Local Union No. 1959, Carpenters

508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 1959 , United Brotherhood of Car- penters and Joiners of America (Aurora Modular Industries and Jerry D. Turnbough. Case 21-CB- 4814-4 April 24, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On March 26, 1974, Administrative Law Judge Da- vid E. Davis issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed 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 brief and has decided to affirm the rulings, findings, and conclu- sions of the Administrative Law Judge, as modified herein, and to adopt his recommended Order. The Administrative Law Judge, discrediting Charg- ing Party Turnbough, found that Summers, financial secretary-and business agent of the Local, did not con- dition the acceptance of Turnbough's dues on the pay- ment of the fine assessed him by the District Council, the Respondent in Case 21-CB-4878. He further found that the Respondent Local played no part in the initia- tion of the charges against Turnbough and that, if there is any liability for fining Turnbough, redress must be sought against a party other than the Respondent Lo- cal. He concluded that the General Counsel failed by a preponderance of the evidence to prove that Re- spondent Local fined Turnbough in violation of Section 8(b)(1)(B) and dismissed the complaint in its entirety. We agree that the complaint should be dismissed in its entirety. In so doing, however, we do not rely on the reasons set forth by the Administrative Law Judge. The Local and the Company were parties to a collec- tive-bargaining agreement. On July 23, 1973, the Local went on a strike against the company which lasted until July 26, 1973. During the strike Turnbough, a supervisor and union member, crossed the picket line. On November 19, 1973, Turnbough was fined by the District Council for causing dissenion among the union members, working behind a picket line, and -violating the obligation. Prior to the strike, Turnbough acted as a supervisor only. He did no production work and did not bring his 1 The General Counsel also excepted to the Administrative Law Judge's denial of his motion to consolidate this case with Case 21-CB-4878 and reopen the record to take additional evidence. In view of our disposition herein, we find the General Counsel's exceptions without merit tools to work. However, during the strike Turnbough not only carried his tools to work but did rank-and-file production work. Turnbough admitted that during the strike he did 50-percent rank-and-file production work and 50-percent supervisory work. In Hammond Publishers, Inc.,' the Board recently decided, in light of the Court's decision in Florida Power and Light v. I.B.E. W. Local 641,3 that a union violates 8(b)(1)(B) of the Act where it disciplines super- visor-members who perform substantially supervisory functions and only a minimal amount of rank-and-file struck work during a strike. Application of that ra- tionale to the facts herein requires the complaint be dismissed because Turnbough performed substantially more than a minimal amount of rank-and-file struck work during the Strike.' 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 Administrative Law Judge and hereby orders that the complaint be dismissed in its entirety. MEMBER FANNING, concurring: I concur only in the result. I do not agree with my colleagues' rationale in reaching that result to the ex- tent it implies a different result would be reached had Turnbough performed "substantially only supervisory functions.s5 2 Chicago Typographical Union No 16 (Hammond Publishers, Inc.), 216 NLRB No. 149 (1975) (Member Fanning dissenting). 3 417 U S 790 (1974). 4 See also New York Typographical Union No. 6, International Typo- graphical Union AFL-CIO (Daily Racing Form, a subsidiary of Triangle Publications, Inc.), 216 NLRB No 147 (1974) (Member Fanning dissent- ing) See Bakery & Confectionery Workers International Union ofAmenca, Local Unions 24 and 119 (Food Employers Council, Inc.), 216 NLRB No 150 (1975). 5 See my dissent in Hammond Publishers, Inc., supra, and my concurnng opinion in Food Employers Council Inc, supra. DECISION STATEMENT OF THE CASE DAVID E. DAVIS, Administrative Law Judge: This case was heard by me on February 26, 1974, in Riverside, California, pursuant to a charge filed on December 28, 1973,' by an individual, Jerry D. Turnbough, against Local Union No. 1959, United Brotherhood of Carpenters and Joiners of America, herein sometimes called the Union, Respondent, or Respondent Union, and a complaint issued on January 24, 1974, alleging that Respondent Union filed or caused to be filed "intraunion" charges against Turnbough because he crossed the Union's picket line on or about July 23 while a strike was in progress at the premises of Aurora Modular Industries, herein referred to as the Employer, Company or I Hereafter all dates will refer to 1973 unless otherwise specified 217 NLRB No. 82 LOCAL UNION NO. 1959, CARPENTERS 509 Modular; that in or about November, Respondent Union imposed a fine in the amount of $100 against Turnbough for having crossed the aforesaid picket line; and that on or about December 14, Respondent demanded that Modular termi- nate its employment of Turnbough because of his failure to pay the fine. At the hearing, General Counsel moved to amend the complaint in paragraph 9 as follows: In or about July 1973, the Respondent caused to be filed, and did file, with District Council of Carpenters for San Bernardino and Riverside Counties, intraunion charges against