Western Exterminator Co.

National Labor Relations Board - Board Decisions

May 5, 1976

223 N.L.R.B. 1270 (N.L.R.B. 1976)

1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Western Exterminator Company and Mike Macias
Industrial Carpenters Union, Local No. 2565 and
Mike Macias . Cases 20-CA-9924, 20-CA-9938,
and 20-CB-3397
May 5, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On October 23, 1975, Administrative Law Judge
Irving Rogosin issued the attached Decision in this
proceeding . Thereafter , the General Counsel filed ex-
ceptions and a supporting brief , and the Respondent
Employer filed cross -exceptions and a supporting
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 to the
extent consistent herewith.
1. The Administrative Law Judge found, and we
agree, that by failing and refusing to furnish employ-
ee Michael R. Macias full and fair representation in
the processing of his grievance because of his union
activities, and by filing intraunion charges against
Macias because he had filed unfair labor practice
charges against it with the Board , Respondent Union
has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(b)(1)(A) of the
Act.'
2. The Administrative Law Judge also found, and
we agree, that by permitting Charles Hoffman. a su-
pervisor, to serve as president of the Union, and by
recognizing or dealing with him as a union officer or
agent in negotiating or administering any collective-
bargaining agreement , Respondent Employer has in-
terfered with the administration of the Union in vio-
lation of Section 8(a)(2) and ( 1) of the Act.
3. The Administrative Law Judge found that the
record does not support findings that the Respon-
dent Union violated Section 8(b)(2) and (1)(A) by
1 In order to completely remedy these unfair labor practices . we shall
order that. in addition to posting the notice as required by the Administra-
tive Law Judge, the Respondent Union shall also completely expunge from
its records all references to the unlawful charges and notify Macias of this
action . Teamsters, Local 663. affiliated with International Brotherhood of
Teamsters, Chauffeurs. Warehousemen and Helpers of America. Independent
(Continental Oil Company), 193 NLRB 581 (1971).
causing or attempting to cause Respondent Employ-
er to discriminate against Macias, and that Respon-
dent Employer discriminatorily discharged Macias in
violation of Section 8(a)(3) and (1). We do not agree.
The Administrative Law Judge found that the lay-
off of a journeyman termite employee on or about
December 9, 1974, was economically justified. Fur-
ther, he noted that there was no seniority provision in
the collective-bargaining agreement covering Maci-
as, that Macias was the least competent of the three
journeyman termite employees; and that there was
no direct evidence that the Respondent was aware
prior to the filing of the charges herein that Macias
had challenged Hoffman's right to act in dual capaci-
ties as union president and company supervisor.
Thus, the Administrative Law Judge concluded that
the evidence did not sustain a finding that the Re-
spondent Employer's layoff of Macias was caused by
Macias' challenge of Hoffman's status as the
Employer's supervisor and the Union's president.
Contrary to the Administrative Law Judge, we
find that the record demonstrates that Supervisor
Hoffman played a significant role in the layoff of
Macias and that Macias was laid off, at least in part,
because he challenged Hoffman in the capacity as
union president.
Employee Macias has been a member of Respon-
dent Union since spring 1970 and was hired as a
journeyman termite employee by Supervisor Hoff-
man on October 26, 1973. As the Administrative Law
Judge found, at a union meeting on November 12,
1974, at which Hoffman presided as president of the
Union , union member Worley rose and asked Hoff-
man whether he was not also a manager of the Com-
pany and, if so, how could he justify presiding at the
meeting. Hoffman then asked Worley the source of
his information, and Worley indicated Macias, who
was seated next to him. Another employee also com-
mented that Hoffman was a member of manage-
ment . and Hoffman irately invited any member shar-
ing similar views to deal with him outside the union
hall. When Worley remarked that Hoffman had
hired Macias, Hoffman acknowledged that he had,
but stated that he had not discharged him.
When Macias reported to work on the following
day, November 13, Hoffman questioned Macias as
to what Macias had said to Worley at the union
meeting . Macias replied that he had told Worley that
Hoffman was a management representative, and
Hoffman then shook his head and left. Thereafter,
Macias was on vacation from the day before
Thanksgiving until his return to work on December
9. At that time , Hoffman directed Macias to the of-
fice of Respondent Employer's branch manager,
Doucette, who then informed Macias that he was
223 NLRB No. 181
WESTERN EXTERMINATOR CO. 1271
being laid off for lack of work and that the other two
journeyman termite employees would be laid off at
the end of the day. Doucette also told Macias that he
would call him back as soon as work picked up.
When Macias called Doucette in early January
1975 to inquire about the prospects of returning to
work, Doucette told him that work was still slack
even though the other two termite employees were
both still working. Macias protested that he had
more seniority than either of the two working em-
ployees, and Doucette, stating that he knew nothing
about that, referred him to Hoffman. After advising
Macias that there was no seniority provision in the
collective-bargaining agreement, Hoffman told Ma-
cias he had no intention of calling him back to work,
in any event, because he had too many followup calls
to correct work improperly performed. Macias re-
sponded that Hoffman, himself, as well as the other
two termite employees, had had his share of such
calls, and Hoffman replied that he could not tell that
without checking.
Thus, the above facts demonstrate that Supervisor
Hoffman, intimately involved with the Respondent
Employer's hiring, firing, and other labor relations
policies, displayed extreme anger at the challenge, in-
itiated by Macias, to Hoffman's right to serve as
president of the Union. Indeed, Hoffman invited all
who challenged his dual position to deal with him
outside the union hall. Certainly both his anger to-
ward Macias and his awareness that he could, in fact,
fire Macias is evidenced by Hoffman's cryptic re-
sponse that, although he had hired Macias, he had
not fired him.
It is also evident that Respondent Employer had
countenanced Macias' alleged work deficiencies for
more than a year before discharging him almost im-
mediately following his criticism of Hoffman's posi-
tion with both the Employer and the Union. Con-
trary to the Administrative Law Judge's conclusion
that Respondent Employer had no knowledge at the
time of the layoff of Macias' challenge of Hoffman,
we find that such knowledge by Hoffman, as Re-
spondent Employer's high-level supervisor, is attrib-
utable to the Respondent Employer. We note, fur-
ther, that Hoffman, as the Administrative Law Judge
found, participated in the decision to lay off Macias.
Hoffman also advised Macias in January 1975 that
he (Hoffman) had no intention of calling Macias
back to work. By so advising Macias, Hoffman in
effect converted the asserted economic layoff into a
discharge.
Thus, the timing of the layoff or discharge on De-
cember 9, Hoffman's open anger at Macias' chal-
lenge, Hoffman's remark concerning discharging
Macias, and Hoffman's role in Macias' layoff con-
vince us that Hoffman's illegal motivation was at
least part of the basis for Macias' layoff. Further,
Hoffman's illegal motivation arose in the context of
his position as president of the Union. Thus,
Hoffman's participation in the decision to lay off
Macias took place in his capacity both as the Union's
president and as the Employer's supervisor. Accord-
ingly, both the Union and the Employer, having
countenanced Hoffman's dual authority, are respon-
sible for the unlawfully motivated layoff.
In these circumstances, we find that Macias' pro-
tected union activities were a substantial cause of his
layoff and that his layoff, therefore, violated Section
8(a)(3) and (1) 2 and Section 8(b)(2) and (1)(A) of the
Act.
Accordingly, we shall order that Respondent Em-
ployer offer Mike Macias immediate and full rein-
statement to his former position or, if that is not
available, to a substantially equivalent one, without
prejudice to his seniority and other rights and privi-
leges and that Respondent Union and Respondent
Employer jointly and severally make Macias whole
for any loss of earnings he may have suffered as a
result of the discrimination against him by payment
to him of the amount of money he normally would
have earned from the date of his December 9 dis-
charge, less net interim earnings, to which shall be
added interest at the rate of 6 percent per annum in
accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that:
A. Respondent Employer, Western Exterminator
Company, Oakland, California, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with the administration of Industri-
al Carpenters Union, Local No. 2565, Respondent
Union herein, or with any other union, by recogniz-
ing or dealing with Charles Hoffman or any other
company supervisor as a union officer or agent in
negotiating or administering any collective-bargain-
ing agreement or in handling employee grievances.
(b) Laying off, discharging, or otherwise discrimi-
2J. P. Stevens & Co., Inc. v. N.L.R.B., 380 F.2d 292, 300 (C.A. 2, 1967).
cert. denied 389 U.S. 1005. In so holding, however, we are, of course, not
finding that Macias cannot be discharged or laid off for incompetency or
poor work performance. Rather, we find that in the circumstances of this
case Macias was laid off not only because of poor work performance, but
also because of his protected union activities.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nating against any of its employees in regard to hire
or tenure of employment or any term or condition of
employment.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer Mike Macias immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent position, without
prejudice to any rights and privileges he might have
acquired had discrimination not been practiced
against him, and, jointly and severally with Respon-
dent Union, Industrial Carpenters Union, Local No.
2565, make him whole for any loss of earnings he
may have suffered by reason of the discrimination
practiced against him . Said backpay shall be comput-
ed in accordance with the formula set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), and shall
include interest in the amount and manner provided
for in Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post as its place of business in Oakland, Cali-
fornia, copies of the attached notice marked "Appen-
dix A." 3 Copies of said notice, on forms provided by
the Regional Director for Region 20, after being duly
signed by Respondent Employer's authorized repre-
sentative, shall be posted by Respondent Employer
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent Employer to insure
that said notices are not altered, defaced, or covered
by any other material.
