Carpenters, Local 2605

584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters and Joiners of America, Carpenters' District Council of West- ern Pennsylvania and Industrial Local No. 2605, AFL-CIO (DeRose Industries, Inc.) and Jerry L. Campbell. Case 6-CB-4931 June 15, 1981 DECISION AND ORDER On February 10, 1981, Administrative Law Judge Karl H. Buschmann issued the attached De- cision in this proceeding. Thereafter, Respondents filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The General Counsel filed limited cross-exceptions and a brief in support thereof. The National Labor Relations Board has consid- ered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions' of the Administrative Law Judge and to adopt his recom- mended Order, as modified herein.2 ' The General Counsel has excepted to the Administrative Law Judge's failure to consider whether Respondent Local President Roy Zullinger's mid-December 1979 statement to employee-member Ronald Lehman, that refusal to pay Respondent District Council's assessed fine would result in termination, violated Sec. 8(b)(l)(A) of the Act. We find merit in the General Counsel's exception. Lehman testified without con- tradiction that sometime in mid-December 1979 Zullinger approached him in the second line area of the facility and warned him that his time card would be pulled if he did not pay Respondent District Council's fine. Although the statement was not specifically alleged in the complaint as a separate violation of Sec. 8(b)(1XA), it was fully litigated at the hear- ing. Respondents had the opportunity to cross-examine Lehman concern- ing the alleged statement, but chose not to do so. The failure of Respond- ents to avail themselves of this opportunity does not warrant the conclu- sion that the matter was not fully litigated. Harry Edison, Dividar Marcovi and Bertram Fried, a Co-Partnership doing business as SeavieKw Manor Home for Adults, 222 NLRB 596 (1976). We have long held that, "when an issue relating to the subject matter of a complaint is fully litigated at a hearing, the [Administrative Law Judge] and the Board are expected to pass upon it even though it is not specifically alleged to be an unfair labor practice in the complaint." Monroe Feed Store, 112 NLRB 1336, 1337 (1955). The Administrative Law Judge's recommended Order need not be modified to reflect this finding, inasmuch as par. (a) already re- quires Respondents to cease and desist from "[tl]hreatening employees of DeRose Industries, Inc., with loss of employment if they refuse to pay fines imposed upon them by Respondents." In the fourth paragraph of the section of his Decision entitled "Analy- sis" the Administrative Law Judge found that Respondents violated Sec. 8(b)(IXA) by threatening employee-member Campbell on January 14, 1980, with loss of employment if he refused to pay the fine assessed against him. We note, in accordance with the Administrative Law Judges factual findings, in the fourth paragraph of sec. III of his Decision, that the unlawful statement was also directed against employee-niembers Foore and Lehman for failing to pay fines assessed against them. 2 Par. (b) of the Administrative Law Judge's recommended Order is ambiguously phrased. In par. 2(d) the Administrative Law Judge mistak- enly ordered Respondents to notify the Regional Director for Region 6, in writing, within 20 days from the receipt, rather than the date, of the Order, what steps Respondents have taken to comply therewith. In addi- tion, the recommended Order fails to require Respondents to sign and return sufficient copies of the notice to be posted by the Employer if it is willing. We will modify the Administrative Law Judge's recommended Order accordingly. Member Jenkins would compute interest on backpay owed to Jerry L. Campbell in the manner set forth in his partial dissent in Olympic Medical Corporation, 250 NLRB 146 (1980). 256 NLRB No. 92 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respond- ents, United Brotherhood of Carpenters and Join- ers of America, Carpenters' District Council of Western Pennsylvania, AFL-CIO, Pittsburgh, Pennsylvania, and Industrial Local No. 2605, AFL-CIO, Shippensburg, Pennsylvania, their offi- cers, agents, and representatives, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph (b): "(b) Causing or attempting to cause DeRose In- dustries, Inc., to terminate Jerry L. Campbell or any other employee for failure to pay a fine im- posed by Respondents." 2. Delete paragraph 2(d) and substitute the fol- lowing: "(d) Sign and return to said Regional Director sufficient copies of the attached notice marked "Appendix" for posting by DeRose Industries, Inc., if willing, in conspicuous places, including all places where notices to employees are customarily posted." "(e) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith." 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT threaten employees of DeRose Industries, Inc., with loss of employ- ment if they refuse to pay a fine imposed on them by us. WE WILL NOT cause or attempt to cause DeRose Industries to terminate Jerry L. Campbell or any other employee for failure to pay a fine imposed by us. WE WILL NOT in any like or related manner restrain or coerce employees in the excercise of their rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL make Jerry L. Campbell whole for any loss of earnings, plus interest, which he - w CARPENTERS. LOCAL 605 585 may have suffered by reason of our discrimina- tion against him. UNITED BROTHERHOOD OF CARPEN- TERS AND JOINERS OF AMERICA, CARPENTERS' DISTRICT COUNCIL OF WESTERN PENNSYLVANIA INDUSTRIAL LOCAL NO. 2605, AFL- CIO DECISION KARL H. BUSCHMANN, Administrative Law Judge: This case was heard in Chambersburg, Pennsylvania, on June 16, 1980, upon a charge filed on January 21, 1980, by Jerry L. Campbell and a complaint dated March 14, 1980, in Case 6-CB-4931 against United Brotherhood of Carpenters and Joiners of America, Carpenters' District Council of Western Pennsylvania and Industrial Local 2605, AFL-CIO. The complaint alleges that Respond- ents engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the National Labor Rela- tions Act (the Act), by threatening employees of DeRose Industries, Inc. (herein called the Company or the Em- ployer), with loss of employment if they refused to pay fines imposed upon them by Respondents, and causing DeRose to terminate its employee Campbell for his re- fusal to pay a fine imposed upon him by Respondents. In its answer, Respondents denied the commission of any unfair labor practices, but they admitted the jurisdiction- al allegations in the complaint. Upon the entire record in this case' and from my ob- servation of the demeanor of the witnesses, and after full consideration of the briefs filed by the General Counsel, and Respondents, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The Employer, DeRose Industries, Inc., an Indiana corporation with a facility located in Chambersburg, Pennsylvania, is engaged in the manufacture and nonre- tail sale of mobile homes. It is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondents United Brotherhood of Carpenters and Joiners of America, Carpenters' District Council of Western Pennsylvania and Industrial Local 2605, AFL- CIO, are admittedly labor organizations within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES Jerry Campbell, the Charging Party in this case, has been an employee of DeRose Industries for approximate- ly 9 years and has been a member of Local 2605. In con- nection with an economic strike which lasted from July I The General Counsel's unopposed motion to correct the transcript is granted. 25 through August 20, 1978, Local 2605 required its members to assist in the picketing on a scheduled basis. Campbell along with certain other employees failed to report to picket line duty. For each day missed a charge of S10 was assessed by Respondent. Campbell, having missed seven out of eight assigned picketing days, was notified by Local 2605 that he was fined a total of S70 and that he had a right to a hearing before the executive committee scheduled for September 27, 1978. Campbell attended the hearing before the ex- ecutive committee. It affirmed the 70 fine. He was also notified that he could appeal the decision to the District Council of the Union in Pittsburgh, Pennsylvania, and that a failure to pay the fine would result in his loss of good standing with his local. Campbell appealed to the District Council and requested in his letter a hearing before "a Justice of the Peace or in court." The District Office of the District Council informed Campbell by letter of November 9, 1978, that a local had the right to require union members to support picket activities, either in person or by the payment of a "nominal amount" in the event of his inability to participate. That letter also explained that charges or trials of individuals are con- ducted in accordance with the constitution of the Inter- national before a member's peers and not in an outside court or a Justice of the Peace. The District Council provided Campbell with two more opportunities to be heard, once on February 6, 1979, and again on July 31, 1979. In spite of the District Council's several requests that Campbell appear for hearings, he failed to do so. He was then faced with charges by the District Council for his "failure to appear before the Executive Committee on July 31, 1979, when summoned." A new date, October 4, 1979, was set to provide Campbell with the opportunity to be heard on the new charges. Again, Campbell did not appear. Consequently, the trial board fined him 50. Campbell appealed that fine but the District Council re- quested Local 2605 to collect the fine or suspend Camp- bell in accordance with the applicable portions of the Union's constitution and bylaws. In short, Respondent provided Campbell with numerous opportunities to con- test the charges, be present at the meetings, or pay the fine, yet Campbell simply refused to appear. On January 14, 1980, Campbell was summoned over the DeRose Industries intercom system to attend a meet- ing. That meeting was attended by Production Manager Al Losch, Local Union President Roy Zullinger, Union Director Carl Carbaugh, Local Union Vice President Eugene Reed, and Local Union Shop Steward Clarence Cooper. Employees Ronald Lehman and Allen Foore who, like Campbell, were being charged with failure to pay the fine were also at the meeting. During the course of the January 14 meeting, Zullinger informed the three employees Lehman, Campbell, and Foore that he had good news and bad news; they could work on that day, but, if the fine were not paid by January 15, they would no longer be members and could not continue to work. The following day on January 15, the same people met again in Losch's office. Union President Zullinger took control of the meeting and informed the three men that they would be expelled from the Union if the fine were CARPENTERS. LOCAL 2605 585 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not paid, and that the Company, being a closed shop, would not be permitted to continue their employment. Employees Foore and Lehman ultimately paid the fine. Even though Campbell was told that the $70 fine which was originally assessed against him for failure to report to picket line duty had been waived, and that he merely owed the $50 fine because of his failure to appear at hearings in Pittsburgh, Campbell continued to resist the payment of any fine. A discussion ensued between the Union's representatives and the Company's officials as to the practical effects of a member's refusal to pay a fine. Zullinger emphasized that by the terms of article 4 of the collective-bargaining agreement a condition for employ- ment was union membership in good standing and refusal to pay a union fine meant the loss of good standing and discharge. Both, Respondent Local and the Employer agreed to this interpretation of article 4. By an assess- ment of the sentiment of the union representatives at the meeting Losch determined that the Company had no al- ternative but to discharge Campbell. Losch so informed Campbell who inquired whether it meant that he was fired to which Losch replied, "I guess so." Campbell turned in his tools and left the employ of DeRose Indus- tries on January 15, 1980. Although Losch testified that Campbell did not have a discipline or work performance problem he was dis- charged based on Respondents' and the Company's inter- pretation of article 4.Losch also stated that Campbell's ti- mecard was pulled at the end of the week but did not go back on the rack. The undisputed evidence is that Campbell did not work for the remainder of the day on January 15 and did not return to work until March 24. He was reinstated by his Employer effective March 24, 1980, by letter of March 17, 1980, on the basis that he was "back in good graces with the Carpenters Union." Analysis The General Counsel argues that Respondents violated Section 8(b)(1)(A) of the Act because of the threat to Campbell that he would lose his job unless he paid the fine, and, additionally, that Respondents violated Section 8(b)(l)(A) and (2) because they caused the Employer to terminate Campbell's employment for reasons other than his failure to tender periodic dues and normal initiation fees. Respondents argue that Campbell had failed to ex- haust his internal union remedies and that the evidence is not clear whether Campbell was actually discharged and whether Respondents caused the discharge. The record is undisputed, however, that Campbell was told that his failure to pay the fine would result in the loss of his job, because he would no longer be consid- ered a member in good standing. During the meetings on January 14 and 15, it was clear that the Employer's ac- tions were based on the consensus among the union rep- resentatives that an employee's loss of standing with the Union would require his dismissal from the job. The mere fact that insurance, premiums were paid by the Employer or that Campbell's timecard was not pulled immediately does not dispute that Campbell was off the Employer's payroll from January 15 until March 24, 1980. To the contrary, the record is conclusive that Campbell's refusal to pay the fine prompted his dis- charge and that he was reinstated only on the basis that the Union again considered him a member in good stand- ing. The law is clear, Section 8(b)(2) of the Act prohibits a union to cause or attempt to cause an employer to dis- criminate against an employee. A union which causes the employer to discharge an employee for his failure to pay assessments or fines, other than periodic dues or normal initiation fees, violates Section 8(b)(2) and (1)(A). Paint- ers Local Union No. 1627 (William R. Johnson d/b/a Johnson's Plastering Co.), 233 NLRB 820, 821 (1977); In- ternational Longshoremen's and Warehousemen's Union, Local 13 (Pacific Maritime Association), 228 NLRB 1383, 1385 (1977), enfd. 581 F.2d 1321 (1978). Respondents, by causing or attempting to cause the termination of Camp- bell's employment, violated Section 8(b)(2) and (I)(A) of the Act. Moreover, Respondents' statement to Campbell on January 14 that his refusal to pay the fine would result in a loss of good standing with the Union which in turn would render him ineligible for work was coercive and constitutes an independent violation of Section 8(b)(1)A) of the Act. Respondents' main argument is their insistence that the Charging Party's case is barred by his failure to exhaust internal union remedies, and that Campbell's failure to pay the fine involved purely internal union affairs. In this regard, Respondents point to Section 101(a)(4) of the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. 4 11(a)(4), which provides, inter alia, that a member "may be required to exhaust reasonable hear- ing procedures" within the union before instituting any legal or administrative proceedings. In N.L.R.B. v. In- dustrial Union of Marine & Shipbuilding Workers of Amer- ica, AFL-CIO. et al., 391 U.S. 418, (1968), the Court in- terpreted these statutory provisions. There the union was held to have violated Section 8(b)(1)(A) by expelling a member for failure to exhaust the intraunion grievance procedure before filing an unfair labor practice charge with the Board. Unless plainly internal affairs of the union are involved, according to the Court, overriding public policy requires nimpeded access to the Board. Here, of course, the issues also go beyond purely "inter- nal affairs" of the Union. Important public issues are in- volved, for Campbell's failure to pay the fine not only affected his standing with the Union, but it also resulted in the loss of his job and it implicated the Employer. Re- spondents' conduct, involving an allegation of Section 8(b)(2), necessarily reached beyond the internal affairs of the Union and was, therefore, automatically not the sub- ject of the Landrum Griffin proviso requiring exhaustion of internal union remedies. CONCLUSIONS OF LAW 1. Respondents United Brotherhood of Carpenters and Joiners of America, Carpenters' District Council of Western Pennsylvania and Industrial Local No. 2605, AFL-CIO, are admittedly labor organizations within the meaning of Section 2(5) of the Act. CARPENTERS, LOCAL 2605 587 2. DeRose Industries, Inc., is admittedly an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. By threatening employees with loss of employment if they refused to pay a fine imposed upon them, Re- spondents violated Section 8(b)(1)(A) of the Act. 4. By causing and attempting to cause the Employer to terminate the employment of Jerry L. Campbell because of his failure to pay a fine imposed upon him by Re- spondent for reasons other than periodic dues or normal initiation fees, Respondents violated Section 8(b)(l)(A) and (2) of the Act. 5. Section 101(a)(4) of the Labor-Management Report- ing and Disclosure Act of 1959 does not require the Charging Party to exhaust internal union remedies in cases involving 8(b)(2) violations. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents have engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the purposes of the Act. Inasmuch as the record shows that both, Local No. 2605 and the District Council, were directly implicated in the viola- tions, I shall recommend that the order be directed at them jointly and that the "make-whole" provision be ap- plicable to both Respondents jointly. Accordingly, both Respondents will be ordered to make Jerry L. Campbell whole for any losses he incurred by reason of Respond- ents' unlawful actions against him. Backpay shall be cal- culated as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest as called for in Florida Steel Corporation, 231 NLRB 651 (1977).2 Respondents will also be required to post an appropriate notice. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended Order: ORDER3 The Respondents, United Brotherhood of Carpenters and Joiners of America, Carpenters' District Council of 2 See. generally, Isis Plumbing d Heating Co., 138 NLRB 716 (1962). 3 In the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations. be adopted by the Board and Western Pennsylvania, AFL-CIO, Pittsburgh, Pennsyl- vania, and Industrial Local Union No. 2605, AFL-CIO, Shippensburg, Pennsylvania, their officers, agents, and representatives, shall: 1. Cease and desist from: (a) Threatening employees of DeRose Industries, Inc., with loss of employment if they refuse to pay fines im- posed upon them by Respondents. (b) Causing or attempting to cause DeRose Industries, Inc. to terminate Jerry L. Campbell or any other em- ployee for failure to pay a fine imposed by Respondents, other than the failure to tender periodic dues and fees uniformly required as a condition of acquiring or attain- ing membership in Respondents. (c) In any like or related manner restraining or coerc- ing employees in the exercise of the rights guaranteed them under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Make Jerry L. Campbell whole for any losses which he may have sustained by reason of the discrimi- nation against him in the manner set forth in The Remedy portion of this Decision. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all re- cords, reports and other documents necessary to analyze the amount of backpay due under the terms of this Deci- sion. (c) Post at their offices and meeting halls the attached notice marked "Appendix." 4 Copies of said notice on forms provided by the Regional Director for Region 6, shall, after being signed as therein indicated, be posted by Respondents immediately upon receipt thereof and maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondents to insure that the said notices are not altered, defaced, or covered by any other materi- al. (d) Notify the Regional Director for Region 6, in writ- ing, within 20 days from the date of this Order, what steps Respondents have taken to comply therewith. become its findings, conclusions, and Order. and all objections thereto shall be deemed waived for all purposes 4 In the event that the Board's 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 Pur- sant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." CARPENTERS, LOCAL 2605 587