" "

In the Matter of Arbitration Between:

National Elevator Industry, Dover Elevator Company

and International Union of Elevator Constructors Loca 1 8

) ) )

Inc. ) ) ) ) ) ) )

Employer grievance involving Article XIV Union grievance involving Article XXII

The two grievances here presented, one by the Employer and one by the Union, arose from a common back­ground and were heard together in arbitration. The back­ground involves a novel set of facts and circumstances in the parties' experience.

In brief and oversimplified terms, the background is this: a long-time member of Local 8, while granting his obligation to pay financial-core dues, resigned from membership in protest of asserted discriminatory treat­ment against him by the Local; his fellow workers refused to work with him on the grounds of his non-membership in the Local; the Employer sought to place him on other jobs -- jobs which were the Employer's and which were within the Local's territorial jurisdiction -- but there encountered the same resistance, based on the same stance, by the Local's members; the Employer kept him on the pay­roll for about 2! months (paying him on the basis of 40-hour weeks) though the individual at no time worked for the Employer in that period; and the Employer then dropped him from the payroll on the grounds that the individual is not employable while the members of Local 8 refuse to work with him and that it (the Employer) cannot be expected indefinitely to keep him on the pay­roll while receiving no work from him.

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The Agreement is the 5-year Agreement which com­

menced on July 9, 1987. Asking for reimbursement from

Local 8 for the wage payments to the individual in the approximately 2t-month period (and for potential wage

payments to him beyond that period, as will be explained below) and for a series of legal expenses which were in­curred in dealing with the situation posed by the mem­

bers' stance, NEIl invokes Article XIV -- titled "Strikes and Lockouts". And, protesting the dropping-from-the­

payroll action as constituting neither a proper layoff nor a proper termination of the individual, IUEC in-

vokes Article XXII -- titled "Hiring, Layoffs and Transfers·. The pertinent paragraphs of the NEIl-invoked

Article are these:

"Par. 1. It is agreed by both parties to this agreement that so long as the provisions herein contained are conformed to, no strikes or lock­outs shall be ordered against either party. It is understood that this Paragraph shall be ap­plied and construed consistent with the pro­visions of Article IV, Par. 11 concerning Grievance and Arbitration procedure.

Par. 2. No strike will be called against the Employer by the Union unless the strike is ap­proved by the International Office of the Inter­national Union of Elevator Constructors. Suf­ficient notice shall be given to the Employer before a strike shall become effective. Ex­cept in the case of Contract Service Work as specified in Article IX of this agreement, work stoppages brought about by lawful picketing or strikes by building trades local unions affiliated with Building Trades Councils shall not constitute a strike within the meaning of this Article."

The pertinent paragraphs of the IUEC-invoked Article are these:

" x x x x x

Par. 2. When layoffs are made by an Employer, the probationary helper will be laid off first.

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Thereafter transient employees not including temporary transfers referred to in Paragraph (3) below shall be laid off and lastly mechancis and helpers who permanently live in the area will be laid off. Employees laid off shall be paid at the next weekly payroll period following the layoff.

x x x x x

Par. 4.

x x x x x

(e) It is understood and agreed that prior to terminating an employee for unsatisfactory per­formance who is to be replaced under this para­graph or any other employee, the Employer will give a written warning to the employee with a copy to the Business Representative in order that the employee be given an opportunity to improve his work performance. Such a termi­nation may be submitted as a grievance to the National Arbitration Committee as provided. under Article XV as a final source of appeal. n

Other Agreement provisions are involved in the case. They will be identified as the narrative proceeds.

The factual material in the case is voluminous. Aside from the 2-day hearing and the six witnesses and 20-plus exhibits which it produced, there are the trans­cripts of depositions (taken in another forum) of ten Dover employees who were among those to take the refusal-to-work stance. It is correctly observable that the facts -- in terms of what was said by whom and when -- are largely undisputed. But the case is not one which proceeds from a stipulated set of facts. And, clearly because the parties have opposing views on what is to be made of the

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facts, the respective statements of the facts in the parties' post-hearing briefs are vastly different. The following is what r have come to as a fair and adequate presentation of the factual framework. There is no avoiding its extensiveness.

Dover is a nationwide Employer engaged in elevator construction, elevator service, elevator repair, and elevator modernization. rn April 1990, it held a contract for the construction of elevators in a highrise complex being constructed at 600 California Street in San Francisco. Contracts of this sort require the meeting of deadlines, and failure to meet them may gen­erate damage claims and therefore may be of enormous financial consequence to the Employer. Assigned to the 600-California job were some six or seven Mechanic­Helper teams. rn the spring and summer of 1990, Dover was an unusually busy Employer in northern California (equating to the territorial jurisdiction of Local 8).

The individual who resigned from membership in Local 8 is James R. Maynard. He is a black; his age is 55; he has worked in the elevator-construction in­dustry for nearly 25 years; he has been a Dover employee· for nearly 10 years; his work performance, in whatever capacity he has worked, has always been satisfactory (at least insofar as Dover is concerned); much of his time, both for Dover and previously, has been spent as a Temporary Mechanic; as of about a year and a half prior to the time here in question, he was treated as no longer entitled to placement as a Temporary Mechanic; from that time to the time here in question, he was in fact kept from acting as a Temporary Mechanic; at the time of his resignation and its attendant events, he was a Dover-employed Helper at the 600-California job; and, until the time of his resignation, he was a loyal and active member of Local 8.

•

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Article X lays down a series of regulations respecting the Helper position. Among them are these: a newly-hired Helper pursues a 6-month probationary period and is paid at 50 percent of the Mechanic rate; on com­pletion of the probationary period, the pay of a Helper advances to 10 percent of the Mechanic rate -- and such Helpers are therewith known as construction work, Helpers may and Mechanics and Helpers must Helper teams in l-for-l ratio

10-percent Helpers; on not work by themselves be employed as Mechanic­(except that some extra

Helpers may be employed where the number of Mechanic­Helper teams at the particular job exceeds a contractu­ally specified number); a 10-percent Helper may work as a Temporary Mechanic, at the Mechanic rate, under the conditions set forth in paragraph 4; and, for this pur­pose and in shorthand reference to subparagraphs a), b) and c), 10-percent Helpers are designated as A Helpers, B Helpers and C Helpers.

Paragraph 4 (of Article X) should be quoted because its enforcement lies at the bottom of the case. Three things pertaining to the paragraph, however, are preliminarily to be noted. One concerns the educational requirements which are laid down in the paragraph. They existed under prior Agreements, were long extensively ignored (explaining the fact that Maynard spent much of his time as a Temporary Mechanic), and began to be en­forced a year or so after the adoption of the current Agreement (explaining the fact that, as of about a year and a half prior to the time here in question, Maynard was treated as no longer entitled to work as a Temporary Mechanic). Maynard was (and is) a C Helper; some B Helpers (and perhaps even some A Helpers) were engaged as Helpers at the 600-California job at the time here in question; and, as will be seen, C Helpers hold the

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lowest ranking of eligibility for placement as a Temporary Mechanic. The second preliminary note concerns the re­

ference to NEIEP. It stands for National Elevator Industry Education Program -- a nationwide, jointly-recognized pro­gram governing qualifications for, and appointment to, the position of Mechanic. (The term "module" connotes a textbook lesson.) And the third preliminary point to be noted is that enrollment in NEIEP is tuition-free. The paragraph reads as follows:

"Par. 4. A Helper may work as a Temporary Mechanic upon agreement of the Employer and the Union Representative, or the Regional Director if he works outside the jurisdiction of a Local Union, and at the same scale of wages as a regular Mechanic provided he has worked a period of one (1) year and he has complied with the other requirements for temporary mechanics prescribed from time to time by NEIEP. The Employer may select Helpers in its employ to work as Temporary Mechanics under the provisions of this para­graph if there are no qualified mechanics available in that local according to the following procedures:

a) Those helpers who have completed all the NEIEP modules to sit for the next scheduled Mechanic's Exam will be selected first for temporary mechanics.

b) Those helpers who are enrolled in NEIEP and actively pursuing their modules to their completion will be selected second for temporary mechanic.

c) Those helpers who are not enrolled in the NEIEP Program or have completed all the required modules for the mechanic's test but have failed to sit for a scheduled Mechanic's Examination which they are eligible to take and those employees who have failed the Mechanic's Examination within the past year will be considered last.

