Dispatch Printing Co.

National Labor Relations Board - Board Decisions

Jan 15, 1992

306 N.L.R.B. 9 (N.L.R.B. 1992)

9
306 NLRB No. 3
DISPATCH PRINTING CO.
1 The name of the Respondent Union has been changed to reflect
the new official name of the International Union.
2 On April 1, 1991, Administrative Law Judge Thomas A. Ricci
issued the attached decision. The General Counsel filed exceptions
and a supporting brief. The Respondent Employer and the Respond-
ent Union each filed cross-exceptions, supporting briefs, and answer-
ing briefs to the General Counsel’s exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
3 We deny the Respondent Employer’s motion to strike the Gen-
eral Counsel’s exceptions.
The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
4 Because the judge omitted relevant evidence from his opinion,
we find it necessary to set forth a full explanation of the facts and
analysis relevant to the disposition of the issues presented.
Dispatch Printing Company and Linda D. Baise
Teamsters Local Union 473, affiliated with the
International Brotherhood of Teamsters, AFL–
CIO1 and Linda D. Baise. Cases 9–CA–27129,
9–CA–27509, 9–CB–7509, 9–CB–7629
January 15, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The questions presented in this case are: whether the
Respondent Union discriminated against employees
Linda Baise, Della Moore, and Brenda Schreckengost
on the basis of their sex, in violation of Section 8(b)(2)
and (1)(A) of the Act, by failing to accord them cer-
tain employment priority rights and causing the Re-
spondent Employer to lay them off; and whether the
Respondent Employer violated Section 8(a)(3) and (1)
by acceding to the Respondent Union’s allegedly dis-
criminatory actions.2 The judge recommended dis-
missal of the complaint in its entirety. The General
Counsel’s exceptions urge reversal of the judge. The
Respondents’ separate cross-exceptions seek adoption
of the judge’s recommended dismissal Order, but they
allege that there are numerous errors, omissions, and
inaccuracies in the judge’s decision.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,3 and con-
clusions, to the extent consistent with the discussion
set forth below,4 and to adopt the recommended Order.
The Respondent Employer publishes the Columbus
Dispatch newspaper. The Respondent Union represents
the Employer’s mailroom employees, who receive pa-
pers off the presses, insert preprinted advertising mate-
rial, and prepare bundles of papers for loading into
trucks. The allegations in this case relate to the
Union’s administration of an employment preference
system inherited from the International Typographical
Union Columbus Mailers Union No. 103 (Local 103),
which the Respondent Union supplanted as mailroom
unit representative in a late 1984 Board election.
During Local 103’s tenure, mailroom unit employees
were covered by a single collective-bargaining agree-
ment but were divided into three chapels. Those em-
ployees who worked on the Columbus Dispatch were
in the Dispatch Chapel, those working on the Citizen
Journal (which the Employer printed until December
1985) were in the Citizen Journal Chapel, and sub-
stitute journeymen working on either paper were in the
Secretary’s chapel.
Many of the benefits of mailroom employees rep-
resented by Local 103 were determined by reference to
overall employment seniority with the Employer, but
the selection of vacation dates, eligibility for overtime,
and order of layoffs were based on an historical, nar-
rower, ITU seniority concept known as priority. Pri-
ority is defined as continuous seniority within a job
classification and within a chapel. Consequently, the
general priority rule has been that if an employee
changed job classifications or chapels, he or she went
to the bottom of the priority list for the new classi-
fication/chapel.
Priority rights were infrequently mentioned in the
series of collective-bargaining agreements between the
Employer and Local 103 and between the Employer
and the Respondent Union. Priority concepts are set
forth in the ITU’s Book of Laws, which specifically
covered only the classifications of journeymen, appren-
tices, and trainees. Local unions were free to make
local laws governing priority as long as they did not
conflict with the ITU’s laws. In 1968, the ITU changed
its laws to permit apprentices who advanced to jour-
neyman status in the same chapel to retain priority
credit for time served as an apprentice. The rule
change was not applied retroactively to benefit any
current journeyman for past apprentice experience.
