Local Union No. 1959, Carpenters

National Labor Relations Board - Board Decisions

Apr 24, 1975

217 N.L.R.B. 508 (N.L.R.B. 1975)

508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No. 1959 , United Brotherhood of Car-
penters and Joiners of America (Aurora Modular
Industries and Jerry D. Turnbough . Case 21-CB-
4814-4
April 24, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On March 26, 1974, Administrative Law Judge Da-
vid E. Davis issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed
exceptions' and a supporting 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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief and
has decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge, as modified
herein, and to adopt his recommended Order.
The Administrative Law Judge, discrediting Charg-
ing Party Turnbough, found that Summers, financial
secretary-and business agent of the Local, did not con-
dition the acceptance of Turnbough's dues on the pay-
ment of the fine assessed him by the District Council,
the Respondent in Case 21-CB-4878. He further found
that the Respondent Local played no part in the initia-
tion of the charges against Turnbough and that, if there
is any liability for fining Turnbough, redress must be
sought against a party other than the Respondent Lo-
cal. He concluded that the General Counsel failed by
a preponderance of the evidence to prove that Re-
spondent Local fined Turnbough in violation of Section
8(b)(1)(B) and dismissed the complaint in its entirety.
We agree that the complaint should be dismissed in
its entirety. In so doing, however, we do not rely on the
reasons set forth by the Administrative Law Judge.
The Local and the Company were parties to a collec-
tive-bargaining agreement. On July 23, 1973, the Local
went on a strike against the company which lasted
until July 26, 1973. During the strike Turnbough, a
supervisor and union member, crossed the picket line.
On November 19, 1973, Turnbough was fined by the
District Council for causing dissenion among the union
members, working behind a picket line, and -violating
the obligation.
Prior to the strike, Turnbough acted as a supervisor
only. He did no production work and did not bring his
1 The General Counsel also excepted to the Administrative Law Judge's
denial of his motion to consolidate this case with Case 21-CB-4878 and
reopen the record to take additional evidence. In view of our disposition
herein, we find the General Counsel's exceptions without merit
tools to work. However, during the strike Turnbough
not only carried his tools to work but did rank-and-file
production work. Turnbough admitted that during the
strike he did 50-percent rank-and-file production work
and 50-percent supervisory work.
In Hammond Publishers, Inc.,' the Board recently
decided, in light of the Court's decision in Florida
Power and Light v. I.B.E. W. Local 641,3 that a union
violates 8(b)(1)(B) of the Act where it disciplines super-
visor-members who perform substantially supervisory
functions and only a minimal amount of rank-and-file
struck work during a strike. Application of that ra-
tionale to the facts herein requires the complaint be
dismissed because Turnbough performed substantially
more than a minimal amount of rank-and-file struck
work during the Strike.'
ORDER
Pursuant to Section 10(c) of the National Labor Re- -
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
the complaint be dismissed in its entirety.
MEMBER FANNING, concurring:
I concur only in the result. I do not agree with my
colleagues' rationale in reaching that result to the ex-
tent it implies a different result would be reached had
Turnbough performed "substantially only supervisory
functions.s5
2 Chicago Typographical Union No 16 (Hammond Publishers, Inc.), 216
NLRB No. 149 (1975) (Member Fanning dissenting).
3 417 U S 790 (1974).
4 See also New York Typographical Union No. 6, International Typo-
graphical Union AFL-CIO (Daily Racing Form, a subsidiary of Triangle
Publications, Inc.), 216 NLRB No 147 (1974) (Member Fanning dissent-
ing) See Bakery & Confectionery Workers International Union ofAmenca,
Local Unions 24 and 119 (Food Employers Council, Inc.), 216 NLRB No
150 (1975).
5 See my dissent in Hammond Publishers, Inc., supra, and my concurnng
opinion in Food Employers Council Inc, supra.
DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Administrative Law Judge: This case was
heard by me on February 26, 1974, in Riverside, California,
pursuant to a charge filed on December 28, 1973,' by an
individual, Jerry D. Turnbough, against Local Union No.
