was an
important matter. There is no evidence that Lund followed
this instruction.
Pursuant to Stephenson's instruction, employee represen-
tatives solicited employees of the Public Welfare Division
to file grievances over incorrect employee work plans.
Pursuant to Stephenson's instruction, employee represen-
tatives solicited employees employed at the Public Welfare
Division to file grievances concerning their per diem, stand-
by time, and meal allowances. Stephenson made this work
assignment with Shapiro's permission. Shapiro accepted his
recommendation that these grievances be filed as a tactic to
get management to the bargaining table on these and other
matters.
In sum, the record establishes that in two instances, one
of which was with Shapiro's authorization, Stephenson as-
signed employee representatives the task of filing statewide
grievances.25 There is no evidence that Stephenson regularly
25 In my opinion, Stephenson's request that t.und press a grievance which
he was apparently already processing does not constitute the assigning of an
employee representative to handle a grievance, especially since there is no
evidence that Lund had indicated he did not intend to press the grievance.
exercised this authority. To the contrary, the record indi-
cates that Shapiro did not contemplate giving him this au-
thority inasmuch as Shapiro's announcement to Stephenson
and the staff about Stephenson's job duties did not mention
the assignment of statewide grievances. Rather, the author-
ity delegated to Stephenson was limited to the area of col-
lective-bargaining negotiations. Under these circumstances,
the fact that Stephenson on two isolated occasions, one of
which involved Shapiro's permission, assigned work per-
taining to statewide grievances is insufficient to establish he
was a supervisor within the meaning of the Act.
The evidence pertaining to Respondent's contention that
Stephenson possessed the authority to effectively recom-
mend the hire of employees is as follows.
In describing Respondent's hiring procedure, Shapiro
testified "[W]e have a staff screening committee that every
candidate must go through, and, if they survive the commit-
tee, then I will consider them." And, on October 19, 1977,
in a letter to a member, Shapiro described the procedure
used to hire applicants in these terms:
[Assistant Director Gallagher] as well as other mem-
bers of our staff, does from time to time sit with the
staff advisory screening committee. [Gallagher] does
not screen or hire any member of this staff. As Execu-
tive Director, that function is my obligation and I do
not delegate that authority.
The staff screening committee is a result of my feel-
ing that there should be membership in-put into the
staff selection process. As resumes are reviewed by the
committee (I also privately review them), and the com-
mittee determines who it shall interview. After comple-
tion of these interviews, the committee recommends
several candidates and I conduct the final interviews.
Stephenson, during one short period in late summer or ear-
ly fall 1977, was assigned to sit on the screening committee
by Gallagher, and during his short tenure on this commit-
tee, three applicants were interviewed, one of whom was
employee representative Brown, who was eventually hired
by Shapiro. Stephenson did not question any of the appli-
cants about their qualifications but rather left this to the
other members of the committee. He made sure that each
applicant understood the job duties of the position he or she
was applying for. Following Brown's interview by the com-
mittee, Stephenson indicated to Shapiro that he thought
Brown would be a valuable addition to the staff.
Respondent presented testimony concerning Stephen-
son's role in the employment of employee representatives
Lund, Allen, Steinhauer, Wissmath, and Webb.
Lund was first interviewed by Shapiro and then went to
lunch with Gallagher, Stephenson, and Shapiro, where he
was questioned by them. Previously, all three had reviewed
his resume. Thereafter, Gallagher and Stephenson ex-
pressed the view that Respondent could use Lund. Shapiro
expressed the same sentiment. Lund was then interviewed
by the screening committee, which recommended him as a
suitable applicant, and Shapiro hired him.
Shapiro, Gallagher, and Stephenson interviewed em-
ployee representative Allen while they lunched with him.
The three had previously reviewed his resume. Thereafter,
they discussed his qualifications, and each concluded he
would be a valuable addition to the staff. At some point in
982
OREGON STATE EMPI.OYEES ASSN'
time Allen was interviewed by the screening committee,
which recommended his employment to Shapiro. Allen was
hired by Shapiro.
Stephenson reviewed Steinhauer's resume and dicussed
her qualifications with Shapiro and indicated he would
have no problem working with her.
Stephenson, an old acquaintance of Webb's from a previ-
ous place of employment. helped Webb fill out his resume
and, after Webb submitted an application, took him to
lunch with Shapiro and introduced them to each other.
Thereafter. Webb was interviewed by the screening com-
mittee. and after this interview Shapiro told him he was
hired.
In the case of Wissmath's employment. Stephenson rec-
ommended that she not he hired because she lacked experi-
ence. Shapiro disregarded Stephenson's advice and hired
Wissmath.
Based upon the foregoing, I find that the record does not
establish that Stephenson possessed the authority to effec-
tively recommend the hiring of employees. Rather. the rec-
ord shows that Shapiro hires employees after conducting an
independent investigation which consists of reviewing the
applicant's resume, interviewing the applicant, having a
screening committee interview the applicant, and soliciting
the opinions of his assistants, Gallagher and Stephenson.
who at times interviewed the applicants with Shapiro.
Plainly Stephenson's opinion is only one of several consid-
erations which Shapiro normally takes into account before
deciding whether to employ an applicant, and to the extent
that Stephenson's advice is considered, it merel3 reflects his
experience, rather than the possession of the type of author-
ity contemplated by Section 2(11) of the Act. This is vividly
illustrated by the fact that Shapiro went ahead and hired
Wissmath despite Stephenson's recommendation to the
contrary.
C. A Chronologv of Events
The basic terms and conditions of employment of Re-
spondent's employees, except for the executive director. are
established by a collective-bargaining agreement between
Respondent and the "employees of [Respondent]," which is
effective from July 1. 1977, until July I, 1979. The agree-
ment, a conventional collective-bargaining contract, in-
cludes the usual terms and conditions of employment and
includes a grievance procedure ending in binding impartial
arbitration. Since about 1971 the employees and Respon-
dent had negotiated a series of these contracts. The employ-
ees selected a committee of employees, herein called the
employees committee, which met with a committee ap-
pointed by Respondent's board of directors and negotiated
the collective-bargaining contracts which were executed on
behalf of the employees by the employees committee and
on benalf of Respondent by its executive director.
The employees committee was elected specifically to ne-
gotiate a collective-bargaining contract and did not func-
tion during the term of the contract. Nor did the employees
hold meetings during the term of the contract or elect offi-
cers or form an organization with a constitution or bylaws
and hold meetings. Nor did they pay dues or fees. The
several collective-bargaining contracts were administered,
on behalf of the employees, by a job representative, who
was elected bh the enploecs. (iordon Vebbhh an employee
representative. is as the job representative rom approxi-
matels late 1976 until sometime in J.anuar 1978.
.ate in [ecembher 1977 or earls in Januar, 1978 em-
ploxee representatises Bailex and Ward and Shapiro's
assistant Stephenson discussed the possibilitN of representa-
tion b an outside labor organization. hut eventualls de-
cided to seek Board certification of an independent labor
organization composed solel 3 ofl Respondent's emploees.
The) sought to filrmalize the existing inftrmal collective-
bargaining relationship which existed between Respondent
and its emploxees. In order to accomplish this. Baile',
printed union authorization and dues-checkoff cards. which
he distributed in Januars 1978 to the emploees eniploed
in Respondent's Portland and Salem offices. On Januarx 19.
after a sufficient number of employees had signed the
cards.? Bailes filed a representation petition with the
Board's regional office located in Portland.
During the week of January 16 Executive Director Sha-
piro and his special assistants Stephenson and Gallagher
were in Washington. D.(.., on business with Research and
Educational Director Lund and Respondent's president.
Marie Grant. and its treasurer. Tolleson. On Wednesdax.
January 18, at about noontime. Shapiro received a phone
call from Respondent's Business Manager Martens. wkho
told him that Bailey was soliciting emplobees to sign union
cards for the purpose of filing a representation petition with
the Board Shapiro asked Gallagher if he knew anything
about the matter. Gallagher, in turn, spoke to Lund and
Stephenson and asked if the3 knew anything. Later that
day. at about 4:30 p.m.. Shapiro met with Gailagher. Lund.
and Stephenson in his hotel room. where the' discussed the
employees' union activity.: ? Shapiro stated that Bailey had
circulated union cards among the emplobees. Shapiro ex-
pressed his doubt that a petition for Board certification
election would he processed h the Board in view of the
existing collective-hargaining contract. In addition. Shapiro
indicated that he was concerned about the union activity
because all of Respondent's mone) for wages and fringe
benefits had been budgeted when the current contract was
negotiated, for the duration of that contract, and stated
there would be serious problems if the employee:; expected
Respondent to reopen the current contract for further nego-
tiations on money matters. If the employees onl, wanted a
Board certification, Shapiro stated, there would be no diffi-
culty. Stephenson asked if Shapiro had any objection to
reopening the existing collective-bargaining contract to in-
sert a dues-checkofl provision. Shapiro answered in the
negative, stating that his onl concern involved the renego-
tiation of salaries and fringe benefits during the term of the
current contract. Shapiro asked if Stephenson knew an,
more about what was happening, what Bailey was doing
and his motive for doing it. Stephenson professed a lack of
knowledge but declared that Bailey was responsible for
what had taken place and that lund was the onlN one who
could handle him. The meeting concluded with Shapiro
stating that if the Board certified a union as the employees'
"r Among those who signed such cards ere Stephenson and Bro. n
Brown also solicited another emplosee to sign a card.
: Lund left the room prior to he end of the meeting to make a phone call
98X3
I)l(CISIONS OF NA I ONAL LABOR RLATIONS BOARD
exclusive bargaining representative. certain stall' members
would be excluded from the bargaining unit as supervisors,
and he stated that included among the excluded persons
would be Gallagher and Stephenson. "'
On January 18, after thc meeting in Shapiro's hotel room
described above, Stephenson spoke to Marie Grant, the
president of Respondent. Stephenson, in substance, told
Grant he was unhappy with the collective-hargaining situ-
ation as it existed between Respondent and Respondent's
employees and also expressed his dissatisfaction with Ex-
ecutive Director Shapiro. Ile accused Shapiro of manipu-
lating elections and misrepresenting facts to the member-
ship. Also, Stephenson stated, in substance, that he did not
feel Shapiro intended to give the employees a fair opportu-
nity to vote in the union representation election, and he
asked Grant to have the board of' directors step in to insure
that the employees had a fair representation election. Grant
declined to do this and stated that she would not replace
Shapiro as executive director, because he had just been p-
pointed, and she did not feel she would be able to find a
suitable replacement. Stephenson replied that anyone could
manage Respondent, including himself, Bailey, or any
number of persons.
The next day, January 19, during the early afternoon,
Gallagher and Stephenson met in Shapiro's hotel room.
Stephenson was distraught and at one point went into the
bathroom, where he was sick. The conversation com-
menced with Stephenson declaring that he wanted to get
something off of his chest. Stephenson admitted he had
known that Bailey had filed a represeritation petition with
the Board, that Stephenson had gone with Bailey to the
Board office, and that based on their conversation with the
Board agent, they had decided to file the petition, and Ste-
phenson was one of the employees who had signed cards
which were necessary for the filing of the petition. Then.
apparently in an effort to excuse his conduct or his failure
to previously inform Shapiro, Stephenson stated he was
very upset about certain personal affairs, which he enumer-
ated, and indicated that because of this he did not know if
he would be able to continue to perform his work, as he was
so emotionally mixed up he was having difficulty concen-
trating, and he needed time off. In addition, Stephenson
stated he was completely under Bailey's control because
Bailey was blackmailing him, and if Shapiro acted against
Bailey, Bailey would take reprisals against Stephenson, but
if Shapiro relieved Stephenson of his negotiating responsi-
bilities and assigned him to the Portland office, he would
watch over Bailey. Shapiro assured Stephenson he would
do all he could to help him and would grant him some time
off from work, but was noncommittal about assigning him
to Portland. The meeting ended with Stephenson expressing
his relief at getting everything off of' his chest.29
On Mlonday, January 23, Stephenson informed Shapiro
that, contrary to Shapiro's opinion, Stephenson thought he
was not a supervisor. Stephenson stated he felt he was eligi-
2IThc aforesaid description of the events of January 18 is based upon a
composite of the testimonies of Shapiro, Lund, and Gallagher, who im-
pressed me as more credible witnesses than Stephenson.
29 The description of this meeting is based upon a composite of the testi-
monies of Shapiro and Gallagher, who impressed me as more credible wit-
nesses than Stephenson.
ble to participate in the Board certification procedure. Sha-
piro replied that Stephenson had the right to his opinion
but that the Board would make the final determination of
his status.?"
On January 24. prior to a scheduled staff meeting. Sha-
piro notified special assistants Gallagher and Stephenson,
Business Manager Martens, employee representative Bai-
ley, and General Counsel Irvin that Respondent regarded
them as supervisory employees within the meaning of the
National Labor Relations Act, and because of this they
could not participate in any of the organizational activity
connected with the current representation petition which
hadl been filed with the Board, and he gave them letters of
instruction to that effect. The letters issued to Bailey and
Stephenson apparently differed in certain respects from
those given to the other persons, because Shapiro, as de-
scribed above, knew that Bailey and Stephenson had ac-
tively supported the filing of the petition. The letters issued
to Stephenson and Bailey read as follows:
It has been brought to my attention that you have
been actively involved in organizational activities di-
rected toward getting NLRB certification, or at least
recognition under NLRB standards and jurisdiction, of
an OSEA staff labor organization.
If OSEA staff desire a different labor organization
than the present committee, that representation issue
can be fairly and adequately handled by the NLRB.
However, under federal law and NLRB standards
you are a "supervisor" and also a "managerial" em-
ploye. Accordingly you are by law on the side of the
employer in all staff labor relations matters. Your in-
volvement in the organizational activities to date could
result not only in NLRB rejection of certification but
also in unfair labor practice liability on the part of
OSEA as an employer.
I therefore order you to cease immediately, and re-
frain totally from, any representational or collective
bargaining activity on behalf of staff. I also order you
to maintain strict neutrality on the matter of staff rep-
resentation and to be prepared to represent the Execu-
tive Director in all dealings with other staff on staff
labor relations matters.
It is also my position that continued labor relations
activity by you on behalf of other staff, because of the
liability to which such activity could subject OSEA, is
a type of conduct to which principles of progressive
discipline would not apply and that dismissal could
therefore be imposed for continuation of such conduct.
Later that day, at the weekly staff meeting, Shapiro an-
nounced: "I have today advised [Stephenson, Bailey, Mar-
tens, Irvin, and Gallagher] that they are considered to be
excluded from the collective-bargaining unit within the
meaning of the National Labor Relations Act, and may not
participate in any collective-bargaining organizational ac-
tivity. [Respondent] will not in any manner perform any act
to prohibit the organization by staff of a labor organization
that is different than the present committee. As the Execu-
tive Director, I expect that all such organizational activities
3o Based upon Shapiro's testimony, as he impressed me as a more credible
witness than Stephenson.
984
OREGON STATE EMPLOYEES ASSN.
will be carried out during nonworking hours and that every
effort be made to provide uninterrupted service to the mem-
bership." Stephenson told Shapiro, in the presence of the
staff, that he thought Shapiro's legal advice was all wrong
and that Shapiro was a "dumb shit." Shapiro ignored the
slur.