Until 1982 contract negotiations between the Em-
ployer and Local 103, unit employees worked in the
classifications of journeymen mailers, journeymen sub-
stitutes, apprentices, permit workers, and Storing em-
ployees. Journeymen substitutes were part-time jour-
neymen. Apprentices automatically became journey-
men after 4 years. Permit workers were part-time em-
ployees who generally held other full-time jobs and
primarily worked for the Employer on weekends. Stor-
ing employees had worked for W.A. Storing Company
and were hired as a group in 1979 to supplement the
permit worker group. Of the 20 Storing employees
hired, 17 were women, including alleged discrim-
inatees Baise, Moore, and Schreckengost. All but one
of the other unit employees at that time were men.
10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Don Barnes became the Union’s chief steward. According to the
testimony of Baise, Moore, and Schreckengost, Steward Barnes gave
assurances on several occasions to them and to other utility workers
that they would retain chapel seniority credit if they advanced to
journeymen positions within the Dispatch Chapel. The judge specifi-
cally discredited Baise’s testimony on this matter because he could
not believe that Barnes would make such statements after his pro-
posal for a Local 103 bylaw amendment to that effect had been de-
feated.
For economic reasons, the 1982–1985 contract be-
tween the Employer and Local 103 abolished the ap-
prentice and Storing employee classification and cre-
ated a utility worker classification. Unlike apprentices,
utility workers could perform only preprint insertion
work and would not automatically be promoted to
journeymen status. Local 103 compiled a list, by date
of initial hire, of all permit workers and Storing em-
ployees. They were given the option of working as
utility workers or permit workers. Twenty employees
chose to become utility workers. In terms of priority,
the top 8 were men, the next 11 were women, and the
last one was a man. Baise, Moore, and Schreckengost
were 9th, 10th, and 11th on the list.
The new contract also required that the Employer re-
tain at least 81 journeymen if it wished to employ util-
ity workers. Furthermore, it granted a lifetime job
guarantee to the presently employed journeymen.
These employees were listed by name at the back of
the agreement.
In September 1983, the first five utility workers on
the priority list were upgraded to journeymen sub-
stitutes. The three alleged discriminatees rose to the
top three spots on the utility worker priority list, while
the upgraded employees were placed at the bottom of
the journeymen substitute priority list and assigned
new initial priority dates in accord with the ITU gen-
eral rule. Also in 1983, employee Richard Swickard
moved directly from utility worker to journeyman. He
was placed at the bottom of the journeymen priority
list.
As previously indicated, ITU’s Book of Laws did
not specifically cover the utility worker classification.
Accordingly, Local 103 was free to amend its priority
rules to permit a promoted employee to retain credit on
the new classification seniority list for past service as
a utility worker. In November 1983, Local 103’s mem-
bership voted on member Don Barnes’ proposal of
such an amendment. The proposal was defeated by a
26–24 vote.
When the Respondent Union succeeded Local 103
as the representative of the Employer’s mailroom em-
ployees, it retained the practice of chapels and pri-
ority.5 The Employer periodically prepared priority
lists for the Union from data supplied by the Union.
The Union in return gave the Employer a copy of the
finished lists. The 1985–1988 collective-bargaining
agreement between the Union and the Employer re-
tained the predecessor’s lifetime guarantee for pre-
viously named journeymen and added a more limited
term-of-contract job guarantee for eight journeymen
hired during the previous contract term. The 1985–
1988 agreement also retained the requirement that the
Employer have at least 81 journeymen positions in
order to employ utility workers.
The Citizen Journal ceased publication in December
1985. The journeymen who had worked in the chapel
which printed that paper laterally transferred to the Co-
lumbus Dispatch. They were placed at the bottom of
the priority list because they had changed chapels, but
those who had lifetime job guarantees retained them.