(d) Transmit to the Regional Director for Region
20 signed copies of said notice in sufficient numbers
to be posted by Industrial Carpenters Union, Local
No. 2565, in all places where notices to its members
are customarily posted.
(e) Post at the same places and under the same
conditions as set forth in paragraph A,(2), (c), above,
as soon as forwarded by said Regional Director, cop-
3 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
ies of the attached notice marked "Appendix B."
(f) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order
what steps the Respondent Employer has taken to
comply herewith.
B. Respondent Union, Industrial Carpenters
Union, Local No. 2565, San Francisco, California, its
officers, representatives, and agents, shall:
1. Cease and desist from:
(a) Failing and refusing to afford employees full
and fair representation in the processing of griev-
ances because of their union activities, and threaten-
ing or coercing members who are employees within
the meaning of the Act by preferring charges against
them for filing unfair labor practice charges with the
Board without first exhausting internal union proce-
dures.
(b) Causing or attempting to cause Western Exter-
minator Company to discharge or discriminate
against any employee on any ground other than the
failure to tender the periodic dues and initiation fees
uniformly required as a condition of membership.
(c) In any other manner restraining or coercing
employees in the exercise of rights guaranteed in Sec-
tion 7, except to the extent that such rights may be
affected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as amended.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Completely expunge and rescind from its rec-
ords all references and other evidence in its files per-
taining to the charges, fines, or threat to fine Mike
Macias for filing unfair labor practice charges with
the Board without first exhausting internal union
procedures, and notify Macias, in writing, of such
action.
(b) Jointly and severally with Respondent Em-
ployer, Western Exterminator Company, make
whole Mike Macias for any loss of earnings suffered
by reason of his discharge, in the manner set forth in
F. W. Woolworth Company, 90 NLRB 289 (1950),
and Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
(c) Post at business offices and meeting halls cop-
ies of the attached notice marked "Appendix B." °
Copies of said notice, on forms provided by the Re-
gional Director for Region 20, after being duly
signed by an authorized representative of Respon-
dent Union, shall be posted by it immediately upon
receipt thereof and be maintained by it for 60 con-
secutive days thereafter in conspicuous places, in-
cluding all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by
See In . 3. supra.
WESTERN EXTERMINATOR CO.
Respondent Union to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Transmit to the Regional Director for Region
20 signed copies of said notice in sufficient numbers
to be posted by Western Exterminator Company in
all places where notices to employees are customarily
posted.
(e) Post at the same places and under the same
conditions as set forth in paragraph B,(2), (c), above,
as soon as forwarded by said Regional Director, cop-
ies of the attached notice marked "Appendix A."
(f) Notify the Regional Director for Region 20, in
writing , within 20 days from the date of this Order,
what steps Respondent Union has taken to comply
herewith.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with the administra-
tion of Industrial Carpenters Union, Local No.
2565, or any other labor organization, by recog-
nizing or dealing with Charles Hoffman or any
other company supervisor as a union officer or
agent in negotiating or administering any collec-
tive-bargaining agreement or in handling em-
ployee grievances.
WE WILL NOT lay off, discharge, or otherwise
discriminate against in regard to hire or tenure
of employment Mike Macias or any other em-
ployee to encourage or discourage membership
in Industrial Carpenters Union, Local No. 2565.
WE WILL NOT in any other manner interfere
with , restrain, or coerce employees in the exer-
cise of their rights guaranteed under Section 7 of
the Act.
WE WILL offer Mike Macias immediate and
full reinstatement to his former job or, if that job
no longer exists , to a substantially equivalent
job, without prejudice to any rights and privi-
leges he might have acquired had discrimination
not been practiced against him.
WE WILL, jointly and severally with Industrial
Carpenters Union, Local No. 2565, make Mike
Macias whole for any loss of earnings with inter-
est thereon at 6 percent per annum.
WESTERN EXTERMINATOR COMPANY
APPENDIX B
1273
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail or refuse to afford any em-
ployee full and fair representation in the proc-
essing of grievances because of his union activi-
ties, and will not threaten or coerce members
who are employees within the meaning of the
Act by preferring charges against them for filing
unfair labor practice charges against us with the
Board without first exhausting internal union
procedures.
WE WILL NOT cause or attempt to cause West-
ern Exterminator Company to discharge or to
discriminate against any employee on any
ground other than the failure to tender the peri-
odic dues and initiation fees uniformly required
as a condition of membership.
WE WILL NOT in any other manner restrain or
coerce our employees in the exercise of the
rights guaranteed by Section 7 of the Act.
WE WILL completely expunge and rescind
from our records all reference and other evi-
dence pertaining to the charges, fines , and threat
to fine Mike Macias for filing unfair labor prac-
tice charges with the Board without first ex-
hausting internal union procedures, and we will
notify Mike Macias of such action in writing.
WE WILL jointly and severally with Western
Exterminator Company make Mike Macias
whole for any loss of earnings with interest
thereon at 6 percent.
INDUSTRIAL CARPENTERS UNION,
LOCAL No. 2565
DECISION
STATEMENT OF THE CASE
IRVING RoGOSIN, Administrative Law Judge: The consoli-
dated complaint, herein referred to as the complaint, issued
March 27, 1975, as amended, alleges that Respondent Em-
ployer has engaged in, and is engaging in, unfair labor
practices within the meaning of Sections 8(a)(1), (2), and
(3) and 2(6) and (7) and that Respondent Union has en-
gaged in, and is engaging in, unfair labor practices within
the meaning of Sections 8(b)(1)(A) and (2) and 2(6) and (7)
of the Act.
Specifically, the complaint alleges that Respondent Em-
ployer, (1) since about August 4, 1974, has interfered with
the administration of, and has rendered unlawful aid, assis-
tance, and support to, Respondent Union by permitting a
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisor and agent to act as principal representative of
Respondent Union in collective bargaining; (2) on about
December 9, 1974, discharged Mike Macias pursuant to
Respondent Union's demand because he had engaged in
union or concerted activities; and Respondent Union (3)
on about December 9, 1974, caused or attempted to cause
Respondent Employer to discharge said Macias for rea-
sons other than nonpayment of dues and initiation fees or
legitimate union considerations ; (4) since about January
23, 1975, has failed for arbitrary, irrelevant, invidious, or
unfair reasons in its duty of fair representation of Macias,
by failing and refusing to process a grievance concerning
his discharge on December 9, 1974; and (5) in about mid-
March 1975, filed intraunion charges against Macias be-
cause he had filed unfair labor practice charges against
Respondent Union with the Board.'
Respondent Employer's answer admits the procedural
and jurisdictional allegations of the complaint but denies
other allegations , as well as the commission of unfair labor
practices. Respondent Union's answer denies for lack of
information or belief certain of the procedural and juris-
dictional allegations of the complaint , admits other formal
allegations, but denies generally the remaining allegations
of the complaint, as well as the commission of unfair labor
practices. At the outset of the hearing, however, Respon-
dent Union admitted the procedural and jurisdictional
allegations of the complaint , including the commerce alle-
gations.'
Pursuant to due notice , a hearing was held from June 10
to 12, 1975, both inclusive, and on June 26 and 27, 1975, at
San Francisco, California. All parties were represented by
counsel and were afforded full opportunity to be heard, to
examine and cross-examine witnesses , to introduce oral
and documentary evidence relevant and material to the
issues, to argue orally, and to file briefs and proposed find-
ings of fact and conclusions of law . At various times during
the course of the hearing, both Respondents moved to dis-
miss the complaint , in whole or in part . The motions were
denied, with leave to renew before the close of the hearing.
When so renewed ruling on said motions was reserved. Re-
spondent Employer also renewed its motion to dismiss in
its brief. The motions are disposed of by the findings and
conclusions hereinafter made. Respondent Employer's mo-
tion to dismiss the Section 8(a)(3) allegations of the com-
plaint, as well as the complaint in its entirety, in which
Respondent Union joined with respect to the 8(b)(2) alle-
gations , on the ground that the General Counsel had failed
to produce tape recordings made during the course of in-
vestigation, and to establish that the tapes had been de-
stroyed in good faith, contrary to the so-called Jencks rule,
was denied, and is discussed further hereinafter. Pursuant
to an extension of time duly granted, all parties filed briefs
on or before August 15, 1975. No proposed findings of fact
or conclusions of law have been filed by any of the parties.
Upon the entire record in the case and, based upon the
appearance and demeanor of the witnesses, and the briefs
of the parties, which have been duly considered, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT EMPLOYER
The complaint alleges , Respondents admit, and it is
hereby found that, at all times material herein, Western
Exterminator Company,' a California corporation, with fa-
cilities located in California and Arizona, including Oak-
land, California, the only facility involved herein, at all
times material herein, has been engaged in providing exter-
mination services to commercial enterprises and individual
homeowners.
During the year preceding issuance of the complaint, in
the conduct of its business , Respondent Employer derived
gross revenues in excess of $500,000, and purchased and
received goods valued in excess of $50,000, directly from
suppliers located outside the State of California. During
the same period, Respondent Employer provided services
valued in excess of $50,000 to customers located outside
the State of California.
