Graphic Arts Local 280 (Balzer-Shopes)

National Labor Relations Board - Board Decisions

Mar 11, 1985

274 N.L.R.B. 787 (N.L.R.B. 1985)

GRAPHIC ARTS LOCAL 280 (BALZER -SHOPES)
Graphic Arts International Union , Local 280
(Balzer-Shopes Litho Plate Company , Inc.) and
Eloy Martinez . Case 20-CB-5814
11 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 17 July 1984 Administrative Law Judge Clif-
ford H. Anderson issued the attached decision. The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed a response to the
exceptions of the General Counsel.
The Board has considered the decision and the
record in light of the exceptions and briefs 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.
I The General Counsel has excepted to some of the judge's credibility
findings The Board 's established policy is not to overrule an adm inistra-
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
We grant the General Counsel 's unopposed motion to correct the tran-
script.
DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge. I
heard this case in trial in San Francisco, California, on
March 16, 1984, pursuant to a complaint and notice of
hearing issued by the Regional Director of Region 20 of
the National Labor Relations Board on May 16, 1983,
based on a charge filed by Eloy Martinez, an individual,
against Graphic Arts International Union, Local 280 (Re-
spondent).
The complaint alleges, and the answer admits, that Re-
spondent had a longstanding collective-bargaining rela-
tionship with Balzer-Shopes Litho Plate Company, Inc.
(the Employer) and that at relevant times the parties
maintained a collective-bargaining agreement with a
valid union-security clause. The complaint alleges, and
the answer admits, that the Employer discharged Eloy
Martinez about March 21, 1983. The complaint further
alleges, and the answer denies , that the Employer's dis-
charge of Martinez was caused by Respondent for rea-
sons other than the employee's failure to tender periodic
dues and initiation fees uniformly required as a condition
of acquiring or retaining membership in Respondent,
787
thereby violating Section 8(b)(1)(A) and (2) of the Na-
tional Labor Relations Act (the Act).
All parties were given full opportunity to participate
at the hearing , to introduce relevant evidence, to call, ex-
amine, and cross-examine witnesses , to argue orally, and
to file posthearing briefs.'
On the entire record , including oral argument by the
Union and a posthearing brief from the General Counsel,
and from my observation of the witnesses and their de-
meanor , I make the following2
FINDINGS OF FACT
1. JURISDICTION
At all times material the Employer has been a Califor-
nia corporation with an office and place of business in
San Francisco, California, where it is engaged in the
printing industry providing lithograph and color separa-
tion and processing services. During the calendar year
ending December 31, 1982, the Employer, in the course
and conduct of its business operations, provided goods
valued in excess of $50,000 to enterprises within the
State of California, including J. Walter Thompson Com-
pany, which are engaged directly in interstate commerce.
11. LABOR ORGANIZATION
Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICE
A. Evidence
Respondent and the Employer at all relevant times
were bound to a collective-bargaining agreement which
contains, inter alia, a union-security clause and a clause
providing an exclusive union hiring hall.3
I At the commencement of the hearing, counsel for Respondent made
three motions First , he sought to renew an earlier motion to dismiss the
case because of the General Counsel's alleged failure to add an indispen-
sable party and/or failure to require the joining of an indispensable party
Respondent's original motion was denied by Administrative Law Judge
Richard J Boyce on September 20, 1983, and was not thereafter ap-
pealed by Respondent I found the issue had been conclusively resolved
by Judge Boyce's Order Second, Respondent sought to renew its motion
for summary judgment which had originally been filed with the Board in
August 1983 and had been denied by the Board on October 31, 1983 I
held and here reaffirm that the Board's ruling is res judicata on the issues
presented Finally, counsel for Respondent moved that I defer the allega-
tions of the complaint to the parties ' contractual grievance and arbitra-
tion process While it is true that the Board in United Technologies Corp,
268 NLRB 557 (1984), now finds it appropriate to defer allegations of
certain violations of the Act, that decision maintains the traditional view
that deferral is not appropriate where there is an evident disharmony of
interest between the grievant and his representative as is the case here
Accordingly, deferral is inappropriate
2 Through the pleadings, written and oral stipulations of fact, and the
argument and concessions of counsel at the hearing, the parties substan-
tially reduced the factual matters in dispute Where not otherwise noted
