Harsh Investment Corporation d/b/a The Claremont Resort Hotel and Tennis Club

National Labor Relations Board - Board Decisions

Mar 22, 1982

260 N.L.R.B. 1088 (N.L.R.B. 1982)

DECISIONS OF NATIONAL I ABOR RELATIONS BOARD
Harsh Investment Corporation d/b/a The Claremont
Resort Hotel and Tennis Club and Donald Schi-
mizzi.
Service Employees International Union, Local No.
18, AFL-CIO and Donald Schimizzi. Cases
32-CA-2884 and 32-CB-799
March 22, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 17, 1981, Administrative Law Judge
Michael D. Stevenson issued the attached Decision
in this proceeding. Thereafter, Service Employees
International Union No. 18, AFL-CIO (herein the
Union), and Harsh Investment Corporation d/b/a
The Claremont Resort Hotel and Tennis Club
(herein the Employer) filed exceptions and support-
ing briefs. The General Counsel then filed a brief
in support of the Administrative Law Judge's De-
cision and the Charging Party filed a brief in
answer to the exceptions filed by the Union and
the Employer. t
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.:'
' The Union also filed a motion to reopen the record for the purpose
of completing an exhibit 1There was no opposition to this nlotion. It
therefore is granted for the express purpose if accepting p 2 of the cid-
lective-bargaining agreement. ( C Exh 2, which was inad\ertently
omitted at the hearing.
2 The Administrative Law Judge's remedy and recommended Order
correctly require Respondent Uniion anid Respondent Employer to jointly
and severally make Schimizzi whole for any loss of earnings incurred as a
result of their unlawful conduct Also, the recommended Order correctl
requires Respondent Union to notify Schinmizzi anld Respondetnt Emplo'-
er that it no longer objects to Schimizzi's emplonmernt However. the Ad-
ministratise Lasw Judge failed to state that Respondenit Uniion's backpav
liability shall terminate 5 days after it gives the required nlotificatioin It
Respondent Employer and Schimizzi Respondent Employer shall termi-
nate its backpay liability on the date it offers Schimizzi reemploymenl
For the reasons fully set forth in C B. Display Srvice, Inc,. 260 NL RH
1102 (1982), we cannot agree with our dissenting colleague that the
remedy prescribed in Sheet Metal Workers' Union Local 355, Sheet Metal
Workers' International Association, AFL-CIO (Zinsco Electrical Products),
254 NLRB 773 (1981), is applicable in the circumstances of this case See
also Q. L. Construction, Inc., 260 NLRB 1096 (1982). Further. we
cannot agree that Jimmy Ktlgore Irucking Company. 254 NL RJ 935
(1981)-cited by our colleague-lends support to his position In Jimmy
Kilgore, an employer that discharged an employee was neither joined as a
party in the case nor found to be culpable in ally respect for the employ-
ee's discharge Rather. the respondent employer was found to hase un-
lawfully caused the nonrespondent emploser to discharge the employee
Significantly. in Jimmy Kilgore, as in Zinmco, there was only one trans-
gressor and that party was properly held fully responsible for remedinlg
its unfair labor practices. Here, unlike Jimio,t Kilgore and Zinsco, two par-
260 NLRB No. 34
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Harsh
Investment Corporation d/b/a The Claremont
Resort Hotel and Tennis Club, Oakland, California,
its officers, agents, successors, and assigns, and Re-
spondent, Service Employees International Union,
Local No. 18, AFL-CIO, its officers, agents, and
representatives, shall take the action set forth in the
said recommended Order, except that the attached
notices are substituted for those of the Administra-
tive Law Judge.
MEMBER JENKINS, dissenting in part:
I agree with my colleagues that Respondent
Union and Respondent Employer violated the Act
by their actions taken against employee Donald
Schimizzi in February 1980, and that each Re-
spondent should be ordered to remedy the viola-
tions found in this proceeding. Contrary to my col-
leagues, however, I would not terminate Respond-
ent Union's backpay liability 5 days after its notifi-
cation to Respondent Employer and Donald Schi-
mizzi that it has no objection to Schimizzi's em-
ployment.
The Board has held that "the proper and effec-
tive realization of statutory policy . . . requires
that a transgressor should bear the burden of the
consequences stemming from its illegal acts."4 My
majority colleagues do not dispute that Respondent
Union unlawfully caused Schimizzi's discharge.
Indeed, it cannot be gainsaid that Respondent
Union set in motion the chain of events, and was
the motivating force, that led to Schmizzi's dis-
charge.
ties have been fotund to have coinnmitted unfair labor practices Respond-
eni Employer, with the power and authority to offer reinstatement to the
discriminatee, has been found culpable, along with Respondent Union. for
the discrinlinatory discharge of Schimizzi Accordingly, under these cir-
cumstances, Respondent Union may properly end its backpay liahility 5
days after it notifies Respondent I mployer and Schimizzi that it has no
objection to the employment or Schimizzi
Respondent Union has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
hility unless the clear prepoinderance of all of the relevant evidence con-
minces us that the resolutions are incorrect Standard DO' Wall Products.
