Stone & Webster Engineering Corp.

National Labor Relations Board - Board Decisions

Feb 2, 1979

240 N.L.R.B. 504 (N.L.R.B. 1979)

S)4 I)CI(' ISI()NS ()I NAI NA I () .\B(R RI l.AI IONS B()ARI) local IUnion No. 195 I;lnited Association of .Jollriled- men and Apprentices of Ihe I'lutlnhing anlld Pipe it- ting Industry of the Inite(d States anid ('anadla, AF.-C(IO (Stone & Webster rllginleerilig ('orpora- lion) and Miriam . 'I'anier. ('ases 23 ('13 21)51 aind 23 ('B 2()(064 FIebhluar\ 2 1979 DECISI()N AND) ORD)lR BY MIMB RS JI NKINS, MI R'll ;N) IRI Sl)\l I On August I11 1978. Administrative Law Judge Robert W. Leiner issued his initial [)ecision ( [) 551 78. attached hereto) in this proceeding. Thereaf- ter, the General ('ounsel filed exceptions limited to the Administrative Law Judge's dismissal of coim- plaint allegations in Case 23 'B 2051 and ia sup- porting brief. Respondent filed cross-exceptions a supporting brief, and briefs answering the eneral Counsel's limited exceptions and in support of the Administrative Law Judge s recommended dismissal. On August 25, 1978, the National lahbor Relations Board issued an Order remanding ('Case 23 ('B 2051 to the Administrative Law Judge for preparation of a written decision in accordance with Sectiopls 102.42 and 102.45 of the Board's Rules and Regulations, Se- ries 8, as amended.' On October 12, 1978. the Administrative ass Judge issued a second D)ecision (J [) 698 78. at- tached hereto) in this proceeding. hereafter the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National abor Relations Act. as amended, the Na- tional Labor Relations Board has delega;ted its au- thority in this proceeding to a three-member panel. 'Ihe Board has considered the record and the at- tached [)ecisions in light of the exceptions anld briefs and has decided to affirm the rulinlgs findins.2 aindl conclusions of the Administrati\ e I aw Judge and to adopt his recommiended ()rders.' ORDEI) R I'ursuant to Section ()(c) f the National l.abor Relations Act, as ametnded. the National I .aor Re- lations Board adopts as its ()rder the riecoinlended Order of the Admiinistralti I ax JuCudge in (C'sc 23 ('B 2()64 and Iiereb orders that the KRespondent, Local iloll No. 195, nitld ssociatioll ' oor- nenymen and Apprentices of the P'lumbin and Pipe l:iiting Industr, of the l'nited Sates lli ('allaIda. AFl. ('10., Port ArthurI, l\.is. itS officc'sl. it'llts. 24() NIRB No. 61 aind epresctillt,,cs. sll take the action set ojth In the said rccoin met cd (,)rdcr. I I I I ill R R I I RI1) that tile Collil;lllt ill ( as 23 (13 2(15 hbe. Iand it hereby\ is. dismissed. .i R I el' r\dIIIIII Ia IIIPrlr . 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II1 IN (I1 I CASI RoHI:RI W LILN R Administrative Law Judge: This con- solidated proceeding under Section 10(b) of the National Labor Relations Act, as amended (29 U.S.(. 151, cIrt eq. herein called the Act), was heard before me in Port Arthur. lexas on April II, 1978. All parties were afforded full opportunity to present evidence, argue on the record, and examin e witnesses. At the conclusion of the defense of Respondent. L.ocal L nion No. 195, United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industr of the United States and C(anada, AFL CIO, on Respon- dent's motion I dismissed the complaint in (Case 23 C(B 2051. The General (ounsel appealed specifically to the Board. After the General Counsel and Respondent duly filed briefs in (Case 23 C(B 2064 I issued ms l)ecision (JD 551 78X in that matter on August I 1. !978. Ihat matter will not be treated herein.i Oni August 25, 1978. the Board issued an order (237 NlR B 931 remanding C(ase 23 ('B 2()51 to me, directing. pursuant to the Board's Rules and Regulations, as amended, the preparation and issuance of a writen eci- sion, first according a reasonable time for the parties to file briefs and or proposed findings and conclusions. Pursuant to that order, on September 5. 1978, I issued an order di- rectin the filing of all briefs and: or proposed findings and conclusions oin r before September 26. 1978. Ihereafter a timelh brief ,as filedI hs the (ieneral (ounl- sel. Respondent has pre ious 5 hriefed the issues. 'hie charge in (ase 23 (B 2(051 was filed b\ Miriam I I;annlcr, herein sOilleiIles called Ilaller, oin Aug ust 30. 1977. atil] thle comlilaint nd notice of hearing based ' i 1,l 1 ti h i l .l e . . ,1 . 1 iIk -rli ll l , ( -,k 2 ( iI Ilf4J ICqtil t'kii lC [CrIlt [~ , 1klkl ;11; I'1 s I 111i' J It4 t Ill ( ,t ;21 ( [I 2 i lHi" i}~ k rr'CL s1']*111 1'_ rl[ti ' 1 \N L'\IsI i 1 !1[ I; s1tl 11 1 OI Irs]L' t}'.11 . IIS r ' 11 1 1D I 11 ( s t 'tI ( I i 'i l I I LOCAL UNION NO. 195, PLUMBERS 505. thereon was issued on October 4, 1977. Respondent filed a timely answer to the allegations of the complaint. The prin- cipal allegations in the complaint are that Respondent re- fused to investigate and process the charging party's griev- ance and refused to intercede on behalf of the charging party in the filing and/or resolution of the rievance by reason of her nonmembership in Respondent- and/or be- cause of considerations which are irrelevant, invidious. or unfair. Upon the entire record in this case, and from my obser- vation of the demeanor of the witnesses, and having con- sidered all the facts of record and the briefs submitted herein, I make the following: FINDINGS OF FA(I I JURISDICTION TIlE BUSINESS OF THE EMPLOYER The complaint alleges, Respondent admits, and I find that Stone & Webster Engineering Corporation, herein sometimes called the Employer. at all times, has been, and is, a Massachusetts corporation engaged in the business of industrial construction. During the year ei;ding October 1977, a representative period of its business generally. Stone & Webster performed construction services valued at an amount in excess of $50,000 for Texaco Refining Com- pany at Texaco Refining Company's Port Arthur, Texas installation and jobsite. In this same period, Stone & Web- ster purchased goods and materials valued in excess of $50,000 from firms located outside the State of Texas, which firms shipped such goods and materials valued at that amount directly to the Texaco jobsite in Port Arthur, Texas. The complaint alleges, as amended prior to the hearing, and Respondent admits. that Stone & Webster is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I1 THE LABOR ORGANIZATION INVOLVED The complaint alleges, Respondent admits, and I find that Local Union No. 195, United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry, AFL-CIO, herein called the Union or Local 195, is, and has been at all material times herein, a labor organi- zation within the meaning of Section 2(5) of the Act. III THE AL.LEGED UNFAIR ABOR PRACTICES The Union has a collective-bargaining agreement cover- ing pipefitters and helpers with Stone & Webster relating, No evidence was adduced ndicating in) dispute regardin,! lanner', union membership. discipline. or loaltv the General (lnsel, cs ie a. presented solely on the theory that Repondenl ,iolated its dul of fair representation. Service Emplohlie Inlcrztlnall t ni, iI il ',11 5'9. 4 I (10 (on amare of De-,atur d h a Beierli Manor ( ,na/il cntl ( ret o. 229 NLRB 692 (1977) Respondent admits that Pete Ellis Junior 1.. Brady. and Jerrt Little were at all material times agents of Respondenil wllhin he eanlling of Sec 2(131 of the Act Ellis is the chief operating officer of the I nlln nd ith business manager Jerry I.ittle was the Itlnmn' business a.gcnl in charge .f the pipefitiers at the Stone & Webster opera.ton In Port Arlhur Juior I Brads as the nion's shop steward at the ibhsite inter a/ia, to the employment of over 900 pipefitters and helpers at the Stone & Webster jobsite in the Texaco com- plex in Port Arthur, Texas. In the early summer of 1977, Stone & Webster com- plained to Respondent and other construction unions whose members were employed at the Texaco jobsite that employees were guilty of various infractions which led to poor rates of production. These infractions included em- ployees' chronic absenteeism and their checking out too early. The problem of pipefitters leaving the jobsite too earls, a serious problem. arose from the fact that the workday, al- though from 7 a.m. to 3:30 p.m.. was subject to a 3:15 p.m. whistle. This 3:15 p.m. whistle blew for the purpose of per- mitting the employees to stop work, to put away their tools, and to wash up prior to leaving. Thus, employees required to be actively at work through 3:15 p.m. were paid through 3:30 p.m. The intervening 15 minutes was to be used for the employees' own purposes. The Employer, however, was met with the practice of employees ceasing to work before 3:15 p.m. and, at the 3:15 p.m. whistle, immediately com- ing through the gates and leaving Respondent's premises. Such a procedure indicated to Stone & Webster that the employees had actually ceased work before the 3:15 p.m. whistle. Employees, each morning and afternoon, used a brass metal disc (known as the employee's brass) with a particu- lar number on it to identify the employee checking in and out. This was accomplished by passing through a series of narrow alleys at the entrance to the Employer's premises and throwing the brass metal disc into a box (i.e., brassing in). These brass metal discs were then retrieved by the Em- ployer's timekeepers to show that the employee had checked in that morning. In the evening, the opposite pro- cedure was invoked: the employee threw his brass into the box to show that he was exiting (i.e., brassing out). There was some leeway by the Employer in determining whether a particular employee was brassing out too early. Thus, if employees working at jobsites in an area far re- moved from the checkout gate came through the gate with- in a few seconds of the 3:15 p.m. whistle, they would be adjudged as having brassed out too early because it was impossible for such employees to leave their worksite and be through the gate at a moment or so after 3:15 p.m. if such employees had, indeed, been working up to 3:15 p.m. Similarly. the