Los Angeles County District Council of Carpenters

National Labor Relations Board - Board Decisions

Jun 3, 1976

224 N.L.R.B. 350 (N.L.R.B. 1976)

350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Los Angeles County District Council of Carpenters,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO; Electronic and Space Techni-
cians Local 1553 , AFL-CIO (Hughes Helicopters,
Division of Summa Corporation ) and Tommie
Moore and Mary L O'Neill Cases 31-CB-1730
and 31-CB-1756
swer denying the commission of the alleged unfair labor
practices
Upon the entire record,' from my observation of the de-
meanor of the witnesses, and having considered the post-
hearing briefs, I make the following
FINDINGS OF FACT
June 3, 1976
DECISION AND ORDER
On September 4, 1975, Administrative Law Judge
Jerrold H Shapiro issued the attached Decision in
this proceeding Thereafter, General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in support of the Administrative Law
Judge's Decision
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and is hereby is, dis-
missed in its entirety
DECISION
STATEMENT OF THE CASE
JERROLD H SHAPIRO, Administrative Law Judge The
hearing in this case, held on July 14 and 15, 1975, is based
on charges filed by Tommie Moore and Mary O'Neill
against the Los Angeles County District Council of Car-
penters, United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, herein called the District Council,
and Electronic and Space Technicians Local 1553, AFL-
CIO, herein called Local 1553, and collectively called Re-
spondents The charge in Case 31-CB-1730 was filed
against Respondents on November 25, 1974, and the one
in Case 31-CB-1756 was filed against the District Council
on December 13, 1974, and an amended charge in that case
was filed on May 1, 1975, against the Respondents A con-
solidated complaint issued on May 9, 1975, on behalf of
the General Counsel of the National Labor Relations
Board, herein called the Board, by the Regional Director
of the Board, Region 31, alleging that Respondents have
engaged in unfair labor practices within the meaning of
Section 8(b)(1)(A) of the National Labor Relations Act, as p
amended , herein called the Act Respondents filed an an- Respondents motion to correct transcript
I COMMERCE
At all times material Hughes Helicopters, Division of
Summa Corporation, herein called the Employer, has
maintained manufacturing facilities in California where it
manufactures and sells helicopters and related products
and where it annually purchases and receives goods valued
in excess of $50,000 directly from suppliers located outside
the State of California
On the basis of the foregoing facts, I find that the Em-
ployer is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
II LABOR ORGANIZATION
The District Council and Local 1553 are admittedly la-
bor organizations within the meaning of Section 2(5) of the
Act
III THE QUESTIONS PRESENTED
There are two essential questions to be decided (1)
Whether Tommie Moore and Mary and Constantine
O'Neill were expelled from union membership because
they testified against Local 1553 in a Board unfair labor
practice proceeding or because they tried to replace Local
1553 with another union, and (2) regardless of the motiva-
tion was it permissible to expel them for misconduct which
came to the attention of representatives of Respondents
during a Board unfair labor practice proceeding when the
O'Neills and Moore testified for the General Counsel
IV THE ALLEGED UNFAIR LABOR PRACTICES
A The Facts
1 The events leading up to the expulsions
Local 1553 and the Employer have been parties to suc-
cessive collective-bargaining agreements covering a bar-
gaining unit of about 500 of the Employer's production
and maintenance employees The agreement, in effect dur-
ing the time material herein, was scheduled to terminate on
June 30, 1973 It included, among other provisions, a main-
tenance-of-membership union-security agreement whereby
employees who were members of Local 1553 had to remain
members for the term of the agreement Otherwise employ-
ees were not required to join Local 1553 as a condition of
continued employment The three alleged discriminatees-
Mary and Constantine O'Neill, and Tommie Moore-were
1 The transcri t of the record is hereby corrected in accordance with
224 NLRB No 54
LOS ANGELES COUNTY DISTRICT COUNCIL OF CARPENTERS 351
employed by the Employer within Local 1553's bargaining
unit and at all times material were members of this Union 2
It was not until November 5, 1973, that the negotiators
for the Employer and Local 1553 succeeded in executing a