1959, United Brotherhood of Carpenters and Joiners of
America, herein sometimes called the Union, Respondent, or
Respondent Union, and a complaint issued on January 24,
1974, alleging that Respondent Union filed or caused to be
filed "intraunion" charges against Turnbough because he
crossed the Union's picket line on or about July 23 while a
strike was in progress at the premises of Aurora Modular
Industries, herein referred to as the Employer, Company or
I Hereafter all dates will refer to 1973 unless otherwise specified
217 NLRB No. 82
LOCAL UNION NO. 1959, CARPENTERS 509
Modular; that in or about November, Respondent Union
imposed a fine in the amount of $100 against Turnbough for
having crossed the aforesaid picket line; and that on or about
December 14, Respondent demanded that Modular termi-
nate its employment of Turnbough because of his failure to
pay the fine. At the hearing, General Counsel moved to
amend the complaint in paragraph 9 as follows:
In or about July 1973, the Respondent caused to be
filed, and did file, with District Council of Carpenters
for San Bernardino and Riverside Counties, intraunion
charges against Turnbough for having crossed Respon-
dent's picket line described in paragraph 7 above, and
related activities.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. Stipulations
It was stipulated at the outset of the hearing that the Union
and Company were parties to a labor agreement in effect at
all times material herein and that the Respondent Union
commenced a strike against the Company on July 23 which
lasted through July 26.
It was further stipulated that Turnbough was a supervisor
within the meaning of the Act and that he participated in the
adjustment of grievances.
B. The Evidence
The General Counsel moved to amend paragraph 10 as
follows:
In or about November 1973, District Council of Car-
penters for San Bernardino and Riverside Counties im-
posed a fine pursuant to Respondent's charge and on
behalf of Respondent against Turnbough for having
crossed Respondent's aforesaid picket line and related
activities.
The amendments were allowed over the objections of coun-
sel for Respondent Union.
Respondent in its answer, while admitting certain allega-
tions of the complaint, denied that it had engaged in any
unfair labor practices.
Upon the entire record,' my observation of the witnesses,
and upon consideration of the brief filed by the General
Counsel, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE COMPANY
Aurora Modular Industries, the Employer involved herein,
is a corporation with its principal place of business located in
Riverside, California, where it is engaged in the business of
constructing modular buildings. In the conduct of its busi-
ness, the Company annually sells and ships products valued
in excess of $50,000 directly to customers located outside the
State of California. It is admitted and I find that the Com-
pany is engaged in commerce within the meaning of Section
2(6) and (7) of the Act. I further find that it would effectuate
the policies of the Act to assert jurisdiction herein.
II THE UNION INVOLVED
It its alleged , admitted , and I find that Respondent Union
is a labor organization within the meaning of Section 2(5) of
the Act.
2 The transcript is corrected at p 112,1 14, by striking "General Counsel"
and substituting "Respondent Union's counsel."
Turnbough testified that prior to his promotion to supervi-
sory status sometime in 1972, he was acting as the Union's
shop steward. Shortly after he became a supervisor he had a
conversation with Thomas W. Summers, financial secretary
and business agent of the Union, in which it was agreed that
Turnbough would no longer be the Union's shop steward.
Nevertheless, Turnbough continued to be a member of the
Union. On July 23 and on the following days while Respond-
ent was carrying on its strike against the Company, Turn-
bough crossed the picket line. The evidence shows that prior
to the strike Tumbough did very little production work and
that during the period of the strike Turnbough spent 50 per-
cent of his time in production work. Turnbough credibly
testified that various employees and Fred Phillips, the union
steward, who was picketing the Company's premises, told
Turnbough on several occasions while Turnbough was work-
ing near the plant gate that he would be fined for working
behind the picket line. The fine was mentioned ,as $300 per
day, $200 per day, and finally a total fine of $500. Turnbough
testified that they were "kidding" him about being fined.
