Graphic Communications Local 388M (Georgia Pacific)

National Labor Relations Board - Board Decisions

Dec 31, 1990

300 N.L.R.B. 1071 (N.L.R.B. 1990)

1071
300 NLRB No. 145
GRAPHIC COMMUNICATIONS LOCAL 388M (GEORGIA PACIFIC)
1 The complaint inadvertently referred to Powell as Nowell Powell.
2 The Respondents’ request for oral argument is denied as the stipulation,
exhibits, and briefs provide a sufficient basis for decision in this case.
Graphic Communications International Union,
LocaL 388M, and Graphic Communications
International Union, District Council No. 2
(Georgia Pacific Corporation) and Patrick J.
Gallagher, Jr. Case 32–CB–3319
December 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
Upon a charge and a first amended charge filed by
Patrick J. Gallagher Jr. on, respectively, October 12
and November 21, 1989, the General Counsel of the
National Labor Relations Board issued a complaint on
December 1, 1989, against the Respondents, Graphic
Communications International Union, Local 388M
(Local 388M), and Graphic Communications Inter-
national Union, District Council No. 2 (District Coun-
cil), alleging that the Respondents violated Section
8(b)(1)(A) of the National Labor Relations Act.
The complaint alleges that about December 21,
1988, Respondent Local 388M processed internal
union charges against Patrick J. Gallagher Jr., Vito
Paxia, and Joseph Fernandez, alleging that the three
had testified falsely against another union member in
an arbitration proceeding. Respondent District Council
thereafter processed the charges up to and through an
intraunion trial on February 10, 1989, and a second
intraunion trial occurring August 25, 1989, found the
three guilty as charged, and assessed fines against
them. The complaint further alleges that the Respond-
ents engaged in the above-described conduct because
Gallagher, Paxia, and Fernandez testified on behalf of
Georgia Pacific Corporation (Georgia Pacific or the
Employer) at an arbitration hearing concerning the dis-
charge of Norvin Powell,1 testimony that the Respond-
ents knew, or reasonably should have known, is pro-
tected by Section 7 of the Act. The complaint alleges
that by processing the charges through an intraunion
trial, finding the three guilty, and assessing fines, the
Respondents have restrained and coerced, and are re-
straining and coercing, employees in the exercise of
the rights guaranteed them in Section 7 of the Act and
thereby have violated Section 8(b)(1)(A) of the Act.
On May 14, 1990, the parties jointly moved the
Board to transfer the proceedings to the Board, without
benefit of a hearing before an administrative law
judge, and submitted a proposed record consisting of
the formal papers and the parties’ stipulation of facts
with attached exhibits. On June 21, 1990, the Deputy
Executive Secretary, by direction of the Board, issued
an order granting the motion, approving the stipulation,
and transferring the proceeding to the Board. There-
after, the General Counsel filed an opening brief, the
Respondents filed an opposition brief, and the General
Counsel filed a reply to the Respondents’ opposition
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
On the entire record in the case, the Board makes
the following2
FINDINGS OF FACT
I. JURISIDICTION
The Employer, Georgia Pacific Corporation, with an
office and place of business in Modesto, California, is
engaged in the nonretail manufacture and sale of paper
boxes. During the past 12 months, Georgia Pacific, in
the course and conduct of its business operations, pur-
chased and received goods or services valued in excess
of $50,000 directly from suppliers outside the State of
California. We find that the Employer is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. We further find that the
Respondents, Local 388M and District Council No. 2,
are labor organizations within the meaning of Section
2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICE
The issue presented is whether the Respondents
have violated Section 8(b)(1)(A) by processing internal
union charges alleging that certain of its members
falsely testified at an arbitration hearing, finding those
members guilty of the charges and fining them.
A. Facts
Respondent Local 388M represents a bargaining unit
of Georgia Pacific employees, and is party to a collec-
tive-bargaining agreement with Georgia Pacific. Pow-
ell, Gallagher, Paxia, and Fernandez are all members
of Local 388M and employees of Georgia Pacific.
About September 2, 1987, Powell was terminated by
Georgia Pacific following an altercation with Gallagher
in which Powell allegedly physically assaulted Galla-
gher by ‘‘headbutting’’ him. Powell filed a grievance
regarding his termination that was thereafter submitted
to binding arbitration pursuant to the collective-bar-
gaining agreement.
