Food, Drug & Beverage Warehousemen, Local 595

National Labor Relations Board - Board Decisions

Jun 30, 1975

218 N.L.R.B. 1286 (N.L.R.B. 1975)

1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Food, Drug & Beverage Warehousemen & Clerical
Employees, Local No. 595, International Brother-
hood of Teamsters Chauffeurs , Warehousemen &
Helpers of America (Certified Grocers of Califor-
nia, Ltd.) and Charles Gallagher . Case 21-CB-4811
June 30, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND KENNEDY
On March 19, 1975, Administrative Law Judge
Maurice M. Miller issued the attached Decision in
this proceeding. Thereafter, General Counsel and
Charging Party filed exceptions and supporting
briefs, and Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
should be considered time-barred, because of the Statute's
10(b) proviso. The Board, having duly considered the
matter, denied Respondent Union's motion; on November
11 this matter was remanded for a full-scale formal
hearing.
Pursuant to notice, a hearing with respect to the issues
was held in Los Angeles, California, on January 14, 1975.
The General Counsel, complainant, and Respondent
Union were represented by - counsel. Each party was
afforded a full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence with
respect to pertinent matters. Since the hearing's close,
briefs have been received from General Counsel's repre-
sentative, complainant's counsel, and Respondent Union's
counsel; these have been duly considered.
Upon the entire testimonial record, documentary evi-
dence received, and my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent Union raises no question herein with respect
to General Counsel's jurisdictional claim . Upon the
complaint's relevant factual declarations - specifically,
those set forth in detail within the third paragraph thereof
- which are conceded to be correct, and upon which I
rely, I find that Certified Grocers of California, Ltd., the
business firm with which complainant herein worked
throughout the period of time with which this case is
concerned, was, and remains, an employer within the
meaning of Section 2(2) of the Act, engaged in commerce
and business activities which affect commerce within the
meaning of Section 2(6),and (7) of the Statute . Further,
with due regard for presently applicable jurisdictional
standards, I find assertion of the Board's jurisdiction
herein warranted and necessary to effectuate statutory
objectives.
STATEMENT OF THE CASE
MAURICE M. MILLER, Administrative Law Judge: Upon
a charge, filed December 19, 1973, and duly served, the
General Counsel of the National Labor Relations Board
caused a Complaint and Notice of Hearing, dated June 13,
1974, to be issued and served upon Food, Drug & Beverage
Warehousemen and Clerical Employees, Local No. 595,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, designated Respon-
dent Union in this decision. Therein, Respondent Union
was charged with committing an unfair labor practice
affecting commerce , within the meaning of Section
8(b)(1)(B) of the National Labor Relations Act, as
amended . 61 Stat. 136, 73 Stat. 519. Within Respondent
Union's duly filed answer, certain factual matters set forth
in General Counsel's complaint were conceded. Respon-
dent Union, however, denied the commission of any unfair
labor practice.
On July 1, 1974, Respondent Union filed a Motion for
Summary Judgment with the Board, contending -
substantially - that General Counsel's complaint herein
218 NLRB No. 197
U. THE RESPONDENT UNION
Food, Drug & Beverage Warehousemen & Clerical
Employees, Local No. 595, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, designated as Respondent Union within this
decision, now is, and at all times material herein has been,
a labor organization within the meaning of Section 2(5) of
the Act, as amended, which admits certain of Certified's
workers to membership. Walter Petitt, Respondent Union's
business agent since February 19, 1973, has been, since
that date, Respondent Union's legal agent, functioning on
its behalf, within the meaning of Section 2(13) of the
statute.
III. THE UNFAIR LABOR PRACTICE CHARGED
A. Issue
This case, which involves no significant testimonial
conflicts, presents two, narrowly circumscribed, legal
questions. First: Whether General Counsel' s complaint,
herein should be considered time-barred, by virtue of
FOOD, DRUG & BEVERAGE WAREHOUSEMEN, LOCAL 595 1287
Section 10(b)'s so-called "limitation" proviso. Second: If
not time-barred, whether Respondent Union's December
11, 1973, refusal to grant complainant current strike
benefits - because of his continued failure to pay a
determined union fine levied more than 3 years previously
- should be considered restraint and coercion, statutorily
proscribed, within the meaning of Section 8(b)(1)(B) of the
Statute. With respect to General Counsel's substantive
unfair labor practice contention, last noted, Respondent
Union argues that complainant's 3-year-old fine, levied
pursuant to regular union trial procedures, cannot legiti-
mately be considered probative "evidence" that its subse-
quent refusal to grant him strike benefits violated the law,
for two reasons: First, because complainant was not,
despite his supervisory status (conceded for present
purposes) fined, then, for conduct which involved a
grievance adjustment or collective bargaining in Certified's
behalf; Second, because Respondent Union's recent refusal
to grant complainant strike benefits, bottomed upon his
failure to pay a previously levied fine, would not, when
considered with due regard for its circumstantial back-
ground, tend to subvert complainant's loyalty to Certified,
his current employer.
B. Facts
1. Background
a. The collective-bargaining relationship between
Respondent Union and Certified
Certified Grocers of California, Ltd. is a retailer owned
cooperative , engaged in the business of warehousing for,
and distributing food and related products to, various
member business firms . Within Southern California,
Certified presently maintains several warehouse facilities,
with its principal warehouse and grocery distribution
center located in San Fernando , California.