On January 25 Stephenson visited Respondent's pres-
ident, Marie Grant, at her place of employment. Stephen-
son notified Grant about his exclusionary letter and stated
he felt that he should not be excluded from participating in
the staffs union activity. Grant asked what Stephenson
would do if the Board excluded him from the bargaining
unit. Stephenson stated he would not work for Shapiro un-
less he was covered by a collective-bargaining agreement
and asked that Grant have the board of directors intervene
on behalf of the staff in this matter. Grant indicated she felt
it was inappropriate for the board of directors to intervene
in personnel affairs, stating that the handling of personnel
problems was Shapiro's responsibility, not the responsibility
of the board of directors, and that if Shapiro saw fit to fire
half of the staff, that was his prerogative as executive direc-
tor. Stephenson stated that if Grant did not care about the
staff, he, Stephenson, did not care about the membership,
and if he left his employment, he would go fighting and
take Shapiro with him.3
Later that day, having failed to enlist Grant's support in
revoking Shapiro's letter excluding him from union activity,
Stephenson visited the office of the Board, where he showed
Shapiro's letter excluding him from union activity to an
agent of the Board, who suggested that Stephenson comply
with the letter because even if Stephenson was correct in his
contention that he was not a supervisor, if Shapiro carried
out his threat to discharge him, it would take him an inordi-
nate length of time to reinstate himself by invoking the
Board's unfair labor practice procedures. Stephenson ac-
cepted this advice and ceased his activity in support of the
representation petition. Bailey did the same and on either
January 25 or January 26 withdrew the representation peti-
tion."
On January 26 at about 2 p.m., Bailey and Stephenson
informed Shapiro that they wanted "peace" and simply
wanted to be left alone to do their jobs. Stephenson stated
he intended to leave Respondent's employ in the future, but
not immediately, as he did not want it to look as if Shapiro
had caused him to terminate his employment. Shapiro
asked if Bailey also planned to terminate his employment,
as Shapiro had heard, and go into the consulting business.
Bailey acknowledged this was true but that it would not be
for at least a year or two. Shapiro indicated that he had no
problems with their work and accepted their offer of peace.
Then, Shapiro spoke privately with Bailey about Stephen-
son's conversation with Shapiro in Washington, D.C., su-
pra, where Stephenson had indicated he was so emotionally
disturbed that he could not do his work. Shapiro suggested
that since Bailey was Stephenson's friend, perhaps he might
talk to Stephenson about taking a vacation from work or
aI The description of Stephenson's conversation with Grant is based upon
the testimony of Grant, who impressed me as a more credible witness than
Stephenson. Accordingly, I have rejected Stephenson's version.
32 On January 27 Shapiro was notified by the Board that Bailey's represen-
tation petition had been withdrawn.
some time off. Shapiro then spoke privately with Stephen-
son. Hie expressed his concern about Stephenson's state of
mind and asked if he wanted to take some time off from
work. Stephenson asked for the next day off. which Shapiro
granted."
On January 25 virtually all of Respondent's employees
both the professional staff and clericals--met together in
the Portland office after working hours. Brown, who
chaired the meeting, attempted to tape-record the proceed-
ings, but when a majority of the employees objected, he
changed his mind. Brown explained to the gathering that
Bailey and Stephenson, who initially had circulated the
union authorization cards, had been excluded from partici-
pating in union activities, so he had volunteered to lead this
meeting, the purpose of which would be to talk about being
certified by the Board and to also talk about the election of
officers and the adoption of a constitution and bylaws.
Brown proposed that they name their union the Association
Representatives Union and stated that the representation
petition which had been filed by Bailey with the Board had
been withdrawn but that he, Brown, intended to file an-
other petition or had already filed one. Employee represent-
ative Lund took the position that it was not necessary to
have Board certification, because they already had a collec-
tive-bargaining agreement, so a certification would not
change anything. A significant number of employees sided
with Lund against Brown: thus, Lund defeated Brown in
the election for temporary chairman.4 The employees
agreed that at future meetings they would elect permanent
officers and adopt a constitution and bylaws.
Brown did not file another representation petition with
the Board to replace the one withdrawn by Bailey. He de-
cided against it when Lund, who was opposed to Board
certification, defeated him for temporary chairman.
During February-April 1978 the employees continued to
meet in the Salem office after working hours. During these
meetings a committee was appointed to draft a constitution
and bylaws for the organization which the employees
planned to organize. An election was held to nominate offi-
cers for this organization, which was to be known as the
Association Representatives Union, and, on March 3, a
grievance committee composed of Bailey, Blum, and Ste-
phenson was selected by the employees. On April 3 the
employees ratified a constitution and bylaws and elected
officers. During these meetings several persons who admit-
tedly are statutory supervisors" participated fully and
voted.
Approximately I week after the employee meeting of
January 25, Shapiro spoke to Brown as follows:
What are you trying to do? We've really got problems
with you. None of the people in Salem like you.
You've been arrogant, you've said derogatory things
that were inappropriate for somebody in your position
3" The description of the conversations between Bailey, Stephenson, and
Shapiro on January 26 is based upon the credible testimony of Shapiro, who
impressed me as a more credible witness than Bailey or Stephenson. Accord-
ingly, I have rejected their versions.
3 Brown and Lund tied on the first ballot. Lund won the runoff election.
35 Martens, Respondent's business manager; Irvin, Respondent's general
counsel; and Gallagher, Shapiro's assistant. I note there is no evidence or
contention that Shapiro was present at any of the meetings.
985
96DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to say, and, because of this, you're going to have to lay
low, you're going to have to keep things cool. People
misunderstand ou.
Shapiro stated that he, Shapiro, understood Brown but ad-
vised him: "[T]ry to keep it cool and lay back. I know
you've been kind of caught in the middle of things." And he
stated, "I don't want to talk about this National abor Re-
lations Board thing, but you have upset people and the,
just don't like you, and a lot of people cannot work with
you." Shapiro also mentioned that hopefully it would not
be necessary to transfer Brown, who worked in the Portland
office, but cautioned Brown that "if things did not get bet-
ter, if the pressures did not reduce." Shapiro would possibly
have to transfer Brown to the Salem office. Brown stated
this was the first time anyone had ever said he was disliked
and that he was unaware that people thought he was arro-
gant, but he acknowledged that he was caught in the middle
of the situation as far as the Board certification was con-
cerned and, in reply to Shapiro's remarks about a transfer,
stated that he was hired to work in Portland and had no
desire to work in Salem. Shapiro stated he knew this, but it
was something he had considered.
On Februarv 17, the evening before a scheduled board of
directors meeting, Darrell Sheridan, an active member of
Respondent, visited Stephenson, and, in response to Sheri-
dan's inquiry, Stephenson showed him a copy of Shapiro's
letter excluding him from union activities. Stephenson in-
formed Sheridan. in substance, that he thought the existing
collective-bargaining agreement between the employees
and Respondent was unfair to Respondent's employees and
that the employees were not being allowed the freedom to
organize a labor organization of their own choice and that
they were working for an executive director, Shapiro, who
was antiunion. That same evening Stephenson, at the re-
quest of one of' Respondent's board of directors, met with
several members of' the board and other members of Re-
spondent. Stephenson showed them a copy of Shapiro's let-
ter excluding him from union activities and made state-
ments similar to the ones he had voiced earlier that day to
Sheridan. Later that evening Sheridan and Respondent's
President Grant told Shapiro that they had been informed
there were personnel problems concerning Shapiro and the
staff, specifically, that an employee, Sherry Shipley, had
been terminated without being given her rights under the
employees' collective-bargaining agreement and that Sha-
piro had unilaterally excluded Stephenson from participat-
ing in the Board certification proceeding. In general, they
voiced their concern to Shapiro over what they had heard
were personnel problems between Shapiro and the employ-
ees.
On February 18 the board of directors held a regularly
scheduled meeting at Respondent's Salem office. During
the n-. eting a director asked Shapiro why former employee
Shipley had been terminated and whether Shipley's griev-
ance concerning her discharge had been properly processed
under the employees' collective-bargaining contract. Sha-
piro explained why Shipley had been discharged and stated
that Gordon Webb, who at the time had been the job repre-
sentative for the employees and who had represented Ship-
ley in connection with her grievance, would explain how
the grievance was handled. Webb explained that Shipley
had declined his offer of assistance to take the grievance to
arbitration but had turned the matter over to her attorney.
Stephenson. at this point, challenged Webb's description of
what had occurred and said that Shipley's grievance had
been mishandled., During the February 18 board of direc-
tors meeting Stephenson was very active in talking with
various directors about Shapiro and was observed doing
this by Shapiro. Also, two of the directors informed Shapiro
that Stephenson was asking the several directors to take
action about personnel problems involving Respondent's
employees. The board of directors, however, met in execu-
tive session and rejected Stephenson's request and, instead,
passed a resolution declaring that the Respondent's em-
ployees were not to engage in any political discussion with
the board of directors, that the board would abide by the
employees' contract and see to it that it was honored by the
executive director, and that any redress of employees' griev-
ances should be handled through that contract. '7
On February 19 Stephenson met with Shipley, at which
time he told her that certain members of a "coalition"
which Stephenson was forming had been instrumental in
bringing up her termination at the February 18 board of
directors meeting and had done this fr the purpose of em-
barrassing Shapiro. Stephenson stated that he realized that
in organizing the coalition he would have to retain a lawyer
and had done so and that while in Washington, D.C., had
attempted to persuade Respondent's President Grant to
join his side. He also stated that he had told Grant she was
being used by Shapiro, who had fixed her election so that
she would win easily. Stephenson told Shipley that the co-
alition would raise Shipley's termination as an issue and
also the issue of improper balloting, and he asked if Shipley
would sign an affidavit for the coalition concerning her ter-
mination. Stephenson stated that he intended to get rid of
virtually the entire staff except for the clericals when he
became executive director."
On February 21 Stephenson was summoned to Shapiro's
office, where, in Lund's presence, Shapiro advised him he
was being removed from his position as Shapiro's special
assistant because he had made derogatory statements about
members of the staff and was lobbying the board of direc-
tors and engaging in other similar conduct. Shapiro in-
structed Stephenson to notify him within a day or two of
another job he was capable of performing.'9 The same day,
pursuant to this request, Stephenson wrote a letter to Sha-
ll Webb, Brown, Stephenson, and Shapiro testified about this meeting
The foregoing description is based upon the mutually corroborative testi-
mony of Webb, Brown, and Stephenson. I have rejected Shapiro's uncorrob-
orated testimony that Stephenson was the person who brought up the subject
of Shipley's discharge. Likewise. I have rejected Stephenson's uncorrobo-
rated testimony that he voiced a criticism of a provision in the employees'
collective-bargaining agreement.
I note that the employees' contract contains an extremely broad griev-
ance procedure ending in binding impartial arbitration which covers "any
act or omission by the Employer ... which the employee believes is unjust,
inequitable or in violation of this agreement."
3 The conversation between Shipley and Stephenson is based upon Ship-
le,'s testimony. Stephenson, on cross-examination admitted that this meeting
tooxk place and, while denying that certain remarks were made by him, failed
to give his version c! what was stated. Shipley impressed me as a credible
witness.
9 The aforesaid description of Shapiro's conversation with Stephenson is
based on the testimony of Lund, who impressed me as a more credible
witness than Stephenson. Shapiro did not testify about this conversation.
986
OREGON SIATIE MPI.OYEES ASSN
piro which outlined his qualifications and which stated he
qualified for numerous positions and expressed the hope
that he had not lost his position because he had tried to
form a staff union. Stephenson declared his loxalty to Re-
spondent and his willingness to work in any capacity.
On February 23 Stephenson was called into Shapiro's
office, where, in Lund's presence. Shapiro told him that his
new job duties were as follows: (I) recording secretary for
Respondent's central negotiations and planning commit-
tee;0 (2) to compile a collective-bargaining manual: and (3)
to compile boilerplate language for use in all agency collec-
tive-bargaining contracts. Shapiro also told Stephenson to
vacate his office and that he would be assigned a new secre-
tary and was to have no further contact with the member-
ship and that all phone calls from the membership would be
turned over to someone else. Finally, Shapiro advised Ste-
phenson that he intended to conduct a thorough investiga-
tion of the allegation that Stephenson had been making
derogatory comments about other staff members.4 1 Ste-
phenson, later that day, wrote a memo to Shapiro in which,
among other things, he asked for a written description of
his new job duties and asked that Shapiro reduce into writ-
ing any complaints he had about Stephenson's conduct.
On February 24 Shapiro handed Stephenson a written
reprimand dated February 24 which states:
You have in the past been made aware of my strong
disapproval of any staff members' taking complaints
about me or any other staff to the membership. Your
lobbying of the board of directors this last weekend
was a flagrant violation of my directives to the staff on
this subject. You are hereby notified that any further
airing to any OSEA member or state employee outside
of my presence of any complaints against or displea-
sure with me or other staff, is grounds for immediate
dismissal.
On February 28 Shapiro, in Lund's presence, gave Ste-
phenson a copy of his job duties, which Stephenson had
requested. After Lund left the office Shapiro questioned
Stephenson about agency contracts which Stephenson had
been negotiating at the time of his reassignment. Shapiro
then brought up the subject of Stephenson taking an after-
noon off from work for a medical appointment without no-
tifying Shapiro. Stephenson explained that in the past he
had simply told his secretary where he would be and how
he could be reached when he was absent from the office for
a medical appointment. Shapiro stated it had always been
the policy that anyone who intended to be absent for a
medical appointment would notify Shapiro that he or she
would be absent. Stephenson stated this was the first time
he had heard about such a policy. Shapiro assured him that
it had always been in existence. Stephenson asked if Sha-
piro intended to announce it to the rest of the staff at a stall
meeting. Shapiro, in substance, told Stephenson to mind his
own business, as Shapiro would "run his own shop." at
4CNPC is a committee comprsed of several staff members which meets
regularly for the purpose of. among other things, formulating collective-
bargaining strateg' and bargaining proposals in anticipation of the negotia-
tions for the central contract.
"1 The description of what occurred at this meeting is based upon a com-
posite of the testimonies of Lund, Shapiro. and Stephenson. which In essen-
tial part are not inconsistent.
which point Stephenson warned Shapiro "he ka.s out to get
[him]. that he was out to hurn {hilm]. he as out to get
[Shapiro's] job. and was out to bring [Shapirol down."
On March 3 at about 9:301) am. Shapiro informed Ste-
phenson that he was terminated and hianded him a termina-
tion letter which reads as tollows:
Your services with OSF\ are immediatels terminated
because of insublh rdination. deroga tor statements
about fellow staff members. inabilitl to vork produc-
tivel, with fellow staff- members and general conduct
that is detrimental to the Association.
On March 3. after being notitied about his discharge.
Stephenson went to the Portland office for the purpose oF
using the Xerox machine to copy his lermination letter.
While there he spoke to Paula (hinn. who as also using
the Xerox machine. and Sherr Shiple. who shared an
;apartment with (hinn." 4 Stephenson indicated he had been
discharged and stated that besides getting Shapiro's job. he
intended to inflict bodily harm on Shapiro. Chinn cau-
tioned Stephenson against making such a threat. Stephen-
son assured her no one would be able to trace the violence
to him, because he knew people that could handle the job.
Stephenson also stated that while in Washington, [).C.. he
had unsuccessfull, tried to persuade Respondent's Pres-
ident Grant to join his side hut that it did not matter nowt
whether Grant joined him. as the membership was behind
him. In this regard, Stephenson boasted that the member-
ship at the Oregon State [inisersit 3 Science Center Chapter
had given him money to retain an attorne and that he had
been meeting with the Portland membership. and "they had
formed a coalition to raise issues that Stephenson] and
[Baile>] had discussed with theni."-
Shapiro convened a special meeting of the staff shortly
after Stephenson's discharge and advised them that if the
were questioned bh the members about Stephenson's termi-
nation. the 3 were to recite wh;at as stated in the termina-
tion letter issued to Stephenson and also saN that Stephen-
son had the right to arbitration under the staffs collective-
bargaining contract. If there were a,, other questions. Sha-
piro stated. they were to reter them to Shapiro.' Thereafter.
on Sundas. March 12. at a meeting of the board of directors
attended by members of the professional staff, when the
question of Stephenson's termination was raised, Shapiro
stated his reasons for terminating Stephenson: he read Ste-
phenson's termination letter. Shapiro also told the board
and the staff that if the staff were questioned about Ste-
phenson's discharge by the members. theN should refer the
questions to the board of directors rather than to Shapiro. 4
.' In those instances where Shapiro's lellin aink Sephenson's Iestl-
mons about this conversation differ. I have credited Shapiro. who inipressed
me as the more credible winess
4 Chinn hd presiousl? worked fi,r Responden.t until she qull in Juil'
1977. and Shiples. as indicated Vrpri, had beer, terminated b Shapiro in
December 1977.
