Trico Workers Union Independent

National Labor Relations Board - Board DecisionsFeb 16, 1979

240 N.L.R.B. 810 (N.L.R.B. 1979)

810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trico Workers Union Independent (Trico Products Corporation) and International Union, United Auto- motive, Aerospace and Agricultural Implement Workers of America, UAW and Willie J. Lee and Gerda A. Kristensen. Cases 3-CB-3073, 3-CB- 3069-1, and 3 CB 3069 2 Feburary 16, 1979 DECISION AND ORDER REMANDING PROCEEDING TO ADMINISTRATIVE LAW JUDGE BNY CHAIRMAN FANNIN(; ANI) Mi MsB RS MURPIHY ANI) TRUI SI)AIE On November 9, 1978, Administrative Law Judge Walter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, the Charging Parties and Respondent filed exceptions and supporting briefs. 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 Administrative Law Judge recommended that the consolidated complaint be dismissed, concluding that the issues before him were moot and that it would not effectuate the policies of the Act to decide the complaint allegations on their merits. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and for the reasons stated below finds that the issues in this proceeding are not moot. Accordingly. this proceeding shall be remanded to the Administrative Law Judge for consideration on the merits of the is- sues raised by the consolidated complaint. The consolidated complaint in this proceeding al- leges that Respondent violated Section 8(b)(1)(A) and (5) of the Act. The 8(b)( )(A) violation is based on the allegations that Respondent told certain unit employees that it would refuse to represent them and/or to process their grievances and that Respon- dent in fact refused to represent certain unit employ- ees and/or process their grievances. The 8(b)(5) vio- lation is based on the allegation that Respondent unlawfully set a $75 reinstatement fee for unit em- ployees who were delinquent in their dues payments. Since 1942 Respondent had been the collective- bargaining representative for the production and maintenance employees of Trico Products Corpora- tion, herein referred to as the Company. Pursuant to a petition filed by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, herein referred to as the 240 NLRB No. 116 UAW, in which Respondent intervened, an election was held on May 19, 1977. The UAW received a majority of the valid ballots cast and, after consider- ation of the objections to the conduct of the election, the Board certified the UAW as the collective-bar- gaining representative for the Company's production and maintenance workers on September 26, 1978.' The conduct alleged as unlawful in the consolidated complaint occurred during the period after the elec- tion and before the certification of the UAW. The Administrative Law Judge, who issued his De- cision after the Board's certification of the UAW, dismissed the consolidated complaint, concluding that the issues it raised were moot. He found that the certification of the UAW ended Respondent's exis- tence as a union for all practical purposes since Re- spondent was no longer the representative of the Company's employees, and by the terms of Respon- dent's constitution and bylaws, Respondent is limit- ed to representing only the employees of the Compa- ny. On this basis, the Administrative Law Judge stated that any remedy would be meaningless since Respondent was not in a position to process griev- ances or to require employees as a condition of em- ployment to pay a $75 reinstatement fee. We disagree. Contrary to the Administrative Law Judge's conclusion, Respondent still exists as a union. Respondent has not been dissolved, is proper- ly before the Board as a party, and would be subject to any remedial order.2 Nor has Respondent's ouster as the collective-bargaining representative rendered the resolution of the issues presented here mean- ingless or the issuance of an order futile. Respondent has not conceded the unlawfulness of its conduct and has expressed its intention to seek to regain its status as the collective-bargaining representative of the Company's employees. Whether Respondent will achieve that status again is speculative. Nevertheless, it is not so remote a possibility as to warrant depriv- ing the parties and the Company's employees of a Decision and Order, and thereby, of the delineation of rights and, in the event a violation is found, of the protection against future wrongs that such a decision and order affords. Furthermore, the resolution of a labor dispute and the issuance of a remedial order, if warranted, are a vindication of the public policy of the statute.) I lri,, Pixu I ('orporatln,. 238 NlRB 380 (1978). ( orpare Lai 14(655, ( 'licdi SXielworkers of .Ameria. .4 FL (10 (The 1)Do (htmlall (pltnl), 229 Nl.RB 302 (1977), in which the Board dis- missed the complaint onl? after concluding that the respondent union local had hbeen dissolved ('f. .rmligu. Sanild and (,ral. Inc1., 203 NLRB 162, 166 (1973), enfd. in part 495 F.2d 759 (6th (ir. 19741. in which the Board noted that public polic flabored the resolutioin f unfair labor practice disputes regardless of a respondent's ability to compl, with a remedial iorder. TRICO WORKERS UNION INDEPENDENT 811 Accordingly, under these circumstances, we find that the issues presented here are not moot and we shall order that this proceeding be remanded to the Administrative Law Judge for the consideration of the consolidated complaint on the merits. ORDER It is hereby ordered that this proceeding be. and it hereby is. remanded to Administrative Law Judge Walter H. Maloney, Jr.. for the purpose of consider- ing the allegations in the consolidated complaint on the merits. IT IS FLRTIlER ORI)EREI) that the Administrative Law Judge shall prepare and serve on the parties a supplemental decision containing credibility resolu- tions, findings of fact, conclusions of law, and rec- ommendations, and that, following service of the supplemental decision on the parties. the provisions of Section 102.46 of the National Labor Relations Board's Rules and Regulations. Series 8. as amended. shall be applicable. DECISION STATEMEN1 OF THE CASE FINDINGS OF FACT WALTER H MALONEY.JR. Administrative Law Judge. This case came for hearing before me at Buffalo, New York. upon a consolidated unfair labor practice complaint.' Re- gional Director for Region 3, which alleges that the Re- spondent, Trico Workers Union Independent. 2 violated Section 8(b)(1)(A) and 8(b)(5) of the Act. More particu- larly, the consolidated complaint alleges that the Respon- dent told various members of a bargaining unit for which it I The principal docket entries in this case are as follos Charge filed b Willie J eI ce and Gerda Krlstensen against the Re.poll- dent on October 25. 1977. in ('ase 3 ('B 30h9 I and 2: charge fIlled h International Ilnion, .niled Atomobile erospace .and Agricatiard I- plement Workers of America LtAW heremn called I AW'. agaIllnst Ihc Re- spondent on October 28. 1977. in ('ase 3 ('B 30731 first amiended charge filed in Case 3 ('B 3073 on Noember 2. 1977: scoind aniended chiare filed in ('Case 3 ('B 3073 on December . 1977. consolhdlated contlpl.lill issued against Respondent's ansser filed on Januiars i. 197.; hearrine hecld in Buffalo. New York. on March 14 and 1i. 178: briefs filed ith ime bx the General Counsel aind the Respondent oin N1is i 178 2 The Respondent admits. ind I find. hat I rico Prodicti ( Corpr.ation Is a New York corporation which malintains Its prlncip.ll place of busille iI Buffalo. New York. where it is engaged n the milnlfacluir. .ll. alid dtirlr- bution of ;*indshield w ipers .and other automobile ccessorics Durini the preceding years it shipped fronm its Buffalo, New ork. plants diretil\ io points and places outside the State if NeCs 'sYork esoods and mlterial.l s.iied in excess of $50.(XX} Accordingl?. Trico Proidult ( rporalion is .r1 c- ployer engaged in comnmerce within the nmeainie ,of Sec 2(2). (I. and (7t ,(f the Act. lhe Respondent as. anid the I AW 1is a lhbr orolii/.mitllon ilthrl the meaning of Sec 2(5) of the Act had been the exclusive representative that it would no lon- ger represent them in processing grievances because said employees had withdrawn their membership from the Re- spondent Union in order to support the UAW. The consol- idated complaint also alleges that the Respondent adopted a bylaws change imposing an excessive and discriminatory reinstatement fee of $75 on anyone who withdrew from the Union and thereafter sought to be reinstated. The Respon- dent denies the allegations generally. It also maintains that the increase in the reinstatement fee was prompted by its need for revenue and that the increase was not discrimina- tor. Upon these contentions the issues were joined. Since 1942, the Respondent has been the collective bar- gaining representative of the production and maintenance employees of Trico Products Corporation (Trico). Trico operates three production plants in the city of Buffalo and employs a total of about 2500 employees in the bargaining unit. The Respondent is an independent union which limits its activities to representing employees in the Trico unit. In fact, the Respondent's constitution and bylaws restrict membership in the Union to anv person of good moral character employed by Trico." with certain stated excep- tions. Respondent's most recent contract with rico ex- pired on June 26, 1977. For a number of years, the UAW has sought to displace the Respondent as the bargaining representative in the Tri- co unit. On May 19, 1977, the UAW defeated the Respon- dent in a representation election by a margin of 24 votes out of 2.287 which were cast. Objections to the election were filed by the Respondent and others, and the objec- tions went to hearing. The Hearing Officer issued his re- port on March 31. 1978, overruling all objections except one, sustaining one objection relating to procedural irregu- larities in the safeguarding of ballots and recommending that the election be set aside. On September 26. 