Since 1958, at least, Respondent Union has been the
recognized collective -bargaining representative for Certi-
fied 's San Fernando , California , warehouse workers. Fur-
ther, both Certified and Respondent Union have been,
throughout the period with which this case is concerned,
privy to successive collective-bargaining contracts, which
have been negotiated between four designated Teamsters
Union locals and Food Employers Council, Inc., a trade
group which functions on behalf of various member firms.
b. The contractual coverage of working foremen
Throughout the period designated, the relevant multiem-
ployer and multiunion Food Industry Warehouse Agree-
ments with respect to which both Certified and Respon-
dent Union have been privy, more particularly their 1967-
70 and 1970-73 contracts, have covered working foremen.
The first of these designated contracts defined the covered
"working foremen" classification as follows:
[A]n employee who is assigned by the Employer for the
direction and supervision of a working crew, the major
portion of his time ... .
However, the following 1970-73 contract, with respect to
which both Certified and Respondent Union were again
privy, modified this classification definition slightly; it
provided that working foremen covered thereby "may not
hire, terminate or issue warning notices" directed to
contractually covered workers. The testimony of Charles
Bemis , Certified's director of labor relations, proffered for
the record without challenge or contradiction, warrants a
determination, which I make, that, throughout the period
between their 1970-73 contract's September 2 termination
date and January 1974, the job duties, delegated authority,
and responsibility of his firm's covered working foremen
were not changed.
2. Respondent Union fines Gallagher
a. Gallagher's status as a working foreman
Charles Gallagher, complainant herein, has worked at
Certified for some 18 years, at its San Fernando,
California, facility. Throughout the particular 3 1/2-year
period with which this case is concerned - between June
1970, and January 1974, specifically - complainant held a
contractually covered working foreman's position.
Further, since Gallagher's position was compassed
within the bargaining unit covered by the multiemployer
and multiunion food industry warehouse agreement with
respect to which both Respondent Union and Certified
were privy, Gallagher was contractually required to
maintain, and did maintain, his membership with Respon-
dent Union throughout this period. More particularly,
from June through September 1970 during which period
certain relevant events took place, Gallagher functioned as
Certified's night dock foreman, within that firm's San
Fernando facility. In this capacity, he normally worked a
Sunday through Thursday night shift which was supposed
to begin at 8 p.m. and conclude close to 6 or 7 o'clock the
following morning; Gallagher testified, however, that 5:30
p.m. was his normal starting time.
During complainant's designated shift, Certified's regu-
lar night supervisor was, generally, considered responsible
for San Fernando facility operations; the firm's various
working foremen, with Gallagher among them, functioned
as his direct subordinates. Between 50-0 employees
normally performed services on San Fernando's night shift.
Of these, particularly, some six to eight checkers func-
tioned subject to complainant's direction. As Certified's
dock foreman, Gallagher was primarily required to make
sure that groceries were "loaded properly and on time" for
subsequent truck delivery. Together with his crew, com-
plainant ran a tow motor machine, loaded, and helped his
men load trucks. His time was, normally, divided approxi-
mately 50-50 between physical labor and supervisory
functions.
When discharging his supervisory responsibilities, Gal-
lagher could, within his discretion and without being
required to seek permission or clearance from his night
supervisor, determine what work was required, give his
crew members directions with respect to their particular
work assignments , reassign them when necessary, and
determine when overtime work for "clean-up" purposes or
some other purpose might be necessary , together with the
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
number of workers who might be required. Having
determined the number of workers required for some
overtime work, he could designate those particular workers
whose services would be needed. Further, complainant,
together with his fellow night-shift foremen, could, within
their discretion and without prior specific delegation,
temporarily direct rank-and-file warehousemen to work in
higher or lower job classifications; depending upon Sari
Fernando's workload, such temporary reclassification
assignments might be required almost daily. In this
connection, particularly, Certified's several working fore-
men functioning conjointly were authorized to determine
whether their respective workloads were sufficient to
warrant full crews; should full crews not be needed, the
firm's various working foremen could reassign their crew
members to different warehouse divisions. Even when such
transfers might involve temporary designations to perform
work within higher or lower job classifications, concerned
working foremen could authorize necessary transfers.
Finally, whenever Certified's regular night supervisor
was not present, Gallagher could be given full charge
responsibility for San Fernando's night-shift work force.
More particularly: During weekends, during odd-hour
shifts, or during periods when warehouse inventories were
being taken, Certified's regular night supervisor would not
normally be present. On these occasions, so the record
shows , complainant was considered solely responsible for
the proper performance of necessary shift work. Whenever
he considered the crew complement present not large
enough to perform whatever work might be required,
Gallagher could, within his discretion and without being
required to seek prior permission, refer to Certified's
seniority roster and summon needed warehousemen, by
telephone, for overtime work.
Certified's various working foremen have not been
concerned with the periodic negotiation of their firm's
collective-bargaining contracts. The credible testimony
herein, nevertheless, warrants a determination that com-
plainant's proper performance, with respect to his regular
"working foreman" duties, did require him to be familiar
with relevant portions of Respondent Union's contract.
More particularly, when temporarily transferring employ-
ees from one job classification to another, Gallagher was
required to be familiar with those germane contractual
provisions which dealt with job classifications, regular and
premium wage rates, holiday pay, and seniority. While
working foremen, like the complainant herein, might not
be required to represent Certified through the various steps
of that firm's contractual grievance procedure, the record
does reveal that they have a contractual role. Thus,
throughout the period with which we are concerned, the
Food Industry Warehouse Agreement provided that:
Should any controversy, dispute, or disagreement anse
during the period of this Agreement, out of the
interpretation or application of the provisions of this
Agreement . . . The employee shall first attempt to
resolve the issue with his immediate supervisor, or other
representative designated by the Employer , requesting
the cooperation of the Union Steward if he so desires.