The complaint further alleges, Respondents admit, and it
is hereby found that, at all times material herein, Respon-
dent Employer has been an employer engaged in com-
merce and in a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
' The allegation covered by item (5) was added by amendment during the
course of the hearing , over Respondent Union 's objection . after the General
Counsel had rested . On June 18 , while this hearing was in recess, Bay Coun-
ties District Council of Carpenters , of which Respondent Union is a consti-
tuent body , formally notified Macias of the action taken by the District
Council executive board on the charges filed against him by Local Union
2565, Respondent Union herein , alleging violations of specific sections of
the general constitution of the United Brotherhood of Carpenters and Join-
ers of America.
2 Designations herein are as follows: The General Counsel , unless other-
wise stated or required by the context , his representative at the hearing;
Western Exterminator Company, Respondent Employer, the Company or
the Employer ; Industrial Carpenters Union, Local No. 2565, Respondent
Union or the Union ; Mike Macias, an individual , the Charging Party: the
National Labor Relations Act, as amended (61 Stat . 136. 73 Stat. 519. 29
U.S.C. Sec. 151. et seq.), the Act ; the National Labor Relations Board, the
Board . The original charge against Respondent Employer in Case 20-CA-
9924 was filed and served on January 31, 1975; in Case 20-CA-9938. on
February 4, 1975; the original charge against Respondent Union, in Case
20-CB-3397. was filed and served on January 31, 1975. Unless otherwise
indicated , all events occurred in 1974.
It. THE LABOR ORGANIZATION INVOLVED
Industrial Carpenters Union, Local No. 2565, Respon-
dent Union herein, is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. Background
Respondent Employer operates 18 separate facilities, all
but I in the State of California, the remaining 1, in Phoe-
nix, Arizona. This proceeding is concerned only with the
Oakland Branch, where, as a member of the Northern Cal-
ifornia Structural Pest Control Operators Association,
3 The name of Respondent Employer as corrected at the hearing.
WESTERN EXTERMINATOR CO. 1275
herein called the Association , represented by the San Fran-
cisco Employers Council, it is a party to a collective-bar-
gaining agreement with Structural Pest Control Division of
the Industrial Carpenters Union Local No. 2565, the
Union herein . The current collective-bargaining agreement
is for the term October 1, 1974, to September 30, 1977, with
periodic reopening provisions on specified notice and auto-
matic renewals in the absence of prescribed notice. This
collective-bargaining agreement applies only to employees
engaged in termite extermination , defined as the control of
wood-destroying organisms , such as termites , fungi, or
wood rot , in contrast to pest control , which entails elimina-
tion of "nuisance pests," which do not ordinarily cause
structural damage . Pest control employees are covered by a
separate collective -bargaining agreement with Local 14,
Service Employees Union. The Structural Pest Control Act
of the State of California regulates both types of extermi-
nation . The collective -bargaining agreement with Respon-
dent Union covers a total of 500 employees of members of
the Association . In December 1974 the Company em-
ployed approximately 12 employees about equally divided
between the termite and pest control operations.
Ronald Bauer , former branch manager of the Oakland
office, is the Company 's Northern California Division
manager . He was succeeded as branch manager by Carl
Doucette , who is responsible for the entire Oakland opera-
tion. In May 1974 Charles "Chuck" Hoffman , a former
inspector , was promoted to the job of senior inspector un-
der Doucette 's supervision . In that position , Hoffman has
been in charge of field operations of all termite employees.
B. Sequence of Events
1. Events culminating in Macias ' layoff
Michael R. "Mike" Macias , hired by Hoffman on Octo-
ber 26, 1973, as a journeyman termite employee, was termi-
nated on December 9, 1974, under circumstances discussed
hereinafter . He has been a member of Respondent Union
since April or May 1970.
On November 12, 1974, Macias attended a union meet-
ing, at which Hoffman , as president of the Union, presid-
ed. Rose White, financial secretary-treasurer and business
representative of Respondent Union, was present at this
meeting , as were a number of union members , including
James Worley. Worley rose to ask Hoffman whether he
was not also manager of the Company, and if so, how he
could justify presiding at the meeting . Hoffman asked
Worley where he had obtained his information , and Wor-
ley pointed to Macias , who had been seated next to him.
Hoffman asked Worley how Macias had happened to tell
him that , but Worley apparently made no reply. According
to Macias , Glen Ruiz, an employee of another termite
company, also commented on the fact that Hoffman was a
member of management . Hoffman became irate and invit-
ed any member sharing similar views to deal with him out-
side the union hall. Hoffman admitted that Worley had
challenged his right, as part of management , to serve on the
union negotiating committee and that Worley had accused
the negotiating committee of "selling the union member-
ship down the river." When Worley remarked that Hoff-
man had hired Macias, Hoffman acknowledged that he
had but stated that he had not discharged him.'
In a memorandum ostensibly dictated by Macias to his
wife , Linda, subsequent to his discharge, produced at the
hearing in response to Respondent Employer's request for
pretrial statements or affidavits, Macias is quoted as saying
that he himself spoke from the floor at this union meeting
and stated that it was "unlawful" for Hoffman to hold
office as president of the Union while working for the
Company in a management position . At the hearing, Maci-
as denied that he spoke from the floor on this occasion.
Later, Macias testified that the incident referred to in the
memorandum actually occurred at another union meeting,
about 6 months earlier, when he was ruled out of order,
The statement was offered by Respondent Employer as
evidence of an inconsistent statement. A subsequent pretri-
al affidavit given to a Board agent makes no mention of
Macias' having taken the floor at the union meeting on
November 12. Hoffman, himself, testified that it. was Wor-
ley who challenged Hoffman's right to act in a dual capaci-
ty, and when Hoffman asked him the source of his infor-
mation, Worley pointed to Macias.5 It is probable that in
writing out the narrative statement of the events related to
her, Macias' wife may have confused the two union meet=
ings. In any event, it is found that Macias' credibility has
not been adversely affected by the apparent discrepancy
between his testimony and the statement in the memoran-
dum.
Next day, November 13, when Macias reported for
work, Hoffman asked him what he had said to Worley at
the union meeting. Macias stated that he had told Worley
that Hoffman was a management representative . Hoffman
shook his head and left. Hoffman conceded that he proba-
bly had a conversation with Macias the day after the union
meeting, but testified that he could not recall anything spe•
cific about the conversation and that he had no recollec-
tion of asking Macias what he had said to Worley at the
union meeting. Hoffman did not categorically deny ques-
tioning Macias about the incident and, since the conversa-
tion followed so closely upon the event, it is found that
Hoffman did , in fact , question Macias in the manner indi-
cated. According to Macias, Hoffman's attitude toward
him became decidedly chilly thereafter.
Macias left on vacation the day before Thanksgiving and
was absent until December 9, when he returned to work.
That morning, while he was in the coffee room with em-
ployees Gerald "Jerry" Vernon, one of the Company's in-
spectors, David Sly and George Makler, both journeymen
termite men , Hoffman notified all the employees but Maci-
as that it was time to go to work. Hoffman himself went to
Doucette's office, returning soon afterward to tell Macias
that Doucette wanted to see him. When Macias went to
Doucette 's office , he was told that he was being laid off for
Hoffman did not explain the cryptic remark that he had not discharged
Macias, who was not, in fact , laid off until nearly a month later.
5 Worley did not testify, and these findings are based upon Macias' testi-
mony. substantially corroborated by Hoffman. Hoffman conceded that
other members took issue at this meeting with his right to act in a dual
capacity but claimed that it was they who made threats against him, and
that he merely indicated that he was prepared to accommodate any one who
wished to pursue the matter outside the union hall..
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lack of work, and that Sly and Makler were being laid off
at the end of the day. Macias asked Doucette whether he
would be recalled, and Doucette told Macias that he would
call him back as soon as work picked up. Macias was there-
upon laid off.
Early in January 1975, Macias called Doucette to in-
quire about his prospects of returning to work. When Dou-
cette told him that work was still slack, Macias protested
that he had more seniority than either Sly or Makler, who
were still working. Doucette said he knew nothing about
that and referred him to Hoffman. Macias called Hoffman
and repeated what he had told Doucette. Hoffman advised
Macias that there was no seniority provision in the collec-
tive-bargaining agreement . Macias referred Doucette to the
seniority language in the Company's employee handbook,
and reiterated that he had been working for the Company
longer than either Sly or Makler.6 Finally, Hoffman told
Macias that he had no intention of calling him back to
work, in any event, because he had had too many "call-
backs" in connection with jobs on which he had worked.7
Macias retorted that Hoffman, himself , as well as Sly and
Makler had had their share of callbacks but Hoffman
merely replied that he could not tell that without checking.
Macias told him that under the circumstances, he would be
obliged to resort to the National Labor Relations Board,
the Equal Employment Opportunity Commission, and the
Fair Employment Practices Commissions Macias subse-
quently filed complaints with those agencies.