In the event the Employer needs to reduce the number of temporary mechanics in its work force, the procedure will be applied in the following manner: Those helpers referenced

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in (c) above shall be put back to helper status within 48 hours after the Employer is notified that a qualified mechanic is available; those helpers referenced in (b) above shall be put back next when his temporary assignment is com­pleted or within 15 working days of when the Employer is notified there is a qualified mechanic available whichever comes first; and lastly those helpers referenced in (a) above will be put back to helper status when his temporary assignment is completed or within 15 working days of when the Employer is notified there is a qualified mechanic available which­ever comes first.

In order to administer this procedure, NEIEP will provide to the Emoloyer on a semi-annual basis a listing of all the Employer's helpers and pro­bationary helpers and the modules they have completed.

It is agreed that the withdrawal of or failure to issue a temporary mechanic's card will not be used by the Union to advance its position with repsect to a dispute unrelated to this paragraph of Article X.

No Helper may qualify or be raised to the capacity of Mechanic until he has worked for a period of three (3) years in the elevator industry, has successfully completed the re­quired NEIEP courses, and has passed a Mechanic's Examination administered by the NEIEP Director's Office. Such examination shall only be ad­ministered no more or no less than once every twelve months in each local. The National Elevator Industry Education Program has de­veloped and will periodically update a standardized Mechanic's Examination which will be used in each local. A Helper who has successfully passed a Mechanic's Examination shall become a Mechanic no later than thirty (30) days after the date of the examination. Should he fail the test, he cannot again take the Mechanic's Examination for a period of one (1) year."

Maynard was briefly enrolled in NEIEP (and dropped out at his own volition) some six or seven years ago. In recent years, he has steadfastly declined to avail himself of the program. He believes that, having

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time and again worked as a Temporary Mechanic, it makes no sense to require him to take the modules and the exam in demonstration of what has already been demonstrated: his capacity competently to occupy the Mechanic position. Further, he views it as unreasonable, at his stage of life, to be asked to undertake the considerable studies which are necessitated by NEIEP enrollment. Further, he points to the inconsistency in the enforcement of the NEIEP requirements -- i.e., to the fact that for years he was permitted to work as a Temporary Mechanic to­gether with the fact that, as of late 1988 or early 1989, he ceased to be so placed based on his status as a C Helper. And further still, he asserts disparity-of­treatment instances even since the time of the enforce­ment of the NEIEP requirements. It is on these bases that Maynard charged the Local with discrimination and resigned his membership from it.

The responses of the Local, IUEC, Dover and NEIl are: that the NEIEP and its requirements have been in existence since the late 70's; that all that happened in the late 80's -- i.e., upon adoption of the current Agreement-- was the recognition that the terms of Para­graph 4 of Article X should be complied with; that uni­form enforcement is in fact what has taken place; that others, similarly situated and affected relative to Maynard, have consented to enroll in the NEIEP; and that the program has been scrutinized by appropriate author­ities and has been approved as not racially biased.

It is to be understood that neither Maynard's discrimination charges nor the parties' responses there­to are presented for determination in this proceeding. Nothing herein expressed should be taken as passing on the merits of those charges and responses.

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In a hand-delivered letter dated March 19, 1990,

to Ellis Smith, the Local's Business Manager, Maynard

said this: "I have been held back and discriminated

against and not represented by Local No.8. Therefore, effective March 31, 1990, I hereby resign as a member of Local No.8 of the IUEC. Enclosed is a check for $35 to be used as a service fee."

In so resigning, Maynard in effect notified

the Local that he was henceforth to be given financial-core status. The phrase was used in the decision of June 29, 1988, of the Supreme Court of the United States in Communications Workers v.Beck -- commonly referred to

as Beck. The issue presented in the case was whether employees covered by a union-security clause and therefore subject to discharge for failure to pay uniformly-applied Union dues and fees were obligated to pay them in full or could insist on paying only that share which is allocable

to the Union's costs in rendering "collective bargaining, contract administration, and grievance adjustment" services. The Court upheld the latter notion, and Beck has thus be­

come known as authorizing financial-core status in pro­tection of employment rights under union-security clauses.

The ruling has created numerous vexing questions as to proper financial-core allocations, and Maynard and the Local are still in dispute on the size of the share of the full quarterly dues which he is to pay. But it is

a stipulated fact that Maynard had an unconditional right to be converted to financial-core status and that the conversion must be applied as being of no bearing on his employment rights under the Agreement.

The Local's Executive Board holds regular monthly meetings. Its March 1990 meeting was held shortly upon the delivery of Maynard's resignation letter to the Local, and the 1 etter was presented at that

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meeting. One of the Executive-Board members who attended

the meeting was Michael Hopkins. There are seven elective Executive-Board members. They serve 2-year terms on a staggered basis. The Business Manager holds a full-time Union office and is the Local's chief administrative

officer. Manager. Smith for

Ellis Smith, as noted, is the Local's Business Hopkins had twice unsuccessfully run against the Business-Manager office.

On large jobs involving multi-Mechanic-Helper teams, one employee is customarily assigned to act as the Mechanic In Charge (MIC). The pay for the MIC, governed by the Agreement, is 12t percent above the Mechanic rate. MICs retain their Union membership (in full-fledged fashion, not in the limited fashion which applies to supervisors who no longer work as Mechanics or Helpers but were promoted from their ranks). The question of whether an employee acting as MIC is to be viewed as a bargaining-unit employee or as a ~anagerial representative has been litigated. The latter view has prevailed. I be­lieve, however, that this is to be disregarded insofar as the present case is concerned. Hopkins was Dover's MIC at the 600-California job at the time here in question. But, whatever is to be attributed to him relative to the events surrounding Maynard's resignation, Hopkins cannot possibly be viewed as having been engaged in the fulfill­ment of managerial responsibilities and must be viewed, instead, as having been in the role of loyal Union member.

In a letter dated March 29, 1990, the Local, over the signature of Ellis Smith, advised Maynard that his resignation would be considered effective as of April 1, 1990. That date fell on a Sunday. (The year as to all dates hereafter given, except as otherwise shown, is 1990.)

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Ronald Rowe has been employed by Dover for many years and at the time here in question was Dover's Con­struction Manager. On the evening of April 1, while at his home, he received a phone call from Hopkins. Hopkins' message was to the effect that Maynard was refusing to pay Union dues; that, given this, Maynard would not be allowed to work; and that he (Hopkins) did not want to have to deal with the situation which would unfold on the fol­lowing morning and therefore wanted to be relieved as the job's MIC. Rowe honored the request and asked Con­struction Superintendent Joseph Buschiazzo -- known as Bush -- to take over at the 600-California job on the following morning.

Bush arrived at the job near the 7 AM starting time on April 2. Hopkins came up to him and was the first person to speak to him, saying: that Maynard was resigning and becoming a financial-core member; that this made Maynard "essentially not a member of Local 8" ; and that he (Hopkins) wanted to be taken off the job rather than work with Maynard. Hopkins also spoke to his fellow workers, assembled at Dover's shack. Bush, granting that he cannot recall Hopkins' precise words, testified that "Mike did make a little speech" and that "he said something to the effect that we're all members of Local 8 and that everybody had to do what they had to do, but make their own mind up, but he was going to walk off the job, that he would not work with a nonunion member." Bush thinks that Hopkins may also have employed "sticking together " phraseology. I do not read the evidence as refuting either the fact of the "little speech" or the essence of its content as recounted by Bush. And it is an established fact that the entire Dover complement (including Hopkins) walked off the job. Also to be held in mind, however, is the evidence

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which emerges from the depositions. The depositions un­mistakably show that Hopkins' "little speech" and his refusal to work with Maynard mirrored the sentiments of the assembled individuals and that this was true because of the solidity of the conviction in abiding by the tradition of not working with non-union people.