Inc. 41 NILRB 544 (I950), en(dl I8S F2d 362 (3d Cir 1951). We have
carefully exanmined the record and find no basis fir reversing his findings.
Further, as the Adninistratise I aw Judge credited Charging Party
Schimizzi's version of the events. it is unnecessary Ito rely on the Admin-
istrative L aw Judge's conminents contained in fn 6 of his [)ecision
' In accordance with hi, dissent in Oh0tmpic Medical Corporation, 250
NL RB 146 1 Q80). Member Jenkins would award interest on the backpay
due based ion the formlula set fiorth therein
' Sheet .uretal Wiorker' I'nrn 1Iocal 355. Sheetr itral Worker' Interna-
tional o4ot ioin,rr .4i--C(IO (Zitcoi Electri-al Produre)., 254 NLRB 773
(l9811
IO188
THE CLAREMONT RESORT HOTEL AND TENNIS CLUB
Despite Respondent Union's clear violation of
the Act, my colleagues allow Respondent Union to
limit its backpay liability simply by giving notice to
the Employer that it has no objection to Schimiz-
zi's hire. Unlike my colleagues, I would not toll
Respondent Union's liability for backpay 5 days
after tendering appropriate notice, but thereafter
would hold it secondarily liable to remedy the il-
legal action. 5 The effect of continuing to hold
liable the party that caused the discriminatory con-
duct, albeit secondarily liable after the appropriate
notices, will assure to the fullest possible extent
that the injured employee will be made whole. 6 In
all other respects, I agree with my colleagues' deci-
sion.
s See my partial dissenting opinions in C B. Display Service, Inc. 260
NLRB 1102; and Q II. Construction, Inc., 260 NLRB 1096 (1982)
6 It was this same purpose, to assure to the fullest possible extent that
the injured employee will he made whole, that underpins the Board'\ de-
cision in Zinteo Ellctrical ProductA, vupra See also Jimmy Kilgore 7Truck-
ing Company. 254 NI.RB 935 (1981), where the Board did not accept the
Administralive Law Judge's proposed remedy to the extent that it limited
the respondent's backpay liabillty to a period prior to the date respondent
notified discharges Smith's former employer that it had no objection to
the latter's employment of Snmith Instead, the Board required the re-
spondent to make whole Smith for all losses of wages and benefits suf-
fered by him as a result of the respondent', unlawful action until Smith
either was reinstated to his fiormer or subslanlially equitalent positon or
until he obtained substantially equivalent employment clsewhere
Thus Respondent Union here is like the respondent employer in Jinmm
Kilgore because each caused the discriminatory conduct but neither was
itself the employer of the discriminatee and, hence, in a position to return
the discriminatee to his "former position " Bs holding Respondent Inion
secondarily liable after it tenders appropriate notices, the ultima;te respoin-
sibility for making the victim whole will be placed on the parts that
caused the discrimiator)y conduct, fully in cases oaith a single transgres-
sor and secondarily in cases with another named respondent who fails to
satisfy its obligations under a Board order IThere is no compelling reason
in logic or policy for differentiating such case, since in both iypes the
party that caused the discriminatory conduct hecomes responnible for the
obligation occurring after the 5-day notice ,,iv because the dlscriminalee
would not otherwise be made whole In sum, like Smith in Jimmy Al/-
gore, Schimlri "will be assured of being made whole to the fullest porsi-
ble extent
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARI)
An Agency of the United States Government
WE WILL NOT encourage your membership
in Service Employees Union, Local No. 18,
AFL-CIO, or in any other labor organization,
by discriminating in regard to your hire or
tenure of employment or any term or condi-
tion of employment except to the extent per-
mitted by the proviso to Section 8(a)(3) of the
National Labor Relations Act, as amended.
WE WIL.L NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the Act, except to the
extent that such rights may be affected by an
agreement requiring membership in a labor or-
ganization as a condition of employment, as
authorized by Section 8(a)(3) of the Act.
WE WILL offer Donald Schimizzi immediate
and full reinstatement to his former job or, if
such job no longer exists, to a substantially
equivalent job, without prejudice to his senior-
ity or other rights and privileges previously
enjoyed, and WE WILL make him whole, with
interest, for any loss of earnings he may have
suffered by reason of the discrimination against
him as a result of his discharge on February
22, 1980, to the date we offer him reinstate-
ment and will, jointly and severally with Serv-
ice Employees International Union, Local No.
18, AFL-CIO, reimburse him with interest for
any loss of earnings suffered as a result of the
discrimination practiced against him.
HARSH INVESTMENT CORPORATION
D/B/A THE CLAREMONT RESORT
HOTEL AND TENNIS CLUB
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT fail to give reasonable
advance notice to our members that they are
about to become delinquent in their dues and
our notice to such members shall contain the
following:
1. The amount of dues owed.
2. The months for which dues are owed
and the method of calculating the impending
dues delinquency.
3. The last day upon which the specified
amounts can be paid to the Union.