2. The filing of Macias' grievance; Respondent Union's
action
Macias enlisted the aid of Stephen H. Rodriguez, an or-
ganizer and business representative of Retail Clerks Union,
Local No. 870, an acquaintance, in preparing and pre=
senting a grievance concerning his discharge .9 On January
23, 1975, Rodriguez prepared for Macias' signature a griev-
ance, addressed to "Chuck" Hoffman, as president of Re-
spondent Union, protesting his layoff of December 9, and
demanding a copy of the current collective-bargaining
agreement . The same day, Rodriguez accompanied Macias
6 The employee handbook which, in addition to work, health , and safety
rules, includes provisions governing wages, hours, and working conditions,
as well as benefits and services , does, in fact , contain a seniority provision.
According to the date shown in the book , it was promulgated in August
1974. The outstanding collective-bargaining agreement , effective October 1,
1974 (which appears to have succeeded a 1971-74 master agreement) con-
tains no seniority provision . According to Ronald Bauer . the Company's
Northern California division manager , the employee handbook applies to
branches of the Company which are not covered by collective-bargaining
agreements . In any case , since the current collective-bargaining agreement
became effective after the publication of the employee handbook , it must be
assumed that the provisions of the contract superseded any seniority provi-
sions contained in the handbook . It is found that, at the time of Macias'
layoff, there were no seniority provisions in effect which would require him
to be retained in preference to employees with less seniority.
7 The term is used to denote followup calls to correct work improperly
performed by the termite man designated to perform the work or to correct
conditions not previously exposed on initial inspection.
8 These findings are based on the credible and uncontradicted testimony
of Macias . which is consistent with Hoffman 's testimony on the subject
matter.
9 Linda Macias, wife of the Charging Party, has been a business represen-
tative of Local No. 870 since February 28, 1975.
to the Company's place of business, where Macias present-
ed his grievance to Hoffman. Hoffman told Macias that
the grievance should more properly be presented to Rose
White, the Union's financial secretary-treasurer and organ-
izer, but that she was on vacation. Rodriguez intervened to
inquire who was acting for the Union in White's absence.
When Hoffman acknowledged that he probably was, Ma-
cias said that in that case Hoffman could accept the griev-
ance. Hoffman stated that he presumed he could, and Ma-
cias handed him the grievance.
On January 30, 1975, White, in her capacity as union
business representative, acknowledged receipt of Macias'
"letter" (grievance) concerning "charges against one of
your co-workers," an obvious allusion to Hoffman, in-
formed Macias that the letter had been turned over to the
executive board for further action, and that he would be
notified when to appear for hearing.
The record does not disclose when Macias was notified
to appear but, on about March 11, Macias, accompanied
by his wife, Linda, attended a meeting at the union head-
quarters. Present on behalf of the Union were Hoffman,
White, her husband, and five other persons, presumably
members of the executive board. White announced that
she was presenting Macias' grievance concerning his layoff
out of seniority, and stated that the union contract con-
tained no seniority clause. Macias then produced the em-
ployee handbook and turned to the seniority provision.
White repeated that the union contract did not contain a
seniority provision. At the request of members of the exec-
utive board a copy of the handbook was produced. One of
the members, not otherwise identified, inquired why the
seniority provision was included in the handbook if it did
not apply to the employees. White referred the question to
Hoffman, who explained that the handbook applied only
to the Company's employees at Los Angeles, or elsewhere,
who were not covered by a collective-bargaining agreement
but that the Oakland employees were governed by a collec-
tive-bargaining agreement which did not provide for se-
niority. Macias asked why, if that were the case, the'em-
ployees in Oakland had been given the' handbook, but
Hoffman offered no response.
Hoffman then announced that he wanted the record to
show that Mrs. Macias was employed by another union as
an organizer and ought not be allowed to participate in the
discussion. The question was put to a vote and by a margin
of four to one, it was decided that Mrs. Macias would not
be permitted to speak at the meeting. Macias protested that
it was no concern of the committee where his wife worked
or what her position was and that she was there as an
observer. After some discussion, it was decided that Mrs.
Macias would be permitted to state where she worked. She
then presented her business card, indicating the name of
her employer, and discussion was resumed on the subject
of Macias' grievance. At his wife's suggestion, Macias re-
quested a transcript of the proceedings but was informed
that he would have to obtain it from the District Council.-
Macias was questioned about his experience as a termite
crewman, callbacks, and his job performance. Asked
whether he had had any callbacks, Macias said that he did
not know, and when Hoffman insisted that Macias had
had callbacks, Macias claimed that that was true of all the
WESTERN EXTERMINATOR CO. 1277
men but that he had never been told anything regarding his
callbacks. A member of the committee inquired whether it
was not true that he was a poor worker and had made
many mistakes. Macias said that he was not aware of it,
and stated that he had received bonuses and cards of com-
mendation from customers.1°
No decision was rendered on Macias' grievance, but he
was told that the matter would be referred to the District
Council of the Carpenters Union about March 19 and that
he would be notified accordingly. Toward the end of the
meeting, Mrs. Macias charged the Union with being a
company union and commented that it was "unlawful" for
Hoffman to hold the position of president of the Union
while he was a member of management.
On January 31, 1975, Macias filed an unfair labor prac-
tice charge against Respondent Employer (Case 20-CA-
9924), alleging that he had been discriminatorily "dis-
charged" on December 9, 1974, for engaging in union or
protected concerted activities and, on the same date, filed a
charge against Respondent Union (Case 20-CB-3397), al-
leging that the Union had caused or attempted to cause the
Employer to discriminate against him for engaging in
union or protected concerted activities. On February 4,
1975, Macias filed a charge against Respondent Employer
(Case 20-CA-9938), alleging that since about August 4,
1975 (sic)," Respondent Employer had dominated and in-
terfered with the formation and administration of the
Union, in violation of Section 8(a)(2).
Shortly after the meeting before the executive board of
the Union on March 11, in an undated letter, White, on
behalf of the Union, notified him that charges were being
preferred against him for violation of the "Trade Rules of
the Bay Counties District Council of Carpenters," citing
specifically: "Constitutional Charges: Section 55, Para-
graph A, Number 1. Causing dissension among the mem-
bers of the United Brotherhood. Number 5. Willful slander
or libel of an officer or any member of the United Brother-
hood. Number 13. Violating the Obligation." The letter
further notified Macias that the charges would be referred
to a trial panel under specified procedures, cited him to
appear at the offices of the District Council on an unspeci-
fied date 12 and warned him that if he failed to appear he
would be deemed guilty of contempt, and the committee
would proceed to hear the proof against him and impose
such punishment as it,should determine.
On April 3, 1975, Macias was notified by the secretary of
the District Council to appear before its executive board
on April 9, 1975, presumably in connection with the
charges filed against him by the Union.13
10 Since bonuses were based on the collective effort of the crews rather
than individual performance, the fact that Macias may have received bonus-
es does not necessarily establish the quality of his workmanship . As for the
cards, which consisted of comments by customers regarding work per-
formed, allegedly turned over to Macias by Inspector Vernon, it cannot be
established from mere examination of the cards who actually performed the
work . In any event, they do not constitute reliable evidence of the quality of
the work performed by Macias.
11 Obviously , the intended date was August 4, 1974.
12 The date was omitted from the printed form notifying Macias of the
charges.
17 The letter does not indicate the purpose of the hearing beyond notify-
ing him of the time and place of the hearing. The record does not disclose
On June 18, 1975, while the hearing in these proceedings
was in recess, the secretary of the District Council formally
notified Macias that the District Council executive board,
on April 9, 1975, had concurred in the recommendation of
the Local executive board deferring action for 30 days. Ad-
vising Macias of his right of appeal to the general president
of the parent union, the letter concluded, "In the event a
fine has been imposed upon you it will be necessary to pay
your fine to the Secretary of your Local Union under pro-
test before taking your appeal."
According to White, the only union official testifying
regarding the intraunion charges filed against Macias, the
charge of causing dissension among members of the Union
related to the filing of the unfair labor practice charge by
Macias against the Union instead of proceeding through
the contractual grievance procedure. The charge of willful
slander or libel of officers, White explained, related to Ma-
cias' action at the executive board meeting when he
charged that the Union was a company union. With regard
to the charge of "violating the obligation," White conceded
that she could not specify in what respects Macias had
violated the obligation assumed by union members under
the constitution, testifying that the charge covered any
conduct deemed to violate the blanket obligation of fealty
to the Union. Admittedly, Macias did not use any offen-
sive or objectionable language, and White was unable to
specify in what respects Macias had slandered or libeled
any officer or member of the Union.
No further action appears to have been taken by the
Union in connection with Macias' grievance against the
Company, allegedly because of the pendency of the unfair
labor practice charges against the Union in these proceed-
ings.
3. Respondents' defenses
Respondent Employer denies that Macias was laid off or
terminated because of protected union or concerted activi-
ties, and asserts that the decision was dictated solely by
reasons of business expediency. According to the Employ-
er, there is a normal seasonal decline in its business during
the fall and early winter months of the year. This decline,
the Employer maintains, became more acute during 1974
because of the business recession, particularly in the con-
struction industry, as well as in work generally performed
by the Company on residential units. Beginning in August,
the Company's revenues declined steadily for the remain=
der of the year, fluctuating between a third of its normal
sales in August to somewhat less than one-half in Novem-
ber. Nevertheless, Doucette conceded that the gross in
come from all types of termite work for the year 1974 ex-
ceeded that of the year 1973, and there was no showing
that the Employer resorted to layoffs in that year.14
During the week ending November 12, the Company
employed three journeymen termite men, Macias, Makler,
and Sly, who worked an aggregate of 112 hours. The fol-
whether Macias appeared at this hearing but on April 11, 1975, the secretary
of the District Council notified him by letter confirming the Local executive
board's decision that the matter be postponed for 30 days.