new collective -bargaining agreement In the meantime, in
August 1973, Teamsters Local 2707, herein called Team-
sters, had started a campaign to replace Local 1553 as the
employees' bargaining representative Mary O'Neill initial-
ly contacted the Teamsters She was the leading Teamsters
adherent in the plant The O'Neills and Tommie Moore
were among the employees most active on behalf of the
Teamsters They campaigned for the Teamsters from Au-
gust 1973 until November 1973 They wore buttons which
indicated they supported the Teamsters, signed cards au-
thorizing the Teamsters to represent them, and solicited
their fellow employees to sign such cards These cards were
solicited in support of a representation petition which the
Teamstt rs filed with the Board on November 5, 1973,3
seeking to unseat Local 1553 as the employees' bargaining
representative
On November 29, 1973, the Teamsters filed an unfair
labor practice charge with the Board against the Employer
in Case 31-CA-4120 alleging that the Employer had un-
lawfully assisted Local 1553 in violation of Section 8(a)(1)
and (2) of the Act, "by entering into an agreement with
Local 1553 at a time when it knew a real question concern-
ing representation existed " The Board's General Counsel
based upon this charge issued a complaint against the Em-
ployer which also named, as a party to the agreement, Lo-
cal 1553 as an interested party If the General Counsel
succeeded in proving that the Employer had unlawfully
assisted Local 1553 by entering into the new agreement the
agreement would have been set aside and Local 1553
would have been unable to continue representing the
Employer's employees absent a Board certification Ac-
cordingly, although not named as a respondent, to protect
its interests Local 1553 was represented by its attorney and
apparently presented witnesses at the unfair labor practice
hearing held before an Administrative Law Judge on Sep-
tember 10 and 11, 1974 In support of the allegations of the
complaint the General Counsel called as witnesses the
O'Neills and Moore who admittedly gave testimony which
was against the interests of Local 1553 An inextricable
part of their testimony was the fact that continuously from
August into November 1973 they had actively supported
the Teamsters organizational campaign by wearing Team-
sters buttons, signing Teamsters authorization cards, and
actively soliciting others to sign such cards In attendance
at the unfair labor practice proceeding to give testimony
for Local 1553 was James Flores a business representative
for the District Council who had served as the chairman of
Local 1553's negotiating committee and Lillian Anguiano
Local 1553's financial secretary
The unfair labor practice hearing in Case 31-CA-4120
2 The 0 Neills are husband and wife Mary O'Neill and Tommie Moore
were still employed by the Employer at the time of the hearing in this case
but Constantine O'Neill was discharged in July or August 1974
3 On the same date Local 1553 and the Employer executed a collective
bargaining agreement to replace the one which had terminated on June 30
1973
closed on September 11, 1974 Thereafter the Teamsters in
effect disclaimed any intention to represent the Employer's
employees represented by Local 1553 On October 4, 1974,
the Teamsters requested that it be allowed to withdraw the
charge upon which the complaint in Case 31-CA-4120 was
based and that the proceeding be vacated This motion was
granted by the Administrative Law Judge on October 25,
1974, and the complaint was dismissed Also on October 4,
1974, the Teamsters requested that the Board's Regional
Director allow it to withdraw its representation petition
which request was granted by the Regional Director on
November 8, 1974
James Flores, a business representative for the District
Council who was chairman of Local 1553's negotiating
committee during the 1973 contract negotiations, during
November 1974 preferred charges against the O'Neills and
Moore for violating the constitution and laws of Local
1553's International union, the United Brotherhood of
Carpenters and Joiners of America The charges,4 identical
in substance, were filed with the District Council's secre-
tary-treasurer and charged the O'Neills and Moore with
violating paragraphs 1, 3, 5, 7, 8, and 13 of section A 55 of
the International Union's constitution and laws which
read
A Section 55 Any member found guilty after
charged and tried for any of the following offen-
ses, may be expelled
(1) Causing dissension among the members of the
United Brotherhood
(3) Advocating separation of any subordinate body