WE WIL L NOT fail to carry out our fiduciary
responsibility to our members by failing to
give them reasonable notice of their dues de-
linquency which would authorize us to require
any company to terminate them under the
union-security provision of our collective-bar-
gaining agreement with the affected company.
WE WILL NOT fail in our fiduciary responsi-
bility to our members by implementing the
union-security provision of our contract with
any company in an arbitrary and capricious
way so as to lead to the termination of our
1089
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members of their loss of employment, senior-
ity, or other rights and privileges.
WE WILL NOT cause or attempt to cause
Harsh Investment Corporation d/b/a The
Claremont Resort Hotel and Tennis Club to
discriminate against Donald Schimizzi, or any
other employee, in violation of Section 8(a)(3)
of the Act.
WE WILL notify Harsh Investment Corpora-
tion d/b/a The Claremont Resort Hotel and
Tennis Club, if we have not already done so,
in writing, that we withdraw all our objections
to the Company employing Donald Schimizzi,
and in the letter we shall request his full rein-
statement and the restoration of his full senior-
ity rights and other rights and privileges as
though his employment and recall rights had
never been interrupted.
WE WILL jointly and severally with the
above-named Employer make Donald Schi-
mizzi whole for any loss of pay suffered by
him because of the discrimination against him,
with interest.
WE WI l. NOT in any like or related manner
restrain or coerce employees inthe exercise of
the rights guaranteed them in Section 7 of the
Act, except to the extent that such rights may
be affected by our lawful application and im-
plementation of an agreement requiring mem-
bership in a labor organization as a condition
of employment.
SERVICE EMPI.OYEES INTERNATION-
Al UNION, LOCAL NO. 18, AFL-CIO
DECISION
STAT MENTI OF IHE CASI.
MICHAEL D. STEVENSON, Administrative Law Judge:
This case was heard before me at Oakland, California, on
March 3, 1981,' pursuant to an order consolidating cases,
consolidated complaint, and notice of hearing issued by
the Regional Director for the National Labor Relations
Board for Region 32 on August 29, based on a charge
filed by Donald Schimizzi (herein called Schimizzi or
sometimes Charging Party) on July 18. The complaint al-
leges that Harsh Investment Corporation d/b/a The
Claremont Resort Hotel and Tennis Club and Service
Employees International Union, Local No. 18, AFL-
CIO (herein called the Employer and the Union, respec-
tively), have engaged in certain violations of Sections
8(a)(1) and (3) (as to Employer) and 8(b)(2) and (I)(A)
(as to Union) of the National Labor Relations Act, as
amended (herein called the Act).
'All dates herceit refer to Iq8) unless otherwise indicated.
ISSUES
Whether Schimizzi was discharged by the Employer
upon the Union's demand because Schimizzi failed to
make timely payment of union dues and other fees, and,
if so, whether one or both Respondents violated the Act
under the facts and circumstances of this case.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which have been carefully considered, were filed on
behalf of the General Counsel, the Employer, and the
Union.
Upon the entire record of the case, and from my ob-
servation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS
Respondent Employer admits that it is an Oregon cor-
poration which operates a hotel located in Oakland, Cali-
fornia. It further admits that during the past year, in the
course and conduct of its business, its gross volume ex-
ceeded $500,000 and that annually it purchases and re-
ceives goods and materials valued in excess of $5,000
from suppliers located outside the State of California.
Accordingly, it admits, and I find, that it is an employer
engaged in commerce and in a business affecting
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Respondent Union admits, and I find, that it is a labor
organization within the meaning of Section 2(5) of the
Act.
iii. THE ALL EGED UNFAIR LABOR PRACTICES
A. The Facts
The Employer and the Union had a collective-bargain-
ing agreement effective from June 1977 through May.
One provision of this contract requires that bargaining
unit employees shall, not later than the 31st day follow-
ing the beginning of each employee's employment join
the Union and remain members in good standing. (G.C.
Exh. 2.)2 Schimizzi began his employment at the Clare-
mont on August 1, 1979, as a houseman or janitor. His
work was satisfactory and he continued his employment
on a steady basis until his discharge on February 22.
Pursuant to the collective-bargaining agreement, Schi-
mizzi joined the Union shortly after he began employ-
ment. He paid a $60 initiation fee and then paid monthly
dues of $9 on a regular basis through and including
November 1979. 3 Due to serious family illness, Schimizzi
'A portion of G C Exh 2, i.e., p 2, appears to be missing although
there 'was no claim at hearing it was incomplete. Its absence from the
exhibits cannot he accounted fir.
' In its brief, the Union inadvertently states. that "the last time on
'Which Schimizzi paid dues W.as February 27, 1979"
1090
THE CLAREMONT RESORT HOTEL AND TENNIS CLUB
did not pay his December 1979 nor his January dues.
The Employer agreed to permit Schimizzi a 2-week
leave of absence to attend to this illness out of State. He
returned on January 3.