Consistently with this provision, disaffected warehouse
workers, together with their union stewards, would be
expected to confer, first, with their concerned working
foreman, while seeking resolutions or settlements prior to
filing formal written grievances. When controversies,
disputes, or disagreements cannot be resolved at this stage,
working foremen may be required "witnesses" with respect
thereto, during subsequent stages of Certified's contractual
grievance procedure.
With matters in this posture, General Counsel's repre-
sentative, complainant's counsel, and Respondent Union's
counsel have stipulated for the purpose of this proceeding
solely that complainant herein, on the specific July 1970
date when certain events, purportedly relevant herein, took
place, held a supervisory position, within the statutory
definition. Upon the testimonial and documentory record,
considered in totality, I further find that Gallagher
functioned as Certified's firsthne supervisor throughout the
June 1970 - January 1974 period with which this case is
concerned.
b. Gallagher's controversy with Walker
During July 1970, Elgin Walker was working at
Certified's San Fernando facility; he was then a checker/
loader on Certified's day shift.',
On the morning of July 15, the warehouse's night dock
crew had not completely loaded some of their trucks by 6
o'clock, Certified's normal shift change time. When some
day shift dock workers reported, therefore, Gallagher
approached five or six of them; he directed them to
complete the work left undone by his departing night shift
crew. Walker, who had previously received his regular day
shift assignments and was preparing to start work, refused.
His refusal generated a verbal controversy. With respect
thereto, Walker's testimony, which I find credible, shows:
... [During] this particular time . . . Charles Gal-
lagher approached me . . . directing me to do work
that I felt was not my job assignment, because I had
already been assigned. This developed further into a -
more or less - a confrontation , one that had gotten to
the point where both parties , he and I, were at each
other's throats , more or less . . . An argument
developed that was pretty emotional . . . [Under] this
emotional strain various things came out, threatening
my job, and it is pretty rough for me to tell you exactly
... Well, he - you know - threatened to fire me
.... He told me to follow him to higher supervision,
which was Don Wilkerson [Certified's San Fernando
warehouse superintendent].
While a witness, complainant substantially confirmed
Walker's proffered recollections . He testified, inter alia,
that several trucks, which Certified was committed to
dispatch, had not been fully loaded by San Fernando's
night shift crew; that Wilkerson had directed him to get
those trucks loaded; that Certified's regular night shift
crew had been "cut off" following their completion of 10
hours' work; that he, (Gallagher), had therefore directed
five or six day shift checkers to complete these required
loading operations; that all of them, save Walker, had
FOOD, DRUG & BEVERAGE WAREHOUSEMEN, LOCAL 595 1289
accepted his reassignment directives; but that Walker had
refused compliance. Complainant conceded that he,
together with Walker, had become angry. He had then
taken Walker to see Certified's warehouse supervisor.
Wilkerson, who had personally given Walker his regular
day shift assignments , previously, told the checker/loader,
nevertheless, that, whenever he received a direct "order"
from Certified's working foremen , he would be expected to
comply therewith or face discharge. Walker, so his credible
testimony shows , became quite nervous; he considered
Wilkerson's comment a verbal warning or reprimand.
c. Gallagher's union trial
Walker, like complainant herein, then held union
membership; he was, indeed, one of Respondent Union's
San Fernando shop stewards. Directly following both July
15 confrontations noted he filed charges against Gallagher
with Respondent Union's executive board. Complainant
was charged, therein, with "conduct unbecoming a union
member" bottomed upon Walker's contention that he had
been "harassed, humiliated, and threatened [with] termina-
tion" during their verbal controversy, which had preceded
Wilkerson's reprimand.
Shortly thereafter, I find, Respondent Union's secretary-
treasurer dispatched a letter by certified mail wherein
complainant was notified that Walker's charge had been
filed, that a union trial with respect thereto would be held,
and that should he, (Gallagher), fail to appear, the trial
would proceed in his absence.
The record warrants a determination, which I make, that
Respondent Union's notification was mailed August 1.
Copies of Walker's charge, together with Respondent
Union's constitution and bylaws, were enclosed. Gallagher
was further notified that August 25 had been set as his trial
date. While a witness, Gallagher testified that he had,
indeed, received prior notice with regard to his scheduled
union trial through a telegram or registered letter; he
declared that he had given whatever documents he
received to Wilkerson, Certified's warehouse supervisor.
When produced for the record by Respondent Union's
counsel , however, Respondent Union's letter of notifica-
tion was still sealed within its certified mail envelope,
which bore a postal service notation, dated August 9, that
delivery had been refused. For present purposes, this
patent contradiction between Gallagher's testimony and
Respondent Union's documentary "evidence" produced
from its files requires no resolution, within my view.
Pursuant to schedule, Respondent Union's president and
executive board met on August 25 to consider, inter alia,
Walker's charge. Complainant herein, however, was not
present; he felt, so his present testimony shows, that
Certified would have previously "taken care" of Ins
problem. When requested, thereupon, to detail his charge's
basis , Walker summarized his July 15 confrontation with
Certified's night dock foreman.
