Goehring Meat Co.

National Labor Relations Board - Board Decisions

Jun 16, 1970

183 N.L.R.B. 405 (N.L.R.B. 1970)

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