Citation Corporation

National Labor Relations Board - Administrative Judge Opinions

Sep 15, 2004

26-CB-004417 (N.L.R.B. Sep. 15, 2004)

JD(ATL)–48–04
Birmingham, AL

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UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

UNITED STEELWORKERS OF AMERICA,
AFL–CIO, CLC and UNITED STEELWORKERS
OF AMERICA, LOCAL UNION 224
(Citation Corporation)

and CASE 26–CB–4417

JOEL PRINCE, an Individual

Michael Jeannette, Esq.,
for the General Counsel.
Joel Prince,
for the Charging Party.
George Barrett, Esq.
(Barrett, Johnston & Parsley),
of Nashville, TN, for the Respondent.

BENCH DECISION AND CERTIFICATION

Statement of the Case

KELTNER W. LOCKE, Administrative Law Judge: I heard this case on July 12, 2004
and August 12, 2004 in Nashville, Tennessee. After the parties rested, I heard oral argument,
and on August 13, 2004, issued a bench decision pursuant to Section 102.35(a)(10) of the
Board’s Rules and Regulations, setting forth findings of fact and conclusions of law. In
accordance with Section 102.45 of the Rules and Regulations, I certify the accuracy of, and
attach hereto as “Appendix A,” the portion of the transcript containing this decision.1 Because of
the unusual facts, some further discussion may be warranted.

Further Discussion

The facts, set forth more fully in the attached bench decision, may be summarized as
follows. United Steelworkers of America and its Local 224 (the “Respondent” or the “Union”)

1 The bench decision appears in uncorrected form at pages 402 through 418 of the transcript. The final
version, after correction of oral and transcriptional errors, is attached as Appendix A to this Certification.
JD(ATL)–48–04

represented a unit of production and maintenance employees at a facility operated by Citation
Corporation (the “Employer”) in Camden, Tennessee. The Employer shut down this facility. To
dismantle and move out the equipment, it recalled some of its employees and also used an
outside contractor.
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The Union filed a grievance which went to arbitration. The arbitrator determined that the
Employer should have used 8 employees it had not recalled to help dismantle the equipment.
The arbitrator did not identify these employees by name, but only as “the 8 next senior
maintenance employees who also have experience in moving/loading large equipment.”

The Union undertook to select these 8 employees but did not follow the arbitrator’s
instructions to the letter. Instead of selecting 8 employees from the maintenance department, it
picked 7 maintenance employees and one laboratory employee. The Charging Party, believing
that he should have been recalled rather than the laboratory employee, filed the charge which
began this proceeding. The General Counsel alleges that the Union passed over the Charging
Party in favor of the laboratory employee because the Charging Party was not a Union member.

Certain facts raise suspicions that Respondent based its selection process partly on Union
membership. The laboratory employee chosen, Carey, was a Union member, but Charging Party
was not. Although Carey had many years experience in the maintenance department, he was not
a maintenance employee at the time the Union selected him to receive pay. If the arbitrator’s
instructions specified employees working in the maintenance department at the time the disputed
work was performed, rather than employees with maintenance department experience, Carey
would fall outside the list of eligibles.

To prove unlawful motivation, the General Counsel offered the testimony of a witness,
Smith, concerning his conversation with a Union official, Higdon. For reasons discussed in the
bench decision, I did not credit this testimony. Without this testimony, the government’s proof
was insufficient, I concluded, to establish that the Union acted with unlawful motivation.

The Union’s Duty

Clearly, when a union undertakes to distribute money arising out of an arbitral award, it
owes a legal duty to the employees in the bargaining unit it represents. However, the exact
nature of this duty may depend on specific circumstances. 35
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In one possible situation, an employer pays the award money directly to the union, which
then distributes it. The money arising from an arbitral award clearly is intended to make certain
employees whole for a breach of the collective–bargaining agreement. Obviously, it would be
improper, and unlawful, for a union simply to pocket this money for the union’s own use.
United Mine Workers of America, District 5, and its Local 1378, AFL–CIO (Pennsylvania
Mines Corporation), 317 NLRB 663 (1995).