While a witness herein , Walker testified that Respondent
Union's executive board was told during his recital that
Wilkerson, Certified's warehouse superintendent, had
reprimanded him, but that Gallagher had been the person
who had instigated his superior's discipline. The check-
er/loader declared, so his present testimony shows, that his
union charge derived, not from Wilkerson's disciplinary
reprimand, but rather from the heated verbal confrontation
between Gallagher and himself which had taken place
previously. Upon Walker's charge, Respondent Union's
executive board found complainant guilty of conduct
unbecoming a union member; he was, consequently, fined
$100.
d. Subsequent developments
A letter, drafted to notify Gallagher with regard to
Respondent Union's disposition of Walker's charge, was
dispatched by certified mail on August 26; the record
warrants a determination, which I make, that complainant
received it the following day.
According to Gallagher, this letter was likewise given to
his San Fernando warehouse superior, since complainant
presumed that his situation, which had developed because
he was pursuing "company" business, while on "company"
property, would be considered a company matter. Howev-
er, assuming , arguendo, that he did so, the present record
provides no clue regarding its subsequent disposition.
Complainant's personnel file, according to Certified's
director of labor relations, contains no such letter; in fact,
so Bemis testified, it contains nothing relevant with respect
to matters now under consideration.
3. Respondent Union denies Gallagher strike
benefits
a. Respondent Union's reminder regarding
Gallagher's fine
Throughout some 3-1/2 years which followed, Gallagh-
er's fine remained unpaid. Respondent Union's constitu-
tion and bylaws provide (Art. VII, Sec. IV) that members
aggrieved by executive board decisions may file appeals
with a joint council having jurisdiction; where no joint
council functions, aggrieved members may file their
appeals directly with the Teamsters Union general execu-
tive board. The testimonial and documentary record herein
contains no suggestion, however, that complainant pursued
this constitutionally provided procedure; I find that he did
not.
Save for Respondent Union's August 26, 1970, letter of
notification regarding his fine, Gallagher heard nothing
further until he received a November 28, 1973, letter. That
letter detailed his current financial obligations with respect
to union dues and certain recent fines, levied for his failure
to attend two compulsory membership meetings. Within a
postscript, however, complainant was further notified that
he still owed Respondent Union's previously levied $100
fine, based upon the Executive Board's August 25, 1970,
decision.
b. Respondent Union 's strike benefit policy
Since calendar years 1968 - 69, Respondent Union has
maintained a definite policy with regard to the payment of
strike benefits . That policy , formulated consistently with
certain Executive Board decisions , has been publicized
when necessary for the benefit of Respondent Union's
membership ; notices with respect thereto have been
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prepared and dispatched "numerous times" for posting on
union bulletin boards, within facilities covered by Respon-
dent Union's contract, whenever potential work stoppage
situations have developed.
The union's strike benefit policy commits that organiza-
tion to pay "out of work benefits" to all members in good
standing who may have been idled by reason of some labor
dispute. Respondent Union's members were further noti-
fied that, "Good standing means all dues, fines and
assessments must be paid" with attendance fines payable
..at least 30 days" before any declared strike date. Further,
credible testimony herein warrants a determination, which
I make, that readiness to perform picket duty when
required has likewise been considered a condition preced-
ent for the receipt of Respondent Union's so-called "out of
work" benefit payments.
c. The work stoppage
Sometime during early December, 1973, Respondent
Union's members in Certified's hire became involved with
a work stoppage which, inter alia, affected that firm's San
Fernando warehouse facility. Contract negotiations, look-
ing toward a renewal of Respondent Union's 1970-73
Food Industry Warehouse Agreement, which had reached
its termination date some 3 months previously, were then
in progress. (The record, herein, provides no sufficient
basis for determining whether this December work
stoppage resulted from a strike or from a company lockout.
Various witnesses, while testifying, have used both terms.
For present purposes, however, no definitive choice with
respect to terminology seems required.) Within a day or
two following the stoppage's inception, complainant
telephoned Respondent Union's business agent, Walter
Petitt; he queried the latter with regard to his eligibility for
union sponsored "out of work" benefits. Inter alia, so his
testimony shows, Gallagher mentioned Respondent
Union's November 28 letter, with its "PS" comment
regarding his previously levied, but still unpaid, $100 fine.
Respondent Union's business agent told him, so I find, that
before he could receive strike benefits he would have to be
in good standing. Complainant asked what that meant. His
testimony with respect to Petitt's reply, which I credit,
reads as follows:
And, he says, "Well, Chuck," or Charles, or whatever
he called me at the time , he says, "You will have to pay
the $100 fine and walk picket duty, but you will not
collect the strike benefit fund for 30 days after you pay
the fine." And I said, "Walt, I am not paying that fine,
if that is the case , because I don't know how long the
strike is lasting, and I don't have the money to spare for
a fine that - I don't know how long my family is going
to go without money, is what it amounted to . . . He
said , "Well, that is the rules ." I said, "Well, is there any
way that I can sit in off a Board meeting?" And, he
gave me the date of the Executive Board meeting.
On December 11 Gallagher attended Respondent Union's
meeting . He recapitulated his situation, with particular
reference to Respondent Union's previously levied fine,
and sought information with respect to what could be
done. He was told, consistent with Petitt's prior pro-
nouncement, that he would have to pay his fine and walk
picket duty; thirty days thereafter, he was told, he could
start collecting his "out of work" benefit payments.
d. Subsequent developments
The work stoppage which had affected Certified's San
Fernando warehouse facility lasted some 5 weeks, termi-
nating in January 1974. None of San Fernando's working
foremen, so I find, performed services for Certified while
the stoppage lasted. The record, however, warrants a
determination, which I make, that all of them, save
complainant herein, did receive Respondent Union's
promised "out of work" benefits, while the stoppage
continued.
