Goehring Meat Co.

GOEHRING MEAT COMPANY 405 Goehring Meat Company and Wayne Chalk Butchers Union Local No. 127, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO and Wayne Chalk. Cases 20-CA-5516 and 20-CB-2010 June 16, 1970 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS On March 9, 1970, Trial Examiner Eugene K. Kennedy issued his Decision in the above-entitled proceeding, finding that the Respondents had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision . Thereafter, the General Counsel filed exceptions to the Decision and a sup- porting brief, and the Respondent Union filed a brief in support' of the Trial Examiner's Decision and in answer to the General Counsel's 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 powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are, hereby affirmed. The Board has considered the, Trial Examiner's Decision, the exceptions, the briefs, and the entire record in these cases, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE K. KENNEDY, Trial Examiner: The issue presented in these consolidated cases is whether the conduct of Goehring Meat Company in terminating Wayne Chalk at the request of Respondent Union was a violation of Section 8(a)(3) and (1) of the National Labor Relations Act, herein the Act, on the part of Goehring Meat Company and of Section 8(b)(2) and (1)(A) of the Act on the part of Respondent Union.' From the entire record, including my observation of the demeanor of the witnesses, and after con- sideration of the briefs filed by the General Counsel and the Respondent Union, I make the following: FINDINGS OF FACT 1. THE JURISDICTION OF THE BOARD At all times material herein, Goehring Meat Company, herein Goehring or Respondent Em- ployer, was a California corporation engaged in the preparation and distribution of meat products. Dur- ing the course and conduct of its business opera- tions during the past year, Goehring purchased and received goods and services valued in excess of $50,000 directly from suppliers located outside the State of California. Goehring is, and at all times material has been, an employer engaged in com- merce and in operations affecting commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Butchers Union Local No. 127, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein Respondent Union or Union, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that the complaint herein be, and it hereby is, dismissed. ' The Trial Examiner's findings and conclusions are based, in part, upon credibility determinations , to which the General Counsel has excepted After a careful review of the record, we conclude that the Trial Examiner's credibility findings are not contrary to the clear preponderance of all rele- vant evidence Accordingly, we find no basis for disturbing those findings Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3) A. Background Wayne Chalk, the Charging Party, was an em- ployee of Goehring from February 1968 until March 31, 1969, when he was discharged at the request of the Union allegedly pursuant to the terms of the collective-bargaining agreement in ef- fect between Goehring and the Union. At the time of Chalk's employment he did not choose to belong to the Union but paid dues during 1968, as required by the union-security provision of the collective- ' These cases were heard on October 7, 8, and 9, 1969, in Stockton, California The consolidated complaint was issued on May 29, 1969, the charges in Cases 20-CA-5516 and 20-CB-2010 were both filed on May 8, 1969, by Wayne Chalk, an individual Respondent Union's unopposed mo- Von to correct the transcript is granted 183 NLRB No. 50 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining agreement in effect between the Union and Goehring. The record reflects that Chalk con- ceded he was in arrears in his dues on occasion in 1968 and there are repeated references in the record to a controversy concerning tender of dues to the union business agent by Chalk in June 1968. The regular periodic dues for employees in Chalk's status amounted to $10 a month. These dues are payable on the first of each month and become delinquent on the 10th day of the month following that in which they are payable.' The primary and central issue to be resolved here relates to an alleged tender by Chalk of dues on or about February 10, 1969. Prior to considering the evidence directly relating to that event a peripheral secondary issue will first be briefly noted. The General Counsel presented evidence that the Union had levied an assessment on employees in Chalk's status of a dollar a month extra for the months of January, February, and March 1969. The apparent aim of the General Counsel was to establish Chalk was terminated because of his failure to tender this assessment in addition to the Union's alleged erroneous claim that he did not pay or tender regular periodic dues. The record reflects that about 100 employees covered by the same col- lective-bargaining agreement in addition to Chalk did not pay the assessment at the time when the Union requested it. It became necessary for the Union to send out notices of delinquency to the employees who had not paid the assessments. Many individuals