14 A portion of this income was derived from termite inspection fees, not
necessarily resulting in work performed by the journeyman crew.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lowing week, the total number of hours worked by them
was 72 hours . In succeeding weeks , the aggregate number
of hours worked was 46 hours, 112 hours , and, for the week
ending December 10, 73 hours , including 16 hours devoted
to guard duty at homes which were sealed for fumigation.
On December 18, Makler , who had been hired on July 23,
1974, 9 months after Macias , was laid off for lack of work,
although he was recalled several weeks later . In the 3 suc-
ceeding weeks , following Macias' discharge , Makler
worked a total of 31 hours, 7-1/2 hours, and 12 hours,
respectively, while Sly worked 32 hours (16 of which were
in connection with guard duty), 31 hours , and 20 hours,
respectively . Nevertheless , it is evident that business be-
gan to return to normal levels after the first of the year
when Makler was recalled.
Although Respondent Employer was extremely critical
at the hearing of the competency and the work perfor-
mance of Macias , it concedes that the only reason Macias
was laid off on December 9 was lack of work, and not his
unsatisfactory work performance. Respondent Employer
does contend , however, that the reason it did not recall
Macias when work became available was that as between
Makler and Sly, Macias was the least competent and that
since it was not required to observe seniority under the
terms of its collective -bargaining agreement, it elected not
to recall Macias.
According to Respondent Employer , at the time he was
hired, Macias misrepresented his experience and qualifica-
tions , maintaining that he had worked as a journeyman
termite man intermittently since 1968 . Prior to his employ-
ment by Respondent Employer, Macias had worked for
Terminex of Northern California , Inc., a party to the mas-
ter agreement , for approximately 3 years , at first, as an
apprentice , and later as a journeyman . Macias conceded.
however , that he commenced receiving journeyman wages
under the collective-bargaining agreement only some 4
months before he went to work for Respondent Employer.
Macias told Hoffman that he had left his previous employ-
er voluntarily because of a dispute about travel pay, when,
in fact, according to the president of that company, he had
been discharged for incompetency .ts Although unaware of
Macias' alleged misrepresentation concerning his previous
experience and qualifications when it decided to lay him
off, Respondent Employer offered this evidence not only
for purposes of impeachment but in substantiation of its
contention that Macias was lacking in experience and com-
petency . Macias acknowledged that he had been criticized
by Hoffman in regard to his work performance on various
jobs. As early as February or March 1974, Blake Wide-
moyer, Hoffman 's predecessor as termite manager, asked
Hoffman why he had hired Macias , expressing the opinion
that he was not a qualified journeyman , and showed him a
job on which Macias had worked in Oakland which had
been done unsatisfactorily . On a number of occasions prior
to Widemoyer's transfer, he discussed with Hoffman call-
backs which Macias had had and indicated that he was not
performing satisfactorily.
15 Macias had filed a grievance against Terminex but on the advice of
Financial Secretary White. he dropped the grievance when he was hired by
Respondent Employer.
During this period, while he was still branch manager of
the Oakland office, Ronald Bauer discussed Macias' work
performance with both Hoffman and Doucette. This was
prompted by Macias' work upon a specific job (the Union
City property) which Bauer had personally inspected be-
cause of complaints to the State of California Pest Control
Board concerning work that had been performed at the site
by Macias. Bauer told Hoffman at that time to observe
Macias' work and to determine whether to retain him.
Moreover, both Doucette and Hoffman had informed
Bauer that it had been obliged to assign Macias to small
jobs because the Company could not make a profit on
larger jobs on which Macias worked due to his inability to
perform fully the work of a journeyman, and because of
the excessive time consumed in performing the job.
In late spring or early summer of 1974, Doucette com-
plained to Hoffman that the Company was unable to real-
ize a profit on jobs done by Macias; that the Company had
been obliged to utilize him on small jobs requiring no spe-
cial skills; and that he was not performing those jobs prop-
erly. When Hoffman called this to Macias' attention, Ma-
cias merely "shrugged his shoulders."
Similar opinions were expressed by Macias' fellow em-
ployees. In the summer of 1974, Makler told Doucette that
Macias was not a qualified journeyman. Makler also com-
plained to Hoffman that Macias had not performed his
work properly. Sly, another fellow employee, stated to
Doucette that Macias was not a "finished" journeyman
and that he regarded him as "somewhere between a helper
and a journeyman, but . . . he was not a journeyman," and
that he was not doing his work "professionally." Vernon,
who was promoted to inspector in May 1974, had also
commented to Doucette on Macias' poor work perfor-
mance, expressing the opinion that Macias' "finished prod-
uct" was of poor quality. In discussions with Hoffman,
Vernon stated that Macias' work was not performed in
accordance with industry standards.
Both Doucette and Hoffman testified that they observed
other jobs on which Macias had worked and that they had
received customer complaints concerning the poor quality
of his work.
In addition to the opinions expressed by Macias' fellow
employees to their supervisors, and the opinions of these
men based upon their observations of various jobs on
which Macias had worked, Respondent Employer cited
three specific instances of poor workmanship by Macias
during the latter stages of his employment. In connection
with these jobs, Respondent Employer introduced docu-
mentary evidence , consisting of inspection reports, esti-
mate and crew worksheets, notices of completion, and cor-
respondence with the State of California Department of
Consumer Affairs involving complaints over work which
Macias had performed or failed to perform. The jobs in-
volved locations at 14th Street, Union City, Richmond
Street , El Cerrito, and Washington Avenue, Albany, Cali-
fornia. In the first of these instances (Union City), Macias
had not initially performed the work on this job. Following
an ipformal complaint with the Department of Consumer
Affairs in August 1974, Macias was dispatched to perform
the necessary corrective work. Pursuant to the Company's
inspection report, Macias was required to remove and re-
WESTERN EXTERMINATOR CO. 1279
place a damaged eave board and to remove wood rot as
shown in the report. On September 25, Macias returned the
job card reporting completion of the work, and a notice of
completion was thereupon mailed by the Company. On
October 18, the Department of Consumer Affairs notified
the Company that the job had not been completed. A sup-
plemental inspection was thereupon made, indicating that
additional work was required. Doucette, who also made a
personal inspection, discovered that Macias had failed to
replace the damaged eave board. Makler was assigned to
do the work required by the supplemental inspection on
October 24 and 25, 1974. Makler reported to the Company
that he performed the work which Macias had failed to
perform a month earlier. As a result of Macias' failure to
perform the work which he had reported as completed, the
Company was required to furnish 10 additional hours of
work at an approximate cost to it of $62.
Macias testified that he performed all the work called for
in the initial inspection report but that he discovered addi-
tional damage which he reported to Hoffman. Hoffman
denied that Macias notified him of any additional damage
not covered by the report. Both Doucette and Bauer in-
spected the jobsite because of the complaint filed with the
Department of Consumer Affairs. According to Bauer, he
was so disturbed by what he discovered that he recom-
mended to Doucette that he consider terminating Macias.
Hoffman testified that he discussed the Union City job
with Macias and called his attention to the fact that the
repair order called for the replacement of a facia board,
which Macias had left unrepaired. According to Hoffman,
Macias merely shrugged and replied that he had not ob-
served the damage. Respondent Employer maintains that it
was not Macias' failure to perform the work called for in
the report but rather his failure to replace the damaged
facia board, as required in the inspection report.
The second example of Macias' alleged unsatisfactory
work involved the El Cerrito job. The original inspection
on this job was performed by Harold Matzen, whom Re-
spondent Employer regarded as one of the most experi-
enced termite men in the industry. On March 4, 1974, sev-
eral weeks after Matzen's inspection report, Macias was
assigned to perform the corrective work. In turning in his
job card, signifying that he had completed the work, Maci-
as failed to mention possible damage to the sole-plate, an
item shown on Matzen's inspection report. Months later, in
August 1974, while installing a sliding glass door, the cus-
tomer discovered wood rot in the area surrounding the
sole-plate. When notified, Hoffman inspected the area in-
volved and dispatched Macias to the job to perform the
necessary work. On August 23 Macias submitted his job
sheet, showing he had spent 4-1/2 additional hours in com-
pleting the job. On September 5, at the customer's request,
Matzen made an additional inspection of the affected area.
In his original report, as well as his supplemental report,
Matzen had recommended that the area surrounding the
sole-plate be opened from the exterior and that the dam-
aged wood be replaced as necessary. Macias failed to do
this work or to inform the Company of the additional dam-
age in the area of the sole-plate. Two months later, the
Department of Consumer Affairs notified the Company
that the damage, involving dry rot in the area of the sole-
plate and the fungus infection, had not been corrected.
