OFFICE OF THE INDEPENDENT HEARING OFFICER
IN THE MATTER OF |
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DOCKET NO. |
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CHAPMAN
v. EXECUTIVE BOARD OF LOCAL UNION 42 |
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98-58TB |
ORDER AND
MEMORANDUM
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PROCEDURAL HISTORY
This Order and Memorandum addresses Trial Board charges brought against the Executive Board (“Board”) of Laborers International Union of North America (“LIUNA”) Local Union 42 (“Local 42”) by Gary Chapman (“Chapman”), a member in good standing of Local 42.
On September 24, 1998, this matter was referred to the Independent Hearing Officer (“IHO”) for a hearing by General President Arthur A. Coia pursuant to Article XII, Section 3 of the LIUNA Uniform Local Union Constitution. See Letter to IHO from General President Coia, September 24, 1998. The IHO appointed William Heiman, Esquire, a member of the law firm of Vaira & Riley and a member of the Pennsylvania Bar, as a Special Hearing Master to conduct a hearing in this matter. On February 6, 1999, the hearing was held at the offices of the Eastern Missouri Laborers’ District Council (“District Council”) in Bridgeton, Missouri.
Chapman filed the following three charges against members of the Executive Board:
Business Manager Larry Flinn (“Flinn”) uttered an obscenity directed at Chapman at the monthly meeting of Local 42 on June 24, 1998;
Members of the Executive Board failed in their duty of fair representation towards the members of Local 42 by failing to have a job steward in place at the Baptist Hospital job site during the summer of 1998; and
Members of the Executive Board failed in their duty to fairly represent the members of Local 42 in a jurisdictional work dispute at the Baptist Hospital job site in July of 1998.
FINDINGS OF FACT
Inappropriate Remark at Membership Meeting
1. The monthly meeting of Local 42 was held on June 24, 1998. During the meeting, Business Manager Flinn made a report to the general membership. From the floor, Chapman addressed Flinn and inquired about the operation of the vacation stamp program. Chapman suggested that to help explain the administration of the stamp program Flinn should extend an invitation to Fred Wolf, the Business Manager of LIUNA Local 110, to speak to the members of Local 42 at one of its monthly meetings. Flinn responded to Chapman with a gross, obscene remark.
2. At the hearing, Chapman testified that Flinn’s conduct embarrassed and humiliated him and had a negative effect on the tenor of the duration of the meeting. He stated that this type of insulting remark is a common occurrence at the Local 42 monthly meetings and he knows members who no longer attend the monthly meetings because they are disgusted by the lack of civility and the cavalier manner in which the meetings are run.
3. To support his position, Chapman called Ken Struckhoff (“Struckhoff”) and Randy Wiesmeyer, members of Local 42 in good standing, as witnesses. Both men testified that they were present at the June 24 membership meeting and heard the obscene remark that Flinn directed at Chapman. Both were disgusted by the remark and felt it was inappropriate. Struckhoff testified that he and other members no longer attend the Local 42 monthly meetings on a regular basis because of the inappropriate atmosphere created on the floor when off-color remarks are made by members of the Executive Board.
4. Flinn admitted that he uttered the remark in question. He stated that he said it in the “heat of the moment,” agreed that it was an inappropriate remark, and apologized to Chapman on the record. Flinn added, however, that he had the right to utter any such obscene remark at the meetings, citing the LIUNA Constitution and his general right to freedom of speech.
Duty of Fair Representation
5. Chapman testified that during the summer of 1998 he was working at the Baptist Hospital construction site. He said that Local 42 did not have a job steward at the job site when he arrived to work there in May of 1998.
6. Chapman said he called Jeffrey O’Connell (“O’Connell”), a Business Agent at Local 42, and asked him to appoint a job steward at the Baptist Hospital job site.
7. O’Connell said that he asked Local 110 member Darrin DeClue to serve as the steward at the Baptist Hospital job site, but DeClue declined to take the position.
8. Otto Lindsey (“Lindsey”), a Business Agent for Local 42, testified that on July 13, 1998, he offered the steward position to Local 42 member Rich Roach (“Roach”). Roach declined the offer.
9. O’Connell testified he visited the Baptist Hospital job site on July 16, 1998. He spoke with Roach and his supervisor about Roach becoming the job steward at the site. Again, Roach declined the offer.