However, I need not discuss the extent to which a union that actually receives the award
payment is a fiduciary or trustee because in this case, the Union did not receive the money.
Here, Union officials simply gave the Employer a list of names of employees to receive the
payments and the Employer sent checks to these individuals. There is no obvious difference
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between this action, sending a letter to the Employer, and the Union’s other communications
with the Employer on behalf of bargaining unit employees. Therefore, I conclude that the
Union’s duty in this instance is the same one it generally must fulfill in representing the
bargaining unit.
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In performing its representation function, a union has a duty not to engage in conduct
which is arbitrary, discriminatory or in bad faith. A breach of this duty violates Section
8(b)(1)(A) of the Act. Unlicensed Division, District 1 (Mormac Marine Transport) 312 NLRB
944 (1993). However, negligent actions or inactions by a union do not alone constitute a breach
of the union’s duty of fair representation. Graphic Communications Local 4 (San Francisco
Newspaper Printing Co.), 249 NLRB 88 (1980).

A union also may not cause an employer to discriminate against an employee in violation
of Section 8(a)(3) of the Act. Causing such discrimination violates Section 8(b)(2). Thus, when
a union steward caused an employer not to assign overtime to an individual because that person
was not a union member, the union violated Section 8(b)(2) and, derivatively, Section
8(b)(1)(A). Branch 3126, National Association of Letter Carriers, AFL–CIO (United States
Postal Service), 330 NLRB 587 (2000).

The Union’s Conduct20
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A representative of the International Union, together with the Local’s president and vice
president, decided which 8 employees should receive payments pursuant to the arbitrator’s award
and then the international representative sent these names to the Employer. The General Counsel
argues that this selection process was subjective rather than objective, and to support this
argument cites the testimony of Union Vice President Steven Dowdy.

Dowdy testified that the three Union officials “picked who we felt was the most eight
senior experienced people” and put those names on the list sent to the Employer. The General
Counsel contends that this testimony shows that the selection process was subjective.

The General Counsel’s argument rests on the assumption that if the process had been
totally objective, Dowdy would have used a word such as “determined” rather than “felt.”
However, I do not ascribe such significance to the word “felt.”

Certainly, a lawyer might have employed a more objective–sounding synonym – a word
such as “decided,” “ascertained,” or “identified” or perhaps (being the choice of a lawyer) all
three – but Dowdy was not an attorney. He was a lay witness testifying without benefit of
thesaurus. At times his grammar was casual, and so was his choice of words.

Although I reject the General Counsel’s argument that Dowdy’s testimony establishes
subjectivity, some other circumstances do concern me. The arbitrator’s instructions are so clear
that, on first impression, they appear to allow only one logical interpretation, yet the Union read
them quite differently. Moreover, the Union’s interpretation appears to be at odds with the relief
the Union had sought in the grievance itself.

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According to the arbitral award, the Union had asked “for the 10 most senior qualified
maintenance people to be paid for the time contractors were working. . .” (Italics added.) Thus,
it would appear that when the Union pressed the grievance to arbitration, it wanted the Employer
to make payments to maintenance department employees.
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The arbitrator agreed with the Union in principle, but ordered backpay for 8 maintenance
employees rather than 10. Specifically, the arbitral award concluded that “the 8 next senior
maintenance employees who also have experience in moving/loading large equipment. . .should
have been offered this work opportunity and are entitled to relief.”

On its face, this language plainly indicates that the employees selected should be
maintenance employees, as the Union apparently had advocated before the arbitrator. Yet the
Union officials picked Carey to be one of the 8 recipients, and Carey had not worked in the
maintenance department for more than 5 years.

In this context, the Union’s selection of Carey raises serious questions. If other credited
evidence pointed to an unlawful motive, I would not hesitate to find that a preponderance of the
evidence supported the General Counsel’s theory. Absent such evidence, the record leaves me
with only a suspicion, and a suspicion, however strong, is not a preponderance.

Moreover, the Union offered a somewhat plausible explanation for its decision to put
Carey on the list rather than the Charging Party. The arbitrator held that the Employer should
pay “the 8 next senior maintenance employees who also have experience moving/loading large
equipment.” The Union interpreted the term “maintenance employee” to include employees like
Carey with previous experience working in the maintenance department. Such an interpretation
was consistent with the past practice of using plant wide seniority to determine the order of
layoffs and recalls.