these findings are based on the pleadings, stipulations , and/or uncontested
documentary and testimonial evidence
The contract, sec 3 1, "Union Shop," states
All non-union employees presently employed, or hereafter engaged
and retained for more than thirty (30) days, shall apply for member-
ship in the Union within thirty-one (31) days from the date of em-
ployment or from the effective date or date of execution of this
Continued
274 NLRB No. 119
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent represents employees in the printing indus-
try in a portion of the State of California. Its vice presi-
dent is Cornelius Kelleher, who is responsible for the ad-
ministration of Respondent 's collective-bargaining agree-
ments, including,its collective-bargaining agreement with
the Employer. The Employer's plant manager is Paul
Martin, who is in charge of the operations of the facility
and is responsible for administration of its collective-bar-
gaining agreement with Respondent. During relevant
times Kelleher and Martin communicated on a regular
basis as necessary to administer the contract and resolve
related problems as they arose. The relationship between
the Employer and Respondent, as well as between Kel-
leher and Martin, was amicable and efficient. At no time,
at least until the events in question, had grievances been
filed by Respondent against the Employer nor had Re-
spondent had occasion to seek the Employer's discharge
of employees pursuant to the union-security clause.
Eloy Martinez had worked as a part-time janitor for
the Employer after school from 1973 to 1978. Insofar as
the record reveals his job was not a unit position and he
was neither asked to nor did he join Respondent. In 1979
Martinez was employed by another employer whose em-
ployees were also represented by Respondent He joined
Respondent at that time and retained his membership
until August 1979 when he left the State, obtaining a
travel card from Respondent Thereafter, Martinez
worked briefly at the trade in Hawaii until May 1980.
During his Hawaii employment he was a member of
Local 580, Graphic Arts International Union, a sister
local of Respondent Martinez lost his employment when
his Hawaii employer closed its doors in May 1980.
Thereafter, Martinez allowed his membership in Local
580 to lapse. In late 1982 Martinez returned to San Fran-
cisco seeking employment
In late December 1982 or early January 1983 Martin
interviewed Martinez. Martin testified he told Martinez
that he would be hired effective January 10, 1983, con-
tingent upon his "getting his house in order" with Re-
spondent 4 Martinez recalled that Martin told him to get
a dispatch slip from the Union and check to see if his
membership was in good standing. Soon thereafter, Mar-
tinez went to Respondent's office and met with Kelleher.
Kelleher said that he had spoken with Martin regarding
Martinez' employment. Martinez related his employment
history in the trade, specifically including his Hawaii ex-
periences. Kelleher suggested that Martinez had prob-
ably been expelled from Local 580 for nonpayment of
dues to which Martinez responded that he had failed to
Agreement, whichever is later , and if they fail to do so, they shall be
discharged If any employee, a member of the union or applicant for
membership shall resign from the union or become a member of bad
standing by reason of non-payment of dues or initiation fees, then
within ten (10) days after written notice to the employer that the em-
ployee has been expelled from the union , the employer shall dis-
charge such employee upon written request by the union
° The contract's hiring provisions require employers to request em-
ployees from the Union's hiring hall list The hiring hall lists are main-
tained for each job classification under the contract and provide for dis-
patch in order of registration A contractual exception exists to the order
of dispatch where an employer requests a particular applicant for em-
ployment The contract requires Respondent, upon receipt of such a re-
quest, to dispatch the requested individual
take a withdrawal card from Local 580 after his job loss
only out of ignorance of union procedures. Martinez
filled out various forms and Kelleher issued Martinez a
dispatch slip. The conversation ended when Kelleher
told Martinez to inform him if he was in fact hired by
the Employer. Martinez thereafter returned to the Em-
ployer's premises, turned in his dispatch slip to Martin,
and was formally hired. Later that same day, Martinez
called Kelleher and informed him that he had been hired.
He asked Kelleher if he should go to the Union's offices
to fill out membership application papers, but Kelleher
demurred indicating he would mail the forms to him.
Kelleher prepared a membership application for Marti-
nez and on February 23, 1983, submitted it to Gary
Wenzel, the shop steward at the Employer, with an ac-
companying note instructing Wenzel to give the applica-
tion to Martinez. This application was never given to
Martinez.