" The description of Slephenson's remarks herein is based upon the testi-
mnons of Chinn and Shiples Stephenson adnliis talking iti them in the Port-
land office on the das of his d l.charge hut denies threatening to harm Sha-
piro Shiple 5 and (Chinn impressed me as the more credible witnesses.
I reject Polanski's ersi ln of Shapirois remarks
' Shapiro testified that the reason he gae the stafl the aItbresaid nstruc-
tion was that he did not ani the staff or himself to become nsolved in hat
ShapiroI telt uld become .I mess "political situation "
987
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bailey advised everyone that he was Shapiro's representa-
tive and felt that a board of directors meeting was not the
proper forum to resolve Stephenson's termination.
On March 14 Bailey wrote Shapiro that Stephenson in-
tended to arbitrate his termination and that all correspon-
dence regarding the matter should be forwarded to Ste-
phenson's lawyer. The record also reveals that following
Stephenson's discharge, Bailey was questioned about the
discharge by numerous members. Bailey's sole response to
these inquiries, insofar as the record indicates, was to recite
what had been stated in Stephenson's dismissal letter and to
refer further questions to Shapiro.
On March 21 at a chapter membership meeting in the
Portland area, a member questioned Brown about Stephen-
son's termination. Brown recited the reasons which had
been set forth in the letter of dismissal. Brown also stated
that there was a rumor Stephenson was out to get Shapiro's
job but that Stephenson had denied this and had also de-
nied the veracity of the reasons set forth in his dismissal
letter and was taking the position that he was discharged
because he had gotten involved in filing a representation
petition with the Board. In addition, Brown stated that he
understood several members intended to raise the subject of
Stephenson's discharge at the board of directors meeting
and that if the member who was interested about Stephen-
son wanted to know more about Stephenson's discharge, he
should attend that meeting.
On March 24 at a membership meeting of the Highway
Department Chapter, attended by the officers of that chap-
ter and several other members, Brown was questioned
about Stephenson's termination 7 Brown recited the rea-
sons which had been set out in Stephenson's termination
letter, but then volunteered that he, Brown, had seen no
proof to support these allegations. Brown also handed out
several newspaper clippings which dealt with Stephenson's
termination." In addition, Brown notified the members that
several members intended to raise the matter of Stephen-
son's termination at the next board of directors meeting and
expressed the view that it was up to the board of directors
to decide who was right about Stephenson's termination.49
On March 27 Shapiro started off a staff meeting by stat-
ing he was so mad at Brown that he could hardly talk. He
attributed the loss of his temper to the fact that some of the
staff, including Brown, had discussed Stephenson's termina-
tion with members of the board of directors as well as with
other members of Respondent, even though they had been
instructed not to do so. Ward, an employee representative
employed in the Portland office, stated he did not recall
being at a staff meeting where the staff had been told not to
4" Brown's testimony of what took place at this meeting is in sharp conflict
with the testimony of Hilda Young, one of the members who attended the
meetin? Brown impressed me as the more credible witness; thus, I have
credited his version. In addition, the credible testimony of Mary Laski estab-
lishes that the newspaper clippings (Resp. Exh. 3), which Young testified
were distributed by Brown could not have been distributed at that time
because Laski, the person who originated the distribution of the clippings,
did not distribute them until over I month aflter the March 24 meeting.
4The record does not reveal the contents of these newspaper clippings.
" The record reveals that one of the chapters in the Portland area had
adopted a resolution asking that the board of directors investigate Stephen-
son's discharge and that if it found the discharge was without merit, then it
should instruct Shapiro to reinstate Stephenson.
discuss Stephenson's termination. At this point Shapiro
stated that anyone who talked about Stephenson's termina-
tion with the members of Respondent would be terminated.
He repeated this warning three times for Ward's benefit, so
he could write it down.?0 At the end of the meeting Shapiro
asked Brown to meet with him the next day.
On March 28 at 9 a.m., as scheduled, Brown met with
Shapiro. Shapiro started the conversation by asking: "What
are you trying to do to me? What's going on? You know I
told you not to discuss Angelo Stephenson's termination
with any members of the board, or any other members of
the Association." Brown denied that he was present at the
staff meeting where Shapiro had made such an announce-
ment and stated that he had been informed by persons who
had attended such a meeting that it had occurred when the
Portland staff was not present. Shapiro stated that at a
meeting of the board and directors and staff held on March
5, he had warned the staff not to discuss Stephenson's ter-
mination with the membership, or they would be dis-
charged. Brown repeated that the first time he had learned
of that warning was the previous day. Shapiro then in-
formed Brown that, effective March 30, he was transferred
to the Salem office. Brown asked why he was being trans-
ferred. Shapiro answered, "I think it is the best thing to
do." Brown asked what he would be doing in the Salem
office. Shapiro replied, "[H]andling local government juris-
dictions." Brown asked whether he would be paid extra
compensation, since it would cost an extra $100 a month
for him to commute from Portland, where he resided, to
Salem. Shapiro answered in the negative. Brown asked if he
would be paid per diem during the period he had to travel
back and forth from Portland to Salem. Shapiro answered
in the negative."
On March 30, when Brown reported for work to the Sa-
lem office, Brown was assigned by Shapiro not to "handling
local government jurisdictions," as Shapiro had previously
indicated, but to organize the Department of Commerce
and Department of Mental Health, whose employees were
not represented by Respondent. Shapiro also told Brown
that besides this organizational work, he would continue his
work in Eugene, Oregon, as an employee representative I
day a week."2 Brown was given several personnel lists which
were supposed to indicate the names of the employees in
the units he was assigned to organize, specifically designat-
ing those who were already members of Respondent and
those who, as a part of management, were excluded from
becoming members of Respondent. These lists, however,
were of no value inasmuch as they only listed the names of
the persons excluded as a part of management from union
representation. The next day, when Brown called this mis-
0
The description of what took place at this meeting is based upon the
uncontradicted testimony of Bailey and Brown. I also note that Brown testi-
fied Shapiro mentioned that there was disharmony within the staff, however,
Brown did not remember the specifics of Shapiro's comments on this subject.
S The description of this conversation is based upon Brown's testimony.
Shapiro testified that he specifically explained to Brown the reasons for his
reassignment. Brown impressed me as the more trustworthy witness; accord-
ingly, I have rejected Shapiro's version.
52 Since December 1, 1977, Brown had been spending I day a week in
Eugene, Oregon, servicing several bargaining units represented by Respon-
dent in addition to performing his work in the Portland area as an employee
representative.
988
OREGON STATE EMPLOYEES ASSN.
take to Gallagher's attention, he was furnished with the
correct information.
On April 6 Brown was contacted by a shop steward for
one of the units Brown had formerly serviced. The steward
stated that several of the unit's members wanted to meet
with him to discuss the reason for his transfer. That eve-
ning, accompanied by Stephenson, Brown met with several
members at the home of Mary Laski, an extremely active
member of the coalition formed to oust Shapiro, infra.5 3 The
members stated they were unhappy about Brown's transfer
and asked if they could do anything to help rescind it. They
asked whether he wanted them to talk to Shapiro or peti-
tion the board of directors. Brown indicated he felt he had
been transferred on account of his activity concerning the
Board representation petition: however, he advised the
members not to do anything on his behalf. He stated that
he would handle the matter himself through either arbitra-
tion or the filing of an unfair labor practice charge.
On April 7 Shapiro spoke to Brown about his organiza-
tion work. Shapiro asked when Brown intended to get
started on his new assignment. Brown replied he had
drafted two letters and talked to employee representative
Allen about the Department of Mental Health and that
Allen, who had previously tried to organize those employ-
ees, was going to arrange for him to meet with employees of
that department. Also, Brown stated that someone else had
given him the names of several employees to contact at the
Department of Commerce. Shapiro asked why it had taken
Brown so long to personally contact employees. Brown re-
plied that he was not an organizer, that he had no training
in organizing employees, and that his sole experience was in
the handling of employees' grievances, and he did not un-
derstand why Shapiro had assigned him to do the work of
an organizer. Gallagher, Shapiro's special assistant, who
had been called into the room shortly after the meeting
began, pointed out that Brown had done a good job in
organizing the employees at the agency Brown had worked
for as an employee. Brown explained that he had worked at
this agency for several years and personally knew the em-
ployees and had built up his credibility with them. Galla-
gher also pointed out that while employed as an employee
representative, Brown had tried to organize the Department
of Environmental Quality. Brown acknowledged this but
reminded Gallagher that his organizational effort was a
failure. Brown stated he did not feel he had the experience
or training to be a successful organizer and again asked
Shapiro why he had been assigned to do this type of work.
In reply, Shapiro, rather than answer the question, asked,
"Why don't you get out there and organize?" Brown an-
swered: "I'm going to be honest with you. I've heard that
you've already interviewed for my job and if you survive
the board meeting on April 15, I'm going to be fired any-
way.' 4 It was on account of this, Brown told Shapiro, that
53 There was no discussion concerning the coalition or its object at this
meeting.
54 Brown testified that his understanding that Shapiro intended to replace
him was based upon a conversation with a member of Respondent, Marjorie
Moore, who had applied for a job with Respondent. Moore credibly testified
that she in fact applied for a job with Respondent in March and that on
March 27 Shapiro, while interviewing her, indicated that although he had
filled two of the three positions which were available, he expected that there
Brown did not know if there was any sense in his going out
and organizing. Brown asked whether Shapiro intended to
discharge him as he had heard. Shapiro in effect told Brown
not to listen to rumors, but did not answer his question.
Brown pressed Shapiro for an answer. Shapiro, in a loud
voice, directed Brown, "[g]et out there and organize-that's
what I want you to do." Brown left.55
Early in 1978 a group of Respondent's members who
wanted to oust Shapiro as executive director formed an or-
ganization for this purpose known as the Coalition of Chap-
ters to Preserve OSEA, herein called the coalition. The co-
alition retained a lawyer to determine whether there were
grounds to remove Shapiro for violating Respondent's con-
stitution and bylaws. Thereafter, at a meeting of Respon-
dent's board of directors held Saturday, April 15, the mem-
bers of the coalition requested that the board of directors
suspend Shapiro from his position as executive director and
appoint a special committee to investigate certain allega-
tions presented to the board of directors by the coalition
that Shapiro had violated Respondent's constitution and
bylaws. In support of this request, the coalition presented to
the board of directors and Shapiro a menorandum from its
lawyers which in substance alleged that there were reason-
able grounds for believing that Shapiro had violated Re-
spondent's constitution and bylaws by, among other things,
making misrepresentations to the board of directors about
the leasing of automobiles for the staff, manipulating Re-
spondent's elections, discriminating against employee rep-
resentative Ward because he was a black, undermining Re-
spondent's efforts to organize employees at Portland State
University and Oregon State University, and not complying
with the Respondent's announced procedure for hiring ap-
plicants. The coalition's charges and request that Shapiro
be suspended were considered by the board of directors at
the April 15 meeting and denied.
In support of its contention that Shapiro had manipu-
lated elections, the coalition's memorandum, among other
things, alleged that Shapiro had engaged in conduct which
involved either Brown or Bailey as follows: Shapiro di-
rected Bailey to campaign on behalf of Roberts for district
director in order to insure the defeat of the other candidate;
Shapiro directed Bailey to persuade members Laski and
Meyers not to run for statewide office; Shapiro ordered
Brown and two other named employee representatives to
remove Ann Sue Hollister from elected office, replacing her
with another candidate; Brown, and other job applicants.
were promised jobs by Shapiro if they would not run for
office and did not create dissension at Respondent's 1977
general council; on numerous occasions Shapiro directed
the staff employed in the Portland office to "dump" Walker
as assistant district director in the next election.
In support of its contention that Shapiro had undermined
Respondent's organizational efforts at Portland State Uni-
versity and Oregon State University, the memo alleges that
would be additional job vacancies in the immediate future because one per-
son was retiring and another was going to be fired. I reject Shapiro's version
of this interview. as M!oore seemed to be the more credible witness.
55 The description of this meeting is based upon Brown's testimony I re-
ject Shapiro's truncated version inasmuch as Brown impressed me as the
more credible witness. Gallagher, although present, was not called upon to
corroborate Shapiro.
989
I0DECISIONS OF NAIIONAL LABOR RELATIONS BOARD
employee representative Wyatt was instructed by Shapiro
to lose the faculty elections at these universities and that
Wyatt later stated at a meeting of Respondent's staff that
Shapiro's speech to the Oregon State University faculty was
designed to alienate possible voters and to insure Respon-
dent's defeat.
In support of its contention that Shapiro was not comply-
ing with Respondent's announced procedure for hiring ap-
plicants, the memo alleges, among other things, that Brown
was notified by Shapiro that he would be hired several
months before a job vacancy was ever announced for his
position and before Brown was even interviewed by Re-
spondent's screening committee.
The record establishes that Bailey. in the presence of Ste-
phenson, met with the lawyers for the coalition and assisted
them in gathering evidence to support their charges against
Shapiro. Likewise, Brown met with the lawyers for the co-
alition and verified the accuracy of those parts of the
charges against Shapiro which Brown had personal knowl-
edge of. Specifically, on April 10. at the request of members
of the coalition, Bailey, with Stephenson, met with the co-
alition's lawyers and supplied them with information per-
taining to the allegation that Shapiro manipulated elections
and had undermined Respondent's efforts to organize the
employees at Portland State University and Oregon State
University. And Brown, on April 15, prior to the board of
director's meeting, met with the coalition's lawyers, who
showed him the memorandum they intended to submit to
the Board and asked Brown if the allegations against Sha-
piro which the was personally involved in were true. Brown
read the memo and acknowledged that the information
which he had personal knowledge of was true.
On Monday, April 17, at 10 a.m., in the Salem office,
Respondent held its regularly scheduled meeting of the pro-
fessional staff, all of whom were present, except for Busi-
ness Manager Martens and employee representative
DeLuca. who, as described injfra, were at the Portland of-
fice. Shapiro started the meeting by stating that many staff
members had complained to him about their inability to
work with the Portland staff and that he intended to use
this meeting to air this problem. When no one volunteered
to start the discussion, Shapiro asked employee representa-
tive Wyatt what he had to say on the subject. Wyatt stated
he felt very uncomfortable saying anything at the staff
meetings because it was apparent to Wyatt that there were
severalallegations included in the coalition's charges against
Shapiro that could only have come from staff meetings.
Wyatt voiced his distrust of Brown and Bailey, stating that
certain of these allegations must have been made by Brown
and Bailey, because they were named as having been per-
sonally involved. Allen, an employee representative, stated
he felt he could no longer work with Ward, Bailey. and
Brow- because he thought that if anything was brought up
in a staff meeting which could be misunderstood or taken
wrongly by the membership, these persons would commu-
nicate it to the membership. Gilbert, an employee repre-
sentative, stated he did not want to participate in meetings
with the Portland staff, as he felt he could not trust them.
At this point Respondent's general counsel, Irvin. stated in
substance that remarks made at staff meetings which could
be improperly construed by the membership and which vio-
lated Respondent's constitution or bylaws had no business
being voiced and declared that ever since Shapiro's ap-
pointment as executive director, improper statements were
continually being made at staff meetings and that Irvin
could no longer stand it and had had enough of it. Galla-
gher called Bailey a "shit" and warned that if Bailey should
ever seek other employment, Gallagher would blacklist him
with other employers. Gallagher also called Brown a "no-
good sleezy little snit" and accused him of' informing the
press that Gallagher's wife was receiving kickbacks on au-
tos being leased by Respondent for its staff. Brown denied
this accusation. Brown and Gallagher at this point started
shouting at each other, whereupon Bailey advised Brown it
was not in his best interests to get involved in an argument
with Gallagher, but to just sit quietly. Shapiro asked Bailey
who he thought he was, telling Brown what to do. Bailey
stated he was a friend of Brown who could see "what was
coining down the road." At this point, at about 11:30 a.m.,
Shapiro recessed the meeting until 1:30 p.m. for lunch. Also
during the meeting, Chinn asked why Bailey had told her
and employee representative Yockey that there would be
"hell to pay" if they went into the Portland office. Bailey
stated he did not mean anything by this remark."