Employer would permit an employee who brassed out shortly after 3:15 p.m. to be adjudged as not having brassed out early if his worksite were within a very short distance of the gates. Under no circumstances, how- ever. would an employee be adjudged as having brassed out at an acceptable time if the employee brassed out with- in a few seconds of the 3:15 p.m. whistle going off. In that case, the employee who brassed out within a few seconds of the 3:15 p.m. whistle would be held to have brassed out early. The Union (as well as other construction unions at the site) and Stone & Webster agreed that employees who brassed out too early should be discharged for a period of 30 days. Thereafter, the Union was free to refer the same employees back to Stone & Webster at the Texaco jobsite for reemployment notwithstanding that the employees had LOCAL UNION NO. 195. PLUMBERS 505 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been previously discharged for early brassing out.4 On August 12, 1977, the Employer notified the charging party, early in the morning, that she was discharged for having checked out early on August II11. The Employer gave her a termination slip with the reason for the dis- charge appearing thereon. It is uncontested that the charg- ing party filed an unfair labor practice charge in Case 23- CB 2051 on August 30, 1977, protesting Respondent's fail- ure to process her grievance with regard to the August 12 discharge. A. Tanner's Employment by Stone & Webster Miriam Tanner got the job of pipefitter at the Texaco installation by virtue of the fact that her father, George Cade, was a longtime member of Local 195 and told her of summer jobs for sons and daughters of pipefitter members. He told her that he would talk to the shop steward to get her the temporary summer job at the Texaco installation. and that the job would permit her to apply for the Plumb- ers and Pipefitters Apprentice Program which Respondent and employer-members operate. George Cade was successful in obtaining summer em- ployment for his daughter who reported for work at the end of June 1977 out of Respondent's hiring hall as a time- keeper and bookkeeper in the laydown yard shack where she worked from 7 a.m. to 3:15 p.m. each day. The lay- down yard is an area controlled by Stone & Webster where pipe is stored prior to installation. Tanner's supervisor at all material times was Fred (Peewee) Sanches, a member of the Union. Her duties in the laydown shack, located a short distance from the brass-out exit, were mostly clerical. There is no dispute that membership in the Union was a means of acquiring remunerative work because of the Union's high pay scale. B. The Tanner Discharge of August 12, 1977 Payday is Friday of each week and at such times the paychecks are sent around to individuals who, during the day, distribute the pay to employees in their particular work areas. Normally, Tanner, as payroll apprentice, would distribute the checks. However, employees who wished to be paid on Thursday are allowed to come to a special pay line after the 3:15 p.m. whistle blows. On August 11, 1977, Tanner worked a normal day. At or about 3 p.m.. her foreman, Fred (Peewee) Sanches. came to the shack and said that anyone who brassed out before 3:15 p.m. would be terminated. She testified that the whis- tle then blew at 3:15 p.m., but that several employees, in- cluding her father, George Cade. had left immediately be- fore the whistle blew. She stayed a few moments, locked up her work desk, and then proceeded around 3:20 p.m. to the special pay line, opposite the brass alley area, where em- ployees deposited their brass medallions with the Stone & 4The difference between the discharge and a mere layoff for 30 dNis wai, that the discharged employee had no right to return to he jh unless c1il- pletely reemployed whereas a laid off employee could return to emplo\ mlllc at the end of the particular layoff period. Webster timekeepers. Tanner testified that she showed her brass identification disc on the pay line in order to get her paycheck and at or about 3:30 p.m. brassed out. On the next day, Friday, August 12, 1977, it was raining and she picked up her brass medallion when she entered the Stone & Webster premises. Because rain made con- struction impossible, the whistle blew early signifying that Stone & Webster pipefitters could leave the premises and go home early. However. General Foreman Ed Neeley came in and told her that she should pick up her termina- tion slip. She. her father, and Supervisor Sanches got the termination slip, first being told by Neeley that she had been terminated because she brassed out early. She denied that that was true as did Sanches. They looked for various supervisors including Brown and also looked for the job steward, Junior Brady. She found Brady and told him of the discharge notice. Brady confirmed that she and 16 others were all discharged for jumping the gun; that they were all guilty and he could do nothing about it. Her father, George Cade. who was present at this discussion with Brady,5 said he would call Business Agent Little. Little said he would check into the matter. Sanches was also present at the conversation. On August 17, Tanner telephoned business agent Little. Little said he would talk to Shop Steward Junior Brady and would call her back. Little never called her back. Tan- ner testified that about I week later, that is, about I week after calling Little, she visited Pete Ellis at the union head- quarters. Business Manager Ellis, who told her that he had heard of her firing but did not know the details, said he would speak to Shop Steward Brady and to Stone & Web- ster Supervisor (pipe superintendent) Earl Brown, a mem- ber of the Union, and would thereafter get back to her, first inquiring of Stone & Webster if she could be rehired. Tanner was never rehired. Ellis did not get back to her. Tanner, in cross-examination, denied that she ever told anyone that if the Union did not give her one of the ap- prentice openings, she was going to sue the Union. Fred (Peewee) Sanches, a witness called on behalf of the General Counsel (and Tanner's main support on the facts in Case 23-CB-2051 regarding her early checkout), testi- fied that Tanner told him that if she did not get into the apprentice program she would sue the Union. Sanches tes- tified that Tanner told this to him some time before she was discharged on August 12. 1977. Her credibility is there- fore not unquestioned. Sanches testified that he and Tanner were still working when the whistle blew at 3:15 p.m., but he did not know when she brassed out because he left immediately after the whistle blew.6 Sanches testified that he did not know where Tanner went after they left the shack together and he brassed out. Although Sanches' testimony was not entirely clear on the point, it appears that Junior Brady, the shop steward, did speak to Sanches about the Tanner incident. ('ide conplained of the anner discharge so often to Brady and other 1ililill representatlVses that;. a; Brads testified. "we finall, got to where we hald Ito detour ito go around he other way to keep George (adel from stoppi iL us." Ihe (General Counsel notes hat Sanches testified that he and anner left he hack /.t/lq/i;'c "a ilinlute or so after the whistle blew" I do nut iccept Slliithe' eilnon\ as proving that he and Tanlner were in the shack (60 econlds aftel the whistle blew LOCAL UNION NO. 195, PLUMBERS 507 He said he told Brady that he did not think that she left early and Brady told him that Tanner was caught for leav- ing early. George Cade. a longtime union member, testified that General Foreman Ed Neeley told him that Tanner had been terminated because she left early. He also said he saw Pipe Supervisor Earl Brown who told him he could do nothing about it notwithstanding that Foreman Sanches said that Tanner had not left before the whistle had blown. Supervisor Zingraff and Shop Steward Brady told him that Tanner had been terminated because she had brassed out early along with 16 other pipefitters who had been similarly terminated. Business Manager Ellis testified that he did not investi- gate the matter but directed his business agent. Jerry Little. to do so and to discover whether Miriam Tanner had been in anyway abused. A few days after he had directed Jerry Little to investigate the matter. Little told him that all 17 of the pipefitters had been fired for brassing out early, that Tanner's brass had dropped early, and this had been re- ported to Little by Stone & Webster. The Testimony of Business Agent Jerry Little Jerry Little, business agent of the Union since July i. 1977. in charge of administering the collective-bargaining agreement with Stone & Webster, testified that Tanner complained to him on the phone that she had been fired for leaving early and that she was not guilty. He told her that he would check into the matter and he asked her to call him back. Little's investigation consisted of calling Shop Steward Brady and asking him to check into the Tan- ner matter and particularly to see if there was a problem of two brasses.7 Little asked Brady to inquire if Tanner had been treated differently than the other 16 pipefitters who had been fired. Brady thereafter told Little that she had not been treated differently and there was no double set of brass and therefore no mistake in the decision by Stone & Webster that there had been an early punching out. There- after when Tanner called him back. Little told her that he had checked into it and she had been treated no differenrly than the other 16 pipefitters who had been terminated for punching out early. Little testified that it was possible that he told Tanner at that time that he might get her an- other job after 30 days. The Testimony of Shop Steward Junior Brady Brady's testimony was unclear. He at one time testified that he never spoke to Tanner personally. but thereafter admitted that well ;iter her termination of August 12 he did speak to her in the parking lot. He testified that Busi- ness Agent Little