When questioned further he asserted, "Well, I didn't know
whether it was serious or not. I wasn't paying attention to it."
About July 28, 1974, Turnbough received a communi-
cation3 dated July 27,1974, which read as follows:
Dear Sir and Brother:
This is to officially notify you to be present at the
meeting of the Executive Committee of this District
Council to beheld on August 1, 1973, 7:30 P.M. at 1211
Mt. Vernon Avenue, Colton, California, in regard to
charges that have been preferred against you by Brother
Thomas W. Summers, Local 1959.
At this time, you will be given an opportunity to show
cause why these charges should not be processed.
It is imperative that you be present.
Accompanying the foregoing was a copy of the charge
filed4 which reads as follows:
3 G.C. Exh 2
4 G.C Exh 3.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CARPENTERS LOCAL NO. 1959
July 26, 1973
VERN C. RIPPETOE, Secretary
1211 N. Mt. Vernon Ave., Colton, Calif.
San Bernardino & Riverside Counties
District Council of Carpenters
Dear Sir and Brother:
I, the undersigned , wish to prefer charges against the
following Brother: Jerry Doyle Turnbough, 10021
Bloomington Ave., Bloomington 92316, Member of Lo-
cal No. 1959, for violation of. Sec. 55-Al, 10, & 13 of the
Constitution & Laws of the United Brotherhood of Car-
penters & Joiners of America; also Article II, Section 6
of the San Bernardino-Riverside Counties District of
Carpenters.
Specifically: Sec. 55-Al, Causing Dissension among
the members of the United Brotherhood. Sec. 55-A10,
Working behind a picket line. Sec. 55-A13, Violating the
Obligation. Art. II, Sec. 6, Working behind a picket line.
This offense occurred on July 23, 24, 25, 26, 1973 at
the Aurora Modular Industries job located at 16831
Krameria Avenue, Riverside.
Fraternally yours,
/s/ Thomas W. Summers, Member Local
Union 1959
Please notify the following witnesses:
Fred R. Phillips, 3843 Overland Street,Ri rsi
92503
20340 Walnut, Perris, 92370
It should be mentioned that General Counsel's Exhibit 3
is a District Council form containing blank spaces. _
Subsequently, Turnbough was requested to appear before
a trial committee of the District Council, convicted, and
'fined.
On December 14, the Company was officially advised by
the Union that Turnbough was failing to comply with article
IV of the contract and therefore his discharge was requested
unless adjusted by December 21.5
Turnbough testified that he appeared before the District
Council's executive board on August 1, as directed in General
Counsel's Exhibit 2; that he was asked why he crossed the
picket line; that he replied that the Company was having
financial troubles and he didn't wish to walk out and have
them go broke;' that thereafter he received General Coun-
sel's Exhibit 4 which requested his presence on September 25
at a meeting of the trial committee of the council; that he
appeared as directed and was present; that he heard the
charges against him and the trial board selected; that there-
after he received a letter' to go to trial but when he showed
up, the trial board was not present, that he was told he would
be notified, further but received no further notice; that he took
a week's vacation in November; that when he returned he was
informed the trial was held in his absence; that he then took
2 more weeks' vacation the first part of December; that Jerry
Bashaw , the plant superintendent , called him into his office
on December 16, and showed him General Counsel's Exhibit
5;8 that Bashaw said that he was obliged to enforce the pro-
visions of the labor agreement ; that he then called Summers
on the telephone saying that he wished to pay his dues; that
"they" said "they" would not accept his dues unless he paid
a $100 fine from the District; that he later went to Summers'
office, paid the $100 fine under protest, and paid his dues
which were accepted.'
On cross-examination, Turnbough denied that he had been
notified at any time prior to December 14 that he was delin-
quent in his dues and subject to discharge.1° With regard to
his conversation with Summers, Turnbough testified on
cross-examination as follows:
A. Well, I got back from vacation on the 16th, and the
dues I had to the 15th, I phoned Tom Summers, like I
say, and tried to pay the dues,, and he said they would
not accept them unless I paid a $100 fine.