from the United Brotherhood
*
(5) Willful slander or libel of any officer of any mem-
ber of the United Brotherhood
* * *
(7) Furnishing to any unauthorized person, without
the consent of the Local Union, a list of the mem-
bership
(8) Divulging to any unauthorized person, the busi-
ness of any subordinate body without its consent
* * * * *
(13) Violating the Obligation
In the portion of the charge form which asks that the of-
fense be specifically described, Flores wrote that the
O'Neills and Moore "advocated (to) and supported the
Teamsters Distributed material detrimental to Local 1553
[on numerous occasions in mid 1973] "
Upon receipt of Flores' charges the District Council's
secretary-treasurer, following the procedure set out in the
International Union's constitution, sent letters to the
O'Neills and Moore notifying them of the charges and set
4 Flores filed the charges against the 0 Neills on or about November 7
1974, and the one against Moore on or about November 11, 1974
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting dates for them to separately appear before the Dis-
trict Council's executive committee for the purpose of re-
viewing the charges The O'Neills and Moore , as sched-
uled, met with the committee at which time the committee
chairman read the charges and asked if the accused had
anything to say on their behalf The O'Neills pointed out
that the misconduct attributed to them had occurred more
than 30 days prior to the date Flores had filed the charges
and asked why, pursuant to paragraph D, section 56 of the
International Union's constitution , the committee did not
dismiss the charges The chairman truthfully replied that
this provision "did not apply to these charges " 5 The exec-
utive committee also met separately with Flores and asked
him upon what evidence he based his charges Flores told
the Committee that he was present in the hearing room
during the unfair labor practice proceeding in Case 31-
CA-4120 when the O 'Neills and Moore testified to the ef-
fect that they had been actively supporting the Teamsters
and that based on their admissions made at that time he
had filed the charges
The executive committee, whose function is to determine
whether a charge has sufficient merit to go before a trial
committee for hearing , concluded that Flores ' charges war-
ranted a hearing Accordingly, the District Council's secre-
tary-treasurer notified the O 'Neills and Moore, by letter,
that a hearing on their charges had been scheduled before
a trial committee and that they had the right to attend to
defend themselves Moore's hearing was held on December
2, 1974, but she did not attend since she failed to claim the
certified letter which notified her of the proceeding The
O'Neills, as scheduled , on December 16, 1974, attended the
hearing held in their cases
At each hearing Flores was called upon to support his
charges at which time he stated that the O'Neills and
Moore had testified in Flores ' presence at the unfair labor
practice hearing held in Case 31 -CA-4120 that they, in
effect , had actively and continuously for about 3 or 4
months supported the Teamsters ' efforts to supplant Local
1553 as the employees ' bargaining representative and had
solicited other employees to support the Teamsters Flores
told the trial committee that his assertions were supported
by the transcript of the unfair labor practice proceeding
and if the committee desired to read the transcript it was in
the possession of Local 1553's attorney In further support
of the charges Flores called as a witness Lillian Anguiano,
Local 1553's financial secretary , who told the trial commit-
5 Par D, sec 56 of the International Union's constitution in pertinent
part reads
When charges are filed in the District Council they shall be re-
ferred promptly to the Executive Committee In the event that the
Executive Committee determines that the charges allege a By-Law
or Trade Rule violation which occurred more than 30 days prior to the
filing of the charges, the Executive Committee shall return the charges
to the member who filed them with a notice that the charges cannot be
considered or processed
It is undisputed that this limitation period as the chairman of the executive
committee told the O'Neills "did not apply" to Flores charges which in-
volved violations of the International Union s constitution and laws and not
of the union's bylaws or trade rules The period of limitation set out in sec
56 only applies to the District Councils bylaws and trade rules In this
regard I note that the charge form used by Flores clearly differentiates