In 1988, the Employer and the Union negotiated the
current contract, which expires in 1992. Section 16 of
the contract states that layoffs ‘‘will occur in reverse
order of priority.’’ Section 27 retains the lifetime job
guarantees and renews the contract job guarantees for
previously named employees.
In November 1989, 3 journeymen retired, dropping
the number of journeymen to 78. Inasmuch as the Em-
ployer wished to continue to employ utility workers, it
had to have at least 81 journeymen. Accordingly, it up-
graded Baise, Moore, and Schreckengost, the top three
employees on the utility worker priority list. The
Union assigned them to the last three positions on the
journeymen priority list, giving no credit for their util-
ity worker experience.
In March 1990, the Employer moved to a new facil-
ity with state-of-the-art machinery. New plant produc-
tion efficiencies substantially reduced the number of
unit employees needed. Consequently, the Employer
laid off all employees, including journeymen Baise,
Moore, and Schreckengost, who did not have either
lifetime or term-of-contract job guarantees. The Union
filed a grievance on behalf of the 3 women employees,
claiming that the Employer was obligated to maintain
a level of 81 journeymen. The grievance has been pur-
sued through to arbitration. At the time of the hearing,
the Employer employed 74 journeymen employees.
The alleged discriminatees have elected to continue
employment with the Employer as journeymen sub-
stitutes, working one or two shifts a week.
The General Counsel contends that the Respondents
unlawfully discriminated against the three women em-
ployees when they failed to accord them full chapel se-
niority, including credit for their 1983–1989 employ-
ment as utility workers, which would allegedly have
prevented their layoff in March 1990. According to the
General Counsel, the Respondents have no rational
basis for treating utility worker priority differently
from the undisputed ITU practice of permitting priority
credit for apprentices advancing to journeymen status
within the same chapel. Furthermore, the General
Counsel contends that he has proved specific sexual
discriminatory intent by the Respondent Union’s offi-
11DISPATCH PRINTING CO.
6 Teamsters Local 473 (Dispatch Printing), JD–122–89. The judge
found that the Union violated Sec. 8(b)(1)(A) in 1988 by its distribu-
tion of a signing bonus to certain journeymen without letting utility
workers (male and female) and other journeymen (male) have a
share. Based on remarks by union officials, the judge found that hos-
tility to the women utility workers played a part, along with motives
of greed and self-interest, in the distribution action. The Board
adopted the judge’s decision in the absence of exceptions.
7 As previously stated, we affirm the judge’s credibility findings,
specifically including the rationale for discrediting Baise’s testimony
about statements made by Barnes. Furthermore, we find that this ra-
tionale applies with equal force in discrediting similar testimony by
Moore and Schreckengost.
cials based on a judge’s findings in a prior Board pro-
ceeding6 and testimony in this case about a series of
allegedly misleading statements about utility workers’
priority.
We find that the General Counsel has failed to prove
the complaint’s 8(b)(2) and (1)(A) and 8(a)(3) and (1)
allegations. Initially, we find that priority rights had no
actual bearing on the layoff of Baise, Moore, and
Schreckengost in March 1990. The Employer laid off
all active employees other than unit journeymen whose
jobs were contractually guaranteed. We find no merit
in the General Counsel’s argument that the contract’s
general layoff-by-seniority provision modified or
superceded the clear and unequivocal intent of the
same contract’s facially nondiscriminatory guarantee of
lifetime or term-of-contract jobs for named journey-
men. Because of such guarantees, the three recently
upgraded female journeymen would have been laid off
even if they had been credited with priority for service
as utility workers.
