Monson Trucking

National Labor Relations Board - Board Decisions

Oct 31, 1997

324 N.L.R.B. 933 (N.L.R.B. 1997)

933
324 NLRB No. 149
MONSON TRUCKING, INC.
1 There is no allegation that the union-security clause was unlaw-
ful, and the legality of the clause was therefore not litigated or even
addressed by the judge or by the parties at any time during these
proceedings. Nevertheless, our concurring colleague has used the oc-
casion of our issuance of this decision to rule on the facial validity
of this clause and all other similarly worded clauses. See also his
dissenting opinion in Teamsters Local 443 (Connecticut Limousine
Service), 324 NLRB 633, 638 fn. 1 (1997). Accordingly, we decline
to pass on the issues which our colleague decides in his concurrence
until they are presented for decision in an appropriate adjudicatory
or rulemaking proceeding.
2 All subsequent dates are 1990 unless otherwise indicated.
3 Monson mailed the notice on August 31, and Anderson received
it on September 4.
Monson Trucking, Inc. and Calvin Anderson
General Drivers Union, Local No. 160, affiliated
with International Brotherhood of Teamsters,
AFL–CIO and Calvin Anderson. Cases 18–CA–
11466 and 18–CB–3023
October 31, 1997
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On March 18, 1992, Administrative Law Judge
David G. Heilbrun issued the attached decision. The
General Counsel filed exceptions and a supporting
brief; Respondents Monson Trucking, Inc. (Monson or
the Employer) and General Drivers Union, Local No.
160, affiliated with International Brotherhood of Team-
sters, AFL–CIO (Local 160 or the Union) filed an-
swering briefs; and the General Counsel filed a reply
brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions only to the extent con-
sistent with this Decision and Order.
The General Counsel excepts to the judge’s dismis-
sal of the consolidated complaint, which alleges that
Monson violated Section 8(a)(1) and (3) of the Act by
discharging Charging Party Calvin Anderson, and that
the Union violated Section 8(b)(1)(A) and (2) by caus-
ing Monson to discharge Anderson, purportedly for
nonpayment of the required union initiation fees and
dues. The General Counsel contends, inter alia, that the
Union’s request that Monson discharge Anderson, and
Monson’s discharge of and initial failure to reinstate
Anderson, were unlawful because Anderson timely
complied with the Union’s demand for payment of the
dues and fees. We find merit in the General Counsel’s
contentions concerning the Union’s conduct and Mon-
son’s failure to reinstate Anderson, but we agree with
the judge that Monson’s initial discharge of Anderson
was lawful.1
The essential facts are not in dispute. Anderson
began his employment with Monson in July 1989, was
briefly terminated and then rehired in late August
1989, and worked for Monson until his discharge on
August 31, 1990.2 The collective-bargaining agreement
between the Union and Monson included a union-secu-
rity provision requiring, as a condition of employment,
that employees become and remain members in good
standing of the Union on and after their 61st day of
employment. During most of his employment at Mon-
son, however, Anderson failed to remit to the Union
the required initiation fees and monthly dues. Ander-
son responded to a February 22 union notice and re-
quest for payment of initiation fees and dues by remit-
ting a check for only 1 month’s dues, which the Union
did not cash, and he did not retrieve a June 12 cer-
tified letter also requesting payment. By letter dated
August 23 and directed to Monson, the Union in-
formed the Employer of Anderson’s delinquency and
requested that he be terminated unless, within 7 days
of its receipt of the notice, Monson was notified that
Anderson had made arrangements to pay his dues and
initiation fees. A copy of the letter was sent to Ander-
son, with a handwritten notation specifying that he
owed $150 in initiation fees and $48 in dues.
On receipt of the Union’s request, Monson’s person-
nel and safety manager, David Hoven, telephoned An-
derson, who assured him that he would satisfy his fi-
nancial obligations to the Union. Anderson subse-
quently mailed a check for $198 to the Union, which
received it on August 29, before the payment deadline
set by the Union. Union President Terry Johnson, un-
aware that Anderson faced discharge for nonpayment
of dues, left the check for posting by the secretary-of-
fice manager, Dorothy Marko. The check came to
Marko’s attention on August 31, when she undertook
her weekly posting of checks. Knowing about Ander-
son’s potential discharge, Marko telephoned Monson,
but hung up after being put on hold for a few minutes.
Marko did not call Monson again until Tuesday,
September 4, following the Labor Day holiday. Marko
informed Hoven that Anderson had made the required
payment, but Hoven stated that the discharge notice
had already been issued.3 Later that day, Union Sec-
retary-Treasurer James Schenk contacted Hoven and
asked that Anderson be returned to his position. Hoven
informed him that only Mark Monson could put An-
derson back to work, and Mark Monson did not return
Hoven’s call. On September 11, Monson allowed An-
derson to come back to work, but rehired him as a
new probationary employee. Monson ultimately re-
stored Anderson’s seniority retroactively, but Anderson
lost a 4-cent-per-mile pay differential and certain
fringe benefits during the interim period.
In dismissing the complaint, the judge relied on
I.B.I. Security, 292 NLRB 648, 649 (1989), in which
the Board held that ‘‘a union’s failure to fully comply
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934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 We note that, because the Union received Anderson’s payment
on August 29, it is unnecessary to consider whether the 7-day period
set by the Union expired on August 30 or 31. In addition, we do
not find it significant that the Union’s request for $198 included
only 2 months’ dues, even though the union-security clause would
have entitled the Union to receive dues for approximately 10
months. In view of the Union’s other conduct in this case, we find
it unnecessary to pass on the General Counsel’s contention that the
self-executing form of the notice issued by the Union is in itself un-
lawful.
with the notice requirements [will be excused] when it
is shown that the employee involved has ’willfully and
deliberately sought to evade his union security obliga-
tions’ [citing Teamsters Local 30 (Ralph’s Grocery),
209 NLRB 117, 125 (1974)].’’ The judge found that
Anderson had deliberately and willfully evaded his fi-
nancial obligations to the Union by his failure to pay
the necessary fees and dues based on the Union’s pre-
vious notices, and his failure to even claim the second
notice at the post office. The judge further found that
Anderson knew the Union had not collected any
money from him by the end of August, because his
March 7 check had not been cashed and the $198 pay-
ment in August was merely ‘‘illusory’’ in that it was
not accompanied by Anderson’s social security num-
ber, which would be used to record the payment in the
Union’s computer system. Moreover, the judge relied
on prior cases in which the Board held ineffective a
last-minute payment of dues and fees after notice to
the employee. See, e.g., General Motors Corp., 134
NLRB 1107 (1961). With respect to Monson, the
judge found that the Employer merely carried out its
contractual obligation to discharge, at the Union’s re-
quest, employees who have not paid the established
fees and dues. For the reasons discussed below, we
disagree with the judge’s analysis.
A. The Alleged Violations by the Union
Section 8(b)(2) of the Act establishes that it is an
unfair labor practice for a union
to cause or attempt to cause an employer to dis-
criminate against an employee in violation of sub-
section (a)(3) or to discriminate against an em-
ployee with respect to whom membership in such
organization has been denied or terminated on
some ground other than his failure to tender the
periodic dues and the initiation fees uniformly re-
quired as a condition of acquiring or retaining
membership[.]
Section 8(a)(3), prohibiting employer discrimination
against employees on the basis of union activities, in-
cludes a proviso permitting employers to enter into
union-security agreements with the bargaining rep-
resentatives of their employees but stating in relevant
part that
no employer shall justify any discrimination
against an employee for nonmembership in a
labor organization . . . . (B) if he has reasonable
grounds for believing that membership was denied
or terminated for reasons other than the failure of
the employee to tender the periodic dues and the
initiation fees uniformly required as a condition of
acquiring or retaining membership[.]