between a violation of "By Laws, trade rules and/or Constitution
tee that she had also been present at the unfair labor prac-
tice hearing and in effect stated that the O'Neills and
Moore, as Flores charged, and admitted during the course
of their testimony that they had actively supported the
Teamsters and solicited others to support the Teamsters
There is no evidence that the O'Neills contested Flores'
charge that they had actively supported the Teamsters,
rather it appears that they conceded they had engaged in
conduct on behalf of the Teamsters for the purpose of re-
placing Local 1553 as the employees' collective-bargaining
representative
The trial committee having considered the evidence de-
cided that the O'Neills and Moore were guilty as charged
by Flores and should be expelled from the International
Union The committee notified the District Council of its
verdict which in turn, by letters, notified both Local 1553
and the O'Neills and Moore 6
2 The Respondents prior knowledge that members of
Local 1553 including the O'Neills and Moore were
supporting the Teamsters
On the question of whether even before the alleged dis-
criminatees testified in the unfair labor practice proceeding
that representatives of Respondents knew that they, as well
as other members of Local 1553, had supported the Team-
sters, yet took no action, the record reveals the following
(a) Moore testified that on November 14, 1973, Edward
Cirino, Local 1553's president, in effect told him that he
(Cirino) knew Moore had actively campaigned for the
Teamsters On direct examination Moore testified that her
union steward would not process an overtime pay griev-
ance so Moore left her work station and went to Cirino's
office and asked why Local 1553 would not process the
grievance According to Moore's initial testimony Cirino
answered, "because I had participated in passing out litera-
ture and stuff for the Teamsters," but Moore then testified
"[Cirino] stated he did not have the time " Later during
cross-examination Moore testified that when she spoke to
Cirino about the grievance that she asked him to telephone
the Employer's labor relations manager Charles Bradshaw
about the grievance to which Cirino replied, "he did not
have the time to call Bradshaw," and that during their con-
versation Cirino mentioned to Moore the fact that Moore
had been involved in the campaign to get the Teamsters
into the plant Moore was unable to place this remark
about the Teamsters campaign in its context nor was she
able to recall the words used by Cirino Then, upon further
cross-examination Moore embellished the story, now, for
the first time testifying that she admitted to Cirino she had
passed out Teamsters cards and further testified that Ciri-
no volunteered that he knew the O'Neills and Robert Bax-
ter, another member of Local 1553, as well as Moore had
passed out cards for the Teamsters
Moore did not impress me as a reliable witness and I
reject her version of the meeting with Cirino Her story,
6 The 0 Neills were expelled on January 13 1975 and received the writ-
ten notification of their expulsion on or about January 14 1975 Moore was
expelled on December 9 1974, and was notified by letter of December 10
1974 but never received the notification which was sent by certified mail to
Moore s home address but was not claimed by Moore
LOS ANGELES COUNTY DISTRICT COUNCIL OF CARPENTERS 353
that is her account of this conversation, did not come out
immediately or smoothly but it came out in jerks and in
bits and pieces and always incomplete I received the im-
pression that Moore had no independent recollection of
what had taken place over a year and a half ago and was
manufacturing the conversation as she went along Cirino
impressed me as a more reliable witness and I credit his
version of what transpired Cirino testified that Moore
came into his office to file a grievance against a supervisor
claiming that the supervisor was harassing her in that the
supervisor intended to transfer Moore back to a depart-
ment Moore had previously worked in Cirino told Moore
that the Employer under the terms of the bargaining agree-
ment had the right to rotate the work force but that insofar
as Moore thought the transfer was a form of harassment
that Cirino would take care of it in connection with an
overtime grievance filed by Moore I or 2 days previously 7
The whole conversation lasted about 10 minutes and ended
abruptly when Cirino truthfully told Moore that he could
not continue talking with Moore because he had to leave to
attend a meeting Moore left the office and on the way out