asked him to investigate the matter. On August 11. Brady. Stone & Webster supervisors, and other union members waited at or about 3 p.m. at the various brass alleys to see who were the employees who were leav- ing early. Although he did not see Tanner. other persons saw Tanner punch out early. Brady testified that shortl On occaivon it hd he¢' dltcs'lered t thil re l ,s rc I it Ildc ll l l. me(lhlon~. rcullln i1 onftlrlo after 3:30 p.m. on Thursday. August I I. the Company pre- sented him with the names of 17 pipefitters who had punched out early. He said that Tanner's name was on the list and he told this to her father the next day when George Cade inquired why his daughter had been terminated. He testified that on Friday, August 12, Little called him to check into the reasons for the termination. He told Little that Supervisors Brown and Zingraff had told him the day before and also the next day that they had seen Tanner brass out early. He testified that Tanner and all of the other 16 pipefitters had been treated equally. Brady also testified that aside from Zingraff and Brown, he also spoke to the company timekeepers who told him that Tanner's brass had been picked up within 30 seconds of the whistle: that he had negatived the possibility of double brass: and that he was not testifying of his own knowledge that Tan- ner had brassed out early. Discussion and Conclusions The General Counsel conceded that Tanner's union membership. s activities. or lack thereof played no part in her termination by Stone & Webster or the Union's failure to investigate the matter. Rather. as I understood the Gen- eral Counsel. her position was that the Union's investiga- tion of the grievance either was nonexistent or so perfunc- tor) as to amount to an "arbitrary" investigation in violation of its statutory duty to investigate the merits of the grievance. The evidence is atundantly clear that both Stone & Webster and the Union were confronted with serious prob- lems of employees punching out early, absenteeism, turn- over, and nonproductivity. The evidence was also uncon- tradicted that Respondent did not seek reemployment for any of the other 17 terminated. early brass-out pipefitters. took none of them to arbitration. and treated none of them differently than Tanner. Whether or not Respondent un- lawfully treated this entire class of 17 pipefitters, it is un- contradicted that 'I..lner was not singled out by Stone & Webster or the Union. The legal question presented in this matter is whether Respondent violated any statutory duty to Tanner by the "zeal" with which it inquired into the basis of her termination and w'iether any lack of effort on the part of the Union amounted to such a perfunctory in- quiry as to amount to "arbitrary" conduct in violation of that statutory duty. The statutory collective-bargaining representative has an obligation to represent employees fairly, in good faith, and without discrimination on the basis of any arbitrary, irrele- vant, or invidious distinction. aca v. Sipes. 386 II.S. 171 (1967);: Miranda fuel Compan}, Inc., 140 NLRB 181 (1962). A labor organization violates this duty when it arbitrarily ignores a meritorious grievance or processes it in a perfunc- tory fashion. Hines v. Anchor Motor Freight. Inc.. 424 U.S. 554 (1976): Teamsrters and C(hauffeurs Local Union No. 7. etc. (Penntruck Co., Inc.). 189 NLRB 696. 702 (1971). f the labor organization exercises its direction in good faith and with honesty of purpose. it is endowed. as collective-bar- \N~~~I R It Iq511I1 }. . \ R I' 11978> LOCAL UNION NO. 195, PLUMBERS 507 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining representative, with a wide range of reasonableness in the performance of its duties. Mere negligence, poor judgment, or ineptitude in grievance handling are insuffi- cient to establish a breach of duty of fair representation. See particularly Massachusetts Laborers' District Council of the Laborers' International Union of North America (Manga- naro Masonry Co., Inc.), 230 NLRB 640 (1977): King Soop- ers, Inc., 222 NLRB 1011 (1976). There comes a point, however, when a union's action or its failure to take action is so unreasonable as to be arbi- trary and thus contrary to its fiduciary obligations. Massa- chusetts Laborers' District Council (Manganaro Masonry Co., Inc.), supra, King Soopers, Inc., supra. In General Truck Drivers, Chauffeurs and Helpers Union, Local No. 692, Teamsters (Great Western Unifreight Svs- tem), 209 NLRB 446 (1974), as noted in Manganaro Mason- ry Co., Inc., supra, the complaint alleged that the respon- dent union had negligently failed and refused to timely process a meritorious grievance, resulting in serious detri- ment to the employee. The Board, in granting respondent's Motion for Summary Judgment, held (at 448): . . .it is clear that negligent action or nonaction of a union by itself will not be considered to be arbitrary. irrelevant, invidious, or unfair so as to constitute a breach of the duty of fair representation violative of the Act. Something more is required [emphasis sup- plied]. (I) In the instant case, Respondent was faced with Stone & Webster and other employers actively objecting to Local 195's (and other labor organizations' ) members' low pro- ductivity, absenteeism, and checking out early. Thus, the evidence shows that Brady inquired of the employer why Tanner was terminated and the employer insisted that she was terminated for having her brass found early. Brady also spoke to Sanches and Sanches said only that he could say she was with him after the whistle had blown. It seems to me that the Union, although the action it took with regard to Tanner was not to be characterized as an overwhelmingly efficient investigation, was substantial- ly stuck with the extremely difficult, unequivocal element which supported the company position. Simply stated, the Company insisted that Tanner's brass had been among the first found and had eyewitnesses to support its position. Tanner denied the Company's assertion and relied on Sanches for corroboration. There is no question but that Brady investigated the case insofar as to make sure that there was no double brass problem and therefore to elimi- nate the possibility that a duplicate brass medallion had been found and been the cause of Tanner's discharge. It also is clear that the Company discharged all 17 early-out pipefitters and the Union did not seek their reinstatement in any case. It does not appear to me that the Union was engaging in any subterfuge when, as its counsel stated, there was nothing it could do with the Company's insis- tence that the brass had been found early. The Company's witnesses supported an objective fact. As Respondent's counsel mildly stated, it was possible that Tanner was not telling the truth (in saying that she had not prematurely I RespIndenIt' rlefu LIl ] Il pr e. lill llr . \ gIIt it.. 111 hC l.11 a 1 al\ k1'. brassed out) and there was nothing that Respondent could do, by arbitration or otherwise, to successfully show that Tanner's brass medallion had not been found too early as the Company said it had. The General Counsel argues that because Sanches testi- fied that he and Tanner left the shack together a "minute or so after the whistle blew, " such testimony conclusively dem- onstrates that Tanner could not have brassed out within 30 seconds after the whistle blew as the Company claimed. I do not believe such testimony is proof that Tanner was in the shack 60-90 seconds after the whistle blew. That ap- pears to me to constitute a subjective evaluation, not a measurement. What Respondent did was to disregard Tanner's expla- nation (and whatever corroborative value Sanches provid- ed) and rely on the fact that Tanner's brass was found too early. The word "fact" is used because nowhere does the General Counsel deny, or otherwise explain, the Company's assertion that Tanner's brass was one of 17 found too early. Respondent investigated the possibility of double brass and having eliminated the possibility, relied on the brass and assertions by company witnesses (mem- bers of the Union) to not further entertain the grievance. Respondent's action and subsequent reliance are sub- stantially different from a labor organization relying mere- ly on an employer's evaluation or explanation of employee conduct. Thus cases cited by the General Counsel, like Neaport News Shipbuilding and Dry Dock Co., 236 NLRB 1470 (1978), and Service Employees International Union, Lo- cal No. 579, A FLCIO (Convacare of Decatur d/b/a Beverly Manor Convalescent Center), 229 NLRB 692 (1977) relating to "perfunctory" or "careless" grievance handling where the labor organization showed a "willingness to evaluate the worth of an employee solely through the eyes of the employer" (Convacare, supra), are distinguishable. In the instant case, Respondent was faced with no mere employer ipse dixit or even a one-sided evaluation of performance. Contrary to the General Counsel's brief, Brady had not "simply accepted blindly the Employer's representations." Respondent refused to process the grievance because it could not explain away the objective fact of Tanner's brass disc being found early.'0 In the absence of any suggestions herein of employer fraud or hostility, Respondent could rely on the disc and employer witnesses. (2) Moreover, even if Sanches' testimony were relied on by Respondent, he could swear o no more than that he was with Tanner for a moment or so after the 3:15 p.m. whistle. Since the laydown shack is a short distance from the brass alleys or check out points, Sanches could not- and did not-corroborate Tanner's whereabouts after the whistle blew. In the face of the finding of Tanner's brass and the employer witnesses who said they saw Tanner brass out early, Sanches' testimony, if credited, would not wuj baled n l teacce lnc the of fact Ihat I anner's hrass asx dropped too elr, a1 nd Its rejlctIiln of I lnner's and Sanches' ) contrar xexplanations. No eidence as suggested w, hereb, this fct could hbe rebutted except I