Martinez, in part because of the period of time away
from the trade, commenced as a press helper for the Em-
ployer He worked under the immediate supervision of
Production Manager Lisa Olmsted Olmsted had a con-
versation with Martin on Friday, March 18, 1983, in
which she reported that she was unhappy with Martinez'
performance and attitude. The following working day,
Monday, March 21, 1983, immediately after the end of
the 3:30 p.m. work shift, a meeting was held between
Olmsted, Martin, and Martinez. Martin took Martinez to
task for his apparent failures as reported by Olmsted.
Martinez responded that the reported difficulties were
misperceptions but, in any event, would not occur in the
future Martin informed Martinez that any further viola-
tion of rules or insubordination would not be tolerated
by the Employer and that Martinez would be dismissed
as a result. Martin further informed Martinez that he was
being given another opportunity and, if he would
"straighten out his act," he could continue his employ-
ment with the Employer. Based on that understanding
Martinez left the premises
About 4 p m. that same day, Martin received a tele-
phone call from Kelleher The versions of the conversa-
tion vary Martin, emphasizing he was unable to recall
an exact or verbatim account of the conversation, testi-
fied that Kelleher initially informed him "that Mr. Marti-
nez had not exercised his obligation to join the Union
and was not a member of the Union and what did I wish
to do about it."5 Martin recalled that he told Kelleher
that he had just had a meeting with Martinez about his
"attitude problems" which earlier meeting he described
to Kelleher in some detail. Martin further told Kelleher
that under the circumstances I was not prone to continue
[Martinez'] employments Martin testified, although he
5 In later testimony Martin changed the remarks attributed to Kelleher
slightly He testified that Kelleher asked him what he would "prefer" to
do about Martinez' nonunion status, and , in yet another version, recalled
that Kelleher informed him only that Martinez had not joined the Union
without asking what Martin intended to do about it
6 Martin also testified that he informed Kelleher he was "unhappy
with [Martinez '] performance and that I wished to terminate him at that
time "
GRAPHIC ARTS LOCAL 280 (BALZER -SHOPES)
could not recall if Kelleher made the statement in this
conversation or in a subsequent conversation the next
day, as discussed infra, that Kelleher also told him that,
since Martinez was not a member of Respondent, "legal-
ly there was nothing the Union could do to prevent me
from terminating him if I wished to " Martin testified
that he reached the decision to fire Martinez on his own
and did not perceive Kelleher's remarks to be a request
to fire Martinez. He also testified that the fact that Kel-
leher told him the Union could do nothing about it was a
factor in his decision to fire Martinez
Kelleher testified that he called Martin and told him
that he had sent a membership application to the shop
steward along with instructions to have Martinez com-
plete and return the application by February 23, 1983,
but that he had not received the application back. He
then asked Martin if Martinez had quit or been fired
Kelleher recalled that Martin answered that Martinez
had been employed since January 10 and was still em-
ployed "but they were unsatisfied with his work and
were about to terminate him." Kelleher testified that he
then told Martin that "if that was the case, I wouldn't
have much worry about the membership application .117
Following his conversation with Kelleher, Martin at-
tempted to reach Martinez by telephone. He left a phone
message at Martinez' residence and soon thereafter Mar-
tinez was informed of the message and placed a phone
call to Martin. Martin testified that in that call he in-
formed Martinez that
According to Article 3 18 of the contract, that he
was not a member of the local and therefore I was
obligated under terms of that contract to terminate
his employment. Based upon his previous actions
and the conversation held earlier that day, that was
my decision to do and I sol [sic] told him that, that
he was no longer employed.
Martinez testified that Martin told him that Kelleher had
called and told him that he was not going to let Martinez
into the Union and that as a consequence Martin had to
terminate him. Martinez further recalled that he told
Martin that he would call the Union to "see what was
going on" and call Martin back.