Union bylaws articles VI, section 5-8, deal with the
payment of union dues and fees and the results of a fail-
ure to keep current:
LOCAL 18-SEIU, AFL-CIO
Sec. 5. Any member failing to pay dues and as-
sessments of the Local Union on or before the last
day of the month in which the same are due, shall
stand automatically suspended from membership in
this Local Union, and from all rights and privileges
of such membership. Any suspended member may
be readmitted to membership within sixty (60) days
after automatic suspension upon payment of back
and current dues, but in no event shall such read-
mission restore any privileges, death gratuities or
other benefits. Any member who has been in sus-
pension for a period greater than sixty (60) days can
be readmitted upon the payment of a readmission
fee of fifteen dollars ($15.00), in addition to the
amount of dues, fines, and assessments owed, but in
no event shall such readmission restore any privi-
leges, death gratuities or other benefits.
Sec. 6. All members of the Local Union are under
a positive duty to see that their dues are paid on or
before the last day of the month in which the same
are due at the office of the Local Union.
Sec. 7. The failure of a steward or any officer of
the Local Union to appear or to collect the dues
shall not in any manner excuse the member from his
obligations to pay his dues on or before their due
date at the office of the Local Union.
Sec. 8. A suspended member who pays up his
back dues and assessments shall, from the date of
such payment, be considered the same as a new
member. [G.C. Exh. 6.]
Thus by February, Schimizzi owed his dues for 2 months
and a $15 readmission fee.4 On February 11, the Union
sent Schimizzi notice that he owed $42 and further
notice that such amount must be paid "on or before 2-
18-80, or [you will be] removed from your job." (G.C.
Exh. 5.) This notice was sent to 442 37th Street, Oakland,
California, an address that Schimizzi had moved from on
January 8. Schimizzi did not notify the Union of his new
address, but he did leave a change of address form with
his former post office. Notwithstanding the change of ad-
dress form, the post office delivered the form to Schimiz-
zi's old address. There the new occupant gave it to a
friend of Schimizzi's who finally gave it to him on
Sunday, February 17. Before continuing this chronology,
it is necessary to return to the date of February 1.
On that date of February II, Schimizzi obtained a
money order for $27 from a local savings and loan. He
testified that he mailed it in a properly addressed enve-
lope to the Union's business office in Oakland and I
' With the Fehruary panment, not due until Ihe end (If the ninlh.
Schimizzi moscd 542
credit his testimony.5 No record of the Union indicates
when it was received in their office since the $27 was
considered a partial payment which was not recorded on
Schimizzi's payment record pursuant to longstanding
policy against acceptance of partial payment. No attempt
was made to reach Schimizzi to inform him he was still
subject to loss of employment. Schimizzi testified that he
was never told of the $15 readmission fee nor was he
ever given a copy of the Union's bylaws. There is no
evidence to the contrary and I credit his testimony.
Returning then to February 17, the date of Schimizzi's
first knowledge that he was still delinquent in his union
dues, I note that he attempted to reach a union official
on February 18, but due to Washington's Birthday, a
union-recognized holiday, he was unable to do so. Final-
ly, on February 19, a Tuesday, Schimizzi reached
Charles Garner, president of Local 18, at the union
office by telephone.
The contents of the telephone conversation are disput-
ed by the parties. According to Garner, Schimizzi told
him that he did not have enough money to pay all that
was due. Garner told him to get the money and drop it
in the mail slot of the business office before the start of
business on the next day. If this were done, the Union
would call the employer and Schimizzi would not lose
his job. Garner denied that Schimizzi stated that he had
already mailed in his $27 and Garner denied that he oth-
erwise knew this. No records of the Union indicate
whether the $27 had been received by then.
According to Schimizzi, he told Garner that he had
just received a copy of the suspension notice on Febru-
ary 17 and he explained the problem with his change of
address. He further told Garner that he had sent the $27
payment on February I . Then Garner asked him to
bring in $15 right then. Schimizzi explained that he was
then on a lunch break at work, did not own a car, and
asked whether it would be all right to mail in the pay-
ment. Garner said that, if he mailed the $15 then, it
would be all right. Acting on Garner's statement, Schi-
mizzi purchased a $15 money order at the same place as
before and mailed it to the Union.
I credit Schimizzi's version of events. First, Garner
testified that his local had 2,300 members and that he re-
ceived numerous phone calls daily from members about
different matters. He made no notation of the conversa-
tion and his recollection was not as good as Schimizzi's.
Furthermore, while Schimizzi would have found it diffi-
cult to get to the union office then, was off for the next 2
days and, had he not believed that Garner would permit
him to mail the payment, he undoubtedly would have
gone to the union office the next day or even at the end
of that day's shift since he apparently worked 7 a.m. to
3:30 p.m. Furthermore, I do not believe that Schimizzi
would not have mentioned that he had mailed in 3
months' dues about a week before. 6
' No reairn as, suggested why Schinmizzl would get the money order
-in Fehrlualr II. but not mall i iimmediately ti He had e ery reason to mail
It immr dlatels oand the' n1Ion'is e.idence is cltirely l.'nllsllent with a mail-
Ilg in Ihe Februars I 1
B Hy credltiig Schlillzi, I find only that he understlood and beliesred
(i.lriltr to hils .l;id that puiinig the parmcnll in the maihbox xas accept-
Cointinued
1091
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When the Union mailed out the February 11 suspen-
sion notice, discussed above, a copy was sent to the Em-
ployer. It was received by Emily Graham, the Employ-
er's personnel director at that time. Routinely, she in-
formed Patricia Didlake, the Employer's executive
housekeeper and Schimizzi's immediate supervisor. Schi-
mizzi was off on February 20 and 21 and he was due to
begin at 7 a.m. on February 22. Since Didlake did not
report for work until 8:30 a.m., she pulled Schimizzi's
timecard before she left for home on February 21.
