General Longshore Workers, Local 1418

8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Longshore Workers, International Long- shoremen's Association, Local 1418, AFL-CIO, (Lykes Bros. Steamship Co., Inc .) and Oliver T. Thornton. Case 15-CB-1131 - January 24, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On October 4, 1971, Trial Examiner Charles W. Schneider issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and briefs in support of exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tionaI Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that the com- plaint be dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE CHARLES W. SCHNEIDER, Trial Examiner: This case was tried before me in New Orleans, Louisiana, on August 19, 1971, on an unfair labor practice charge filed on November 13, 1970, by Oliver T. Thornton, the Charging Party, against General Longshore Workers, International Longshoremen's Association Local 1418, AFL-CIO, the Respondent, and upon a complaint issued on July 14, 1971, by the General Counsel of the Board. The complaint alleged that the Re- spondent had violated Section 8(b)(1)(A) and (2) of the Na- tional Labor Relations Act (29 U. S.C. 158, etseq.) by causing Thornton's employer, Lykes Bros. Steamship Co., Inc., to discharge Thornton and fail and refuse to reinstate him. The Respondent duly filed an answer denying the commission of unfair labor practices. On September 20, 1971, the General Counsel and the Re- spondent filed briefs, which have been considered. Upon the entire record, including my observation of the witnesses I make the following: FINDINGS AND CONCLUSIONS I JURISDICTION Lykes Bros. Steamship Co., Inc., the Company, is a Louisi- ana corporation which received in excess of $50,000 during the preceding representative 12-month period for the ship- ment of goods in interstate and foreign commerce. 195 NLRB No. 9 The Company is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Respondent is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. II THE ALLEGED UNFAIR LABOR PRACTICES Oliver T. Thornton, a member of the Respondent Union for some 9 years and a longshoreman on the New Orleans waterfront, ceased to be employed as a longshoreman about late 1970 under circumstances constituting the alleged unfair labor practices as described hereinafter. In effect at all material times, and governing conditions of employment of Thornton and other longshoremen, was a collective-bargaining agreement between the Respondent Un- ion and the New Orleans Steamship Association covering the employees of affiliated employers engaged in longshore work in the port of New Orleans . This agreement contained the following clause requiring union membership as a condition of employment: Present employees of employers who are now mem- bers of [the] union shall, as a condition of continued employment, maintain their union membership in good standing for the duration of the contract. Lykes Bros. Steamship Co., Inc., an employer, was a member of the Association and a subscriber to the agreement. Thorn- ton was a union member under this contract.' The constitution and rules of order of the International Longshoremen's Association, AFL-CIO (the parent Interna- tional of the Respondent), article XIV, contains the following provisions governing the payment of dues, and suspension or expulsion from membership for nonpayment: Section 5 . Any member who is thirty (30) days or more in arrears in the payment of dues shall be subject to summary suspension from all rights and privileges of membership . Any member three months or more in ar- rears in the payment of dues may be suspended and dropped from the Local without a hearing and without further notice . The non-payment of assessments as and when due shall be a ground for disciplinary action under Article XVIII hereof. Nothing herein shall be construed to limit the right of the I.L.A. or any of its sub-divisions to enforce the provisions of any collective bargaining agreement relating to the non-payment of dues or to take disciplinary action for such non-payment under Article XVIII hereof. Section 6. Any member who has been suspended or expelled for the non-payment of dues or assessments may be reinstated only upon the payment of all monies due at the time of his suspension or expulsion, together with his initiation fee if expelled and such additional indebtedness for dues and assessments as accrued during the period of his expulsion unless otherwise ordered by his Local Union, with the approval of the International Secretary-Treasurer. The constitution and bylaws of the Respondent Local con- tains the following provisions respecting dues obligation and suspension or expulsion for failure to maintain such obliga- tion, and defining "good standing." ' The contract also contained a clause permitting employers to checkoff 6 cents per hour for union dues and remit the same to the union when authorized by the employee. Apparently this checkoff did not completely defray dues obligation , at least in the cases of Thornton and some other employees. GENERAL LONGSHORE WORKERS , LOCAL 1418 9 ARTICLE 7 Section 1 . When a member owes a sum equal to three (3) months' dues, he is immediately suspended, provided due notice is given. Section 2. Any member failing to have his new work- ing card by the morning of the 16th the first month of each quarter, will not be allowed to work. s * s s s Section 3. A member in good standing is one who has not resigned or who is not under suspension or expelled, and who has complied with all the requirements of the Constitution and By-Laws of the association, and against whom no charges are pending. Any member