nner', explanullon. Respondent as thus faced with an Ceercise In udg- nlient '..hclher to .;ttelnpt o rebut the "lao" xith r;ll estimnins tf at n arbi- Iration. Assuming i.,,-irli, thaul Repolrndent' , ludgiient w as rong, Its lil- i;Ikei under the ciCse ihsc cited. vould not create stalutor) Vilation Iof Scc h) I l A LOCAL UNION NO. 195. PLUMBERS 509 necessarily negative the testimony of the employer's wit- nesses. Thus, in the absence of any suggestion here that union membership considerations were involved, and in the ab- sence of Respondent or employer hostility or bad faith. see: ITT Arctic Services, Inc., 238 NLRB 116 (1978), or singling out of the grievant, Miranda Fuel Compan. Inc., 140 NLRB 181 (1962). and in the presence of objective evidence (Tanner's brass) and supporting employer (mem- bers of Respondent) testimony (Zingraff and Brown) showing that Tanner brassed out early, there is no "some- thing more" than negligence as required in General Truck Drivers. Chauffeurs and Helpers Union. Local No. 692, Teamsters (Great Western Unifreight System), 209 NLRB 446 (1974). Respondent did investigate the grievance and, whether (assuming arguendo there was negligence or bad judgment) or not it might have done more-or should have done more-its behavior, in any event, comes within a "ra- tional decision making process," Clark. "The Duty of Fair Representation," 51 Tex. L. Rev. 1119, 1131 (1975). I conclude that a preponderance of the evidence demon- strates that Respondent's conduct in refusing to process Tanner's grievance was not arbitrary, invidious, unfair. perfunctory. based on an irrelevant or union classification. or otherwise violated Section 8(b)(1)(A) of the Act. as amended. Upon the foregoing findings of fact, conclusions of law and the entire record herein. I hereby issue the following recommended: ORDER It is hereby recommended that the complaint in Case 23-CB-2051 be dismissed in its entirety. I In the event that this Order is enforced h a udgment f I iled States Court of Appeals. the words in the nmitce reading "Pited hb Order of the National Labor Relations Board" shall read "Posted Pursuanl Io a Judgment of the I nited Stales Court of Appeals Enforcing an Order of Ilie National labor Relations Board " DECISION STATEMENT OF THE CASE ROBERT W LEINER. Administrative Law Judge: This con- solidated proceeding under Section 10(b) of the National Labor Relations Act, as amended (29 U.S.C. § 151. et seq., herein called the Act), was heard before me in Port Arthur. Texas, on April 11, 1978, with the General Counsel repre- senting the interest of the Charging Party. Miriam E. Tan- ner, and Local Union No. 195, herein called Respondent. participating throughout by counsel. All parties were af- forded full opportunity to present evidence argue on the record, and examine witnesses. The General Counsel and Respondent submitted post-trial briefs which I have con- sidered. The charge in Case 23 -CB 2051 was filed on August 30, 19771 the complaint and notice of hearing based thereon Ihe return receipt of serxl ice f this Il.lrCe oi tile I mplor\. i. Stonc & being dated October 4, 1977. The charge in Case 23 CB 2064 was filed on October 3, 1977, with the complaint based thereon issuing on October 21, 1977. The Regional Director's order consolidating cases is dated October 21, 1977. Respondent filed timely answers to both complaints. The principal issues dealt with at the hearing were: (I) whether, as alleged in Case 23 CB-2051, Respondent, by its agents. refused and declined to investigate and process the Charging Party's grievance relating to her discharge because of irrelevant, invidious, or unfair considerations: and (2) whether, as alleged in Case 23-CB-2064. Respon- dent informed the Charging Party (herein sometimes called Tanner) that she would not be considered for Respondent's apprentice program unless she withdrew the charge filed in Case 23-CB-2051. The actions of Respondent. in both cases, are alleged to violate Section 8(b)( I )(A) of the Act. With regard to the allegations in Case 23 CB-2051, at the close of the General Counsel's case-in-chief, Respon- dent moved to dismiss the complaint on the ground that the evidence submitted thereunder failed to support the allegations of the complaint. I reserved decision on the mo- tion. When Respondent, at the end of all the evidence, renewed its motion to dismiss the complaint in Case 23- CB--2051. I granted the motion. A careful review of the evidence at that time showed that Respondent's conduct in failing to process Tanner's grievance consisted of its appar- ent discrediting of a witness whose testimony might sup- port, in part, Respondent's assertion that she did not punch out early. Instead, the evidence showed that Respondent (I) credited the fact that the Charging Party's brass check, an indication of her punching in and out of the Employer's premises, was found to have been deposited at a time which the Employer proscribed as being too earls and in violation of its work rules and its agreement with Respon- dent Union and other construction unions; (2) satisfied it- self that there was no mechanical defect in the system by which the Employer asserted that the Charging Part) had checked out too early; and (3) credited the Employer's sup- ervisors (Brown and Zingraff) that the Charging Party was seen to have checked out too early. The most that can be said of Respondent's conduct in failing and refusing to further process the grievance based on her discharge is that, in the exercise of its judgment, it erred in crediting and overemphasizing the fact of the brass disc having been deposited too early and in crediting the witnesses of the Employer rather than relying on Charging Party's version or the partial defense of a potential witness (Sanches) who would support the Charging Party.2 In view of the fact that the Union and the Employer, for some time, had met with problems relating to early checkouts by employees, and the Union had thereafter agreed to the discharge of employees who checked out early; and in view of the General C'oun- sel's concession that there was neither intraunion rancor between the Charging Party and the Union nor evidence of 'Neh51cl I ilullcrillg ( orporatio. ho. a postmark ILCIa llOn l1lalp dalted Nigust 1 1977: the return receipt for ersile on .oc 1 al 19 i pt- marked Sepcle ber . 1977 ( (' C xh h)bil Sanithes testified th.it hlile lanner .a aih hint hen the 3:15 p whitl e hle, hre could nol .iouiill l fol her herc.lhOuls thereafter ]hus. e\.ii II Sllll¢he h.ad hCbecn IItricrcl d .nid l.nmpleiCls tirelledl his tlt Illil r otIlLi I,l Iliid icite 11.1I a lIIer did it- hr.ss iti crlh I ,1 tOli Ios rtI LOCAL UNION NO. 195. PLUMBERS 510 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD discriminatory motivation on the part of the Union or the Employer. I granted Respondent's motion to dismiss the complaint in Case 23-CB-2051. Thereafter, on April 20. 1978. the General Counsel requested Board review of my dismissal. That request for review remains before the Board. Upon the entire record in this case, and from my obser- vation of the demeanor of the witnesses, and having con- sidered all the facts of record and the briefs submitted by the General Counsel and Respondent in Case 23 CB-.2064. which is the sole issue now before me, I make the follow- ing: FIND)INS or Fa(1 I JURISI)I( I ON: It BIIS[N-FSS Of I l I EMPLOYIR The complaint alleges, Respondent admits, and I find that Stone & Webster Engineering Corporation. herein sometimes called the Employer, at all material times, has been, and is, a Massachusetts corporation engaged in the business of industrial construction. During the year ending October 1977, a representative period of its business gener- ally. Stone & Webster performed construction services val- ued at an amount in excess of $50,000 for Texaco Refining Company at Texaco Refining Company's Port Arthur. Texas installation and jobsite. In this same period. Stone & Webster purchased goods and materials valued in excess of $50,000 from firms located outside the State of Texas, which firms shipped such goods and materials valued at that amount directly to the Texaco jobsite in Port Arthur. Texas. The complaint alleges, as amended prior to the hearing, and Respondent admits, that Stone & Webster is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE ABOR ORGANIZAIION INVOLVED The complaint alleges, Respondent admits, and I find that Local Union No. 195. United Association of Journey- men and Apprentices of the Plumbing and Pipe Fitting Industry. AFL-CIO, herein called the Union. is, and has been at all material times herein, a labor organization with- in the meaning of Section 2(5) of the Act. MI ruling in this m;atter ., has ed specfiI. ll, I i ht B i.rd', holdl li (,eleri Ira l t I)rlcr. ( alltlffilri alndt/ Ite-/t . i, riil. .t,,l I6, 6,v. Il, m, - aitill BlhJcrh I ,, I leaimil 't', ('uii lri,, IJ,,,ci lohii , ich i ii Ih pcr, .f 4mc'rtual {('t ll lGrew l l 'nifrctVl Sl icm)j. 209 NLRB 446 ( 1974) lith [ nion knew of l anner's version of the facts c hereIn , he ' .li.d IIi llI c 1i1I not check out earl' and also knew hat Snithcl was %til ll I. ei lie whitllc hlew hcllCte c lanners father. Gceorge ( dec. tId Ihl II Shop Slte- ard Junior Brads on the ve d of the discih.rge. BradN ;ld Ilih I 1ion vildentl? disregarded Ihe aluc iof Santche' paitil defet e t.titliol,1 Here. the tI ntn inestigated the dlischiare mlid elcalged in .i "ratollId l dect I,.l m.lking process." ('ltrk. "1 e )uti of 1.111 Repiesenlt.tioni 51 I c\ I Res 1119. 