Gallagher, Paxia, and Fernandez testified on behalf
of the Employer at the arbitration hearing, and Galla-
gher and Paxia testified that the headbutting incident
occurred. Powell denied that the headbutting incident
took place. Additionally, Gallagher, Paxia, and
Fernandez testified regarding alleged earlier incidents
involving Powell.
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 In so finding, the arbitrator specifically credited the testimony of Vito
Paxia.
4 The first trial was set aside on the basis that the three charged members
had been given insufficient notice of the hearing against them.
5 Gallagher was fined $500. Paxia and Fernandez were fined $300. Each
employee paid his fine. 6 29 U.S.C. § 401 et seq.
The arbitrator found that Powell ‘‘did inflict an un-
wanted touching [viz, a battery] by ‘headbutting’ Gal-
lagher.’’3 The arbitrator nevertheless found that the
Employer did not have just cause for Powell’s dis-
charge, and reduced Powell’s discipline to a 6-month
suspension. In so finding, the arbitrator ruled that al-
though Powell’s battery against Gallagher could not be
condoned, the evidence did not support the Employer’s
argument that the discharge was justified because Pow-
ell’s conduct was part of a long history of alleged vio-
lent and intimidating conduct by Powell in the work-
place.
About December 21, 1988, Powell filed internal
union charges with Respondent Local 388M, alleging
that Gallagher, Paxia, and Fernandez falsely testified
against him at the arbitration hearing. Respondent
Local 388M forwarded the charges to Respondent Dis-
trict Council, which held an intraunion trial at which
Gallagher, Paxia, and Fernandez were found guilty as
charged and were fined. Following the filing of an ap-
peal by the three pursuant to the Respondents’ internal
procedures, the District Council rescinded its decision
and rescheduled a second trial on the same charges.4
At the second proceeding, Gallagher, Paxia, and
Fernandez were again found guilty of giving false tes-
timony at the arbitration hearing, and were assessed
the same fines.5 No appeal was filed.
The parties stipulated that the Respondents’ actions
were undertaken in a good-faith attempt to comply
with the union constitutions. The parties also stipu-
lated, for the purpose of this proceeding only, that
there is no contention that the alleged truth or falsity
of the testimony by Gallagher, Paxia, and Fernandez at
the arbitration proceeding is an issue here.
B. Contentions of the Parties
The General Counsel contends that under Board law
a union violates the Act by fining members for testi-
fying in grievance or arbitration proceedings, and that
the Respondents’ actions violate this rule. The General
Counsel further argues that union members facing such
internal union charges need not exhaust any internal
union appeal process before seeking relief from the
Board.
The Respondents acknowledge that it is unlawful to
fine members for testifying at grievance or arbitration
proceedings. They argue, however, that a union may
process internal union charges alleging, as in this case,
the giving of false testimony against another member
at an arbitration hearing, when such charges are proc-
essed in good-faith compliance with internal union
procedures established in accordance with the Labor-
Management Reporting and Disclosure Act
(LMRDA).6 The Respondents rely on Teamsters Local
557 (Liberty Transfer), 218 NLRB 1117, 1121 (1975),
and Teamsters Local 788, 190 NLRB 24, 27 (1971),
where administrative law judges stated, in dicta, that
they were not suggesting that a union may not dis-
cipline a member for testifying falsely at arbitration
proceedings where perjury has been established in a
criminal prosecution by a court of competent jurisdic-
tion.
The Respondents contend that although the Board
has thus approved of internal union discipline for false
testimony at an arbitration proceeding, the court con-
viction standard is erroneous because it implies that in-
ternal union proceedings to determine the truth or fal-
sity of testimony are inherently biased. The Respond-
ents argue further that the standard is impractical due
to the difficulty of obtaining criminal prosecution of a
union member for perjury, and that the standard would
preclude union discipline even where an arbitrator
made a specific finding of perjury.
The Respondents additionally contend that their ac-
tions were a lawful attempt, under Scofield v. NLRB,
394 U.S. 423 (1969), to enforce their constitutional
rules that prohibit a member from ‘‘wrong[ing] a
brother or sister member’’ or ‘‘attempt[ing to] deprive
another member . . . of employment from personal
motives or with malicious intent or to supersede him
in any manner.’’ The Court held in Scofield that
§ 8(b)(1) leaves a union free to enforce a properly
adopted rule which reflects a legitimate union in-
terest, impairs no policy Congress has imbedded
in the labor laws, and is reasonably enforced
against union members who are free to leave the
union and escape the rule.
394 U.S. at 430. The Respondents alternatively argue
that Board action should be stayed pending the exhaus-
tion of all internal union appeal procedures.