Concurrently, however, Certified's working foremen
particularly were likewise receiving certain company
payments during the stoppage period. These payments, so
Director of Labor Relations Bemis testified, were calculat-
ed as follows:
The calculation, sir, was based on the normal rate they
would receive for unemployment insurance ; it would
be the difference between that and the strike benefits.
And the stake benefits were in quite [a] wide range,
based on the locals.
In short, when Certified's working foremen reported the
specific weekly sums which they were currently receiving
as strike benefits, those union payments were deducted
from the State of California Unemployment Compensation
Benefits which these warehouse supervisors, absent their
disqualification under state law, would have been consid-
ered eligible to receive; working foremen who were
actually receiving so-called "out of work" benefits from
Respondent Union were then paid sums sufficient to raise
their total weekly income, throughout the stoppage period,
to whatever level it would have reached had they been
currently receiving state compensation.
Gallagher, so his testimony shows, likewise received
these company payments; while a witness, he declared,
however, that he did not receive such payments from
Certified while the work stoppage was in progress. His
payments, when finally received, approximated $70 weekly
for the full duration of the stoppage , less taxes withheld
and miscellaneous deductions. They were calculated, so the
record shows, to provide "full reimbursement" based on
his presumptive unemployment compensation rights, with-
out a deduction, since he was not concurrently receiving
Respondent Union's regular "out of work" benefit pay-
ments.
C. Discussion and Conclusions
The 10(b) Bar
In relevant part, General Counsel's complaint herein sets
forth his factual contentions: That Certified's working
foreman, Gallagher, held a supervisory position through-
out the period with which this case is concerned; that
Respondent Union has, throughout, represented Certified's
San Fernando warehouse workers, complainant included,
FOOD, DRUG & BEVERAGE WAREHOUSEMEN, LOCAL 595 1291
for collective-bargaining purposes; that Gallagher,
throughout the period with which this case is concerned,
held union membership; that, during calendar year 1970
specifically, complainant herein, "in the performance of his
supervisory duties, disciplined employee Elgin Walker for
failing and refusing to perform a work assignment" which
he had been given; that, shortly thereafter, Respondent
Union fined Gallagher because of his "acts" with respect to
Walker's discipline; that, since August 25, 1970, complain-
ant has, nevertheless, refused to pay Respondent Union's
levied fine; that, throughout a 5-week period beginning in
December 1973, and continuing into January 1974,
Certified's San Fernando warehouse workers, Gallagher
included, were involved in a work stoppage; and that,
twice during December 1973 complainant was told
Respondent Union would not provide him with strike
benefits during that work stoppage unless and until his
prior 1970 fine was paid. With matters in this posture,
General Counsel contends that:
By the acts and conduct described . . . [Respondent
Union's December, 1973 refusal to pay Gallagher strike
benefits while his previously levied fine remained
unpaid] . . . and by each of said acts, occurring in the
circumstances described ... above, Respondent [Union]
did restrain and coerce , and is restraining and coercing,
Certified in the selection of its representatives for the
purposes of collective-bargaining or the adjustment of
grievances [Emphasis supplied] ...
With respect to General Counsel's proffered legal conclu-
sion, however, Respondent Union contends first that, with
due regard for Section 10(b)'s so-called "limitation"
proviso, that body's determination to withhold complain-
ant's strike benefits cannot presently be found contrary to
law. Cf. Local Lodge No. 1424, International Association of
Machinists, AFL-CIO [Bryan Manufacturing Co.] v.
N.L.R.B. 362 U.S. 411 (1960); United Slate, Tile and
Composition Roofers, et al., Local Union No. 106, AFL-CIO
(Midwest Roofing and Insulation Co., Inc.), 202 NLRB 851
(1973). Any determination that Respondent Union's
withholding restrained and coerced Certified, with respect
to that Company's selection of collective bargaining or
grievance adjustment representatives would have to be
derived , so Respondent 's counsel argues , from a prelimi-
nary determination that its previous August 1970 fine,
levied against complainant herein, had constituted an
8(bxl)(B) violation. And, since Respondent Union's
decision to levy that fine had patently "occurred" more
than 6 months before Gallagher's present charge was filed,
General Counsel should be considered precluded, so
Union counsel contends, from prosecuting a complaint
bottomed upon the designated fine's purported statutory
impropriety.
Within his brief, General Counsel suggests contrariwise
that Respondent Union's 10(b) contention lacks merit. In
this connection, however, General Counsel's representative
primarily cites certain language within a recent Board
decision . Local 1101 Communication Workers of America,
AFL-CIO (New York Telephone Company), 208 NLRB 267,
268 (1974). Therein, the respondent labor organization,
which had levied fines within Section 10(b)'s 6-month
limitation period based upon certain disfavored conduct
by union members which had "occurred" more than 6
months before Board charges were filed, was charged with
8(b)(1)(A) violations. The Board declared:
In our view, it is unnecessary to find an unfair labor
practice based on the [prior] strike in order to resolve
the fine issue, and it is clear that no relief is being
sought vis-a-vis the strike. The gravamen of the
complaint is that the fines restrained and coerced
employees in violation of the Act, and all that must be
established is that the fines contravened the employees'
Section 7 rights. In order to prove that allegation, pre-
Section 10(b) evidence may be introduced to explain
the true nature of the fines. Unlike the situation in
Bryan or other cases where all the operative facts
needed to establish a violation occurred outside the
10(b) period, where "there has been active conduct, as
contrasted with mere passive inaction following an old
offense, it is open to the Board to refer to previous
acts. . . ." N.L.R.B. v. Aero Corporation, 363 F.2d 702,
[706-707] (C.A.D.C., 1966), enfg. 149 NLRB 1283, cert.
den. 385 U.S. 973 (1966). Applying this principle to the
present case , it becomes clear that we are not
confronted with a situation where the only conduct
complained of is the "unlawful" strike, but where
"active conduct" in the nature of fines has also
occurred, and Section 10(b) does not preclude . . . the
Board from examining the circumstances surrounding
the commencement of the strike in order to assess
whether the fines, unposed for abandoning the strike,
violate the Act.