On April 17 when Bailey and Brown returned from
lunch, at about 1:30 p.m., they were discharged under the
following circumstances. After being called into Shapiro's
office, they were handed separate termination letters with
identical language and were each given two checks, one for
the days they had worked in April and the other covering
their accrued vacation pay. In addition, Bailey was handed
a memo from Business Manager Martens dated April 17,
which stated that his retirement money would be mailed to
him at a later date. The letters of termination stated Brown
and Bailey were terminated:
because of insurbordination, derogatory statements
about fellow staff members, inability to work produc-
tively with fellow staff members and general conduct
that is detrimental to the Association.
When Bailey and Brown questioned the accuracy of the
amount of accrued vacation pay which had been given
them, Shapiro stated that Martens had made out their final
paychecks, and she was at the Portland office. Shapiro
phoned the Portland office and advised Martens that Bailey
and Brown felt they were not being compensated suffi-
ciently for their accrued vacation. Shapiro, after talking
with Martens, told Bailey and Brown that Martens would
contact them later about this matter.
D. Conclusionarn Findings and Analiysis
I. Statements which allegedly tended to restrain or coerce
employees from exercising their statutory right to engage
in union or other protected concerted activity
5' The foregoing description of what was sated at the April 17 staff meet-
ing is based upon a composite of the testimonies of Brown. Baile. Chinn.
Wyatt. Gallagher, and Shapiro, which, except fr one colloquy. are essen-
tially not in conflict. The conflict is between the testimonies of Chinn. Sha-
piro. and Brown concerning the colloquy between Chinn and Bailey. I have
resolved this in favor of Chinn's version, as she impressed me as the more
credibhle witness.
990
OREGON STATE EMPI.OYEES ASSN.
(a) General Counsel contends that. as alleged in para-
graph 5(a) of the complaint, Respondent violated Section
8(a)( 1) of the Act when, during January, Executive Director
Shapiro, in order to defeat the employees' union activity.
promised to pay employee representative Bailey his salary
for I year if Bailey would terminate his employment. I have
previously found that Shapiro did not engage in this con-
duct. Accordingly, I shall recommend the dismissal of this
allegation.
(b) General Counsel contends that, as alleged in para-
graph 5(b) of the complaint, Respondent violated Section
8(a)(I) of the Act when, on January 25, Respondent's Pres-
ident Grant threatened employee Stephenson with dis-
charge if he engaged in union or protected concerted activi-
ties. The facts pertinent to this allegation, which have been
previously set forth herein, establish that when Grant, in a
conversation with Stephenson, stated that Shapiro had the
authority to discharge employees, she was merely illustrat-
ing her position that Shapiro, not the board of directors,
was responsible for handling personnel problems. Viewed
in its context, Grant's comment cannot be reasonably con-
strued as a threat to discharge employees on account of
their union or protected concerted activities. Accordingly, I
shall recommend the dismissal of this allegation.
(c) General Counsel contends that, as alleged in para-
graph 5(c) through 5(g) of the complaint, Respondent vio-
lated Section 8(a)(1) of the Act when Shapiro, during his
January 26 meetings with Bailey and Stephenson, com-
mitted an assortment of unfair labor practices, namely, in-
terrogating them about their union activities, threatening
them with discharge on account of their union activities,
giving them the impression that employees' union activities
were under surveillance, and threatening to discharge em-
ployee Brown because of his union activities." I have previ-
ously found that Shapiro did not engage in this conduct.
Accordingly, I shall recommend the dismissal of these alle-
gations.
(d) General Counsel contends that, as alleged in para-
graph 5(h) of the complaint, during February and March
Respondent violated Section 8(a)(l) of the Act when Sha-
piro threatened to discipline and discharge Stephenson if he
spoke to Respondent's members about his terms and condi-
tions of employment. The facts which are pertinent to
evaluating this allegation are as follows.
On February 21, as I have previously found, Shapiro told
Stephenson that he was being removed from his position as
Shapiro's special assistant. On February 24, at Stephenson's
request, Shapiro put into writing, in the form of a written
reprimand, his complaints against Stephenson. The repri-
mand indicated that Stephenson had been demoted because
he had lobbied the board of directors the previous weekend
' Also, General Counsel contends that, as alleged in par. 5(g) of the com-
plaint, early in March Shapiro threatened employee Brown with discharge
on account of his union activities. In this regard, the undisputed evidence
establishes that on March 7, when Shapiro spoke to employee Bailey about
Stephenson's discharge, he told Bailey that Brown would also be terminated
if he did not "gain some humility." When he stated this. Shapiro did not
expressly or by implication mention union or protected concerted activities
Nor was anything else said in the conversation which was reasonably calcu-
lated to cause Bailey to believe that Shapiro was threatening to fire Brow n
on account of his union or protected concerted activities. Accordingl). I shall
recommend the dismissal of this allegation.
despite the fact that "in the past he had] been made aware
of [Shapiro's] strong disapproval of any staff member taking
complaints about Shapiro] or any other staff to the mem-
bership" and warned Stephenson that any further airing to
any OSEA member or state employee outside of [Shapiro's
presence of any complaint against or displeasure with [Sha-
piro] or other staff. is grounds for immediate dismissal."
General Counsel argues that prohibiting Stephenson
from speaking to Respondent's members out of Shapiro's
presence about "any complaints or displeasure" involving
Shapiro or other supervisors is so broad as to impermissibly
limit Stephenson from participating in legitimate union or
protected concerted activities. lowever, as set forth in de-
tail below, it appears that this conduct of Respondent arose
within the context of Stephenson's effort to persuade Re-
spondent's membership to oust Shapiro. Consequently, for
the reasons explicated in Retail Clerks 'Union, l.ocl 770
Retail Clerks International . socialtion .- Fl. (I10 208
NLRB 356 (1974). I find that by prohibiting Stephenson
from speaking to the membership. Respondent did not vio-
late Section 8(a)( I) of the Act.
(e) General Counsel contends that, as alleged in para-
graph 5(i) of the complaint, Respondent violated Section
8(a)(1) of the Act when Shapiro prohibited Respondent's
employees from discussing Stephenson's discharge with Re-
spondent's members. The pertinent facts necessary to
evaluate this contention, which have been set out in detail
previously, can be briefly stated as follows.
In March, soon after Stephenson's termination, Shapiro
spoke to the staff about his termination. Shapiro stated that
if the staff was questioned by members about Stephenson's
termination, they were to recite what was stated in Stephen-
son's termination letter and tell the members Stephenson
had the right to arbitrate his termination, but that any other
questions about Stephenson's termination should be re-
ferred to Shapiro. ater, in the middle of March. Shapiro
modified the last part of this instruction by stating to the
staff that other questions by the membership about Ste-
phenson's termination should be referred to the board of
directors, rather than Shapiro. Then. at a staff meeting held
on March 27, Shapiro stated he understood that some of
the employees. including Brown, had discussed Stephen-
son's termination with the board of directors and other
members despite Shapiro's instruction. Shapiro warned the
staff that anyone who talked about Stephenson's termina-
tion with the board of directors or with other members
would be terminated.
I agree with the General Counsel that Respondent vio-
lated Section 8(a)( I) of the Act when Shapiro notified the
employees that, other than to recite the contents of Ste-
phenson's termination letter and to state he could arbitrate
his discharge, the employees could not speak about Ste-
phenson's discharge to the board of directors or other meim-
bers of Respondent. This prohibition was not limited to the
employees' working time. And the law is settled that em-
ployees who attempt on their own time to persuade their
employer to reinstate employees are engaged in conduct
which is protected by Section 7 of the Act. See trcnricks
(Counti Rural Eiectic Mlcmlzhershi, (orporlation 236 NLRB
1616 (1978): ('oluia l'einiversit', 236 N RB 793 (1978):
AMP, Incorporated, 218 NI.RB 33. 36 (1975): and (rtldon
Indunsriev, 199 NI.RB 937. 938 941 1972'). likewise. em-
991
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees do not lose the protection of the Act if, in carrying
out this type of concerted activity, they solicit the support
of their employer's customers or their employer's board of
directors. See American Arbitration Association, Inc., 233
NLRB 71 (1977) (employee solicits customers' support):
Community Hospital of Roanoke Valley, Incorporated v.
N.L.R.B., 538 F.2d 607, 610 (4th Cir. 1976) (employee ap-
pears on television news broadcast); N.L.R.B. v. National
Furniture Manufacturing Co., 315 F.2d 280 (7th Cir. 1963)
(employees distribute handbills at a manufacturers conven-
tion); and Diagnostic Center Hospital Corp. of Texas, 228
NLRB 1215 (1977) (employee writes to chairman of em-
ployer's board of directors). It is for these reasons that I
find Respondent violated Section 8(a)(l) of the Act when
Shapiro threatened employees with discharge if they spoke
about Stephenson's discharge to Respondent's board of di-
rectors or other members. Such a warning had a chilling
effect on the employees' statutory right to engage in pro-
tected concerted activities. Of course, Respondent's motiva-
tion in issuing this instruction is not relevant inasmuch as
"the test of interference, restraint, and coercion under Sec-
tion 8(a)(1) of the Act does not turn on the employer's mo-
tive . . . . The test is whether the employer engaged in
conduct which . . . tends to interfere with the free exercise
of employee rights under the Act." N. L.R.B. v. Illinois Tool
Works, 153 F.2d 811, 814 (7th Cir. 1946).
(f) General Counsel contends that, as alleged in para-
graph 5(j) of the complaint, Respondent violated Section
8(a)(l) of the Act when early in February Shapiro ordered
employee Brown to refrain from engaging in union or pro-
tected concerted activity. The pertinent facts necessary to
evaluate this contention, which have been set out in detail
above, can be briefly stated as follows.
On January 25 Respondent's employees met after work-
ing hours in Respondent's Salem office. Brown spoke to the
employees. He stated that since Bailey and Stephenson had
been excluded by Shapiro from participating in union ac-
tivities, he had volunteered to take their place and chair the
meeting. Brown explained that the purpose of the meeting
was to talk about getting a certification from the Board and
also to talk about the election of officers and the adoption
of a constitution and bylaws. Brown suggested a name for
the employees' union and indicated that he intended to file
a representation petition with the Board to replace the peti-
tion filed by Bailey, which had been withdrawn. There was
strong opposition to Brown's filing another representation
petition with the Board as well as to his tape-recording the
meeting. The spokesperson for the faction which opposed
certification by the Board defeated Brown in the ballot for
temporary chairman.5 " One week later, on approximately
February 1, Shapiro informed Brown that Respondent had
serious problems with him because none of the persons em-
ploye in the Salem office liked Fim. Shapiro stated that
Brown had been arrogant and had said derogatory things
and that it was due to this kind of conduct that people
misunderstood him. Shapiro assured Brown that he was in
no trouble with Shapiro, as Shapiro understood him, but
that because of the employees' reaction, Brown would have
1' In view of this, Brown never did file a representation petition with the
Board.
to "lay low" and "keep things cool." Shapiro, referring to
the Board stated he knew Brown had been "kind of caught
in the middle of things," that Shapiro did not want "to talk
about this NLRB thing, but you [referring to Brown] have
upset people and they don't like you, and a lot of people
can't work with you." Shapiro then warned that "[if things
did not get better, if the pressure did not reduce, he would
have to, possibly transfer [Brown] to the Salem office.""
The plain import to Brown of Shapiro's statement, when
viewed by Brown in the context in which it was made, was
that the position Brown had taken concerning the Board
representation petitions had antagonized a group of his fel-
low employees to the extent that they had indicated to Sha-
piro they did not like Brown and would not work with him
on account of this and that unless things improved in this
respect, Shapiro, although he personally understood Brown,
would have to transfer him to the Salem office. In other
words, Shapiro's statement, on its face, was calculated to
convey to Brown the impression that if he upset his fellow
employees any more by going ahead and filing a representa-
tion petition with the Board, he would be transferred from
Portland to Salem. This warning, as alleged in the com-
plaint, was tantamount to an order to refrain from engaging
in union activity. By engaging in this conduct, I find Re-
spondent violated Section 8(a)(l) of the Act.
(g) On January 24, as I have previously found, Shapiro,
based upon his belief that Bailey and Stephenson were su-
pervisors within the meaning of the National Labor Rela-
tions Act, instructed them to cease and desist immediately
from engaging in any representational or collective-bar-
gaining activity on behalf of the employees and to maintain
a strict neutrality on the matter of the employees' union
representation. Also, Shapiro instructed them that inas-
much as they were statutory supervisors, continued labor
relations activity by them on behalf of other employees
would subject Respondent to unfair labor practice liability;
hence, if they did not cease engaging in this activity, they
would be discharged.
As I have found, supra, neither Bailey nor Stephenson
was a statutory supervisor or a managerial employee, but
rather at all times material they were employees entitled to
the Act's protection. And, since it is settled that employees'
rights under the Act are not subject to defeasance merely
because the employer mistakenly believes that the employ-
ees are supervisors within the meaning of the Act (see
N.L.R.B. v. Puerto Rico Rayon Mills, Inc., 293 F.2d 941,
945-946 (Ist Cir. 1961), and N.L.R.B. v. Cast-A-Stone Prod-
ucts Company, 479 F.2d 396, 396-397 (4th Cir. 1973)), 1
find that by directing employees Bailey and Stephenson to
cease and desist from their union activities and by threaten-
ing them with discharge if they continued to engage in such
activities, Respondent violated Section 8(a)(l) of the Act. I
realize that the complaint lacks a specific allegation cover-
ing this violation. Nonetheless. "it is well established when
an issue relating to the subject matter of a complaint is fully
litigated . . . the Board [is] expected to pass upon it even
59 Brown was assigied to work in Respondent's Portland office.
to Shapiro presumably had knowledge about what took place at the Janu-
ary 25 meeting of the employees' union inasmuch as two or three persons
who admittedly are statutory supervisors attended this meeting. There is
absolutely no evidence to refute this presumption.
992
OREGON STATE EMPLOYEIS ASSN
though it is not specifically alleged to he an unfair labor
practice in the complaint." Monroe Feed Store. 112 NLRB
1336 (1955). Here Shapiro's warning to Bailey and Stephen-
son to cease their union activities was related to the general
subject matter of the complaint in that it arose from the
same nucleus of operative facts. Respondent did not object
to testimony regarding the subject. and the partinent facts
were fully litigated. It is for these reasons that I have con-
sidered the legality of the warning issued Baile and Ste-
phenson.
2. The domination and interference with the
administration of the Employees' Committee
Since approximately 1971 Respondent's employees have
negotiated a series of collective-hargaining agreements with
Respondent through an employees committee."' These
agreements have set the terms and conditions of employ-
ment for all of Respondent's employees except its executive
director. The employees, however, were not members of the
employees committee. Indeed, until April 1978 the commit-
tee did not have a constitution or bylaws, collect dues, or
charge fees. The employees held no meetings other than to
select a committee of employees to negotiate the terms of
their collective-bargaining agreement and to select a job
representative to administer the agreement.
General Counsel contends that, as alleged in the com-
plaint, in January, when the employees decided to make the
employees committee into a formal organization with a
constitution, bylaws, officers, and dues, Respondent or-
dered certain employees to take control of the committee,
and these employees did take over the committee on behalf
of Respondent. There is no credible evidence, direct or cir-
cumstantial, to support this contention. Accordingly. I shall
recommend the dismissal of these allegations.