Apart from the layoff issue, however, there remains
the question whether the failure to assign full chapel
priority rights to the three women journeymen violated
the Act. Contrary to the contention of the General
Counsel, there is insufficient evidence of specific dis-
criminatory intent by officials of either Respondent. In
this record, there are no expressions of animus against
female employees generally or the three alleged
discriminatees in particular. Furthermore, it is unrea-
sonable to suppose that Union Steward Barnes, the
proponent of the defeated 1983 amendment on reten-
tion of utility worker priority, became the chief protag-
onist in misleading and discriminating against Baise,
Moore, and Schreckengost.7 With respect to the prior
case, the background evidence in that case relates to
events occurring 2 years before those in the instant
case, and those prior events did not concern the pri-
ority system. In these circumstances, this evidence, by
itself, does not warrant an inference of gender dis-
crimination in the instant case.
Finally, we find that the General Counsel has failed
to prove that the failure to give the alleged
discriminatees priority credit for utility worker service
was inconsistent with past practice. On the contrary,
we find that the Respondent Union’s endtailing of
these women on the journeymen priority list was in ac-
cord with union representatives’ views and practice
since creation of the utility worker classification in
1982. The only similarly situated employee, male util-
ity worker Swickard, received no priority credit for
utility worker service upon his promotion to journey-
man status in 1983. Other utility workers upgraded to
journeymen substitute status in September of that same
year were also endtailed to the priority list for their
new classification. In apparent reaction to this situa-
tion, Barnes proposed a bylaw amendment to give util-
ity workers the right to retain priority credit as jour-
neymen. There is no support for the General Counsel’s
view that this proposal represented an attempt merely
to codify existing practice. The only reasonable inter-
pretation of the membership vote against Barnes’
amendment is that a Local 103 majority had endorsed
the practice of treating the utility worker classification
differently from the abolished apprentice classification
with respect to the retention of priority.
Based on the foregoing, we conclude that the Gen-
eral Counsel has failed to prove that the Respondent
Union violated Section 8(b)(2) and (1)(A) by its failure
to give Baise, Moore, and Schreckengost priority credit
in the journeymen classification for past service as util-
ity workers. We further conclude that the Respondent
Employer did not violate Section 8(a)(3) and (1) by
laying off those employees or by acceding to the ad-
ministration of the Union’s priority system.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Michael J. Rybicki, Esq. and Sandra P. Zemm, Esq.
(Sayfarth, Shaw, Fairweather, and Geraldson), of Chicago,
Illinois, for the Employer Respondent.
Eric Taylor, Esq., for the General Counsel.
Susannah Muskovitz, Esq., of Cleveland, Ohio, for the Union
Respondent.
DECISION
STATEMENT OF THE CASE
THOMAS A. RICCI, Administrative Law Judge. A hearing
in this proceeding was held on October 2 and 3, 1990, in Co-
lumbus, Ohio, upon complaint of the General Counsel
against two Respondents, Dispatch Printing Company, as an
Employer, and Teamsters Local Union 473, affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO, as a
Union. The complaint issued on June 29, 1990, based upon
charges filed by Linda Baise, an individual, on December 28,
1989 (Cases 9–CA–27129 and 9–CB–7509) and on May 9,
1990 (Cases 9–CA–27509 and 9–CB–7629). The issue raised
by the complaint is simply whether it is true that the two Re-
spondents contrived to alter the employee status of three per-
sons, Linda Baise, Della Moore, and Brenda Schreckengost,
12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
because they are women. Briefs were filed after the close of
the hearing by all parties.
On the entire record and from my observation of the wit-
nesses I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Dispatch Printing Company, a corporation with a place of
business in Columbus, Ohio, is engaged in the publication,
circulation, and distribution of the Columbus Dispatch, a
daily newspaper, in the Columbus, Ohio area. During the 12
months preceding issuance of the complaint, in the course of
this business, that Company derived gross revenues in excess
of $200,000, held membership in and subscribed to various
interstate news services, including Associated Press, pub-
lished various nationally syndicated features, and advertised
various nationally sold products. During the same period it
purchased and received at its Columbus, Ohio facility prod-
ucts, goods, and materials valued in excess $5000 directly
from points outside the State. I find that the Respondent Em-
ployer is an employer within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that Teamsters Local Union No. 473, affiliated with
the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICE
Local 473 of the Teamsters has been the bargaining agent
of the employees of Dispatch Printing Company since about
1985. Before that time the bargaining agent had been the
ITU. There have been successive collective-bargaining con-
tracts covering all the employees throughout those years. As
in all union contracts there have always been seniority provi-
sions, and relative employment rights enjoyed under that pro-
vision.