Relying upon this Board construction of Section 10(b)'s
presumably circumscribed thrust, General Counsel con-
cedes that, had Respondent Union merely been "attempt-
ing to collect" the complainant's pre-10(b) fine, for
example, through threats of court action and/or formal
legal proceedings, the "circumstances surrounding" that
pre-10(b) fine's imposition could not be considered.
Communications Workers ofAmerica, Local 5550 (American
Telephone and Telegraph Company), 187 NLRB 553 (1970);
United Steelworkers of America, AFL-CIO, Local 1114
(Harnischfeger Corporation), 187 NLRB 22, 23 (1970);
International Association of Machinists and Aerospace
Workers, AFL-CIO (Union Corbide Corporation), 180
NLRB 875, 876-877 (1970), reaffirmed 186 NLRB 890,
petition for enforcement denied and case remanded, sub
nom. Luther W. Shumate v. N. L R. B., 452 F.2d 717 (C.A. 4,
1971), reconsidered on merits 196 NLRB 785 (1972);
compare Communications Workers ofAmerica, Locals 9510
and 9511 (Pacific Telephone and Telegraph Company), 188
NLRB 433, 434-435 (Oakden's and Walton's fines) (1971);
see also Wisconsin River Valley District -Council, United
Brotherhood of Carpenters and Joiners of America, AFL-
CIO (Skippy Enterprises, Inc.), 211 NLRB 222 (1974). He
suggests , however, that, when a union 's conduct within the
limitation period (here the denial of strike benefits) produces
broader consequences and goes further than the mere
collection a a debt, such a development should be
considered "active conduct" rather than merely "passive
inaction" which may, therefore , privilege reference back-
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ward to prior events , calculated to "shed light upon"
challenged conduct within the 6-month period preceding
complainant 's charge.
More particularly , General Counsel contends that, when
Respondent Union conditioned Gallagher 's right to receive
strike benefits upon his fine's payment , that decision, like
the initial levying of a fine within the statutory 6-month period
constituted the specific "active conduct" and/or "operative
fact" with respect to which a backward look should be
considered statutorily permissible , when this Board must
determine its propriety . Local 1101, C. W.A. (New York
Telephone Co.), suprq• Production, Electronic & Aero-Dy-
namic Lodge No. 1327, I.A.M. (Dalmo Victor Company), 192
NLRB 1015, 1016-17 (1971); compare C.W.A., Locals
9510, 9511 (Pactflc Telephone and Telegraph Company),
supra, (Sondra and William White 's fines). The decision of
Respondent Union's executive board should not be
considered, so General Counsel contends , merely a
reaffirmation of previous time-barred conduct. United
Slate Tile and Composition Roofers (Midwest Roofing and
Insulation Co., Inc.), supra. Respondent Union's withhold-
ing of Gallagher's strike benefits , so General Counsel's
brief suggests , bears "no relation" to his prior fine's
imposition ; rather , those strike benefits withheld (which
General Counsel would distinguish from court proceedings
threatened or pursued for the sole purpose of collecting
previously levied fines ) reflect a punishment laid upon
Gallagher for his continued failure or refusal to pay.
General Counsel 's proffered "therefore" contention, that
Section 10(b)'s proviso, properly construed , permits a
review, retrospectively , with regard to those "circum-
stances" which "surrounded" Gallagher's 3-year-old fine,
when the statutory propriety of Respondent Union's recent
strike benefit decision must be determined , carries no
persuasion , however . His proffered rationale, that Respon-
dent Union's most recent "active" conduct , specifically,
that body's purportedly punitive decision to withhold
payment of complainant 's regular "out of work" benefits,
pending his previously levied fine 's payment, privileged a
backward-looking reference to his union trial and that
trial's consequence , merits characterization as simplistic,
within my view.
Substantially, General Counsel 's present position, set
forth within his representative 's brief, parallels that taken
by Bryan 's dissenters. Justice Frankfurter particularly,
when recapitulating the situation presented therein for
Supreme Court review, noted that certain relevant events
had really occurred during the 6-month period which had
directly preceded the case 's precipitating charge; he
commented that:
[We] have here not mere inert continuity of conse-
quences through antecedent action ; events were
brought to pass through conscious human intervention
within six months of the filing of the charge.
Specifically he noted that the respondent union charged
therein had, during the 6-month period, purported to act as
an authorized bargaining agent ; that union dues had been
collected through a "check-off ' by the employer ; and that
employees had been compelled to become union members
within 45 days . Under these circumstances, Justice Frank-
furter would have found Section 10(b)'s proviso no bar
with respect to complaint proceedings ; he would have
found such proceedings barred "only" when based upon
active occurrences not falling within the six-month period"
statutorily defined . Local Lodge No. 1424, I.A.M. v.
N.L.R.B. (Bryan Manufacturing Company), supra, 430-431.