At 7 a.m. on February 22, Schimizzi reported for
work and found his timecard missing. For 90 minutes he
waited for Didlake to appear. When she did, he was told
he was being terminated for nonpayment of union dues.
Schimizzi told her that he had "cleared the matter with
the Union" and paid his dues, but Didlake told him,
while she was sympathetic, there was nothing she could
do.
After his discharge, Schimizzi called the union office
and talked to Elizabeth LaBarr, business agent for the
hotels. LaBarr explained that he was terminated because
his entire delinquency had not been cleared up by Febru-
ary 18. There was nothing she could do. At Schimizzi's
insistence, LaBarr transferred the call to Garner, who
generally reiterated LaBarr's comments.
Shortly after he was terminated, Schimizzi received
four receipts in the mail from the Union. These reflect
that Schimizzi was paid up for December 1979, January,
and February and had paid his $15 late fee. The date of
these four receipts was February 21, the day before Schi-
mizzi had been fired by Didlake. (G.C. Exh. 10(a-d).)
B. Analysis and Conclusions
1. The case against the Union
A union may cause an employee's discharge pursuant
to a union-security clause only for "failure to tender the
periodic dues and the initiation fees uniformly required
as a condition of acquiring or retaining membership."'
However, because of the severe penalties attendant to
failure to make timely payment, i.e., loss of employment,
the Board and the courts have imposed a kind of proce-
dural due process upon unions so that employees are not
subject to needless discharge.
In United Metaltronics and Hospital Supply Employees,
Local 955, (Pharmaseal Laboratories, Inc.), 254 NLRB
601, 606 (1981), the Board approved the Administrative
Law Judge's statement of law taken from an earlier case:
In Chauffeurs, Salesdrivers & Helpers Union, Local
572, IBT (Ralphs Grocery Company), 247 NLRB
[934, 935 (1980)], the Board summarized the appli-
cable law governing the scope of a union's fiduciary
duty to inform employees of their obligations under
a valid union-security clause, as follows:
We find merit in the General Counsel's conten-
tion that a "reasonably couched effort" to notify
able It is not necessary Ito as.certain w hether G(arner acilually said this. As
to the other details of the convlersaltioll I credit Schimizzi's version for
the reasons given in the text
' See N.L.R.B v (Jen erl Motors Corporatron, 373 U S 734 11963)
Roy of her membership obligations is not suffi-
cient under Section 8(b)(1)(A) and (2) to satisfy
the Union's fiduciary duty to her. In N.L.R.B. v.
Hotel, Motel & Club Employees' Union, Local 568,
AFL-CIO (Philadephia Sheraton Corp.)6 the Third
Circuit held that the "minimum" requirement of
this duty is to "inform the employee of his obli-
gations in order that the employee may take
whatever action is necessary to protect his job
tenure." In Teamsters Local Union No. 122
(August A. Busch & Co. of Mass., Inc.),7 the Board
specifically [defined] the union's duty as includ-
ing "a statement of the precise amount and
months for which dues were owed, as well as an
explanation of the methods used in computing the
amount" plus "an adequate opportunity to make
payment." In Chauffeurs, Teamsters and Helpers
Local Union 150 et al. (Delta Lines),8 we stressed
that inquiries made by an individual as to his to
her obligations do not relieve a union of its af-
firmative duty under the Act specifically to
inform an individual of his obligations and afford
him a reasonable opportunity to satisfy them
before seeking his discharge under a union-
security clause.
;320 F.2d 254. 258 (1963), enfg 136 NLRB 888 (1962)
7203 NLRB 1041, 1042 (1973), enfd. 502 F.2d 1160 (lst Cir
1974)
' 242 NLRB 454. 455 (1979).
In applying the above statement of law to the facts of
the instant case, I find several deficiencies in the Union's
actions. First, the February 11 notice was inaccurate be-
cause it did not contain a statement of the precise
amount and months for which dues were owed. That
notice stated that Schimizzi owed $42. Yet, according to
Garner, "Monthly dues are payable on or before the last
day of each month." Accordingly, as of February II1,
Schimizzi owed only $33, not $42. Further, there was no
explanation of the methods used in computing the
amount. In this respect, I note Schimizzi's testimony that
he never received a copy of the Union's constitution and
bylaws. In the absence of any evidence that he did or
that he was negligent in not receiving it, I credit his tes-
timony which further strengthens his case for lack of
proper notice. 8
Although I find that the Union's notice to Schimizzi
was fatally defective,9 I also note that he was not given
an adequate opportunity to make payment. He received
the Union's defective notice on February 17. In this re-
spect, I note that Schimizzi had moved to a new address
without informing the Union, but he did leave a change
of address with the proper U.S. Post Office. The post
office did not forward the notice to the new address, but
' In another context, the Board has held that a union's constitutional
provision is not a substitute for proper notice Inlernational Association of
uachiniort and Aero.space Wiorkers, District No. 71. Local 778, 224 NLRB
58) (1976)
' .L.R. B v Local 1445, U niteid bixd and Commercial Workers Inter-
national Union, AFL-CIO [GCullahue' Supermurketsl]. 647 F.2d 214 (Ist
Cir 1981).