10. O’Connell testified that on July 20, 1998 both he and Lindsey returned to the Baptist Hospital job site. They offered the steward position to a Local 42 member who shall be referred to as John Doe (“Doe”). Doe accepted the position, but could not start work immediately due to a broken wrist. When Doe returned to work, he was laid off by the company because he failed a drug test. O’Connell and Lindsey learned that Doe failed the drug test on August 12, 1998.
11. O’Connell testified that both he and Lindsey visited the Baptist Hospital job site on August 20, 1998. Again, they offered the steward position to Roach who accepted. O’Connell said it took eight days (from August 12 to August 20) to appoint another steward because he was still dealing with a jurisdictional dispute with the Carpenter’s Union and he did not want to place a steward on the site until that dispute was settled.
12. Chapman testified that at the Baptist Hospital job site, one of the projects to be completed by the contractor was to pound iron “H” beams into the ground and lay wooden planks horizontally across the earth between the “H” beams to keep the earth shored up. As part of this project, during the latter part of July of 1998, it was necessary to use a torch and shear off the portion of the “H” beams that were extending above ground level. It was also necessary to remove the horizontal planks (the “lagging”) and dispose of this material. Chapman said that on July 27, 1998 he telephoned O’Connell at the Local and said that he thought that members of the Carpenters Union were going to be awarded that work by Alberici, the contractor.
13. O’Connell testified that after Chapman called him, O’Connell telephoned Wes Alexander (“Alexander”), a foreman for Alberici, and claimed the work on behalf of Local 42 laborers. Alexander told O’Connell that he was pulling all workers off the job until the dispute between the Laborers and the Carpenters was settled.
14. Chapman testified that on July 31, 1998, he again called O’Connell and said that the Carpenters were claiming this work and were due to commence the job the following Monday.
15. O’Connell testified that Pat Sweeney (Sweeney), from the Carpenters District Council, telephoned him and claimed the work on behalf of the Carpenters. O’Connell said he and Sweeney agreed to disagree as to which trade should be awarded the work.
16. O’Connell testified that later that morning Alexander called him and asked for a letter claiming the work for the Laborers. O’Connell sent a fax to Alexander at the Baptist Hospital job site. See Exhibit 6.
17. Chapman testified that when O’Connell told him that he would not be coming to the job site on July 31, he telephoned Jim Henson (“Henson”), the Business Manager of the District Council, and told him that the Carpenters were claiming the jurisdiction to perform the piling cutoff and lagging work.
18. Henson testified that, as a result of Chapman’s telephone conversation, he faxed a document to Alexander that same day indicating that the Laborers had performed piling cutoff and lagging removal work at an previous, unrelated job site. See Exhibit 5.
19. Henson testified that jurisdictional disputes between the Laborers and the Carpenters occurred quite often.
20. O’Connell testified that he spoke with Jeff Gauss (“Gauss”), the project engineer at the job site, later in the day on July 31, 1998. O’Connell said he asked Gauss if it was necessary for him to come to the job site to deal with the jurisdictional dispute between the Laborers and the Carpenters. O’Connell testified that Gauss told him that the piling cutoff and the lagging removal work had been given to the Laborers.
21. O’Connell testified he did not go to the Baptist Hospital job site on July 31 to deal with the jurisdictional dispute because Gauss assured him that the Laborers would be given the job. He was satisfied that he had effectively resolved the issue by use of the telephone and the fax machine.
22. I adopt the findings of the Special Hearing Master that O’Connell was a credible witness, based upon his testimony, demeanor and his supporting documentation.
DISCUSSION
Obscene Remark at the Local Meeting
Freedom of speech at a union meeting is a recognized and protected right. Title 29,U.S.C. ' 411(a)(2) states,
Every member of any labor organization shall have the right to
meet and assemble freely with other members; and to express any
views, arguments, or opinions; and to express at meetings of the
labor organization his views, upon candidates in an election of
the labor organization or upon any business properly before the
meeting, subject to the organization’s established and reasonable
rules pertaining to the conduct of meetings… .