Bush called Rowe and briefed him on the walk­off. Rowe also received a phone call from Ellis Smith, who had come to the job. According to Rowe, Smith said that "if I got Maynard off the job, that our people, the rest of the people would return." Rowe grants, however, that Smith had talked to the Dover employees by the time of the call and that Smith, rather than lay down a Union demand for Maynard's removal, was transmitting what they were saying.

Bush, in the meantime, paged other Dover jobs in search of a Mechanic who might be willing to work with Maynard. (Both Bush and most Dover Mechanics carry a pager.) Joseph Doyle, a Mechanic at the Mercy.Professional Buildfng, answered Bush's page. Bush, explaining what hap-pened at the 600-California job, asked Doyle to trade Helpers -- i.e., to release Doyle's Helper for work at the 600-California job and to accept Maynard as his Helper at his job. According to Bush, his explanation and Doyle's reply were these:

"I said, 'Jim Maynard just resigned from the local. He's become a financial core member. He called Ellis. It's legal, and I'm trying to find work for the guy. He has to go to work somewhere, and I'm asking you to accept him on your job.'

Joe wasn't too thrilled about it, but he said, 'Well, that's what you got to do. You're the boss. Go ahead and send him out here.'"

Having thus succeeded in finding another place of work for Maynard, and having ~ad the chance to inform

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Maynard of this fact, Bush went to the coffee shop which is near the Dover shack and to which the Dover employees

and Smith had gone. Smith and Hopkins were coming out of the coffee shop as Bush was approaching it. According to Bush: "We talked. I told [Smith] I was taking Jim off the job, and Ellis said that's a good move, and Mike agreed that he would go back to work. Everybody returned to work."

Bush then went back to Maynard and told him that he (Bush) would take him to the Mercy Professional Building to work with Doyle. Maynard raised no objection, but, owing to transportation difficulties, he asked that the reassignment be postponed until the following day. Bush agreed to this.

Maynard did not in fact go to work as Doyle's Helper on April 3 -- or thereafter. On the evening of April 2, Bush received a phone call from Doyle. According to Bush: "[Doyle] told me that Mike Hopkins called him and Mike talked it over with him and he decided that there was enough pressure there, that everybody was looking at him, and he didn't want to work with Jim Maynard." Doyle's deposition confirms that Doyle called Bush on the evening of April 2 and told Bush that he had changed his mind and would not work with Maynard. But Doyle's version as to what led to the change of mind is somewhat different. Doyle says: that he felt unneasy, to begin with, in assenting to Bush's request; that he nonetheless assented to it because Bush had asked for it "as a favor"; that he talked to Roy Francesconi -- the Local's Business Representative (the position which is the Local's full­time administrative position below the Business Manager's position) -- at about 11 AM on April 2; that Francesconi explained the meaning of the financial-core status (in­cluding Maynard's right to work under it); that he

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(Doyle) called Hopkins, not the reverse; and that he

decided against working with Maynard because he viewed Maynard as engaging in conduct which is intolerable for a good trade unionist.

Also on the evening a phone call from Maynard.

of April 2, Bush received Maynard stated that settle-

ment efforts between himself and the Union were under­way and that he would like to remain off work until a resolution was found. Bush approved this, and Maynard did not return to work until April 6. He was not paid for April 2, 3, 4 and 5 -- and no claim for reimbursement of lost wages is made by him or on his behalf. In re­turning to work on April 6, Maynard reassumed his Helper post at the 600-California job.

The walkoff on April 2 was of about 2-hour dur­ation. All the Mechanics and Helpers in the Dover comple­ment were docked for the two hours. And all of them returned to work coincident with the word that Maynard was being removed from the 600-California job. Hopkins was retained as the MIC.

Hector Rueda is an IUEC regional Vice President. It appears that he was the Union's main spokesman in the efforts which were being made to settle the controversy stemming from Maynard's discrimination charges and resig­nation. It also appears that, by April 6, Maynard saw those efforts as gOing well enough to cause him to with­draw his resignation. In any event, nothing untoward happened when Maynard rejoined the Dover complement at the 600-California job on April 6. And, from then until April 24, the peaceful state of affairs remained intact.

On April 20, apparently because the Ruedo-Maynard settlement efforts had collapsed, Maynard mailed a letter to Smith, and a copy of the letter to Dover, asking that

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his prior resignation be put back into effect. Dover

received the copy on April 23.

Bush was at the 600-California job on April 23,

apparently at a time when Dover had not yet received the copy of the letter (or, at least, when Bush had not yet

been made aware of its existence). Bush, making a job check, spoke with Hopkins. He was told by Hopkins: that "it's starting allover again"; that he and the rest of the Dover complement would, on the following morning, again walk off; and that Bush should plan to

be at the job to relieve him as the MIC and to deal with what would be a renewed walkoff situation.

April 24 was.a Tuesday. Bush arrived at the 600-California job shortly before 7 AM. The Dover employees, including Hopkins and Maynard, were assembled at the shack. What then happened is best described by quoting from Bush's testimony:

"A. We all just kind of sat around until about 7:00 and Mike got up and said you're in charge.

Q. Who did he say that to? A. He said that to me. He says, 'I'm not going to work.'

I said, 'What do you mean, Mike?' He goes, 'We have a nonmember among us,'

pointing to Jim Maynard, and he says, 'I'm not going to work with him,' and he turned to the rest of the crew and told the crew, 'Everybody has to make their own mind up. Members of Local 8 has to stick together and everybody has to make up their awn mind.'

He says, 'I'm not going to work with him, and I'm gOing to walk off this job.'

Q. And did Mr. Hopkins walk off the job at that point? A. No, not yet.

Q. What happened? Did you say anything? A. I told everybody that it's 7:00. Let's go to work, and everybody refused to go to work.

So I said, 'Guys, you got to work with him. You don't have to listen to me. You can call

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Ellis Smith and he'll tell you the same thing. What Jim is doing is legal. He has every right to do it.'

And everybody still refused. So at that point Jim made a little speech also. Q. Jim Maynard? A. Jim Maynard. Q. What was his speech? A. Something to the effect that everybody has to do what they have to do and I have to do what I have to do and he doesn't hold it against anybody and he's here to go to work, and Jim basically kind of of picked up his tools and had his overalls on, picked up his screwdriver and whatever tools he had and started walking out of the shack like he's ready to go to work, and everybody else said we're all leaving, and at that point I said, I'll let you go back to work. I will have to give you a letter of reprimand and that I would take Jim Maynard off the job. They all agreed they would take the letter and go back to work. At that point I removed Jim Maynard from the job."

Rowe, briefed by Bush, made a series of phone calls to other Dover jobs seeking to locate a Mechanic to work with Maynard. Bush, with the same objective, took Maynard to several Dover jobs. Every contacted Mechanic refused.

Dn April 25, Rowe sent a telegram requesting the Local to furnish "a qualified mechanic to work with Jim Maynard in the San Francisco area starting at 7 a.m., April 26, 1990". Seventeen out-of-work Mechanics were at the time on the Union's rolls. None came forward to work with Maynard.

It is to be understood that I accept the given evidence as establishing that Maynard could not be put to work. The Union has sought to make the contrary showing -- that an appropriate Mechanic-Helper team

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could have been formed via the use of either of the two Helpers at the 600-California job who were willing to work with Maynard and that, aside from this, Dover was con­

tractually free (under Par. l(b) of Article XXII) to hire any Mechanic not on the Union's rolls upon the elapsing of 48 hours following the sending of the telegram. I re­ject the arguments as convenient after-the-fact second­guessing, leaning on hypothetical possibilities and failing to square with practical realities.