Q. He told you they wouldn't accept them unless
A. They said there is a $100 fine sitting on the desk.
Q. Wasn't he just informing you about the $100 fine?
A. What?
Q. He was just telling you about it, right?
A. He told me he would not accept my dues unless I
paid a $100 fine from the District Council he had.
Q. Do you remember what he said to you precisely?
A. I told him I was going to pay my dues. He said it
won't do any good. I won't accept them.
Q. Then you inquired why?
A. Yes. He had a $100 fine on me from the District
Council he said before he could accept dues. I said are
you refusing them. He said no. I said what are you doing
if you won't accept them.
Thomas W. Summers , called as a witness by Respondent
Union, testified that he was the financial secretary and busi-
ness representative of the Union since July 1967; that he filed
the charges against Turnbough; that he filed the charge as an
individual, saying:
Any Brotherhood member or any member of the
United Brotherhood of Carpenters and Joiners of
America has the obligation and also the legal aspects of
signing and filing a set of charges against another
brother when they see that brother doing something
wrong.
In this case brother Turnbough crossed a picket line,
worked behind picket line, so as a brother Carpenter I
preferred charges.
Summers further testified that in signing charges, the
charging party must disclose of which local he is a member;
that he, therefore, identified himself as d member of Local
5 G C. Exh 5.
6 Resp. Exh 1, the minutes of the executive board, show that Turnbough
pleaded guilty of working behind a picket line and not guilty to other
charges.
7 Probably Resp Exh 2
B The letter requesting Turnbough 's termination unless he fulfilled the
requirements of art IV of the agreement on or before December 21
9 Receipts for the payments were introduced as G C Exhs 6(a) and 6(b)
10 Resp. Exhs, 5(A), (B), (C), and (D) clearly indicate otherwise.
LOCAL UNION NO. 1959, CARPENTERS 511
No. 1959; that charges must be filed with the District Council
that has jurisdiction; that the Local, as such, is not involved
in any way; that all communications concerning the Turn-
bough charges were mailed by and under the'authority of the
District Council; that neither he nor the Local had anything
to do with the trial or disposition except that he was a witness;
that he had also included Phillips' name as a witness and both
had received notices so that they would appear; that no one
from Local 1959 was on the trial committee that heard the
charges against Turnbough; that Turnbough's trial was origi-
nally scheduled for September 25 but was postponed to Octo-
ber 17; that the minutes for October 1711 do not indicate
whether Turnbough was present; that the District Council
sent to the Local Respondent's Exhibit 4 with a copy to
Turnbough on November 19; that it reads as follows:
November 19, 1973
Thomas W. Summers, Financial Secretary
Carpenters Local 1959
22404 Barton Road
Colton, California 92324
Dear Sir and Brother:
Your member, Jerry Doyle Turnbough, was cited
before the Trial Committee of this District Council on
October 17, 1973, for violation of Sec. 55-Al, 10 & 13
of the Constitution, and Article II, Sec. 6 of the District
Council By-Laws.
The Trial Committee found him guilty as charged and
imposed a fine of $50.00 on each violation, in the total
amount of $200.00, of which $100.00 is to be held in
abeyance if there is no further violation within one year.
The total fine now due is $100.00.
Will you please collect the above fine of $100.00, and
forward -to this District Council in accordance with Sec-
tion 450 of the General Constitution.
Fraternally,
CHARLES G. LOVE
Executive Secretary
CC: Jerry Doyle Turnbough
10021 Bloommgon Ave.,
Bloomington , Calif.
Summers, continuing his testimony, said that Respon-
dent's Exhibit 4 was sent to him because he was the financial
secretary of the Union; and that it was his obligation to
collect all money under the International Constitution which
in section 5, paragraph 0, reads as follows:
All fines imposed and assessments legally levied by any
local union or district council on a member of an outside
district shall be charged and collected from the member
by the local union, forwarded to the district council or
local union where violation of rules occurred under pen-
alty of suspension.