Likewise , Justice Whittaker, (Ibid, 434-435), proffering a
logically obverse formulation , declared:
It is important carefully to note what it is that §
10(b) bars . It says , in relevant part, that "no complaint
shall issue based upon any unfair labor practice
occurring more than six months prior to the filing of the
charge . . . ." (Emphasis added .) The bar is, then,
against the issuance of a "complaint" that is "based
upon" acts "occurring more" than six months prior to
the filing of the charge . In the plainest possible sense,
then, it does not bar the issuance of a complaint based
upon acts occurring within six months of the filing of the
charge. The complaint that was issued here was based
upon acts occurring within six months of the filing of
the charge . And the Board rested its decision solely on
those acts.
In short, these Bryan dissenters contended that , whenever
some "active occurrence " falling within the statutory 6-
month limitation period stands challenged as violative of
law, General Counsel 's complaint with respect thereto
should not be considered barred . Herein, General Coun-
sel's contention , that Respondent Union's declared deter-
mination to withhold Gallagher 's strike benefits constitut-
ed "active conduct" rather than mere "passive inaction"
following a time-barred unfair labor practice , reflects a
similar construction of Section 10(b)'s thrust.
The Supreme Court's majority Bryan decision , however,
clearly reflects a different view with respect to the Statute's
meaning ; the mere presence of definable "active conduct"
within the statutory limitation period will not, without
something more, suffice to remove Section 10(b)'s bar.
Whether this Board properly may "refer to [respondent's]
previous acts" when determining the true character of
some "active conduct" within the limitations period will
depend upon that recent conduct 's nature. More particu-
larly, "when occurrences within the six-month limitations
period, in and of themselves, may constitute, as a substan-
tive matter, unfair labor practices ," prior events, which
may persuasively reveal the true character of the respon-
dent's challenged conduct within the limitations period,
may properly be considered. Where , however, conduct
putatively benign, lawful , or presumptively beyond the
range of statutory proscription, falling within the limita-
tions period, can be found legally proscribable "only
through reliance on an earlier [time-barred ] unfair labor
practice" respondent 's prior conduct cannot be used to
"infuse with illegality" or "cloak with illegality" conduct
which would, otherwise , be considered lawful. Since
complaints based upon such prior occurrences , regardless
of their possibly illegal character, would be time -barred,
"to permit the [prior occurrence ] itself to be so used"
would, realistically, serve to revive a legally defunct unfair
labor practice.
FOOD, DRUG & BEVERAGE WAREHOUSEMEN, LOCAL 595 1293.
When determinations must be made , then , particularly
with respect to claimed 8 (b)(1)(A) and (B) violations, these
distinctions , delineated by Justice Harlan for the Supreme
Court's Bryan majority, can be focused narrowly. Thus:
Whenever a respondent's active conduct, within the
statutory 6-month limitation period, could , conceivably,
generate legally cognizable restraint or coercion, some
retrospective review , centered upon relevant earlier devel-
opments, will be permitted . Should such a retrospective
look, then , provide data with respect to motive , purpose, or
foreseeable consequences which , when considered in
conjunction with (added to) the respondent 's more recent
conduct, would render that challenged conduct legally
proscribable , Section 10(b) will not prevent this Board
from reaching the logical conclusion that such a respon-
dent 's most recent "active" conduct should , itself, be
considered legally impermissible . In short, Section 10(b)'s
proviso "ordinarily does not bar such evidentiary use of
anterior events" when relied upon merely "to shed light on
the true character of matters" which have occurred within
the limitation period. Ibid, 416. However, whenever a
respondent's challenged "active" conduct - considered
without regard for its background - reasonably merits
characterization as superficially lawful or benign , so that
some retrospective review may be required to provide "all
the operative facts" needed to prove a statutory violation,
Section 10(b)'s legal curtain will prevent this Board from
concluding that such recent and prior developments should
be considered connected . "There the use of the earlier
unfair labor practice is not merely `evidentiary,' since it does
not simply lay bare a putative current unfair labor practice."
Ibid, 417. Rather, it serves to cloak with illegality , conduct
otherwise beyond proscription.
Complainant's situation , within my view, falls within this
last-defined rubric 's governance . We are really concerned,
herein , with "active" conduct - namely , Respondent
Union 's declared determination to withhold Gallagher's
strike benefits - which , despite its presumptively "coer-
cive" or "punitive" character, cannot be considered,
standing alone , statutorily proscribed . The present record,
which provides no data sufficient to warrant a definitive
determination , does suggest , nevertheless , that complain-
ant may have been deprived of more that $ 100 because of
Respondent Union 's policy determination that he could
not be considered qualified to receive strike benefits.
Respondent's decision , therefore , probably did represent
something more than a simple recoupment maneuver,
whereby Gallagher's previously levied fine could be
collected . Nevertheless , Respondent Union's declared
decision , which derived , so I have found, from that body's
previously defined policy with respect to stake benefit
payments , can hardly be considered , without more , subject
to Board prohibition . General Counsel 's complaint notes
properly that Respondent Union 's conduct , "occurring in
the [particular] circumstances described " previously therein,
purportedly restrained and coerced Certified with respect
to its selection of collective bargaining or grievance
adjustment representatives . A comparison will reveal the
purpose which a reference to those particular "circum-
stances" would serve . Had complainant been fined for
crossing Respondent Union 's picket lines to perform struck
work, Respondent Union's subsequent decision to deny
him strike benefits, while his fine remained unpaid, clearly
could not be considered a statutorily proscribed unfair:
labor practice, even though such a withholding of strike
benefits might have a broad "punitive" thrust vis-a-vis the
working foreman personally. Florida Power & Light
Company v. International Brotherhood of Electrical Workers,
Local 641, 622, 759, 820, 1263 and N. L. R. B., 417 U.S. 790
(1974). Respondent Union's decision, reached within the 6-
month limitation period, could be considered a statutorily
proscribed unfair labor practice, only when bottomed upon
a supportable determination that Gallagher's prior 3-year-
old fine, when levied, had violated Section 8(b)(1)(B).
