United Brotherhood of Carpenters, Local 2324, Et Al

National Labor Relations Board - Board Decisions

Jun 17, 1976

224 N.L.R.B. 1034 (N.L.R.B. 1976)

1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Brotherhood of Carpenters and Joiners of
America, Carpenters Industrial Council of East-
ern Pennsylvania and Its Local 2324, AFL-CIO,
United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry of
the United States and Canada , Local No 260,
AFL-CIO, and International Brotherhood of
Electrical Workers, Local No 5, AFL-CIO,
known as the Tri-Trades Union , and United
Brotherhood of Carpenters and Joiners of Ameri-
ca, Local Union No 2324, AFL-CIO (Alcoa
Construction Systems, Inc) and Robert K Igou
Case 6-CB-3389
June 17, 1976
DECISION AND ORDER
BY MEMBERS FANNING, PENELLO, AND WALTHER
On January 27, 1976, Administrative Law Judge
Thomas A Ricci issued the attached Decision in this
proceeding Thereafter, General Counsel filed excep-
tions and a supporting brief, and Respondent filed
with the Board its brief to the Administrative Law
Judge
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 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
'General Counsel excepts primarily to findings and conclusions based
upon credibility resolutions made by the Administrative Law Judge It is the
Board s established policy not to overrule an Administrative Law Judge
resolutions of credibility unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect Such a conclusion s not
warranted here Standard Dry Wall Products Inc 91 NLRB 544 545 (1950)
enfd 188 F 2d 362 (C A 3 1951)
The General Counsel also excepts to the Administrative Law Judge s
conclusions contending that under Teamsters Local Union No 122 Interna
tional Brotherhood of Teamsters Chauffeurs Warehousemen and Helpers of
America (August A Busch & Co of Mass Inc) 203 Ni-RB 1041 ( 1973) and
Rocket and Guided Missile Lodge 946 International Association of Machinists
and Aerospace Workers AFL-CIO (Aerojet General Corporation) 186 NLRB
561 (1970 ) which discuss the nature and extent of a union s fiduciary duty
to provide notice to members where expulsion from membership may also
result in loss of job a violation is established herein We reject the General
Counsel s contention in our opinion those cases are clearly distinguishable
on their facts
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety
DECISION
STATEMENT OF THE CASE
THOMAS A Ricci, Administrative Law Judge A hearing
in this proceeding was held in Tyrone, Pennsylvania, on
December 9, 1975, on complaint of the General Counsel
against three labor unions, on a charge filed against these
organizations by Robert Igou, an individual The charge
was filed on June 20, 1975, and the complaint issued on
September 26, 1975 The sole issue presented is whether
United Brotherhood of Carpenters and Joiners of America,
Local Union No 2324, AFL-CIO, one of the groups of
unions but in reality the true Respondent in the case, ille-
gally caused Alcoa Construction Systems, Inc, here called
Alcoa, the Employer, to remove Igou's name from its ros-
ter of laid-off employees entitled to recall, and thereby vio-
lated Section 8(b)(2) of the Act Briefs were filed by the
General Counsel and the Respondent
Upon the entire record, and from my observation of the
witnesses, I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER
Alcoa Construction Systems, Inc, a Delaware corpora-
tion, is engaged in the manufacture and sale of bathroom,
kitchen, and service modules, its sole location involved
herein is in Tyrone, Pennsylvania During the 12-month
period immediately preceding issuance of the complaint
the Employer received goods and materials valued in ex-
cess of $50,000 for use at this location, directly from loca-
tions outside the Commonwealth of Pennsylvania I find
that the Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act
II THE LABOR ORGANIZATION INVOLVED
I find that Local Union No 2324, affiliated with the
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
The allegation of wrongdoing charged to the Respon-
dent is simple and clear, both as precisely spelled out in the
complaint and as expressly conceded by the General
Counsel during the hearing Igou was one of about 110
employees working for Alcoa at this one plant during 1974,
all covered by a collective-bargaining agreement between
that Company and a group of three unions, United Broth-
erhood of Carpenters and Joiners of America, Carpenters
224 NLRB No 139
UNITED BROTHERHOOD OF CARPENTERS , LOCAL 2324, ET AL
Industrial Council of Eastern Pennsylvania and its Local
2324, AFL-CIO, United Association of Journeymen and
Apprentices of the Plumbing and Pipe Fitting Industry of
the United States and Canada, Local No 260, AFL-CIO,
and International Brotherhood of Electrical Workers, Lo-
cal No 5, AFL-CIO, together called Tri-Trades Union in
that contract Igou was a carpenter and therefore a mem-
ber of Carpenters Local 2324 The contract made union
membership a condition of employment Practically all the
employees were laid off during 1974 for economic reasons,
about half in June and the rest in October It was hoped
the initial layoffs would last only a few weeks, and regular
seniority lists for recall purposes were kept As it developed
no one was recalled until the following May, and even then
work did not last long, for by July 1975 the entire plant was
closed again
As all the employees retained their employee status for
recall purposes according to employment seniority, they
were required by the contract to maintain their good stand-
ing in the Union by paying their union dues The evidence
indicates that of the entire group only 10 or so found other
work by May 1975, the rest suffering enforced idleness,
without pay from Alcoa Understandably there was con-
siderable delinquency in payment of dues, about 70 of the
group fell behind more than 3 months, at one time or an-
other In keeping with its constitution and bylaws provi-
sions, the Union-Carpenters Local 2324-sent written no-
tices of arrears, in some cases more than one to the same
member, warning of possible loss of membership With
these as reminders almost everybody paid up By the first
of March there were about 17 who, not having paid their
dues, were dropped from union membership, and the Local
sent the list of such names to the Company in writing with
the request that they be discharged This meant, of course,
removal of their names from the seniority recall roster Of
the 17, about 10 had advised the Union they did not want
to pay because they had found other jobs, but the Union
advised the Company anyway, to keep things straight Al
though this leaves about seven in otherwise unexplained
classification, the testimony-uncontradicted-is that only
four chose not to pay although having no other jobs One
of these was Igou
The theory of complaint is that Igou did not know that
failure to pay dues, and the consequent loss of union mem-
bership, carried with it loss of employee status with Alcoa
under the contract, and that it was the Union's duty to see
to it that he understood there was this danger to his inter-
ests When, therefore, the Company recalled people in May
1975 but did not recall Igou, it was the Union's fault, and
it was the Union which "caused" the Employer to discrimi-
nate against this employee in violation of Section 8(b)(2) of
the Act Ergo, the Union Respondent must now make Igou
whole for any loss of earnings he suffered in consequence
of not being called back to work
In defense the Respondent asserts that Igou did know, as
did everyone else, that continued membership was neces-
sary to retain employee status under their contract It also
contends that it did all any union is required to do, in the
circumstances of this case, to satisfy whatever fiduciary
obligation a labor organization may have towards its mem-
bers
The Pertinent Evidence
1035
Credibility
I think the pertinent evidence of record, in its totality,
justifies the conclusion, as urged by the Respondent, that
Igou knew, even while he was deliberately refusing to pay
dues, that under the rules of the Union by so doing he was
choosing to drop his membership, and under the terms of
the contract was also removing himself from the
Company's recall list as an employee Conscious awareness
on his part is, of course, a state of mind, never a matter
that can be proved with pure objectivity, as can other facts
in the trial of a case He said, at the hearing, that he did not
know of the danger to his job, but that statement on his
part touches upon his credibility, considering his posture in
the proceeding His testimony relating to other matters that
were explored at the hearing leaves much to be desired, so
that his impaired credibility precludes reliance upon his
self-serving declaration of ignorance as the basic point of
the whole case
He paid no dues after his June 1974 layoff The Union's
records show that on October 30, 1974, he was sent an
"official notice of arrears," telling him he owed 3 months'
dues, and that they had to be paid within 30 days The
Union's records also show as clearly that on February 28,
1975, he was sent another notice advising he was now 5
months behind Both bore in print on the reverse side those
sections of the Union's constitution and bylaws which pro-
vide for expulsion in such cases The notices were mailed to
his address at West 12th Street (where he had lived with his
parents), as shown on the Union's records, the address he
gave the Union when he joined, and which he never told
the Union had been changed In fact Igou had moved to
another address, on Cameron Street, and, while the Em-
ployer learned of the change, he did not inform the Union
At the hearing Igou said he never received these two suc-
cessive notices of dues delinquency from the Union
Be that as it may, it is a fact on March 3 the Union
advised the Company in writing that Igou had been
dropped from membership for nonpayment and it is a fact
that on March 7 the Company wrote a discharge letter to
him This went to his Cameron Street address and Igou
admitted receiving it It reads as follows
In accordance with Section V, paragraph 4 of the Tri-
Trades agreement, dated October 2, 1972, which
reads, `Upon written notice from the Union of failure
on the part of any individual to complete membership
in the Union or to continue membership in the Union
as required by this Section, the Company shall upon
notice from the Union, immediately discharge said
employee
Mr Samuel T McFalls, president of Local 2324, has
informed us in writing that you have failed to main-
tain your membership in the Tri-Trades Union, and
we regret to iniorm you that as of this date you have
been terminated
The Company first started recalling people a full 2
months later, early in May Igou began his testimony by
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
saying that when he learned others were being recalled he
telephoned the company office several times-the indica-
tions are he called three or four times-and each time
spoke to Mrs Nancy Norris, a clerk who worked under the
chief accountant and personnel director I do not under-
stand why the General Counsel placed evidence into the
record about these conversations It was conceded by all
parties that the collective-bargaining agreement in effect
covered Igou, that it made continued good standing in the
Union a condition of employment while he was in layoff
status, that he paid no dues for a full 10 months, that the
Union properly dropped him from membership, that it re-
quested his dismissal, and that on March 7 the Employer
did in fact discharge him and never took him back If the
Union improperly "caused" the discharge-and this is all
the complaint is about-the unfair labor practice was com-
pleted the day of the discharge, and nothing the Company
may have done thereafter, either to Igou or anybody else (it
is not a respondent here) could bear any relationship to the
case In any event, Igou talked about these telephone calls,
and in the process seriously weakened his credibility, inso-
far as this case is concerned
The first witness for the government was Mrs Norris, a
disinterested observer Norris testified that Igou called her
and asked why some people with less seniority than he had
been called back to work but not he, and that he referred
to the letter he had received from the Company Norris
added Igou asked to speak to Carlson, the personnel direc-
tor, but that each time the employee asked Carlson was not
available to talk to him
Igou was the second government witness He denied ever
learning from any source that his job while in layoff status
could be endangered by loss of union membership, and
gave his version of his phone talks with Norris A critical
question on cross-examination then became the one that
embarrassed him, and is now embarrassing the entire com-
plaint, most If knowledge of the dues obligation was a
surprise , how come he did nothing for a full 2 months after
receiving the Company's letter of discharges Igou's answer
was he did nothing because he did not understand what the
letter meant, "I didn't know if it was from paying dues "
As he continued, however, Igou then added that he
checked with a friend who had received a similar letter-
Newman, still in March-and that Newman explained to
him, he, Igou, had been terminated "for failure to pay my
union dues " With this, the question why he did nothing
for 2 months after learning of the discharge for precisely
that reason, remained unanswered by him I
Coming to the phone calls he made to Norris, Igou's
' The General Counsels brief rests largely upon the direct assertion that
Igou first learned the discharge was caused by his failure to pay union dues
when the employees were recalled in May But Igou s testimony is directly
contrary
Q So he [Newman] told you in March that you were terminated
from the Company?
A Yes
Q Did he tell you why9
A I guess for failure to pay my union dues
Q He told you in March that you didn t pay your union dues and
that s why you were terminated9
A Yes
testimony is that the only thing he ever told her as to why
he was calling was that he wished to talk to Carlson His
story is that it was Norris, the last time he called, who
asked him was his reason for phoning because he had not
been recalled to work, and that when he answered "yes,"
she told him he had been terminated for failure to pay
union dues With this, according to Igou, he just "hung
up "2
Norris' version is surely the more plausible, for however
the talk may have developed between the two, in one way
or another Igou's basic purpose for calling was to hope to
do something to reverse the discharge decision against him
He called at that time, he said, because others were return-
ing to work Although possible, it is hardly likely he would
not tell Norris what he was calling about Norris, as a wit-
ness, had nothing to gain by lying But over and above this,
if Igou is to be believed, Norris told him nothing he did not
already know, for he admitted learning, when he received
the discharge letter, why he had been terminated by the
Company She therefore gave him no reason for suddenly
changing his mind about wanting to speak to Carlson,
whatever his true reason may have so persistently been to
talk to him up to that moment What he pretended was a
violent reaction to sudden information had to be false As
already stated, I do not know why this business of the May
telephone calls was placed into the record, but I must find
that Igou was not testifying truthfully as to that later event,
at least His basic story that he never knew, until it was too
late, that job tenure depended upon dues payments, there-
fore, of itself cannot be determinative of the principal issue
of the case
Relevant Evidence
It is in the nature of Board proceedings under this stat-
ute that on occasion determinative findings of fact are
made on the basis of reasonable inferences justified by re-
lated and therefore significant facts Here the question is
Can it be said, in view of the great variety of pertinent
facts, that Igou of necessity had to know all along that
nonpayment meant not only loss of union membership but
also of job tenure9 The objective considerations are many
When the union officials learned there was to be so mas-
sive a layoff in June, they planned a meeting to advise the
members how their interests might be protected In fact,
Joseph Farrone, a high official, came to Tyrone for that
purpose from another city The employees were told of the
layoff at a company meeting as the shift was about to end,
and all of them-said to be half of the total complement of
about 100-proceeded directly to a union meeting Far-
rone testified his principal objective was to stress-and
that he did carefully stress-the importance of the employ-
2 Igou s critical testimony is as follows
I asked her if Mr Carlson was in and so I called back a little bit later
and I asked Mrs Norris if Mr Carlson was free-if I could speak to
him She said he s tied up right now I told her who I was and she asked
me if it was referring to why I was not called back to work and I said
yes it is And she said well you were terminated from the Union for
failure to pay my union dues So I said 0 K and I hung up That was
my last conversation with Mrs Norris
UNITED BROTHERHOOD OF CARPENTERS , LOCAL 2324 ET AL
ees themselves paying premiums for their health insurance
and union dues Both these obligations had been paid by
payroll deductions He said he explained to all the employ-
ees that payments already made by the Company would
protect them for that month and through the next, but that
thereafter, to protect their health insurance and job reten-
tion rights, it was up to them personally to pay both dues
and insurance premiums directly to the agents of their Car-
penter Local, while they remained in layoff status Three
other employee witnesses corroborated Farrone on this
score-James Wooding, Thomas Dawson, the financial
secretary, and Samuel McFalls, president Wooding and
Dawson also testified that the day of the mass layoff the
Union posted a notice again advising the laid-off employ-
ees to pay insurance premiums and union dues directly to
the Local Union officers
Igou was on vacation the week of the layoffs, and there-
fore not present at this union meeting John Newman, who
had also been terminated by the Company in March for
nonpayment of dues, testified ambiguously as to what the
union officers said that day, but I think he really corrobo-
rated them instead "Q Was anything discussed about
dues at that meeting9 A I think there was What I
recall is that the layoff was going to be two or three weeks
and that there wasn't even a worry about it There was no
talk about it In other words, we were going to have to pay
dues or we weren't going to have to pay dues " This testi-
mony is not really inconsistent with that of Farrone There
was optimism in the air, the company manager had said
the layoffs might only last a few weeks, and the union
agent explained that what with the dues already checked
off, no further payment was necessary for a month or
more Therefore, the phrase, there was nothing to "worry
about" at the moment, is but a paraphrasing of the same
thought In the circumstances, Newman's recollection, that
at one point, at least, Farrone did say 'we were going to
have to pay dues," supports the testimony of the business
agent
I credit the defense witnesses and find Farrone said
clearly to the large group that their status with the Compa
ny, even while in layoff status, depended upon continued
union membership He gave them the same warning as to
the health insurance, and it is logical anyway to believe he
would at that particular significant time say the same thing
about the dues I also credit the testimony holding that
written notice to the same effect was posted in the plant by
the Union
I am also convinced Igou did receive the two notices of
dues arrears mailed to him by the Union on October 30
and on February 28 There can be no question but that the
Union did put them in the mail If, as Igou said, he advised
the post office of his change of address, then it must be
assumed-the old presumption of mail posted is mail re-
ceived-he received the, notices at his new address But
Igou also said he visits his parents at the old address every
day or two, he even admitted "I've gotten mail there be-
fore, yes, but not from the Union, no ' Why should his
parents give him some of the mail arriving for him but not
other math Besides all this, the Union mailed no less than
120 like notices to 70 other employees, those were all re-
ceived, for the people came in and paid The dues records
1037
of the local union are not a model of consistency or regu-
larity, but it does not follow from this that the carbon cop-
ies, placed in evidence, of the two notices sent Igou must
be ignored After studying like copies from the Union's
files of notices sent to all the other members, the parties
entered into stipulations of fact resting upon the reliability
of those carbon copies In addition to the foregoing, there
is evidence, which I find convincing that the Union dis-
tributed copies of the collective-bargaining agreement
which made dues payments a condition of employment,
and that Igou was given one as was everybody else He also
knew his dues were checked off his pay throughout the
year that he worked
Close to 100 people paid continuing union dues while
out of work, some for 7 months, the rest for 11 months
What are the probabilities they would do this only to be
members of the Union, and not for any other reason con-
nected with their fobs? This Local is limited to this one
plant, it is not a possible avenue for referral to other em-
ployment It must be found this large group knew the pay-
ments were necessary for recall the day Alcoa might re-
open the plant Tyrone is a small town, where 100 people
out of work is a large segment Igou talked to the people
He said he first learned of his layoff when he returned from
vacation, "just from talking to everybody " When he re-
ceived his termination notice from the Company "I wanted
to check around and see other people " It is not likely
everyone else knew why the dues had to be paid, but not
he To quote from the Government brief "These people do
not live their lives in hermetically sealed compartmental-
ized modules "
The rest is a matter of reasoning Would he have sat for
2 months and done nothing about a notice that told him he
was terminated for losing union membership if he had not
known, before receiving it, and before knowingly permit
tmg his membership to lapse, that this is exactly what was
going to happen? I think not
Conclusion
As the Charging Party knew, before his failure to pay the
dues, that his decision meant loss of job rights with the
employer, it follows that the Respondent Union fully dis
charged whatever fiduciary obligation it owed its members
under the lawful union security contract in effect The
complaint therefore must be dismissed
Upon the basis of the foregoing findings of facts, conclu
sion, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended
ORDERS
I hereby recommend that the complaint be, and it here-
by is, dismissed
3 In the event no exceptions are filed as provided in 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