Martinez testified that he telephoned Kelleher after re-
ceiving Martin's call. He complained to Kelleher that he
had not received a membership application. Kelleher re-
sponded that one had been given to Gary Wenzel, the
' In later testimony Kelleher repeated his response to Martin's state-
ment that he was going to terminate Martinez because of unsatisfactory
work as follows
I told him that I would like to know if he was going to terminate
him or not If he kept [Martinez] in his employ, we would give him
another application If he was going to terminate him, it is against
our rules and policy to give an application and to take money from
someone who is not working in the industry
Kelleher further recalled that Martin told him he would let him know the
next day whether or not Martinez would be terminated
a On my own motion I correct the transcript at 57, L 23 to change the
reference to "Article 31" to "Article 3 1," the union-security article
quoted supra
789
Employer's shop steward, for submission to Martinez.
Martinez told Kelleher that he had never received the
application but that money was not a question and that
he would pay his initiation fee and union dues. Kelleher
answered that he was not going to let Martinez into the
Union. Thereafter, an argument developed regarding on
whose authority an applicant could be denied member-
ship in the Union Kelleher again told Martinez that he
was not going to let him in the Union and added that the
Employer was going to fire Martinez anyway Martinez
attempted to answer this statement when Kelleher inter-
rupted stating that he did not have time to talk and dis-
connected the telephone.9
Martinez testified that following this conversation he
called Martin back and asked him if he could have his
job back providing he could get into the Union. He re-
called that Martin answered he could have the job if he
"really wanted it bad enough." Martin then told Marti-
nez that Kelleher had explained to him the fact that Mar-
tinez had been expelled from the Union in Hawaii. Marti-
nez explained to Martin that situation. He also told
Martin he was going down to the union hall the follow-
ing day to see what he could do about joining the
Union.10
On March 22. 1983, Kelleher telephoned Martin. Kel-
leher did not recall the time of the phone call but Martin
placed it as occurring in the morning Martin testified
that Kelleher asked him if he wished to continue Marti-
nez' employment and that Martin responded that he did
not "under the circumstances" wish to continue Marti-
nez' employment. Kelleher recalled that he asked Martin
if he had made a decision about Martinez and Martin re-
sponded that he was going to terminate him.
Martinez testified that he reached Kelleher by tele-
phone on the afternoon of March 22 and asked Kelleher
if lie could come down, obtain application papers, and
pay his initiation fee and dues Kelleher told him that he
was not going to be allowed to join the Union Martinez
reminded Kelleher that he had earlier dispatched him to
the Employer. Kelleher answered that, yes, he had made
a mistake once, but he was not going to make it again.
Martinez challenged that statement, the conversation
became heated, and Kelleher terminated the call. I i
The following day, March 23, 1983, the instant charge
was filed by Martinez. Martinez also filed a charge
against the Employer which charge was subsequently
disposed of by a settlement agreement which provided,
inter alia, for Martinez' reinstatement and partial pay-
ment of backpay. Reinstatement was accomplished on
April 25, 1983. Martinez was later again discharged by
the Employer, which discharge is not here at issue. Fol-
lowing the filing of his charges, Martinez applied for and
was accepted into membership of Respondent.
9 Kelleher testified that he could not recall this conversation and there-
fore was "inclined to believe that it didn't take place "
10 Martin did not recall this conversation but suggested that it may
have occurred and had been "lumped in his memory" with the earlier
conversation
" Kelleher denied any memory of this conversation
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B Analysis and Conclusions
1. Position of the parties
The General Counsel makes several different argu-
ments in support of his 8(b)(2) allegation First, the Gen-
eral Counsel argues that I should discredit the testimony
of both Martin and Kelleher "to the extent they attempt-
ed to limit Kelleher's complicity in the discharge deci-
sion." The General Counsel then argues, given such a
credibility resolution, "the inference is proper that Kel-
leher and Martin reached an understanding to discharge
Martinez." The General Counsel also argues, in the
event that I credit Martin's testimony that he alone
reached the discharge decision:
Respondent, nevertheless, is liable because it unlaw-
fully adduced Martinez' discharge. Thus, Kelleher
gave Martin the basis, albeit unlawful, to discharge
Martinez. And after Martin discharged Martinez be-
cause he was not a Union member, Kelleher then
blocked Martinez' only means to retain his job, i.e.,
membership in the Union.