C. Discussion
It is axiomatic that grievance and arbitration proce-
dures are a fundamental component of national labor
policy. Steelworkers v. Gulf Navigation, 363 U.S. 574,
581 (1960). It is essential to the integrity of these
processes that witnesses feel free to testify before an
arbitrator without fear of reprisal from either the em-
ployer or the union. Accordingly, Board law holds that
a union violates Section 8(b)(1)(A) of the Act by dis-
ciplining members for appearing and testifying in arbi-
tration proceedings in a manner contrary to the interest
of other employees. Oil Workers Local 7-103 (DAP,
1073GRAPHIC COMMUNICATIONS LOCAL 388M (GEORGIA PACIFIC)
7 Both of these cases refer to a conviction of perjury by a court of com-
petent jurisdiction. The Respondents argue, however, that objective evidence
of perjured testimony other than a court conviction of perjury, e.g., a specific
perjury finding by an arbitrator, may serve as a basis for the imposition of
internal union discipline. We need not pass on whether such a finding would
be sufficient in the absence of any contention by the Respondents that such
a finding has been made in this case regarding the testimony of Gallagher,
Paxia, and Fernandez.
8 That is especially true in cases such as this, where the employee’s testi-
mony at arbitration has been antagonistic to the Union’s position.
9 This standard is consonant with the Board’s requirement that an employer
has the burden of establishing perjury in order to lawfully discharge an em-
ployee for giving false testimony at a Board proceeding. Big Three Industrial
Gas & Equipment Co., 212 NLRB 800, 803–804 (1974), enfd. mem. 512 F.2d
1404 (5th Cir. 1975).
10 We reject the Respondents’ contention that the charged members are re-
quired to exhaust internal union appeal procedures before they may seek reme-
dial relief from the Board. The Respondents’ appeal procedures in this case
must yield to the overriding policy of promoting the integrity of the grievance
and arbitration machinery. See Teamsters Local 788, supra, 190 NLRB at 26.
11 We do not view Cement Workers D-357 (Southwestern Portland Cement),
288 NLRB 1156, 1157 (1988), as inconsistent with the standard we have ap-
plied in this case. Although there is language in Cement Workers that could
be broadly read to mean that a union could not discipline a member even if
he gave perjured testimony, there was no objective evidence in that case that
the union member in question had perjured himself. Thus, there was no reason
for the Board to consider whether the union in that case could lawfully have
disclipined the member if it had such objective evidence.
12 The General Counsel has requested that we order the Respondents to indi-
vidually mail notices to all members. We find such a measure to be unneces-
sary in the absence of any showing that posting of the notice on the bulletin
board maintained by the Respondents at the Employer’s facility is inadequate.
We further find the requested order to be unwarranted as this case does not
involve egregious or widespread unfair labor practices.
Inc.), 269 NLRB 129, 130 (1984); Oil Workers Local
4-23 (Gulf Oil), 274 NLRB 475 (1985).
As the Respondents observe, the Board has also rec-
ognized, at least in dictum, the right of a union to dis-
cipline a member for giving perjured testimony at an
arbitration proceeding where perjury has been estab-
lished by a forum other than the internal union proce-
dure. Liberty Transfer, supra; Teamsters Local 788,
supra.7 We explicitly adopt that standard today, and re-
ject the Respondents’ argument that the only pre-
requisite to imposing discipline is that a union, when
faced with charges alleging false testimony, process
those charges in good-faith compliance with internal
union procedures established in accordance with the
LMRDA. The right of an employee to give testimony
at arbitration proceedings without fear of reprisal
would be a precarious one if a union were free to de-
termine unilaterally whether the testimony was false
and to impose discipline.8 A standard requiring a find-
ing of perjury—as opposed to merely inaccurate testi-
mony—to support internal union discipline will fully
ensure that employees will freely participate in arbitra-
tion proceedings without fear of unsubstantiated dis-
ciplinary measures.9
Our ruling today fully comports with the Supreme
Court’s decision in Scofield. Scofield directs that a
union rule may not be enforced if it ‘‘invades or frus-
trates an overriding policy of the labor laws.’’ 394
U.S. at 429. We find that Board approval of the Re-
spondents’ attempt to enforce their rules in this case
would adversely affect the integrity of the grievance
and arbitration machinery by having a chilling effect
on the willingness of their members to testify at future
arbitration proceedings.10
Accordingly, we hold that objective evidence of per-
jury is necessary to support internal union discipline
for false testimony given at an arbitration proceeding.