General Counsel also urges that Respondent has inter-
fered with the administration of the employees committee
because three persons who are admittedly supervisors
within the meaning of the Act attended the meetings of the
committee, participated in the discussions held during these
meetings,62 and voted in the committee's election for the
adoption of a constitution and bylaws and the selection of
officers and a job representative. General Counsel Irvin,
Business Manager Martens, and the special assistant to the
executive director, Gallagher, are the supervisors involved.?
61 In April the employees committee was given a formal organization
when the employees adopted a constitution and bylaws and elected officers
Since that date, the committee has been known as the Association Represen-
tatives Union. I note that the parties to this proceeding have agreed that at
all times matenal to this case, the employees committee was a labor irgani-
zation within the meaning of the Act.
a The employees committee met on Respondent's propert during the
employs.s' own time. It also appears that on:e. to elect a job representative.
the employees may have met on company time. None of this constitutes
unlawful assistance. See Consolidated Flaor (Corporation, 238 NLRB No 53
(1978).
56 General Counsel contends that emplo ee representative Gordon Webh.
who was the employees committee job representatise until Januar:. and in
that capacity dealt with Shapiro concerning employees' grievances. was also
a statutory supervisor. I recognize that in January Shapiro announced that
Webb was a "supervisor": however. the record fails to establish that Webb
at any time material to this case possessed the authority of a sltatutor super-
visor.
The question of whether the voting of Supervisors Galla-
gher. Martens, and Irvin at union meetings constitutes pro-
hibited interference on the part of Respondent in the affairs
of the employees' labor organization is governed by the
Board's decision in Nas.vau andl Stffolk ('ontractors' Associ-
ation, 1 18 NI.RB 174 (1957). where a majority of the Board
(Member Murdock dissenting) held that when statutory su-
pervisors were members of a rank-and-file bargaining unit,
employer responsibility would not attach to their conduct
automaticall, as was normally the case. In reaching this
result. the Board, in Nassau alnd Sffli/k. which involved the
building trades industry, expressly recognized a unique fea-
ture in this industry. the extreme upward and downward
mobility of the positions of men working in the industry.
Also, the Board recognized the desire of various foremen
and other supervisory employees in this industry to retain
their union membership in a rank-and-file union as a type
of job security so that theN would be able to obtain work as
journeymen if they were laid off in or surrendered their
higher capacities. The majority held in Nassau and Sfolk
that the voting of certain supervisory master mechanics at
union meetings did not constitute prohibited interference
on the part of the emplover. The master mechanics were
included in the unit represented by the union, were covered
by the union's contract. and were required to maintain
good standing in the union. and their designation by the
employer was subject to union approval. The master me-
chanics were also shop stewards and as such were "respon-
sible for working conditions on the job," according to the
union's bylaws. Thus, the majority noted, the master me-
chanics owed allegiance at least as much to the union as to
their employer. The majority concluded that in these cir-
cumstances responsibility for the master mechanics' partici-
pation in the affairs of the union could not be attributed to
the employer. But. on the other hand, voting in union elec-
tions by other supervisors, not included in the bargaining
unit, and by some executives, was found to be chargeable to
the employer and to have violated Section 8(a)(2). For the
Board said [118 at 1841:
[Vloting in union elections is plainly a form of interfer-
ence ,ith the administration of a labor organization. It
may not be unlawful for the company executives and
high-ranking supervisors to retain the union member-
ship they acquired as rank-and-file employees as job
insurance in the event that they should revert to ordi-
nary employee status, but that does not make it lawful
for them to prticipate in elections to determine who is
to administer the affairs of the union. It is quite con-
ceivable that in a closely divided vote executive and
high-ranked supervisors would have the balance of
pok er and be in position to select the union officials
who are to deal v, ith them in their separate capacity as
emplo er agents.
I am of the view that the voting of Gallagher. Irvin, and
Martens in the union elections in the instant case is a form
of interference with the administration of the union attrib-
utable to Respondent: thus, it violated Section 8(a)(2) and
(1) of the Act. in so concluding, I was influenced by the
following factors. The three responsible supervisors in-
volved herein constitute 10 percent of the unit employees
and thus are highy likely to hold the balance of power
993
I)E(CISIONS OF NATIONAL LABOR RELATIONS BOARD
when any closely divided issue is voted upon in the union's
elections. Unlike the master mechanics involved in Nassau
and SUlhlk, the responsibilities of' the supervisors here iden-
titfy them with management.61 Their positions are analogous
to those of high-ranking supervisors and company execu-
tives who other employees are likely to believe are a part of
management and acting in the interests of management
rather than in the employees' interests. In addition, unlike
the master mechanics involved in Nassau and Sufl.k, the
supervisors here did not owe their allegiance at least as
much to their union as to their employer, nor is this a situ-
ation where it appears likely that any of them will in the
future be employed as a rank-and-file employee by Respon-
dent. Nor in this case were the supervisors even members of
the union which negotiated their terms and conditions of
employment, for the employees committee had no mem-
bers. It is for all of' these reasons that I conclude that the
treatment of the master mechanics by the Board in Nassau
and Suffilk is plainly distinguishable in significant respects
from the situation in the instant case and conclude that by
participating through its supervisors Irvin, Gallagher, and
Martens in such union activities as voting in union elec-
tions, Respondent interfered with the administration of the
employees committee, in violation of Section 8(a)(2) and (I)
of the Act.
3. The alleged discrimination involving Angelo
Stephenson
a. Stephenson ' reassignment
During the week of February 20, as fully described
above, Stephenson was removed from his position as Sha-
piro's special assistant and given a less desirable position. In
his new job Stephenson had no contact with the member-
ship and was no longer connected with the actual negotia-
tions of collective-bargaining contracts. General Counsel
contends that, as alleged in the complaint, Stephenson was
reassigned because of Shapiro's animus toward him on ac-
count of his union or other protected concerted activities. I
do not agree.
On February 21 and 24. as described in detail above,
when Shapiro notified Stephenson about his reassignment,
he justified it on the grounds that Stephenson had made
derogatory remarks about other employees and complained
to the board of directors about Shapiro. Shapiro testified
that another reason which influenced his decision to reas-
sign Stephenson was his misrepresentation of an employer's
bargaining position. He testified that on or about February
1, at a meeting with the director of the States highway de-
partment which was held to resolve per diem grievances
which Stephenson and the employer's negotiator had previ-
ously been unable to reach an agreement on. Shapiro
4 (;eneral Counsel Irvin supervised Re pondent's lawyers Also,. the ex-
ecutive director sought his ad' ce on mailers involving emiployees' terms and
conditions of emplos)ment, including the interpretation of the emplosees'
collective-hargaining agreement. Business Manager Martens is in charge of
the approximately 8 to 10 ottice clericals. who constitute approximately 30
percent oft he bargaining unit Martens has he uthority to hire (e.g.. Liv-
ingstone) and fire (e.g. Shipley) these employees. And Callagher. who is the
executive director's special assistant, speaks for him in those areas where the
director assigns him responsibiliy, I hus, it is possible or iallagher. during
the course of his duties, to supervise all oit the professional staff.
learned that Stephenson had misrepresented the employer's
bargaining position. Stephenson admittedly had informed
Shapiro and the rest of the staff that in order to reach agree-
ment on the grievances involving this employer which did
not involve per diem, the parties would have to reach agree-
ment on the per diem grievances, because the employer
considered all of the grievances as a part of the same pack-
age. On February I the employer's director informed Sha-
piro that the employer was willing to enter into an agree-
ment which would settle all grievances except for the per
diem ones, which could then be settled separately. How-
ever, Shapiro's testimony that he believed Stephenson had
deliberately lied about the employer's bargaining position
does not ring true. Shapiro knew Stephenson had negoti-
ated with the employer's negotiator, not its director: thus, it
was entirely reasonable, as Stephenson explained to Sha-
piro, that the employer's negotiator had taken the position
that the per diem grievances were part of a package. There
is no evidence which indicates Shapiro had any reason to
disbelieve Stephenson's explanation and conclude Stephen-
son had deliberately misrepresented the negotiations. In-
deed, when asked to explain, at the hearing why he felt
Stephenson had deliberately misrepresented the negotia-
tions, Shapiro was unable to give a convincing reason. It is
for these reasons, and the additional reason that Shapiro
failed to mention the alleged misrepresentation to Stephen-
son as a basis for his reassignment, that I find it was an
afterthought brought up by Shapiro for the first time at the
hearing to bolster Respondent's case.
The evidence upon which Shapiro based his belief that
Stephenson made derogatory remarks about other employ-
ees is as follows. On February 4 Stephenson and employee
representative Webb attended a meeting of a bargaining
unit representative committee (BURC) for the State's high-
way department. The purpose of the meeting was for Ste-
phenson to explain the provisions of the collective-bargain-
ing contract which he had just negotiated with management
so that the BUR(' could take it back to the entire bargain-
ing unit for ratification. When Stephenson spoke to the ap-
proximately 17 BURC members. he stated that he had ne-
gotiated an excellent contract and advised them not to
permit Respondent's staff to "screw it up." He told them, in
substance, that Respondent's employee representatives and
lawyers were incompetent. Later, while explaining the in-
tent of a particular clause, Stephenson warned the BURC
that, if questioned by the membership about that clause,
Respondent's "stupid attorneys" would interpret it differ-
ently. Stephenson cautioned the BURC not to permit Re-
spondent's staff to ruin the contract, because, as he told the
BURC, "this staff' literally does not know its head from a
hole in the ground." Then, at the end of the meeting, Ste-
phenson stated that he had been responsible for Webb get-
ting a job with Respondent and had supported Webb dur-
ing his employment, but now Webhh and the rest of
Respondent's staff had refused to support Stephenson and
that Webb in particular had stabbed him in the back. 65
'I the description .t the F-ebruarD 4 BUR(' meeting is based upon a com-
posite of the testimony of Wehb and John Clapp a BU RC member who was
present at the meeting. I have rejected Stephenson's version of this meeting
inasmuch as Webb and ('lapp impressed me as more credible witnesses.
whose testimllnles on significant matters ere Illutually corroborative
994
OREGON STATE EMPLOYEES ASSN
Webb, very upset, phoned Shapiro immediately and told
him about Stephenson's remarks and indicated he would
not work with Stephenson. That same evening Shapiro
phoned members O'Connor and Forrest, who were present
at the BURC meeting, to investigate Webb's allegation. He
was only able to speak with O'Connor. who was vague and
evasive about what Stephenson had stated and expressed an
inability to remember exactly what Stephenson had stated,
Following this phone call Stephenson phoned Shapiro at
home and accused him of spying. Shapiro informed Ste-
phenson about Webb's accusation and stated he felt obliged
to investigate the matter. Stephenson denied Webb's accu-
sation. Thereafter. on February 18, at a meeting of Respon-
dent's board of directors, Shapiro spoke with both O'Con-
nor and Forrest about the February 4 BURC meeting.
Forrest, in response to Shapiro's interrogation, corrobo-
rated Webb's allegation concerning Stephenson's remarks.
and O'Connor acknowledged that Forrest's recollection was
correct.
The evidence upon which Shapiro based his belief that
Stephenson, at the February 18 board of directors meeting.
complained about him to the directors is as follows. During
the meeting Stephenson was very active in speaking to var-
ious directors and complaining to them about Shapiro, who
observed this. Stephenson's activity caused the directors on
February 18 to recess their meeting and hold an executive
session, at which time they adopted a resolution which. in
substance, stated that Respondent's employees were pro-
hibited from engaging in any political discussions with the
directors, but that all employees' grievances would he re-
solved through the grievance-arbitration procedure in-
cluded in the employees' collective-bargaining contract.
Based upon the foregoing. I find that the reasons which
Shapiro gave to Stephenson were valid and legitimate ones
for removing him from his position as Shapiro's special
assistant and from his collective-bargaining negotiation re-
sponsibilities. Shapiro acted against Stephenson only after
he had conclusively learned that Stephenson had made de-
rogatory remarks of a highly defamatory nature about the
competency of Respondent's staff to the membership and
that Stephenson was complaining to the board of directors
about Shapiro. Shapiro had valid reasons for removing Ste-
phenson from his position as Shapiro's special assistant, un-
less Stephenson's complaints to the board of directors con-
stitute activity protected by Section 7 of the Act." In this
regard there is evidence which indicates that in speaking to
the board of directors, Stephenson complained, among
other things, of being excluded by Shapiro from engaging in
union activities, that the collective-bargaining contract cov-
ering Respondent's employees was unsatisfactory, and that
the employees' union had mishandled the grievance of em-
ployee Shipley. However. I am of the opinion that these
statenments were merely incidentia to Stephenson's obhJec-
x This is not a situation where the record reveals that Shapiro used Ste-
phenson's misconduct as a pretext to reassign him because of Slephenson's
participation with Bailey in filing the Board representation petition. Sha-
piro's threat to discharge Stephenson if he continued to engage In this union
activity does not support a contention that his reassignment was iliegalil
motivated where, as here, Shapiro acted out of a good-faith belief that Se-
phenson as a supervisor whose continued union organizational acltilties
would expose Respondent toI unfair labor practice charges
tive of persuading the membership to oust Shapiro as ex-
ecutive director. In other words, I am convinced that the
record in its entirety establishes that the thrust and purpose
of Stephenson's communications with the membership was
to effect a change in the top management of his employer.
The communications were not part of a bona fide effort to
improve employees' terms and conditions (of employment.
Under these circumstances, when Stephenson spoke criti-
cally to the membership about the handling of Shipley's
grievance and about the employees' collecti, e-bargaining
contract and Shapiro's exclusion of him from engaging in
union activities, Stephenson was not engaged in activity
protected by Section 7 of the Act. See Retadil ('lerkv ion,
Local 770 Retail (lerk.s International ssociatiron, 208
NILRB 356 (1974), where it was held that an employee of a
union has "no protected right" under the Act "to engage in
activities designed solely fr the purpose of influencing or
producing changes in the management hierarchy." Accord:
N\ew York ( hinrosvtl Senior ('irizens ( alition (rer. Iic..
239 NLRB 614 (1978).
In concluding that Stephenson's communications with
the board of directors which are pertinent to the issues in
this case, were made for the purpose of influencing or pro-
ducing a change in the top management of Respondent.
rather than an efHort to improve the employees' terms and
conditions of employment, I have been influenced b the
following considerations in their totalit.
1. In September 1977. at Respondent's general council,
Stephenson received a standing ovation fronm the member-
ship for his work in negotiating the central contract. Quite
reasonably, he apparently presumed he had substantial sup-
port among the membership.
2. In October 1977 Stephenson, in a conversation with
employee representative Webb, was critical of Shapiro's
management. In particular. he criticized the wa' he han-
dled grievances and his reliance upon the staff lawsers. who
Stephenson indicated he thought were incomnpetent. Ste-
phenson also told Webb that he was on good terms with
most of the newl elected directors and had spoken to some
of them and that he felt that it was only a matter of' time
before he persuaded the board to replace Shapiro kith him
as executive director. 0
3. On January 18 Stephenson, in a conversation with Re-
spondent's president. expressed his dissatisfaction wsith Sha-
piro's management and accused him of manipulating elec-
tions and misrepresenting facts to the membership.
Stephenson expressed the opinion that any number of per-
sons, including him, were qualified to replace Shapiro and
manage the affairs of Respondent.
4. On JanuarO 25 Stephenson in another conversation
with Respondent's president, this one about his being ex-
cluded by Shapiro from engaging in union activity, stated
that he would not work tir Shapiro unless he was covered
by a collective-bargaining contract and. if forced to leave
Respondent's employ on account of being excluiled from
the bargaining unit. that he would leave fighting antd take
Shapiro with him.
