International Union of Operating Engineers Local 39 (Kaiser Foundation Hospitals)

National Labor Relations Board - Administrative Judge Opinions

Dec 13, 2018

20-CB-212943 (N.L.R.B. Dec. 13, 2018)

JD(SF)–38–18
San Leandro, CA
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
SAN FRANCISCO BRANCH OFFICE
INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL 39 (KAISER FOUNDATION
HOSPITALS)
Respondent/the Union
and Case 20-CB-212943
MARCELO CARRASCO, an Individual
Charging Party
Shelley Brenner, Esq., for the General Counsel.
Gary Provencher, Esq., for Respondent/the Union.
DECISION
STATEMENT OF THE CASE
AMITA BAMAN TRACY, Administrative Law Judge. The issues to be resolved in this
matter are whether a union member received dues payment notices, and whether those notices
complied with requirements set forth by the Board in Philadelphia Sheraton Corp., 136 NLRB
888 (1962), enfd. sub nom. NLRB v. Hotel, Motel & Club Employees Union, Local 568, 320 F.2d
254 (3d Cir. 1963), and its progeny. This union member, due to his alleged failure to remain in
good standing by maintaining his fiduciary obligation, was removed from employment for 1 day
until he paid his late dues, assessments, and reinstatement fee.
This case was tried in San Francisco, California, on July 17, 2018. Marcelo Carrasco
(Carrasco or Charging Party), an individual, filed the original charge on January 11, 2018, and
the General Counsel issued the complaint and notice of hearing on March 30, 2018.
On June 4, 2018, the General Counsel issued a compliance specification in this matter and
consolidated the compliance specification with the March 30, 2018 complaint. The General
Counsel also amended the complaint on June 27, 2018. The International Union of Operating
JD(SF)–38–18
2
Engineers Local 39 (Respondent or the Union)1 filed a timely answer to the complaint, as
amended, denying the alleged violations.2
The Union and the Employer were parties to a collective bargaining agreement which
contained a union security provision requiring employees to maintain their membership in good 5
standing by fulfilling their fiduciary obligations to the Union. The General Counsel alleges that
the Union, via a January 2, 2018 letter, attempted to cause Kaiser Foundation Hospitals (the
Employer) to discharge Carrasco and did cause the Employer to remove Carrasco on January 9,
2018. In addition, on January 11, 2018, after Carrasco was removed, the Union required
Carrasco to pay a reinstatement fee in addition to the dues and assessments he owed before the 10
Union would request the Employer to reinstatement him. The General Counsel alleges the
Union engaged in the aforementioned conduct without giving Carrasco notice of the precise
amount of dues and related assessments owed, notice of the period(s) for which dues and related
assessments were owed, and a reasonable period of time to pay the claimed arrearages. Due to
such alleged conduct, the General Counsel alleges the Union violated Section 8(b)(2) of the 15
National Labor Relations Act (the Act).3 The parties stipulated to the compliance allegations set
forth in the compliance specification should the General Counsel prevail.
On the entire record,4 including my observation of the demeanor of witnesses,5 and after
considering the briefs filed by the General Counsel and the Union,6 I make the following20
25