There has also been, among these unionized employees, a
system called ‘‘priority.’’ As best I can understand this ex-
tended and double talk record of testimony by disagreeing
witnesses, ‘‘priority’’ has for a long time given certain class-
es of employees more seniority or transfer rights, in their
jobs than others have. But, unlike ‘‘seniority’’ rights, which
also exist in this group, the priority concept does not appear
in the contracts which the Unions have made with the com-
pany. It is the Union, and only the Union, which decides
who has and who does not enjoy ‘‘priority.’’ In short, there
are no documents, no kinds of written records as to how pri-
ority applies to this or that job. All the record contains are
conflicting assertions by the various witnesses as to who has
such rights and who does not.
This case arose when in November 1989 the Company de-
cided to move its entire operations to another location in the
same city. The move having been occasioned by change in
the volume of his business, the Company needed a lesser
compliment of employees, and asked the Union to list all of
them in accordance with the employment prerogatives they
enjoy. The Union did that. It listed 81 journeymen, in order
of seniority. They all became regular full-time employees.
The Union also listed about 30 more employees, in lesser
categories, all of whom were not to be given regular jobs but
who continued to work from 3 to 5 days a week. It is the
Union’s position, of course, that the employees were listed
according to both the contractual ‘‘seniority’’ rights and
whatever ‘‘priority’’ rights they enjoyed under the Union’s
special system. The Company accepted the Union’s listing,
as it always did. The journeymen were put to work and the
remainder of the listed employees continued to work on
schedules that sometimes were a full 5 days a week.
Many of the employees named in the subordinate list were
women, most of them having previously occupied less skilled
positions—called permit workers, utility workers, journey-
men subs, etc. The first three names in that list were ladies—
Baise, Moore, and Schreckengost. So are the five names im-
mediately following, as well as a great number of the rest,
all ladies.
On March 22, 1990, the Company decided to reduce its
payroll substantially. Consistent with the agreement with the
Union that it would continue 81 regular journeymen, it re-
tained the 81 journeymen who had been long employed by
it. It sent a letter to the remaining employees that gave them
a choice either to leave the Company or continue to work
on a part-time bases as needed.
Despite its multiple paragraphs and phrases, the complaint
in reality makes one and only one allegation of illegal con-
duct by the Union. And it is that the Union placed these
three ladies—Baise, Moore and Schreckengost—below the
listed 81 journeymen, and thereby gave them a less desirable
status as employees—‘‘because of considerations based on
sex.’’ Absent affirmative evidence that sex in fact motivated
the Union in preparing that list, the General Counsel has not
proved the case in support of the complaint he wrote. The
complaint also uses other descriptive words to explain the
Union’s intent in so classifying these three particular women.
It says the Union’s action was ‘‘unfair, arbitrary, invidious
and a breach of the fiduciary duty owed to the employees.’’
These are no more than derogatory words aimed at repeating
what in essence is an offense to civilization, a prejudice
against women as such, or what an antifeminist attitude real-
ly amounts to. None of the language changes the plain and
the simple question of the case—can it be said that the
Union in fact hurt these three women because they are
women?