' HlBaed uponl Webb's testcni ll V chh mprcscd nmc a . nilre rcrdible
wilness than Stephenson Aic, rdilllgl. I he rejected Sicphtrilsorl' esti-
mien thai this conser.iilni losor iook p.lace
995
DECISIONS OF NAIIONAL LABOR RELATIONS BOARD
5. On February 19 Shipley, the dischargee whose griev-
ance Stephenson had spoken about the previous day at the
meeting of the board of directors, was visited by Stephen-
son. Stephenson told Shipley that he was forming a coali-
tion composed of Respondent's members and that he in-
tended to become Respondent's executive director and
replace all of the professional staff. Stephenson stated he
had attempted to persuade Respondent's president to join
his side, but she had refused. Stephenson also stated that
the coalition, in order to embarrass Shapiro, had been in-
strumental in raising the topic of Shipley's termination at
the board of directors meeting and intended to raise her
termination as an issue. In view of this, Stephenson asked
Shipley to sign an affidavit for the coalition. Shapiro also
solicited Shipley's assistance in supplying the coalition with
evidence against Shapiro dealing with improper balloting in
elections conducted by Respondent.
6. Stephenson's accusation, which he voiced to the board
of directors on February 18, that Shipley's grievance was
mishandled by the employees' union was not raised in good
faith. This is established by Stephenson's above-described
conversation with Shipley and the fact that it was Stephen-
son who advised Shipley to retain her own lawyer rather
than have Webb, the employees' job representative, handle
her grievance.
7. On February 28, as described in detail above, Ste-
phenson admitted to Shapiro that "he was out to get Sha-
piro's job, and was out to bring Shapiro down."
8. On March 3, following his termination, Stephenson
spoke with Shipley and employee representative Chinn. lie
indicated that he had been discharged and, on account of
this, intended to get Shapiro's job as well as inflict bodily
harm on Shapiro. In connection with his threat to oust Sha-
piro, Stephenson indicated that he had unsuccessfully tried
to persuade Respondent's president to join his side but that
it no longer mattered whether Respondent's president sup-
ported him, because the membership was behind him: that
certain members in the Portland area had given him money
to retain an attorney; and that he had been meeting with
the Portland membership who had formed a coalition to
raise issues that Stephenson and Bailey had discussed with
them.
9. On April 17, at a meeting of Respondent's board of
directors, the members of Respondent who had formed an
organization known as the Coalition of Chapters to Pre-
serve OSEA charged Shapiro with violating Respondent's
constitution and asked that he be suspended pending an
investigation of the charges.
These circumstances, viewed in their totality, demon-
strate that Stephenson's communications with the member-
ship which are pertinent to the issues in this case were un-
dertaken for the purpose of influencing or producing a
chang in Respondent's top management rather than a
bona fide effort to improve employees' terms and conditions
of employment.
To recapitulate, I find Respondent had valid reasons for
changing Stephenson's job, that there is insufficient evi-
dence that these reasons were pretextual, and that even as-
suming the reassignment was motivated in part because
Stephenson had spoken to the membership about his ineli-
gibility to engage in union activity or about employees'
working conditions, this activity was not protected by the
Act, because the thrust and purpose of Stephenson's activi-
ties was to effect a change in the top management of Re-
spondent, not to improve the employees' terms and condi-
tions of employment. It is for all of these reasons that I shall
recommend that this allegation be dismissed.
b. Stephenson's discharge
On March 3 Stephenson was discharged. General Coun-
sel contends he was discharged because of his union or pro-
tected concerted activities. The circumstances leading up to
his discharge belie this contention.
On February 18 Respondent's board of directors, in re-
sponse to Stephenson's lobbying, as I have fbund above,
specifically informed Respondent's employees that they
were prohibited from engaging in discussions of a political
nature with the board of directors,68 but that all employees'
grievances were to be resolved through the grievance-arbi-
tration procedures provided for in the employees' collec-
tive-bargaining agreement.69 Thereafter, several directors
notified Shapiro that Stephenson was continuing to lobby
the directors. They told him that Stephenson was informing
the directors that the employees' collective-bargaining con-
tract was unsatisfactory, that the members enjoyed superior
employment benefits to those of Respondent's own employ-
ees, and that Shapiro should be removed and replaced by
Stephenson, who would do a better job.
Following Stephenson's reassignment on February 21,
virtually every employee representative who worked with
him in the Salem office complained to Shapiro and Galla-
gher about him. One of their complaints was that it was
uncomfortable working with Stephenson due to his demea-
nor, the manner in which he acted toward them. 0 One em-
ployee. Wyatt, suggested to Shapiro that Stephenson should
be fired. Gallagher informed Shapiro that he did not desire
to work with Stephenson and that other employees had ex-
pressed similar sentiments.
On February 28, as I have described more fully above,
during an argument about whether Shapiro was discrimi-
nating against Stephenson by requiring him to notify Sha-
piro when he was absent, Stephenson told Shapiro that he
was "out to get [Shapiro], that he was out to burn [Shapiro],
[that] he would get Shapiro's job, and was out to bring
Shapiro down."
Shapiro testified that the aforesaid circumstances resulted
in his decision to discharge Stephenson and that "the straw
that broke the camel's back" was Stephenson's threats.
Based upon the foregoing, I find Shapiro had valid rea-
sons for discharging Stephenson.'7 As in the case of Ste-
6 Respondent's policy at all times has been that its employees are forbid-
den to engage in membership politics. It is foIbr this reason that Respondent's
employees are not allowed to become members.
69 As noted, spra, the contractual grievance-arbitration procedure is suffi-
ciently broad to encompass all employee grievances, even those which do not
involve employees' terms and conditions of employment.
7 It is undisputed that Stephenson, from the date of his reassignment and
even prior to that date, did not speak to the employees in the Salem office.
?' The question of whether Shapiro treated Stephenson differently from
other employees when he required him to notify Shapiro about his absences
was not alleged as an unfair labor practice, nor was the issue fully and fairly
litigated. The only witness Avho testified concerning this matter was the sec-
retary of Stephenson. In any event, assuming, arguendo, that Shapiro treated
996
OREGON STATE EMPLOYEES ASSN.
phenson's reassignment, the evidence ails to establish that
the real reason behind Stephenson's discharge was his role
in the filing of the Board representation petition. Nor does
Shapiro's admission that a factor influencing his decision
was Stephenson's complaints to the board of directors
about the employees' collective-bargaining contract war-
rant a conclusion that Stephenson was discharged for en-
gaging in union or protected concerted activity. As I have
found previously, Stephenson's statements to the member-
ship about the employees' collective-bargaining contract,
Shipley's grievance, and Stephenson's exclusion from union
activities were conduct merely incidental to Stephenson's
objective of persuading the membership to terminate Sha-
piro as executive director. Thus, in making these statements
Stephenson was not engaged in activity protected by Sec-
tion 7 of the Act. See Retail Clerks Union. Local 7)70, supra.
It is for all of these reasons that I shall recommend that this
allegation be dismissed.
c. The refusal to reimburse Stephenson's educational
expenses
On or about February 27 Shapiro refused to reimburse
Stephenson for travel and per diem expenses incurred while
Stephenson attended an educational course. General Coun-
sel contends that this refusal was motivated by Stephen-
son's union or protected concerted activity. I disagree.
Late in December 1977 Stephenson asked Shapiro if he
could take a course which was being offered at Portland
Community College on the subject of basic unionism. Ste-
phenson explained that even though he was qualified to
teach the course, he wanted to see how the instructor pre-
sented the material. Shapiro replied that if Stephenson was
able to fit the class into his schedule, he had no objection,
and that Respondent would pay his tuition.
Respondent paid Stephenson's tuition, and apparently
sometime in January Stephenson attended his first class. In
filling out his weekly travel voucher for that week, Stephen-
son requested reimbursement for the travel and food ex-
penses incurred in connection with this class. Shapiro
okayed the payment of this voucher, but failed to notice
that among the items approved were Stephenson's educa-
tional class expenses. However, the next time Stephenson
submitted an expense voucher, which included these ex-
penses, Shapiro observed them and concluded they were
not reimbursable inasmuch as Stephenson had asked to
take the course as a benefit to himself, whereas in past cases
Respondent had only reimbursed employees for educa-
tional expenses where the classes were taken at the request
of Respondent and for Respondent's benefit. After speaking
to Respondent's general counsel so as to be sure he was
correctly applying Respondent's policy, Shapiro notified
Stephenson that Respondent would not pay for his ex-
penses and explained to Stephenson the reason. There is no
evidence that in the past Respondent paid employees' edu-
cational class expenses in circumstances similar to Stephen-
Stephenson differently, I am of the opinion that since this conduct arose
within the context of Stephenson's effort to persuade Respondent's member-
ship to oust Shapiro, it does not provide a basis for concluding that Stephen-
son's discharge violated the Act. See, Retail Clerks Union, Local 770 Retail
Clerks International Association. .4FL CIO, 208 NLRB 356 (1974).
son's. Shapiro's explanation that his payment of Stephen-
son's expenses in the first instance was an oversight is
credible, and Shapiro's explanation for refusing to set a
precedent by paying these expenses seems reasonable.
Based upon the foregoing, I find Respondent did not dis-
criminate against Stephenson when it refused to pay for his
educational expenses, nor does the evidence otherwise re-
veal that Respondent's refusal was motivated by union or
other protected concerted activity. In any event, assuming
Respondent treated Stephenson differently than other em-
ployees or otherwise treated him unreasonably, I am of the
view that there is no showing that Respondent acted
against Stephenson for engaging in conduct protected by
the Act, since Respondent's conduct took place within the
context of Stephenson's effort to persuade Respondent's
membership to effect a change in Respondent's top man-
agement. See Retail Clerks Union, Local 770, supra. It is for
all of these reasons that I shall recommend the dismissal of
this allegation.
4. Bailey's discharge
On April 17 Shapiro discharged Bailey and Brown. Gen-
eral Counsel contends that Bailey was discharged because
of his union activities or other protected concerted activi-
ties. I disagree.
Shapiro testified that his decision to discharge Bailey was
influenced by the employees' distrust of and unwillingness
to work with Bailey, by Shapiro's own distrust of Bailey
and his feeling that Bailey was "politicizing the member-
ship" in the sense that he was getting involved in member-
ship affairs, and by the fact that Bailey, who was in charge
of the Portland office, failed to keep Shapiro informed
about problems involving the employees in that office or the
membership in the Portland area." Shapiro also testified
that while these considerations influenced his decision to
fire Bailey, Bailey would not have been discharged but for
the fact that Shapiro had come to the conclusion that Bai-
ley had given Stephenson, who was discharged March 3, a
key to the Portland office. In this regard I also note it is
undisputed that on May 31 Shapiro informed Respondent's
staff, in answer to a question from Respondent's general
counsel, that Bailey was discharged because Stephenson
was observed using a key to enter the Portland office.
In support of his assertion that he thought Bailey had
made a key available for Stephenson to use to secure access
to the Portland office, Shapiro testified that at exactly 1:07
" In view of my ultimate conclusion, infra, I have not set forth the evi-
dence presented by Respondent to support these reasons. I have, however,
carefully considered all the evidence and am of the view that the record, in
its entirety, establishes that employees indicated to Shapiro their distrust of
Bailey and an unwillingness to work with him, that Shapiro had grounds for
distrusting Bailey and for believing Bailey was involving himself in the af-
fairs of the membership, and that Shapiro also had grounds for thinking
Bailey was failing to keep him informed of significant matters involving the
Portland office. However, regarding Shapiro's belief that Bailey was involved
in the members' affairs, there is insufficient evidence to establish that Shapiro
was refernng to Bailey's conversations with members about terms and condi-
tions of employment of Respondent's employees. As a matter of fact, that is
a paucity of evidence that Bailey engaged in this type of communication.
Finally, I reject General Counsel's suggestion that Bailey's testimony estab-
lishes that one of he reasons which influenced Shapiro to discharge him was
Shapiro's belief that Baile) had conspired with employee representative
Ward in filing Ward's racial discrimination complaint.
997
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
p.m. on Monday, April 17. he was talking over the tele-
phone with employee representative Del.uca, who earlier
that day was sent to the Portland office with Business Man-
ager Martens. Del.uca informed Shapiro that Stephenson
had just entered the Portland office by unlocking the office
door. Shapiro further testified that it was at this point that
he concluded Bailey was responsible for Stephenson's key,
so he decided to discharge Bailey and, to effectuate the
discharge, directed Business Manager Martens to prepare
the necessary paperwork termination letters, final pay-
checks, and a letter concerning Bailey's retirement money.
Concerning the presence of Martens and DeLuca at the
Portland office on April 17, Shapiro testified as follows.
Due to the difficulty the Salem staff was having in securing
access into the Portland office during nonbusiness hours, he
instructed Martens to get a set of keys from the Portland
office. Martens, according to Shapiro, told him that Bailey
was supposed to bring the keys with him to Salem on April
17 when he visited the Salem office to attend the staff meet-
ing scheduled for that day. Shapiro testified that when Bai-
ley failed to bring the keys on April 17. he sent Martens and
DeLuca to the Portland office to change the locks.
Shapiro's testimony that his decision to discharge Bailey
and Brown was reached at approximately 1 p.m. on April
17 was false. Rather, this decision was reached on Sunday.
April 16, or prior to the start of the workday on Monday,
April 17. Thus, neither DeLuca nor Martens, who prepared
Bailey's and Brown's termination letters and final pay-
checks, were called to testify. I can only conclude that they
would have corroborated the credible and undisputed testi-
mony of ivingstone," Bailey, Brown, and Ward that over-
whelmingly demonstrates that Martens left the Salem office
on April 17 prior to Bailey's arrival for the staff meeting at
10 a.m." and remained at the Portland office all that morn-
ing and was still there at approximately 1:30 p.m., when
Shapiro notified Bailey and Brown that they were dis-
charged and handed them their termination letters, final
paychecks, and a memo to Bailey from Martens about his
retirement moneys. In other words, Martens, on April 17 at
about 9 a.m., prior to leaving for the Portland office, must
have made out the termination letters, the termination pay-
checks, and her memo to Bailey. In view of the foregoing, I
find that the reason which Shapiro at the hearing advanced
as having triggered Bailey's and Brown's discharges played
absolutely no part in Shapiro's decision nor did what took
place during the April 17 meeting of the staff, which did not
begin until the termination letters and checks had already
been prepared.
Based upon the foregoing, I find that the predominant
reason advanced by Respondent to justify Bailey's dis-
charge, the misconduct but for which he would not have
been discharged. was false. However, although I recognize
that Respondent's pretextual reas.n might in certain cir-
cumstances give rise to an inference of unlawful motivation.
73 livingstone was the office clerical employed in the Portland office.
74 Under the circumstances. Shapiro's testimony that on April 17 Martens
told him that Bailey had failed to bring a set of keys to the Portland office is
incredible. I think it is a fair inference that the reason Shapiro sent Martens
and DeLuca to the Portland office before work on April 17 with instructions
to change the locks was to prevent Bailey Iron, securing access to the office
alter his discharge.
I find that the surrounding circumstances of this case re-
quire a finding which is contrary to such an inference. The
sole evidence of union animus directed by Respondent
against Bailey personally is Shapiro's letter directing him to
cease and desist from continuing to engage in union activi-
ties on behalf of the other employees. This does not furnish
the basis for a finding of illegal motivation in the case of his
subsequent discharge, where, as here. Respondent had a
mistaken but good-faith belief that Bailey was a statutory
supervisor, whose union organizational activities would
subject Respondent to unfair labor practice liability. And.
upon his receipt of this letter, almost 3 months prior to his
discharge, Bailey ceased his union organizational activity
and apparently even ceased attending meetings of the em-
ployees' union. There is no indication Shapiro believed he
had resumed his objectionable union activities. Likewise,
the element of timing usually found in cases involving a
disciminatory discharge is missing. Bailey's discharge oc-
curred approximately 3 months after Respondent learned
of his objectionable union activities and approximately 2-
1/2 months after Respondent learned he had withdrawn
the representation petition he had filed with the Board and
had otherwise ceased his union organizational activities and
made peace with Shapiro. Finally, and most significantly,
the fact that the predominant reason advanced to justify
Bailey's discharge is false does not create a vacuum with
respect to Respondent's motive for discharging Bailey when
it did. Here the timing of the discharge. hard on the heels of
the April 15 board of directors meeting, at which the coali-
tion brought charges against Shapiro in an unsuccessful ef-
fort to oust him as executive director.7 creates a basis for an
inference that there was a lawful motive for the discharge7 6
which Respondent wanted to conceal.77 It is for the forego-
ing reasons that I am of the opinion that the General Coun-
sel has not carried her burden of proof and established a
7' The record establishes that when Shapiro and other members of Re-
spondent's professional staff who worked in the Salem office read copies of
the coalition's charges against Shapiro asking for his suspension, which were
distributed at the April 15 board of directors meeting, they came to the
reasonable conclusion that Bailey had collaborated with the coalition and
furnished it with infoirmation which was included in the charges The em-
ployees elt that the charges were unjustified and expressed their antagonism
toward Bailley for aiding the coalition. They spoke to Shapiro about this
matter on April 15 and again on April 16. at which time a special meeting
between Shapiro and several iof the employees was held where Bailey's al-
leged disloyalty to Shapiro was discussed. The decision to discharge Bailey
was made immediately after this meeting.