According to Respondent Employer, if Macias had fol-
lowed Matzen's recommendations, he would have discov-
ered the additional damage and notified the Company ac-
cordingly. As a result, the Company was required to
perform this work at its own expense. The Company's chief
complaint against Macias on this job was that he had. failed
to report, early in March, when he claimed to have com-
pleted the work, the additional damage consisting of dry
rot. According to the Company, if Macias had reported the
presence of dry rot, another inspection would have been
made, the customer would have been furnished with an
estimate of the cost of repairing the damage, and, if he
approved, the Company would have performed the work
and been compensated. As it was, it was not until Novem-
ber 6, when the Department of Consumer Affairs issued a
formal complaint, that the Company learned of the condi-
tion. Additionally, according to the Company, Macias had
failed to spray fungus infested areas. As a result of Macias'
alleged dereliction, the Company incurred an expense of
approximately $200, representing 24 hours' work per-
formed by Makler and Sly, which would have been paid
for by the customer if Macias had properly reported the
condition to the Company. In addition, Makler and Sly
reported to Hoffman that the work Macias had done had
been performed in a very poor and unworkmanlike man-
ner, that the vent openings had been improperly installed,
and the blocks of the rim joist had not been removed. Dou-
cette and Hoffman, who later inspected the job themselves,
corroborated Sly and Makler and criticized Macias for
leaving debris on the job. Matzen, too, who had initially
inspected the job, substantiated the testimony of Sly and
Makler, as well as their supervisors, stressing Macias' fail-
ure to report the additional damage in the area of the sole-
plate. Macias countered that he had observed no evidence
of wood rot in that area.
The third job of which Respondent Employer com-
plained was located in Albany, California. Hoffman had
inspected this job in June 1974, and dispatched Macias to
make the necessary repairs inaccordance with Hoffman's
inspection report. After the work was done, Macias turned
in his job card, indicating that the job had been completed.
A notice of completion was thereupon issued. In Novem-
ber, the property owner requested another inspection,
which Hoffman also made. He discovered that certain
items appearing on the original inspection report had not
been corrected in July, and Matzen was dispatched to per-
form the work which Macias had allegedly failed to do.
According to Respondent Employer, Macias had failed
to scrape and chemically treat "termite tunnels," with the
result that the area became reinfested with termites. Addi-
tionally, Macias failed to replace properly damaged and
fungus-infected framing, as shown in the inspection report.
This necessitated 10 hours of work by Matzen at company
expense. Matzen testified that Macias completely failed to
perform the work designated in the inspection report. Ac-
cording to Matzen, the condition which Macias had failed
to correct was plainly visible, and so pervasive, that in one
area Matzen was able to remove the rot with his bare
hands. Again, Macias testified that he performed all the
work that he was required to do.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although the General Counsel challenges the necessity
for the layoff of a termite man early in December , he con-
tends, that, in any event, Macias should not have been
selected because he had more seniority than either Sly or
Maklin, the other two termite men, who were retained. Re-
spondent Employer, however , maintains that, since the col-
lective-bargaining agreement contains no seniority provi-
sion , the Company was not required to lay off employees
according to seniority , and that it did not take that into
account in making its decision . The General Counsel main-
tains that layoffs are governed by the seniority provisions
contained in the employee handbook , even though not
contained in the collective -bargaining agreement . For rea-
sons previously stated , the General Counsel's position is
rejected . In the absence of a binding contractual seniority
provision , the Employer was privileged to make the selec-
tion on the basis of any criteria , or indeed , none at all,
provided only that the decision was not based on reasons
proscribed by the Act. Here, Respondent Employer based
its decision on the comparative experience , skills, abilities,
and performance of the employees involved.
By contrast with Macias , Sly had been engaged in the
termite industry for 19 years, part of the time as the owner
of his own business and, for about 10 years, as a partner in
another termite company . Hired by Respondent Employer
on August 14, 1974, his services had proved eminently sat-
isfactory , and no complaints or criticism had been received
concerning his work.
Makler, hired on July 23, 1974, a journeyman carpenter
in the construction industry since 1941, had been employed
as a journeyman in the termite industry for 3 years, 2 years
with Rose Exterminator , a major competitor of Respon-
dent Employer. Makler, incidentally, was laid off for lack
of work on December 19, less than 2 weeks after Macias,
although he was recalled several weeks later.
Although the matter is not altogether free from doubt,
the record, as a whole, establishes that the layoff of a jour-
neyman termite employee on or about December 9 was
economically justified. The fact that Makler, who was not
shown to have been involved in any union activity, and
whose competence was not in issue, was also laid off less
than 2 weeks later, lends support to Respondent
Employer's claim of economic justification in Macias' case.
True, Makler, who had less seniority than Macias, was re-
called several weeks later, but this does not support a find-
ing of discrimination against Macias, since the decision
was based on Makler's superior qualifications rather than
on seniority, which , as has been found , Respondent Em-
ployer was not legally obligated to observe."' Although Re-
spondent Employer contends that it based its decision,
both with regard to the layoff and the failure to recall Ma-
cias, on the comparative ability of the three employees in-
volved, and that it justifiably concluded that Macias was
the least competent , the issue is not whether Respondent
Employer exercised good or bad judgment in making its
selection , whether it had legitimate grounds for its decision,
or whether it acted arbitrarily or capriciously. The issue is
16 As a matter of fact, on an earlier occasion , Macias had himself bene-
fited from the Company 's policy, when he was retained in preference to an
employee with greater seniority.
whether, in laying off and thereafter refusing to reinstate
Macias, Respondent Employer was motivated, in whole or
material part, by reasons proscribed by the Act, i.e., by a
purpose to encourage or discourage membership in Re-
spondent Union.
It is, therefore, necessary to consider the nature and ex-
tent of Macias' union or concerted activities, Respondent
Employer's knowledge of such activity prior to or at the
time it decided on his layoff, and its attitude toward the
Union. The only activity in which Macias can be said to
have engaged consisted of his intraunion conduct in indi-
rectly challenging Hoffman for acting as president of the
Union while occupying a position as company supervisor.
Although Respondent Employer initially denied that
Hoffman was a supervisor, it conceded, arguendo, in its
brief that, for the purposes of these proceedings, Hoffman
may be considered a "low-level" supervisor. The record
amply establishes, however, that Hoffman possessed most,
if not all, the indicia of supervisory status. In May 1974 he
was promoted from the job of inspector to the position of
senior inspector. According to Doucette, his immediate su-
perior and branch manager of the Oakland facility, as well
as Hoffman himself, he not only possessed authority to
make effective recommendations with regard to the hiring
and firing of employees, but was actually instrumental in
hiring eight termite men, including Macias, and had laid
off or recommended the layoff of two employees, including
Macias . He had authority responsibly to direct the work of
the termite crews in other than a routine manner, requiring
the use of independent judgment, and was authorized to
schedule vacations and grant time off to members of his
crews. The record leaves no doubt that Hoffman was a
supervisor within the meaning of the Act, and it is so
found.
There is no direct evidence that Respondent Employer
was aware until the filing of the unfair labor practice
charges that Macias had challenged Hoffman's right to act
in the dual capacity of union president and company su-
pervisor. There was no showing that Hoffman had ap-
prised Doucette or any company official of the position
taken by Macias or that Hoffman had expressed to Dou-
cette his indignation toward Macias for raising the issue.
For that matter, other union members had openly de-
nounced Hoffman from the floor at the union meeting to
such an extent that Hoffman challenged the disgruntled
members to settle the dispute outside the union hall. Maci-
as had merely related his misgivings about the propriety of
Hoffman acting in a dual role to Worley, and it was the
latter who challenged Hoffman from the floor. The record
discloses no reprisals by Hoffman or the Union against any
other members who engaged in this controversy.
Despite some apparent inconsistencies between
Doucette's pretrial statement and his oral testimony as to
whether it was he or Hoffman who first recommended that
Macias be laid off, a fair appraisal of the testimony war-
rants the conclusion that it was Doucette who decided that
a layoff was necessary, that he suggested to Hoffman that
Macias be laid off, that after considering the matter for
several days, Hoffman concurred in Doucette's recommen-
dation, and that Doucette made the final decision as to
Macias' layoff. In any event, it is obvious that Hoffman
WESTERN EXTERMINATOR CO. 1281
participated in the decision by concurring in Doucette's
recommendation. The fact that Hoffman actually signed
Macias' layoff slip does not establish that he was responsi-
ble for the layoff.
There was no showing that Doucette was aware of any
controversy between Hoffman or Respondent Union and
Macias at the time of Doucette's decision to lay him off. In
fact, Doucette testified that, apart from the fact that he was
aware of Macias' union membership,17 he knew nothing of
Macias' relations with the Union.'8
Since there is understandably no direct evidence that
Hoffman or anyone on behalf of the Union demanded or
requested that Doucette or the Employer lay Macias off,19
it is necessary to consider whether there is any other proba-
tive evidence to support a finding that Respondent Union
caused or attempted to cause Respondent Employer to dis-
criminate against Macias, and that Respondent Employer,
at the behest of the Union, did, in fact, discriminate against
him.
The General Counsel appears to have adopted a per se
approach based on the assumption that, since Hoffman
was both a supervisor and union officer, with a motive for
disciplining Macias, at the time of his layoff, and since
Hoffman participated in the decision, Respondent Union
automatically violated Section 8(b)(2) and (1)(A), and Re-
spondent Employer, by acceding to Hoffman's recommen-
dation, violated Section 8(a)(3) and (1) of the Act. While
this quandary may demonstrate the vice of permitting a
supervisor to serve simultaneously as a principal union of-
ficer, it does not automatically establish a violation of Sec-
tion 8(b)(2) and (1)(A) of the Act. The necessity for a lay-
off having been established, the selection of the employee
to be laid off having been made on a nondiscriminatory
basis, and the decision having been made by Doucette, the
17 The collective -bargaining agreement contained a union-security provi-
sion.