Turnbough for having crossed Respon- dent's picket line described in paragraph 7 above, and related activities. III THE ALLEGED UNFAIR LABOR PRACTICES A. Stipulations It was stipulated at the outset of the hearing that the Union and Company were parties to a labor agreement in effect at all times material herein and that the Respondent Union commenced a strike against the Company on July 23 which lasted through July 26. It was further stipulated that Turnbough was a supervisor within the meaning of the Act and that he participated in the adjustment of grievances. B. The Evidence The General Counsel moved to amend paragraph 10 as follows: In or about November 1973, District Council of Car- penters for San Bernardino and Riverside Counties im- posed a fine pursuant to Respondent's charge and on behalf of Respondent against Turnbough for having crossed Respondent's aforesaid picket line and related activities. The amendments were allowed over the objections of coun- sel for Respondent Union. Respondent in its answer, while admitting certain allega- tions of the complaint, denied that it had engaged in any unfair labor practices. Upon the entire record,' my observation of the witnesses, and upon consideration of the brief filed by the General Counsel, I make the following: FINDINGS OF FACT I THE BUSINESS OF THE COMPANY Aurora Modular Industries, the Employer involved herein, is a corporation with its principal place of business located in Riverside, California, where it is engaged in the business of constructing modular buildings. In the conduct of its busi- ness, the Company annually sells and ships products valued in excess of $50,000 directly to customers located outside the State of California. It is admitted and I find that the Com- pany is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I further find that it would effectuate the policies of the Act to assert jurisdiction herein. II THE UNION INVOLVED It its alleged, admitted, and I find that Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 2 The transcript is corrected at p 112,1 14, by striking "General Counsel" and substituting "Respondent Union's counsel." Turnbough testified that prior to his promotion to supervi- sory status sometime in 1972, he was acting as the Union's shop steward. Shortly after he became a supervisor he had a conversation with Thomas W. Summers, financial secretary and business agent of the Union, in which it was agreed that Turnbough would no longer be the Union's shop steward. Nevertheless, Turnbough continued to be a member of the Union. On July 23 and on the following days while Respond- ent was carrying on its strike against the Company, Turn- bough crossed the picket line. The evidence shows that prior to the strike Tumbough did very little production work and that during the period of the strike Turnbough spent 50 per- cent of his time in production work. Turnbough credibly testified that various employees and Fred Phillips, the union steward, who was picketing the Company's premises, told Turnbough on several occasions while Turnbough was work- ing near the plant gate that he would be fined for working behind the picket line. The fine was mentioned ,as $300 per day, $200 per day, and finally a total fine of $500. Turnbough testified that they were "kidding" him about being fined. When questioned further he asserted, "Well, I didn't know whether it was serious or not. I wasn't paying attention to it." About July 28, 1974, Turnbough received a communi- cation3 dated July 27,1974, which read as follows: Dear Sir and Brother: This is to officially notify you to be present at the meeting of the Executive Committee of this District Council to beheld on August 1, 1973, 7:30 P.M. at 1211 Mt. Vernon Avenue, Colton, California, in regard to charges that have been preferred against you by Brother Thomas W. Summers, Local 1959. At this time, you will be given an opportunity to show cause why these charges should not be processed. It is imperative that you be present. Accompanying the foregoing was a copy of the charge filed4 which reads as follows: 3 G.C. Exh 2 4 G.C Exh 3. 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CARPENTERS LOCAL NO. 1959 July 26, 1973 VERN C. RIPPETOE, Secretary 1211 N. Mt. Vernon Ave., Colton, Calif. San Bernardino & Riverside Counties District Council of Carpenters Dear Sir and Brother: I, the undersigned, wish to prefer charges against the following Brother: Jerry Doyle Turnbough, 10021 Bloomington Ave., Bloomington 92316, Member of Lo- cal No. 1959, for violation of. Sec. 55-Al, 10, & 13 of the Constitution & Laws of the United Brotherhood of Car- penters & Joiners of America; also Article II, Section 6 of the San Bernardino-Riverside Counties District of Carpenters. Specifically: Sec. 55-Al, Causing Dissension among the members of the United Brotherhood. Sec. 55-A10, Working behind a picket line. Sec. 55-A13, Violating the Obligation. Art. II, Sec. 6, Working behind a picket line. This offense occurred on July 23, 24, 25, 26, 1973 at the Aurora Modular Industries job located at 16831 Krameria Avenue, Riverside. Fraternally yours, /s/ Thomas W. Summers, Member Local Union 1959 Please notify the following witnesses: Fred R. Phillips, 3843 Overland Street,Ri rsi 92503 20340 Walnut, Perris, 92370 It should be mentioned that General Counsel's Exhibit 3 is a District Council form containing blank spaces. _ Subsequently, Turnbough was requested to appear before a trial committee of the District Council, convicted, and 'fined. On December 14, the Company was officially advised by the Union that Turnbough was failing to comply with article IV of the contract and therefore his discharge was requested unless adjusted by December 21.5 Turnbough testified that he appeared before the District Council's executive board on August 1, as directed in General Counsel's Exhibit 2; that he was asked why he crossed the picket line; that he replied that the Company was having financial troubles and he didn't wish to walk out and have them go broke;' that thereafter he received General Coun- sel's Exhibit 4 which requested his presence on September 25 at a meeting of the trial committee of the council; that he appeared as directed and was present; that he heard the charges against him and the trial board selected; that there- after he received a letter' to go to trial but when he showed up, the trial board was not present, that he was told he would be notified, further but received no further notice; that he took a week's vacation in November; that when he returned he was informed the trial was held in his absence; that he then took 2 more weeks' vacation the first part of December; that Jerry Bashaw, the plant superintendent, called him into his office on December 16, and showed him General Counsel's Exhibit 5;8 that Bashaw said that he was obliged to enforce the pro- visions of the labor agreement; that he then called Summers on the telephone saying that he wished to pay his dues; that "they" said "they" would not accept his dues unless he paid a $100 fine from the District; that he later went to Summers' office, paid the $100 fine under protest, and paid his dues which were accepted.' On cross-examination, Turnbough denied that he had been notified at any time prior to December 14 that he was delin- quent in his dues and subject to discharge.1° With regard to his conversation with Summers, Turnbough testified on cross-examination as follows: A. Well, I got back from vacation on the 16th, and the dues I had to the 15th, I phoned Tom Summers, like I say, and tried to pay the dues,, and he said they would not accept them unless I paid a $100 fine. Q. He told you they wouldn't accept them unless A. They said there is a $100 fine sitting on the desk. Q. Wasn't he just informing you about the $100 fine? A. What? Q. He was just telling you about it, right? A. He told me he would not accept my dues unless I paid a $100 fine from the District Council he had. Q. Do you remember what he said to you precisely? A. I told him I was going to pay my dues. He said it won't do any good. I won't accept them. Q. Then you inquired why? A. Yes. He had a $100 fine on me from the District Council he said before he could accept dues. I said are you refusing them. He said no. I said what are you doing if you won't accept them. Thomas W. Summers, called as a witness by Respondent Union, testified that he was the financial secretary and busi- ness representative of the Union since July 1967; that he filed the charges against Turnbough; that he filed the charge as an individual, saying: Any Brotherhood member or any member of the United Brotherhood of Carpenters and Joiners of America has the obligation and also the legal aspects of signing and filing a set of charges against another brother when they see that brother doing something wrong. In this case brother Turnbough crossed a picket line, worked behind picket line, so as a brother Carpenter I preferred charges. Summers further testified that in signing charges, the charging party must disclose of which local he is a member; that he, therefore, identified himself as d member of Local 5 G C. Exh 5. 6 Resp. Exh 1, the minutes of the executive board, show that Turnbough pleaded guilty of working behind a picket line and not guilty to other charges. 7 Probably Resp Exh 2 B The letter requesting Turnbough's termination unless he fulfilled the requirements of art IV of the agreement on or before December 21 9 Receipts for the payments were introduced as G C Exhs 6(a) and 6(b) 10 Resp. Exhs, 5(A), (B), (C), and (D) clearly indicate otherwise. LOCAL UNION NO. 1959, CARPENTERS 511 No. 1959; that charges must be filed with the District Council that has jurisdiction; that the Local, as such, is not involved in any way; that all communications concerning the Turn- bough charges were mailed by and under the'authority of the District Council; that neither he nor the Local had anything to do with the trial or disposition except that he was a witness; that he had also included Phillips' name as a witness and both had received notices so that they would appear; that no one from Local 1959 was on the trial committee that heard the charges against Turnbough; that Turnbough's trial was origi- nally scheduled for September 25 but was postponed to Octo- ber 17; that the minutes for October 1711 do not indicate whether Turnbough was present; that the District Council sent to the Local Respondent's Exhibit 4 with a copy to Turnbough on November 19; that it reads as follows: November 19, 1973 Thomas W. Summers, Financial Secretary Carpenters Local 1959 22404 Barton Road Colton, California 92324 Dear Sir and Brother: Your member, Jerry Doyle Turnbough, was cited before the Trial Committee of this District Council on October 17, 1973, for violation of Sec. 55-Al, 10 & 13 of the Constitution, and Article II, Sec. 6 of the District Council By-Laws. The Trial Committee found him guilty as charged and imposed a fine of $50.00 on each violation, in the total amount of $200.00, of which $100.00 is to be held in abeyance if there is no further violation within one year. The total fine now due is $100.00. Will you please collect the above fine of $100.00, and forward -to this District Council in accordance with Sec- tion 450 of the General Constitution. Fraternally, CHARLES G. LOVE Executive Secretary CC: Jerry Doyle Turnbough 10021 Bloommgon Ave., Bloomington, Calif. Summers, continuing his testimony, said that Respon- dent's Exhibit 4 was sent to him because he was the financial secretary of the Union; and that it was his obligation to collect all money under the International Constitution which in section 5, paragraph 0, reads as follows: All fines imposed and assessments legally levied by any local union or district council on a member of an outside district shall be charged and collected from the member by the local union, forwarded to the district council or local union where violation of rules occurred under pen- alty of suspension. 11 Resp. Exh 3. Summers further testified that when he collected the fine he transmitted it to the District Council; that he sent General Counsel's Exhibit 5 to Modular because Turnbough had not paid his dues for December; that dues were payable in ad- vance; that-he customarily sent a letter within 2 weeks to those who had not paid; that on December 17 Turnbough came in saying that he had not paid his dues because he had just returned from a vacation; that he did not remember receiving a telephone call from Turnbough prior to Turn- bough's arrival in the office; that in his conversation with Turnbough he reminded him that there was -a $100 fine im- posed on him by the District Council, that if he didn't pay it by a certain time he would be suspended as the general constitution provides; that he did not condition the accept- ance of Turnbough's dues upon the payment of the fine; that although he did not remember having a telephone call with Turnbough, nevertheless, if there was such a call he would not have told him that he would not accept his dues uless he paid the fine; that he made no such statement at any time; that he discussed the method by which Turnbough could appeal the fine and that he gave him a receipt for the fine12 that showed that payment was made subject to ap- peal; and that a separate receipt was issued for the dues13 and that he did not at any time refuse to accept Turnbough's dues. Summers further testified that the only purpose of the letter of December 14 and similar letters to Modular concern- ing Turnbough was to call attention to Turnbough's failure to pay his dues on time. C. Analysis and Conclusions As I indicated on the record of the hearing, Turnbough did not impress me as a reliable witness. A more thorough exami- nation of the record supports this preliminary appraisal as it shows that Turnbough denied previous dues delinquencies and demonstrated some evasiveness in response to questions propounded by counsel for Respondent. On the other hand, Summers was a careful and considerate witness who showed a desire to be forthright and testified in accordance to his best memory without exaggeration or embellishment. He demon- strated these qualities particularly when testifying with re- gard to his conversation with Turnbough on December 17. Turnbough testified that he telephoned Summers prior to meeting Summers in person. In so testifying, he said "they" told him "they" would not accept his dues unless he paid his fine. Later he did say Summers said that he would not accept his dues unless the fine was paid but he equivocated by also saying that Summers stated that he was not refusing to accept his dues. Summers, in turn, testified that he had no memory of a telephone conversation with Turnbough but was certain that he did not say and did not refuse to accept Turnbough's dues at any time. In fact Summers and Turnbough agree that Summers assisted Turnbough by informing him how to ap- peal and noted on the receipt for the fine that it was paid subject to appeal. I conclude therefore that Summers did not talk with Turnbough on the telephone and that when he did speak with Turnbough in person on December 17, he merely informed him that he had been fined $100 and that he would 12 G C Exh. 6(a). 13 G C Exh. 6(b) 512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be subject to suspension under the general constitution if he did not pay-by a certain date. With reference to all other matters leading to the fine, I find that the Respondent Union played no part in the intia- tion of the charges against Turnbough, in their prosecution, or in the assessment of the fine. I fully credit Summers in his uncontradicted testimonial account of the rights and privi- leges of individual members in filing charges and that he filed the charge as an individual and that he participated in its prosecution only as a witness. If there is any liability for the fining of Turnbough, redress must be sought from a party other than the Respondent Union. I further find that the request for Turnbough's discharge as set forth in General Counsel's Exhibit 5 was a routine letter dispatched only be- cause Turnbough had not paid his -dues for the month of December. Respondent's Exhibits -5(a)-(d) demonstrate that Turnbough had been the subject of prior letters of this charac- ter. In view of my conclusions above, I find that the General Counsel has failed by a preponderance of the evidence to prove the allegations of paragraphs 9 and 10 of the complaint, as amended, and that the allegations that the Respondent Union has violated Section 8(b)(1)(B) of the Act must be dismissed. [Recommended Order for dismissal omitted from publication.]