Cirmo stated that he understood that Moore was involved
with the Teamsters Cirino has no recollection of whether
Moore made any reply Cirino credibly testified that he
had heard rumors that the O'Neills, Moore, and a Mary
Lou Johnson were "involved with" the Teamsters
(b) The O'Neills testified that on November 5, 1973,
Cirino observed them wearing their Teamsters buttons
Mary O'Neill testified that immediately after the end of
Local 1553's meeting on November 5, 1973, to ratify the
new bargaining agreement that herself and several others,
including her husband, were standing outside of the meet-
ing hall, that the O'Neills were wearing their Teamsters
buttons, and that Cirino on his way out of the meeting
stopped "briefly" and spoke to the group that had gathered
outside Mary O'Neill was not able to remember what, if
anything, either she or her husband stated to Cirino and
could remember only that Cirino made the following re-
mark "you would be sorry if you would have got the
Teamsters in anyway, because the contract had already
been ratified " 8
Mary O'Neill testified that on November 5, 1973, both
she and her husband personally knew Cirino Constantine
O'Neill testified that on this date Cirino knew him person-
ally Neither of the O'Neills offered any reason as to why
in a bargaining unit of about 500 employees that Cirmo
would know their identity Cirino convincingly testified
that he would have been unable to identify either of the
O'Neills during November 1973 and that he did not learn
the identity of Mary O'Neill until August 1974 and of Con-
stantine O'Neill until February 27, 1974 9 Accordingly, I
find that when he spoke to the group of members following
7 The overtime grievance was subsequently successfully processed by Lo-
cal 1553
8 Constantine O'Neill s version of what occurred, where it occurred and
what was said during the above-described encounter with Cirmo differs
substantially and is not consistent with his wife s story Under the circum-
stances and because Constantine O'Neill was not convincing when he testi-
fied on this point I reject his version of what took place on November 5
9 He met them at these times in connection with his handling of griev-
ances filed by Constantine 0 Neill
the ratification meeting on November 5 that Cirino did not
know the identity of the O'Neills
(c) The record establishes that Local 1553's senior stew-
ard at the plant, Anderson, observed the O'Neills and
Moore wearing their Teamsters buttons, but it does not
establish that Anderson had any knowledge that the
O'Neills were otherwise active in supporting the Teamsters
(d) The record establishes that Local 1553's vice presi-
dent, Pete Meridith, who personally knew Mary O'Neill,
some time between August and November 1973 observed
her at a Teamsters organizational meeting along with
about 150 other employees and Meridith There is no evi-
dence that Meridith knew that O'Neill was supporting the
Teamsters in any way other than by wearing a Teamsters
button which she was wearing the night of the meeting
(e) A Local 1553 shop steward, Jimmy Bright, who
worked alongside of Constantine O'Neill knew about
O'Neill's activities on behalf of the Teamsters However, I
doubt that a steward's knowledge can be attributed to the
officials of the Respondents particularly in the case of
Bright who, as described below, like O'Neill was a Team-
sters sympathizer
(f) Robert Baxter, a member of Local 1553 employed by
the Employer, passed out Teamsters cards and wore a
Teamsters button There is no evidence, however, that his
activity on behalf of the Teamsters was known to any of fi-
cial of Respondents
(g) Jimmy Bright, a Local 1553 shop steward wore a
Teamsters button for a few days in August 1973 at the start
of the Teamsters campaign and then removed it explaining
to Constantine O'Neill that his reason for not wearing the
button was the senior steward, Anderson, had advised him
he would get into trouble
(h) Joyce Bell, a Local 1553 steward, wore a Teamsters
button in August for a few days at the start of the Team-
sters campaign and removed the button when senior stew-
ard Anderson told her to remove it because as a steward
she could be brought up on charges by Local 1553 to
(i) There is no direct or circumstantial evidence that
Flores, who filed the charges against the alleged discrimi-
natees, had knowledge before he heard them testify on
September 10, 1974, that they had worn Teamsters buttons
or had otherwise actively supported the Teamsters in its
campaign to replace Local 1553 To the contrary, Flores
credibly testified he had no such knowledge prior to Sep-