I examine the Union’s reasoning for very limited purposes: To determine whether the
stated reasons are pretextual (which would suggest an unlawful motivation), to decide whether
there has been negligence, and if so, whether that negligence rises to the level of a breach of the
duty of fair representation. Thus, I do not judge whether the Union’s reasoning was “correct”
according to some outside standard.

The Union’s reasons are not pretextual on their face, and the record does not otherwise
reveal them to be pretextual. I conclude that they are not. Accordingly, and for the reasons
stated in the bench decision, I further conclude that Respondent has not violated Section 8(b)(2)
of the Act.

The Union’s interpretation of “maintenance employee” to mean “an employee with
experience in the maintenance department” is not so far–fetched as to be negligent. In other
words, reasonable people, accustomed to resolving issues on the basis of plant wide seniority,
might reach such a conclusion.

As discussed above, ordinary negligence alone does not breach the duty of fair
representation. In this case, the record does not support a finding of any negligence, even the
ordinary kind. Therefore, it follows that there was no out–of–the–ordinary negligence which
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would breach the Union’s duty of fair representation. For this reason, and for the reasons
discussed in the bench decision, I conclude that the Union did not violate Section 8(b)(1)(A) of
the Act.

CONCLUSIONS OF LAW 5
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1. The Employer, Citation Corporation, is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.

2. United Steelworkers of America, AFL–CIO and its Local 224 (collectively called
Respondent) are labor organizations within the meaning of Section 2(5) of the Act.

3. The Respondent did not violate the Act in any manner alleged in the Complaint.

On the findings of fact and conclusions of law herein, and on the entire record in this
case, I issue the following recommended2

ORDER

The Complaint is dismissed.

Dated Washington, D.C.

___________________________________
Keltner W. Locke
Administrative Law Judge

2 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, these
findings, conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be
adopted by the Board, and all objections to them shall be deemed waived for all purposes.
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APPENDIX A

This decision is issued pursuant to Section 102.35(a)(10) and Section 102.45 of the
Board’s Rules and Regulations. The Complaint alleges that Respondent violated Section
8(b)(1)(A) and Section 8(b)(2) of the Act. Finding insufficient evidence of motivation, I
recommend that the Board dismiss the Complaint entirely.
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Procedural History
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This case began on February 23, 2004, when the Charging Party filed his initial charge in
this proceeding. He amended it on April 28, 2004. On April 30, 2004, after investigation of the
charge, the Regional Director for Region 26 of the National Labor Relations Board issued a
Complaint and Notice of Hearing, which I will call the “Complaint.” In issuing this complaint,
the Regional Director acted on behalf of the General Counsel of the Board, whom I will refer to
as the “General Counsel” or as the “government.”

On July 12, 2004, hearing opened before me in Nashville, Tennessee. On July 13, 2004,
because one of the attorneys was ill, I adjourned the hearing until August 12, 2004. On that date,
the parties completed the presentation of evidence and counsel then presented oral argument.

Today, August 13, 2004, I am issuing this bench decision.

Overview
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In very general terms, the facts may be summarized as follows. The Charging Party, Joel
Prince, worked in the maintenance department of the Employer’s facility in Camden, Tennessee.
He was a member of the production and maintenance unit represented by United Steelworkers of
America and its Local 224 but was not a union member.

Under state law, made enforceable by Section 14(b) of the Act, no collective–bargaining
agreement could require employees in this unit to become union members, or pay dues, as a
condition of employment. Even though Prince had been president of Local 224 some years ago,
he had dropped his union membership and was not paying dues at any time material to the
Complaint.

On December 9, 2002, the Employer’s general manager sent International Representative
Tommy Powell a letter announcing that it would be closing the Camden, Tennessee facility. The
letter continued, “We expect to have completed all manufacturing by December 20, 2002.”

After the plant closure, an employee discovered that the Employer had retained an
outside contractor to dismantle the machinery to be removed from the plant. Under the
collective–bargaining agreement, the Employer should have used bargaining unit employees to
perform this work.
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APPENDIX A

A grievance resulted which reached arbitration in late May 2003. The arbitrator issued
an award about 3 months later, finding a breach of the collective–bargaining agreement. To
remedy this breach, the arbitrator stated, in the Analysis Section of his decision, that “the 8 next
senior maintenance employees who also have experience in moving/loading large equipment”
receive a payment from the Employer.
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The arbitrator’s award did not name the 8 workers to be paid, but instead directed that the
“harmed employees are to be identified and compensated as set out in the Analysis within 30
days of receipt of this Decision and Award.”