On April 26, Dover filed an unfair-labor-practice charge against Local 8 with the National Labor Relations Board and requested so-called 10(j) injunctive relief. The Board, though it issued a complaint against the Local, declined to grant the injunctive-relief request. Dover did not file for a so-called Boys' Market injunction.

In May, Dover issued nearly 40 warning letters. The letters are not identical, employing varying phrase­ology depending on whether the addressee was among those who had been at the 600-Ca1ifornia job on April 24 or was among those who had otherwise refused to work with Maynard. In their central message, however, the letters are the same:

"On April 24, 1990, you refused to work as directed by your job superintendent and engaged in a work stoppage because another Dover Elevator Company employee assigned to the job site, James Maynard, had re­signed from I.U.E.C. Local 8 and had as­serted his financial core member rights under the Standard Agreement and federal labor law.

It is important that you understand that such insubordination and disruption of work cannot be tolerated. Your pay has been docked 15 minutes for the time you refused to work. This letter is a written warning that any reoccurrence of such in­subordination, disruption of work or other conduct which jeopardizes Dover Elevator Company's business interests will result in further disciplinary action, which may in­clude discharge."

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Dover confined its disciplinary action to these letters. It resorted to neither suspension nor discharge against any of the offending employees. And it kept Hop­kins as the MIC at the 600-California job. Equally true, however, is that Dover had been given to understand by several of the recipients of the letter that all Dover Mechanics and Helpers would walk out if anyone of them were discharged. I have no difficulty accepting that this is indeed what would have happened. Stated other­wise, I do not doubt that Dover could not have implemented the concluding portion of the letter except by abandoning its obligations under the construction contracts it was then holding in the San Francisco area.

In late April and early May, Dover and Local 8 exchanged letters. Dover, characterizing the employees' refusals to work with Maynard as a concerted effort and thus as a violation of Article XIV, asked the Local to take affirmative steps for correction of the situation. Local 8, rejecting the characterization and disclaiming legal responsibility for what was happening, stated that it had repeatedly advised the Dover employees that they could not rightfully refuse to work with Maynard and, viewable as "a 'quit' subject to appropriate Dover Ele­vator action up to and including discharge", were jeopardizing their Dover employment if they continued to refuse to work with him.

On May 14, Dover filed the present Employer grievance. The "Statement of Grievance" is; "The IUEC has engaged in and threatens to continue work stoppages in violation of Article XIV, Paragraph 1 in order to coerce Dover Elevator Company into discriminating against a financial core member, Jim Maynard. Jim Maynard's mem­bership is in accordance with Article III, paragraph 3." (The paragraph covers employees "working in any state which prohibits the execution or application of agreements

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requiring membership in a labor organization as a condition of employment" and authorizes such employees, in lieu of membership in the Union, to pay the Union "a monthly ser­vice fee" equating to an employee's "prorata share of costs of collective bargaining and the handling of grievances and arbitrations". California is not a State to which the paragraph applies.) The Union replied to the grievance in twofold fashion: 1) a two-paragraph letter echoing what the Union had said in the April-May exchange of letters, and 2) a brief statement on the grievance form, saying: "The I.U.E.C. has not engaged or threatened to engage in any work stoppage, nor has coerced Dover Elevator Company into discriminating against anyone. Dover Elevator Company failed to demonstrate that the Union violated any provisions of the Standard Agreement."

For distribution to all members of the Local, Smith prepared a "Dear Member" letter which carries the date of "06/07/90". The content of the letter is to be appreciated: as reflective of the Local's stance, from the beginning and all along; as the equivalent, in thrust and essence, of the Local's pronouncements in membership meetings at various locales; and as lying at the foundation of the arguments which the Union submits in urging that there was no violation of Article XIV. The letter reads as follows:

As you are well aware, one of our members resigned his membership from the Inter­national Union of Elevator Constructors. According to law a non-member or resignee has the legal right to work in our industry, provided he/she pays what is known as core fees in lieu of dues.

Although any employee has an individual right to work or not to work with such a person, you must know that disciplinary action, up to and including discharge, may be exercised by your employer if you refuse to work as directed.

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Local 8 neither condones nor sanctions any refusal to work with a non-member or resignee based upon such membership status, and has to view such a refusal as equivalent to a volun­tary 'quit'. and therefore the Union will be unable to grieve it. Under these circumstances, Local 8 urges you to consider the possible consequences upon your employment before you decide not to work with non-members/resignees. Even though we respect your right to make an individual choice, Local 8 admonishes and urges you to perform the work assigned by your employer."

On June 11, Rowe wrote to Maynard in follow-up of their conversation about a week earlier. Rowe expressed sympathy for the fact that Maynard felt discouraged over

not landing employment with another elevator company; he urged Maynard nonetheless to keep trying, particularly

with the large elevator companies in the area (naming four of them); he also suggested that Maynard write to Local 8 to request referrals for job openings; and he ended with "we are continuing to do everything we can to resolve this situation".

On July 2, Rowe wrote the letter by which Dover dropped Maynard from its payroll. As wi 11 be seen, the letter refers to "effective today" and "through today". In fact, Maynard was paid through July 5. The letter reads as follows:

"Dover Elevator Company's mechanics still refuse to work with you. Unfortunately, there is no reason to think that this will change anytime in the near future. We have kept you on the payroll for more than two months now, Jim, even though we could not put you to work. More than a month ago, I urged you to apply for employment at the other elevator companies in the area and to notify Local 8 that you were available for referral to job openings. I understand you have only contacted three (3) of these companies and did not contact Local 8 and will not do so

-21-

as long as you remain on Dover Elevator Company's payroll. This leaves me no choice but to lay you off, effective today. Enclosed is your final paycheck through today. Jim, I wish we had been able to put you back to work, and I would be pleased to give you a letter of recommendation, if you would like one. I know you like to do things informally, but I would urge you to submit written employment applications to the other companies in the area."

The grievance which the Local filed in protest against this action is the Union grievance in the present case. As indicated, the Union charges a violation of Article XXII -- saying that Maynard was neither properly laid off, because he was a 70-percent Helper while Pro­bationary Helpers were kept at work, nor properly termi­nated, because he had received no warning for unsatis­factory work performance. There is no dispute as to what the Union is factually saying in these two con­tentions. Dover denies a violation of Article XXII on the grounds, as stated under "Answer" on the grievance form, that "Dover will work Mr. Maynard if Local 8 will furnish a qualified Mechanic to work with him".

With respect to its own grievance, as indicated, Dover is asking for three monetary remedies: 1) reim­bursement from the Union for the wage payments to Maynard (including vacation pay, contributions to the Pension and Welfare Fund, and FICA payments) in the period from April 24 through July 5; 2) reimbursement from the Union for Dover's legal expenses in dealing with the outgrowth of the Union members' refusal to work with Maynard; and 3) reimbursement from the Union for any wage liability to Maynard which Dover may incur by virtue of upcoming proceedings before the National Labor Relations Board. The amount involved in the first item is $13,038.97. The amount involved in the second item is $13, 691.50.

-22-

And as to the third item, Dover submits the following

statement: " Dover's claim is ... a claim for reim-bursement of any amount which Dover may be required by the N.L.R.B. to pay to James Maynard jointly and sever­ally with the Union for any period after July 5, 1990, to which James Maynard may be entitled to backpay under the National Labor Relations Act. There is no specific amount set forth in the record as to this amount because no such amount can be established until after the pro­ceedings before the N.L.R.B. have been concluded. How­ever, as a matter of its contractual right to damages, Dover seeks an order from the Arbitrator requiring the Local Union to reimburse Dover for whatever amount, if any, that Dover may be ordered to pay by the N.L.R.B. to Maynard as backpay after July 5, 1990."