did not make payment until as late as April or May 1969. The Union did not request ter- mination of any employees for late payment in this regard.3 Close scrutiny of the record reveals that Chalk's failure to pay the dollar assessment for the months of January, February, and March 1969 was not a reason the Union requested his discharge. The communication of March 4, 1969, from the Union to Chalk recited that notice was being given that he was in arrears for his "regular periodic dues."' A similar form letter was sent to individuals who were delinquent on their dollar-a-month assess- ments. The record does not indicate any of these individuals were delinquent in their "regular 2 The applicable union-security provision conditions employment on maintenance of "good standing" in the Union The provision here involved is of a type approved by the Board in Keystone Supply, 121 NLRB 885 Respondent Employer offered proof aimed to show this requirement of "good standing" was unlawful because the Union and Respondent Em- ployer in the past had treated this requirement as including obligations to pay fines to the Union thereby requiring more from an employee under a union-security provision than permitted by the Act The Respondent Em- ployer in offering this evidence conceded it would be proving its own illegal action The General Counsel took the position that the legality of the union-security provision was not in issue This offer was initially refused At the end of the hearing the parties were advised that the Trial Examiner had reconsidered this question and con- sidered it appropriate to take evidence on the issue raised by Respondent Employer. Respondent Union appealed and the Board reversed the latter ruling by the Trial Examiner. periodic dues." The record indicates that no one was suspended for failure to pay the assessments. Since Chalk had not paid his "regular periodic dues," it is apparent that this form letter was ap- propriate for his case whereas it may not have been in the case of employees who were delinquent only with respect to the assessment. The letter of March 12, 1969, advising Chalk of his suspension also recited that he was being suspended for failure to pay his "regular periodic dues" for which he was in arrears for January and February 1969. The communication from the Union to Goehring on March 14, 1969, requested Chalk's suspension because of his failure to pay his "regular periodic dues." Chalk conceded that the alleged statement of Union Representative Bohnack discussed below, in more detail, referring to a dollar-a-month assess- ment in the alleged conversation on February 10, 1969, was the only occasion that Bohnack had mentioned the assessment to him, although he also testified that there had been many verbal exchanges between himself and Bohnack about dues pay- ments. The occurrence of the conversation on February 10, 1969, when Chalk claimed he ten- dered dues to Union Business Representative Boh- nack, is in dispute. The findings made below are consistent with the fact that the termination of Chalk was not requested because of his failure to pay the dollar-a-month assessment for January, February, and March 1969. Benjamin Goehring, Respondent Employer's part owner and president, testified that he was informed that Chalk had not paid his dues and had no choice but to terminate him. Goehring did not mention the assessment. In addition, the testimony of Henry Bohnack, the union business representative, is credited to the ef- fect that he would not have terminated Chalk if Chalk had, in fact, tendered the regular periodic dues on or about February 10, 1969. This testimony of Bohnack is consistent with the fact that many other employees had been delinquent considerably more than Chalk in paying the extra assessment and the Union did not request their ter- mination. Accordingly, the question of whether or not Chalk tendered the extra dollar-a-month assess- 9 The attitude of the Goehring employees charged the extra assessment may be gauged from the testimony of Lee Brewer, the individual Goehring delegated to represent him in routine dealings with the Union. Brewer designated his position as "personnel and sales clerk " His duties included representing Goehring concerning matters arising with the Union and deal- ing with the union representative . Brewer testified as follows relative to the dollar-a-month assessment for January, February, and March 1969: We had just gone through an upsetting period where the other em- ployees had been assessed or the dues had been increased a dollar a month, and the plant-a hundred fifty people-were upset because they were charged an additional dollar for those 3 months as an assess- ment And some of them didn't want to pay it, some of them did There was a lot of conversation about it. See attached APPENDIX. GOEHRING MEAT COMPANY ment for January and February is irrelevant, since the Union requested his termination only for his al- leged failure to pay his regular periodic dues of $10 a month, which Chalk claims he tendered for January and February 1969, and which the Union contends he did not so tender.5 B. The Alleged Tender of Dues by Chalk 1. The evidence Chalk claims that on or