In accordance with these provisions, a union may
seek and an employer may carry out the discharge of
an employee who fails to meet the obligations of a ne-
gotiated union-security clause. The Board has long
held, however, that ‘‘the extremity of the penalty
against the employee for nonpayment of dues requires
that it should not be sanctioned unless as a practical
matter the Union has taken the necessary steps to make
certain that a reasonable employee will not fail to meet
his membership obligation through ignorance or in-
advertence but will do so only as a matter of con-
scious choice.’’ (Emphasis in original.) Conductron
Corp., 183 NLRB 419, 426 (1970). Thus, before a
union may seek the discharge of an employee for fail-
ure to comply with financial obligations to the union
under the union-security clause, the union must inform
the employee of the amount owed, the method used to
compute that amount, when such payments are to be
made, and the fact that discharge will result from fail-
ure to pay. I.B.I. Security, supra at 649. Moreover, the
union must also afford the employee a reasonable op-
portunity to make payment following adequate notice,
before requesting his discharge. Carpenters Local 296
(Acrom Construction), 305 NLRB 822, 827 (1991).
The Union here did take steps to inform Anderson
of his delinquency concerning his financial obligations.
As a preliminary matter, we find, contrary to the
judge, that Anderson’s failure to satisfy his dues obli-
gation in response to the Union’s February and June
notifications is of limited significance in resolving the
issues presented here. The Union’s August 23 letter
did not request Anderson’s immediate discharge based
on his failure to comply with the earlier notices, but
instead set a new deadline for payment. The Employer
also relied on this latest deadline in executing the dis-
charge. Therefore, we find that the proper focus of our
consideration must be the August 23 notice and subse-
quent events.
Viewing the conduct of Anderson and the Union
with that focus, we find two facts determinative: that
Anderson fully satisfied his financial obligations within
the deadline set by the Union, and that the Union
failed timely to withdraw its request for Anderson’s
discharge despite Anderson’s compliance with the
Union’s demands.
The August 23 notice, as noted above, set a deadline
for Anderson to fulfill his obligation to pay the initi-
ation fees and dues, and Anderson’s copy specified the
amount required.4 The letter also indicated that if An-
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935MONSON TRUCKING, INC.
5 The Union’s apparent lack of animus in its conduct does not alter
this result. In H. C. Macaulay Foundry Co., 223 NLRB 815, 818
fn. 9 (1976), enfd. 553 F.2d 1198 (9th Cir. 1977), the Board found
that the respondent union had violated Sec. 8(b)(2) and (1)(A) even
though it had acted in good faith and had sought the employee’s re-
instatement when it became aware of the misunderstanding leading
to the employee’s termination. Accordingly, the Union here is ac-
countable for its errors and their consequences on Anderson’s em-
ployment status.
6 This case is thus distinguishable from Conductron, supra at 427–
428, and Macaulay Foundry, supra at 818–819, in which the Board
Continued
derson joined the Union and remedied his delinquency
within the 7-day period, the Union intended to with-
draw its request for his termination.
Anderson did not fail to meet his financial obliga-
tion ‘‘as a matter of conscious choice,’’ as con-
templated in Conductron, supra, or even through igno-
rance or inadvertence. Rather, Anderson made a con-
scious choice to satisfy the Union’s demand, and did
so effectively with a payment received by the Union
on August 29, prior to the prescribed deadline.
We find, contrary to the judge, that Anderson’s fail-
ure to provide his social security number in order to
accommodate the Union’s computer system does not
undermine the effectiveness of his payment. Under
Section 8(b)(2), a union may not cause or attempt to
cause an employer to discharge an employee for any
reason other than the employee’s ‘‘failure to tender’’
the dues and fees required under the union-security
clause. There is no claim that the check submitted by
Anderson was not valid, or that the Union could not
have cashed or deposited his check without his social
security number. The record shows only that the Union
needed the social security number to record the pay-
ment in its computer system. Contrary to the judge, we
find that the absence of a social security number did
not render the payment ‘‘illusory,’’ and that regardless
of whether or not the Union was able to record the
payment in its computer system, Anderson’s submis-
sion of the check was a sufficient tender which elimi-
nated the only ground on which the Union could have
lawfully obtained his discharge. We note further that
Union Officer Schenck admitted at trial that he consid-
ered the payment to be sufficient and that it was for
that reason that he attempted to call off Anderson’s
discharge.
In addition, we disagree with the judge’s finding
that Anderson’s payment was insufficient because it
was tendered at the last minute. In making this finding,
the judge relied on General Motors, supra. We find
General Motors inapposite because in that case the
employee did not meet the deadline imposed by the
union, but rather attempted to remedy his dues delin-
quency between that date and the effective date of his
termination. Anderson, in contrast, complied with the
Union’s deadline. Precisely when he paid within the
prescribed period is immaterial.
We find that, following Anderson’s timely and ef-
fective payment of the amount demanded by the
Union, the Union was no longer entitled to seek his
discharge on the basis of his ‘‘failure to tender the
periodic dues and initiation fees uniformly required as
a basis of membership’’ under Section 8(b)(2), and
that the Union’s failure to withdraw its request con-
stitutes a violation of Section 8(b)(1)(A) and (2).5
We further find that the Union violated Section
8(b)(1)(A) by failing to provide Anderson notice of his
right under Communications Workers v. Beck, 487
U.S. 735 (1988), to object to paying dues and fees for
union activities not germane to collective bargaining.
The complaint alleges that the Union failed to provide
such notice, and the Union does not assert that it was
provided. Instead, the Union contends that Anderson
did not request a breakdown of expenditures under
Beck and that the General Counsel cited no case hold-
ing that the Union must offer financial core member-
ship in the absence of a request by the employee. The
judge found that, because Anderson did not request to
become a financial core member, the Union was not
required to offer a breakdown of chargeable and non-
chargeable expenses. The Board, however, has held
that a union is obligated to provide notice of Beck
rights when or before it seeks to obligate an employee
to pay fees and dues under a union-security clause.
California Saw & Knife Works, 320 NLRB 224, 233–
234 (1995). Accordingly, the Union here acted unlaw-
fully in seeking Anderson’s discharge without provid-
ing notice of his Beck rights.
B. The Alleged Violations by Monson
Turning to the allegations against Monson, we agree
with the judge that the Employer’s initial termination
of Anderson simply constituted the required compli-
ance with the union-security clause negotiated by the
parties. Under the proviso to Section 8(a)(3), as set
forth above, an employer may agree to a union-secu-
rity provision establishing financial obligations to the
union as a condition of employment, and may take ac-
tion against an employee for noncompliance with these
obligations, unless the employer ‘‘has reasonable
grounds for believing that membership was denied or
terminated for reasons other than the failure of the em-
ployee to tender the periodic dues and the initiation
fees uniformly required . . . .’’ In view of the judge’s
finding that Anderson did not inform Monson that he
had paid the delinquent fees and dues, we find that
Monson had no reasonable grounds to believe that An-
derson had paid or that the Union was requesting his
termination for any reason other than his failure to ten-
der fees and dues. Under these circumstances, Monson
had no obligation to make further inquiry of the Union
before discharging Anderson.6 Therefore, we find that
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936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
found that the employees’ protests concerning their dues status were
sufficient to furnish the employers reasonable grounds to believe that
the unions’ requests were improper.
7 The consolidated complaint does not separately allege that Mon-
son unlawfully failed to rescind the discharge and fully reinstate An-
derson. We find, however, that this conduct constitutes an unlawful
continuation of the discharge alleged in the complaint., and that the
matter was fully litigated at the hearing. We also note that the
charge filed by Anderson against Monson alleges that Monson ‘‘ter-
minated and/or demoted its employee Calvin Anderson to the status
of a new employee.’’
8 Monson asserts that the Union’s liability is not tolled 5 days after
its request for Anderson’s reinstatement because the Union did not
cash Anderson’s check for the required dues and fees until February
1991. Any issues or delay related to the cashing of the check, how-
ever, do not negate the Union’s September 4 request that Monson
bring Anderson back to work, and we find that Monson is solely lia-
ble for the continuation of the discharge after the Union’s request.
9 The complaint allegations are limited to the Union’s attempting
to cause and causing Monson to discharge Anderson. The complaint
does not allege a failure to provide nonmember employees generally
with notice of their Beck rights. Accordingly, the remedy addresses
the violations as alleged. See Production Workers Local 707 (Mavo
Leasing), 322 NLRB 35 (1996).
Monson acted within the proviso to Section 8(a)(3)
when it first discharged Anderson.
Monson lost the protection of the proviso, however,
when it failed to rescind the discharge upon learning
from the Union that Anderson had satisfied the
Union’s demand for payment.7 As described above,
Monson’s termination notice to Anderson was mailed
on Friday, August 31, and received by Anderson on
Tuesday, September 4, the day after the Labor Day
holiday. On that same day, September 4, Marko and
Schenk informed Monson that Anderson had in fact
paid his delinquent dues and asked that Anderson be
reinstated, but Monson initially failed to do so. Letting
the discharge stand despite the knowledge that it could
not be based on Anderson’s failure to pay required
dues and fees, Monson could no longer rely on the
proviso to justify its action. Moreover, the record does
not demonstrate that Anderson’s reinstatement would
have caused a great inconvenience for Monson or that
his job was no longer available, particularly in view of
the immediate notification of the error and Anderson’s
scheduled vacation during that week. In fact, Monson
did reinstate Anderson on September 11, but accorded
him the status of a new hire serving a probationary pe-
riod and earning lower pay and benefits than he had
previously enjoyed. We conclude that Monson’s initial
failure to reinstate Anderson and its subsequent failure
to employ him at his former pay and benefits con-
stitute unlawful discrimination against Anderson in
violation of Section 8(a)(3) and (1). Conductron,
supra; Macaulay Foundry, supra; GreenTeam of San
Jose, 320 NLRB 999 (1996).
REMEDY
Having found that the Union violated Section
8(b)(1)(A) and (2) and that Monson violated Section
8(a)(3) and (1), we shall order that they cease and de-
sist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. Because
Anderson has been reinstated and later restored to his
former seniority, we shall order make-whole relief to
compensate Anderson for the temporary loss of senior-
ity, pay, and benefits between the date of his discharge
and the date he was restored to his former status. We
shall order the Union to make Anderson whole for any
loss of wages and other benefits he may have suffered
as a result of the discrimination against him, less in-
terim earnings, between the date of his discharge and
September 4, when the Union requested Monson to re-
instate Anderson. We shall order the Union and Mon-
son jointly and severally to make Anderson whole for
any loss of wages and other benefits he may have suf-
fered as a result of the discrimination against him, less
interim earnings, between September 5 and 9, the 5
days following the Union’s request for Anderson’s re-
instatement. Westwood Plumbers, 131 NLRB 562,
562–563 (1961). Monson shall be solely liable for any
loss of wages and other benefits incurred by Anderson
after that date, including, for the period following his
reinstatement, the difference between the pay and ben-
efits that Anderson would normally have received in
the absence of his discharge and the amount he actu-
ally received.8 The amount due and interest shall be
computed in accordance with the formulas in F. W.
Woolworth Co., 90 NLRB 289 (1950), and New Hori-
zons for the Retarded, 283 NLRB 1173 (1987). In ad-
dition, we shall order the Union to notify Anderson of
his Beck rights.9 Finally, we shall order the Union to
provide Anderson with the reimbursement remedy set
forth in Rochester Mfg., 323 NLRB No. 36 (Mar. 12,
1997).
CONCLUSIONS OF LAW
1. Monson Trucking, Inc., is an employer engaged
in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. General Drivers Union, Local No. 160, affiliated
with International Brotherhood of Teamsters, AFL–
CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By attempting to cause and causing Monson to
discharge Calvin Anderson, the Union has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(b)(1)(A) and (2) of the Act.
4. By seeking to obligate Calvin Anderson under the
union-security clause of the collective-bargaining
agreement without having notified him of his rights
under Communications Workers v. Beck, 487 U.S. 735
(1988), to pay fees and dues only for activities ger-
mane to the Union’s role as collective-bargaining rep-
resentative, the Union has engaged in and is engaging
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937MONSON TRUCKING, INC.
10 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
in unfair labor practices within the meaning of Section
8(b)(1)(A) of the Act.
5. By failing to rescind the discharge of Calvin An-
derson and subsequently reinstating him to a position
of lower seniority, pay, and benefits, Monson has en-
gaged in and is engaging in unfair labor practices with-
in the meaning of Section 8(a)(3) and (1).
ORDER
A. The Respondent, Monson Trucking, Inc., Red
Wing, Minnesota, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Encouraging membership in General Drivers
Union, Local No. 160, affiliated with International
Brotherhood of Teamsters, AFL–CIO, or in any other
labor organization of its employees, by discriminating
in regard to their hire or tenure of employment or any
term or condition of employment, except to the extent
permitted by the proviso to Section 8(a)(3) of the Act.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Jointly and severally with Respondent General
Drivers Union, Local No. 160, affiliated with Inter-
national Brotherhood of Teamsters, AFL–CIO, make
Calvin Anderson whole for any loss of earnings and
other benefits he may have suffered as a result of the
discrimination against him during the period from Sep-
tember 5 through September 9, 1990, in the manner set
forth in the remedy section of this decision.
(b) Make Calvin Anderson whole for any loss of
earnings and other benefits he may have suffered as a
result of the discrimination against him during the pe-
riod from September 10, 1990, until the date he was
restored to his former seniority, pay, and benefits, in
the manner set forth in the remedy section of this deci-
sion.
(c) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful con-
tinuation of Calvin Anderson’s discharge after Septem-
ber 4, 1990, and within 3 days thereafter notify the
employee in writing that this has been done and that
the discharge will not be used against him in any way.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(e) Within 14 days after service by the Region, post
at its Red Wing and Virginia, Minnesota facilities cop-
ies of the attached notice marked ‘‘Appendix A.’’10
Copies of the notice, on forms provided by the Re-
gional Director for Region 18, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facili-
ties involved in these proceedings, the Respondent
shall duplicate and mail, at its own expense, a copy of
the notice to all current employees and former employ-
ees employed by the Respondent at any time since
September 13, 1990.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
B. The Respondent, General Drivers Union, Local
No. 160, affiliated with International Brotherhood of
Teamsters, AFL–CIO, Rochester, Minnesota, its offi-
cers, representatives, and agents, shall
1. Cease and desist from
(a) Causing or attempting to cause Monson Truck-
ing, Inc. to discriminate against Calvin Anderson or
any other employee in violation of Section 8(a)(3) of
the Act.
(b) Failing to notify Calvin Anderson of his rights
under Communication Workers v. Beck, 487 U.S. 735
(1988), when it first seeks to obligate him to pay fees
and dues under a union-security clause.
(c) In any like or related manner restraining or co-
ercing employees of Monson Trucking, Inc., in the ex-
ercise of the rights guaranteed them by Section 7 of
the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make Calvin Anderson whole for any loss of
earnings and other benefits he may have suffered as a
result of the discrimination against him during the pe-
riod from August 31 through September 4, 1990, in the
manner set forth in the remedy section of this decision.
(b) Jointly and severally with Respondent Monson
Trucking, Inc., make Calvin Anderson whole for any
loss of earnings and other benefits he may have suf-
fered as a result of the discrimination against him dur-
ing the period from September 5 through September 9,
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938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 See fn. 10, supra.
1 See my dissenting opinion in Teamsters Local 443 (Connecticut
Limousine Service), 324 NLRB 633 (1997).
2 124 F.3d 788 (1997), revg. Paperworkers Local 1033
(Weyerhaeuser Paper Co.), 320 NLRB 349 (1995).
Contrary to my colleagues, I only ‘‘state my view’’ that ‘‘[i]n
some respects, I am in accord with the Court of Appeals for the
Sixth Circuit in Buzenius v. NLRB.’’ Since the issue is not explicitly
before us, it cannot be said that I ‘‘rule’’ on this matter.
3 Buzenius, supra at 792 (citing Pattern Makers, 473 U.S. 95, 104–
106 (1985)).
4 270 NLRB 1330 (1984).
5 473 U.S. 116–117.
6 473 U.S. at 114–115.
7 420 U.S. 251, 266 (1975), and cases cited therein.
8 Interestingly, in the context of Sec. 8(f) of the Act, the Board
had shifted its views, the Court deferred to the Board’s then current
view, and, after the Court’s decision, the Board announced a dif-
ferent interpretation intended to better serve the statutory policies of
industrial stability and employee free choice in the construction in-
dustry. Thus, in NLRB v. Iron Workers Local 103 (Higdon Contract-
ing), 434 U.S. 335 (1978), the Court rejected the union’s assertion
that the Board’s construction of Sec. 8(f) was not entitled to def-
erence because the Board had shifted its position. The Court ob-
served that ‘‘[a]n administrative agency is not disqualified from
changing its mind; and when it does, the courts still sit in review
of the administrative decision and should not approach the statutory
construction de novo and without regard to the administrative under-
standing of the statute.’’ Id. at 351.
1990, in the manner set forth in the remedy section of
this decision.
(c) Notify Calvin Anderson of his rights under Com-
munication Workers v. Beck, supra, including that he
has the right to be or remain a nonmember and that
nonmembers have the right to object to paying for
union activities not germane to the union’s duties as
bargaining agent, and to obtain a reduction in fees for
such activities. In addition, this notice must include a
description of any internal union procedures for filing
objections. If Anderson, with reasonable promptness
after receiving this notice, elects nonmember status and
makes Beck objections with respect to one or more of
the accounting periods covered by the complaint, proc-
ess his objections, nunc pro tunc, as it would otherwise
have done, in accordance with the principles of Cali-
fornia Saw & Knife, 320 NLRB 224 (1995), and reim-
burse Anderson for the reduction in his dues and fees,
if any, for nonrepresentational activities that occurred
during the accounting period or periods covered by the
complaint in which he has objected.
(d) Within 14 days from the date of this Order, re-
move from its files, and ask the Employer to remove
from the Employer’s files, any reference to the unlaw-
ful discharge, and within 3 days thereafter notify the
employee in writing that it has done so and that it will
not use the discharge against him in any way.
(e) Within 14 days post in its office and meeting
halls copies of the attached notice marked ‘‘Appendix
B.’’11 Copies of the notice, on forms provided by the
Regional Director for Region 18, after being signed by
the Respondent’s authorized representative, shall be
posted by the Respondent and maintained for 60 con-
secutive days in conspicuous places including all
places where notices to members are customarily post-
ed. Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced, or
covered by any other material.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
CHAIRMAN GOULD, concurring.
I agree with my colleagues’ findings. In doing so,
I note that the complaint does not allege that the lan-
guage of the union-security clause requiring employees
to acquire ‘‘membership in the Union’’ is unlawful. I
write separately to again state my view that a collec-
tive-bargaining agreement containing a union-security
clause which compels ‘‘membership’’ or ‘‘membership
in good standing’’ as a condition of employment is
facially invalid under the National Labor Relations
Act.1 In order for such a clause to be valid, the collec-
tive-bargaining agreement must define membership as
only the obligations to pay periodic dues and initiation
fees related to representational costs. In some respects,
I am in accord with the Court of Appeals for the Sixth
Circuit in Buzenius v. NLRB.2 To the extent, however,
the court relied on Pattern Makers League v. NLRB,
and states that ‘‘[o]ne of the Act’s core policies is that
of voluntary unionism,’’ I disagree and would reverse
Pattern Makers.3
The Court’s decision in Pattern Makers is predi-
cated on a deference to the National Labor Relations
Board’s expertise, an expertise that was erroneously
applied in connection with the right to resign. In af-
firming the Board’s view expressed in Machinists
Local 1414 (Neufeld Porsche-Audi),4 that the right to
resign is absolute, the deciding vote cast by Justice
White in that 5 to 4 decision was predicated on def-
erence to the Board’s exercise of its expertise.5 Indeed,
a substantial part of Justice Powell’s majority in Pat-
tern Makers was similarly rooted in this policy of de-
ferral to administrative expertise.6
In deferring to the Board’s expertise, the Court has
long recognized that ‘‘the responsibility to adapt the
Act to the changing patterns of industrial life is en-
trusted to the Board . . . and its special competence
in this field is justification for the deference accorded
its determinations.’’ NLRB v. J. Weingarten, Inc.7 To
be sure, Weingarten involved a shift in the Board’s
construction of the Act prior to a ruling by the Su-
preme Court. The reasoning, however, is equally appli-
cable where the Board’s construction of the Act shifts
after the Court has deferred to the Board’s expertise.8
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939MONSON TRUCKING, INC.
After the Court deferred to the Board’s construction of Sec. 8(f)
in Higdon, the Board again shifted its position in John Deklewa &
Sons, 282 NLRB 1375 (1987), enfd. 843 F.2d 770 (3d Cir. 1988).
The Board acknowledged ‘‘certain tensions’’ between the new inter-
pretation of Sec. 8(f) announced in Deklewa and language in
Higdon. The Board noted, however, that Higdon had ‘‘to be read in
the context of the Board’s then current efforts to balance the mul-
tiple legitimate conflicting interests present in Section 8(f),’’ and,
since the Higdon decision, the Board had experienced the application
of its 8(f) rules in a multitude of circumstances and been able to
evaluate the extent to which those rules served their objectives. 282
NLRB at 1388. Based on its experience, the Board concluded that
its old 8(f) rules had failed to achieve the objectives for which they
had been created and that the new rules would correct the problems
that had become evident and better achieve the objectives of the Act.
282 NLRB at 1389.
9 NLRB v. Seven-Up Co., 344 U.S. 344, 349 (1953).
10 See Gould, Solidarity Forever—or Hardly Ever: Union Dis-
cipline, Taft Hartley and the Right of Union Members to Resign, 66
Cornell L. Rev. 74 (1980).
11 388 U.S. 175 (1967).
12 304 U.S. 333 (1938).
13 Buzenius, supra at 792.
14 373 U.S. 734 (1963). Accord: Radio Officers v. NLRB, 347 U.S.
17 (1954). The view accepted by the Court in General Motors and
explicitly endorsed in Allis-Chalmers, which draws a distinction be-
tween full and limited membership, has been reiterated by the Court
in Communications Workers v. Beck, 487 U.S. 735 (1988).
15 487 U.S. 735 (1988).
16 487 U.S. 735, 745. The Court did not address the issue of what
language is permissible in a union-security clause.
17 487 U.S. at 762–763 (quoting Ellis v. Railway Clerks, 466 U.S.
435, 448 (1984)).
18 320 NLRB 224, 231–235 (1995).
Thus, the Court has also recognized that
‘‘‘[c]umulative experience’ begets understanding and
insights by which judgments . . . are validated or
qualified or invalidated. The constant process of trial
and error, on a wider and fuller scale than a single ad-
versary litigation permits, differentiates perhaps more
than anything else the administrative from the judicial
process.’’9
In my view, Pattern Makers is inconsistent with the
Act’s objectives and, under certain circumstances, I be-
lieve unions may impose sanctions in the interest of
solidarity.10 What was at stake in Pattern Makers was
the proper balance between the competing principles of
employees’ right to engage in concerted activity fa-
vored by Federal labor policy as interpreted by the Su-
preme Court in NLRB v. Allis-Chalmers Mfg. Co.,11
and the right to refrain from such activity. In Pattern
Makers, first the Board and then, by relying on the
Board’s expertise, the Court gave focus solely to the
right to refrain from concerted activity. The result has
been an erosion of the core Section 7 right to engage
in concerted activities which, coupled with the employ-
er’s right to permanently replace economic strikers
upheld in NLRB v. Mackay Radio & Telegraph Co.,12
has in many circumstances made exercise of the right
to strike protected by Section 13 difficult if not well
nigh impossible. Accordingly, I am of the view that
the Board can and should change its mind on this mat-
ter and reject the Pattern Makers rationale.
Although I would not rely on Pattern Makers, there
is another theme to Buzenius, which should be fol-
lowed by the Board. A union-security clause requiring
‘‘membership in good standing’’ does not mean what
it literally says and cannot be applied as it is drafted.13
The Supreme Court, in NLRB v. General Motors
Corp.,14 held that membership within the meaning of
Section 8(a)(3) does not consist of full membership but
consists exclusively of the obligation to pay periodic
dues and initiation fees as a condition of employment
under a valid union-security clause. Thus, by whittling
down the meaning of membership as set forth in Sec-
tion 8(a)(3) to its ‘‘financial core,’’ the Court made the
dismissal of employees on the ground that they have
not assumed full membership obligations, as opposed
to the tender of periodic dues and initiation fees, un-
lawful. In light of this decision, a collective-bargaining
agreement that speaks in terms of ‘‘membership’’ or
‘‘membership in good standing’’ without further defi-
nition misleads employees into believing that they can
be terminated if they do not become formal, full-
fledged union members.
In Communications Workers v. Beck,15 the Court re-
visited the meaning of ‘‘membership’’ under Section
8(a)(3). The issue before the Court was ‘‘whether th[e]
‘financial core’ includes the obligation to support
union activities beyond those germane to collective
bargaining, contract administration, and grievance ad-
justment.’’16 The Court said that the most that may be
required under Section 8(a)(3) is the payment of
‘‘those fees and dues necessary to ‘performing the du-
ties of an exclusive representative of the employees in
dealing with the employer on labor-management
issues.’’’17 Thus, although Section 8(a)(3) may be lit-
erally read to permit an employer and an exclusive col-
lective-bargaining representative to enter into an agree-
ment requiring full union membership and the payment
of full dues, the Supreme Court decisions interpreting
Section 8(a)(3) find that a union-security clause may
lawfully compel only the payment of fees and dues re-
lated to representational activities.
Moreover, a union-security clause that requires
‘‘membership’’ or ‘‘membership in good standing’’
without concurrent definition of that term in the collec-
tive-bargaining agreement undercuts and dilutes the
notice which the Board established in California Saw
& Knife.18 In that case, the Board stressed that a union
meets its obligation ‘‘as long as it has taken reasonable
steps to insure that all employees whom the union
seeks to obligate to pay dues are given notice of their
rights’’ not to do anything more than pay dues and
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940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 320 NLRB at 233.
20 Id.
21 Electrical Workers IUE Local 444 (Paramax Systems), 311
NLRB 1031, 1037 (1993) (footnote omitted), enf. denied 41 F.3d
1532 (1994).
22 Leslie Homes, Inc., 316 NLRB 123, 131 (1995) (Chairman
Gould concurring in the Board’s finding that the Supreme Court’s
decision in Lechmere v. NLRB, 502 U.S. 527 (1992), creates no dis-
tinction between organizing activity and area standards activity in
determining the access rights of unions to an employer’s property),
and Connecticut Limousine, 324 NLRB at 638 (Chairman Gould dis-
senting from the Board’s conclusion that it can remand the charge-
ability of organizational expenses to dues Beck objectors consistent
with Ellis v. Railway Clerks, 466 U.S. 435 (1984)).
23 Carpenters Local 60 v. NLRB, 365 U.S. 651 (1961).
fees relating to representational purposes.19 The Board
stated that a union could notify such employees
through an annual publication and that newly hired
employees must be given notice before they are asked
to join the union and pay dues under a union-security
clause.20 This notice is not adequate where the collec-
tive-bargaining agreement sends a contrary message
and instruction to employees within the bargaining
unit. Most collective-bargaining agreements speak sim-
ply of ‘‘membership’’ without defining it in accord
with the statute as interpreted by the Supreme Court.
As the Board has previously acknowledged ‘‘it is like-
ly that employees unversed in the intricacies of Section
8(a)(3) and interpretative decisions will literally inter-
pret the clause as requiring full membership and all at-
tendant financial obligations, e.g., assessments. At a
minimum, they will be confused about their obliga-
tions.’’21 Requiring a notice that explains employees’
rights separate from the union-security clause does lit-
tle to protect those rights because there is no guarantee
that employees will recall such notice when faced with
the literal language of the clause.
Since the words ‘‘membership’’ and ‘‘membership
in good standing’’ do not retain either their literal or
familiar meaning in the context of a union-security
clause, in my view, it is unlawful for such language
to remain in the collective-bargaining agreement. The
mere fact that Section 8(a)(3) speaks in terms of mem-
bership does not justify the retention of the language.
As Judge Posner noted in Wegscheid v. Auto Workers
Local 2911, 117 F.3d 986, 991 (7th Cir. 1997):
[N]othing we have said has been intended to sug-
gest that unions and employers have the privilege
to incorporate the language of section 8(a)(3) of
the NLRA into their collective bargaining agree-
ments if the consequence is to mislead the em-
ployees. This language does not mean what it
says, and if its inclusion without appropriate qual-
ification misleads employees, either by itself or in
conjunction with other misleading representations,
the union cannot hide behind the fact that it is,
after all, the words of Congress that it is repeat-
ing.
Thus, as the Court of Appeals for the Sixth Circuit
said in Buzenius, there is no ‘‘legitimate reason’’
which explains such language in the collective-bargain-
ing agreement. Notwithstanding some of the unfortu-
nate policy consequences promoted as a result of this
line of authority, the Board’s duty is to enforce the law
as it has been defined by the United States Supreme
Court. As I have said elsewhere, ‘‘if there is to be a
different result, it must come from the President and
the Congress and not the Board.’’22
Accordingly, I would require unions and employers
to revise their collective-bargaining agreements to de-
fine membership as only the obligation to pay periodic
dues and initiation fees related to representational
costs. Where it is demonstrated that an employee be-
came a member because of the unlawful union-security
clause, I would require that the dues and initiation fees
be refunded.23
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT encourage membership in General
Drivers Union, Local No. 160, affiliated with Inter-
national Brotherhood of Teamsters, AFL–CIO, or in
any other labor organization of our employees, by dis-
criminating in regard to their hire or tenure of employ-
ment or any term or condition of employment, except
to the extent permitted by the proviso to Section
8(a)(3) of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed them by Section 7 of the Act.
WE WILL jointly and severally with Respondent
General Drivers Union, Local No. 160, affiliated with
International Brotherhood of Teamsters, AFL–CIO,
make Calvin Anderson whole for any loss of earnings
and other benefits he may have suffered as a result of
the discrimination against him during the period from
September 5 through September 9, 1990, less any net
interim earnings, plus interest.
WE WILL make Calvin Anderson whole for any loss
of earnings and other benefits he may have suffered as
a result of the action against him during the period
from September 10, 1990, until the date he was re-
stored to his former seniority, pay, and benefits, less
any net interim earnings, plus interest.
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941MONSON TRUCKING, INC.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
Calvin Anderson’s discharge after September 4, 1990,
and WE WILL, within 3 days thereafter notify the em-
ployee in writing that this has been done and that the
discharge will not be used against him in any way.
MONSON TRUCKING, INC.
APPENDIX B
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT cause or attempt to cause Monson
Trucking, Inc. to discriminate against Calvin Anderson
or any other employee in violation of Section 8(a)(3)
of the Act.
WE WILL NOT fail to notify Calvin Anderson of his
rights under Communication Workers v. Beck, 487
U.S. 735 (1988), when we first seek to obligate him
to pay fees and dues under a union-security clause.
WE WILL NOT in any like or related manner restrain
or coerce employees of Monson Trucking, Inc., in the
exercise of the rights guaranteed them by Section 7 of
the Act.
WE WILL make Calvin Anderson whole for any loss
of earnings and other benefits he may have suffered as
a result of his discharge during the period from August
31 through September 4, 1990, less any net interim
earnings, plus interest.
WE WILL jointly and severally with Respondent
Monson Trucking, Inc., make Calvin Anderson whole
for any loss of earnings and other benefits he may
have suffered as a result of the discrimination against
him during the period from September 5 through 9,
1990, less any net interim earnings, plus interest.
WE WILL notify Calvin Anderson of his rights under
Communication Workers v. Beck, supra, including that
he has the right to be or remain a nonmember and that
nonmembers have the right to object to paying for
union activities not germane to the union’s duties as
bargaining agent, and to obtain a reduction in fees for
such activities. In addition, WE WILL include a descrip-
tion of any internal union procedures for filing objec-
tions.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files, and ask the Em-
ployer to remove from the Employer’s files, any ref-
erence to the discharge, and WE WILL, within 3 days
thereafter, notify the employee in writing that this has
been done and that the discharge will not be used
against him in any way.
GENERAL DRIVERS UNION, LOCAL NO.
160, AFFILIATED WITH INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, AFL–
CIO
Joseph H. Bornong, for the General Counsel.
David J. Duddleston (Mackall, Crounse & Moore), of Min-
neapolis, Minnesota, for Respondent Employer.
Stephen D. Gordon (Gordon-Miller-O’Brien), of Minneapo-
lis, Minnesota, for Respondent Union.
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge. These
cases were tried at Minneapolis, Minnesota, on April 17,
1991. The initiating charges were filed on September 13,
1990, and December 17, 1990, as CA and CB cases, respec-
tively. On February 15, 1991, a third consolidated complaint
was issued in which certain primary issues were contained.
In the CA case these are whether Monson Trucking, Inc.
(Respondent Employer), unlawfully discharged Calvin An-
derson despite knowledge that he had tendered uniformly re-
quired initiation fees and dues pursuant to an applicable col-
lective-bargaining agreement, and because he engaged in
concerted protected activities under the Act. In the CB case
the primary issue is whether General Drivers Union, Local
No. 160, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America
(Respondent Union) attempted to cause, and caused, Re-
spondent Employer to discharge Anderson for reasons other
than his failure to tender periodic dues and the initiation fee
uniformly required as a condition of acquiring and retaining
membership in Respondent Union. The third consolidated
complaint alleges that by the described acts and conduct Re-
spondent Employer violated Section 8(a)(1) and (3) of the
Act, and that Respondent Union violated Section 8(b)(1)(A)
and (2).
On the entire record, including my observation of the de-
meanor of witnesses, and after consideration of briefs filed
by all litigants, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Employer is a corporation with an office and
place of business in Duluth, Minnesota, where at all times
material to this proceeding it has been engaged in the inter-
state and intrastate transportation of general freight and com-
modities. In the course and conduct of such business oper-
ations during calendar year 1990, Respondent Employer both
derived gross revenue in excess of $50,000 from the inter-
state transportation of freight and commodities from the State
of Minnesota directly to points outside Minnesota, and pur-
chased and received at its Minnesota facilities products,
goods and materials valued in excess of $50,000 directly
from suppliers located outside Minnesota. On these admitted
facts I find that Respondent Employer is an employer en-
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942 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates and named months hereafter are in 1990, unless other-
wise indicated.
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act, and, as also admitted, that Respondent
Union is a labor organization within the meaning of Section
2(5).
II. ALLEGED UNFAIR LABOR PRACTICES
A. Uncontested Facts
This trucking company operates from both its Duluth area
headquarters, and terminals in Red Wing, Minnesota, ap-
proximately 200 miles further south, plus at Virginia, Min-
nesota, to the north from Duluth. A separate Teamsters local
represents drivers at the Duluth location. Respondent Union
is headquartered in Rochester, Minnesota, about 40 miles
from Red Wing, where it also provides a part-time business
agent in a building shared with other unions. A sizeable mi-
nority of the over 100 drivers used by Respondent Employer
are, as the case with Charging Party Calvin Anderson,
‘‘domiciled’’ at the Red Wing terminal. As contemplated in
an applicable collective-bargaining agreement Respondent
Union has designated a job steward at the Red Wing termi-
nal.
The Respondents are parties to a labor contract which is
effective from certain dates in 1989 through 1993. A typical
union-security clause provides that newly hired employees
become and remain in good standing members of Respond-
ent Union as a condition of employment after 61 days from
beginning it. This union-security clause is followed by en-
forcement language as contained in section 1.2(c) reading:
Any employee who has failed to acquire, or there-
after maintain, membership in the Union as herein pro-
vided, shall be terminated seven (7) days after the
Company has received written notice from an author-
ized representative of the Union (a copy of which no-
tice shall have been also sent to the affected employee)
certifying that membership has been, and is continuing
to be, offered to such employee on the same basis as
all other members and, further, that the employee has
had notice and opportunity to make all dues and initi-
ation fee payments.
Anderson was first employed as a truckdriver in July
1989. Anderson was terminated briefly in late August 1989,
but then rehired for continuous employment of more than 1
year before the triggering event of this case happened. He
worked handling both interstate and intrastate loads and was
subject to the driver’s daily log reporting requirements of the
Department of Transportation, Federal Highway Administra-
tion. Anderson resides in Sun Rise, Minnesota, a community
small enough that the closest post office is in a nearby town
named Harris. Anderson’s home mailing address is a post of-
fice box at Harris. His terminal at Red Wing is approxi-
mately 100 miles south of Sun Rise. Anderson is on the road
most of each workweek, performing driving and related func-
tions throughout at least 18 central States of Respondent Em-
ployer’s midwest operations. His first month of being respon-
sible for payment of union dues and an initiation fee was
November 1989.
By letter dated February 22, 1990, James A. Schenk, Re-
spondent Union’s secretary-treasurer, wrote for the first time
to Anderson as follows:
As you may know, Teamsters Local #160 is party to
a collective bargaining agreement with your employer
that requires that you hold good standing membership
in the Union after 60 day of employment, to the extent
of tendering to the Union its uniform initiation fee and
periodic monthly dues. In your industry, the uniform
initiation fee is $150.00 and the periodic monthly dues
are $23.00. Please complete and return the enclosed
cards for your information. The check-off authorization
form authorizes your employer to deduct union dues
and remit to our office. The initiation fee should be re-
turned with the cards in the self-addressed envelope
within 10 days from the receipt of this letter.
Thanking you in advance for your prompt response
to this matter.
This letter was sent to Anderson’s home address by cer-
tified mail and duly received upon his signing of a postal re-
ceipt. Anderson soon showed the letter to David Hoven, Re-
spondent Employer’s personnel and safety manager based in
Duluth. Hoven testified that he advised Anderson to make
the called-for payment, and he wrote a file note to that effect
for retention in records. On March 7, 1990, the date Hoven
fixed as when this conversation occurred, Anderson sent Re-
spondent Union his check No. 2046 for $23, which he testi-
fied was all he could afford at the time. Subsequent events,
including Anderson’s eventual tender of a $198 amount with
check No. 2187 dated August 25, 1990, are viewed dif-
ferently by the parties.1
Anderson’s termination was effective with what would
have been a week of vacation starting in early September. In
fact, negotiations between the parties soon led to his rehire
as a new employee, and a subsequent retroactive restoration
of seniority. Anderson did, however, lose a 4-cent-per-mile
wage differential during the extended probationary period
which resulted from new employee status, and certain fringe
benefits during that time delay.
B. The Case According to the General Counsel
The General Counsel’s version of the case is that Ander-
son was terminated without being given fair opportunity to
understand his dues obligations. In terms of correspondence
arising in August, and happenings in connection with this
correspondence, the General Counsel reasons that Respond-
ent Union failed in providing Anderson with legally suffi-
cient notice and opportunity respecting dues delinquency. As
to Respondent Employer, the General Counsel asserts that it
knew, or should have known, that Anderson had paid a
quoted dues delinquency, and nevertheless proceeded to un-
lawfully terminate him as Respondent Union had condi-
tionally demanded. Regarding Respondent Union, General
Counsel’s brief states that here ‘‘culpability . . . is manifest
both in the deficiencies in its notice’’ and in its ‘‘handling
of . . . payment.’’
C. The Case According to the Union
Respondent Union contends that it made every effort to
notify the elusive Anderson about his dues obligations and
finally requested his discharge when all efforts had failed.
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943MONSON TRUCKING, INC.
Following the February 22 letter, Respondent Union wrote
similarly on June 12, but this too was unavailing. In con-
sequence of this, Respondent Union sent the following letter
dated August 23 to Respondent Employer, with a copy to
Anderson. It read:
In accordance with Article 1 - 1.2 Section (c) of our
collective bargaining agreement, we are requesting ter-
mination of the following employee: [Calvin Anderson]
if he has not made arrangements within seven days
of receipt of this notice. A letter was sent on June 12,
1990 offering membership to this employee, and is con-
tinuing to be offered on the same basis as all other
members to make all dues and initiation fee payments,
which he has failed to do as of this date.
If you are not notified of his joining by the end of
the seventh day, we will expect you to comply with our
request.
Anderson’s $198 payment was received in Respondent
Union’s office on August 29, but without the provided mem-
bership application or requested social security number. It
was physically received on that date by Terry Johnson, the
organization’s president, and as customary for him to do left
with other Monson Trucking mail for clerical handling by
Secretary Office Manager Dorothy Marko. She testified that
other duties absorbed her until August 31, when she did
posting for that week and first saw the check. As with the
March check internal procedures would not allow it to be
cashed because Anderson’s social security number was still
not known. This information was necessary before any finan-
cial posting under the nationally used ‘‘Titan’’ computer sys-
tem of the International Union could be made. In the cir-
cumstances Marko telephoned to Respondent Employer at
Duluth, intending to at least advise that a check was in. Such
a call could not be completed, and Marko put the matter over
until Tuesday, September 4, after the holiday weekend would
be through. She reached Hoven on September 4 to say the
check had been received, and learned from him that a termi-
nation letter had already gone out to Anderson. Marko imme-
diately turned the matter over to Schenk.
As the eventful morning of September 4 unfolded, the ter-
mination letter arrived in the mail, and Anderson was calling
in to discuss happenings. Schenk reached Hoven by tele-
phone and asked that Anderson simply be put back to work
for the time being. Hoven responded that only official Mark
Monson could authorize this, and Schenk later unsuccessfully
attempted to reach him. While Schenk never actually talked
to Monson on the point, his intentions were plainly known.
In consequence of this Respondent Employer carried out the
desired rehiring, and Anderson resumed his truckdriver em-
ployment on September 11.
D. The Case According to the Employer
Respondent Employer’s version of these happenings is that
it was innocently involved and did no more than respond to
contractual obligations in making a correctly administered
termination. It emphasizes how Hoven reminded Anderson of
his contractual obligation to pay dues and the imminent pen-
alty for failure. This occurred on Friday, August 24, when
Hoven telephoned Anderson on the matter at his mother’s
number in North Branch, Minnesota, and received his assur-
ance that the obligation would be handled immediately.
Hoven considered that a 7-day count under terms of the
notification letter would expire on Thursday, August 30. He
testified to waiting for still another day because of the lag
from his company’s 4 p.m. mail dispatch time and the close
of business at 5 p.m. Hoven felt that influencing information
could occur by telephone during such final hour. Having re-
ceived no advice from Respondent Union by August 31, or
further contact with Anderson, Hoven issued a letter of that
date to him. It succinctly referred to Respondent Union’s in-
vocation of the union-security requirement, and advised An-
derson of his ‘‘immediate termination from the employment
rolls.’’
Hoven expressly denied receiving a claimed telephone call
from Anderson on August 29, telling that the obligation had
been satisfied. As unknown to Respondent Employer, Ander-
son had set up the necessities for a certified mailing of his
$198 check from the Harris post office on Saturday, August
25. While this facility was closed that day, Anderson in some
manner left his item of mail and $2 in cash for the certified
mail charges, expecting this to be handled by the Harris post-
al functionary when it opened on Monday. Plainly such was
effective, for this was the transmittal that Johnson actually
received in Rochester on August 29.
E. Credibility
I generally discredit Anderson whose testimony was shift-
ing, implausible, and given with a totally unconvincing de-
meanor. This is particularly true with regard to Anderson’s
testimony about telephoning Hoven from Virginia on August
29, to inquire if Respondent Union had lifted its demand.
This testimony was offered against a background of two
signed affidavits, in which Anderson stated that (1) the con-
tact with Hoven was made personally in Duluth on August
29, and (2) that it was made by telephone on August 28, re-
spectively.
Anderson’s testimony is so unreliable that even his expla-
nations are inherently faulty, illogical, self-contradictory, and
generally make his renditions incredulous for the most part.
This evaluation particularly applies to his conversion of the
claimed Hoven contact on August 29 from a personal face-
to-face experience to one vaguely done by telephone. I dis-
credit Anderson’s explanation that he would have possibly
forgotten the significant experience of direct discussion with
Hoven at Duluth, in the midst of a week during which he
ranged throughout Minnesota, Wisconsin, Indiana, and Illi-
nois, as so described in an affidavit made less than 30 days
from the event. This is not the only specific infirmity. Ander-
son would have it believed that he knew nothing about the
disposition of his $23 check, yet for several months follow-
ing its mailing, his bank statements showed no clearance of
the item. Notably too, any rural postal patron who can make
an absentee arrangement to deposit certified mail can equally
arrange to receive a certified mail article sent to him, if he
has any bona fide intentions other than the dodging of it. As
to his testimony about not having the Union’s address, this
ludicrous claim warrants only the comment that such would
readily be available from any manner of commonly used
public sources, as well as within his employment setting.
Such shifting claims, coupled with Anderson’s astonishing
evasiveness about why he could not ascertain Respondent
Union’s Rochester business address, and a suspect demeanor,
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944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cause me to reject all points about which he is contradicted
by other witnesses and as to his general intentions regarding
fulfillment of initiation fee and monthly dues payments as
contractually required.
Contrarily, I credit Hoven and Schenk on grounds of their
favorable demeanor. In addition I also credit Marko, who tes-
tified with a convincing demeanor. Of these further witnesses
only Hoven is involved in a significant contradiction of fact,
and in crediting him I expressly find that no telephone con-
tact ensued between him and Anderson on August 29, as
claimed, or in any other manner as would have the same ef-
fect.
F. Discussion
Section 8(b)(2) of the Act prohibits a labor organization
from discriminating against an employee on grounds other
than his failure to tender the periodic dues and initiation fees
uniformly required as a condition of membership. A related
obligation exists in Section 8(a)(3) under a proviso of which
an employer may be liable if it improperly fulfills the at-
tempt of a union to discriminate unlawfully, when the em-
ployer sufficiently aware of illegal intentions. See General
Motors Corp., 134 NLRB 1107 (1961); Philadelphia Shera-
ton Corp., 136 NLRB 888 (1962), enfd. sub nom. NLRB v.
Hotel, Motel and Club Employees’ Union, Local 568, 320
F.2d 254 (3d Cir. 1963). A union’s valid demand for dis-
charge of an employee does not lead to an employer viola-
tion of the Act when the request is based on an employee’s
failure to pay dues. Contrarily an employer may not lawfully
discharge employees at the behest of a labor organization for
an impermissible reason. The application of what is imper-
missible is rooted in Section 8(a)(3) of the Act, stating in rel-
evant part that no employer shall discriminate if it has ‘‘rea-
sonable grounds for believing that membership was denied or
terminated for reasons other than the failure of the employee
to tender the periodic dues and the initiation fees uniformly
required . . . .’’
In Teamsters Local 630, 209 NLRB 117, 124 (1974), a
case involving ‘‘conventional’’ union-security provisions, the
Board held:
It must be assumed, however, that the policy of the
Board was never intended to be so rigidly applied as
to permit a recalcitrant employee to profit from his own
dereliction in complying with his obligations.
This case contained a specific finding that an individual
‘‘willfully and deliberately sought to evade his [financial]
union-security obligations’’ by the pretext that he lacked no-
tification.
In I.B.I. Security, 292 NLRB 648, 649 (1989), the Board
comparably held:
[T]hese [fiduciary] requirements were established to en-
sure that ‘‘a reasonable employee will not fail to meet
his obligation through ignorance or inadvertence, but
will do so only as a matter of conscious choice’’ [foot-
note omitted]. Thus, the Board will excuse a union’s
failure to fully comply with the notice requirements
when it is shown that the employee involved has ‘‘will-
fully and deliberately sought to evade his union-security
obligations.’’
Furthermore, once the union fulfills its fiduciary obligation
by giving required notice, an employee cannot avoid the con-
sequences of discharge by waiting until ‘‘the last minute’’ to
pay his dues. The Board finds such conduct to be a frustra-
tion of ‘‘the orderly administration’’ of lawfully structured
collective-bargaining agreements. General Motors Corp.,
supra at 1109.
The chief factor in background to this case of an untoward
nature is Respondent Union’s seeming nonchalance about en-
forcing its union-security entitlement. This is somewhat off-
set by nature of the industry, scattered locations involved, the
ambulatory life of Anderson and others, plus the fact that
significant responsibility was pinned on job steward Bill
O’Donnell to achieve voluntary compliance by new employ-
ees about to come under the contract’s union-security clause.
In this context, it is not totally startling that monthly gaps
occurred to the point that Anderson had avoided well over
a half year of union dues.
The larger question, however is whether Respondent
Union’s notifications to Anderson, particularly the last one,
were sufficient at law in their letter and by their intent. Each
time written advice was given the specifics were accurately
and fully summarized. A union’s fiduciary duty requires that
it inform the employee of the amount owed, the method used
to compute that amount, when such payments are to be
made, and the fact that discharge will result from failure to
pay. I.B.I. Security, supra at 649. This fiduciary obligation is
to ensure that any employee discharge based on failure to
pay dues is the result of conscious choice not to pay on the
part of the employee, rather than through ignorance or inad-
vertence on their part. Conductron Corp., 183 NLRB 419,
426 (1970). It is also noteworthy that on the day before its
final letter dated August 23, Respondent Union filed an un-
fair labor practice charge against Monson Trucking on
grounds of a claimed refusal to furnish information necessary
for Local 160 to function as a bargaining representative. As
much as anything this charge, signed as it was by Schenk,
showed an institutional tightening up of its affairs. Further-
more the advice to Anderson on August 23 was coupled with
closely comparable form letters on two other employees. The
evidence established that out of these three cases, and a
fourth one during that 12-month period, two of the individ-
uals quit in the face of such a demand and another, as tem-
porarily so with Anderson, was terminated for nonpayment.
All possibility of suggesting the presence of protected con-
certed activities on the part of Anderson was negated during
his testimony, with the result that no motivation was left for
either the employer or union to engage in pretextual action
toward him. Overall, the context for seeking payment from
delinquent employees, as actually done, was legitimate under
a composite of Board doctrine on the subject.
The parties differed on their interpretation of the 7-day
calculation. In part this results because of the letter’s gram-
matical departure from actual terminology in the labor con-
tract. In further point it simply represents a differing lay
view of how to make a count of days over a stated period.
In the labor contract a termination is contemplated 7 days
after the company has received written notice. The form let-
ter converts this to phrasing of within 7 days of receipt. The
underlined variance permits loose interpretation; and it was
just such a lay view that caused Hoven to conclude, as he
testified to doing, that the seventh day arose on August 30
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945MONSON TRUCKING, INC.
2 Communications Workers v. Beck, 487 U.S. 735 (1988).
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
(24–30, inclusive). Schenk, on the other hand, more correctly
applied matters of syntax, law, logic, and intent to exclude
the day of August 24 from the count. His result in believing
August 31 was the last day for Anderson to pay the obliga-
tion was shared by Marko, and is in fact the respectable
mode of counting.
These particulars of viewpoint set the stage for the admit-
ted ‘‘mistake’’ in having the termination letter issued. Query:
Whose mistake and what effect does it have on the issues?
As between the Respondents each would have the other sole-
ly liable if any party must be. Respondent Employer asserts
than an inexcusable delay in attending Anderson’s check left
it no choice but to follow the formal letter request. This is
argued both in terms of the ‘‘extra’’ day added by Hoven to
his count, and the fact that Anderson had at least verbally
expressed to Hoven an intention to pay. Respondent Em-
ployer argues, however, that only Schenk’s office could have
aborted the termination, and its negligence saddles it with
any and all liability. Respondent Union counters with a cre-
ative argument that Hoven was truly wrong in his count, and
has admitted that a termination letter of the type sent should
have issued ‘‘on the first working day’’ after the count
ended. In this case that would have been Tuesday, September
4, after the 3-day holiday weekend was over. Having mount-
ed this analysis Respondent Union then terms Hoven’s action
as ‘‘precipitous and premature’’ since to have waited into
September would have permitted time for advice about re-
ceiving check No. 2187 to have been relayed. Respondent
Union is also constrained to make the alternative, albeit
unpalatable, argument that for such purposes Anderson
should be credited about having made a telephone contact to
Hoven on August 29 with word that his payment was actu-
ally in.
I bear this important background in mind, but believe the
case is decidable on other controlling grounds. These are that
Anderson has identified himself with a class of person for
whom the Board will not offer grace under the strictures of
I.B.I. Security and Teamsters Local 630. The rationale of
both cases was recently approved in a holding that brought
current the Board’s belief as to willful and deliberate evasion
of union-security obligations. See Operating Engineers Local
542C (Ransome Lift), 303 NLRB 1001 (1991). Anderson was
well aware that by the end of August, Respondent Union had
not collected a penny from him in required dues and initi-
ation fee payment. He had picked and chosen such written
communications from his bargaining representative as he
wanted to see, ignored ordinary expectations for new em-
ployee, and frustrated the local’s financial affairs by with-
holding a necessary item of information from his furtive sub-
missions. The Teamsters are this country’s largest union by
membership, and a sophisticated ‘‘Titan’’ computer system is
easily to be expected. It is also notable here that Schenk tes-
tified without contradiction how his organization had once
sought social security numbers directly from the Company
and had the request refused on grounds of confidentiality.
Thus Anderson’s payment of $198 was actually illusory, hav-
ing no more effect than the much lesser one nearly 6 months
previously. In fact a further delay starting with Schenk’s fol-
lowup efforts to first get Anderson back on the job and sec-
ondly seek, insofar as possible, to make him whole for this
second employment interruption, resulted in Anderson’s
membership documents and effective financial tender not to
occur until February 1991. Furthermore the remittance of
August 29 was a ‘‘last minute’’ tender of the type long held
to be ineffectual after reasonably fair and valid notice. Gen-
eral Motors Corp., supra. I see this as principally a situation
in which the employee is not entitled to relief for the awk-
ward happenings of late August. A strongly contrasting situa-
tion arising out of this same industry was present in Team-
sters Local 150, 242 NLRB 454 (1979), where the fact situa-
tion showed an absence of bad faith on the part of the em-
ployee involved. It would be ‘‘rigid’’ indeed to permit a
profiting by Anderson from his own ‘‘dereliction.’’ See
Teamsters Local 630, supra.
On other subsidiary issues I first disregard the ‘‘free
rider’’ subject which was briefed, believing instead this was
purely and simply a case of notice, motive and cir-
cumstances. Cf. Conductron Corp., supra. I do not therefore
associate Anderson’s ‘‘free rider’’ status to the dynamics of
his willful and deliberate evasions, and for this reason pass
without comment on the General Counsel’s cited authority of
Western Publishing Co., 263 NLRB 1110 (1982), and
Helmsley-Spear, Inc., 275 NLRB 262 (1985). The General
Counsel’s other assertion that a statement of ‘‘what percent-
age of [Respondent Union’s] funds were spent for non-
representational activities’’ and related phrasing, injects the
Beck decision into the case.2 But here there has been no re-
quest by Anderson to become a ‘‘financial core’’ member,
and no proportional breakdown of chargeable and noncharge-
able expenses need have been offered. Finally, I disagree
with the General Counsel’s argument respecting employer li-
ability alone, on the theory that final inquiry should have
been made to Schenk’s office. On this point I emphatically
downplay Anderson’s verbal assurance of August 24, unreli-
able as he was shown to be, or that Hoven should have wor-
ried beyond the plain presentation of a contractual right to
be fulfilled absent occurrence of a specific condition. For this
reason I find Forsyth Hardwood Co., 243 NLRB 1039
(1979), and C.B. Display Service, 260 NLRB 1102 (1982),
both cited by the General Counsel, to be distinguishable.
CONCLUSIONS OF LAW
1. Monson Trucking, Inc. is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. General Drivers Union, Local No. 160, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America is a labor organization
within the meaning of Section 2(5) of the Act.
3. The named Respondents did not engage in unfair labor
practices as alleged.
On the findings of fact and conclusions of law and the en-
tire record, I make the following recommended3
ORDER
The third consolidated complaint is dismissed in its en-
tirety.
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