Counsel for Respondent argues that no matter how the
versions of the March 21, 1983 conversation between
Kelleher and Martin are resolved, there was no request
or even suggestion by Kelleher that Martinez be termi-
nated. Counsel for the Union concedes that the informa-
tion that Kelleher provided Martin, i.e., that Martinez
had not joined the Union, was the last straw which
caused Martin to discharge Martinez. Thus, Respondent
concedes that the Employer, in terminating Martinez be-
cause he was not a union member and at a time when he
had not been provided with the specific instructions on
how to join the Union, violated Section 8(a)(3) of the
Act. In his oral argument, counsel for the Union summa-
rized:
But the law is clear It was not the Union that
asked that [Martinez] be terminated It was only the
transmittal of the information of his non-member-
ship which then caused the Employer to unlawfully
terminate him. That's the way the case has to be
characterized. And the Union cannot be held liable
under 8(b)(2) simply because it transmitted some in-
formation to the Employer which the Employer
seized upon and utilized to terminate the man.
While rejecting Respondent's factual arguments, the
General Counsel concedes that as a matter of law the
mere fact that the Employer learned that Martinez had
not become a union member from Kelleher on March 21,
standing alone without more, would not sustain a finding
of a violation of Section 8(b)(2) of the Act.
2. Factual resolution
In reaching the conclusions that follow regarding the
conversations between the three individuals in question
on March 21 and 22, 1983, I have considered the testi-
mony regarding what was said in each conversation as
well as the testimony of Kelleher and Martin regarding
their motives for the actions taken. Martinez' demeanor
was excellent. I firmly believe he honestly testified to his
best recollection of events. Accordingly, I credit him
over both Kelleher and Martin where Martinez describes
telephone conversations which the other two individuals
failed to recall. I do not find these two deliberately mis-
stated events by denying the conversations, however.
Rather, I find that they simply had a failure of memory.
Martinez, however, was not familiar with the procedures
of either the Union or the Employer regarding hiring, re-
ferral, and membership solicitation. Martin, as described
in more detail, infra, was also a credible witness. Where,
as in the initial telephone conversation between Martin
and Martinez on March 21, 1983, and in the initial inter-
view conversation, the versions of the two differ, I credit
Martin. I believe his recollection more likely reflects the
instructions and statements made than Martinez' memory
where he was not familiar with the subject matter under
discussion.
I find, contrary to the arguments of the General Coun-
sel both at the hearing and on brief, that Martin was a
straightforward witness with a sound demeanor who was
honestly trying to recall the events at issue and his moti-
vations at the time. Finding Martin to be a honest wit-
ness, however, I further find that, as he admitted, his
recollection of events was not complete and he was
unable, despite a good-faith effort, to give complete or
verbatim versions of his conversations. Thus, as appears
below, I have not without exception credited his version
of events. I also credit his testimony regarding his moti-
vation during the period of time in question I find he
was more likely to recall accurately his motivations than
the details of particular conversations. Thus, based in
part on his persuasive demeanor and my determination
that he was an honest and forthright witness, but also on
the analysis set forth infra, I find that at the time Martin
terminated Martinez, he did so because of his own belief
that he was obligated to do so under the contract's
union-security clause and because of his earlier problems
with Martinez. I further find it was not because Kelleher
asked him to do so, or because Kelleher in any other
direct or indirect way sought Martinez' discharge
Considering the demeanor of the witnesses, the record
as a whole and the sequence of events, I find that at the
time Kelleher called Martin on the afternoon of March
21, 1983, Martin, while dissatisfied with Martinez, had no
intention of terminating him I find that in that call Kel-
leher informed Martin that Martinez had not submitted a
membership application and asked Martin if he was still
employed. 12 I further find that Martin responded to Kel-
leher, as testified by Martin, that he had problems with
Martinez and further related the earlier disciplinary
meeting he had conducted with Martinez that day. I find
that Kelleher then asked Martin what he intended to do
regarding Martinez and that Martin responded that he
was not prone to continue Martinez' employment. Kel-
leher then informed Martin, if that was the case, the
Union would not pursue the membership application and
the conversation ended.
