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National Labor Relations Board v. American Bakery and Confectionery Workers' Local Union 300

June 25, 1969


Castle, Chief Judge, Major, Senior Circuit Judge, and Kerner, Circuit Judge.

Author: Major

MAJOR, Senior C. J.:

This case is here on petition of the National Labor Relations Board for enforcement of its order of September 26, 1967, against The American Bakery and Confectionery Workers' Local Union 300, AFL-CIO (herein called the Union). The case was heard by a Trial Examiner whose findings, conclusions and recommendations were approved by the Board in its decision reported at 167 NLRB No. 76. No jurisdictional question is involved. The parties here by stipulation waived oral argument and the case was submitted on briefs.

An unfair labor practice charge of restraint and coercion under Sec. 8(b)(1)(A) and (2) of the Act was filed with the Board on September 29, 1966, by Frank Pulizzi on behalf of himself and five other members expelled from the Union, alleging that the Union attempted to cause the company to discriminate against them. The Board's complaint issued thereon.

An abbreviated statement of the facts as found by the Trial Examiner will suffice. Prior to July 18, 1966, the Union was engaged in a strike, during which some of its members crossed the picket line and reported for work. Among those were the charging parties. At a meeting of the Union's executive board on July 22, 1966, the subject of the strikebreakers was discussed, but the minutes of that meeting are confusing as to what recommendation was made. Two days later, at the Union's general membership meeting President Callahan stated that "under [the Union's] Constitution and By-Laws, they would be expelled and possibly fined."

On July 26, 1966, an official notification signed by officials of the Union was sent to the six members who crossed the picket line, advising them of the charges and notifying them of a trial to be held on August 20, 1966, before the Union's executive board. The accused members refused to attend. The report of the trial hearing prepared by Prieto, the Union secretary, contains no mention of a fine, but states, "In view of the seriousness of the charges, the Executive Board of Local 300 expelled the charged parties from membership in the A.B.C." On August 22, 1966, identical letters over Prieto's signature were sent to the six members, informing them that "it is the judgment of the Executive Board that you be, and hereby are, expelled effective as of receipt of this communication." At the same time, a letter was sent to the company, requesting that dues check-off authorizations of the six expelled members no longer be honored. Also, notices were posted by Union President Callahan in prominent places at the company plant where members of the Union's executive board were employed, advising Union members of the trial and stating that the executive board's decision "was expulsion from the Union."

On October 18, 1966, subsequent to the filing of the charge in the instant matter, the Union, by its secretary, Prieto, advised the expelled members by letter that the August 22 letter "was not complete" and that the penalty should also have included a $1,000 fine. Prieto testified at the hearing in the instant matter that he sent this letter after coming upon some notes of the August 20 trial, which stated that the motion passed by the Union's executive board called for the imposition of a $1,000 fine on each of the accused members, as well as for their expulsion. Thereupon, Prieto prepared a second report of the trial, designed to correct the alleged error in the original report. He admitted that the notes from which this second report was prepared were destroyed by him.

The factual issues are reduced to the single issue as to whether the fine was imposed by the Union before or after September 29, 1966, the date on which the charges were filed with the Board. No issue is involved as to whether a union may impose reasonable fines on its members for strikebreaking. See National Labor Relations Board v. Allis-Chalmers Mfg. Co. et al., 388 U.S. 175, 191-193, 18 L. Ed. 2d 1123, 87 S. Ct. 2001.

The Union argues that there is no substantial evidence that fines were imposed because the six employees had filed a charge, but "The uncontradicted and undenied testimony of Callahan and Prieto, the only witnesses in the case, was that the Union imposed the fines along with expulsion, at the conclusion of the trial of the six members on August 20, 1966, because these members were found guilty of crossing the picket line."

We think the Board's response to this contention is logical. It reasons: "It was not until the unfair labor practice charge was filed that the Union officers discovered an 'embarrassing oversight' -- the alleged failure to refer to the fine in the expulsion letters and the notices posted at the plant. As the Trial Examiner pointed out, that this alleged oversight continued for nearly two months is odd indeed, particularly considering that this was the first time President Callahan could remember the imposition of a fine, that this was one of only two trials held during the year, and that Callahan signed the posted notices which contained no mention of the fines. Moreover, with respect to the notices, it is also odd, as pointed out above, that none of the members of the Union's executive board, who were employed in the plant where the notices were posted in conspicuous places made any comment about the alleged oversight. * * * In addition, it is noteworthy that Prieto waited at least 13 days after the alleged discovery of the 'lost' notes to send the second letter * * *. His delay suggests that there was some need for consultation with others before attending to this 'clerical' matter. The second report of the trial was prepared, according to the Union, two months after the event 'from notes that had first been misplaced, then recently found, and finally destroyed'. Not only does it lack the detail of the first report, but, as the Trial Examiner concluded, its 'only purpose could be the self-serving one of proving the imposition of the fines at an earlier, not a later date.'"

It does not follow from the fact that there was no direct evidence contradicting the testimony of the two Union officials that the trier of the facts must accept such testimony as a verity. By reason of the circumstances shown, we cannot say that the Examiner was not justified in rejecting it. National Labor Relations Board v. Dinion Coil Co., 201 F.2d 484, 487 (2d Cir. 1952); National Labor Relations Board v. Radcliffe et al., 211 F.2d 309, 315, and Bon Hennings Logging Co. v. National Labor Relations Board, 308 F.2d 548, 554 (9th Cir. 1962). In the last case the court stated:

"Much so-called 'uncontradicted' evidence is subject to conflicting inferences which may result from the evidence itself or the attendant circumstances. The duty to choose between such inferences and to assess weight and credibility is vested in the trial examiner, not the reviewing court."

We hold that the evidence supports the Board's finding that the fine was imposed after the charge was filed, and we agree with the conclusion that the motivating factor in so doing was the filing of the charge.

The Union's contention that the charge filed with the Board was not sufficient to support its complaint is rejected. The contention is based on the premise that the charge alleged that the Union attempted to cause the company to discriminate against the six expelled members ...

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