Broadly speaking, the Union opposes any sort of payments from it to Dover on the grounds that there was no violation of Article XIV. But it also advances a series of particular arguments respecting the three items. They are as follows (footnotes and transcript references being omitted):

"Typically, damages for breach of a no­strike clause consist of increased costs incurred as a direct result of a strike. Increased labor costs, overhead and penal­ties would be representative examples.

Such claims are notably absent from Dover's grievance. Instead, inexplicably, Dover asks that the Union be required to reimburse it for the time Maynard was on its payroll but not working. It also claims the Union should somehow be held accountable for any 'further financial loss' it suffers as a result of upcoming NLRB proceedings. Finally, it seeks reim­bursement for legal expenses incurred in unsuccessfully requesting the NLRB to issue an injunction.

-23-

None of these are proper items of damages. Wages and fringe benefit contributions on Maynard's behalf are not an expenditure occasioned by the employees' refusal to work. These expenses were incurred after the Com­pany, of its own volition, allowed the em­ployees to return to work and chose to deal with the matter in its own way. Any 'further financial loss' incurred by Dover as a result of the NLRB proceedings against it will re­flect the liability to Maynard the Board deems Dover to have under the National Labor Relations Act. Moreover, Dover failed to request such relief in its grievance. There is, in any event, no conceivable reason to pass Dover's statutory liability along to the Union, which itself is the target of separate NLRB charges on different theories. In effect, the Company is asking the Arbitrator to take this entire matter and dump it in the Union's lap.

The request for legal expenses is equally fallacious, and was untimely asserted for the first time at the hearing. We are aware of no authority for awarding legal fees incurred in an unsuccessful request to the NLRB to seek an injunction. Moreover, the expenses themselves are clearly not pared down to those actually incurred only in requesting the injunction. The mechanism for requesting the NLRB to seek an injunction is a fairly simple one; it is the NLRB itself which does the bulk of the work.

In summary, with regard to the Company's claim that the Union has violated the no-strike clause, the Company has shown neither that the clause has been violated nor that Local 8 or the International is responsible for any violation. Finally, it has shown no damages flowing from any alleged work stoppage."

Yet to be dealt with is evidentiary material con­cerning Maynard's potential placement with another em­ployer in the latter part of 1990. The potential employer was East Bay Elevator Company, a minority-owned company. East Bay had bid on a job, expected to land it, and

-24-

expressed an interest in hiring Maynard for it as a Mechanic. The anticipated hire jelled sufficiently for the Local to be asked for approval of Maynard in the capacity of Temporary Mechanic. The Local, overlooking the fact that Maynard was not legitimately employable as a Temporary Mechanic and thereby bending the rules in deference to East Bay's minority status, gave its ap­proval -- but on the condition that Maynard apply for enrollment in NEIEP. Its letter to this effect enclosed an NEIEP application form together with a return envelope. The application form came back to the Local without May­nard's signature, and the Local took this as constituting Maynard's refusal to enter the program and thus as a turn­down of its condition. Maynard did not go to work for East Bay. Granting acquaintanceship with one of the owners of East Bay, and granting that there were conversations involving his potential hire by East Bay, Maynard asserts that he never received a concrete job offer from East Bay. Suggested by the record is that Maynard, but for his obstinacy respecting NEIEP, would have been gain-fully employed in his trade for some of the time since his removal from Dover's payroll. But I think the evidence is too inconclusive to make a finding to this effect.

Both parties' briefs are of great thoroughness, extensively deal with legal principles, and contain many references to court and arbitration decisions. Rather than provide a comprehensive review, I will sketch the arguments which need to be dealt with as I come to the disposition of each of the grievances. The sequence of treatment will be: first the Employer grievance and then the Union grievance.

•

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Initially, however, I enter a series of obser­vations which apply to the case as a whole.

Attached to one brief or the other are four NEII-IUEC arbitration decisions. They deserve separate comment because they are decisions issued under these parties' Agreement.

One of the decisions is the decision dated May 7, 1974, by Milton Rubin. It deals with two work-stoppage situations in Connecticut in early 1973 involving Otis and Local 91, and it exonerated the Local from Otis' damage claims on the grounds that the Local did not order, countenance or encourage the stoppages, took effective and 'success-oriented" steps for the resumption of work, and thus did not violate Article XIV. Particu­larly because the stoppages were in protest against the working of a non-card employee, the Union is here placing great importance on the Rubin decision. I have read the decision with interest, recognize certain parallel facts relative to the present case, and appreciate that Mr. Rubin did not go as far in holding the Union accountable under Article XIV as NEIl had urged. But it cannot follow that the Rubin decision carries determinative precedential weight. The reason is that cases raising the question of whether or not there was a violation of Article XIV cannot help but rise or fallon their facts and that -- as is to be expected -- the Rubin case and the present case are not factually the same.

Both parties have attached the decision of August 18, 1975, by Fred Holly and the decision of December 30, 1975, by Patrick Fisher. Each of the de­cisions deals with a work stoppage (the one had occurred in late 1973, the other in the spring of 1974) in Phila­delphia involving Westinghouse and Local 5. The Union is here relying on these decisions because they found the International as not having "ordered" the stoppages

-26-

and as having taken sufficient remedial steps to be absolved under Article XIV. The Union is saying that the International's posture in these cases was akin to the posture of Local 8 in the present case. Dover and NEIL are relying on the two decisions because the de­cisions did not hesitate to direct reimbursement by the Local for legal expenses incurred by the Employer in dealing with the work-stoppage situations. The dif­ficulty with the Union's reliance on these decisions is similar to what has just been discussed under the Rubin decision: the Westinghouse cases and the present case are simply not the same, and any sort of factual dif­ferences can spell contrary results. And as to Dover's and NEIL's reliance on the Holly and Fisher decisions, the pOint is that the awards for legal expenses were squarely based on a finding that Local 5 had violated Article XIV (just as Mr. Rubin declined to make any sort of damage award for Otis in the light of his finding that Local 91 had not violated Article XIV). On the threshold question -- i.e., the factual question of whether or not the Local violated Article XIV -- there is nothing compellingly similar between either of the Westinghouse cases and the present case.

It is much the same when it comes to the fourth of the attached decisions. The decision, attached to the Dover-NEIL brief, is the decision of January 25, 1990, by Robert Light. Involved was an Article XXII dispute between Dover and Local 21 as to the relative rights of Mechanics and Temporary Mechanics in a lay­off situation. I see nothing in the decision which should guide me in addressing the unusual circumstances which attended Maynard's removal from the payroll.

The next general comment concerns the origin of the present dispute. As shown, the merits of Maynard's

-27-

discrimination charges are not to be addressed in this proceeding. Further, there can be no question that Maynard has every right to sue for what he regards as the discriminatory effects of the Agreement's NEIEP requirements. Two things, however, are equally true. One is that the Local, in not permitting Maynard to work as a Temporary Mechanic, was merely observing the terms of the Agreement. The other is that Maynard's resignation from the Local was not a requisite condition for bringing suit to test the validity of his discrimi­nation charges. The resignation was gratuitous, if not vengeful, and was bound to lead -- as Maynard, a long­time and active Union member, surely understood -- to the incensed reaction of his co-workers. Their retali­atory acts were predictable and, by any appreciation of their conviction in solidarity as the foundation of their collective-bargaining achievements, are wholly under­standable. But the co-workers were not -- so it is emphatically to be stated -- within their rights in doing what they did. The reason is twofold.

One reason concerns Beck. Under it, as noted, Maynard not only had an unqualified right to convert to financial-core status but also has the right therewith to be treated under the Agreement precisely the same as those who adhere to Union membership. It is the law of the land, and, in keeping Maynard from working, the co­workers are bucking the law of the land -- quite as do protesters in other arenas who carry their fervor to the point, say, of blocking ingress to buildings. The other reason goes to the Agreement's grievance procedure. Granted that Maynard's resignation was an event both novel and contrary to cherished traditions. But this cannot change the fact that the question as to the co­workers' obligation to continue to work with him was a

-28-

question involving a working condition and was quite as subject to resolution through the grievance procedure, rather than self-help, as are questions concerning scores of other working conditions. In effect, thus, the co­workers deserted the very Agreement which was built from the solidarity to which they are clinging.