18 In a letter to the Regional Office on February 4, in response to notice
of the filing of the charge and a request for a statement of the Company's
position , after asserting that Macias was laid off for lack of work within his
competence , Doucette continued,
The contract we have with [the Union ] specifies under Section 12
that Grievances and Complaints shall be submitted to the Union Board
of Adjustment . We do not believe that Mr. Macias submitted any
grievance to his union , and if he didn 't, then why didn't he. We signed
a union agreement in good faith , we expect the rank and file to honor
their agreement , or else why have the agreement.
Mr. Macias was derelict in his responsibilities to his union and com-
pletely wrong in his charges against our company.
Without passing on the propriety of relying on possible admissions in a
letter responding to a Regional Office's request for a statement of position,
nothing in the letter suggests that Doucette was aware of any controversy
between Macias and the Union at the time of the layoff or that , in laying off
and later refusing to reinstate Macias, Doucette was acceding to a union
request or acting on the basis of a tacit understanding between the Union
and the Employer.
191, is noteworthy that the complaint alleges that Respondent Union
caused or attempted to cause Respondent Employer to discharge Macias.
The evidence is that Macias was laid off for lack of work . That he was not
later recalled because the Employer did not regard him capable of perform-
ing the newly acquired jobs does not establish that he was initially dis-
charged . Be that as it may, it would seem that if Respondent Union were
bent on disciplining Macias by affecting his employment , it would have
endeavored to have him discharged rather than laid off. While this may not
be conclusive with regard to the motivation of both Respondents, it is a
factor to be considered.
highest-level branch supervisor, albeit with the concur-
rence of Hoffman, the fact that Hoffman was also the chief
union officer at the time does not of-itself establish collu-
sion or complicity between Respondent Employer and Re-
spondent Union, °
It is a "well-established principle that a supervisor's
membership in a labor organization does not, of itself, es-
tablish union responsibility for his actions, even though his
conduct as an employer representative may well satisfy
union objectives." 21 While it may be assumed that the ac-
tions of a chief union officer, who is also a supervisor, are
more readily attributable to the union than those of a rank-
and-file member who is a supervisor, the circumstances
presented here do. not justify a finding that in recom-
mending or concurring in Macias' layoff, Hoffman was
acting in his capacity as union officer.
It is, therefore, found, on the basis of the foregoing and
upon the entire record, that the allegations that Respon-
dent Union caused or attempted to cause Respondent Em-
ployer to discriminate against Macias on some ground
other than his failure to under the periodic dues and initia-
tion fees uniformly required as a condition of membership,
in violation of Section 8(b)(2) and (1)(A), and that Respon-
dent Employer has discriminated in regard to hire or ten-
ure of employment to encourage or discourage member-
ship in Respondent Union in violation of Section 8(a)(3)
and (1) of the Act, have not been sustained by a fair pre-
ponderance of the evidence.
It is, however, found that, by permitting Hoffman, a su-
pervisor, to serve as president of the Union, and by recog-
nizing and dealing with him in the administration of the
collective-bargaining agreement, Respondent has inter-
fered with the administration of Respondent Union.22
"Such a mingling of supervisory and employee-representa-
tive function has denied the Respondent's employees their
rights under the Act to be represented in collective-bar-
gaining matters by individuals who have a single-minded
loyalty to their interest." 23
It is true that the collective-bargaining agreement to
which Respondent Employer is a party had been negotiat-
ed on behalf of the Association by the Employer Council,
and on behalf of the Union, by a special negotiator, and
while Hoffman, together with Union Representative
White, attended three negotiating meetings, their participa-
tion in the negotiations was minimal. Nevertheless, Hoff-
man was a member of the union negotiating committee,
presided at the meeting called for the express purpose of
ratifying the contract, reviewed with the members various
provisions of the contract, and recommended its ratifica-
tion, notwithstanding membership objections regarding his
dual status. Although there is no evidence that Hoffman
20- ... a union cannot be found to have caused employer discrimination
unless, at the very least, the evidence is sufficient to support a reasonable
inference of a union request or a union-employer understanding ." Walter J.
Barnes Electrical Co., Inc., 188 NLRB 183, 186 (1971).
21 Id. 185.
22 Since, according to Respondent Employer, no grievance had ever been
filed by Respondent Union until the Macias controversy arose, there is no
basis for finding that Respondent Employer recognized or dealt with Hoff-
man in the handling of employee grievances.
23 Jeffrey Manufacturing Company. 208 NLRB 75, 83 (1974), citing E.E.E.
Co., Inc.. 171 NLRB 982 (1968).
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had had occasion to deal with Respondent Employer in
administering and handling disputes under the collective-
bargaining agreement , it is reasonable to infer that as the
highest union officer , he had authority to do so and that
Respondent Employer recognized this.
Under all the circumstances , it is hereby found that, by
recognizing Hoffman , a supervisor , as an employee repre-
sentative , with authority to deal with Respondent Employ-
er in administering and handling disputes under the collec-
tive-bargaining agreement, Respondent Employer has
interfered with the administration of Respondent Union,
thereby violating Section 8(a)(2) and (1) of the Act.
The fact that Hoffman may have announced at a union
meeting that if the members disapproved of his acting as a
union officer, they could vote him out of office, or that,
during the course of these proceedings , Respondent Em-
ployer announced that Hoffman had indicated his willing-
ness to resign, and, shortly before the close of the hearing,
announced that , at a union meeting held several days earli-
er, Hoffman was not nominated for office or had declined
to become a candidate , does not affect these conclusions or
render the issue moot.
4. The denial of fair representation by Respondent Union
As has been seen , Macias filed a grievance with Hoff-
man, as president of the Union, on January 23, 1975, pro-
testing his layoff of December 9, 1974, and demanding re-
instatement with backpay . After stating that the grievance
should have been filed with Financial Secretary White,
who was then on vacation , Hoffman reluctantly accepted
the grievance . On January 30, White acknowledged receipt
of the grievance , notified Macias that it was being submit-
ted to the executive board for processing , and that he
would be advised when to appear for hearing. Thereafter,
on March 11, Macias appeared before the local union exec-
utive committee at which his grievance was discussed, but
no action was taken . Although interrogated by some mem-
bers of the committee concerning his qualifications and
work performance , there is no indication that the merits of
the grievance were discussed at this meeting . The commit-
tee took no action on the grievance but deferred the matter
for 30 days . There is no showing whether the executive
committee undertook an investigation to determine wheth-
er the grievance was meritorious.
Instead , on March 17, 1975, Business Representative
White notified Macias that charges against him would be
presented to the District Council on March 19, alleging
violation of its trade rules because of his conduct at the
meeting of the local executive committee and his filing of
unfair labor practice charges against Respondent Union.
On June 18, 1975 , while the hearing in the instant proceed-
ing was in recess, the secretary of the District Council noti-
fied Macias, in writing, that on April 9, the District Coun-
cil executive board had concurred in the recommendation
of the "Trial Board," to postpone the matter for 30 days.24
It is evident from Respondent Union's entire course of
24 Although not specifically alleged in the Union's charges against Maci-
as. it is apparent from Business Representative White's testimony that the
charges were based , in part , at least , on the filing of the unfair labor practice
conduct, including its failure to investigate the merits of
the grievance, to present the grievance to Respondent Em-
ployer, or to take any steps to process the grievance, that
Respondent Union failed in its duty of fair representation
to Macias. The fact that it has been found that Respondent
Employer did not unlawfully discriminate against Macias
does not alter this conclusion. Macias was entitled to have
his grievance fully considered by the Union with a view to
obtaining a determination as to the feasibility of pursuing
the grievance with the Employer. This is not to say that the
Union was obligated to present Macias' grievance irrespec-
tive of whether it reasonably and in good faith believed the
grievance to have any merit. Here, however, the Union
made no effort to investigate or evaluate the merits of the
grievance but summarily postponed action , ostensibly be-
cause of the pendency of the unfair labor practice charge
against it. Moreover, the record fairly establishes that the
principal reason for the Union's failure to process the
grievance was the filing of the unfair labor practice charge
by Macias.
It is, therefore, found that by failing in its duty of fair
representation to Macias, Respondent Union has re-
strained and coerced an employee in the exercise of rights
guaranteed in Section 7, thereby violating Section
8(b)(l)(A) of the Act.25
It is further found, with regard to the intraunion charges
filed against Macias, because he had filed an unfair labor
practice charge against the Union, without first exhausting
the Union's internal procedures under penalty of fine or
other coercive means, that Respondent Union has also re-
strained and coerced an employee in the exercise of rights
guaranteed under Section 7, thereby further violating Sec-
tion 8(b)(I)(A) of the Act 26
5. Respondents' additional defenses
(1) The alleged violation of the "Jencks" rule
During the hearing in these proceedings, in response to
timely requests by counsel for Respondent Employer, the
General Counsel produced statements and pretrial affida-
vits of various witnesses called by him. As to some of these
witnesses , it became apparent that during the pretrial in-
vestigation, the Board agent, who had procured these state-
ments , had used a tape recording device in interviewing the
witnesses. It did not appear whether the interviews were
recorded verbatim or were merely summarized by the
charge against Respondent Union. The charges themselves are too vague,
uncertain , and indefinite to apprise Macias of the violations of which the
Union complained. White. herself, was unable to specify in what respects
Macias had slandered or libeled any of the officers or members of the
Union at the hearing before the executive committee on March 11. More-
over, it is evident from White's letter of January 30. acknowledging receipt
of the grievance , which she characterized as "charges against one of your
co-workers." an obvious reference to Hoffman. that the Union considered
the grievance an accusation against Hoffman. the Union's president.