I shall recommend dismissal of the complaint because
there is no evidence—not a word, oral or written—indicating
such sex animus on the part of the Respondent Union. The
Employer—Dispatch Printing Company—is also named as a
Respondent because it accepted the Union’s listing which put
the 3 women below the 81 journeymen. It has been an old
practice between this Company and the Union to have the
Union keep records of which employees enjoy ‘‘priority’’
rights, and then in what relative position they therefore
should be listed. If there is nothing to prove the basic con-
tention that the Union was thinking of sex when it made the
list, how can it said the Company, merely by accepting the
list, was therefor also guilty of sex discrimination? The com-
plaint must be dismissed also with respect to the Company
Respondent.
If there is any merit in the argument that because these
three persons are women it follows that the Union tried to
13DISPATCH PRINTING CO.
1 Long ago the Board found a union guilty by presumption. Its rea-
soning was that when a union sends out employees from a referral
list it automatically follows that it favors its members, because that
is what a union exist for. The Supreme Court rejected the entire con-
cept, by saying: ‘‘We cannot assure that a union conducts its oper-
ations in violation of law or that the parties to this contract did not
intend to adhere to its express language. Yet we would have to make
those assumptions to agree with the Board that it is reasonable to
infer the union will act discriminatorily.’’ Teamsters Local 357 v.
NLRB, 365 U.S. 667 (1961).
2 In his brief the General Counsel calls this grievance and arbitra-
tion a ‘‘smoke screen’’ to cover the Union’s quilt. What this
amounts to is an argument that I ignore the facts and rely instead
on the General Counsel’s understandably motivated statement of
opinion. It has long been argued that the negative proves the posi-
tive. Does the positive prove the negative here? I think not.
hurt them for that reason,1 it is more than offset by other
evidence in the record which shows that the Union always
accorded them the same rights as all other members. They
filed a grievance against the Company in the fall of 1989,
stating some kind of wrongdoing by the Employer. The
Union’s agents processed it, and only after discussion with
management was the grievance dropped. But far more reveal-
ing is another grievance which the three ladies filed about
the very layoff notices of November 22, 1990, which gave
rise to this proceeding. The Union has pushed that grievance,
claiming the three ladies must be restored to regular, full-
time employment, with full backpay for time lost. Unable to
convince management, the Union carried the grievance to ar-
bitration, as its contract with the Company provides. That en-
tire matter is now awaiting arbitration, and if the Union wins,
the Charging Parties will be restored to regular employment.
I deam such assistance for them by the Union’s positive evi-
dence that as an organization this Union does not harbor a
prejudice against women.2
Perhaps there is another reason for dismissing this com-
plaint. The entire matter really belongs to the Equal Employ-
ment Opportunity Commission (EEOC).
At the hearing the General Counsel shifted position and
offered to prove that the Union ignored past practice and de-
nied to these three ladies a certain seniority, or priority right
they had earned and which, had it been considered, would
have placed them higher on the listing the Union gave to the
Company in 1989. These women, as well as a great number
of others, had long worked in a category called ‘‘utility
workers.’’ This job requires less skill than the journeymen
classification. It was their contention, as each testified in
conclusionary language, that as utility workers they accumu-
lated priority rights which they retained when being consid-
ered for promotion to journeyman status. The union agents,
as witnesses, testified that any priority earned as a utility
worker never carried over into a higher classification, that
when the employees were listed as journeymen any priority
any of them had earned as utility workers played no part in
the decision making.
Viewing the case in this light one asks did the Union act
‘‘arbitrarily,’’ ‘‘invidiously,’’ in applying its past practice?
Again the burden is upon the General Counsel to prove the
merits of the complaint by preponderance of the affirmative
evidence of the record as a whole. In the light of all the rel-
evant evidence, I think the General Counsel has failed to
successfully carry that burden and therefore find that even on
this alternative ground the complaint must be dismissed.
The three ladies in question say they earned priority rights
during the long period they worked as utility workers, start-
ing in 1982. By this they meant rights that carried over also
into other categories they might one day achieve, such as
journeyman status.