After receiving this decision, International Representative Powell contacted the president
and vice president of Local 224 and scheduled a meeting. At this meeting, the three officials
decided which 8 of the bargaining unit members should receive pay.

International Representative Powell then sent a letter to the Employer, stating “here are
the eight employees that are entitled to the pay.” The letter listed 8 names, but the Charging
Party’s name was not one of them. The Employer paid the employees on the list, but not the
Charging Party.

The parties agree that seven of the eight listed employees should have received the pay.
They disagree about the person listed first: Ed Carey. Although Carey was in the bargaining
unit when the plant closed, he worked in the lab section rather than in the maintenance
department. Additionally, in August 2003, a Social Security judge found that Carey had become
disabled, and therefore unable to work, as of December 6, 2002.

The government contends that Carey did not meet the criteria specified by the arbitrator
and therefore should not have been selected. Instead, the General Counsel argues, the Union
officials should have put the Charging Party’s name on the list.

The Complaint alleges that the Union officials did not choose the Charging Party to
receive the pay because he was no longer a Union member and did not pay dues. According to
the General Counsel, the action of the Union officials breached the Union’s duty to represent all
members of the bargaining unit fairly and therefore violated Section 8(b)(1)(A) of the Act.
Additionally, the government contends that by keeping the Charging Party’s name off the list
which Powell sent to the Company, the Union caused the Employer to discriminate. In this
manner, the Complaint alleges, the Union also violated Section 8(b)(2) of the Act.

Before addressing these allegations, I will turn first to some preliminary matters.

Identity of Respondent

The Complaint identified as the Respondent “United Steelworkers of America, AFL–
CIO, CLC and its Local 224.” By using the singular terms “Respondent” and “Union,” rather
than “Respondents” and “Unions,” the Complaint suggests that the International Union and
Local 224 together form a single entity. Thus, Complaint paragraph 5 alleges that at “all
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APPENDIX A

material times, the Union has been a labor organization within the meaning of Section 2(5) of the
Act.”
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The International Union and Local 224 filed a single “Consolidated Answer” which
distinguishes between the International and the Local. This “Answer” gives the following
response to Complaint paragraph 5:

In answering paragraph 5 of the Complaint, Respondents state that the term
“Union” is defined nowhere on the face of the Complaint and deny that they are a single
labor organization. Further answering paragraph 5 of the Complaint, Respondents admit
that both the International Union and the Local Union are labor organizations within the
meaning of Section 2(5) of the Act.

The International and Local also contend that the Complaint should be dismissed to the
extent that it alleges a violation by the International Union. Therefore, it is important to
determine the relationship of the International and the Local.

Counsel entered into a written stipulation, introduced as Joint Exhibit 8, which states in
part as follows:

The United Steel Workers of America (AFL–CIO), CLC and its Local 224 (“Union”) had
a collective bargaining agreement with the Employer effective March 26, 1999, and
terminated February 28, 2003 (Exhibit J.T. 1).

The first paragraph of this collective bargaining agreement identifies itself as an
“agreement between Citation Corporation’s Division: Camden Casting Center (the “Employer”)
and “the United Steel Workers of America, AFL–CIO, CLC, on behalf of Local Union No. 224,
hereinafter call[ed] the ‘Union.’“ (Joint Exhibit 1; italics added.)

This language, that the International Union acted “on behalf of” the Local when it entered
into the collective bargaining agreement, suggests that the International Union acted as the agent
of the Local Union. However, I do not conclude that the Local Union was the principal and that
the International was its agent in a common law agency relationship.

Not infrequently in labor relations, when both an international union and one of its locals
deal with an employer about a particular bargaining unit, the local union is serving as the agent
of the international, rather than vice versa. Moreover, the Consolidated Answer admits that the
international union is the exclusive representative of the bargaining unit described in Complaint
paragraph 7, but denies that the local union is the exclusive representative.