25
Truck Drivers. Oil Drivers and Filling Station and Platform Workers Lo-
cal No. 705 (Associated Transport. Inc.). 209 NLRB 292 (1974); Pacific Inter-
mountain Express Co., 215 NLRB 588 (1974).
26 Laborers' International Union of North America, Local No. 301 (Arnold
Construction Co.). 201 NLRB 279 (1973); see also International Brotherhood
of Electrical Workers, Local Union No. 34 (Protection Alarms, Inc.). 208
NLRB 639 (1974).
WESTERN EXTERMINATOR CO. 1283
agent . The tapes, however, were later transcribed and the
statements thus produced were submitted to the witnesses,
who verified, approved, and signed the statements. The
statements were subsequently offered and received in evi-
dence. Respondent Employer's counsel thereupon called
on the General Counsel for the production of the original
tape recordings. The General Counsel was unable to pro-
duce such tapes , and later represented that inquiry of the
Board agent involved disclosed that the tapes were no lon-
ger in existence , having presumably been erased, in accor-
dance with the usual Regional Office practice, after the
witnesses ' statements had been transcribed . Respondent
Employer's counsel thereupon moved to strike the testimo-
ny of the witnesses involved, and to dismiss the complaint,
at least as to the 8(a)(3) allegations, on the ground that the
failure to preserve and produce the tape recordings had
resulted in a denial of due process . The motions were de-
nied and, when renewed prior to the close of a hearing,
ruling thereon was reserved . The motions were again re-
newed in Respondent Employer's posttrial brief.
The witnesses who testified concerning their pretrial
statements did not indicate that the interview with the
Board agent was conducted by means of question and an-
swer, recorded verbatim on the dictating device. There is
no doubt, however, that typewritten statements were pre-
pared based on the tapes , and that these statements were
submitted to the witnesses for their inspection and verifica-
tion, and, after opportunity for any necessary corrections,
signed and returned to the Board agent. Doucette, whose
statement was taken in this manner , conceded that the
statement which he signed reflected substantially accurate-
ly the information which he had furnished the Board agent.
There is no reason to question the General Counsel's
representations regarding the nonproduction of the origi-
nal tapes , and it is found that the tape recordings were
erased in good faith, in accordance with the Regional
Office's usual practice, and that the statements furnished
Respondent Employer fairly and accurately reflected the
evidence elicited from the witnesses by the Board agent.
Under these circumstances , the nonexistence of the tapes
does not require that the witnesses' testimony be stricken
or that the complaint be dismissed with regard to the Sec-
tion 8(a)(3) allegations. 27
The ruling on Respondent Employer's motions to strike
and to dismiss the allegations of the complaint , charging
violations of Sections 8(a)(3) and (I), joined in by Respon-
dent Union with regard to the 8(b)(2) and (1)(A) allega-
tions, is hereby reaffirmed and the motions are denied.
27 See U.S. v. Tomaiolo, 317 F.2d 324, 327-328 (C.A. 2. 1963). That case
involved the destruction of notes of government agents concerning inter-
views, after being transcribed and compared with the original notes. The
principle should apply equally to original tape recordings . which are later
transcribed and erased after verification. See also Killian v. U.S.. 368 U.S.
231, 242 ( 1961), where the Court said that if, after the original notes had
served their purpose . "they were destroyed by the agents in good faith in
accord with their normal practice , it would be clear that their destruction
did not constitute an impermissible destruction of evidence nor deprive
petitioner of any right ." See also Dwight -Eubank Rambler , Inc, d/b/a Al
Ortale Rambler v. N. L. R. B., 380 F .2d 141 (C.A. 9, 1967); cf. American Rub-
ber and Plastics Corporation , 200 NLRB 867 (1972).
(2) The deferral issue
At various stages of the hearing, counsel for both Re-
spondents argued that these cases should be deferred to the
grievance and arbitration procedures provided for in the
collective-bargaining agreement. Although Respondent
Union contends that it has at all times been willing to re-
sort to this procedure, there is no showing that such a pro-
posal was made at any time prior to the commencement of
the hearing. Respondent Employer, relying on its letter to
the Regional Office of February 4, referring to the griev-
ance procedure of the collective-bargaining agreement,
complains of Macias' failure to utilize the grievance proce-
dure. By its letter, Respondent Employer contends it indi-
cated its willingness to have recourse to that procedure. At
the hearing, Respondent Employer's counsel stated that
the Collyer principle was applicable, and offered to pro-
ceed to arbitration "if necessary."
The grievance procedure provides for a board of adjust-
ment consisting of three representatives of each of the par-
ties to the agreement. Disputes not settled between the par-
ties are to be submitted to the board, and the decision of a
majority of the board shall be final. If the board is unable
to reach a decision within the time specified, the parties
agree to select a neutral chairman, and to proceed to bind-
ing arbitration. Although Respondent Union's counsel has
asserted that the Union has always been willing to proceed
through the contractual grievance and arbitration proce-
dure, it gave no indication of this prior to the hearing.
Respondent Employer's position, as stated by its counsel at
the hearing, was as follows:
If the Union's processes are such that it would re-
quire us, under the Contract, to go to arbitration, we
are willing.
If the Union's processes are such that there is no
merit to the grievance, and do not require an arbitra-
tion, then, of course, we wouldn't have to.
But the Union processes, and the collective-bargain-
ing processes of the agreement, should be put into ef-
fect.
Such an equivocal offer is insufficient to justify deferral to
arbitration. What is more important, however, is the ob-
vious conflict of interest between the employee and the
Union purporting to represent him.28
Under all the circumstances, these cases are deemed in-
appropriate for deferral to arbitration.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondents set forth in section III,
above, occurring in connection with Respondent
Employer's operations described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
28 N. L . R. B. v. International Longshoremen 's & Warehousemen 's Union &
Local 27, 514 F.2d 481 (C.A. 9. 1975); see also Kansas City Meat Packers,
Division of Aristo Foods, 198 NLRB 543 (1972); Anaconda Wire and Cable
Company. 201 NLRB 839, 843 (1973).
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case , I make the following:
V. THE REMEDY
Having found that Respondent Employer has not violat-
ed Section 8(aX3) and (1), and that Respondent Union has
not violated Section 8(b)(2) of the Act, it will be recom-
mended that those allegations of the complaint be dis-
missed . It has been found , however , that Respondent Em-
ployer has engaged in unfair labor practices within the
meaning of Section 8(a)(2) and ( 1). It will, therefore, be
recommended that Respondent Employer cease and desist
from engaging in said unfair labor practices and take cer-
tain affirmative action designed to effectuate the policies of
the Act. It has also been found that Respondent Union has
engaged in unfair labor practices within the meaning of
Section 8(b)(IXA), by failing in its duty of fair representa-
tion of and by filing intraunion charges against Macias
because he had filed unfair labor practice charges against
Respondent Union . It will , therefore , be recommended
that Respondent Union cease and desist from said unfair
labor practices and take certain affirmative action designed
to effectuate the policies of the Act.29
29 Since the collective-bargaining agreement was negotiated on behalf of
Respondent Employer as a member of a multiemployer group . and there is
no issue of majority status, it will not be recommended that Respondent
Employer be required to withdraw recognition from the Union or cease
giving effect to the collective -bargaining agreement . Jeffrey Manufacturing
Company, 203 NLRB 75 (1974). It has been found that Respondent Employ-
er did not discriminate against Macias. and that Respondent Union did not
cause or attempt to cause Respondent Employer to discriminate against
CONCLUSIONS OF LAW
1. Western Exterminator Company, Respondent Em-
ployer herein , is, and at all times material herein has been,
an employer engaged in commerce and in a business af-
fecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. Industrial Carpenters Union , Local No. 2565, Re-
spondent Union herein , is, and at all times material herein
has been , a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By permitting Charles Hoffman , a supervisor, to serve
as president of the Union , and by recognizing or dealing
with him as a union officer or agent in negotiating or ad-
ministering any collective -bargaining agreement or in han-
dling employee grievances , Respondent Employer has in-
terfered with the administration of the Union in violation
of Section 8(a)(2) and (1) of the Act.
4. By failing and refusing to furnish Michael R. Macias
full and fair representation in the processing of his griev-
ance because of his union activities , and by filing intra-
union charges against said Macias because he had filed
unfair labor practice charges against it with the Board, Re-
spondent Union has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (b)(I)(A) of
the Act.
[Recommended Order omitted from publication.]
him. No affirmative remedy is , therefore . justified with regard to Macias.
Truck Drivers, etc., Local No . 705, etc., 209 NLRB 292. 293 (1974).