1092
THE CLARFMONT RESORT HOTFL AND TENNIS CLUB
misdelivered it to the old address, where a new tenant
was then residing. Schimizzi should not be penalized due
to the mistake of the post office. "' Thus, even if I were
to credit Garner, the I-day's notice he testified he gave
Schimizzi on February 19 is inadequate and does not
comport with the Union's fiduciary duty. Indeed, I have
credited Schimizzi's testimony below, that he was either
told or understood that he was told that placing the
missing $15 in a mailbox was permissible.
For still another reason, I must find that the Union
violated the Act as alleged. On February 21, the Union
formally accepted Schimizzi's delinquent dues and the
readmission fee. Technically, $33 of that money was due
on February 18. Because that date was a recognized holi-
day, the money was due on February 19. 1 find that, by
accepting the money on February 21, including $9 which
was not due until the end of February, the Union waived
its right to enforce a union-security agreement by re-
questing the employee to discharge Schimizzi for failure
to pay union dues and fees on a timely basis.
In N.L.R.B. v. Brotherhood of Teamsters and Auto
Truck Drivers Local 85 [Pacific Motor Trucking Co.], 458
F.2d 222, 225 (9th Cir. 1972), the court affirmed in rele-
vant part a Board order holding that where a union had
accepted a tender of dues after it had requested an em-
ployee's discharge, the union had waived the asserted de-
linquency as a ground for discharge under the union-
security agreement." In this case, I find that the Union
accepted two payments from Schimizzi: the first received
on or about February 14; the second received on or
about February 21. The Union had a policy against ac-
ceptance of partial payments, but it neither sent the $27
back nor notified Schimizzi that he owed additional
moneys. Accordingly, as of receipt of the first payment,
the Union waived its right to enforce the security agree-
ment on this basis as well, as because of the defective
notice discussed above, I find it violated the Act by
causing Schimizzi's discharge.
For the above-stated reasons, each of which is suffi-
cient by itself to compel a finding that the Union has
violated Section 8(b)(2) and (1)(A) of the Act as alleged,
I so find. 12
'° Cf. District 9. Internaional .s.ocioation of Machinist. and .4erospace
Workers, .41L-CIO (,.arvel-Schebzer. Division of Borg- Uarner Ciorp J. 237
NLRB 1278 (1978)
" See also F J Burns Draying. Inc. 129 NLRB 252 (1964)): compare
Larkins v N.L.R R. 596 F2d 240 (7th Cir 1979). where the union ac-
cepted a reinstatement fee prior to the employee's discharge, but then re-
turned it within a week's time The court refused to enforce the Board's
order finding the union had violated the Act In the instant case, the
Union never returned the money While Larkmns did not enforce a Board
order and therefore is not binding on me in an. event. it is nevertheless
instructive because the case does recognize the general rule ion 'A hich I
rely:
In the proper circumstances, when a union accepts even a partial
tender of this sort after it has requested that the Company discharge
the employee. it waises its right to pursue the discharge [596 F 2d at
247.1
Accordingly. I find that even as early as February 14 u hen the Unionr
likely received Schimizzi's S27. which had been mailed on Fcbrular II.
the waiver was effective It makes no difference that the Union did not
immediately apply the partial payment to its books
2Z In its brief, the Union raises certain matters w.hich are either irrele-
vant to the case or support the General Counsel's case: as examples of
the former, that Schimizzi took a withdrawal from the Union. and that he
2. The case against the Employer
While the evidence against the Union is overwhelm-
ing, the evidence against the Employer presents a closer
case. I begin with the recent case of Ialley Cabinet &
Mfg., Inc., 253 NLRB 98X (1980), where, in a case similar
to that at bar, the Board reversed an Administrative Law
Judge's finding that the employer violated Section 8(a)(3)
and (I) of the Act by discharging an employee at the
union's request. In that case, the Board set forth the ap-
plicable statement of law:
Section 8(a)(3) of the Act makes it an unfair labor
practice or an employer to discriminate in regard to
hire or tenure of employment to encourage or dis-
courage union membership, but allows an employer
to enter into a valid union-security agreement and
abide by its terms under the following proviso:
Provided further, That no employer shall justify
any discrimination against an employee for non-
membership in a labor organization (A) if he has
reasonable grounds for believing that such mem-
bership was not available to the employee on the
same terms and conditions generally applicable to
other members, or (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.