The LIUNA Ethical Practices Code (“EPC”) protects the right of a union member to speak out. Section 1 of the EPC, Democratic Practices states in pertinent part, “Each member shall have full freedom of speech and the right to participate in the democratic decisions of the Union.”
In Members of Local Union 300 v. Torres, AO 96-003-TB, the LIUNA Appellate Officer held that union members’ right to freedom of speech related to union matters stated at union meetings is protected no matter how profane, obscene, or distasteful their choice of language may be. Thus, if Flinn’s obscene remark to Chapman had been in the context of one union member hurling an obscenity at another from the floor of the meeting hall during a discussion of a given union issue, his right to utter even a gross and crude quip would clearly be protected.1
The fact pattern presented here is factually different from Torres. When Flinn directed his obscene remark at Chapman, he was not doing so in the context of a union member speaking out at a meeting. Flinn made his remarks as the Business Manager of Local 42 while presiding over the meeting.
Although the EPC recognizes the right of free speech, that right must be balanced against the necessity of conducting orderly meetings. The LIUNA Ethical Practices Code, Democratic Practices, Section 1 provides, “…regular meetings must be conducted in an atmosphere of fairness… .” The Uniform Local Union Constitution, Article III, Section 3 lists the “Obligation of Members.” Section (3)(e) lists one of the obligations as, “To observe proper decorum in attending and participating in meetings and functions of the Organization, in accordance with such reasonable rules established by the Organization and generally accepted parliamentary rules of procedure pertaining to the conduct of meetings and functions”. Article VII, Section 3 states, “It is the intent of this Constitution…that the Local Union should take such steps as may tend to encourage attendance of members at meetings.”
These provisions provide us with the following guidelines that apply to the facts in this case:
· “Atmosphere of fairness” There is no doubt that Flinn’s intent when he uttered the invective directed at Chapman was to embarrass, belittle, humiliate, and insult him. This hardly fosters an “atmosphere of fairness” as applied to Chapman’s treatment at that moment in time.
· “Observe proper decorum . . . in meetings . . . in accordance with . . . generally accepted parliamentary rules of procedure . . .” Flinn’s actions toward Chapman represented the antithesis of the spirit of Roberts Rules of Order. Although union leaders and members may have frank and spirited discussions at meetings, it is incumbent on a leader of a local union, to maintain a certain level of professional courtesy, dignity, and decorum when addressing a member, even one with whom he may have strong disagreements.
· “Encourage attendance of members at meetings” Two members testified of the negative impact Flinn’s remark had on the tone of the meeting, and one of them said that he and other members have stopped attending Local 42 meetings on a regular basis because of the inappropriate atmosphere engendered by crude remarks such as the one made by Flinn to Chapman.
A member who addresses an issue from the floor will be afforded the full protection of his/her freedom of speech as stated in the Torres decision. Leaders of a local union, particularly those who preside over any aspect of the local’s meeting, must accept the responsibilities that come with their office and cannot respond to adverse comments by inflammatory speech. This is not to say that union officers must act as sheep and endure attacks on their office without comment. The union officer may respond in a forceful, yet professional manner but this does not include profanity and degrading commentary.
I do not accept Flinn’s remark that he may respond to a member in an obscene and demeaning manner.
Duty of Fair Representation
Chapman charges that the Executive Board failed in its duty to fairly represent him and other members of Local 42 by failing to expeditiously appoint a job steward at the Baptist Hospital job site during the summer of 1998 and by not responding expeditiously to a jurisdictional dispute between Local 42 and the Carpenters Union.
A union official has the duty of representing all of the employees “fairly, impartially, and in good faith.” Steele v. Louisville & Nashville R.R., 323 U.S. 192, 203 (1944). An official violates his duty of fair representation when his “conduct toward a member is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 306 U.S. 177, 203 (1967).
The Eighth Circuit2 has held that “arbitrary conduct alone may suffice to establish a violation of the duty of fair representation,” but “mere negligence, poor judgment or ineptitude are insufficient to establish a breach of the duty of fair representation.” See NLRB v. Postal Workers, 618 F.2d 1249, 1255 (8th Cir. 1980).