not paid up for the current quarter in dues and assessments is in bad standing. Should charges be preferred against a member, if not found guilty, such charges shall not thereafter affect the good standing of such member. All members of this association shall pay dues in an amount determined and ratified by the membership in accord- ance with the Reporting and Disclosure Act of 1959, per quarter, in advance. Longshore hiring on the New Orleans waterfront is by daily shapeup held at a hiring facility operated by the Steam- ship Association. The hiring is done by supervisors of the companies. A union representative or delegate is present dur- ing the shape. For a number of years prior to the involved controversy the Respondent had permitted employees , including Thornton, to be delinquent in dues for long periods of time without suspending or expelling them from membership, and without seeking to cause their permanent discharge under the collec- tive-bargaining agreement with the Steamship Association. From time to time over the years union representatives spoke to Thornton and other habitually delinquent members about their back dues and told them that they could be "knocked off" the job because of their delinquency. There is dispute as to whether they were warned of other possible discipline, such as suspension from membership, or payment of a reinstatement fee.' "Knocking-off" is a practice on the New Orleans water- front under which union members in good standing who have not been able to secure employment at the shapeup, can request the union delegate to check the dues status of the men who have been hired. Union members among the hirees who are delinquent in their dues may then be displaced in suffi- cient number to provide employment for the challenging members. The displacement is for the duration of the particular em- ployment, be it a shift or days.' The delinquent member has been allowed to shape for other jobs and, if hired, to work at them, unless again knocked off. The legality of this practice is not attacked. ' Thus the testimony of Peter Klaus, a longshoreman and a witness for the General Counsel Mr Chittenden [President of Respondent Local] always told me that I should keep my dues up Q Did he tell you anything else9 A Chance of being knocked off. Q Anything else? A No While Thornton denied that any union official ever spoke to him about dues payment, I credit the opposing testimony. ' Normally longshore employment is until the particular ship has been loaded or unloaded , which may require one or more shifts. Each quarter of the year the Respondent transmits to the Steamship Association a listing containing the names and badge numbers of members of Respondent who are not in good standing because of dues delinquency . However, there is no evidence in this record , unless it be in the incident involving Thornton, as described hereinafter, that the Re- spondent ever requested the permanent discharge of an em- ployee for dues delinquency. On a number of occasions during his employment Thorn- ton had been knocked off the job when, being delinquent in his dues, his hiring was challenged by a union member in good standing. In December of each year the longshoremen receive their vacation checks, which are distributed at the union hail. At such time Thornton and other dues delinquents would cus- tomarily pay their accumulated dues and bring themselves into good standing. In 1967 the Respondent ceased to impose fines for dues delinquency . Since that time, up to the present controversy, no penalty other than knocking off was imposed for such delinquency. On December 17, 1969, Thornton, as usual, received his vacation check and paid his union dues, being in arrears for the last 2 or 3 (the record is not clear which) quarters of the year 1969. There is dispute, unnecessary to resolve, as to whether on this particular occasion Thornton was told by Union President Chittenden that in the future no delinquency would be tolerated and that delinquent members would there- after be required to pay the current reinstatement or initiation fee of $500 as a condition of reacquiring good standing in the Union. Whatever the fact as to what Thornton was told in December 1969, he paid no dues during 1970, though con- tinuing to be employed. The incident which led to the present complaint occurred in late 1970. On November 3, 1970, after being hired at the shape, Thornton was knocked-off the job when a union member in good standing who had not been hired asked for a dues check. On this occasion Thornton somehow lost his picture card in the process. At the time of the knock off, Thornton was not present in the hiring area, having already left to go to the ship. The picture card is an identification card issued by the Steamship Association; it contains a photograph of the par- ticular longshoreman and a notation as to his hiring status. When hiring a longshoreman at the shapeup, the foreman takes his card, later returning it to the employee at the end of the shift or at the end of the job. On this particular occasion Thornton's card, which had been taken by the foreman when Thornton was hired, was not returned to him. There is some confusion in the testimony, of no evident significance, as to how and why this came about, but the card apparently was returned to the Steamship Association by a union delegate, Wilfred Logrie, who was present at the time Thornton was knocked off.4 Several days after being advised by Schulte that he had been knocked-off the job Thornton went to see Respondent Union President Chittenden and asked him if there was any- thing that Chittenden could do about getting Thornton's pic- ture card back. According to Thornton, Chittenden told him that there was nothing he could do, and that it would cost Thornton $500 to get back into the Union. Chittenden's tes- timony is that on this occasion Thornton asked where his ' The record does not disclose what procedure is ordinarily followed with respect to the handling of a picture card when an individual is not present when being knocked off-whether the card is returned to him or is turned into the Association , and as to who does it, the foreman or the union delegate. Hence it cannot be said that the procedure followed here was unusual. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD picture card was, and that Chittenden replied that the picture card was at the office of the Steamship Association, and that Thornton then turned around and walked out. I do not find the differences in the testimony to be of any substantial sig- nificance. Several weeks later, about November 18, 1970, Norris Plai- sance, a longshoreman and a casual foreman, accompanied Thornton to the Steamship Association's hiring center and made inquiries of the individual in charge (not otherwise identified), as to Thornton's card. Plaisance testified that after consulting the files, this individual indicated that the card was in the possession of the Association, for what reason he did not know, adding that "most probably ... it's non-payment of dues." There is no indication that Plaisance or Thornton requested the return of the card. There is also no suggestion in the testimony of Thornton, of Plaisance, nor Chittenden that Thornton offered to pay his delinquent dues on either of these occasions in November. According to Thornton, about a month later, about December 22, 1970, when Thornton received his vacation check he attempted to pay his dues but was told by President Chittenden that he "had to pay $500." This apparently was the extent of the conversation. Chittenden's testimony is that the last time he saw Thornton was on the occasion in early November when Thornton asked Chittenden about his pic- ture card. I find it unnecessary to resolve the conflict. The record does not disclose whether Thornton sought or secured any longshore work on the docks between November 3, 1970, the date he was knocked off, and December 22, 1970. His testimony is that he worked several days in late Decem- ber, about the 22nd and the 23rd, and on an unspecified date thereafter. He further testified that "since" that time he has gone to the Steamship Association hiring hall about twice a week but has had no employment. What period of time that covers is not clear. The evidence does not disclose the reason he was not hired. Thornton's testimony does not contain any explanation as to why he was delinquent in his dues in 1970. Contentions As elucidated by the General Counsel at the hearing and in his brief the complaint alleges that Thornton was dis- charged on November 3, 1970, at the demand of the Re- spondent Local Union because of nonpayment of union dues. It is contended that article VII, section 1 of the Local's consti- tution and bylaws requires that a union member delinquent in his dues be given due notice of his suspension, but that Thornton was not given such notice. Further the General Counsel contends that Thornton was not properly advised of his financial obligations to the union and the probable conse- quences of his failure to meet them. More specifically the General Counsel asserts that, after having tolerated Thorn- ton's dues delinquencies for several years and having imposed no penalties greater than knocking him off and fining him $2 for each quarter of delinquency, the Respondent deprived him of union membership, and without prior notice imposed on him a requirement that delinquent members pay a fee in the amount of $500 as a condition of reinstatement to good standing in the Union. This imposition without warning, it is the General Counsel's view, was a violation of the fiduciary obligation owed by the Respondent to Thornton. By tolerat- ing his former delinquency, it is said, the Respondent "might reasonably have caused" uncertainty in Thornton as to the effect on his job of continued dues delinquency, and "could have" lulled him into a sense of security from which the Respondent could not equitably dislodge him without prior notice. No contention is made that the Respondent proceeded against Thornton because of union or concerted activities or out of motives of union dissidence . Nor is it asserted that it singled out Thornton or applied to him a rule not applicable to all members similarly delinquent. So far as appears the requirement was uniformly applied. It is not contended that the amount of the fee required was excessive, or that it would not be properly applicable had Thornton received prior no- tice of his vulnerability to its imposition. Neither is the knocking-off procedure attacked as illegal ; I therefore assume the uniform application of the rule, and the legality of the amount of the fee and of the knocking-off procedure. The Respondent contends (1) that no prior notice of sus- pension is required by its constitution or laws, (2) that in any event such notice was given to Thornton here, (3) that Thorn- ton was continuously warned of his dues obligation, and (4) that on two occasions in December 1969-on December 11 and December 17-when Union President Chittenden ac- cepted Thornton's payment of delinquent 1969 dues, Chitten- den specifically warned Thornton that if he continued to be delinquent in dues payments, he would be dropped from the Union and have to pay a $500 reinstatement fee. As I view it, the case resolves itself into three possible issues: (1) Did the Respondent improperly cause Thornton to be discharged because of his union status?, (2) before it could validly require Thornton to pay the reinstatement fee was the Respondent required to warn him that continued delin- quency in his dues payments could or would subject him to payment of the fee as a condition of regaining good standing in the union?, (3) was he so warned? I find the answer to the first two questions to be in the negative. I do not find it necessary to resolve the third. 