Thus, an employer is held to a lower standard
than the union under this proviso to Section 8(a)(3)
of the Act; that is, it violates the Act only when it
discharges an employee at the request of the union
when it was "reasonable grounds for believing" that
the request was unlawful. Forsyth Hardwood Compa-
ny, 243 NLRB 1039, 1040 (1979); Conductron Corpo-
ration, a subsidiary of McDonnell Douglas Corpora-
tion, 183 NLRB 419, 429 (1970).
Applying the law to this case, I am constrained to find
that the Employer violated Section 8(a)(l) and (3) of the
Act by its termination of Schimizzi. First, Didlake pulled
his card on February 21 before she went home, knowing
that Schimizzi would have to wait 90 minutes at her
office door until she came in to terminate him. Had Did-
lake called him at home on February 21 to tell him that
she had been forced to fire him, then presumably he
would have reported the next morning with his money
order receipts in hand as proof he had paid the Union. In
its brief, the Employer faults Schimizzi for not producing
documentation to substantiate his claim. How he would
have known, on February 22, to bring these receipts
with him is not explained and I find that Schimizzi had
no reasonable basis to believe the receipts would be help-
ful.
"rote letters to the IUnion lacking in literary) merit as examples of the
latter, that Schimiuzi hired an attornesy .hi detmn ided from the I non
hackpas and damages As to a defense on the merrits the lniotn lites nor
a single case aind I reject its factual clMnieTitent s
1091
DECISIONS OF NA I IONAL I ABOR RELATIONS BOARD
For me, however, the case turns on Schimizzi's state-
ments to Didlake on the morning of February 22, that he
had cleared the matter with the Union and paid the de-
linquent fees. In reversing the Administrative Law Judge
in Valley Cabinet & Mfg., Inc., supra, the Board noted
that a crucial element in its decision was the failure of
the employee to protest her discharge or to indicate in
any other way that the letter requesting her discharge
was incorrect. In the instant case, I find that Schimizzi
did all that he could to put the Employer on notice that
something was amiss. Since Schimizzi's work had been
satisfactory, Didlake had no reason to disregard his
pleas.
In its brief the Employer argues that:
Even if The Claremont had attempted to ascertain
Schimizzi's status with the Union on February 22,
1980, it would have been faced with exactly the
conflicting statements now before the Board. Pre-
sumably, the Union president would have main-
tained . . . that Schimizzi had not paid the full
amount before the deadline while Schimizzi would
have claimed that he had been granted an extension.
Of course, what the union president might have said, if
asked, is idle speculation. However, somebody at the
Union undoubtedly would have looked at Schimizzi's
record card (G.C. Exh. 3) and discovered that, as of
February 21, Schimizzi was up to date on his dues and in
good standing with the Union. Undoubtedly, a spirit of
concern for its own welfare, if not concern for Schimiz-
zi's would have motiviated the Employer to defer firing
Schimizzi until the Union provided additional facts and
explanations. Yet the Employer never called the Union.
Under the circumstances present herein, it had a duty to
make further inquiry of the Union before firing Schi-
mizzi. That is, the Employer had reasonable grounds for
believing the Union's request to terminate Schimizzi was
unlawful. Because they did not make further inquiry, I
am constrained to find that, like the Union, the Employ-
er has violated the Act, as alleged.
CONCLUSIONS OF LAW
I. Respondent Harsh Investment Corporation d/b/a
The Claremont Resort Hotel and Tennis Club is engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Respondent Service Employees International Union,
Local No. 18, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent Union has violated Section 8(b)(1)(A)
and (2) of the Act by causing the discharge of employee
Donald Schimizzi for nonpayment of dues and readmis-
sion fees in a manner which did not satisfy its fiduciary
obligation to said employees.
4. Respondent Employer has violated Section 8(a)(l)
and (3) of the Act by discharging Donald Schimizzi and
thereafter refusing to reinstate him without investigating
and/or ascertaining the circumstances underlying the
Union's request to discharge him, in the face of reason-
able cause to believe such investigation was warranted
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THi RI MlI) Y
Having found that Respondent Employer and Re-
spondent Union have engaged in and are engaging in
unfair labor practices within the meaning of the Act, I
shall recommend that they cease and desist therefrom
and take affirmative action designed to effectuate the
policies of the Act.