tember 10, 1974
B Analysis and Concluding Findings
It is settled that a union may lawfully expel a member
pursuant to a union rule for engaging in conduct directed
toward replacing the union with another union Tri-Rivers
Marine Engineers Union (United States Steel Corporation),
189 NLRB 838 (1971) It is equally settled that a union
violates Section 8(b)(1)(A) of the Act when it expells a
member for testifying at a Board hearing Cannery Workers
Union of the Pacific, affiliated with the Seafarers Internation-
al Union of North America, AFL-CIO, (Van Camp Sea Food
Co, Inc), 159 NLRB 843 (1966) Respondents contend
10 Based on Moore s testimony given in Case 31-CA-4120
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tthat the O'Neills and Moore were expelled from Local
1553 because of their activity aimed at replacing Local
1553 with the Teamsters as the employees' bargaining rep-
resentative The narrow question I must decide is whether
a preponderance of the evidence supports the General
Counsel's contention that the reason supplied by Respon-
dents to justify the expulsions was merely a pretext de-
signed to punish the O'Neills and Moore for giving testi-
mony against Local 1553 at a prior Board unfair labor
practice proceeding On balance, I am of the opinion, that
the record fails to establish that the punishment meted out
in this case was motivated by a desire to retaliate against
the O'Neills and Moore because they testified against Lo-
cal 1553 in the unfair labor practice proceeding This find-
ing is predicated on the following factors
1 There is not a scintilla of evidence which indicates
that even one representative of the Respondents was hos-
tile or antagonistic toward the alleged discriminatees be-
cause they gave testimony against Local 1553 at the Board
hearing
2 The timing of the actions which triggered the expul-
sions does not support an inference of unlawful discrimina-
tion, rather, if anything, the timing indicates that the expul-
sions were not unlawfully motivated
Upon his discovery, at the unfair labor practice hearing,
that the alleged discriminatees had engaged in extensive
conduct designed to replace Local 1553 with the Team-
sters, Flores did not immediately file charges, which it
seems to me would have been the case if he were motivated
by animus toward the alleged discrimmatees on account of
their adverse testimony Flores did not file his charges for
several weeks due to the press of other union business
Also, this is not a situation where a union immediately
upon learning that its representative-status has been ad-
versely effected because of the adverse testimony of some
of its members takes steps to discipline the members whose
testimony harmed the union Here when Flores filed his
charges against the O'Neills and Moore and when the
charges were acted upon, it was evident to the Respondents
that the alleged discriminatees, by their testimony in the
unfair labor practice proceeding, had caused no harm to
Local 1553's representative status The Teamsters charges
in the unfair labor practice proceeding had been with-
drawn and the case dismissed and the Teamsters petition
in the representation case was in the process of being with-
drawn These circumstances hardly indicate that when Re-
spondents acted to expel the alleged discnminatees that
their union representatives were in a hostile state of mind
toward them for testifying in the prior Board unfair labor
practice proceeding
3 There is a lack of evidence of disparate treatment of
the O'Neills and Moore in comparison with other members
of Local 1553 or that Respondents tolerated such miscon-
duct in the past
Flores, prior to hearing the testimony in the unfair labor
practice hearing, had no knowledge of the alleged discnmi-
natees' extensive activities on behalf of the Teamsters Nor
is there any evidence that other officials of Respondents
had prior knowledge that the alleged discnminatees had
done anything more than wear a Teamsters button and, in
the case of Mary O'Neill, attend a Teamsters organiza-
tional meeting- Absent a showing that Respondents nor-
mally penalize members for simply wearing buttons and
attending an organizational meeting of a rival union, these
circumstances do not establish discrimination, for, as de-
scribed earlier it was not until the unfair labor practice
hearing that Respondents learned of the extensive nature
of the activities engaged in by the O'Neills and Moore on
behalf of the Teamsters
On the question of disparate treatment, there is no evi-
dence that an official of Respondents knew of Local 1553