12 To the extent that Kelleher's testimony differs from the above find-
ings, which are primarily based on Martin 's testimony, it is discredited
Kelleher's demeanor was inferior to Martin in my judgment
GRAPHIC ARTS LOCAL 280 (BALZER- SHOPES)
Martin's conversation with Martinez immediately
thereafter makes it clear, and I find, that Martin believed
he was under a contractual obligation to discharge Mar-
tinez because he had not become a member of the Union
within 30 days of his commencing employment 13
I find that Kelleher, following his March 21, 1983 con-
versation with Martin, believed that Martin was consid-
ering but had not yet decided to discharge Martinez
Thus, Kelleher telephoned Martin on March 22, 1983,
and asked Martin if he had made a decision with respect
to Martinez. Having learned from Martin on March 22,
1983, that Martin was certain in his decision to terminate
Martinez, Kelleher raised for the first time in that call
the fact that management's decision to terminate Marti-
nez could not be attacked by the Union because Marti-
nez was not a union member.14
I further find that Kelleher in his conversations with
Martinez took the position that Martinez would not at
that point be allowed to join the Union because Kelleher
believed Martinez was about to be discharged or had
been discharged by the Employer and hence was not eli-
gible to join the Union.15 Thus, I find no evidence in the
Martinez-Kelleher conversations to support the General
Counsel's contention that Kelleher was hostile to Marti-
nez as a result of his nonmembership in the Union or be-
cause of Martinez apparently having been suspended by
a sister local.
3. Causation in 8(b)(2) cases
It was initially conceded by all parties that the Em-
ployer had no legal right to terminate Martinez on
March 21 or 22, 1983, because of his nonmembership in
Respondent As was admitted by Martin, Martinez was
terminated at least in substantial part for that reason.
Therefore, were the Employer to have been a core-
spondent in this case, it would have been found to have
violated Section 8(a)(3) of the Act.1 s An 8(b)(2) viola-
13 The contractual language, quoted supra, which Martin referred to in
his initial phone conversation with Martinez, provides that an employer
shall discharge an employee upon the Union 's written request if a union
member is no longer in good standing for certain reasons The language
of the contract, however, does not require a request written or otherwise
by the Union if an employee fails to become a member or retain member-
ship after 31 days of employment Thus, I find that Martin believed that
the Employer was obligated to terminate Martinez because he was not a
union member even without a union request under the contract language
It is immaterial that such an understanding is both wrong and in viola-
tion of Sec 8(a)(3) of the Act The General Counsel did not attack the
legal validity of the union -security clause nor did the Union argue that
Martinez could have been properly terminated under the contract's
terms
14 The General Counsel asserted, and Respondent relied , on the propo-
sition that the General Counsel's pleadings did not encompass and would
not be amended to encompass any allegation that the Union had failed to
fairly represent Martinez because of his nonmembership in the Union or
for other arbitrary and invidious reasons Accordingly , the postdischarge
conduct of the Union in representing or failing to represent Martinez may
not form the basis of a separate violation of the Act
is Kelleher testified without contradiction , and I find , that the Union's
practice was not to admit into membership individuals who were not cur-
rently employed in the trade I further credit Kelleher 's testimony that
the Union , in his experience , has no difficulty in recruiting employees in
the trade into the Union , but rather regularly must resist attempts by non-
qualified individuals to join the Union
16 Since a violation of 8(b)(2) of the Act is "derivative," it requires
proof of an employer's unlawful discrimination against the employee as
791
tion will not be found, however, where the union is not
the cause of the employer's action. Great Plains Beef Co,
241 NLRB 948 (1979). The Board in Carpenters Local
626 (Food Fair Stores), 142 NLRB 1238, 1240 (1963),
quoted with approval the decision of the Tenth Circuit
Court of Appeals in NLRB v. Painters, 242 F.2d 477
(10th Cir. 1957), which stated at 480:
Neither employer nor union can be held accounta-
ble for the unilateral actions of the other. Neither is
bound to police the other nor can it be inferred that
an unfair labor practice indulged in by one is caused
by the undisclosed activity of the other or through
the tacit understanding of both. Evidence of such
activity or understanding is necessary.