Proving that the union demonstrated improper motivation is an essential element in all fair representation cases. See Florey v. Air Line Pilots Assoc., 575 F.2d 673, 676 (8th Cir. 1978). However, improper motivation may not be required where perfunctory conduct is alleged and proved. The term perfunctory conduct has been defined as conduct that is no more than going through the motions involving no real effort to put forward a position; it is pro forma conduct. See Stevens v. Teamsters, Local 600, 794 F.2d 376, 378 (8th Cir. 1986) .
There was no Local 42 job steward at the Baptist Hospital job site for most of the summer of 1998. The steward’s position was offered to three different members. Two of them declined to accept it. The third member accepted the position, but quickly dropped out after he failed a drug test. At that point, it took another eight days to appoint a steward who was qualified and who accepted the position. O’Connell testified it took eight days to name another steward after John Doe failed the drug test because he wanted to finish the beam cutting and lagging removal work before appointing a new job steward. I find that O’Connell’s efforts to appoint a steward were reasonable.
During the Trial Board Hearing, O’Connell introduced a written log of the activities that he and Business Agent Lindsey undertook at the Baptist Hospital job site during the time period in question. See Exhibit 3. Chapman did not challenge the accuracy of the entries. This log indicates that O’Connell and/or Lindsey made attempts to fill the position of job steward on ten different dates in July and August of 1998.
The efforts made by O’Connell and Lindsey to fill the position of job steward at the Baptist Hospital job site were not examples of “perfunctory conduct.” Their efforts of calling and visiting the site were much more than merely “going through the motions.” I find that O’Connell and Lindsey acted in the best interests of the Union.
The Duty of Fair Representation Issue As Related to the H-Beam Cutting and Lagging Removal Work
The principles discussed above apply to the jurisdictional dispute as well.
Chapman argued that O’Connell did not personally visit the Baptist Hospital job site when attempting to resolve the jurisdictional dispute with the Carpenters’ union. While one could argue that it may have been preferable for a Local 42 officer to visit the job site, the record is clear that O’Connell communicated with the contractor by phone and fax to argue Local 42’s position in the jurisdictional dispute. The company awarded the job to Local 42 after receiving a fax from O’Connell on July 31.
Chapman argues that Alberici awarded the work to Local 42 only after Chapman called Henson and Henson thereafter sent Alexander a fax citing the awarding of this type of work to the Laborers at another site. Although neither Alexander nor any official from Alerici testified at the Trial Board Proceeding, I am certain that the Henson fax was helpful in persuading Alerici to award the work to Local 42. I cannot conclude, however, that without it O’Connell’s efforts would have failed.
Based upon the discussion, I make the following findings.
FINDINGS OF FACT
23. O’Connell made reasonable efforts to appoint a steward at the Baptist Hospital job site.
24. O’Connell and Lindsey acted in the best interests of Local 42.
25. O’Connell was diligent in pursuing the lagging work for Local 42 in the jurisdictional dispute.
CONCLUSIONS
1. Chapman has proved by a preponderance of the evidence that Flinn’s statement to him was improper. Flinn recognized that he was “out of line” for making the remark and has offered a full apology to Chapman on the record. Based upon these facts, there is no just cause for imposing a penalty as a result of Flinn’s remark.
2. Chapman has not proved by a preponderance of the evidence that O’Connell and Lindsey, on behalf of the Executive Board, failed in their duty to fairly represent the members of Local 42 in the appointment of a job steward at the Baptist Hospital job site during the summer of 1998. The record shows that both men acted with due diligence and did not engage in “perfunctory conduct” as defined in the Eighth Circuit cases.
3. Chapman has not proved by a preponderance of the evidence that O’Connell acted in a “perfunctory” manner in the jurisdictional dispute with the Carpenter’s Union at the Baptist Hospital job site during July 1998. Chapman was not denied his right of fair representation. O’Connell exercised due diligence in helping to resolve the jurisdictional dispute with the Carpenters’ Union.
DECISION
1. Although Flinn’s remark to Chapman at the meeting of the Local on June 24, 1998 exceeded the bounds of free speech, there is no just cause for a penalty.
2. Chapman has not proved by a preponderance of the evidence that Local 42 failed in its duty to fairly represent him at the Baptist Hospital construction site during the summer of 1998.
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PETER F. VAIRA |
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INDEPENDENT
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Dated: March 18, 1999 |
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Local Union 42Gary Chapman |
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