It is undisputed that there is no evidence of convictions
of perjury in this case regarding the testimony of Gal-
lagher, Paxia, and Fernandez. We therefore find that
the Respondents violated Section 8(b)(1)(A) of the Act
by processing internal union charges against them al-
leging that they gave false testimony, finding them
guilty, and fining them.11
CONCLUSIONS OF LAW
1. Georgia Pacific Corporation is an employer en-
gaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Respondent Local 388M and Respondent District
Council are labor organizations within the meaning of
Section 2(5) of the Act.
3. The Respondents, by processing internal union
charges against Patrick J. Gallagher Jr., Vito Paxia,
and Joseph Fernandez, holding a trial and finding them
guilty of giving false testimony at an arbitration hear-
ing, and fining them, have restrained and coerced them
in the exercise of the rights guaranteed them by Sec-
tion 7 of the Act, and thereby engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A) of
the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the meaning
of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondents have engaged in
unfair labor practices in violation of Section 8(b)(1)(A)
of the Act, we shall order that they cease and desist
and take certain affirmative action designed to effec-
tuate the policies of the Act.
We shall order that the Respondents refund to Pat-
rick J. Gallagher Jr., Vito Paxia, and Joseph Fernandez
the full amounts of the fines assessed against them,
with interest to be computed in the manner set forth
in New Horizons for the Retarded, 283 NLRB 1173
(1987). We shall further order that the Respondents re-
move from their records all references to the proceed-
ings and fines against Gallagher, Paxia, and Fernandez,
and notify them in writing that this action has been
taken.12 In addition, in order to place the three em-
ployees in the position they would have been absent
the Respondents’ unfair labor practices, we shall order
the Respondents to make them whole for all legal and
other expenses they incurred, with interest computed in
the manner set forth in New Horizons, supra. See La-
1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National Labor
Relations Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United
States Court of Appeals Enforcing an Order of the National Labor Relations
Board.’’
borers Northern California Council (Baker Co.), 275
NLRB 278 (1985).
ORDER
The National Labor Relations Board orders that the
Respondents, Graphic Communications International
Union, Local 388M, and Graphic Communications
International Union, District Council No. 2, Oakland,
California, their officers, agents, and representatives,
shall
1. Cease and desist from
(a) Restraining and coercing employees in the exer-
cise of their rights guaranteed by Section 7 of the Act,
by processing internal union charges against
member/employees, holding a trial and finding them
guilty of giving false testimony at an arbitration hear-
ing, and fining them, unless perjury has been estab-
lished in another forum.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Rescind and refund the fines assessed against
Patrick J. Gallagher Jr., Vito Paxia, and Joseph
Fernandez, with interest computed in the manner set
forth in the remedy section of this decision.
(b) Reimburse Patrick J. Gallagher Jr., Vito Paxia,
and Joseph Fernandez for all legal and other expenses
they incurred, with interest computed in the manner set
forth in the remedy section of this decision.
(c) Remove from their records all references to the
proceedings and fines against Gallagher, Paxia, and
Fernandez and notify them in writing that this action
has been taken.
(d) Post at their business office and other places
where notices to their members are customarily posted,
including their bulletin board at the Employer’s Mo-
desto, California facility, copies of the attached notice
marked ‘‘Appendix.’’13 Copies of the notice, on forms
provided by the Regional Director for Region 32, after
being signed by the Respondents’ authorized represent-
ative, shall be posted by the Respondents immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices
to members are customarily posted. Reasonable steps
shall be taken by the Respondents to ensure that the
notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondents have taken to comply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT restrain and coerce employees in the
exercise of the rights guaranteed them by Section 7 of
the Act, by processing internal union charges against
member/employees, holding a trial and finding them
guilty of giving false testimony at an arbitration hear-
ing, and fining them, unless perjury has been estab-
lished in another forum.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL rescind and refund the fines assessed
against Patrick J. Gallagher Jr., Vito Paxia, and Joseph
Fernandez, with interest.
WE WILL reimburse Patrick J. Gallagher Jr., Vito
Paxia, and Joseph Fernandez for all legal and other ex-
penses they incurred, with interest.
WE WILL remove from our records all references to
the proceedings and fines against Gallagher, Paxia, and
Fernandez and notify them in writing that this action
has been taken.
GRAPHIC COMMUNICATIONS INTER-
NATIONAL UNION, LOCAL 388M, AND
GRAPHIC COMMUNICATIONS INTER-
NATIONAL UNION, DISTRICT COUNCIL
NO. 2