The General Counsel relies heavily on the case of
Groves-Granite, 229 NLRB 56 (1977), noting correctly
that the judge, with Board approval, found that a union
had violated Section 8(b)(2) of the Act by causing the
discharge of an individual, Baublitz, on the basis of cir-
cumstantial evidence. The judge noted, at page 64:
Although there is no explicit evidence that [the
union's] irritation translated into an attempt to effect
Baublitz' job status, there is ample basis for infer-
ring that the discharge was precipitated by some
kind of understanding between [the union] and [the
employer] on that general subject, their denials not-
withstanding.42
42 It is not necessary to [find a] violation that the precise dia-
logue underlying the understanding be flushed out As stated in
Northwestern Montana District Council of Carpenters Union and
United Brotherhood of Carpenters and Joiners of America. Local No
911 (Glacier Park Co), 126 NLRB 889, 897-898 (1960) "An ex-
press demand or request is not essential to a violation of Section
8(b)(2) of the Act It suffices if any pressure or adducement is used
by the union to influence the employer "
The General Counsel also notes the Board decision in
Yellow Freight Systems, 197 NLRB 979 (1972) There a
union caused the discharge of certain individuals by
bringing to an employer's attention a company rule, the
subsequent enforcement of which caused the discharge
of those individuals. The judge found, with Board ap-
proval, that the union's motive was not merely to bring
to the employer's attention the breach of a valid compa-
ny rule but rather the union's motive was the improper
removal of nonunion employees. In those circumstances
the Board found the union had caused the employer to
discharge the employees in violation of Section 8(b)(2) of
the Act. The case cites with approval, at 981, the Third
Circuit Court's decision in NLRB v. Jarka Corp. of Phila-
dephia, 198 F.2d 618, 621 (3d Cir. 1952)•
This relationship of cause and effect, the essential
feature of Section 8(b)(2), can exist as well where
an inducing communication is, in terms courteous
well as proof that the union caused the employer to so discriminate
NLRB v Theatrical & Stage Employees Local 776, 303 F 2d 513, 519 (9th
Cir 1962), citing Radio Officers Union v NLRB, 347 U S 17, 53 (1954)
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or even precatory, as where it is rude and demand-
ing
As ably argued by the General Counsel, Board and
Court decisions make it clear that less need be shown by
the General Counsel than a direct union demand for the
discharge of an employee made to an employer to sup-
port a finding of a violation of Section 8(b)(2) of the
Act. A union's actions may be direct or indirect, obvious
or subtle, or friendly or threatening. If considered in
their full context, the Union's actions could fairly be
taken or were taken by the employer to be an attempt to
cause the termination of an employee or, if the actions in
fact cause the termination of an employee, a prima facie
violation of Section 8(b)(2) has been established.
On the facts of this case, I conclude that the Union did
not attempt to obtain the discharge of employee Marti-
nez under the Board's causation standard. I find, consist-
ent with the testimony of Martin, that he did not take
Kelleher's statements on March 21 to constitute a request
or even a hope that Martinez be terminated. Kelleher's
remarks in that telephone call do not, in and of them-
selves, sustain a finding of a violation of Section 8(b)(2)
of the Act In some circumstances it is appropriate to
evaluate the motivation of a union agent in transmitting
information to an employer. As in Yellow Freight Systems,
supra, if a union, for an improper motive, even without a
demand or request of any kind, communicates informa-
tion to an employer as a means of inducing the employer
to terminate that employee, a violation may be found
Under this standard I have considered the motives of
Kelleher in informing Martin on March 21, 1983, that
Martinez was not a union member. I find that it was not
Kelleher's intention that this information caused the ter-
mination of Martinez and I further find that, throughout
the events at issue, Kelleher reasonably formed the belief
that Martin was terminating Martinez, not for his non-
union membership status, but rather for his earlier mis-
conduct as related by Martin to Kelleher in the March
21, 1983 conversation.'' Thus, I find that Kelleher did
not have an improper motivation in communicating Mar-
tinez' nonmembership status to Martin on March 21,
1983, nor did he at any time during the events in ques-
tion believe that this information was a factor in Marti-
nez' discharge by the Employer. Thus, the instant case
will not support a finding of an 8(b)(2) violation under
the Yellow Freight Systems theory.