Board decisions "based upon" such determinations,
namely, that some fully developed, self-contained, proven
unfair labor practice had occurred more than 6 months
before the relevant charge's filing, cannot stand; Bryan
clearly forbids them.
In short, we are confronted herein with a situation where
"all the operative [events] needed to establish a violation"
took place before Section 10(b)'s 6-month limitation
period. This being so, "a finding of violation which is
inescapably grounded on events predating the limitations
period is directly at odds with the purposes of the Section
10(b) proviso." Local Lodge No. 1424, IAM v. N.LR.B.,
supra, 422. Respondent Union's conduct, challenged
herein, may well be more than a mere "reaffirmation" with
respect to previous time-barred conduct. Nevertheless,
whenever challenged acts within Section 10(b)'s limitation
period, regardless of their seriousness, cannot be con-
demned as unlawful without some "express declaration"
that earlier conduct constituted an unfair labor practice,
Section 10(b)'s drawn curtain must be respected. To
paraphrase Bryan : In any real sense, the complaint herein
must be considered "based upon" this Respondent Union's.
previously levied fine, for that organization's decision to
withhold strike benefits pending the fine's payment may
properly be considered a continuing, renewed, or revived
"violation" solely by reason of circumstances which were
present only when the fine was levied. To justify a present
reliance on those 3-year-old circumstances, purportedly
because Respondent Union's decision to withhold Gal-
lagher's strike benefits constituted a continuing , renewed,
or revived violation, signifies support for a lifting of the
limitations bar by characterizations which become apt only
when that bar has already been lifted. Such "legerdemain
in logic" cannot, persuasively, carry General Counsel's
case . Compare The Davis Fire Brick Company, 131 NLRB
393, 397-398 (1961 ), in this connection.
General Counsel's brief, more particularly his reference
to Local 1101, C WA., supra, therein , suggests a further
contention, however, that Respondent Union's determina-
tion to withhold Gallagher's strike benefits may properly
be found violative of Section 8(b)(1)(B) since it need not
rest upon some "formal finding" that Complainant's
previously levied fine constituted an unfair labor practice.
A comparable contention , which the Supreme Court's
Bryan majority considered, was rejected therein. Local
Lodge No. 1424, IAM v. N.LR.B., supra, 424-425. With
respect thereto, Justice Harlan commented:
1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Court of Appeals, while stating that the Board
could not draw "any legal conclusion with regard to
events outside the statutory period," distinguished the
decision here as resting on the "mere existence [of the
facts surrounding the making of the 1954 contract]
rather than on ascribing legal significance to those facts
standing alone." 105 U.S. App. D.C., at 108, 264 F.2d
at 581 (emphasis by the court). This distinction
sacrifices the policy of the Act to procedural formali-
ties. If, as is not disputable, the § 10(b) limitation was
prompted by "complaint that people were being
brought to book upon stale charges." N.LR.B. v.
Pennwoven, Inc., 194 F.2d 521, 524, it is a particular use
of the prelimitations facts or conduct at which the
section is aimed, and it can hardly be thought relevant
that the proscribed use has not been labeled as such.
Herein, General Counsel's rationale, should it be consid-
ered valid, would clearly permit litigation bottomed upon
the claimed illegality of complainant's previously levied
fine long "after records have been destroyed, witnesses
have gone elsewhere, and recollections of the events in
question have become dim and confused." The statute's 6-
month period of limitation would never run, so long as
Gallagher's fine remained unpaid, with the possibility of
some union counteraction, beyond a simple collection
effort, present. Such a circumscription of Section 10(b)'s
prohibitory thrust would, clearly, vitiate Congressional
policies.
True, that section's proviso, when given the scope
delineated herein, could, arguably, deprive Certified of
protection from those particularized restraints and coercive
practices which Section 8(b)(1)(B) would proscribe. In that
connection, however, Justice Harlan noted:
It is a commonplace, but one too easily lost sight of,
that labor legislation traditionally entails the adjust-
ment and compromise of competing interests which in
the abstract or from a purely partisan point of view
may seem irreconcilable. The "policy of the Act" is
embodied in the totality of that adjustment, and not
necessarily in any single demand which may have
f i g u r e d , however weightily, in it ... As expositor of the
national interest, Congress, in the judgment that a six-
month limitations period did "not seem unreasonable,"
(citation) barred the Board from dealing with past
conduct after that period had run, even at the expense
of the vindication of statutory rights. "It is not
necessary for us to justify the policy of Congress. It is
enough that we find it in the statute. That policy cannot
be defeated by the Board's policy...." Colgate Co. v.
N.LR.B., [338 U.S. 355], 362-363.
Upon due consideration, therefore, I find merit in
Respondent Union's motion to dismiss herein. Though my
determination may leave complainant without a statutory
remedy, and Certified without any present protection
against arguably demonstrable restraints, with respect to
which I make no present determination, the statute's
mandate cannot be disregarded.
[Recommended Order for dismissal omitted from publi-
cation.]