Additionally, in response to Complaint paragraph 8, the Consolidated Answer admits
“that the International Union and Citation Corporation have maintained and enforced a
collective–bargaining agreement covering the conditions of employment of the Union and
containing, among other provisions, a grievance and arbitration provision.” Thus, the
Consolidated Answer clearly indicates that the international union, not Local 224, serves as the
exclusive bargaining representative.
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APPENDIX A

Therefore, I do not conclude that the “on behalf of Local 224” language in the collective–
bargaining agreement signifies that the international is the agent of the local union. To the
contrary, and consistent with the Consolidated Answer’s denial that Local 224 is the exclusive
representative, I find that the International Union is the exclusive bargaining representative of the
bargaining unit described in Complaint paragraph 7. Moreover, I conclude that Local Union 224
has served as the international union’s agent in administering the collective–bargaining
agreement.
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In this decision, I will use the term “International Union” to refer to United Steel Workers
of America, AFL–CIO, CLC and the term “Local Union” to refer to its Local 224. When the
word “Union” appears without a modifier, it will refer to both the International Union and Local
Union, as will the word “Respondent.”

Motion to Dismiss

Respondent raised four affirmative defenses in the Consolidated Answer, and later
amended this Answer to raise four more. One of these affirmative defenses states as follows:
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The International should be dismissed as a party on the basis that there are no allegations
of any matter of conduct by the International in the Complaint, which would violate the
Complainant’s rights under the National Labor Relations Act. Therefore, the
International Union should be dismissed as a party.

Additionally, at hearing, Respondent moved to dismiss the International Union.
Respondent’s counsel argued, in part that the International “should be dismissed on the basis that
this, number one, no allegations that they engaged in any conduct.”

Although the Complaint does not specifically plead that the International and the Local
are a single entity, it does name both in the caption and uses the term “Respondent” to refer to
the International and Local together. Therefore, Respondent’s counsel errs in arguing that there
are “no allegations that [the International] engaged in any [unlawful] conduct.”

Respondent’s counsel further argues that “to hold the international responsible for a”
breach of the duty of fair representation, “you’ve got to show some nexus, not merely the action
of the international representative who acts in a dual capacity as an advisor and a representative
of the local in relation to the employer.”

Notwithstanding this argument, Respondent’s Consolidated Answer denied that the Local
Union was the exclusive representative of the bargaining unit and instead asserted that the
International Union was the representative. This admission that the International is the exclusive
bargaining representative demonstrates a significant nexus between the International and the
alleged breach of the duty of fair representation.

Indeed, before there can be any breach of the duty of fair representation, that duty must
exist in the first place. Only the exclusive representative owes a duty to the employees in the
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APPENDIX A

bargaining unit represented. A union cannot admit that it is the exclusive bargaining
representative without also admitting, by implication, that it owes a duty to the employees in the
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The Union’s International Representative, Tommy Powell, appeared before the arbitrator
as the Union’s representative. After the arbitrator issued the award, Powell contacted Local
224’s president and vice president and set up a meeting to discuss implementing the arbitrator’s
award. The international representative then met with the two Local Union officials and decided
which employees would get the benefits of the arbitrator’s award.

Clearly, the International Union took the leading role in the actions which are at issue
here. Therefore, I deny the motion to dismiss the International Union from this proceeding.

Undisputed Allegations

In its Consolidated Answer, Respondent has admitted all of the allegations raised in
Complaint paragraphs 1(a), 1(b), 2, 3(a), 3(b), 4, and 9(b) and some of the allegations raised in
Complaint paragraphs 4, 7, 8, 9(a), 9(b), 9(c), 9(d) and 9(e). Respondent also has stipulated
certain facts. Based upon these admissions and stipulations, I make the following findings.
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The Charging Party filed and served the initial charge in this proceeding on February 23,
2004, and filed the amended charge on April 28, 2004. The amended charge was served on
Respondent by certified mail concurrently with the Complaint and Notice of Hearing.

Citation Corporation, which I will refer to as the “Employer” or the “Company,” is a
corporation with headquarters in Birmingham, Alabama and manufacturing facilities throughout
Alabama, herein called the Company facilities, as well as other states, and it is engaged in
casting and forging metal components. Until about January 2003, the Company operated a
manufacturing facility in Camden, Tennessee.

The Employer meets the Board’s standards for assertion of jurisdiction, and at all
material times has been an employer engaged in commerce within the meaning of Sections 2(2),
(6) and (7) of the Act.