The General Counsel also contends on brief that, after
Martin discharged Martinez, Kelleher "blocked Marti-
nez' only means of retaining his job, i.e. membership in
the Union." I find that this postdischarge contention of
the General Counsel on brief that the Union engaged in
improper and illegal conduct after Martinez' discharge is
not within the scope of the pleadings and, more impor-
tantly, is clearly within the assurances of the General
Counsel that he was not attempting to expand the plead-
ings to encompass additional allegations that the Union
failed to fairly represent Martinez after his termination
17 The fact that Martin in fact was terminating Martinez because he
was a nonmember of the Union was not communicated to Kelleher by
Martin and Kelleher could not reasonably have been expected to have
guessed Martin's true motive for effecting the termination
by the Employer 18 The General Counsel also relies on
the fact that Martin testified that a factor in his decision
to discharge Martinez was Kelleher's statement to him
that the Union could do nothing about the discharge of
Martinez because he was not a member of the Union. In
light of Martin's equivocation regarding whether Kel-
leher made this statement on March 21 or 22, 1983, and
in light of Kelleher's denials, I find Martin received such
assurances, if at all, only after he had fired Martinez.
Even were my findings to the contrary, the Union's posi-
tion on the propriety of the Employer's actions is irrele-
vant to the allegation of an 8(b)(2) violation since Kel-
leher was unaware of Martin's motivations and, further,
since Kelleher did nothing to cause Martin to form the
erroneous impression or belief that the union security-
clause required the immediate termination of Martinez 19
4 Summary and conclusions
I have found that, without any intention or desire to
procure Martinez' termination, Kelleher called Martin on
March 21, 1983, and told him that Martinez had not yet
submitted a membership application to the Union. I have
further found that Martin responded to Kelleher that he
was "prone" to terminate Martinez because of earlier dis-
satisfaction with his work and that Kelleher then in-
formed Martin that he would not be pursuing Martinez'
membership application since he would not long be an
employee of the Employer I find that Martin did not
take Kelleher's call to be a request or other attempt to
cause Martinez' discharge. I find that Martin terminated
Martinez at least in substantial part because of his mistak-
en belief that the contract's union-security clause re-
quired Martin's termination by the Employer even with-
out a union request of any kind. I have further found
that Kelleher, as agent of the Union, was not aware of
this mistaken notion of Martin, may not fairly be found
to have caused Martin's mistaken belief and, finally, that
Kelleher was unaware that this mistaken notion was the
Employer's true motivation for terminating Martinez.
Thus, I find that the Union made no request or induce-
ment to the Employer to terminate Martinez and that the
Union may not be found to have caused or attempted to
18 Even if I were to address the postdischarge theory, I would find it
without merit This is so because I have made specific findings that Kel-
leher believed that Martinez was being fired for reasons unrelated to his
nonunion status and that Kelleher followed the practice of not allowing
individuals not in the trade to become members of Respondent Since
Kelleher believed that Martinez was to be terminated, Kelleher followed
his consistent past practice of denying such a nonemployee an opportuni-
ty to join the Union Kelleher simply cannot be charged with the knowl-
edge, necessary to the General Counsel's theory here, that preventing
Martinez from joining the Union would consummate Martin's determina-
tion to discharge Martinez as a result of his failure to comply with Mar-
tin's erroneous understanding of the requirements of the union-security
clause
19 Since Kelleher, as I found, supra, believed Martin was going to fire
Martinez because of misconduct which occurred before the initial March
21, 1983 phone call, his assurances to Martin regarding Martin 's rights to
fire Martinez were not linked to any motive by Kelleher to cause Marti-
nez' discharge Rather, I find it was a statement by a union agent to a
friendly employer that the union would not challenge the employer's dis-
charge decision While such a position might constitute a separate viola-
tion of the Act, as noted, supra, the General Counsel specifically dis-
claimed any intention to go beyond the narrow pleadings of the case
GRAPHIC ARTS LOCAL 280 (BALZER-SHOPES)
cause Martinez' termination . Accordingly, I find the
General Counsel has failed to sustain the allegations of
the complaint alleging a violation of Section 8(b)(1)(A)
and 8 (b)(2) of the Act. Therefore, I shall dismiss the case
in its entirety.
CONCLUSIONS OF LAW
1. The Employer is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent did not cause or attempt to cause the
Employer to terminate Eloy Martinez.
793
4. Respondent has not violated the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed20
ORDER
The complaint shall be dismissed in its entirety.
20 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.