At a meeting of the Union Local in 1983 Donald Barnes,
the union agent now accused of denying the charging parties
their ‘‘utility’’ earned ‘‘priority,’’ introduced a motion to
alter the Union’s internal priority rule and grant such rights
to utility workers. He must have favored the idea. The mo-
tion was voted down. No such motion was ever made
thereafter!
In support of its assertion that the utility workers did not
have priority rights into the journeymen classification, the
Union relies in part on the fact that none of these women
after 1983 made any attempt to have the rules altered by mo-
tion within the Union. True, the testimony is conflicting as
to whether union agents told utility workers that they had
that right. During the hearing both sides were being influ-
enced by their opposing interests, and their testimony after
the events are necessarily weak. But that attempt to ‘‘cod-
ify’’ such a priority in the Union’s written regulations is
much more revealing. It means, as it must, that absent such
a codification of the rules, the rule did not exist within the
local. The General Counsel sweeps away the fact none of his
witnesses, who now claim they had such rights, ever made
any attempt, after 1983, to have the written rules changed.
In his brief he calls this defense ‘‘laughable,’’ because of
‘‘the really all male membership’’ of the Local. The vote on
the issue in 1983 was 26 against granting utility workers
(mostly females) priority, and 24 in favor. If all the members
present were men, as it is indicated, this proves that in this
local union there is no pervasive antagonism, or prejudice,
against women!
There is a much more revealing reality that greatly weak-
ens the essential basis of this complaint however phrased.
The 81 journeymen who are listed in the Union’s listing of
November 1989 were employees all named in the collective-
bargaining contract with the Union and the Company as per-
sons who were granted guarantied lifetime jobs. That con-
tract, received in evidence, was made in 1988 and was in ef-
fect during the time of these events. In their direct testimony
at the hearing, Baise at one point said her name should have
been at number 62. Later she said she should have been list-
ed after Bucci, who appears on the list as number 66. But
she was not a convincing witnesses as she tried to explain
her contention on the basis of things that had happened years
before the current contract came into effect. The other two
ladies also spoke ‘‘generally’’ of ‘‘priority’’ rights having
been acquired in earlier years. In sum, the oral testimony
about this vague thing and undocumented so-called priority
right is a confused mess. In deciding whether the General
Counsel has come forth with proof positive of wrongdoing
by the Union the best evidence is that which is unquestioned.
Maybe years ago, long before the 1988 contract which
precisely named the job guarantied employees, there may
have been some shenanigans within the Union as to who
should and who should not carry priority rights from one job
to another. If the Union is to be found, in this proceeding,
to have violated the statute at all, the unfair labor practice
must have occurred no more then 6 months before the filing
of the charges.
14 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The oral testimony may raise a doubt as to the merits of
the Union Respondent’s defense. Baise said, at the hearing,
that the union steward, Barnes, told her she did have priority.
Barnes denied that. Since he was the man who at a regular
union meeting had tried to get the Union to agree to give
her such right as a utility worker, can I believe her that he
nevertheless told her she did have such a right? No, I cannot.
To me the most significant fact, clear because it is proved
by documented exhibits and evidence, is that all the employ-
ees who were placed above the utility workers, and, accord-
ing to the three ladies, given discriminatory preference, were
named in the current contract as being entitled to lifetime
employment, or at least guaranteed jobs for the duration of
the contract then in effect. With this, a fact of record, how
can I find the Union acted improperly when, in the light of
all the past history, it listed the employees the way it did?
I think this case fits squarely in a text articulated by the Su-
preme Court:
The complete satisfaction of all who are represented is
hardly to be expected. A wide range of reasonableness
must be allowed a statutory bargaining representative in
serving the unit it represents, subject always to com-
plete good faith and honesty of purpose in the exercise
of its discretion. [Ford Motor Co. v. Huffman, 345 U.S.
330 (1953).]
The General Counsel having failed to prove by affirmative
evidence that the Respondents violated the statute, I shall
recommend dismissal of the complaint.
ORDER
It is ordered that the complaint is dismissed in its entirety.