1. The collective-bargaining contract between the Respond- ent and the Steamship Association requires membership in the Respondent Local in "good standing" as a condition of employment. Section 3 of article VII of the Respondent Lo- cal's constitution specifically provides, inter alia, that "Any member not paid up for the current quarter in dues and assessments is in bad standing." The section further, in part, defines a member in good standing as one who " ... is not under suspension or expelled, and who has complied with all the requirements of the Constitution and By-Laws ... " Since the constitution provides for suspension or expulsion of mem- bers owing 3 months' dues, such members are not in compli- ance with the requirements of the constitution. On November 3, 1970, at the time he was knocked off the job, Thornton had not paid any union dues for the year 1970. He was therefore not in good standing and was liable to discharge under the collective-bargaining contract . Thornton thus validly lost his employment on November 3. If that constituted a discharge, it was a proper one. Nevertheless, I find no substantial evidence that Thornton was thereafter deprived of employment by reason of any action of the Re- spondent. In view of this finding it is immaterial what action the Respondent may subsequently have taken in conditioning Thornton's reinstatement to good standing in the union. For even if the Respondent dealt unfairly with Thornton in condi- tioning his reinstatement, that action is not per se an unfair labor practice under the National Labor Relations Act. To establish the unfair labor practice it must be found that the Respondent caused or attempted to cause a loss or impair- ment of Thornton's employment, or interfered with Thorn- ton's rights guaranteed under Section 7 of the Act. Here I find no such evidence. GENERAL LONGSHORE WORKERS , LOCAL 1418 As has been seen, Thornton was validly knocked off on November 3 . His picture card which is issued by and is the property of the Steamship Association , and not the Respond- ent, was apparently returned to the Association by Union Delegate Logrie, Thornton not being present at the time he was knocked-off. Several days later Thornton, according to his testimony, asked President Chittenden if there was any- thing Chittenden could do about getting Thornton's card back and Chittenden replied that there was nothing he could do. According to Chittenden Thornton merely asked where his picture card was and was told that it was at the office of the Steamship Association . While I have not found the differ- ences in testimony to be of any substantial significance, Thornton's subsequent actions suggest that Chittenden's may be the more likely version, since a few days later, accom- panied by Plaisance, Thornton appeared at the office of the Steamship Association and made inquiries about his card. Thus at least from that date, if not before, Thornton was informed that his card was in the possession of the Associa- tion. There is no evidence or testimony indicating that Thorn- ton ever asked the Association for the return of the card. In the light of these facts I find no ground to infer or to conclude that the Respondent retained or sought to induce the Association to retain Thornton 's picture card. In any event Thornton apparently found the absence of the picture card and his absence of good standing in the Respond- ent no obstacle to employment on the waterfront . As we have seen, he worked several days in December 1970 and perhaps later. This was after Thornton supposedly attempted , for the first time, to pay his 1970 dues, and was told by Chittenden that he "had to pay $500." Why Thornton did not work during the other periods in November , December, or there- after, is not disclosed. While Thornton testified that he had "since" gone to the Steamship Association's hiring hall about twice a week but had secured no employment, no reason is ascribed in or is apparent from the evidence for his failure to be hired. In these circumstances I find no inference warranted that Thornton was refused employment because he did not have a picture card or because of any action taken by the Respondent. For all that the evidence shows to the contrary , if Thornton had requested the Association to return his picture card it might have been returned to him . Hence it cannot be said that the Respondent caused the Company to deprive Thornton of his card, or that the Respondent's insistence on a $500 pay- ment for reinstatement caused him to lose employment or employment status. These reasons suffice for dismissal of the complaint. How- ever, because of its importance to the General Counsel's case, it seems advisable that the issue as to the extent of the Re- spondent's fiduciary obligation to Thornton be discussed. II. A union owes a fiduciary duty to an employee covered by a union secunty bargaining agreement to deal fairly with him and to apprise the employee of his financial obligations to the union in order that he can take whatever action is necessary to protect his job tenure. Rocket and Guided Missile Lodge 946 IAM (Aero Jet Corporation), 186 NLRB No. 77; N. L. R. B. v. Hotel Employees Local 568 (Philadelphia Shera- tion Corp.), 320 F.2d 254 (C.A. 3, 1963), enfg. 136 NLRB 1088. Thornton was aware of his dues obligations. He knew, and had been warned of, his liability to loss of employment for dues delinquency; in fact he had experienced it. The Respond- ent fully advised Thornton of what was required to maintain his good standing in the Respondent and his eligibility for continuance in his employment . The Respondent thus com- 11 plied with its fiduciary duty to Thornton. With knowledge of his obligations, and with warning of possible adverse affects upon his employment if he continued to avoid those obliga- tions, Thornton nevertheless permitted his good standing to lapse, perhaps on the assumption that, as in the past, he would be able to regain it at any time he chose , simply by paying what he owed. If he did, he assumed the risk that his assumption was valid . Nothing in the union's laws justified it. Having chosen to ignore his own union duties Thornton is scarcely in a position to claim inequity in the union's refusal to readmit him to good standing on his terms , or to call upon the Board to rescue him from the consequences of his own deliberate conduct . Thornton having lost his good standing, the Respondent was not required to restore it except on its terms, at least so long as it did not thereafter use Thornton's lack of union membership or good standing to affect his employment. As has been seen, there is no evidence that it did so here.' That the Respondent may not , as the General Coun- sel contends, have specifically warned Thornton that pay- ment of a reinstatement fee of $500 was among the penalties it might impose upon him in the future if he persisted in his delinquency, I do not find material . Where a union member is aware of his dues obligations and is warned by the union that continued persistence in not meeting them may result in loss of employment, the union is not precluded from institut- ing other internal disciplinary measures as well, such as refus- ing him reinstatement in the union. I do not believe that in warning an employee of the consequences of dues delin- quency a union is required to specify the entire catalogue of disciplines available and of their possible imposition. It is enough that the member is advised that the delinquency may affect his employment. I do not deem it controlling that on prior occasions the Respondent had not imposed on Thornton the type of disci- pline it imposed in 1970. I do not believe it sound policy to declare a rule of law which would have the effect of requiring a union to visit the full measure of available penalties on infractions of union regulations , on pain of forfeiting the right to impose any omitted discipline in the future. In my view, the Act ought not to be construed to discourage tolerant administration of union rules. But neither should a union be disadvantaged because at a particular time it might have chosen a lenient rather than a harsh course, at least unless its actions mislead union membership to their detriment. The evidence will not sustain a conclusion that the Re- spondent's forebearance misled Thornton and thus caused him to withhold his dues to his prejudice. There is no tes- timony by Thornton, or any other evidence, to the effect that Thornton did not pay his 1970 dues in reliance on the Re- spondent's previous leniency. It thus cannot be said that he was lulled into a sense of security and therefore refrained from paying dues. It is not enough, as the General Counsel contends, that the Respondent's conduct " might reasonably have caused" uncertainty in Thornton as to the effect of continued delinquency, or "could have" lulled him into a sense of secunty . Equally it might not have . For all that appears in the evidence, Thornton may have withheld his ' I do not decide what the result would have been if the evidence estab- lished that, while continuing to deny Thornton good standing in the union, the Respondent had sought to prevent Association employers from giving him employment during the term of the collective -bargaining contract Thornton had in effect been validly discharged Whether he had a right to insist upon reemployment immediately thereafter as a new employee, and being no longer a union member not subject to the union security require- ments of the contract , are questions not presented by the facts or the conten- tions Cf International Association of Heat and Frost Workers, Local No. 5 (Insulation Specialties Corp), 191 NLRB No. 38, Standard Brands, Inc., 97 NLRB 737 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1970 dues because he was determined not to pay them unless he was ,compelled to. I am not constrained to find a reliance which Thornton did not see fit to assert. In the light of these findings I conclude that the allegations of the Complaint are not sustained and I shall recommend that it be dismissed. I do not find it necessary to dispose of other issues or allegations raised. Upon the basis of the foregoing findings of fact and conten- tions, and the entire record in the case, I make the following: CONCLUSION OF LAW It has not been proven that the Respondent Union Local 1418 caused or attempted to cause Lykes Bros. Steamship Co., Inc., to discharge and refuse to reinstate Oliver T. Thornton in violation of Section 8(b)(2) or Section 8(b)(1)(A) of the Act. I therefore issue the following recommended ORDER6 The complaint is dismissed in its entirety. s In the event no exceptions are filed as provided in Section 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall , as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes.