Transit Union Local 836 (Grand Rapids Coach)

TRANSIT UNION LOCAL 836 (GRAND RAPIDS COACH) Local Union 836, Amalgamated Transit Union and Grand Rapids City Coach Lines, Inc Case 7- CB-7107 March 31, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFr AND DEVANEY On July 18, 1988, Administrative Law Judge Thomas A Ricci issued the attached decision The General Counsel filed exceptions and a supporting brief The National Labor Relations Board has delegat ed its authority in this proceeding to a three member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, I and conclusions and to adopt the recommended Order ORDER The recommended Order of the administrative law judge is adopted and the complaint is dis- missed ' The General Counsel has excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administra tive law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re versing the findings Although much of the evidence related to Wilson s becoming a member of the Respondent it is clear that the Respondent offered him the option of either becoming a member or obtaining financial core status through the payment of a sum equal to the dues and initiation fees paid by members Chairman Stephens agrees with his colleagues in dismissing the com plaint In his view any possible constitutional problems relative to the re ligion clauses of the first amendment suggested by the General Counsel need not be addressed As found by the judge the express language of Sec 19 of the Act limits exemptions from union security requirements to those employees whose religious objections to joining and financially sup porting labor organizations are based on the tenets of a bona fide reli gion body or sect Although employee Wilson s personal religious be liefs do include a conscientious objection to joining or financially sup porting labor unions it has not been shown that he is a member of an organized religious group that historically has held the same belief re garding unions While the Board is obligated to construe legislation in a manner that will avoid constitutional questions this obligation does not leave us free to adopt constructions that are not fairly possible Edward J DeBartolo Corp v NLRB 463 U S 147 157 (1983) quoting Crowell v Benson 285 U S 22 62 (1932) Howard M Dodd for the General Counsel Craig Avery Esq of Comstock Park Michigan, for the Respondent Robert J Chovancc Esq of Grand Rapids, Michigan, for the Charging Party DECISION 581 STATEMENT OF THE CASE THOMAS A Ricci, Administrative Law Judge A hear mg in this proceeding was held in Grand Rapids Michi gan on April 30 1988, on complaint of the General Counsel against Local Union 836, Amalgamated Transit Union (the Union or the Respondent) The complaint issued on January 19 1988, on a charge filed on Febru ary 9, 1987, by Grand Rapids City Coach Lines, Inc (the Company or the Charging Party) The sole issue presented is whether the Union unlawfully demanded that the Company discharge an employee and filed a grievance to achieve that objective, in violation of Sec tion 8(b)(2) and Section 2(6) and the (7) of the Act A brief was filed by the General Counsel after the close of the hearing On the entire record and from my observation of the witnesses, I make the following FINDINGS OF FACT I THE BUSINESS OF THE COMPANY The Respondent with a place of business in Grand Rapids, Michigan, is engaged in providing bus operators and maintenance employees to the Grand Rapids area transit authority for the operation and maintenance of public transportation During the year preceding issuance of the complaint, it derived gross revenues in excess of $500,000 and provided services valued in excess of $50,000 to the Grand Rapids Area Transit Authority which in turn purchased and received goods and services valued in excess of $50 000 from out of state sources I find that the Company is an employer within the mean ing of the Act II THE LABOR ORGANIZATION INVOLVED I find that Local Union 836, Amalgamated Transit Union is a labor organization within the meaning of Sec tion 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICE During 1986, the Company and the Union were parties to a collective bargaining agreement that among other terms, required employees covered by that contract to become members of the Union Maurice Wilson had worked for the Company 2 years but had never become a union member On October 20 1986, the Union asked Wilson to sign an authorization to the Company to deduct union dues and initiation fees on his behalf and forward the money to the Union Wilson refused to sign such authorization On November 11 1986, the Union again asked Wilson to sign such dues and initiation fees checkoff and he again refused By letter dated Novem ber 18 1986, the Union requested the Company to dis charge Wilson for such failure to pay dues and initiation fees When the Company refused to discharge the man the Union, on December 16, 1986, filed a grievance to compel the Company to live up to the contract in effect No action has been taken on that grievance Instead on 293 NLRB No 62 582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD February 9, 1987, the Company filed the charge in this proceeding The complaint issued a year later Wilson's stated reason for refusing to pay union dues or initiation fees, as he testified at the hearing, is that ` it was against my personal, Christian convictions to join the Union or pay its dues" Wilson added he was a member of a church called The Body of Jesus Christ The complaint rests on a reading of Section 19 of the 1980 amendment to the National Labor Relations Act In pertinent part it reads as follows Any employee who is a member of and adheres to established and traditional tenants or teachings of a bonafide religion, body, or sect which has histori cally held conscientious objections to joining or fi nancially supporting labor