1131 (1975). e,cll thoutgh t uiuld II,t redit tJinlc A/.il. 1I it hadl iltcrelc eed Slltlches. hit tetiinloin uiulcd I:lrl\ l sI[ 1 li lCe CLII titicllcd th e idence on c.hiclh Respondent relied in reftlsil II, poccs, lie crics- lrnc i e Satnchen could nliot cCOunt fir i ulnter' chcrehotlhtl iU IlllilcI- d tic e llter the 3: 1 pii hisltleb hl i I h . hcre. the iio- l t lJi it cI1 he .11i1 I t Il Ihe i lol clrred In i llidgilctlt. \hcl lr it did -o und ItC ctirvilsildt e,. i wllN .nother iltier III IHE ALLEGED UNFAIR LBOR PRACTICES IN CASE 23 CB 2064 With regard to the alleged violations of Section 8(b)(I)(A) of the Act, Respondent admits that Pete Ellis. Junior L. Brady. and Jerry Little were at all material times agents of Respondent within the meaning of Section 2(13) of the Act. Ellis is the chief operating officer of the Union and its business manager. Jerry Little was the Union's busi- ness agent in charge of the pipefitters at the Stone & Web- ster operation in Port Arthur. Junior L. Brady was the Union's shop steward at the jobsite. The Union has a collective-bargaining agreement cover- ing pipefitters and helpers with Stone & Webster relating, inter alia, to the employment of over 900 pipefitters and helpers at the Stone & Webster jobsite in the Texaco com- plex in Port Arthur, Texas. In the early summer of 1977, Stone & Webster com- plained to Respondent and other construction unions whose members were employed at the Texaco jobsite that employees were guilty of various infractions which led to poor rates of production. These infractions included em- ployees' chronic absenteeism and their checking out too early. The problem of pipefitters leaving the jobsite too early, a serious problem, arose from the fact that the workday, al- though from 7 a.m. to 3:30 p.m., was subject to a 3:15 p.m. whistle. This 3:15 p.m. whistle blew for the purpose of per- mitting the employees to stop work, to put away their tools. and to wash up prior to leaving. Thus, employees required to be actively at work through 3:15 p.m. were paid through 3:30 p.m. The intervening 15 minutes was to be used for the employees own purposes. The Employer, however, was met with the practice of employees ceasing to work before 3:15 p.m. and, at the 3:15 p.m. whistle. immediately com- ing through the gates and leaving Respondent's premises. Such a procedure indicated to Stone & Webster that the employees had actually ceased work before the 3:15 p.m. whistle. Employees, each morning and afternoon, used a brass metal disc (know as the employee's brass) with a particular number on it to identify the employee checking in and out. This was accomplished by passing through a series of nar- row alleys at the entrance to the Employer's premises and throwing the brass metal disc into a box (i.e., brassing in). These brass metal discs were then retrieved by the Employ- er's timekeepers to show that the employee had checked in that morning. In the evening, the opposite procedure was invoked: the employee threw his brass into the box to show that he was exiting (i.e.. brassing out). There was some leeway by the Employer in determining whether a particular employee was brassing out too early. Thus. if employees working at jobsites in an area far re- moved from the checkout gate came through the gate with- in a few seconds of the 3:15 p.m. whistle, they would be adjudged as having brassed out too early because it was impossible for such employees to leave their worksite and be through the gate at a moment or so after 3:15 p.m. if such employees had. indeed been working up to 3:15 p.m. Similarly. the Employer would permit an employee who brassed out shortly after 3:15 p.m. to be adjudged as nor having brassed out early if his worksite were within a very LOCAL UNION NO. 195, PLUMBERS 5tl short distance of the gates. Under no circumstances, how- ever, would an employee be adjudged as having brassed out at an acceptable time if the employee brassed out with- in a few seconds of the 3:15 p.m. whistle going off. In that case. the employee who brassed out within a few seconds of the 3:15 p.m. whistle would be held to have brassed out too early. The Union (as well as other construction unions at the site) and Stone & Webster agreed that employees who brassed out too early should be discharged for a period of 30 days. Thereafter, the Union was free to refer the same employees back to Stone & Webster at the Texaco jobsite for reemployment notwithstanding that the employees had been previously discharged for early brassing out.4 With regard to Tanner, there was no question that she brassed out some time after 3:15 p.m. on Thursday. August 11. 1977. As noted above, the Employer charged the em- ployee with having brassed out within a few moments of the 3:15 p.m. whistle whereas the employee asserted that she had not brassed out until about 3:25 or 3:30 p.m. The Union evidently did not accept the Charging Party's ver- sion, and not only credited the Employer's witnesses who allegedly saw the Charging Party brass out early. but par- ticularly relied on the fact that Tanner's brass had been found to have been dropped early on August II. and her name reported on the list of some 17 employees who were to be discharged for brassing out early. 5 On August 12, 1977. the Employer notified the Charging Party, early in the morning, that she was discharged for having checked out early on August II. The Employer gave her a termination slip with the reason for the dis- charge appearing thereon. It is uncontested that the Charg- ing Party filed an unfair labor practice charge in Case 23- CB-2051 on August 30, 1977. protesting Respondent's fail- ure to process her grievance with regard to the August 12 discharge. A. Tanner's Employment by Stone & Webster Miriam Tanner got the job of pipefitter at the Texaco installation by virtue of the fact that her father. George Cade, was a longtime member of Local 195 and told her of summer jobs for sons and daughters of pipefitter members. He told her that he would talk to the shop steward to get her the temporary summer job at the Texaco installation. and that the job would permit her to apply for the Plumb- ers and Pipefitters Apprentice Program which Respondent and employer-members operate. The apprentice program accepts apprentices twice a year, in February and September. The choice of the ap- prentices is based on a selection by a 10-member appren- tice committee: 5 members from the Union and 5 members from the employers. There is a coordinator employed by the committee who administers the program but does not 4 The difference helween he discharge anld a. mere l,off Ifor (1) dt.1. ~., that he discharged emplo)ee had no right I lturn to the loh mlllc, c.l- plelel) reemplo~ed whereas a laid-off ermploee could returi to cinpl.nicniI at the end of the particular la,off period. Tanner. on Ihiz record. Ihe only cniploixce dllh;rt cd o. , iltu tl I I whiose namet appeared on the t.iph!cr '> hil ho ilecd i CrlevI,,c \cithc, In he inveltilatiol nor In ian other ua 'a, the Ic nner dlch.liie lhldled different( from other c.ia.e hb Respondeii vote in the selection of apprentices. Only the 10 members select the apprentices. The evidence herein, contrary to Tanner's testimony, shows that neither Pete Ellis nor any other union agents mentioned herein. were members of the apprentice committee. George Cade was successful in obtaining summer em- ployment for his daughter who reported for work at the end of June 1977 out of Respondent's hiring hall as a time- keeper and bookkeeper in the laydown yard shack where she worked from 7 a.m. to 3:15 p.m. each day. The las- down yard is an area controlled by Stone & Webster where pipe is stored prior to installation. Tanner's supervisor at all material times was Fred (Peewee) Sanches, a member of the Union. Tanner's duties in the laydown shack, located a short distance from the brass-out exit, were mostly clerical. There is no dispute that membership in the Union was a means of acquiring remunerative work because of the Union's high pay scale. Tanner. having been discharged on Friday, August 12, sought out Shop Steward Brady on that morning. She found Brady and told him of the discharge notice. Brad confirmed that she and 16 others were all discharged for jumping the gun; that they were all guilt: and he could do nothing about it. Her father. George Cade. who was pres- ent at this discussion, said he would call Business Agent Little. Little said he would check into the matter. Sanches was also present at the conversation. On August 17. Tanner telephoned Business Agent Little and Little said he would talk to Shop Steward Junior Bra- dy and would call her back. Little never called her back. Tanner testified that about I week later, that is, about I week after calling Business Agent Little. she visited Pete Ellis at the union headquarters. Business Manager Ellis. who told her that he had heard of her firing but did not know the details, said he would speak to Shop Steward Brady, to Stone & Webster supervisor (pipe superinten- dent) Earl Brown, a member of the Union, and would thereafter get back to her, first inquiring of Stone & Web- ster if she could be rehired. Tanner was never rehired. Ellis did not get back to her. On or about the same day that Tanner said she had called Business Agent Little, she was interviewed b the apprentice committee. This apprentice committee was to choose the 57 apprentices (out of 1,400 applications) who would enter the apprentice program commencing Septem- ber 1977. The evidence demonstrates both that Tanner was not one of the 57 apprentices chosen by the committee and that her rejection had nothing to do, on this record, with her having been discharged or having requested the Union's aid in processing any grievance based on the dis- charge. Over and over again. Tanner insisted that she visited and spoke with Union Business Manager Pete Ellis about I week after having been interviewed by the apprentice com- mittee and about I week after she spoke with Little. In- deed, she specifically placed her one conversation with El- lis as occurring on August 23. 