76 As I have noted previously, it is not a violation of this Act for a union to
discharge one of its employees for engaging in activity the thrust and pur-
pose of which is to effect a change in the top management of the union. See
Retail Clerks L'nion, Local 770 Retail ('Clerks Iniernaionul Association. 208
NLRB 356 11974). Thus, if Respondent grounded Bailes's discharge on a
belief that he was involved in a conspiracy to oust Shapiro,. his discharge was
not illegally motivated. In this regard I note that the record indicates that
Bailey's cooperation with the coalition in presenting its charges to the board
lof directors was oIbr the purpose of aiding the calition in its effort to oust
Shapiro and was only tangentially, i at all, aimed at improving the employ-
ees' terms and conditions olf employment
77 Since the coalition appeared to have the support of a substantial number
of' Respondent's members, it would have been harmful politically for Shapiro
tii have admitted he discharged Bailey lfor cooperating with the coalition in
their effort to unseat him for violating Respondent's constitutiit. In this
regard, although not relevant to this proceeding I note that on May 31 one
lof Respondent's senior employees, General Counsel Irvin resigned his job in
part because he apparently believed that Bailey had been discharged because
he had given information to the coalition. n li r the reason advanced by
Shapiro.
998
OREGON STATE MPI()Y ES ASSN.
prinma faiie case that Bailey's discharge was illegally moti-
vated.'" Accordingly, I shall recommend that this allegation
he dismissed.
5. The alleged discrimination involving Brown
a. Brown's trans,/ir and( change of a ls.ignment
On March 30 Brown was transferred from the Portland
office, where he had worked as an employee representative,
to the Salem office, where he was assigned the duties of an
organizer. Brown was hired to work in the Portland office
as an employee representative and lived in the Portland
area, so it as natural that he objected to the transfer, as it
created both a personal and financial hardship. it forced
him to commute each day between Portland and Salem.
General Counsel takes the position that Brown's transfer
and change of work assignment were motivated by Sha-
piro's animus toward him for taking Bailey's place as the
leading proponent for Board certification of the employees'
labor organization and indicating that he intended to file a
representation petition with the Board to replace the one
Bailey had withdrawn. The sole evidence to support this is
Shapiro's February I implied threat to Brown. described in
detail supra, that if Brown antagonized his fellow employees
by continuing to advocate the filing of a Board certification
petition, or by filing such a petition, he would be trans-
ferred. However, Brown did not file a petition, nor did he
indicate that he intended to file one. Instead, Brown heeded
Shapiro's warning and ceased all of his objectionable union
activities, and there is no evidence that Respondent thought
otherwise or had reason to think otherwise when, 2 months
following its illegal threat. Brown was transferred. More-
over, more significant in evaluating Respondent's motiva-
tion for Brown's transfer and reassignment is the evidence
which overwhelmingly demonstrates that the transfer and
change of assignment were the result of Shapiro's animus
toward Brown because he violated Shapiro's instruction
and spoke to the membership about Stephenson's dis-
charge. In reaching this conclusion, I was influenced by the
following considerations.
In March. as described in detail above, Shapiro in-
structed the staff that if the members questioned them
about Stephenson's discharge, they were to recite what was
stated in the termination letter and also tell them that Ste-
phenson had the right to arbitrate his termination under the
employees' collective-bargaining contract. They were to say
nothing more to the members.
On March 21, as described in more detail above, while
attending a membership meeting. Brown was asked bh a
member about Stephenson's termination. Brown recited the
reasons which were given in the termination letter, but also
stated that Stephenson had challenged those reasons and
was contending that the real reason for his discharge was
his involvement with the representation petition filed with
8 Shapiro's statements to the staff thai "Baile> was n league with Ste-
phenson and that Stephenson was the leader of some rebellion. and they
were in It together," and both would he termina ted doe, nrot ndicate Iha1
Bailey was discharged for engaging in union or protected concerted acili-
ties. This statement is even more susceptible o the inference Ihat Shapiro
thought that Stephenson and Bailes were insol.ed together in all attempt to
oust him as executive director
the Board. Brown also told the melmbers there saits a rumnor
circulating that Stephenson was out to get Shapiro's job.
which Stephenson had denied. In addition, Brow n stated he
understood that several members intended to raise the suh-
ject of Stephenson's discharge at the next board of directors
meeting, and if the member who had asked him the ques-
tion about Stephenson was interested about Stephenson's
situation and wanted to know more, perhaps the member
should attend that meeting.
On March 24. as described in more detail above. while
attending another membership meeting of a diffetrent chap-
ter. Brown was again questioned b several menlbers, about
Stephenson's discharge. Brown recited the reasons that had
been set out in the termination letter and then stated that
he. Brow n. had not seen any proof which substantiated the
allegations contained in the termination letter. Brow n also
handed out several newspaper clippings which dealt with
Stephenson's termination. In addition. Brown told the gath-
ering that several members intended to raise the matter of
Stephenson's termination at the next meeting of the board
of directors and expressed the opinion that it .aits up to the
board of directors to decide who was right about Stephen-
son's termination. T
On Monday. March 27. as I have found previously Re-
spondent violated Section 8a)( I) of the Act when Shapiro
threatened employees with discharge if the, spoke about
Stephenson's discharge with the hoard of directors or other
members. In connection with this warning. Shapiro stated
he was so mad that he could hardl talk because Brown
and other emplosees of Respondent. whoml he did not iden-
tify. had been discussing Stephenson's termination with the
members, contrary to Shapiro's instruction. Shapiro told
Brown to meet with him the follouing das to discuss the
matter. as he did not have time to talk with him that daN .
The next morning, Tuesday, March 28. as arranged,
Brow n met with Shapiro, who reprimanded Brown for dis-
cussing Stephenson's termination with the board of direc-
tors and other members of Respondent. hen Shapiro
abruptly transferred Brown to Respondent's Salem office
and informed him he would not be compensated for the
expenses he incurred in commuting from his home in Salem
to Portland. WVhen Brown asked whs he was beinr tranis-
ferred. Shapiro e'saded answering the question hb stating.
"''I think it is the best thing to do."
In summation, the record reveals that on March 21 and
24 Brown spoke to the membership about Stephenson's dis-
charge. lie presented Stephenson's side of the stor and
indicated he was skeptical of the reasons given b Shapiro
to justifyv the discharge. Immediately thereafter Shapiro,
who was extremely angry, reprimanded Browtn for speaking
to the members about Stephenson's discharge in siolation
of the rule against such communication and at the same
time notified Brown he was transferred to the Portlantd ot-
fice and refused to give him a reason for the transfer. I hesc
factors taken in their entirety oerwhelinglx denlonstrate
that the real reason for Brown's transfer was thait he had
incurred Shapiro's wrath by talking to the membership
7 As I hI e tound pre wiousl,. eseeral eIlclbher hd d,ptced i rc llIlO
ail'Tlg thll Ile hbord l t Jre irs inXe ligatle Secphci l'ii dilliiargc d11d. ii
it tOundl the dischairge .s withlUt nimerit. thai It ii iii Shilplr t relllislte
Stsephenis, l.
999
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about Stephenson's discharge. In fact Shapiro testified that
one of the reasons for Brown's transfer was that Brown had
told the membership that it would be the board of directors
who would make the decision about Stephenson's discharge
and had continued to talk to the membership about Ste-
phenson's termination beyond the limitations Shapiro had
established. I recognize that Shapiro also testified that there
were two other reasons why he transferred Brown, namely,
Shapiro "was not satisfied with the caliber of Brown's
work," and "Brown displayed to the staff people in the Sa-
lem area a very hostile attitude and we wanted to see if we
could smooth the edges." 85 However, I am convinced that
these additional reasons put forth by Shapiro at the hearing
were afterthoughts, having nothing to do with Brown's
transfer.
In support of his testimony that Brown was transferred in
part due to the poor caliber of his work, Shapiro was only
able to point to two instances where, in Shapiro's judgment.
Brown performed unsatisfactorily. Once, Brown pressed a
grievance to arbitration which Shapiro felt was plainly
without merit, thus placing him in the position of being the
one to indicate to the grievant that Respondent would not
process the grievance to arbitration. The second instance of
alleged unsatisfactory workmanship involved a request
from the employees in a bargaining unit which Brown ser-
viced that Respondent in the next central contract negotia-
tions negotiate a substantial wage increase on their behalf,
greater than the increases negotiated for other workers, in-
asmuch as they felt very strongly that in the past wage
negotiations Respondent had treated them unfairly. In his
handling of this matter Brown placed Shapiro in the posi-
tion of having to agree with the employees' request or of
revealing to them that it was Shapiro, not Brown, who had
rejected it. These isolated instances of unsatisfactory work
performance relied upon by Shapiro to justify Brown's
transfer are not the kind of evidence of poor workmanship
normally associated with the drastic discipline imposed
upon Brown. As a matter of fact, Shapiro's inability to
point to more than two isolated instances to support his
contention that the caliber of Brown's work was inferior
strongly suggests that Brown was a superior employee. In-
deed, there is evidence which indicates that this is more
than mere speculation. Thus, on April 12 Respondent's
General Counsel Irvin complimented Brown, in writing,
about Brown's handling of a grievance prior to his trans-
fer.' 1 Irvin stated that he was "very impressed with
[Brown's] analysis and resourcefulness in the handling of
employee grievances. Frankly it is the best, or as good as
0In testifying, Shapiro also briefly mentioned that he had "discussed"
Brown's transfer with Gallagher. He significantly did not testify that the
decision to transfer Brown was based upon Gallagher's recommendation.
Nor is there any evidence that Gallagher spoke to Shapiro about the matter
immediately prior to the transfer. Rather, the record shows that the last time
Gallagher recommended Brown's transfer was 5 to 6 weeks prior to the
transfer and that Shapiro declined to follow his recommendation. The only
new circumstances pertinent to Shapiro's decision to transfer Brown, which
occurred after Shapiro's rejection of Gallagher's recommendation, was that
Shapiro had learned Brown had violated the rule against speaking to the
membership about Stephenson's discharge. Accordingly, this is additional
evidence that but for talking to the membership about Stephenson's dis-
charge, Brown would not have been transferred.
I The record reveals that Brown spent the majority of his working time
handling employee grievances.
the best. I have ever seen."' 2 Based upon the foregoing, I
find Shapiro's testimony that he transferred Brown in part
because he was not satisfied with the caliber of Brown's
work, a reason not given to Brown at the time of the trans-
fer, to have been advanced by Shapiro as an afterthought
and to be without substance.
The sole evidence in the record which supports Shapiro's
assertion that Brown exhibited a very hostile attitude
toward the employees who worked in the Salem office is as
follows. Gallagher testified Brown would not cooperate
when Gallagher tried to arrange meetings between the three
employee representatives, one of whom was Brown, who
worked under Gallagher's supervision in the Eugene area.
Gallagher also testified that employee representative Lund
told him that no one could get along with Brown because
he was very hostile. Lund. who testified for Respondent,
failed to testify about this allegation. Finally, at a staff
meeting held in October 1977 in response to complaints
from several members of the staff about the manner in
which Respondent's lawyers handled grievances, Shapiro
invited the employees to state their complaints in the pres-
ence of the lawyers. One of' the several employees who
spoke up in response to this invitation was Brown, who had
worked less than I month for Respondent. Brown stated
that if an attorney was involved in a grievance that he had
handled, he would expect the attorney to contact him be-
fore telling the grievant what the lawyer intended to do
about the grievance so that Brown could intelligently dis-
cuss the matter with the grievant if the grievant contacted
Brown. Brown explained to the gathering that he had been
told this had not been done in a couple of instances, but he
expected it would be done in his cases. I find it difficult to
understand how Shapiro, as he testified, concluded from
Brown's conduct at this meeting that Brown was hostile
toward Respondent's lawyers. Brown and several other em-
ployees, at Shapiro's request, expressed their criticism of the
lawyers, and there is nothing contained in Brown's remarks
which indicates he was any more critical or unreasonable in
his comments than were others who spoke or that he was
intemperate in his remarks or ridiculed the lawyers. Quite
the contrary, Brown's remarks were quite restrained and
were pertinent to his role as an employee representative
intent on doing a good job. Thus, I reject Shapiro's testi-
mony that Brown was hostile toward Respondent's lawyers
or that Shapiro had reason to think this was the case. Like-
wise, I reject his further testimony that following the Octo-
ber 1977 staff meeting, Brown, at each staff meeting where
Brown spoke, exhibited hostility toward his fellow employ-
ees. Shapiro significantly failed to describe Brown's alleged
s I note that Irvin's high regard for Brown expressed here hardly supports
Shapiro's contention that Brown, by his conduct at a staff meeting held in
October 1977, described infr, antagonized Respondent's lawyers.
3 Based upon Brown's testimony. Shapiro, Lund, Webb, and Irvin testi-
fied about this matter, Shapiro simply testified that Brown was critical of the
way the lawyers handled grievances, Significantly, Shapiro failed to describe
Brown's remarks. Webb testified that Brown stated that the lawyers had
better have a damn good reason why the) did not process the grievances he
had submitted for arbitration. This testimony was contradicted by Lund,
who testified Brow n merely said "he hoped he would get good cooperation
and good results from [the lawyersl." Irvin, Respondent's general counsel,
who was present at the meeting, did not testify about Brown's remarks.
Brown impressed me as a more credible witness than either Shapiro, Webb,
or Lund on this matter, thus, I have credited his testimony.
1000
OREGON STATE EMPLOYEES ASSN.
misconduct engaged in at these staff meetings which sup-
posedly exhibited his hostility toward the other employees.
Nor did Respondent call one witness to corroborate this
assertion, which I do not credit. As a matter of fact, the
record reveals that in using the word "hostility" in describ-
ing Brown's relationship with other employees. Shapiro
used it to suit his purposes without regard for the truth.
Thus, in justifying Brown's discharge, Shapiro testified he
discharged him in part because of his "hostile attitude" ex-
hibited at the April 15 board of directors meeting and the
April 17 staff meeting. However, Shapiro was forced to ad-
mit that Brown said nothing at the April 15 meeting, and
the record reveals that if anyone exhibited hostility at the
April 17 meeting, it was Gallagher in his unprofessional
confrontation with Brown, not Brown. In sum, as was the
case with the evidence adduced in support of Shapiro's con-
tention that the caliber of Brown's work was unsatisfactory,
the paucity of evidence presented to demonstrate that
Brown conducted himself in a hostile manner toward other
employees, when taken into account with Shapiro's incredi-
ble testimony on this subject, establishes that this reason for
Brown's transfer is without substance and was given by
Shapiro at the hearing as an afterthought and played no
part in his decision.