Both the International Union and the Local Union are labor organizations within the
meaning of Section 2(5) of the Act.

At all material times, Tommy Powell, an international representative, has been an agent
of the International Union within the meaning of Section 2(13) of the Act.

At all material times, Local Union President Larry Kirk, Local Union Vice President
Steve Dowdy and Local Union Financial Secretary Chris Higdon have been agents of the Local
Union within the meaning of Section 2(13) of the Act.

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APPENDIX A

In view of my finding that Local 224 served as the International Union’s agent in
administering the collective–bargaining agreement, I must also conclude that Larry Kirk, Steve
Dowdy and Chris Higdon are agents of the International Union, at least when representing the
employees in the bargaining unit described in Complaint paragraph 7. As agents of an agent of
the International Union, they exercised authority on behalf of the International in their dealings
with the Employer concerning bargaining unit employees.
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The parties stipulated that about December 9, 2002, the Employer issued a notice that it
would be closing the Camden facility on December 20, 2002. This plant closing would result in
the termination of employment of all members of the bargaining unit.

On January 30, 2003, the Local Union filed a grievance alleging that the Company had
employed outside contractors to perform work that laid–off Unit employees could have
performed. An arbitrator heard this grievance on May 30, 2003, and issued a decision dated
August 28, 2003.

The “Overview” above slightly oversimplified the details of this arbitral award. To
understand the arbitrator’s decision more fully will require somewhat more detail.

In addition to hiring outside contractors to dismantle its machinery, the Employer also
called in 8 senior maintenance employees, who worked during the shutdown period. However, it
appears that these were not the employees who should have been called in to work under the
collective–bargaining agreement.

The Union filed a grievance on behalf of the employees who should have been called in
to work. The Employer settled the grievance and paid those employees for the time they should
have (but did not) work.

However, this grievance did not tie up all the loose ends. The arbitrator decided that 8
more people should receive pay because the Employer did not afford them an opportunity to
work. In the Analysis section of his award, the arbitrator wrote, in part, as follows:

The Union is asking for the 10 most senior qualified maintenance people to be paid for
the time contractors were working for the Company. . .The weight of evidence indicates
that by the labor agreement and past practice of its implementation, 8 Union workers
should have been given the opportunity to perform work that was contracted.

The arbitrator concluded that there was no evidence to establish that the Employer would
have offered this work to the 8 employees who received pay under the grievance settlement.
Therefore, he decided that another 8 employees should receive the pay. He wrote:

Therefore, the 8 next senior maintenance employees who also have experience in
moving/loading large equipment as testified to by the Union witnesses here should have
been offered this work opportunity and are entitled to relief.
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APPENDIX A

The arbitrator then directed that the “harmed employees are to be identified and
compensated. . .”
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Complaint paragraph 9(d) alleges that “on September 5, 2003, the Respondent provided
the Company with a list of eight employees and requested that the Company pay those
employees pursuant to the arbitrator’s award.” The Union does not admit all of this allegation,
but instead stated in the Consolidated Answer, “Respondents admit that the Local Union
furnished the Company with a listing of eight employees to be paid pursuant to Arbitrator
Furman’s Decision and Award. Respondents deny any and all other allegations set forth at
paragraph 9(d).”

Actually, Respondent’s Answer appears to be in error on this point. The parties have
introduced by stipulation, as Joint Exhibit 6, a September 5, 2003 letter from Tommy Powell,
who is an International representative, not a Local Union official. This letter listed the following
individuals as “entitled to the pay”:

1. Ed Carey 5. Tom Ridley
2. Howard Melton 6. Vernon Higdon
3. Carl Smith 7. Gary Patterson
4. David Love 8. Lowell Wheatly

The General Counsel does not dispute that names 2 through 8 are correctly listed.
However, the General Counsel asserts that the first individual, Ed Carey, should not have been
listed, and that instead the Charging Party’s name should have appeared.

Disputed Allegations
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The Complaint alleges two different kinds of unfair labor practices. The first is a breach
of the duty of fair representation in violation of Section 8(b)(1)(A). To establish such a
violation, the government must prove either that the Union acted with an improper motive or that
it acted with more than “mere negligence” when it failed to put the Charging Party’s name on the
list.