members who, like the O'Neills and Moore, were actively
supporting the Teamsters, yet took no action against them
Indeed there is evidence on this record that only one other
Local 1553 member, Robert Baxter, was anywhere near as
active on behalf of the Teamsters as the alleged discrimina-
tees
Finally, I reject the General Counsel's contention that
the failure of Respondents to take action against Local
1553 members Bell, Christian, Ballard, and Baxter indi-
cates that Respondents' objective in expelling the alleged
discriminatees was to retaliate against them for testifying
against Local 1553 This contention is premised upon
Mary O'Neill's testimony at the prior unfair labor practice
hearing that the four members of Local 1553 named above
had passed out Teamsters cards, yet, Flores failed to file
charges against them nor did Respondents otherwise act to
discipline them for supporting the Teamsters This was the
extent of O'Neill's testimony, she was not asked nor did
she reveal the extent of the activities which these four
members engaged in on behalf of the Teamsters and there
is no evidence that either Flores or any other official of the
Respondents believed that their activities were anywhere
near as extensive as the activities of the O'Neills and
Moore But, more important, Flores' reason for not charg-
ing the four members named by Mary O'Neill was that he
had no firsthand knowledge that they had in fact support-
ed the Teamsters or the extent of their activity, and, knew
that the District Council has a policy of requiring firsthand
information in support of a charge preferred against a
member and summarily rejects charges based on hearsay
In this regard it is undisputed that for at least 19 years the
executive committee of the District Council, which is the
committee entrusted to screen all charges, has maintained
a policy of refusing to submit to a trial committee any
charge based on hearsay
4 The O'Neills and Moore admittedly engaged in exten-
sive conduct designed to replace Local 1553 with the
Teamsters This type of conduct is proscribed by the Inter-
national Union's constitution and clearly warranted their
expulsion
On the basis of the foregoing, I am unable to draw the
inference that the expulsion of the O'Neills and Moore was
rooted, in part, in their having given damaging testimony
against Local 1553 in a prior unfair labor practice proceed-
ing
The finding that Respondents were not unlawfully moti-
vated in expelling the alleged discrimmatees does not en-
tirely dispose of this case The General Counsel makes the
further argument that even absent a showing of unlawful
motivation the expulsions are impermissible because it is a
per se violation of the Act for a union to expel a member
LOS ANGELES COUNTY DISTRICT COUNCIL OF CARPENTERS 355
based on misconduct which comes to the union's attention
when the member gives testimony as a government witness
in a Board unfair labor practice proceeding 11 I do not
agree I have found no case, and none has been cited for
this novel proposition which holds in effect that neither an
employer nor a union can use evidence of employee mis-
conduct to punish the employee if the evidence of the mis-
conduct was uncovered during the course of a Board pro-
ceeding through the employee's testimony In other words
if an employer or a union discover for the first time during
a Board hearing through the testimony of an employee that
this employee is guilty of serious misconduct (i e , stealing
or destroying property) which ordinarily would result in
discipline, the employer or union is nevertheless precluded
from disciplining the employee The Act in my view does
not call for such an absurd result The question in my view
is whether the witness during the normal course of business
11 It is undisputed that Flores ' charges against the alleged discrsmmatees
which resulted in their expulsion were based solely upon their testimony
given before the Administrative Law Judge in Case 31 -CA-4120
would not have been disciplined for engaging in the con-
fessed misconduct, if the witness had not testified for the
Government in the Board proceeding Cf Gates Rubber
Company, Inc, 186 NLRB 837 (1971) Here the record es-
tablishes, for the reasons previously set forth, that the al-
leged discriminatees were expelled for a lawful reason Ac-
cordingly, I shall therefore recommend that the complaint
be dismissed in its entirety
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended
ORDER12
The complaint is dismissed in its entirety
12 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes