Carpenters Local 296 (Acrom Construction)

National Labor Relations Board - Board Decisions

Dec 10, 1991

305 N.L.R.B. 822 (N.L.R.B. 1991)

822
305 NLRB No. 118
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
1 The complaint also alleges that Thaddeus Rougier, the shop stew-
ard at the jobsite involved here, is an agent of the Respondent Union
acting on its behalf. The Respondent Union denies that Rougier
‘‘was acting in the capacity of agent for the union.’’ In Teamsters
Local 886 (Lee Way), 229 NLRB 832 (1977), the Board, in deciding
whether a shop steward is an agent of a union stated that, ‘‘Rather
responsibility attaches if, applying the ‘ordinary law of agency,’ it
is made to appear the union agent was acting in his capacity as
such.’’ It is enough if the principal actually empowered the agent
to represent him in the general area within which the agent acted.
Longshoremen Local 6 (Sunset Line), 79 NLRB 1487, 1509 (1948).
And where common law rules of agency govern, authority may be
implied or apparent, as well as express. NLRB v. Electrical Workers
IBEW Local 3, 467 F.2d 1158 (2d Cir. 1972). In the instant case,
as was true in Teamsters Local 886, supra, the shop steward was on
the jobsite to ensure employer compliance with the terms and condi-
tions of the collective-bargaining agreement, had authority to handle
problems arising between the employees and their foreman ‘‘if its
something small,’’ transmitted messages and information from and
authorized by the Respondent Union to its members, maintained em-
ployee work dates and hours and with the job foreman verified this
information for the Respondent Union, and additionally collected
dues payments from members and informed them of this obligation.
Thus, I find and conclude that Thaddeus Rougier was an agent of
the Respondent Union, acting on its behalf within the meaning of
Sec. 2(13) of the Act, at all times material.
United Brotherhood of Carpenters and Joiners of
America, Local 296 (Acrom Construction Serv-
ice Co., Inc.) and Jay Buffington. Case 29–CB–
7412
December 10, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On July 23, 1991, Administrative Law Judge Jesse
Kleiman issued the attached decision. The Respondent
filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, United Brotherhood of
Carpenters and Joiners of America, Local 296, its offi-
cers, agents, and representatives, shall take the action
set forth in the Order.
James Patrick Kearns, Esq., for the General Counsel.
Ira A. Sturm, Esq. (Manning, Raab, Dealy & Sturm, Esqs.),
of New York, New York, for the Respondent.
DECISION
STATEMENT OF THE CASE
JESSE KLEIMAN, Administrative Law Judge. The charge
was filed by Jay Buffington on October 18, 1989, and the
complaint was issued on December 29, 1989. The complaint
alleges that United Brotherhood of Carpenters and Joiners of
America, Local 296 (the Respondent Union) engaged in un-
fair labor practices within the meaning of Section 8(b)(1)(A)
and (2) of the National Labor Relations Act (the Act) by
causing the discharge of Jay Buffington because of his delin-
quency in the payment of his dues for the fourth quarter of
1989, notwithstanding the Respondent Union’s failure to give
Buffington a reasonable period of time to pay such dues. The
Respondent Union filed its answer on January 3, 1990, deny-
ing the material allegations in the complaint. This case was
tried in Brooklyn, New York, on October 24 and November
19, 1990.
On the entire record and the brief memoranda filed by the
General Counsel and the Respondent Union and on my ob-
servation of the witnesses, I make the following
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Acrom Construction Service Co., Inc. (the Employer
and/or Acrom), a New York Corporation with its principal
office and place of business located at 111 Eighth Avenue,
New York, New York, and with various jobsites in the New
York metropolitan area including a jobsite at 400 92d Street,
Brooklyn, New York, is engaged in the business of providing
carpentry services in the building construction industry and
related services. During the past year, the Employer has pur-
chased and received at its various jobsites located in the
State of New York products, goods, and materials valued in
excess of $50,000 directly from points outside the State of
New York in the conduct of its business operations. The Re-
spondent Union admits and I find that Acrom Construction
Service Co., Inc. is an employer engaged in commerce with-
in the meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is uncontested and I find that the Respondent Union,
and the District Council of New York and Vicinity of the
United Brotherhood of Carpenters and Joiners of America
(the District Council), of which the Respondent Union is a
constituent Local, are labor organizations within the meaning
of Section 2(5) of the Act. Additionally, it is uncontested that
Philip Fulgieri is the Respondent Union’s business agent and
an agent acting in its behalf within the meaning of Section
2(13) of the Act.1
823CARPENTERS LOCAL 296 (ACROM CONSTRUCTION)
2 Rougier is also known as ‘‘Mr. T’’ on the jobsite.
3 In an affidavit dated October 31, 1989, given to a Board agent
during the investigative stage of these proceedings, Buffington
makes no mention of his having told Rougier that he would pay his
union dues in full on Friday, October 20, 1989, after cashing his
paycheck, in recounting therein what had occurred on October 16,
1989. Nor does Buffington, in his own notes of what transpired on
October 16, 1989, made ‘‘very shortly’’ after they happened, men-
tion that he said this to Rougier.
4 The evidence here shows that on October 16, 1989, Buffington
had deposits in the Greenpoint Savings Bank of $851.73 in a savings
account and at least $1,665.31 in a checking account. Concerning
these accounts, Buffington testified that these moneys were sched-
uled for a ‘‘joint venture between me and my wife’’ involving real
estate and therefore not his own moneys, although Buffington ac-
knowledged that such funds had been ‘‘put in by me.’’
5 It would appear from the evidence here, that Buffington visited
the Board’s offices on October 17 rather than October 16, 1989. See
G.C. Exh. ‘‘6’’ (Buffington’s letter to the Respondent Union dated
‘‘10/17/89’’). Buffington states therein that ‘‘on the date mentioned
above,’’ which is October 17, 1989, he left work 1 hour earlier in
order to ‘‘contact Mr. Feuer at the Federal Labor Board.’’
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
Background: The Building Association, Inc. (the Associa-
tion) has been an organization composed of employers en-
gaged in the building construction industry and which exists
for the purpose, inter alia, of representing its employer-mem-
bers in negotiating and administering collective-bargaining
agreements with various labor organizations including the
District Council. The Employer is an employer-member of
the Association. The District Council has been recognized by
the Association on behalf of its constituent Locals, including
the Respondent Union, as the exclusive collective-bargaining
representative of an appropriate unit of its employer-mem-
bers’ carpenter and joiner employees including, inter alia, the
employees of the Employer. Such recognition has been em-
bodied in a series of collective-bargaining agreements, the
most recent of which was effective by its terms from July
1, 1987, to June 30, 1990. This agreement contained a valid
union-security provision.
What Occurred Prior to October 16, 1989: Jay Buffington,
a carpenter, has been a member of the Respondent Union
since 1983. Prior thereto, Buffington had worked as a union
carpenter on and off since 1965. In late 1987, Buffington
was referred by the Respondent Union to Acrom Construc-
tion Service Co., Inc. for a carpenters position. On January
31, 1988, Buffington discontinued his job with Acrom be-
cause of a work-related injury. He returned to work with this
Employer on September 1, 1989. At the time Buffington re-
sumed his employment with Acrom, he was earning approxi-
mately $25 hourly, and union dues were $80 quarterly pay-
able on or before the first day of the month starting that
quarter, with a 15-day grace period. Buffington admittedly
was fully aware of his obligation to pay dues quarterly, the
actual amount of such dues, and the 15-day grace period for
payment thereof.
Thaddeus Rougier, a witness for the Respondent Union
and the shop steward on the jobsite,2 testified that on two
or three occasions, in late September and early October 1989,
he advised the union members on the construction site, in-
cluding Buffington, that their union dues were due October
1, and that they could make such payments through him to
the Respondent Union. Rougier offered to collect their dues
and payment books, bring these to the Respondent Union
where the dues payments would be recorded, and then return
the payment books and current union cards to the members.
Rougier stated that during the next few days after his an-
nouncements about the dues, all the union members on the
jobsite, except for Buffington, gave him their dues payments
to bring to the Respondent Union. Rougier added that during
this period, Buffington never offered any explanation as to
why he was not paying his dues although Rougier had asked
Buffington personally once or twice about his dues payment.
However, although Buffington testified that he could not re-
member if Rougier had spoken to him about his dues pay-
ment prior to October 16, 1989, he also previously testified
that October 16, 1989, was ‘‘the first contact I had about
union dues’’ with Rougier.
In setting forth what occurred thereafter on October 16 and
17, 1989, it should be noted that the record evidence strongly
suggests that both Buffington and Rougier confused in their
testimony the dates on which certain statements were actu-
ally made, as will be specifically referred to hereinafter.
What Occurred on October 16, 1989: Buffington testified
that on Monday, October 16, 1989, while working on the
Acrom jobsite, he was approached by Rougier who asked
him if he had his union card. Buffington told Rougier that
he had his last quarters paid up union card, acknowledged
that he was 16 days late in paying his current union dues,
indicated that he didn’t have the money to pay for a new
union card at that time, and mentioned to Rougier that, ‘‘Fri-
day was payday and if it was that important, I would go to
the bank. You know, when I cashed my check I would [pay]
up in full.’’3 According to Buffington, Rougier responded
that Buffington had to pay his union dues and obtain a cur-
rent union card by the following day, Tuesday, October 17,
1989, ‘‘or would be thrown off the job.’’ Buffington stated
that he advised Rougier that he was short of funds and could
not pay the union dues by Tuesday,4 and that it would be
illegal to remove him from his job ‘‘like that.’’ Buffington
continued that Rougier ‘‘shrugged his shoulders’’ and said
that he was only doing what he was told. Buffington added
that after he left work that day, he went to the National
Labor Relations Board’s Region 29 offices where he spoke
to Board Agent Feuer about his encounter with Rougier and
about his union dues obligations.5
Rougier’s version of his conversation with Buffington on
October 16, 1989, is significantly different in certain aspects
than that given by Buffington as recited above. Rougier testi-
fied that after Buffington had told him that he did not have
a current union card, Rougier called the Respondent Union’s
business agent, Philip Fulgieri and apprised him of this.
Rougier stated that Fulgieri then instructed him to tell
Buffington that he had three choices, to wit, to go to the Re-
spondent Union and pay his dues, to be terminated, or to be
brought up on charges. Falgieri also told Rougier to have
Buffington call Fulgieri directly. Rougier related that when
he repeated to Buffington what Fulgieri had said, and asked
Buffington to call Fulgieri, Buffington said that ‘‘he didn’t
have the quarter.’’ Rougier denied that Buffington had told
824 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 It appears from the evidence here that Rougier was mistaken
about when he advised Buffington as to what Fulgieri had said about
what would happen if he failed to pay his dues, this actually occur-
ring on October 17 rather than October 16, 1989. See G.C. Exh.
‘‘6’’ and 102–103 of the record transcript here. I believe that
Rougier told Buffington at this time that he had to pay his dues or
be taken off the job.
7 Buffington indicated that he had taped his conversation with
Rougier on October 17, 1989, and it appears that this was taken off
that tape.
8 It seems that the idea to make weekly payments was Buffington’s
own idea after Feuer allegedly told him to ‘‘pay them something.’’
9 This letter also made reference to two previous requests for ‘‘a
transfer from Local 296,’’ which were ‘‘totally ignored.’’ Buffington
continues therein:
Due to the irreconcilable differences that have over time come
between us I am again making a third and final request.
If this request is ignored or denied I will bring it up before
the Civil Court of New York for litigation.
Moreover, the check sent along with this letter was drawn on his
Greenpoint Savings Bank checking account.
10 There are several possible reasons for this, i.e., that he was
sending partial payment which he believed would negate his require-
ment to pay in full by Friday, October 20, 1989, or he never said
this, or he inadvertently forgot to include it in this letter.
11 However, in Buffington’s notes of what occurred on October 18,
1989, Buffington only relates that he told Fulgieri that he was ‘‘re-
porting to work and then entered the building,’’ with no mention that
Fulgieri told him ‘‘no card, you can’t work.’’ Buffington explained
that he forgot to include this in his notes.
12 I noted that at times, this being one of them, Buffington’s an-
swers appeared to be evasive and at other times forgetful although
Buffington made notes of his conversations with Rougier and
Fulgieri soon after they occurred, and was apparently in the habit
of taping such when the occasion presented itself.
him during their conversation on October 16, 1989, that he
had no money to pay his union dues.6
What Occurred on October 17, 1989: Buffington testified
that on Tuesday, October 17, 1989, soon after he appeared
on the jobsite and went to the ‘‘gang box’’ to secure his
tools, Rougier came over and again asked him if he had ob-
tained a new union card and Buffington answered, ‘‘no.’’
Rougier told Buffington that ‘‘I was going to have to get my
dues paid up.’’ When Buffington said that he didn’t have the
money to pay his dues, Rougier told him that he had three
choices, either to pay his union dues, be thrown off the job,
or be brought up on union charges. Buffington asked Rougier
to call Fulgieri and ‘‘tell him what the situation was,’’ but
Rougier told Buffington to make the call himself. According
to Buffington’s reiteration of a portion of his ‘‘verbatim con-
versation’’ with Rougier as set forth in his letter to the Re-
spondent Union dated 10/17/89, Buffington replied:
No-no, I don’t have the quarter. You tell [Fulgieri] he
can throw me off the job and I’m going to take it to
the labor board and I’ll sue his pants off. O.K. You
want me off the job I’ll leave.7
Buffington indicated that Rougier said, ‘‘I only do what I am
told to do.’’
Buffington continued that he remained working on the job
until later that morning when the construction foreman came
over to him and said that Fulgieri wanted Buffington to call
him at ‘‘the local,’’ which Buffington did. Fulgieri told
Buffington that he had to pay his union dues. Buffington ex-
plained to Fulgieri ‘‘what the situation was,’’ that although
he was unable to pay his union dues at the time he had
money in his annuity fund and vacation pay that could serve
as collateral. Buffington stated that he told Fulgieri, ‘‘Friday
I’ll have my check,’’ but that Fulgieri said that, ‘‘I don’t
give a damn,’’ asked what Buffington intended to do about
paying his union dues and then hung up.
Regarding this telephone conversation, Fulgieri testified
that he told Buffington that he had to pay his union dues,
that he was no different than any other union member, that
this was required under the Union’s dues otherwise he would
be ‘‘removed from the job until he pays his dues.’’
According to the record evidence, Buffington left work
early on October 17, 1989, and visited New York State Sen-
ator Mayger’s office where he was told that ‘‘they would
write a letter to the local on my behalf.’’ Buffington also
went to the Board’s Region 29 offices where he spoke to
Board Agent Feuer regarding his union dues obligations.
That evening Buffington wrote a letter to the Respondent
Union in which he related what had occurred between
Rougier and himself that day, and allegedly on Feuer’s ad-
vice that he send ‘‘some kind of payment to the union’’ he
was enclosing a check in the amount of $18.48 for the period
October 1 through 21, 1989, as partial payment of his union
dues because he believed he had the right to pay his quar-
terly dues in weekly installments of $5.16 each until he was
paid in full.8 Buffington also stated therein that he had been
advised that the Respondent Union’s ‘‘tactics’’ toward him
were illegal and subject to ‘‘back pay’’ or other Board rem-
edy for unfair labor practices should the Respondent Union
cause his termination or bring him up on charges for failing
to pay his union dues.9 This letter with its enclosed check
was not received by the Respondent Union until October 21,
1989. Moreover, although Buffington testified that he told
Rougier and Fulgieri that he was waiting until the Friday 20,
1989 payday to cash his check and pay his union dues, he
failed to mention this in his letter of October 17, 1989, to
the Respondent Union.10
What Occurred on October 18, 1989: When Buffington re-
ported for work on Wednesday, October 18, 1989, at 7 a.m.
he found Fulgieri and Rougier waiting at the jobsite. Fulgieri
asked him if he had his union card and Buffington said
‘‘no,’’ he only had his old union card. Fulgieri then told
Buffington that if he didn’t have a current union card he
could not work.11 According to Buffington, about 20 minutes
later he observed Fulgieri and Rougier in conversation with
the job foreman who then approached Buffington and told
him that he had to leave minutes later he observed Fulgieri
and Rougier in conversation with the job foreman who then
approached Buffington and told him that he had to leave the
jobsite. Buffington asked the foreman if he was being laid
off and the foreman said, ‘‘It’s not a layoff.’’ Buffington also
asked the foreman if he was acting at Fulgieri’s directions
and the foreman responded, ‘‘That’s correct.’’ Buffington
then went and secured his tools from the gang box and went
home. Buffington denied that the foreman had told him,
‘‘[G]et your things squared away with the union and come
back to work.’’12 Moreover, despite Buffington’s admission
that he was aware of the ‘‘union rule that you have to be
paid on your last day of work,’’ he was not paid on October
18, 1989, on his supposed termination by the job foreman.
825CARPENTERS LOCAL 296 (ACROM CONSTRUCTION)
13 Gold Standard Enterprises, 234 NLRB 618 (1978); V & W
Castings, 231 NLRB 912 (1977); Northridge Knitting Mills, 223
NLRB 230 (1976).
14 It is not unusual that, based on the evidence in the record, the
testimony of a witness may be credited in part, although other seg-
ments thereof are discounted or disbelieved. Jefferson National
Bank, 240 NLRB 1057 (1979), and cases cited therein.
Additional Evidence: On Friday, October 20, 1989,
Buffington returned to the Acrom jobsite to pick up his pay-
check. The foreman asked Buffington if Rougier had said
anything to him about coming back to work and Buffington
answered ‘‘no.’’ Buffington made partial payments by check
of $6.16 each toward the union dues he owed on October 21
and 30 and November 3, 1989.
Buffington testified that on prior occasions he had been
late in paying his union dues sometimes ‘‘a month and a
half’’ without the Respondent Union taking any disciplinary
action against him such as removal from his job or bringing
him up on charges. Buffington also related that he knew of
other union members who had been late in paying their
union dues without being terminated from their jobs or
brought up on charges by the Respondent Union, one union
member being in arrears for approximately 1 year, and an-
other member, Nick Basile, whose father is an ‘‘officer’’ of
the Respondent Union. However, on cross-examination
Buffington disclosed that in the instances wherein he had
been late in paying his union dues he had either been out
on disability leave at the time or otherwise out of work, that
the union member who had not paid his dues for about a
year was actually a member of a different local union of the
Carpenters, and that Basile’s father had paid his son’s dues
for that period although a week late.
Also, the constitution and laws of the United Brotherhood
of Carpenters and Joiners of America, the parent union, pro-
vides:
Monthly dues shall be charged on the books on the
first of each month, but a member does not fall in ar-
rears until the end of the month in which the member
owes three month’s dues. No officer or member shall
be exempt from paying dues or assessments, nor shall
the same be remitted or cancelled in any manner. Credit
for payment of any month’s dues will not be granted
based on partial payment but only on full payment of
that month’s dues.
Moreover, the bylaws and working rules of the District
Council provides:
Section 26A. Each member of a Local Union shall
be charged nine dollars and seventy-five cents ($9.75)
per quarter for the work card to be paid to the Financial
Secretary of his Local Union.
Section 26E. All members of the United Brotherhood
must carry the work card of the current quarter and
shall be in possession of same no later than the fif-
teenth (15th) of the first month of the quarter. Members
who fail to comply with this Section shall be subject
to removal from the shop or job under the terms of the
collective bargaining agreement there applicable.
It seems that the $80 quarterly payment required by the Re-
spondent Union’s members as dues payment includes union
dues and the work card cost.
B. Analysis and Conclusions
1. Credibility
Based on a careful analysis of the testimony of the wit-
nesses and the evidence presented here, my observation of
the demeanor of the witnesses, the weight of the respective
evidence, established or admitted facts, inherent probabilities,
and reasonable inferences which may be drawn from the
record as a whole,13 I tend to credit the account of what oc-
curred here, as given by the Respondent Union’s witnesses
Rougier and Fulgieri, but only where it is in conflict with
the testimony of Buffington, the General Counsel’s main wit-
ness. On the one hand, I noted some confusion by Rougier
as to the date that a particular conversation took place, and,
in some important respects, the testimony of Rougier and es-
pecially that of Fulgieri was substantially less detailed than
that given by Buffington. I also felt that their testimony was
given in a forthright manner and was generally corroborative
and consistent with the other evidence in the record as far
as it went and therefore more believable. On the other hand,
although I admit that I was impressed with Buffington’s de-
meanor as a witness, still I found that his testimony at times
appeared guarded, defensive, and evasive, especially on
cross-examination and contained inconsistencies with regard
to his own prior statements in the form of an affidavit given
to a Board agent, and his own notes of occurrences relevant
here, as set forth hereinbefore. I therefore will discredit his
testimony only where it conflicts with that of Rougier or
Fulgieri, or where it is contradicted by other uncontroverted
evidence in the record.14
2. The alleged violations of Section 8(b)(1)(A)
and (2) of the Act
The complaint alleges that the Respondent Union, by at-
tempting to cause and causing the Employer to discharge
Buffington because he was delinquent in paying his quarterly
dues notwithstanding the Respondent Union’s failure to give
Buffington a reasonable period of time to pay such dues, re-
strained and coerced its employees in the exercise of the
rights guaranteed them in Section 7 of the Act thereby vio-
lating Section 8(b)(1)(A) and (2) of the Act. The Respondent
Union not only denied this allegation but asserts as a defense
that the 8(b)(1)(A) allegation must be dismissed because it
was never alleged in the underlying charge. After alleging
unfair labor practices within the meaning of Section 8(b)(2)
of the Act, the charge states:
Since on or about October 18, 1989, the above-named
labor organization by its officers, agents, and represent-
atives caused the below-named Employer to terminate
the employment of Jay Buffington, whose membership
in the labor organization was terminated for reasons
other than failure to tender periodic dues uniformly re-
quired as a condition of retaining membership there. By
these and other acts, the above-named labor organiza-
tion has restrained and coerced employees within the
meaning of Section 7 of the Act.
It is well settled that a complaint may issue under Section
10(b) of the Act alleging matters not set forth with specific-
826 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 NLRB v. Fant Milling Co., 360 U.S. 301 (1959); NLRB v.
Dinion Coil Co., 201 F.2d 484 (2d Cir. 1982); Redd-I, 290 NLRB
1115 (1988).
16 Advertisers’ Mfg. Co., 294 NLRB 740 (1989); Davis Electrical
Constructors, 291 NLRB 115 (1988); Redd-I, supra.
17 Nickles Bakery of Indiana, 296 NLRB 927 (1989); El Cortez
Hotel, 160 NLRB 1442 (1966), affd. 390 F.2d 127 (9th Cir. 1968);
Stainless Steel Products, 157 NLRB 232 (1966).
18 NLRB v. Fant Milling Co., supra; Advertisers’ Mfg. Co., supra;
Davis Electrical Constructors, supra; Redd-I, supra; NLRB v. Dinion
Coil Co., supra.
19 In G. W. Galloway Co. v. NLRB, 856 F.2d 275 (D.C. Cir.
1988), the United States Court of Appeals for the District of Colum-
bia Circuit held that the Board ‘‘may not unilaterally expand its
power to issue complaints merely by relying on the ‘other acts’ lan-
guage in the preprinted charge form. There must be a significant fac-
tual relationship between the allegations in the charge and those in
the complaint.’’ The court felt that to allow this would violate
10(b)’s mandate that the Board not originate complaints on its own
initiative. The Board adopted this ruling in Nickles Bakery of Indi-
ana, 296 NLRB 927 (1989). Thus the statement in the charge here
that, ‘‘By these and other acts, the above-named labor organization
has restrained and coerced employees within the meaning of Section
7 of the Act’’ would not justify the 8(b)(1)(A) allegation in the com-
plaint where the charge does not otherwise allege such a violation
unless the ‘‘closely related’’ test is satisfied, as found here.
20 Communications Workers Local 9509 (Pacific Bell), 295 NLRB
196 (1989); Boilermakers Local 732, 239 NLRB 504 (1978); Con-
duction Corp., 183 NLRB 419 (1970); Hotel Employees Local 568
(Philadelphia Sheraton), 136 NLRB 888 (1962), enfd. 320 F.2d 254
(3d Cir. 1963). Also see NLRB v. Construction & Building Material
Teamsters, 633 F.2d 1295 (9th Cir. 1980).
ity in the underlying charge, provided the complaint allega-
tions assert matters closely related to the allegations of a
timely filed charge.15 The Supreme Court in NLRB v. Fant
Milling Co., 360 U.S. 301 (1959), in discussing the Board’s
authority to discharge its duty of protecting public rights,
held that:
[T]he Board is not precluded from ‘‘dealing adequately
with unfair labor practices which are related to those al-
leged in the charge and which grow out of them while
the proceeding is pending before the Board. National
Licorice Co. v. NLRB, 309 U.S. 350 at 369.
Consistent with Fant Milling, the Board has long required a
sufficient factual relationship between the specific allegations
in the charge and the complaint allegations that looks toward
the class of violations alleged in the pending charge, the se-
quence of events, and the nature of the defenses raised.16
In considering the general sufficiency of a charge to sup-
port an allegation in the complaint, the Board has usually re-
quired that the complaint allegation be related to and arise
out of the same situation as the conduct alleged to be unlaw-
ful in the underlying charge, although it need not be limited
to the specific violations alleged in the charge.17
Moreover, in Painters Local 277 v. NLRB, 717 F.2d 805
(3d Cir. 1983), the United States Court of Appeals for Third
Circuit, although acknowledging that Section 8(b)(1)(A),
which prohibits coercion of employees by a union, and Sec-
tion 8(b)(2), prohibiting a union from causing or attempting
to cause an employer to discriminate against an employee,
are separate violations of the Act, also recognized that:
[T]he two sections often work in tandem. . . . A find-
ing that a union provoked or attempted to provoke dis-
crimination in violation of section 8(b)(2) is usually ac-
companied by a finding that the same conduct con-
stituted coercion in violation of section 8(b)(1)(A).4
4 The relationship between the two sections is analogous to the rela-
tionship between sections 8(a)(1) and 8(a)(3), which are often used to-
gether to charge an employer with unlawful coercion and discrimina-
tion. In such cases, the Court of Appeals for the Seventh Circuit terms
the section 8(a)(1) violation a ‘‘derivative violation’’ which follows
from the violation of Section 8(a)(3) and is proved by the same con-
duct.
In applying the above law to the facts in this case, I find
and conclude that the complaint allegations here ‘‘are related
to those alleged in the charge and which grow out of them,’’
NLRB v. Fant Milling Co., supra, and meet the Board’s
‘‘closely related’’ test in interpreting Section 10(b) of the
Act. NLRB v. Dinion Coil Co., supra; Redd-I, supra.
The evidence in the record shows that the allegations in
both the complaint and the charge arise from the same se-
quence of events, similar conduct during the same time pe-
riod with a similar objective (to remove Buffington from the
job because of his failure to pay his union dues and obtain
a current work card), the same situation; it would appear that
the Respondent Union would have to prepare and present its
case as it would similarly have done in defending against the
allegations in both the complaint and the charge and raise the
same defenses (that it did not unlawfully attempt to or did
have Buffington removed from his job because of his failure
to pay union dues and obtain a current work card); and the
allegations in the charge and the complaint are so interrelated
under the facts present in this case as to be reasonably con-
sidered to involve the ‘‘same class’’ of violations and ‘‘the
same legal theory.’’18 Moreover, as the Board stated in Val-
ley Cabinet & Mfg., 253 NLRB 98, 100 at fn. 10 (1980):
The Union has excepted to the Administrative Law
Judge’s conclusion that it violated Sec. 8(b)(1)(A) as
well as Sec. 8(b)(2) of the Act by failing to properly
notify Murphy of her dues obligations before requesting
her discharge. The Union contends that a violation of
Sec. 8(b)(1)(A) of the Act was not alleged in the com-
plaint, and that the Administrative Law Judge therefore
had no basis for finding such a violation. As the under-
lying facts pertaining to a violation of Sec. 8(b)(1)(A)
of the Act are identical to those upon which the 8(b)(2)
violation is premised and the legal theory for both vio-
lations is identical, we adopt the Administrative Law
Judge’s conclusion that the Union also violated Sec.
8(b)(1)(A) of the Act by failing in its fiduciary duty to
Murphy. H. C. Macaulay Foundry Company, 223
NLRB 815, 818, enfd. 553 F.2d 1198.
I therefore deny the Respondent Union’s motion to dismiss
the 8(b)(1)(A) allegation in the complaint.19
The Board has consistently held that a union seeking to
enforce a union-security provision against an employee has
a fiduciary duty to deal fairly with that employee, taking
‘‘the necessary steps to make certain that a reasonable em-
ployee will not fail to meet his membership obligations
through ignorance or inadvertence but will do so only as a
matter of conscious choice.’’20 This requires that before a
827CARPENTERS LOCAL 296 (ACROM CONSTRUCTION)
21 Western Publishing Co., 263 NLRB 1110 (1982), and cases
cited therein. Also see Teamsters Local 13 (Mobile Pre-Mix Con-
crete), 268 NLRB 930 (1984).
22 R. H. Macy & Co., 266 NLRB 858 (1982); Teamsters Local
122 (August A. Busch), 203 NLRB 1041 (1973), enfd. 502 F.2d
1160 (1st Cir. 1974); Hotel Employees Local 568 (Philadelphia
Sheraton), supra.
23 Also see R. H. Macy & Co., supra; United Metalronics Local
955 (Pharmaseal Laboratories), 254 NLRB 601 (1981).
24 Although Fulgieri testified in this proceeding, he did not dispute
Buffington’s testimony regarding this.
25 Hemsley-Spear, Inc., 275 NLRB 262 (1985).
26 Western Publishing Co., supra, and cases cited therein.
27 See for example, United Metaltronics Local 955 (Pharmaseal
Laboratories), supra; Teamsters Local 122 (August A. Busch), supra.
union may seek the discharge of an employee for the failure
to tender owed dues and fees, it must at a minimum give the
employee reasonable notice of the delinquency, including a
statement of the precise amounts and months for which dues
are owed and of the method used to compute the amount, tell
the employee when to make the required payments and ex-
plain to the employee that failure to pay will result in dis-
charge.21 Moreover, the union must also afford the employee
a reasonable opportunity to make payment following ade-
quate notice, before requesting his discharge.22
In the instant case the credited evidence here shows that
the Respondent Union, through its agent Rougier, gave
Buffington reasonable notice of his union dues obligations in
late September 1989 and of his dues delinquency in October
1989 prior to his termination on October 18, 1989; advised
him of the amount owed and for what period in question,
$80 for the quarter beginning October 1, 1989; and that his
failure to pay the union dues owed, first by October 17,
1989, and then by October 18, notwithstanding that the grace
period to pay such dues expired on October 15, 1989, would
result in his being terminated from his job on the Acrom
construction site. Apparently the General Counsel acknowl-
edges this because in both the complaint and his brief it is
alleged only that the Respondent Union violated the Act,
‘‘[B]y failing to give Buffington an adequate opportunity to
satisfy his dues obligations. Respondent, by steward Rougier,
notified Buffington for the first time on [October] 16, 1989,
that he would be ‘thrown off the job’ if he did not pay his
dues.’’ Moreover, Buffington admitted that he was fully
aware of his responsibilities regarding the union dues pay-
ments including the amount due, the period covered by the
dues payment required, and the 15-day grace period.
The issue in this case then is whether the Respondent
Union violated the Act by failing to give Buffington an ade-
quate opportunity to satisfy his dues obligations. In Team-
sters Local 122 (August A. Busch), supra at 1042, the Board
stated:
Respondent’s failure in this respect, coupled with the
failure to give the Charging Parties an adequate oppor-
tunity to make payment,3 constitutes a breach of Re-
spondent’s duty to its members to treat them fairly.
3 . . . However, this conclusion is not to be construed as a deter-
mination that any particular time limit would be reasonable.
Thus, it appears that a determination of what is an ‘‘adequate
opportunity’’ for an employee to make payment of dues
owed before a union may lawfully seek the employee’s dis-
charge under a union-security clause, in any given case de-
pends on the facts present therein.23
The evidence here shows that although the Respondent
Union gave Buffington notice of the amount and the months
for which dues payments were owed, it was not until Mon-
day, October 16, 1989, that Shop Steward Rougier informed
him that he might lose his job if he failed to pay his dues
by the next day, October 17, 1989. However, it was not until
that Tuesday, October 17, 1989, that very next day, that
Buffington was unequivocally advised by the Respondent
Union’s business agent, Fulgieri, that he would be taken off
the job if he did not make his dues payment by Wednesday,
October 18, 1989, and not be allowed to return to work until
he did so. According to his uncontradicted testimony in this
respect, Buffington told Fulgieri during this telephone con-
versation on October 17, 1989, that payday was Friday, Oc-
tober 20, 1989, intimating that he would pay his dues arrear-
age on that day to the Respondent Union, which offer
Fulgieri rejected.24 Buffington was actually ‘‘removed’’ from
his job on the Acrom construction site on October 18, 1989
when he failed to pay his union dues by the deadline set for
that day.
The Respondent Union’s ‘‘strict fiduciary duty,’’25 to deal
fairly with employees before initiating any adverse action
against them obligated it to provide Buffington with an ade-
quate opportunity to meet his union dues requirement fol-
lowing appropriate notice of such requirements.26 I do not
find that under the circumstances present in this case, 1 or
2 days’ notice constituted an ‘‘adequate opportunity’’ af-
forded Buffington to make the required dues payments.27 Ac-
cordingly, the Respondent Union failed to meet its fiduciary
responsibility in this regard.
However, there is another element which must be consid-
ered in deciding this issue. As the Board stated in Western
Publishing Co., 263 NLRB 1110 at 1112–1113 (1982):
Our inquiry, however, does not end with this finding.
The Administrative Law Judge based his dismissal of
the complaint in part upon the evidence of the employ-
ee’s neglect of their dues obligations. The protections
enumerated above were ‘‘never intended to be so rig-
idly applied as to permit a recalcitrant employee to
profit from his own dereliction in complying with his
obligations.’’18 Rather, these steps are intended 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.’’19
Thus when it is shown that the employee has ‘‘willfully
and deliberately sought to evade his union-security obli-
gations,’’20 the Board will excuse a union’s failure to
fully comply with the notice requirements.21
18 [Produce Workers Local 630] (Ralphs Grocery Company), 209
NLRB 117, 124 (1974).
19 Valley Cabinet & Mfg., Inc., 253 NLRB 98, 108 (1980).
20 Produce Workers Local 630, supra at 125.
21 See, e.g., Big Rivers Electric Corp., 260 NLRB 329 (1982);
Produce Workers Local 630, supra.
In the present case, however, I do not find that
Buffington’s conduct rises to the level of bad faith or a will-
828 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28 R. H. Macy & Co., supra.
29 This case is clearly distinguishable from Big Rivers Electric
Corp., 260 NLRB 329 (1982), John J. Roche & Co., 231 NLRB
1082 (1977), and Produce Workers Local 630 (Ralphs Grocery),
supra, relied on by the Respondent Union, because the evidence in
those cases clearly revealed that the employees in question delib-
erately avoided their financial obligations.
ful and deliberate attempt to avoid his dues obligation. Al-
though Buffington was less than diligent in ignoring the re-
quests for payment of his dues during the 15-day grace pe-
riod and before, when finally confronted with the threat of
loss of his job unless he paid the dues owed, he requested
until payday, Friday, October 20, 1989, 2 days past the Re-
spondent Union’s deadline of October 18, 1989, to satisfy his
dues obligations. Additionally, after visiting the Board’s Re-
gion 29 offices on October 17, 1989, that same evening
Buffington mailed a check to the Respondent Union for what
he apparently in good faith but erroneously believed to be a
sufficient partial payment of his dues arrearage which would
enable him to remain on the job until he fully paid his dues.
Although the check was not received by the Respondent
Union until after the October 18, 1989 deadline, Buffington’s
action in mailing such payment to the Respondent Union be-
fore any request to the Employer for his discharge had been
made would mitigate against the claim that Buffington was
deliberately seeking to avoid his obligations.28
As the Board stated in Western Publishing Co., supra at
1113:
We do not condone employee neglect of lawful fi-
nancial obligations to a collective-bargaining represent-
ative. On the other hand, we do not consider it onerous
to require that a union meet minimum notice standards
in a matter of such importance to employees.
This would extend to the requirement that a union give the
employe an adequate opportunity to make payment.
On the basis of the above, I find that, although Buffington
was remiss in not paying his dues in a timely manner, there
is no evidence to indicate that he consciously and willfully
sought to evade his financial obligation to the Respondent
Union.29
The Respondent Union also asserts that the 8(b)(2) allega-
tion must be dismissed based on the insufficiency of the evi-
dence. The Respondent Union alleges in its brief that:
The complaint alleged that the Union caused Acrom
to discharge Buffington. Yet the record is devoid of any
evidence establishing a direct communication between
the Union and Acrom regarding Buffington. Buffington
testified concerning certain statements purportedly made
to him by a foreman of Acrom. These statements, how-
ever, are not admissible to establish the truth of the
statements as against the Union. . . . In a similar case,
where a union was alleged to have caused an employer
to discriminate against an employee in connection with
employment, the Board held,
As noted above, no official of the Company which
the Union allegedly caused to refuse to hire Edwards
testified; in our opinion this leaves a significant gap
in the General Counsel’s case.
Railway Clerks, Local 1902 (Safety Cabs, Inc.), 180
NLRB 126 (1969), similarly, a significant gap exists in
the matter at hand. The General Counsel has failed to
meet his burden of proving that Buffington was dis-
charged because of the Union. Hence no violation of
Section 8(b)(2) has been proven.
I do not agree.
The evidence here shows that on October 17, 1989,
Fulgieri unequivocally informed Buffington that if he failed
to pay his dues arrearage by October 18, 1989, he would be
‘‘removed from the job,’’ clearly that he would be termi-
nated if he did not pay his dues and obtain a current union
work card. On Buffington reporting for work the next day,
October 18, 1989, he was met by Fulgieri and Rougier, and
Fulgieri told Buffington that because he did not have a cur-
rent union card he could not work on the jobsite. About 20
minutes later he observed Fulgieri and Rougier talking to the
Acrom foreman on the job who then approached Buffington
and told him to leave the construction site, which only could
be construed in the context of Buffington being taken off the
job, as a layoff or discharge in fact. Buffington asked the
foreman if he was acting pursuant to Fulgieri’s instructions
and the foreman responded affirmatively. Although both
Fulgieri and Rougier testified here, they did not refute
Buffington’s account of what occurred nor deny that as
agents of the Respondent Union they had sought
Buffington’s removal from the job until he paid his dues.
Neither did Fulgieri nor Rougier deny that they had caused
Buffington’s resulting discharge by the Employer. If the
above does not clearly establish that the Respondent Union
attempted to cause and did cause the Employer to discharge
Buffington, as I believe it does, at the very least this evi-
dence raises a strong inference that the Respondent Union
was responsible for Buffington being removed from his job
with Acrom, which the Respondent Union has failed to rebut
or refute here.
Contrasting what happened in the instant case with the oc-
currences in Railway Clerks Local 1902 (Safety Cabs), supra,
on which the Respondent Union relies, clearly illustrates why
the Board found no violation of Section 8(b)(2) of the Act
in the Railway Clerks case, and why I will find such a viola-
tion present in the instant case. In Railway Clerks, the Board
stated:
[T]hat the only evidence adduced with regard to the
Company’s position on employing Edwards came from
his testimony of conversations he had with the Com-
pany officials, in which, the Trial Examiner found, it
was intimated that the Union was keeping Edwards
from working. Not only does this fail to assert a posi-
tive statement to this effect, but no company official
testified at the hearing to substantiate Edwards claim.
The Respondents contend that such testimony is hear-
say as regards the Respondent and cannot be used as
evidence of the Respondent’s alleged attempt to cause
the Company to refuse to employ Edwards. We agree.
However, in the instant case although it is true that no offi-
cial of Acrom testified at the hearing to substantiate
Buffington’s testimony that the job foreman had told him
that he was being taken off the job by direction of the Re-
829CARPENTERS LOCAL 296 (ACROM CONSTRUCTION)
30 The Trial Examiner in Railway Clerks credited Edwards testi-
mony regarding this conversation over Fitzgibbons’ notwithstanding
Fitzgibbons denial therein that he had made these statements.
spondent Union’s business agent, Fulgieri, this assertion was
still a ‘‘positive statement to this effect.’’
Moreover, in Railway Clerks the Board found that the only
nonhearsay evidence which showed that the Union caused
the Employer to refuse employment to Edwards was Ed-
wards’ conversation with Fitzgibbons, the Union’s director of
organization in which Fitzgibbons stated that Company Vice
President Marvin had spoken to him, ‘‘about giving Edwards
a week’s work at the airports, which he broke his promise
to me. . . . I told the men about it, and they voted no
. . . .’’ Fitzgibbons also said that if Edwards assisted the
Union in raiding companies under Teamsters bargaining con-
tracts, Fitzgibbons would ‘‘[S]ee what I can do about get-
ting’ your job back.’’30 However, in the case at hand, the
evidence unequivocally shows that both Fulgieri and Rougier
threatened Buffington with removal from the job if he failed
to pay his dues arrearage by October 18, 1989, constituting
a clear, precise, and positive statement of the intentions of
the Respondent Union.
Additionally, the Board found in Railway Clerks that the
remainder of the evidence therein established only that there
was considerable ill will toward Edwards because of his ac-
tivities during the Union’s election campaign, and that the
union membership and officers may have been reluctant to
receive him back into the Union; that under the collective-
bargaining agreement between the Company and the Union,
‘‘that reluctance was no impediment to hiring Edwards’’; and
that the Trial Examiner in deciding this issue had made no
reference to unrefuted testimony that indicated that the Union
was unconcerned about whether or not Edwards returned to
work for the Employer, and had failed to mention that the
Union’s president, Lytwinick, had told Company Vice Presi-
dent Marvin that the Union had ‘‘no objection whatsoever to
the employment of Edwards by the Employer.’’ The Board
continued therein:
In conclusion, we are of the opinion that the non-
hearsay evidence relied on, for the most part, shows
only that some of the union officers and membership
were neither overly fond of Edwards, nor anxious for
him to become a union member. As noted above no of-
ficial of the Company which the Union allegedly
caused to refuse to hire Edwards testified; in our opin-
ion, this leaves a significant gap in the General Coun-
sel’s case. Indeed, on the record as a whole, the only
evidence which tends to support the 8(b)(2) allegation
is the statement Fitzgibbons made to Edwards. In view
of the testimony discussed above, we do not think that
statement sufficient; we are constrained to find that the
General Counsel has not carried his burden of proving,
by a preponderance of the evidence, that the Respond-
ents caused the Company to refuse employment to Ed-
wards.
However, in the instant case, the uncontradicted evidence
shows that on the day set by the Respondent Union as being
the deadline for Buffington to pay his dues or be removed
from the job, Union Business Agent Fulgieri appears on the
jobsite, determines that Buffington has failed to make his
dues payments, and subsequently along with Shop Steward
Rougier is observed speaking to the Acrom job foreman. Im-
mediately thereafter, the foreman instructs Buffington to
leave the job acknowledging that this action was taken at
Fulgieri’s behest. Certainly the above circumstances evi-
dences that the Respondent Union clearly indicated its intent
to seek Buffington’s discharge from his position until he paid
his dues arrearage, and indeed took the necessary steps to ac-
complish its intent. While the Respondent Union did not ac-
tually acknowledge having caused Buffington’s discharge, it
never denied having done so in the evidence. Unlike the
Railway Clerks case the nonhearsay evidence establishes the
above and the foreman’s statement of the Respondent
Union’s complicity in Buffington’s dismissal only reenforces
this. Thus the fact that no official of Acrom (the foreman
would be the proper witness) testified in this case does not
leave ‘‘a significant gap in the General Counsel’s case. In-
deed, the record as a whole supports the 8(b)(2) allegation.
I therefore find that the General Counsel has carried his
burden of proving by a preponderance of the evidence, that
the Respondent Union attempted to cause and did cause the
Employer here to discharge Buffington.
Lastly, the Respondent Union asserts that the ‘‘Legislative
History is Contrary to the Board’s Use of the Fiduciary
Test,’’ that it was never the intent of Congress to place such
a heavy burden on unions. In support thereof the Respondent
Union states in its brief that:
A research of the legislative history fails to disclose
the use of the term fiduciary relationship in connection
with Section 8(b)(2) of the Act. Rather, as noted above,
the common references to arbitrary conduct tends to run
through the debates. It is clear from the legislative his-
tory that congress never intended to create a test of a
fiduciary relationship in connection with a union’s con-
duct towards its members vis a vis section 8(b)(2). Con-
gress by its use of the commonly referred to concepts
has determined that violations of Section 8(b)(2) require
an arbitrary act. . . . Even under Section 8(b)(2) the
Board, in all other situations utilizes the arbitrary and
capricious standard rather than the fiduciary stand-
ard. . . . Hence the Board has created an artificial
standard in connection with the obligations that a union
owes to rank and file employees that it represents. This
artificial distinction has no basis in the statute or in the
legislative history of the Act. It should properly be
abandoned. . . . It is respectfully urged that the Board
abandon this test and revert to the correct test of wheth-
er a union’s conduct towards employees when a request
for their removal is made constitutes an arbitrary act.
In the case at hand there is no evidence of arbitrary
conduct by the Union. The complaint therefore should
be dismissed.
I do not agree.
In Hotel & Club Employees Local 568 v. NLRB, 320 F.2d
254, 258 (3d Cir. 1963), enfg. 136 NLRB (1962), the United
States Court of Appeals for the Third Circuit stated:
The comprehensive authority vested in the union, as
the exclusive agent of the employees, leads inevitably
to employee dependence on the labor organization.
There necessarily arises out of this dependency a fidu-
830 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
31 See for example Hemsley-Spear, Inc., supra; Teamsters Local
122 (August A. Busch), supra; Conduction Corp., supra.
32 Decisions of the United States Supreme Court.
33 It is my belief that the basic underlying proposition in both the
courts and Board rulings in this area is fairness; therefore, under ei-
ther test this would require adequate notice and an opportunity to
undertake the action necessary to protect and retain his employment
when a union seeks an employee’s discharge for failure to pay his
dues.
34 I recognize that this Employer is in the building construction in-
dustry which could give rise to questions of job longevity, job avail-
ability, etc., but any such problems can properly be addressed at the
compliance stage of these proceedings.
35 R. H. Macy & Co., supra.
36 Laborers Local 334 (Burdco Environmental), 303 NLRB 350
(1991).
37 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.
ciary duty that the union deal fairly with employ-
ees. . . . At the minimum, this duty requires that the
union inform the employee of his obligations in order
that the employee may take whatever action is nec-
essary to protect his job tenure.
The Board has accepted this principle and has consistently
held that labor organizations seeking to enforce valid union-
security provisions have a fiduciary duty to advise employees
of their contractual obligations to maintain membership in
good standing before initiating any adverse action against
them.31 Moreover, both the courts and the Board have ac-
cepted this as a salutary rule.
As an administrative law judge I am bound to follow
court32 and Board law. Any request that the Board abandon
an established principle, rule, or test is necessarily solely
within the purview of the Board’s consideration and
decisional process, of course subject to judicial review.
Therefore, although I feel that the Respondent Union has
failed to establish any significant reason for the Board to
abandon its fiduciary duty test, I make no ruling as regards
its motion to dismiss on this ground.33
From all the foregoing, I find and conclude that the Re-
spondent Union violated Section 8(b)(1)(A) and (2) of the
Act when it caused and attempted to cause Buffington’s dis-
charge by the Employer for his failure to pay dues without
giving him a reasonable period of time to meet this obliga-
tion.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent Union set forth in section
III, above, found to constitute unfair labor practices occur-
ring in connection with the operations of the Employer de-
scribed in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes bur-
dening and obstructing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent Union has engaged in
unfair labor practices within the meaning of Section
8(b)(1)(A) and (2) of the Act, I shall recommend that it be
ordered to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
Having found that the Respondent Union unlawfully
caused the termination of Jay Buffington, I will recommend
that it be ordered (1) to notify the Employer that it has no
objection to the reemployment of Jay Buffington; (2) to seek
Jay Buffington’s reinstatement with the Employer; and to
make Jay Buffington whole, with interest, for any loss of
earnings and other benefits he may have suffered by reason
of the discrimination against him from the date of his termi-
nation until he is reinstated to his former or substantially
equivalent position or he obtains substantially equivalent em-
ployment. Loss of earnings shall be computed in the manner
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950).
Interest shall be computed in the manner prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987).34
I shall also recommend that the Respondent Union be or-
dered to remove from its files any reference to Buffington’s
unlawful termination and shall be required to notify
Buffington, in writing, of its actions and inform him that his
unlawful termination shall not be used as a basis for future
action against him. Further, the Respondent Union shall be
required to ask the Employer, Acrom Construction Service
Co., Inc., to remove from its files any reference to
Buffington’s termination and shall notify Buffington that it
has asked this Employer to do so.35
CONCLUSIONS OF LAW
1. Acrom Construction Service Co., Inc. is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Respondent Union is a labor organization within
the meaning of Section 2(5) of the Act.
3. By attempting to cause and causing Acrom Construction
Service Co., Inc. to discharge Jay Buffington for his failure
to pay his quarterly dues without providing him an adequate
opportunity (reasonable period of time) to undertake the ac-
tion necessary to protect and retain his employment, the Re-
spondent Union, United Brotherhood of Carpenters and Join-
ers of America, Local 296, has engaged in unfair labor prac-
tices affecting commerce within the meaning of Section
8(b)(1)(A) and (2) and Section 2(6) and (7) of the Act.36
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended37
ORDER
The Respondent, United Brotherhood of Carpenters and
Joiners of America, Local 296, its officers, agents, and rep-
resentatives, shall
1. Cease and desist from
(a) Causing or attempting to cause Acrom Construction
Service Co., Inc. to discharge or otherwise discriminate
against Jay Buffington or any other employee for failure to
tender to the Respondent Union periodic dues, without giving
them an adequate or reasonable period of time to pay such
dues.
(b) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
831CARPENTERS LOCAL 296 (ACROM CONSTRUCTION)
38 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.’’
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Notify the Employer that it has no objection to the re-
employment of Jay Buffington and seek Buffington’s rein-
statement with Acrom Construction Service Co., Inc.
(b) Make Jay Buffington whole, with interest, for any loss
of earnings and other benefits he may have incurred as a re-
sult of the discrimination against him. Backpay shall be com-
puted in the manner prescribed in the remedy section of this
decision.
(c) Remove from its files, and ask the Employer to remove
from its files, any reference to Jay Buffington’s unlawful dis-
charge and notify him, in writing, that this has been done
and that evidence of this action shall not be used as a basis
for future action against him.
(d) Post at its facility in Brooklyn, New York, copies of
the attached notice marked ‘‘Appendix.’’38 Copies of the no-
tice, on forms provided by the Regional Director for Region
29, after being signed by the Respondent Union’s authorized
representative, shall be posted by the Respondent Union im-
mediately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where notices
to members are customarily posted. Reasonable steps shall be
taken by the Respondent Union to ensure that the notices are
not altered, defaced, or covered by any other material.
(e) Forward a sufficient number of signed copies of the
notice to the Regional Director for Region 29 for posting by
Acrom Construction Service Co., Inc., at its place of busi-
ness in New York, New York, in places where notices to
employees are customarily posted, if the Employer is willing
to do so.
(f) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT cause or attempt to cause Acrom Construc-
tion Service Co., Inc. to discharge or otherwise discriminate
against Jay Buffington or any other employee for failure to
tender periodic dues without giving him a reasonable period
of time to do so.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL notify Acrom Construction Service Co., Inc. that
we have no objection to the reemployment of Jay Buffington
and WE WILL seek his reinstatement with the Employer.
WE WILL make Jay Buffington whole, with interest, for
any loss of earnings and other benefits he may have incurred
by reason of our discrimination against him.
WE WILL remove from our files and WE WILL ask the Em-
ployer to remove from its files any reference to Jay
Buffington’s discharge and WE WILL notify him, in writing,
that this has been done and that evidence of this action shall
not be used as a basis for future action against him.
UNITED BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, LOCAL 296