In the present case, the General Counsel does not contend that Respondent was negligent
but instead asserts that Respondent took action against the Charging Party because he neither
belonged to the Union nor paid dues. Therefore, I will not analyze the facts under a “more than
mere negligence” theory.

The Complaint also alleges that by failing to put the Charging Party’s name on the list
sent to the Employer, the Union caused the Employer to discriminate against the Charging Party
in violation of Section 8(a)(3) of the Act, which prohibits discrimination by employers to
discourage or encourage union membership. When a union causes such discrimination, it
violates Section 8(b)(2).

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APPENDIX A

The government relies upon the testimony of Carl Smith, one of the 8 employees
appearing on the Union’s September 5, 2003 list. Smith testified that in December 2003, he ran
into Local 224’s financial secretary, Chris Higdon, at a Wal–Mart. 5
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According to Smith, Higdon told him that certain employees had received the money
from the grievance “and one certain person didn’t receive it.” Smith said that Higdon did not
identify this person. Smith also gave the following testimony:

Q. What if anything was said during this conversation about anyone not
being in the union?
* * *
A. No. Sir. There was nothing said of that.

Later, the General Counsel refreshed Smith’s recollection with his affidavit and then elicited this
testimony:

Q. Now, during your conversation with Mr. Chris Higdon, what if anything
was said about anyone not being in the union?

A. Yes. He said one certain person was not in the union.

I do not credit this testimony, in part because it conflicts directly with Smith’s earlier
testimony. Additionally, it is rather vague and makes sense only in the context of Smith’s earlier
testimony, which it contradicts.

The government tried to bolster Smith’s credibility by recalling Charging Party Prince
and eliciting testimony about a later conversation that Smith had with Prince. The General
Counsel’s argument appears to be that if Smith said essentially the same thing to Prince as he
stated in his testimony (after his memory was refreshed), then that version is more likely to be
correct.

Respondent objected to Prince’s testimony, arguing that whatever Smith told Prince
should be excluded as hearsay. The General Counsel replied that in Board proceedings, hearsay
could be admitted if it corroborated earlier testimony. I allowed the testimony subject to motion
to strike.

Although I deny the Respondent’s motion to strike Prince’s testimony, I accord this
testimony very little weight because I do not trust its reliability. While testifying, Smith
appeared to have a rather taciturn personality, in contrast to Prince’s more loquacious nature.
However, the Carl Smith described in Prince’s testimony sounded about as talkative as Prince
himself.

13
JD(ATL)–48–04

APPENDIX A

Prince attributed to Smith words and ideas which seemed to go well beyond Smith’s own
testimony. I could not tell how many of these words were Smith’s, and how many were Prince’s
interpolations. Even assuming that Prince’s testimony properly could be called “corroboration,”
it was unconvincing.
5
10
15
20
25
30
35

On the witness stand, Higdon did not deny telling Smith that “one certain person was not
in the union.” However, Higdon testified before Smith and no one specifically asked him about
this matter. Therefore, I do not conclude that Higdon’s silence signified agreement.
Additionally, Higdon’s pretrial affidavit, which is in evidence, does deny that he made such a
statement.

Further, Higdon was not one of the Union officials who decided who should be on the
list. He did not attend that meeting. Therefore, it seems rather improbable that he should make
the comment attributed to him. I find that he did not make this comment.

Apart from this comment which Smith attributed to Higdon, there is no evidence of
improper motive. The General Counsel’s argument about the Union’s motivation seemed fully
plausible and, I suspect, it may be correct. However, I cannot rely upon a plausible argument as
a substitute for evidence.

In the absence of evidence establishing an unlawful motivation, I do not find that
Respondent violated either Section 8(b)(1)(A) or 8(b)(2). Therefore, I recommend that the
Board dismiss the Complaint in its entirety.

When the transcript of this proceeding has been prepared, I will issue a Certification
which attaches as an appendix the portion of the transcript reporting this bench decision. This
Certification also will include provisions relating to the Findings of Fact, Conclusions of Law,
and Order. When that Certification is served upon the parties, the time period for filing an
appeal will begin to run.

Throughout the hearing, counsel impressed me with their civility and professionalism,
which I appreciate. The hearing is closed.

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