1977. As above noted. she spoke with Ellis in union headquar- ters and he told her that he would first check with Pipe Superintendent Brown and Shop Steward Brady to see what the problem was and whether she could he rehired. In LOCAL UNION NO. 195. PLUMBERS 1 512 DECISIONS OF NATIONAL. I.ABOR RELATIONS BOARD that same conversation, however. Tanner testified that Ellis told her that, with regard to the apprentice program, the committee decided not to take more women in the program because they had enough women and "that as long as I had the charges against Local 195, that I would never be ac- cepted in the program." Tanner asserts that the "charges" were the charges she had filed with the National Labor Relations Board, and that, in this conversation with Ellis at the union hall office, Ellis told her that he had received the National Labor Relations Board charge in the mail. Tanner, in cross-examination, denied that she ever told anyone that if the Union did not give her one of the 57 apprentice openings, she was going to sue the Union. Sanches, a witness called on behalf of the General Coun- sel (and Tanner's main support on the facts in Case 23- CB 2051 regarding her early checkout), testified that Tan- ner told him that if she did not get into the apprentice program she would sue the Union. Sanches testified that Tanner told this to him some time before she was dis- charged on August 12. 1977. This conversation took place before Tanner appeared before the apprentice committee and was rejected as an apprentice. B. The Testimony of the Charging Party's Father. George Cade Cade testified that on the day his daughter was dis- charged (August 12) he spoke to Shop Steward Junior Bra- dy about the discharge and on the next day (the next work- ing day was Monday, August 15) telephoned Business Agent Little. Cade testified that a day or two thereafter. he telephoned business manager Pete Ellis and told him (I) that Tanner was on her way up to see him; and (2) of a subsequent, further conversation with Junior Brady wherein Brady had shown him a list of names of the suc- cessful candidates for the apprentice program which did not include Tanner's name. At that time, Brady told him that he had better make good at his Stone & Webster job because it would be the last job he would ever get out of Local 195. Cade insists that this conversation with Brady relating to this threat to cut him off from further union help in gaining subsequent employment (the Union oper- ates a hiring hall) occurred only a day or two after the Charging Party was discharged. Cade testified that when, as above noted, he telephoned Ellis and told him of this threat Shop Steward Junior Bra- dy had made to him, Ellis told him that Brady was not running the local; that Brady was just a shop steward out on the job; and that it was a shame that the union mem- bers were arguing among themselves. Cade testified that he believed that Junior Brady had made this threat to him because of his daughter's actions against the Union: i.e., because she had filed a charge with the National Labor Relations Board against the Union. In this regard, Cade's testimony is not entirely clear for he testified that Brady's threat to him was occasioned by the fact of "on account of what she done." But the most that Cade actually testified concerning what his daughter did (that prompted Brady to threaten him) was that she had gone to the Federal court house and gotten the tele- phone number of the National Labor Relations Board. On the other hand, Cade testified that at the time Brady made the threat, the National Labor Relations Board had al- ready sent out investigators and taken statements from wit- nesses. In short, as I understand Cade's testimony, the un- fair labor practice charge had already been filed at the time that Brady made the threat to him about making the most of his job at Stone & Webster. Again, it was, according to Cade. after the Brady threat to him that he telephoned Ellis and told Ellis, "what Brady had told me." Although Cade testified that he did not ask Ellis to investigate his daughter's discharge, Ellis testified that Cade telephoned him to tell him that Tanner was com- ing up to see him about being fired and about her partici- pation in the apprentice program. Ellis also testified that Cade mentioned what "Brady had told him." Ellis further testified that about a few days after August 12, he learned from his business agent. Jerry Little, about the Charging Party's complaint regarding her discharge. Ellis testified he told Little to investigate the discharge and that a "week or so" after the discharge. George Cade tele- phoned him about what Junior Brady had told him after telling him that his daughter was coming up to see him. Thus, Ellis placed Cade's telephone call to him someplace around August 19. therefore, well before the filing of Tanner's unfair labor practice charge on August 30. In any event, Ellis testified that about I hour after Cade tele- phoned him. Tanner showed up at his office and spoke to him. C. The Conversation Between Tanner and Ellis According to Ellis Ellis testified that Tanner came to his office about 10 a.m.. I hour after her father telephoned him and about a week or two after the August 12 discharge: that Tanner complained that she had not received any union represen- tation after being fired and Ellis told her that he had as- signed Jerry Little and Junior Brady to investigate her dis- charge: and that when Tanner complained that she was not getting fair treatment from either of these two union agents and wanted to know what Ellis was going to do, Ellis told her about the Union-Stone & Webster agreement regard- ing discharge for early brassing out: told her that she. along with 16 other pipefitters, had been caught brassing out early: and that she was treated no differently than the other employees. He told her that in 30 days she could go back and get another job out of the union hall. Tanner told him that her summer apprentice period ended on August 31, and that she could not be referred back to the Stone & Webster job within the 30-day penod of her termination. I credit this portion of Ellis' testimony. However, when Tan- ner insisted that she was not justly treated and wanted to get into the apprentice program. Ellis testified that Tanner said that she had been told that "if she files an unfair labor practice, that she wouldn't never make it." Ellis testified that he answered Tanner by saving that she had the right to do whatever she desired and that it was her prerogative to file an unfair labor practice charge if she felt she had been treated unjustly. Ellis insisted that he told her that the filing of her charge would have no bearing on whether she would be admitted LOCAL UNION NO. 195. PLUMBERS into the apprentice program: that he had nothing to do with her getting into the program or keeping her out: and that it was Tanner who brought up the subject of filing charges with the National Labor Relations Board. Ellis specifically denied an) knowledge of T''anner's having filed a charge at the time that he spoke to her in the union office, directly contradicting Tanner's testimony that Ellis told her, in the office that morning. that he had already received the unfair labor practice charge in the mail. or reasons appearing hereafter, I do not credit Ellis in this regard and I credit Tanner's testimony. Ellis testified that the selection for the apprentice pro- gram had already been made when Tanner came into his office and that he recalled her salying that. "she had three kids she had to make a living for ... and that she was going to have to do something." Ellis denied threatening or telling Tanner that if she were to go to the National abor Relations Board and file a charge it would have an adserse effect in an 5 way on her admission into the apprentice program. In support of Ellis' denial of threatening anner with rejection from the apprentice program because of her out- standing National Labor Relations Board charge. Respon- dent produced its business agent. Jimmy D. Hulett, who testified that he was in an adjoining office when Tanner was speaking to Ellis in the above conversation. Corrobo- rating Ellis, Hulett testified that he heard Tanner sat that if she filed charges with the National I.abor Relations Board she heard it would keep her out of the apprentice program: and that it was Tanner who brought up the subject of filing National Labor Relations Board charges and not Ellis. I do not credit Hulett in this testimony for reasons appearing hereafter. Hulett specifically denied ever hearing Ellis tell Tanner that she would never get into the apprentice train- ing program as long as she had filed National Labor Rela- tions Board charges against the linion. Hulett admitted that he was not present for the entire conversation between Ellis and Tanner. Hulett having arrived some time after the conversation started but having remained until anner left. Discussion and Conclusions It is clear that a labor organization's refusal to proceed with the processing of a grievance relating to the discharge of a unit emplohee because the employer filed an unfair labor practice charge against the union iolates Section 8(b)(1)(A) in that such union activit, unlawfully restrains and coerces the employee and his fellow emploNees in the exercise of their rights guaranteed in Section 7 of the Act. Teamstler.s, Local No. 279 (S. I- ' Kennledy k\cii ProductI. Inc'.) 218 NLRB 1392 (1975): Penn Ilnduviril',. ,lr, 233 NLRB 928 (1977) and cases cited at fn. 47. 941: (rh/ic Ari.s International Lnion Local 9hB f'ilhliax. Printing ('om- pan v). 