Based upon the foregoing, I find that the context in
which Brown's transfer and change of job assignment oc-
curred establishes primafacie that the moving cause for this
conduct was Shapiro's hostility toward Brown for violating
Shapiro's rule against speaking to the membership about
Stephenson's discharge. I further find that the insubstantial
reasons advanced for the first time at the hearing to justify
Brown's transfer and reassignment bolster this prima facie
case. And, since I have found that the imposition of the
prohibition against speaking to the membership about Ste-
phenson's discharge violated Section 8(a)(1) of the Act be-
cause of its chilling effect upon the statutory right of the
employees to intervene on behalf of Stephenson in protest
of his termination by soliciting the support of the members,
it follows that by discharging Brown for violating the illegal
rule, Respondent likewise violated Section 8(a)(1). In this
regard I note that the record establishes that Brown, in
speaking to the membership about Stephenson, was in ef-
fect presenting Stephenson's side of the story, and he indi-
cated he was skeptical about the reasons given by Shapiro
for Stephenson's termination." I recognize the record does
not indicate whether Brown spoke in support of Stephenson
on Brown's own time or during working time. However, in
implementing the illegal rule prohibiting conversations with
the membership about Stephenson's discharge, it is plain
that Shapiro was not concerned whether Brown had acted
during working time, but he was solely concerned about the
substance of Brown's remarks. It is for these reasons that I
find that Respondent, on March 30. in transferring Brown
" The Board has held that one employee has the statutory nright to inter-
vene on behalf of a fellow employee to protest the employee's termination.
See Columbia University, 236 NLRB 793. 795, fn. 4, citing cases for this
proposition. And. as I have indicated previously in the instant Decision, the
Board has likewise held that in engaging in what is otherwise protected
concerted activity. employees may enlist the support of their employers' cus-
tomers. In my view. when a union is being treated as an employer, as Re-
spondent is being treated here, its members ar analogous to an employer's
customers.
to its Salem office and changing his job duties, violated
Section 8(a)(l) of the Act.85
b. Brown's discharge
The timing of Brown's discharge, coming as it did I week
after his transfer and change ofjob duties, when considered
with the fact that the transfer and change of job duties were
illegally motivated, establishes a prima facie case that
Brown's discharge was for the same illegal reason. The bur-
den is then on Respondent to show that its refusal to con-
tinue employing Brown was motivated by legitimate busi-
ness considerations. For, when it has been proven that a
Respondent has engaged in illegal conduct which adversely
affects employees, the burden is upon the employer to es-
tablish that he was motivated by legitimate objectives, since
proof of motivation is most accessible to him. See N.L.R.B.
v. Miller Redwood Company, 406 F.2d 1366, 1370 (9th Cir.
1969). 1 am of the opinion that Respondent has failed to
meet this burden and that the record supports the General
Counsel's contention that Respondent's asserted justifica-
tion for discharging Brown was a pretext, thus reinforcing
the primafacie case rather than rebutting it.>
Shapiro testified that on April 17, at 1:07 p.m., at the
same instant he decided upon Bailey's discharge, he de-
cided to discharge Brown and, he further testified, Brown
was discharged at that time for four reasons, which he de-
scribed in these terms: (1) Brown's "hostile attitude that
was displayed at the staff meeting that morning" and the
fact that several members of the staff stated at the meeting
that they would no longer work with Brown, (2) Brown's
"hostile attitude that was displayed at the board of direc-
tor's meeting the previous Saturday," (3) "[he] was in his
position not doing a credible job," and (4) Shapiro thought
the Board was going to issue a complaint Respondent in the
unfair labor practice charge cases involving Stephenson's
discharge, Bailey's discharge, and Brown's transfer. In view
of this, Shapiro testified, he concluded he might as well
discharge Brown, since it was only a matter of time before
Brown would be fired since it was obvious that Brown
could not be rehabilitated and that when he eventually was
discharged, he would presumably file an unfair labor prac-
tice charge. By discharging Brown right then rather than
waiting any longer, Shapiro testified, he would be able to
get all of the unfair labor practice charges over with at the
same time. An evaluation of Shapiro's reasons for discharg-
ing Brown when he did follows.
Regarding (1), it is sufficient to say the record over-
whelmingly demonstrates it is palpably false. As I have ex-
plained in detail, supra, in discussing Bailey's discharge.
Shapiro decided to discharge Brown and Bailey prior to the
Is In view of this conclusion I have not decided whether, as alleged in the
complaint, Respondent's refusal to pay the expenses incurred by Brown on
account of his transfer and reassignment constitutes an independent viola-
tion of the Act. The record reveals that but for Brown's illegal transfer and
reassignment, he would not have incurred the expenses associated with the
transfer. Under these circumstances. a finding that Respondent indepen-
dently violated the Act by refusing to pay these expenses would add nothing
to the remedy in this case: thus, I have not considered this contention
m As significant factor which distinguishes Bailey's discharge from Brown's
is that in Brown's case the General Counsel has estabhlished a prima facie cae
of a liolation of the Act. whereas in Bailey's there was no such showing.
1001
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 17 staff meeting: thus, what took place at that meet-
ing could not have possibly had a bearing on Shapiro's de-
cision to discharge Brown.
Regarding (2), Shapiro testified that Bailey displayed a
hostile attitude at the April 15 board of directors meeting in
this sense: "Allegations that were put forth [by the coali-
tion] clearly indicated to me that [Brown] did not care what
he said, whether true or not, he put it in [referring to allega-
tions in the coalition's charges] or told people about it ....
[I]t resulted in a hostility between Brown and other mem-
bers of the staff who were damaged by this .... [I]t was the
continuation of an attitude of hostility that first surfaced at
the first [staff] meeting he attended in October 1977 and
never abated." I reject Shapiro's contention that there were
allegations contained in the coalition's charges distributed
at the April 15 board of directors meeting which "dam-
aged" Brown's fellow emplonyees or which Brown's fellow
employees would have viewed as damaging to themselves.
Shapiro significantly failed to refer to any such allegations,
and none appear on the face of the charges. Nor is there
evidence that any of Brown's fellow employees were hostile
toward him because they believed he was responsible for
allegations which damaged them."' In other words, Sha-
piro's assertion that at the April 15 board of directors meet-
ing an attitude of hostility between Brown and his fellow
workers was created because they felt he was responsible
for allegations in the coalition's charges which were damag-
ing to them is completely without substance."8 It is not sur-
prising then that Shapiro's related assertion that Brown's
aforesaid conduct was "the continuation of an attitude of
hostility that first surfaced at the first meeting [of the staff]
he attended in October 1977 and never abated" is, as I have
previously found in discussing the reasons advanced for
Brown's transfer, likewise without substance.
Regarding (3), this apparently refers to the fact that ap-
proximately I week after his illegal transfer to Portland,
where he was assigned to do organizational work, Brown
had not as yet personally visited any of the employees and
stated to Shapiro that the reason for his inactivity was his
belief that Shapiro intended to discharge him in the imme-
diate future. Shapiro said nothing to dispel this fear, but
ordered him to get out into the field and organize. Brown
apparently followed these instructions, for there is no evi-
dence that Brown's work during the week of April 10 was
unsatisfactory in any respect. If Shapiro's testimony that
one of the reasons he fired Brown was because Brown was
not doing a credible job refers to the fact that during the
first week of his employment as an organizer, Brown's work
was not satisfactory, it does not justify his discharge, for it
would be inequitable to allow Respondent to successfully
s7 The record reveals that Wyatt felt Bailey, not Brown, was responsible
for the allegations pertaining to him.
s I recognize that Shapiro, as contrasted to Brown's fellow employees, had
reason to be hostile toward Brown after reading the coalition's charges.
which charged Shapiro with several acts of misconduct, some of which in-
volved Brown, who Shapiro could have reasonably believed was the coali-
tion's source of information. However, because the greater part of the evi-
dence presented by Shapiro to support this particular reason for Brown's
discharge does not withstand scrutiny, it seriously detracts from the weight
which can be given to the small portion which appears to have some sub-
stance.
rely upon this as a defense where the record shows that
Brown's misconduct was the direct result of Respondent's
flagrant unfair labor practices. its illegal transfer and reas-
signment of Brown. It was inevitable that Brown should
have thought he had no future with Respondent and that
Shapiro was preparing to discharge him. Indeed, under the
circumstances, if Brown had resigned rather than accept his
illegal transfer and job reassignment, his resignation would
have been treated as a constructive discharge, as it would
have been the direct and intended result of Respondent's
illegal conduct. Clearly, if as a matter of law Brown was
privileged to resign from his employment rather than accept
an illegal transfer and job reassignment, it makes no sense
to say that Respondent may legitimately discharge him be-
cause he was slow in getting started on his new duties be-
cause he reasonably believed Respondent was intent on
eventually discharging him.
Regarding (4), insofar as it indicates that during the nor-
mal course of business Shapiro would not have discharged
Brown on April 17 for his alleged misconduct set forth in
(I) through (3) above, it sharply distinguishes Brown's case
from Bailey's. It indicates that Shapiro had not concluded
that Brown, as well as Bailey, had collaborated with the
coalition to secure his removal. If Shapiro had reached this
conclusion, he would not have testified in effect that
Brown's misconduct as of April 17 had not reached the
point to justify his discharge.
To recapitulate, an evaluation of the reasons Shapiro ad-
vanced to justify Brown's discharge establishes that they
are either false or without substance or premised on mis-
conduct which was the direct result of Respondent's fla-
grant unfair labor practices and that, unlike the case involv-
ing Bailey, Shapiro had not concluded that Brown had
collaborated with the coalition to secure Shapiro's ouster. I
therefore find that Respondent failed to carry its burden of
establishing that it discharged Brown for legitimate busi-
ness reasons. Rather, I am of the opinion that the record
reveals that Respondent's asserted justification for discharg-
ing Brown was a pretext, thus reinforcing the General
Counsel's prima facie showing that the moving cause in the
discharge of Brown was Respondent's hostility toward him
for speaking to members on behalf of Stephenson in an
effort to enlist their support fbr his reinstatement. Accord-
ingly, I find that Respondent, on April 17, violated Section
8(a)(I) of the Act by discharging Brown.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The employees committee at all times material herein
was a labor organization within the meaning of Section 2(5)
of the Act.
3. By threatening to discharge employees if they talked
to Respondent's members about the discharge of employee
Angelo Stephenson, Respondent engaged in unfair labor
practices within the meaning of Section 8(a)( 1) of the Act.
4. By threatening to discharge employees Angelo Ste-
phenson and Alvin Bailey if they engaged in union activi-
ties, Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(l) of the Act.
1002
OREGON STATE EMPLOYEES ASSN.
5. By threatening to transfer employee Rodney Brown
from its Portland office to its Salem office, if he engaged in
union activities, Respondent engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
6. By transferring employee Rodney Brown from its
Portland office to its Salem office, changing Brown's work
assignment, and discharging Brown, because he talked to
Respondent's members on behalf of employee Angelo Ste-
phenson in an effort to enlist their support for Stephenson's
reinstatement. Respondent engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
7. By the participation of Supervisors Gallagher, Mar-
tens, and Irvin in such union activities as voting in elections
of its employees' labor organization, Respondent engaged
in unfair labor practices within the meaning of Section
8(a)(2) and (1) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair la-
bor practices violative of Section 8(a)( ) and (2) of the Act.
I shall recommend that it cease and desist therefrom and
take certain action in order to effectuate the policies of the
Act.
Having found that Respondent violated the Act by trans-
ferring employee Brown from its Portland office to its Sa-
lem'office and changing his work assignment and thereafter
discharging him. I shall recommend that Respondent offer
him immediate and full reinstatement to the former job he
held in its Portland office or, if said job no longer exists. to
substantially equivalent employment, without prejudice to
his seniority or other rights and privileges, and make him
whole for any loss of earnings suffered by reason of his
discharge." by payment to him of a sum of money equal to
that which normally would have been earned as wages from
the date he was discharged, April 17. 1978, to the date of
said offer of reinstatement, less net earnings during such
period, with backpay computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Com-
panv. 90 NLRB 289 (1950), and with interest to be com-
puted in the manner set forth in Florida Steel Corporation,
231 NLRB 651 (1977). See, generally. Isis Plumbing &
Heating Co.. 138 NLRB 716 (1962).
As the unfair labor practices committed by Respondent
were of a character which go to the very heart of the Act, I
shall recommend that it cease and desist therefrom and
cease and desist from infringing in any other manner upon
the rights of employees guaranteed by Section 7 of the Act.
N.L.R.B. v. Entwistle Mfg. (Co.. 120 F.2d 532, 536 (4th Cir.
1941).
Upon the basis of the foregoing findings of fact and con-
clusions of law, and the entire record, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following recom-
mended:
*' For the penriod from March 30, 1978. to April 17. 1978. when Brown
worked in the Salem office, following his illegal transfer. as a part of "The
Remedy" Respondent must reimburse Brown fr any expenses he would not
have incurred but for the illegal transfer
ORDER90
Respondent, Oregon State Employees Association. Sa-
lem. Oregon, its officers, agents, successors. and assigns,
shall:
1. Cease and desist from:
(a) Discharging, transferring, or changing employees'
work assignments or threatening to take such actions or
from otherwise discriminating against its employees in re-
gard to hire and tenure of employment or any condition of
employment because employees have talked to Respon-
dent's members for the purpose of enlisting their support in
convincing Respondent to reinstate employees.
(b) Threatening to discharge or transfer employees or to
otherwise discriminate against them in regard to hire and
tenure of employment or any condition of employment it'
they engage in union activities on behalf of any labor or-
ganization.
(c) Interfering with the administration of any labor or-
ganization of its employees by participating through its su-
pervisors in such union activities as voting in union elec-
tions.
Id) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action, which is neces-
sary to effectuate the policies of the Act:
(a) Offer Rodney Brown immediate and full reinstate-
ment to the former job he held in its Portland office or, if
this job no longer exists, to a substantially equivalent one,
without prejudice to his seniority or other rights and privi-
leges, and make him whole for any work-related expenses
incurred because of his transfer from its Portland office to
its Salem office and also make him whole for any loss of
earnings suffered by reason of his discharge, in the manner
set forth in the section herein entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agent. for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due and the right of rein-
statement under the terms of this Order.
(c) Post at its places of business in Portland. Oregon, and
Salem, Oregon. copies of the attached notice marked "Ap-
pendix." 9' Copies of said notice, on forms provided by the
Regional Director for Region 19, after being duly signed by
Respondent's representative, shall be posted by Respondent
immediately upon receipt thereof and be maintained b it
for 60 consecutive days thereafter, in conspicuous places.
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken b Respon-
9 In the event no exceptions are filed as provided b 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. 10248
of the Rules and Regulations. he adopted bh the Board and become its
findings, conclusions. and Order, and all objections thereio shall be deemed
waived for all purposes
91 In the event tha: this Order is enforced b a judgment of a nited States
Court of Appeals. the words n the notice reading "Posted b Order of the
National l.abor Relations Board" shall read "Posted Pursuant to a Judgment
of the tI.nited Stales ('ourt of Appeals nlforcing an Order ot Ihe National
l ahNr Relations Board "
1003
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 19, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge, transfer, or change our em-
ployees' work assignments or threaten them with such
action or otherwise discriminate against them because
they have talked to our members for the purpose of
enlisting their support in convincing us to reinstate em-
ployees.
WE WILL NOT threaten to discharge or transfer our
employees or to otherwise discriminate against them if
they engage in union activities on behalf of any labor
organization.
WE WILL NOT interfere with the administration of
any labor organization which represents our employees
by participating in said labor organization through our
supervisors in such union activities as voting in union
elections.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
rights guaranteed them under Section 7 of the Act.
WE WILL offer Rodney Brown immediate and full
reinstatement to the job he held in our Portland office
or, if that job no longer exists, to a substantially equiv-
alent one, without prejudice to his seniority or other
rights and privileges, and make him whole for any
work-related expenses incurred because of his transfer
from our Portland office to our Salem office and also
make him whole for any loss of earnings suffered by
reason of his discharge, together with interest.
OREGON STATE EMPLOYEES ASSOCIATION
1004