As I have found that Respondent Employer unlawful-
ly discharged Donald Schimizzi and unlawfully failed to
reinstate him, I shall recommend that Respondent Em-
ployer be ordered to offer Schimizzi immediate and full
reinstatement to his former position or, if that is no
longer in existence, to a substantially equivalent one,
without prejudice to his seniority or other rights and
privileges. '
I further recommend that Respondent Union be re-
quired to notify Schimizzi and Respondent Employer
that it no longer objects to Schimizzi's employment. I
also recommend that Respondent Union and Respondent
Employer jointly and severally make Schimizzi whole
for any loss of earnings incurred as a result of Respond-
ent's conduct found to be unlawful herein. The loss of
earnings shall be computed in the manner prescribed in
F W. Woolworth Company, 90 NLRB 289 (1950), with
interest on the backpay due in accordance with the
Board policy set out in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 14
A. Respondent, Harsh Investment Corporation d/b/a
The Claremont Resort Hotel and Tennis Club, Oakland,
California, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Encouraging membership in Service Employees In-
ternational Union, Local No. 18, AFL-CIO, or in any
other labor organization, by discriminating against em-
ployees 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, as amended.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
" If the Board reverses my findings on the liability of the Employer,
then the Union's liahilitly ,hall be in accord with the Board's holding in
Sheet Metual Worker' UIrlonml. I ocal 355. Sheer Metal Worker' Internatrinal
4.lro(iurt,t .4 L-'10 (Zirls IElecrri-tl Protdu-ro). 254 NL RH 773. 774
(198I1)
' in the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulation-s olf the National l.abor Relations Board, the
findings. conclusions. and reconmmended Order herein shall. as provided
in Sec 102 48 of the Rules and Regulations, be adopted by the Board and
beconme its findings. conclusions, and Order. and all objections thereto
shall be deerned Aaived for all purposes
1094
THE CLAREMONT RESORT HOTEL AND TENNIS CLUB
guaranteed in Section 7 of the amended Act, except to
the extent that such rights may be affected by an agree-
ment requiring membership in a labor organization as a
condition of employment as authorized by Section 8(a)(3)
of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Offer to Donald Schimizzi immediate and full rein-
statement to his former job or, if that job no longer
exists, to a substantially equivalent one, without preju-
dice to his seniority or other rights and privileges, and
make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him as a
result of being discharged on February 22, in the manner
set forth above in the section entitled "The Remedy."
(b) Expunge from its files any and all references to the
February 22 discharge or to the Union's claim that
Donald Schimizzi was delinquent in payment of union
dues and fees.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other data
necessary to analyze the amount of backpay due and the
right of reinstatement under the terms of this Order.
(d) Post at its Oakland, California, facility copies of
the attached notice marked "Appendix A." "' Copies of
said notice, on forms provided by the Regional Director
for Region 32, after being duly signed by the Respondent
Employer's representative, shall be posted immediately
upon receipt thereof, and be maintained for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent
Employer to insure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps it has taken to comply herewith.
B. Respondent Service Employees International
Union, Local No. 18, AFL-CIO, its officers, agents, and
representatives, shall:
I. Cease and desist from:
(a) Giving effect to, implementing, or in any manner
enforcing a practice which fails to accord reasonable
notice to members of their dues delinquency, said reason-
able oral or written notice to include a statement of the
precise amount of dues owed, the month for which said
dues are owed, and an explanation of the method used in
computing the amount of the dues owed, and which, ad-
ditionally, accords members an adequate opportunity to
pay the amount specificed as owing.
(b) Causing or attempting to cause Harsh Investment
Corporation d/b/a The Claremont Resort Hotel and
Tennis Club, or any other employer, to discharge or dis-
criminate against employees with respect to their tenure
t5 In the event that this Order is enforced b) a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National L abor Relatlions Board" shall read "Posted Pursu-
ant to a Judgment of Ihe United States Court of Appeals Enforcing an
Order of the National Labor Relations Board"
of employment or terms and conditions of employment
or to apply the union-security provisions of any collec-
tive-bargaining agreement to which the Respondent
Union is signatory to employees who have not been ac-
corded reasonable notice of their dues delinquency, or in
any arbitrary or capricious manner inconsistent with the
fiduciary responsibility owed by it to its members.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its office and meeting halls copies of the at-
tached notice marked "Appendix." 6 Copies of said
notice, on forms provided by the Regional Director for
Region 32, after being duly signed by Respondent
Union's official representative, shall be posted immediate-
ly upon receipt thereof, and be maintained for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respond-
ent Union and its agents to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Forward to the said Regional Director signed
copies of Appendix B for posting by Respondent Em-
ployer, the Respondent Employer willing, at its Oakland,
California, facility for 60 consecutive days, in places
where notices to employees are customarily posted.
(c) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
(d) Reinstate Donald Schimizzi to the rolls of the
Union in good standing, contingent upon payment of
prospective union dues on a monthly basis.
(e) Make whole Donald Schimizzi for any loss of earn-
ings he may have suffered because of his unlawful loss of
status in his former position of employment by paying to
him the sum of money computed in the manner specified
in the section of this Decision entitled, "The Remedy."
(f) Notify Harsh Investment Corporation d/b/a The
Claremont Resort Hotel and Tennis Club, in writing,
with a copy to Donald Schimizzi, if, for any reason, it
should be found not to have previously done so, that it
rescinds any request or demand which resulted in the
termination of his employment. Such written notification,
with copy to Schimizzi, shall also advise the Respondent
Employer that the Respondent Union has no objection to
the employment of Donald Schimizzi in his former or
substantially equivalent position of employment with full
seniority and other rights and privileges restored as
though his employment rights had never been interrupt-
ed.
(g) Mail signed copies of the notice to the Regional
Director for Region 32 for posting by Harsh Investment
Corporation d/b/a The Claremont Resort Hotel and
Tennis Club, if willing, at all places where notices to its
employees are customarily posted.
6 See fn 15. up.ra
1095