235 NLRB 1153 (1978). If Tanner's version of her conversation with Union Business Manager Pete Ellis is credited, a similar violation of Section 8(h)( I (A) is made out because such testimnon would indicate that the nion '1 h1l t'1 l[ cIV r t O . t I I \ I ' I I C I I l ? II I II \C I., [ 11I Itcc pr "o f" 1Il threatened that it would retaliate against Tanner, prevent- ing her admission as an apprentice, because she had filed charges with the NLRB. On the other hand, if Respon- dent's witnesses (Ellis and Hulett) are credited. it was the Charging Party who brought up the question of charges to be filed with the Board and, in addition, it was Tanner alone who stated that if she filed charges with the Board. she would never he admitted into the apprentice program. Respondent allegedly merely noted Tanner's remarks and told her that the filing of the charges was a matter of her own concern if she believed she had been dealt with unfair- Iv bhi the Union: and that, in anv event, the filing of such charges would have no effect on her future selection into the apprentice training program. A resolution of this credibility issue is based priimaril on the question of when the conversation took place. If the General ('ounsel's witnesses' recollections of the dates of certain conversations are credited, then the conxersalion between Tanner and Ellis took place some time in or about the week ending Friday, August 26. In fact, the Charging Parts repeatedly testified that the conversation took place about a week after she had been before the apprentice committee, which meeting took place on August 16. In- deed, the Charging Party pinpointed the date as Tuesdas. August 23. As above noted. however. the charge (Case 23 (B 2051 ) was not filed until Tuesda. August 30. 1977. Ihus. even allowing I week's variance in the accurac of her testimony the conversation, which allegedly occurred on a Tuesda. occurred at a time when Tanner had either not filed the charge or had just filed it and the papers had not been served on Local 195. There is no evidence on this record that Respondent otherwise knew of Tanner's seek- ing National Labor Relations Board assistance or filing hei charge Quite ctorreclys;. counsel for Respondent concentrates his argument on Tanner's testimon' wherein she specified that her consersation with Ellis occurred on August 23. 1977. If this dating is credited. then Respondent's conclusion natu- rallx follows that the conersation between Ellis and Tan- ner occurred before the charge was filed. If the conversa- tion occurred before the charge was filed, this would both support the testimony of Ellis and Hulett (that Tanner re- ferred oil, to prospective filing of unfair labor practice charges and the effect of such filing, in uturo. on her chances of being admitted into the apprentice program) IanJd wuould, of course. completelv undermine Tanner's credibility. since she testified that Ellis had threatened her with rctaliation because she had already filed charges. lhus. I quite agree with counsel for Respondent that. were I to credit Tanner's (and Cade's) rendition of the dates on which the above conversations occurred. I would find that Ta nner's testimonll is incredible because she would hase me believe that the conversation with Eillis, referring to a charge alreads filed. took place at a time prior to her having filed the charge on August 30. Again. if the con\sersatlon took place before August 30. the date she filed the charge. then Pete Ellis could not hase threatened her it l future e\clusion from the apprentice program be- I 1,li rt1111 1Ct11 1 , ,CtlitC tlf hit' llC ( .,C '1 ( i 2{' I .,1 .tb*,% rl d 1 ,,,l 'I 1111 Sk C, I I I 513 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause of the outstanding unfair labor practice charge. On the other hand, I find, in common with witnesses' testimony elsewhere, that the General Counsel's witnesses in this case, as well as those for Respondent, were not par- ticularly sure of the dates on which the events occurred. I reach this conclusion notwithstanding that Tanner stated that her conversation with Ellis occurred on August 23 and that George Cade said his phone call to Ellis occurred a "few days" after his daughter was discharged. Rather. other evidence convinces me that the conversation between Ellis and Tanner occurred in September 1977, after Tanner filed the charge on August 30. The evidence for this con- clusion is the substance of the conversation between George Cade and Shop Steward Junior Brady some time after Tanner's August 12 discharge. Though Cade testified that the conversation occurred only a few days after the August 12 discharge, I conclude from other uncontradicted evidence of record, however, that he was mistaken, and that it occurred after August 30 because the Board was already investigating Tanner's unfair labor practice charge when Brady and Cade had this conversation. The Board does not investigate unfair labor practice charges until af- ter a charge is filed. While it is true that Cade had an interest closely identifi- able, if not identical, with Tanner's interest.8 I nevertheless conclude that he was an honest and, indeed, a guileless witness. Cade testified, in substance, that Shop Steward Junior Brady threatened him, a longtime union member, that he should make the best of his job at Stone & Webster be- cause it would be the last job he would get through Local 195. Although there is no direct evidence that Brady threatened Cade because Tanner filed her charge. I con- clude, in the absence of any other Tanner conduct or Cade conduct, which, on this record, could have aroused Junior Brady's anger against Cade. that Cade was being threat- ened with a "blackball" by Local 195 because Tanner had filed her charge.9 It was in large part because of this threat that George Cade, the next day, telephoned Business Man- ager Pete Ellis. He telephoned him for two reasons: To notify him of this unjustifiable threat uttered by Shop Steward Brady: and to advise Ellis that the Charging Party would be up to see him. Thereafter, the evidence shows that Tanner did go up to see Ellis within an nour after the phone call. The record, by this extrinsic evidence, demon- strates that Brady's threat to Cade occurred on or after the time that Tanner filed her charge or else. on this record. (ide .i ol plained of the dli.ch;r, e is often to, Shop SiC.l... lrd .iad .gnd other union represenilliles th t. is Briad tcstifitd. ,uc fillI\ i1ol to ,*itleI We had Io detour to go around ih other u.a ,,Al keep (ococ 'tadel o11in tiopplng us Thus, alihoughl (ade tcstified that tits con.cr.ati n ir t ulti t.d\ v,, onlI 2 or t dass .aftcr linner's lugust 12 disciharre. hc alo testitfied .it tie s.anle time. Iha t lllnel had no1 onll "called" I lI1 Boalrd hutl ihl lic .,lid illc.htll; lu brs. \ ills tllne,. had alreldx ldliell stgltC enlll trI It,Irt. \1t-IC s. Such a chronolo)g us Iintpaip bht. with ('adc' I t'illl' h11 Ith . Cl .:Fs- tion occurred 2 or 3 doss after t.tanner as, dlscharged snae. lie c;IigLc u'.s filed in August 30. ilt Bo.ard sllig.ltitoll could hegi prlioil thdewrzeo I thus rel i on (';id's recllectiln of Ihe sc.qUet ce , ilcidlentl rilite hl t oll his retrcllctuIn of datec or tIe spacinllg o[ C.CelIe s I tic liller [;lcl s tie Inotrliu sI\ suhjecl to error anJd teliscOpt , u ign licwed froin . porsiligon 8 nironih there;flier. there would have been no basis for any threat to Cade's continuing ability to rely on Local 195 for referrals to jobs. Surely, such a threat would not have been made merely on Cade's hectoring the various union officials to take action on his daughter's grievance.s Since Cade's phone call to Ellis occurred the next morn- ing after Brady threatened him, it necessarily follows that, since there was only one conversation between Ellis and Tanner, that one conversation occurred after Brady's threat to Cade and. therefore, after the time when Tanner filed the charge and, thus, after August 30, 1977. It thus follows that Cade told Ellis of Brady's threat to him at a time subsequent to Brady's knowledge of the unfair labor practice charge having been filed. Again, Brady's threat to Cade was based on Tanner's filing the charge. Since Brady had knowledge of the charge, it is clear that the conversa- tion between Brady and Cade involving the threat oc- curred after the Union had knowledge of the charge. I therefore further conclude that Pete Ellis was untruthful in testifying that he had no knowledge of the charge when Tanner visited him in his office. Having found that his testimony was not credible in this regard, I credit Tanner's testimony that during her conversation with Ellis in his office. Ellis told her he had received the charge and her version that Ellis further told her she would not be admit- ted into the apprentice program because of the outstanding unfair labor practice charge she had filed. Ellis, by threat- ening this retaliation, restrained and coerced Tanner in vi- olation of Section 8(b)(l)(a) of the Act, Penn Industries, Inc., supra; Chauffeurs. Teamsters and Helpers Local 525. affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Ameri- can Colloid Company), 202 NLRB 572 (1973), because the Charging Party's right to seek admission into the appren- tice training program cannot be lawfully conditioned upon her withdrawal of the charge filed against the Union. In making this credibility resolution in favor of Tanner, and while I was not particularly troubled with regard to her misstatements with regard to the dates events occurred. I was seriously concerned by the testimony of Fred (Peewee) Sanches who contradicted the Charging Party with regard to her denial of a threat to sue the Union in case she was not accepted into the apprentice program. Thus, I conclude that the Charging Party. like any other reasonable person. would remember that she threatened to sue the Union if the Union did not permit her to enter the apprentice train- ing program and that such threat to sue the Union oc- curred well before she was discharged by Stone & Webster on August 12. I conclude that Tanner was untruthful in denying that she told Sanches that she would sue Local 195 if she was not permitted to enter into the exclusive appren- tice training program (57 apprentices chosen out of 1,400 applications). I am also sympathetic with the conclusion that the Charging Party, despite her otherwise crisp. straightforward. and believable testimony, as the counsel for Respondent urges, had "set up" the Union into black- l li higti Bra1d\ ts..tiftied ai Ilength i, I Resplondent witness he did not d¢it ( .d' lestrill, ll r eard in the hreal he nmade to (Cade. Brads testi- ied th;l (ade told himll that if lanner wa:s nt reilslaled "it wias gling hefore e .NLRB" (Cade gu;le neo date ii this excha nge with Brad. nor did 1H1id\ LOCAL UNION NO. 195. PLUMBERS 515 mailing it to permit her to go into the apprentice