organizations shall not be required to join or financially support any labor or ganization as a condition of employment If, on the evidence received Wilson could be said to fall within the scope of the foregoing statutory language, he was free to refuse to join or to pay any money to the Union If he did not fall within the intended coverage of that language, the Union had a right to have him dis charged from this job for refusing to become a union member As I read this statute, and consider the totality of Wilson s testimony, I find that he did not fall within the ambit of that statutory protection, and shall therefore recommend dismissal of the complaint The statute requires that the employee who refuses to pay union dues be a member of a bonafide religion, body or sect, which holds `conscientious objections to join any union There is no evidence here that Wilson is a member of any such body or sect As he admit ted in his very opening statement at the hearing, it was a personal conviction of his on which he rested his re fusal Instead of resting on established and traditional tenants or teaching of any body or sect " he relied on quotations from the Bible which he kept reading as he went along with his testimony He quoted from Gala tions 5 1 Matthew Chapters 5 6 and 7 (Jesus Sermon on the Mount) and II Corinthians 6 14 In his letters to the Union, he explained the basis of his religious objec tions, he quoted Romans 13 1-7 II Peter 2 19-21 Titus 3 1-2 Jude 8-10 John 18 36 II Timothy 2 1-3 etc In his cross examination of the witness, counsel for the Union then threw other biblical quotations at the wit ness, arguing that those citations pointed to another sig nificance in the Bible from the way Wilson read the book I have no intention, in this decision, to comment in the least as to who was right and who was wrong in their understanding of the religious teachings of the past It would not only be a hopeless task, but I am not in the least qualified to express any such views What all this testimony boils down to, however, is that the witness defense against having to join the Union rests entirely on his idea concerning what Jesus Christ, Saint Peter, or any others who are quoted in the Bible meant when they said this or that In other words, that any individual could come before the Board, argue his understanding of the Bible and for that reason alone avoid paying his dues at the Union s demand If the General Counsel is correct in this case it means any person could avoid per fectly legal union membership clauses in his Union s con tract that requires membership as a condition of employ ment by simply arguing how he reads the Bible I do not think Section 19 of the statute was so intended When Wilson first claimed a religious privilege as the basis for his refusal to pay union dues, the union officers, aware of the statutory language, asked him which church or religious organization he belonged to Admit ting in his written reply, that `the assembly which I attend is not a denomination of religion [sic] organization established by a constitution, or man, he mentioned the phrase faith assembly, ' saying it had been located in Warsaw, Indiana Asked, finally to be more specific, Wilson told Blank Taylor the Union's financial secre tary, he did not have the address of that group Recalled as a witness at the close of the hearing, Wilson then ad mitted he gave Taylor the name of the minister' of that group, although he knew that man, whoever he was, had been dead for 3 years When Taylor looking into the matter, inquired at Warsaw, he could not locate any such organization He checked with the police department there but it could not help him either With Wilson continuing to generalize how his church was based on various quotations from the Bible- I, personally, have objections to joining the Union," they [these beliefs] came to me my own per sonal consideration,' -he was asked why did not reveal reliably the identity of his `church or organization if in reality there existed such a religious body or sect His only reply at the hearing was that he did not want to involve that organization Because I did not want to involve the leadership within the church or the con gregation with this Union squabble as of now I, also, stand on this verse myself because I personally have objections to joining a Union and paying the dues set forth from the word of God " This man may very well have been telling the truth as to how he reads the Bible or as to his personal religious convictions I have no reason to doubt that part of his testimony But whether he is, or was a member of any sect or religious organization he was not telling the truth either at the hearing or in his earlier talking with the union agent In sum, Section 19 of the statute makes it an exception to the general rule of law that whenever there is in effect" a collective bargaining agreement making union membership a condition of employment, any employee who refuses to conform to that provision must be dis charged at the request of the union If the employee in question can prove he fits into the exception, he escapes the effect of that clause It is in fact an affirmative de fense the employee may offer to keep his job I view it as a burden placed on Wilson in this case to prove of firmatively that the exception clause fitted him He did not prove it The discharge request by the Union was therefore perfectly proper TRANSIT UNION LOCAL 836 (GRAND RAPIDS COACH) 583 In his posthearing brief the General Counsel admits that Wilson was never a member of any sect or organiza tion or established religious church ORDER' I recommend that the complaint be dismissed ' If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Board and all objections to them shall be deemed waived for all pur Order shall as provided in Sec 102 48 of the Rules be adopted by the poses