about February 10, 1969,6 about 11 or 11:30 in the morning, he walked up to Henry Bohnack, the union business represen- tative, and attempted to hand him a $20 bill, stating he wanted to pay his January and February dues. According to Chalk, Bohnack replied: I cannot take the money from you, because you are still not a member of the Union, and besides that, your dues for January, February and March are $11 and we are going to get you. Chalk also testified that an employee named Anthony Malone then came up to him and asked him, "What is the deal?" and Chalk replied, "He won't take my union dues." Chalk further testified that this was the first occa- sion that he had heard that dues for January, February, and March had been increased to $11 from $10.' As corroboration for Chalk's account of an al- leged tender of dues, General Counsel offered Anthony Malone as a witness. Malone had been employed as a mechanic by Goehring from September 1968 to April 1969. During this period mechanics employed by Goehring were not represented by a labor organiza- tion. At the time of his testimony, October 1969, Malone was employed as a shop foreman for another employer. Malone testified that on or about February 15 he was working under a truck and about 9:30 or 10 a.m. he heard some loud talking and heard Chalk say, "Here it is, take it" and then he heard Henry Bohnack reply, "No, I don't want it." This was the extent of the conversation that Malone allegedly heard. When he came out from working under the truck, he testified he saw Bohnack walking away and saw some paper money in Chalk's hand and that he said to Chalk, "Wayne, if you are giving away your money, how about giving me some? At which time, he [Chalk] said nothing and that was it. " As further corroboration of Chalk's version of the alleged tender, the General Counsel asserts in 'The statement attributed to Bohnack in the alleged conversation of February 10 with Chalk is the only evidence that Chalk's discharge may have been keyed to his failure to pay the assessment , along with dues For reasons developed below it was found this conversation did not occur nor did Bohnack make the statement attributed to him 6 On cross-examination , Chalk doubted very seriously whether this al- leged event could have been after February 15 407 his brief that Russell Medina, Chalk's foreman, was present on this occasion. A careful reading of the record at best supports a finding that Medina ob- served Chalk make a tender of dues in June 1968, and at no time in 1969. General Counsel cites two record references to support his contention of Medina's presence on the occasion of the alleged dues tender in 1969. The first deals only with Medina's supervisory status. The second refers to the testimony of Benjamin Goehring, part owner and president of Respondent Employer. Goehring's testimony in no way relates to Medina's presence on the occasion of the alleged tender in February 1969. It is true that, in answer to a leading question by his counsel, Goehring testified that Medina told him of the tender by Chalk in March 1969. The record reflects Goehring delegated the bulk of the responsibility for dealing with the Union to Brewer and was so busy in con- nection with other matters that Brewer would re- port to him during such brief intervals as Goehring could spare from his other responsibilities, and con- sequently depended on Brewer's reports for his knowledge of matters involving the Union. Contra- ry to the General Counsel's interpretation of Goehring's testimony, I find Goehring placed the report of the alleged tender in March 1969 not because he had any knowledge of this date or oc- currence but because he mistakenly thought the question of his counsel suggested this date, or he was inaccurate in recalling what Brewer had re- ported to him. Brewer and Chalk's foreman, Medina, in their testimony, negate any knowledge of a tender by Chalk in any part of 1969, including March. In sum the record does not support the con- tention that any report of an alleged tender by Chalk in February 1969 or in the year 1969 was made to Goehring. Certainly the record does not support the contention of the General Counsel to the effect that Medina witnessed the tender at any time in 1969. Henry Bohnack, the union business representa- tive to whom the alleged tender was made, testified that his records reflected that he was attending a convention from February 9 through 12. He also recalled that he was not at the Goehring plant between February 6, and 18, 1969. Bohnack denied that any tender of dues was made by Chalk in 1969 and in effect denies the testimony of Malone as well as Chalk. Bohnack appeared to be a candid and conscientious witness and his testimony is credited. As noted previously on March 4, 1969, the Union addressed a communication to Chalk advis- ing him that he was in arrears for his regular periodic dues for the months of January and ' Chalk's lack of credibility in this respect and also as beanng on the ceh- tral issue of tender of dues is reflected by Lee Brewer's testimony , credited and uncontradicted in this connection Brewer's testimony made it plain that the subject of the assessment was common knowledge in the plant and there was a lot of "conversation" about it That Chalk would be unaware of the assessment on February 10, 1969, in the context of the events presented here, is plainly incredible 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD February 1969. This communication informed Chalk that he would be suspended unless he paid the regular periodic dues for January and February 1969 by March 12, 1969. Chalk conceded in his testimony that after the al- leged tender to Bohnack, on February 10, 1969, he made no further attempt to contact the Union or any union representatives. He also testified that he made no further attempt to pay his dues although he had paid his dues for November and December 1968 by mailing a check to the Union. He also testified that after receiving the communication of March 4, 1969, advising him that he would be suspended unless he paid the regular periodic dues for January and February 1969, he still made no further effort to pay the dues or to talk to anyone in the Union. On March 12, 1969, the Union advised Chalk in another communication that he had been suspended for failure to pay his regular periodic dues. After receipt of this communication Chalk still did not make any attempt to discuss any problem that may have existed concerning his dues with union officials. On March 14, 1969, the Union sent a letter to Goehring requesting Chalk's discharge under the terms of the union-security provision of the collec- tive-barginging agreement because of Chalk's failure to pay his regular periodic dues. Chalk was shown this letter by his foreman, Russ Medina, on March 15, 1969, and also discussed this with Per- sonnel Clerk Brewer and was given 2 weeks by them to regain his good standing with the Union. Despite this, Chalk still made no effort to discuss the question of dues or his continued employment with the Union.8 When Chalk was shown the letter of the Union requesting his discharge by Medina, he asked to see Brewer. Chalk claims he told Brewer he had tried to tender his dues but they had been rejected. Brewer testified that Chalk had told him he had tried to pay his dues without specifying a time . Brewer acknowledged he didn't know whether Chalk's reference to tender of dues referred to 1968 or 1969. Brewer and Benjamin Goehring and Medina all testified that the reason Chalk was given 2 weeks of employment after March 15 was to regain his good standing with the Union. Nevertheless, Chalk still made no attempt to pay his dues or discuss the problem with any union representative. After Chalk had been notified by Medina and Brewer that the Union had requested his discharge, he did not tell them that Malone had been a witness to the alleged tender although he told them he had made a tender of his dues to Bohnack. Nor during the ensuing 2 weeks when he was still employed at 8 Although the Union 's letter requested Chalk 's discharge without any limitation , Goehring unilaterally gave Chalk 2 weeks to regain his good standing with the Union The Union and Henry Bohnack acquiesced in this action by Goehring This is reflected in Brewer's statement to Union Busi- ness Representative Bohnack that he had given Chalk 2 weeks "to get him- Goehring's did he advise them that Malone had been a witness to the alleged tender. 2. Discussion of evidence relating to alleged tender of dues There is a considerable variance in the versions of Chalk and Malone relating to the conversation between Chalk and Bohnack, the union business representative to whom the alleged tender oc- curred. Malone testified that Chalk did not say what the alleged tender was for. Chalk testified he told Malone, "he won't take my Union dues." Although Malone testified that this conversation between Bohnack and Chalk was conducted in loud voices and that he heard Chalk say, "Here it is, take it" and he heard Bohnack say, "No, I don't want it," he nevertheless did not hear Bohnack make the statements that Chalk attributes to him as follows: "I cannot take the money from you because I heard you are still not a member of the Union and besides that your dues for January, March and February are $11 and we are going to get you." There is nothing in the record to explain why Malone did not hear the alleged statement Chalk attributed to Bohnack if he heard Bohnack say, "No, I don't want it." This adds to the dubiety of the occurrence of the alleged conversation in- asmuch as the portion Chalk claims which Malone allegedly did not hear had reference to dues for January, February, and March 1969, and also con- tained a threat. As previously noted Chalk's credibility in deny- ing that he had previously heard that dues were raised to $11 for the months of January, February, and March is impaired since the record indicates that there was a lot of "conversation" about the matter in the plant and that most of the work force was dissatisfied with the additional assessment of $1 a month. As noted above Henry Bohnack appeared to be a careful and conscientious witness. This is supported by Benjamin Goehring's testimony that he had dealings with Henry Bohnack over the years and felt he would not lie. When Chalk, in the course of his testimony, was asked why, after his alleged tender of February 10, 1969, he made no further effort to pay the dues or discuss the problem with union officials, his ex- planation was that the check had been returned on many occasions when he had attempted to pay his dues by check. Even assuming this were true, he also testified that he had mailed his dues in the form of a check for the months of November and self shaped-up or shipped-out," and Bohnack did not question this deci- sion Further , during the 2-week period after March 15, 1969, Brewer asked Bohnack if Chalk had paid his dues and Bohnack answered that he had not, but did not request Chalk's discharge prior to the expiration of the 2-week period GOEHRING MEAT COMPANY December 1968, and the dues had not been returned for these months. Also, after asserting the return of dues by mail was the reason for his failure to again tender them after February 10, 1969, he failed to cite a single example of this although he was given an opportunity in the course of his testimony to do so. In summary, the reasons for rejecting Chalk's testimony that he made an alleged tender of dues to Henry Bohnack on or about February 10 include the following: 1. He was not candid or credible in asserting that he had not heard of the $1-a-month assessment for January, February, and March 1969 prior to February 10, 1969. 2. His explanation as to his failure to tender dues for January and February by mail is unpersuasive and not credible, particularly since the Union had accepted his payment of dues for November and December 1968. 3. The failure of Malone's testimony to cor- roborate significant aspects of Chalk's version of the alleged conversation between Chalk and Boh- nack on February 10, 1969, is attributed to the fact that the conversation did not occur rather than to a difference in the memory of Chalk and Malone. 4. Chalk's failure to tell Medina or Brewer that Malone was a witness to his alleged tender is a further indication of the lack of reliability to be at- tached to his testimony. He told them he had made the tender and was aware that the retention of his job depended on their believing him. Despite this he did not mention what he claimed at the hearing, namely, that there was a witness who asked him about his offering money to Bohnack in February 1969. If Malone had been a witness as claimed, it seems more than likely that Chalk would have told Medina and Brewer of this as his job depended on their believing him. 5. As a further reason for finding that the alleged conversation by Chalk in which the dues were ten- dered on or about February 10, 1969, did not occur is the credited testimony of Bohnack. Bohnack's demeanor as a witness and his account of his activi- ties, ruling out his presence at the plant when Chalk claimed he was there, was persuasive and credible. Concluding Findings Inasmuch as Chalk had not tendered or paid his regular or periodic dues for the months of January and February 1969, the Union's request for his ter- mination in its letter of March 12, 1969, was ap- propriate action under a lawful collective-bargain- ing agreement. Chalk's termination pursuant to such a request was not a violation of the Act on the part of Respondent Employer or Respondent Union. CONCLUSIONS OF LAW 1. Goehring Meat Company is an employer and the Union is a labor organization within the mean- ing of the Act. 409 2. Goehring Meat Company is an employer en- gaged in commerce and in an operation affecting commerce within the meaning of the Act. 3. Goehring Meat Company has not violated Section 8(a)(3) or (I) of the Act. 4. Respondent Union has not violated Section 8(b)(2) and (1)(A) of the Act. RECOMMENDED ORDER It is recommended that the consolidated com- plaint herein be dismissed in its entirety. APPENDIX AMALGAMATED MEAT CUTTERS & BUTCHER WORKMEN OF NORTH AMERICA, AFL-CIO LOCAL NO. 127 March 4, 1969 TO: Mr. Wayne Chalk Notice is hereby given that you are in arrears for regular periodic dues for the months of January and February, 1969, and the same must be paid on or before fl4arch 10, 1969, or you will automatically become suspended pur- suant to Article VII, Sections 1 and 2 of the Constitution and Bylaws of Amalgamated Meat Cutters and Butcher Workmen of North Amer- ica, AFL-CIO, and Butcher's Union, Local No. 127 which reads as follows: "Section 1. Non-Payment of Dues - Suspen- sion for: Membership dues are payable in ad- vance and those not having paid their dues by the tenth day of the second month shall upon notice stand suspended and shall be deprived of all benefits of the Union for six months after rejoining the Local Union. He shall also be subject to any other action that may be decreed by the International Union and Local Union, after he has been permitted to rejoin the Local Union. Section 2. Rejoining Local Union - Suspended Member's Requirements to: A suspended member wishing to rejoin the organization must reapply for membership in the organiza- tion and must accompany his application with the sum of $75.00 DOLLARS as a reinstate- ment fee." It is sincerely hoped that immediate action will be taken by you to avoid suspension and to maintain the benefits of union membership. Yours fraternally, R. Lautermilch Secretary