training program by fabricating an untruthful threat by the Union against her. I was also further impressed in this regard by the fact that (a) Ellis testified without contradiction that the Charging Party said she had two or three children and that she had to do "something" in order to support them: and (b) the General Counsel failed to recall the Charging Party in order to have her explain or deny Fred (Peewee) Sanches' testimony which made Tanner into an otherwise untruthful witness in her testimony that she had never said that she would sue Local 195 if not permitted into the ap- prentice training program. In short, I was not impressed by Tanner's failure on rec- ollection of dates as much as the fact that, testifying before me, was an untruthful Charging Party whose lack of verac- ity might well extend to the point of fabrication of a crucial conversation with an otherwise experienced union agent. On the other hand, I have concluded that Ellis' testimony was severely undermined, and in fact made untruthful, by the testimony of his own shop steward and the chronology implicit therein. Weighing both circumstances. I have come to the conclusion that I am not obliged to accept the verac- ity or credibility of the Charging Party on all points, nor am I required to accept or reject the credibility of Pete Ellis and Jim Hulett on all points. Maximum Precision Metal Products, Inc., Renault Stamping Ltd. 236 NLRB 1417 (1978). What I do decide, however, is that the crucial and dispositive finding in this case relating to the conversation between Tanner and Ellis is, on this record, that Brady's threat to Cade was occasioned by Tanner's filing he unfair labor practice charge against the Union and that Brady would not have threatened George Cade with such serious consequences to his career and union support except over a serious matter: that the charge filed by Tanner was known to Brady (and therefore to the Union) when Brady threat- ened Cade; and that Cade's telephone call to Ellis, alerting him that his daughter was on her way up to see him, could not have occurred until after the charge was known since it occurred after Brady threatened Cade. It was on this evi- dence that I reject Ellis' credibility on the point and, credit- ing Tanner, find that Ellis told her that she would not be admitted into the apprentice training program because of her outstanding unfair labor practice charge. I therefore conclude that, in violation of Section 8(bXIXA) of the Act, Respondent, by Pete Ellis. its busi- ness manager and agent. unlawfully restrained and coerced the Charging Party by telling her that she would not enter into the apprentice program because she had filed an un- fair labor practice charge. CON(c I SIONS or LA" I. Stone & Webster Engineering Corporation is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent. by telling the Charging Party. Miriam E. Tanner. that she would not be considered for Respondent's apprentice program as long as she had an unfair labor practice charge outstanding against Local 195. restrained and coerced the Charging Party with regard to the exercise of her rights under Section 7 of the Act in violation of Section 8(h)( I )(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. Tmt RMl:)im Having found that the Union violated, and is violating. Section 8(b)(I)(A) of the Act. I shall recommend that it be required to cease and desist from such violation and take certain affirmative action designed to effectuate the poli- cies of the Act. The record herein demonstrates that Pete Ellis is not a member of the apprentice committee and in no way took part in the selection of the apprentices or the rejection of the Charging Party from the program in September 1977. To the contrary. the evidence shows that the exclusion of the Charging Party from participation in the apprentice training program was not the product of any unlawful coin- duct by the Union. Thus, while Respondent violated Sec- tion 8(b) )(A) of the Act with regard to its threat, I will not direct Respondent, on this record, to vote for, select. suggest the selection of, or affirmatively designate the Charging Party as an apprentice in the next or any future selection of apprentices under the apprentice training pro- gram, should Tanner apply for inclusion. While it is true that Business Manager Pete Ellis is, on this record, not a member of the selection committee on behalf of the Union or necessarily influential in the selection of the apprentices. because of his having made the above unlawful threat and his high standing as the chief executive officer of the Union. I shall recommend that Pete Ellis, neither directly or indirectly, participate in, nor make any suggestions re- garding, the selection of apprentices in the apprentice training program wherein his participation or influence might be detrimental to the rights of the Charging Party. Similarly. I shall recommend the same proscription in the case of Junior Brad)y because of his threat to George Cade based on Tanner's charge. I shall therefore recommend that. in any panel of applications in which the Charging Party is included, neither Pete Ellis nor Junior Brad, par- ticipate. directly or indirectly. or attempt to influence the selection or rejection of any apprentice. On this record. I cannot, of course, direct that the Union not participate in the selection of apprentices in any panel in which the Charging Party lists her application for admission into the apprentice training program.'' Having concluded that the Charging Part) was not omit- ted from the apprentice program because of an, unlamful consideration. there is no basis on this record to order that she be made whole for any purpose. I shall, however. affirmalivelh order Respondent. should the Charging Party apply for membership in the nion or for selection in the apprentice program. to evaluate her application without relation to the existence of anN unfair labor practice charge against Respondent filed hb the l ic11[ I 1 t l l.lllll .t1e alcl (I11t1. 1 LOCAL UNION NO. 195. PLUMBERS 516 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD Charging Party or her having sought the aid of the Na- tional Labor Relations Board. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 12 The Respondent, Local Union No. 195, United Associa- tion of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada. AFL CIO, its officers, agents, and representatives, shall: I. Cease and desist from: (a) Restraining or coercing Miriam E. Tanner, or any other employee or applicant for employment, by telling her that she would not be considered for the apprentice pro- gram (jointly administered by the Union and the em- ployers) or any other employment opportunity or benefit, because she filed an unfair labor practice charge with the National Labor Relations Board or sought its aid or assis- tance. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Refrain from permitting its agents, Pete Ellis and Junior Brady, to participate, directly or indirectly, in any program for the selection of apprentices in the apprentice training program to which Respondent is a party, wherein the Charging Party, Miriam E. Tanner, is an applicant for inclusion in said program. (b) Evaluate any application by Miriam E. Tanner for inclusion in the apprentice training program, or in any other program for employment to which Respondent is a party, without reference to her having filed an unfair labor practice charge agianst the Union with the National Labor Relations Board or sought its aid or assistance. (c) Post at its business office, hiring hall, and meeting places, copies of the attached notice marked "Appen- dix." 3 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to mem- bers are customarily posted. Reasonable steps shall be tak- en by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 23. in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. _ In the eent no eceptiIn.pi , are filed a as provided h Sec. 102.46 of the Rules anid Regulatlions of the Nationa;l Labor Relations Board. the findings. cilllilsionll, and recommended Order herein shall. as provided in Sec. 102 48 of he Rules and Regulations. he adopted hb the Board and become its filndillgs conclusions. and Order, and all orbjections thereto shall be deetrled wed for all purposes. m In the event that this Order is enforced b ;Ia judgment of a United States (Court of Appeals. the words in the notlice reading "Posted bh Order o1 Ihe NiolIal Labor Relatlions Board" shall read "Posted Pursuant to a Judglmentl f the niled States Court of Appeals [tnforcing an Order of the Nalional I.lhbor Relations Board." APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL. LABOR RE.LArtONS BOARD An Agency of the United States Government WE WILL. NOV tell Miriam E. Tanner. or any other employee or applicant for employment, that she will not be considered for the apprentice program or any other employment opportunity or benefit because she filed an unfair labor practice charge with the National Labor Relations Board or sought its aid or assistance. WE WIL.L NOT in any like or related manner restrain or coerce employees in the exercise of the rights guar- anteed in Section 7 of the Act. WE WI.L refrain from permitting our agents, Pete Ellis and Junior Brady, to participate, directly or indi- rectly, in any program for the selection of apprentices in the apprentice program to which we are a party wherein Miriam E. Tanner is an applicant for inclu- sion in said program. WE WILL evaluate any application by Miriam E. Tanner for inclusion in the apprentice program, or any other program for employment to which we are a party, without reference to her having filed an unfair labor practice charge against Local Union No. 195. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL CIO, with the Na- tional Labor Relations Board or sought its aid or as- sistance. Lo0(CAL UNION No. 195, UNITED ASSOCIATION OF JO-tRNItYMiN AND APPRENTIClS OF: Ill. PLUMBING ANI) PIi F I IN(; INDI Si RY OF 1itl UNIIED STATFS ANND CANADA AFL CIO