11 Resp. Exh 3.
Summers further testified that when he collected the fine
he transmitted it to the District Council; that he sent General
Counsel's Exhibit 5 to Modular because Turnbough had not
paid his dues for December; that dues were payable in ad-
vance; that-he customarily sent a letter within 2 weeks to
those who had not paid; that on December 17 Turnbough
came in saying that he had not paid his dues because he had
just returned from a vacation; that he did not remember
receiving a telephone call from Turnbough prior to Turn-
bough's arrival in the office; that in his conversation with
Turnbough he reminded him that there was -a $100 fine im-
posed on him by the District Council, that if he didn't pay
it by a certain time he would be suspended as the general
constitution provides; that he did not condition the accept-
ance of Turnbough's dues upon the payment of the fine; that
although he did not remember having a telephone call with
Turnbough, nevertheless, if there was such a call he would
not have told him that he would not accept his dues uless he
paid the fine; that he made no such statement at any time;
that he discussed the method by which Turnbough could
appeal the fine and that he gave him a receipt for the
fine12 that showed that payment was made subject to ap-
peal; and that a separate receipt was issued for the dues13
and that he did not at any time refuse to accept Turnbough's
dues. Summers further testified that the only purpose of the
letter of December 14 and similar letters to Modular concern-
ing Turnbough was to call attention to Turnbough's failure
to pay his dues on time.
C. Analysis and Conclusions
As I indicated on the record of the hearing, Turnbough did
not impress me as a reliable witness. A more thorough exami-
nation of the record supports this preliminary appraisal as it
shows that Turnbough denied previous dues delinquencies
and demonstrated some evasiveness in response to questions
propounded by counsel for Respondent. On the other hand,
Summers was a careful and considerate witness who showed
a desire to be forthright and testified in accordance to his best
memory without exaggeration or embellishment. He demon-
strated these qualities particularly when testifying with re-
gard to his conversation with Turnbough on December 17.
Turnbough testified that he telephoned Summers prior to
meeting Summers in person. In so testifying, he said "they"
told him "they" would not accept his dues unless he paid his
fine. Later he did say Summers said that he would not accept
his dues unless the fine was paid but he equivocated by also
saying that Summers stated that he was not refusing to accept
his dues. Summers, in turn, testified that he had no memory
of a telephone conversation with Turnbough but was certain
that he did not say and did not refuse to accept Turnbough's
dues at any time. In fact Summers and Turnbough agree that
Summers assisted Turnbough by informing him how to ap-
peal and noted on the receipt for the fine that it was paid
subject to appeal. I conclude therefore that Summers did not
talk with Turnbough on the telephone and that when he did
speak with Turnbough in person on December 17, he merely
informed him that he had been fined $100 and that he would
12 G C Exh. 6(a).
13 G C Exh. 6(b)
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be subject to suspension under the general constitution if he
did not pay-by a certain date.
With reference to all other matters leading to the fine, I
find that the Respondent Union played no part in the intia-
tion of the charges against Turnbough , in their prosecution,
or in the assessment of the fine. I fully credit Summers in his
uncontradicted testimonial account of the rights and privi-
leges of individual members in filing charges and that he filed
the charge as an individual and that he participated in its
prosecution only as a witness. If there is any liability for the
fining of Turnbough, redress must be sought from a party
other than the Respondent Union. I further find that the
request for Turnbough's discharge as set forth in General
Counsel's Exhibit 5 was a routine letter dispatched only be-
cause Turnbough had not paid his -dues for the month of
December. Respondent 's Exhibits -5(a)-(d) demonstrate that
Turnbough had been the subject of prior letters of this charac-
ter.
In view of my conclusions above, I find that the General
Counsel has failed by a preponderance of the evidence to
prove the allegations of paragraphs 9 and 10 of the complaint,
as amended , and that the allegations that the Respondent
Union has violated Section 8(b)(1)(B) of the Act must be
dismissed.
[Recommended Order for dismissal omitted from
publication.]