The last general comment goes to what I regard as proper perspectives in dealing with the case. The co­workers indeed walked off the job on April 2 and on April 24, and there is thus no gainsaying the fact that work stoppages occurred. But the stoppages were manifestly of the briefest sort, were accompanied by docking in each in­stance, and resulted in no construction losses for Dover. The losses are confined to the wage payments to Maynard and the legal expenses. Quite as importantly, in bringing the stoppages to an end, Management chose to defer to the co-workers' wishes. Indeed, in the second instance, Manage­ment made an expressly-stated agreement with the co-workers -- the docking and the warning letter in return for the removal of Maynard from the job. And, in subsequently dropping Maynard from the payroll and urging him to locate with another elevator company, Management in effect gave in to the will of the co-workers. As indicated, I accept that there would have been a general walkout had Management re­sorted to severe disciplinary measures. And this, in turn, could well have led to widespread and prolonged stoppages costing untold millions of dollars. In this sense, Manage­ment is to be respected for taking prudent action to the benefit of all concerned. But the fact remains that Management either issued hollow warning letters or re­frained from exercising its prerogative. The reality is that Management adopted the practical route. Dover is changing courses in relying on Article. XIV and related legal principles.

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I now turn to the Employer grievance. The Em­ployer's brief devotes 38 pages to a series of con­tentions which assertedly support the proposition that Article XIV was violated and that the Local holds the responsibility for it. I refer any reader wishing to check on all, or precisely what, the Employer is con­tending to pp. 20-58 of the brief. The summary which I am providing skips two points I have already ad­dressed -- 1) the Union's reliance on the Rubin decision, and 2) the Union's reliance on the litigated result of the bargaining-unit-versus- management-representative question respecting an MIC. Otherwise, I seek to reflect the Employer's position as faithfully as it can be done in a summary of reasonable length. My summary is as follows.

There was here a concerted refusal to work with Maynard and the concerted element of it means that there was a strike. The Union is incorrect in saying -- and was incorrect in repeated statements to its members -­that each individual had a right to decide whether or not to work with Maynard. But, even assuming such indi­vidual right, the concerted exercise of the refusals con­stituted a strike.

The evidence amply shows that a concerted effort took place. Not only did all (save for the two Helpers) at the 600-California job refuse to work with Maynard, but seventeen of seventeen out-of-work Mechanics -- all those who were contacted in response to Dover's telegram of April 25 -- refused to work with Maynard.

The Union's responsbility for the strike may be established through common-law principles of agency. There is ample evidence (the activities of Hopkins and Smith and the message transmitted by Francesconi in con­tacting the out-of-work Mechanics, both to be taken up

-30-

below) establishing the legal basis for holding the Union responsible under the principles-of-agency doctrine.

By various court and arbitration decisions, the Union is also properly held responsible on the basis of the mass action of its members. The evidence is clear that mass action here took place.

In addition to holding the Union responsible under the principles-of-agency and mass-action doctrines, the Union is properly held responsible for its failure to take effective steps to end the concerted refusal to work with Maynard. The Union clearly did not take effective steps: the concerted refusal to work with Maynard stayed in being on April 2 and on April 24, continued with the seventeen out-of-work Mechancis, and was still in being at the time of the arbitration hearing. Indeed, the steps by the Union were transparently two-faced and were there­fore predictably ineffective.

Thus, the Union is not entitled to prevail on the basis of its narrow reading of "ordered" in Article XIV. Rather:

"The language in the Standard Agreement relating to the Union's responsibility for 'ordering' strikes does no more than restate the law that a union is not responsible for wildcat strikes which it truly did not in­stigate, encourage, support or ratify, but, like other labor organizations generally, a local IUEC is responsible for a strike under common law principles of agency, or for the mass action of its members, or for failure to take rigorous and affirmative steps to quell a wildcat strike."

Joint Exhibit 19 provides the Local's Consti­tution and By-Laws. The document shows: that a member of the Executive Board is an officer of the Local (the officers being seven Executive-Board members and nine individuals with various titles); that the Executive

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Board, consisting of the seven 2-year members, the President, the Vice President, and the Business Man­ager, is the Local's policy-making body; that the Ex­ecutive Board acts as a trial board on charges brought against members; that the Executive Board carries the Local's authority between the Board's monthly meetings; and that the Business Manager does not independently make decisions on matters vital to the Local and is subordinate in authority to the Executive Board.

Under federal labor law, a union is responsible for the acts of its agents. Hopkins, a member of the Executive Board and thus an officer of the Local, is -­and was at the time here in question -- such an agent.

Hopkins was present at the Executive-Board meeting in which Maynard's resignation was received and discussed; Hopkins led the walkoffs, one of which came a day after the day which the Executive Board had set as the effective date of Maynard's resignation; and Hop­kins manifestly acted in accordance with the course decided upon by the Executive Board. That Hopkins carried out the will of the Executive Board "is but­tressed by the fact that there is no evidence that the Executive Board, which was involved in the Maynard situ­ation from the very start, ever disciplined or even criticized Hopkins for acting unilaterally, for inter­fering with any other plans the Executive Board may have decided on, or for taking any action inconsistent with the decisions of the Executive Board" and is further buttressed by the fact that "Ellis Smith initi­ally suggested that Maynard be removed from the Cali­fornia Street job site".

The Executive Board can and does impose heavy fines on members. This is known to the members. And, as the Executive Board sits as the trial board and as

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Hopkins is a member of the Executive Board, no rank­and-filer would want to act contrary to Hopkins' wishes.

In many ways, Hopkins exhibited "unerring ef­fectiveness as a Union leader"; he called Rowe on the evening of April 1, knowing what was coming and asking to be relieved as the MIC; he made the "little speech" on April 2, ostensibly allowing the employees to make up their own minds, but emphatically saying that he would not work with a non-member and that he would walk off the job; he walked off and was followed by the other employees -- so that what happened, by his leadership, was precisely what he had predicted on the preceding evening would happen; on April 23, he again accurately predicted that there would be a walkoff on the following morning; on April 24 he made another "little speech" and again led rank-and-filers in walking off rather than work with Maynard; and he brought his influence to bear even away from the 600-California job -- successfully lobbying Doyle against consenting to work with Maynard.*

The concerted effort was aided by another Union officer -- Roy Francesconi, the Business Representative. His explanation in calling the seventeen out-of~work Mechanics was intended to obtain turndowns. Francesconi testified that he "told them that I had a job available performing construction work for Dover in San Francisco. I explained what the job was and the conditions of the job, in other words, that they would be working with Jim Maynard as a helper and again what the rights of Jim Maynard and the members were in regard to this case".

* The Employer names another Mechanic, David Fosson, in this regard, I think it constitutes erroneous lumping with Doyle: in his deposition, Fosson states that he talked to Francesconi, not Hopkins, before deciding not to work with Maynard.

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Francesconi also testified that he "produced two men".

But the fact is that none of the out-of-work Mechanics ever reported to Dover. All of them, by definition,

were individuals seeking to be gainfully employed in their trade. It cannot be doubted that their failure

to show up was due to the condition of having to work with Maynard -- the condition which Francesconi put into their minds.

It is patently not true that the Business Man­ager, another of the Local's officers, sought to end

the concerted effort. To be kept in mind in this re­gard is that Smith appeared at the coffee shop on April 2, suggested to Rowe that the walkoff would end if Maynard were removed from the job, and then applauded

Management's affirmative response. And further to be kept in mind is the rest of the evidence (as reviewed above) demonstrating the involvement of officers of the Local. This is the context in which Smith sent his

"Dear Member" letter. The letter came weeks after Smith's collaboration with Hopkins on April 2; it is made up of carefully couched, post-hoc phraseology; it says nothing about the Union's reponsibility under Article XIV or about disciplinary measures by the Union

against striking members; and, in its reference to the proposition that "any employee has an individual right

to work or not to work with such a person", it echoes the Hopkins make-up-your-own-mind ploy. By any real­istic assessment, it would be ludicrous to accept the

letter as a genuine attempt by the Local to bring the concerted effort to an end. What the Local was engaged in, rather, was the "nod and wink" tactic

which Judge Goldsborough demolished in his famous de­cision covering a massive Mine Workers' walkout.

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I am in disagreement with the Employer's position. The position advances a plausible theory, but I think it contains too much by way of supposition and overstatement to be sustained. My own views are given in the succeeding discussion. They add up to the conclusion that what here happened did not rise to a violation of Article XIV.

First, the comments I have made with respect to the factual nature of Article-XIV cases are not to be taken as dissenting from the approach which Mr. Rubin took. By that approach, the Union has an obligation affirmatively to deal with an unauthorized strike and cannot properly stand by in inaction on the grounds that it did not "order" or "call" the strike.

Second, by appreciation of all that is here involved, there is clear difficulty in equating the present situation to a strike covered by Article XIV. There is no questioning the fact of the 2-hour stoppage on April 2 and the 15-minute stoppage on April 24. Nor, except by closing one's eyes to realities, can it pos­sibly be questioned that the word as to Maynard's resig­nation was out and that a solid front against working with him was therewith instituted. But the solid front, though wrongful in itself and in its fallout on the Em­ployer, was in the first place an action of retaliation against Maynard rather than an action by which to wring a concession from the Employer. Dover's own conduct re­flected this. Dover would scarcely have deferred to the men's wishes had it not seen the men's stance as directed to Maynard and the novel and drastic step of resignation from Union membership. And Dover, had it seen itself as confronted by a strike, would surely have proceeded on a broad front rather than write individual warning letters to the nearly 40 offending employees -- warning

-35-

letters, moreover, which, though they included references to "work stoppage" and "disruption of work" and "or other

conduct which jeopardizes Dover Elevator Company's business interests", identified the misconduct as "insubordination". Further, on taking into account the uniformity of the declin­ations in response to the April 25 telegram and the apparent continuation of the wholesale refusal to work with Maynard at the time of the arbitration hearing -- quite as the Em­ployer urges should be taken into account -- it is plain anomalous to refer to the present situation as a strike. Starting with April 25, and ever since, there simply was no strike or any sort of disruption of Dover's business activities. It is entirely true that seventeen of seven­teen out-of-work Mechanics declined to come to work for Dover -- and patently did so, to repeat, as part of the solid front against working with Maynard. But it is equally true that out-of-work Mechanics are free to decline job offers and that, when these seventeen Mechanics did so, they neither were striking nor caused Dover to be beset by a strike. And as to the time of the arbitration hearing, while it is not to be doubted that the solid front was continuing, the fact is that Dover was not even seeking to place Maynard as a Helper in its employ.

Third, though my reference to a solid front is obviously the equivalent of granting that a concerted effort was in being, I reject the Employer's central thesis that the solid front was engineered by the Local through Hopkins as its agent. The elaboration requires consider­able discussion.

The points which the Employer submits with re­spect to the Local's Constitution and By-Laws are techni­cally accurate pOints. Thus shown is that Hopkins is an officer of the Local. But he is not someone -- quite as in the case of any other member of the Executive Board who runs the Local. Nor, except in terms of technical

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niceties, is he properly viewable as superior in author-ity to either Smith or Francesconi. It is they -- the

Business Manager and the Business Representative, in that order -- who run the Local. The statement will hardly come as a surprise to Dover's Management team in the San Francisco area. When it comes to Union matters, the members of that team deal with Smith and Francesconi. Their transactions with Hopkins are the transactions with the individual who is their MIC, not the transactions with an individual who is on the Local's Executive Board.

Maynard's resignation letter was taken up and considered at the Executive Board's March meeting. Hopkins was present at that meeting. But to proceed from there to the conclusion that the Local's governing body decided that Maynard was not to be worked with and that Hopkins should take charge of the implementing is to make a substantial leap based on sheer deduction. There is no evidence to that effect. And I think it is at least as plausible to conclude: that the meeting ended with no disposition on the Maynard matter other than to accept the resignation as, and as of when, Maynard had requested; that Smith and Francesconi then consulted with each other and with the Local's lawyer (Smith's reply letter to Maynard has the ring of legal draftsmanship); that Smith and Francesconi, anticipating the members' resentment and caught in a pol­itically-tricky predicament, chose the middle course which has been theirs from the beginning and all along -- i.e., the middle course by which they sought to give recognition both to Maynard's financial-core right to work and to any individual's right to refuse to work with Maynard (more on this below); and that Hopkins took it upon himself to be the first, and in"open declaration, not to work with Maynard. The conspiratorial theory advanced by the Employer, more­over, is weakened by the fact that Smith and Hopkins had

-37-

twice been political rivals. Smith would not likely have entrusted Hopkins with an implementing role in a conspira­

torial undertaking. Hopkins plainly was the leader in the men's

refusa1-to-work stance on April 2 and on April 24. And, though I read the evidence as showing that the phone con­versation between Doyle and Hopkins was initiated by Doyle, the Employer is on sound grounds in arguing that Hopkins had a part in Doyle's turndown of Bush's He1per­trading request and that Hopkins thus spread his in­fluence beyond the 600-Ca1ifornia job. But it is also true that Hopkins' words and deeds were reflective of the fellow employees' already-held sentiments -- see my earlier comment as to what centrally emerges from a reading of the depositions, and see Bush's testimony as to his first conversation with Doyle: "Joe wasn't too thrilled about it". Rather than instigate or direct, Hopkins gave a shove in the direction of the popular will. But, be this as it may, I do not think that Hopkins is properly viewable as having been the Local's spokesman. The Employer is making far more than should be made of the fact that Hopkins accurately predicted the wa1koff on both occasions: Maynard's resignation and re-resignation were surely not tightly-held secrets by the Local's governing body, and there was nothing surprising in the men's reaction. And, both as to April 2 and as to April 24, Smith is reliably reported -- the testimony is Manage­ment's -- as having taken the position that Maynard had the right to work. As to April 2, there is what Bush told Doyle: "Jim Maynard just resigned from the local. He's become a financial core member. He called Ellis. It's legal ... n. And as to April 24, there is what Bush told the group in the shack: "Guys, you got to work with him. You don't have to listen to me. You can call Ellis Smith

-38-

and he'll tell you the same thing " . .. . back to Hopkins, it seems to me that he

Thus, to come

is correctly viewable as someone who happened to be assigned to a job to which Maynard was also assigned and who is a militant unionist with leadership attributes. The record speaks for the leadership attributes -- Hopkins' MIC status and his acknowledged competence in running big jobs. And Management itself seems not to have seen him as any­thing more than a militant, albeit misguided, unionist. Had it seen him as Local spokesman in strike instigation or as involved in the sinister role now contended for, Management would hardly have kept him on as the MIC.

Last as to Hopkins, I reject as plain farfetched the Employer's reliance on the fact that the Local's trial boards are composed of Executive-Board members. I have granted Hopkins' leadership posture. But, by any reasonable reading of the depositions, the fellow employees acted from conviction -- not as docile sheep.

Fourth, I dissent from the Employer's contention respecting Francesconi. Francesconi admits that he ex­plicitly told the seventeen out-of-work Mechanics that acceptance of the opening would mean having to work with Maynard. Two things, however, are true. One is that Maynard had manifestly become a cause cel~bre by April 25 and that Francesconi would therefore have been grossly misleading had he failed to mention the requirement. The other is that Dover's telegram identified the opening as involving the requirement -- "a qualified Mechanic to work with Jim Maynard". There is no warrant to view Francesconi as a messenger who designedly volunteered a piece of information to obtain turndowns.

Fifth and last, I am similarly unconvinced by the Employer's charges respecting Smith. The asserted attributions will be dealt with rather extensively

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because Smith is the Business Manager and, particularly, because the Employer urges dismissal of his "Dear Member"

letter as an act of disingenuousness. Smith was at the job and at the coffee shop on

the morning of April 2. I do not view this as either surprising or damaging, given the fact that the morning of April 2 was the first working occasion following the effective date of Maynard's resignation. A novel event, likely spelling trouble, was occurring and, if anything, Smith should have been where he was to prevent an out­of-control situation. Smith told Rowe that the men would return to work if Maynard were removed from the job. But, as Rowe understood, Smith was transmitting what the men were saying. He indulged in a practicality -- as did Dover in its response. cessful talk with Doyle

When Bush returned from his suc­and therewith told Smith that

Maynard was being removed from the job, Smith said "that's a good move". But, given the circumstances, I do not think that this is properly interpreted as having been a strike-endorsing remark. Indeed, it would have been indecent for Smith not to respond to Bush in some sort of applauding fashion. Moreover, it is to be recalled that Smith was taking the position -- as Bush knew, for he had said so to Doyle a few minutes earlier -- that Maynard had the right to work.

The "Dear Member" letter was issued after the Employer grievance had been filed. And, as in the case of the Local's letter accepting Maynard's resignation, one may legitimately suspect that the "Dear Member" letter was drafted by the Local's lawyer. Both pOints permit the inference that the Local was engaged in pro­tecting its legal flank. I am assuming that this was part of the Local's purpose. But it does not follow that the letter constitutes disingenuousness and is to

-40-

be dismissed as a mere "nod and wink" maneuver. I think the contrary is true. As noted, the letter is wholly re­

flective of the Local's posture from the beginning and ever since. It makes no change to suit legal sufficiency, and it makes no change to appease membership. It reiter­ates the Local's consistent threefold position, to these effects: there is no denying an individual right to decline to work with Maynard, but Maynard's financial­core status does not affect his right to work, and you are subject to discharge if you refuse a supervisory directive to work with Maynard. The letter was dissemi­nated, and its message was otherwise transmitted, to the membership. It did not produce positive results. But it could not have produced positive results so long as Dover was content to keep Maynard on its payroll without receiving work from him and so long as Dover, thereafter, chose not to force the issue and, instead, urged Maynard to find work with another elevator company.

The letter's reference to an individual right not to work with someone in financial-core status is a statement of the obvious and can thus be seen as a gratuitous statement -- and, in turn, as a statement of having-it-both-ways purpose. It is obviously true and it hardly needs to be stated, in other words, that ours is not a nation of involuntary servitude.

Though the matter has given me pause, I have concluded that it does not suffice to sustain the "nod and wink" contention. One reason is that, absent an allowance for the exercise of the right of individual choice, the Local would have sounded like an order­issuing agency. I agree with the Union that the ordering in this case was for Dover, not the Local, to resort to. The other reason is that the individual-choice allowance was squarely coupled with the warning that a refusal to

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obey a supervisory directive to work with Maynard would constitute a dischargeable offense -- and, indeed, would

add up to a nongrievable quit. This, coming from a union, was itself the strongest sort of warning. And it was every bit as strong as that contained in Dover's warning letters.

On all these grounds, then, I am ruling against the Employer on the asserted violation of Article XIV. I see the Employer's remedial requests as founded in that asserted violation, not as standing independently, and I thus deny the remedial requests as well.

I now turn to the Union grievance. I think it requires but brief discussion.

To recapitulate, the Union invokes Article XXII and submits that Maynard was improperly dropped from Dover's payroll because paragraph 2 barred his layoff and paragraph 4(e) barred his termination. As shown, there is no dispute on the factual underpinning in either of these contentions.

Unquestionably, thus, Maynard's retention rights under Article XXII were violated coincident with his re­moval from Dover's payroll. But the Union is not asking for a declaration to this effect. It is saying that Dover -- and Dover alone -- committed the violation and should be directed to make Maynard whole for it.

The Union pictures a number of options as al­ternative post-July·S courses by which Dover assertedly could have put Maynard to work. I dismiss them in out­of-hand fashion as unpersuasive. And, in the light of what here in fact happened, coupled with Dover's announced and clear willingness to put Maynard to work upon the mere

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furnishing of a Mechanic willing to work with him, I see no proper choice but to overrule the Union's claim. To grant the grievance would plainly be to overlook the men's part -- their uniform resistance to working with Maynard -- in the frustration of Maynard's retention rights. And if, alternatively, the Union were taken as saying that Dover was obligated to stay with the arrange­ment it instituted by its own volition -- i.e., keeping Maynard on the payroll without receiving work from him I think the appropriate answer lies in the Union's own punchline with mere reversed juxtaposition of the two parties: "In effect, the [Union] is asking the Arbitrator to take this entire matter and dump it in the [Company's] 1 a p . "

I thus deny the Union grievance.

What, then, is to be done as to Maynard's rights? Arguably, with the denial of both grievances, the arbitral function stands as completed. In my opinion, however, the contrary is true.

Maynard's retention rights under Article XXII are in question in this proceeding and have been found to have been violated. Indeed, the finding is nothing more than confirmation of what is concededly true. Thus presented at this point is the fact of the violation and the rejection of the claim which the Union is making. To let it go at that is to end up with a clearly anomalous result. I think it is for me to deal with the anomaly. And, presumably, I am authorized to fashion an appropri­ate remedy for the violation.

As signalled by all I have found, my judgment is that the case comes down to a classic instance of shared

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culpability: the men's uniform and persistent refusal to work with Maynard, on the one hand, and Dover's failure to press the issue and its subsequent abandonment of Mayn­ard's rightful place as a Dover employee, on the other. Lengthy elaboration should not be necessary. In refusing to work with Maynard, the men formed a solid front, certainly understood that he could not be put to work except by working with a Mechanic, and thus kept him from working with knowing and full effectiveness. And they did this despite the fact that they were told, time and again and by both the Union and the Employer, that Maynard's right to work was unaffected by his assumption of the financial-core status. But Dover in effect let the men get away with it. Dover informed the men of the impropriety of their stance and warned them that they were risking dis­charge if they persisted in it. But, though the persistence was clear, Dover did no following-through on the warnings. Instead, it distanced itself from the problem by telling Maynard to go elsewhere for employment.

I am thus holding the men and Dover equally account­able for whatever Maynard is owed in rectification of the violation of his employment rights. For administrative purposes, however, I am directing the Local to pay Maynard the men's half of the sum. Whether, how, or to what ex-tent the Local assesses the men to defray the i-share cost does not concern me. Dover, of course, is being made to pay Maynard the other half of the sum. Both parties are directed to make payment without unjustifiable delay.

There may be questions as to proper offsets against the sum -- earnings from other gainful employment, unemployment compensation, and the like. And I leave the parties free to contend for offsetting based on employ­ment opportunities not reasonably passed up by Maynard (as may have been the case with respect to East Bay).

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Offsetting questions are to be addressed with Maynard's participation.

The back-pay directive assumes that the men will be persuaded, currently, to change their ways so as to permit the resumption of work by Maynard. If the con­trary happens, the i-share payments in liability for continued wage losses sustained by Maynard are to stay in effect -- except as one side or the other might suc­cessfully assert that the other's conduct is such as to switch the burden of payment to that side alone.

I am retaining jurisdiction for two purposes. One is the resolution of any dispute concerning the above­discussed offsetting questions. The other is the reso­lution of any dispute concerning the just-discussed potential for departure from the i-share assessment. Either party is free to return the case to me for either or both of these purposes.

I close with the following observation. There is every good reason to wish that Maynard would reassume full membership in the Local while pursuing -- and beyond that, whatever its outsome -- his discrimination suit. But, as the men must understand, he simply cannot be required to do so.

DECISION

The case is disposed of as given in the Opinion.

Dated: August 26, 1991

Rolf Valtin Arbitrator