1978. about 6 months after the hearing in this case. the Board overruled the Hearing Officer, dismissed the objections. and certified the UAW. rico Product.v (Cororaion, 238 NLRB 308 (1978). During the 16-month interim between the election and the certification of the UAW by the Board. various charges were filed against both Trico and the Respondent. One charge alleged that Trico unlawfully refused to honor checkoff withdrawals filed by UAW partisans. Another charge against the Respondent alleged that it unlawfully sought to invoke the provisions of a union security contract with Trico during the period between the election and cer- tification. In a decision dated September 29. 1978. the Board upheld the complaint directed to Trico but dis- missed the complaint as to the Respondent. In so doing. the Board held that Trico and the Respondent were enti- tled to maintain a collective-bargaining relationship during the period between the election and the certification of the UAW. despite the fact that the UAW had probaibl dis- placed the Respondent as the bargaining representative. The Board also held that provisions of the expired contract between Trico and the Respondent were automatically re- newed and were in existence during the interim period in question. Trico Producr' (orporation. 238 NLRB 1306 (19781. The events which are the subject of the consolidated 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint in this case took place in the late summer and early fall of 1977, during the period when the status of the Respondent as bargaining representative was in doubt. There is no question that, during this period, the Respon- dent professed to be the bargaining representative of Trico's employees and that Trico recognized it as such. The above-cited Board decision vindicates this position on the part of both parties. The 8(b)X)(A) ' allegations herein relate to remarks di- rected to, or supposedly directed to, various UAW adher- ents by the Respondent's officers and stewards to the effect that they would no longer process grievances filed by UAW supporters. There is no doubt that in October 1977 the membership of the Respondent voted, at a regularly called union meeting, to amend article IV, section l(b), of the Respondent's constitution and bylaws to increase from $5 to $75 the reinstatement fee of those members who lost their standing in the Union by virtue of failure to pay their dues. The $5 reinstatement fee was retained for members who ceased paying dues because they had left the employ of Trico or were on a leave of absence and later returned to work. While the Respondent was authorized to continue as a bargaining representative during the period when its status was in limbo, the certification of the UAW by the Board on September 26, 1978, leaves no doubt that the Respon- dent is no longer the bargaining representative of Trico employees. Since the Respondent is an independent union having no international or national affiliation and is limit- ed by its constitution and bylaws to representing only Tri- co employees, it does not and cannot represent employees in any other unit. It is clear that its existence as a union is at an end. Since it effectively lost its "only account," it is now "out of business." It cannot process grievances, exact dues, or perform any other functions. Accordingly, any prospective Board order directing the Respondent to do or not to do any given act can accomplish nothing which is meaningful. Since the Respondent no longer has standing to process grievances, it is pointless to tell it not to refuse to process grievances on behalf of UAW supporters. There is no allegation in the consolidated complaint and no evidence in the record that the Respondent in fact col- lected any reinstatement fees from the narrowly defined group of people who might have been subject to the fee increase which was approved in October 1977; therefore the Respondent could have no residual financial liability growing out of this action. Any order directed to expung- ing the language of the fee increase amendment from its bylaws would be equally pointless. In light of devel- opments in other related cases which have occurred since the hearing in this case, it is clear that the issues in this case are now moot, regardless of their merits at the time the case was litigated; it would not effectuate the purposes and policies of the Act to go further with a dispute which has been effectively resolved by the passage of time and the issuance of other Board decisions. Accordingly, I have de- termined to recommend to the Board a dismissal of the consolidated complaint in this case on the basis of moot- ness. Upon the foregoing findings of fact and upon the entire record herein considered as a whole, I make the following: CONCLUSIONS OF LAW 1. Trico Products Corporation is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The UAW is, and Respondent was, a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. Following the certification of the UAW by the Board's Order, dated September 26, 1978, the issues in this case have become moot. [Recommended Order for dismissal omitted from publi- cation.]