1 The collective-bargaining agreement indicates that that the name of the labor organization is
“The International Union of Operating Engineers, Stationary Engineers Local 39, AFL–CIO”
(emphasis added). The parties did not seek to amend or clarify the record as to the official name
of the Union.
2 After the hearing closed, the General Counsel and the Union motioned to reopen the record
as the Union sought to amend its answer by admitting to specific paragraphs in the amended
complaint. I granted the motion, and the record closed on August 17, 2018.
3 Counsel for the General Counsel, in her brief, alleges that Respondent also violated Section
8(b)(1)(A) of the Act (GC Br. at 1, 22). However, the complaint and subsequent amendments
never included this additional violation of the Act. Thus, any alleged violation of Section
8(b)(1)(A) of the Act will not be addressed as not properly pled.
4 The transcripts and exhibits in this case generally are accurate, but I hereby make the
following corrections to the record: Transcript (Tr.) 8, Line (L.) 25: “2011” should be “2018”;
Tr. 11, L. 19: “compliant” should be “complaint”; Tr. 95, L. 19: “Vendor” should be “Member”.
5 Although I have included several citations to the evidentiary record in this decision to
highlight particular testimony or exhibits, I emphasize that my findings and conclusions are not
based solely on those citations, but rather are based on my review of the entire record for this
case.
6 Other abbreviations used in this decision are as follows: “GC Exh.” for the General
Counsel’s exhibit; “R. Exh.” for Respondent’s exhibit; “Jt. Exh.” for joint exhibit; “GC Br.” for
the General Counsel’s brief; and “R. Br.” for Respondent’s brief.
JD(SF)–38–18
3
FINDINGS OF FACT
I. JURISDICTION
The Employer, a California non-profit corporation, has been engaged in the business of 5
operating acute care hospitals and related medical office facilities, including its facilities located
at 2500 Merced Avenue, San Leandro, California (San Leandro facility). During the 12-month
period ending March 30, 2018, the Employer in conducting its business operations derived gross
revenues in excess of $250,000, and purchased and received at its San Leandro facility goods
valued in excess of $5,000 directly from points outside the State of California. The Union 10
admits, and I find, that Kaiser Foundation Hospitals is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act and has been a health care institution within
the meaning of Section 2(14) of the Act.
The Union also admits, and I find, that it is a labor organization within the meaning of 15
Section 2(5) of the Act.
II. LABOR ORGANIZATION AND COLLECTIVE BARGAINING AGREEMENT
Since at least September 18, 2015, the Union has been the designated exclusive 20
collective-bargaining representative of the following Kaiser Foundation Hospitals’ employees
(the Unit):
Employees performing the duties pertaining to the operation and maintenance of all
mechanical machinery and appurtenances, and such other duties as have historically and 25
traditionally been performed by that classification at the facility, including the job
classifications set forth in Appendix I of the collective-bargaining agreement between the
Union and the Employer effective September 18, 2015 through September 17, 2018 (the
Agreement).
30
During the relevant time period, Mark Gong (Gong) has been an agent of the Union
within the meaning of Section 2(13) of the Act.7
The Agreement includes the following relevant terms:
35
Article II
Section 2 – Union Membership
All employees hired by the Employer prior to the effective date of this Agreement who
are members of [the Union] or who subsequently became members of [the Union] shall 40
be required as a condition of employment to maintain their membership in [the Union] in
good standing during the life of this Agreement [….]
All employees hired by the Employer on or after the effective date of this Agreement
shall become members in good standing in [the Union] as a condition of employment. 45
For these employees, tender of the initiation fee on or immediately following the thirtieth

7 Gong did not testify but represented the Union and attended the hearing.
JD(SF)–38–18
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(30th) day of employment and tender periodic dues uniformly required as a condition of
retaining membership shall constitute good standing in [the Union]. In the event an
Employee fails to become a member or to maintain membership in [the Union] in
accordance with this provision, [the Union] shall notify the Employer in writing and such
notice shall constitute a demand to the Employer to discharge said Employee within 48 5
hours for failure to maintain continuous good standing in [the Union].
(Union Security Provision). Thus, as a condition of employment, all unit employees must
maintain their membership with the Union in good standing by tendering their initiation fees and
periodic dues, thus maintaining their fiduciary duty.10
III. THE CHARGING PARTY AND THE UNION SECURITY PROVISION
Carrasco has worked for the Employer as a biomedical equipment technician since
August 2017.8 This position is included in the Unit. Thus Carrasco is bound by the Union 15
Security Provision. Gong has served as Carrasco’s designated Union business representative
since Carrasco was hired by the Employer.
Previously, Carrasco had also been in a position represented by the Union when he
worked at Sequoia Hospital from March 2014 to August 2017. While employed by Sequoia 20
Hospital, Carrasco completed a dues check off authorization card which permitted Sequoia
Hospital to automatically deduct dues from his salary, and these dues were automatically
deducted every month. Gong also served as Carrasco’s designated Union business agent when
Carrasco worked at Sequoia Hospital.
25
On August 15, Gong sent Carrasco a package, to his post office box, with a letter
congratulating him on his employment with the Employer and informing him of his new monthly
dues rate. The letter also stated that, “If you wish to participate in Payroll Deduction [PRD]
through your Employer, you must remit your current dues and balance in full by the 15th of any
month in order to be eligible to participate the following month.” (Jt. Exh. 7 (emphasis in 30
original)). A dues check-off authorization card, which permitted the Employer to deduct dues
from an employee’s paycheck, was included with the letter, which notified Carrasco that if he
wished to participate in payroll deduction, he needed to completed the enclosed cards and return
them with payment in the pre-addressed envelope no later than September 10 so as to be eligible
for PRD in October. Finally, the letter informed Carrasco that since the Employer participated in 35
the Union’s pension plan, he needed to complete the included enrollment form and submit those
in the self-addressed envelope which was provided. The collective bargaining agreement was
included in this package to Carrasco as well.
On August 29, the Union updated Carrasco’s member detail report to reflect Carrasco’s 40
post office box address which he provided to the Union in March 2014 when he worked for
Sequoia Hospital; this report is maintained by the Union but not provided to employees.9 On the
same day, the Union changed Carrasco’s physical address from a Pleasanton, California address

8 All dates hereinafter are 2017 unless otherwise specified.
9 Carrasco testified that he checked his post office box every two weeks, and sometimes his
mother would check his post office box on his behalf.
JD(SF)–38–18
5
to a Tracy, California address. In January 2018, Carrasco asked the Union to update his mailing
address from his post office box address to his Tracy, California address.10
Between mid-August and early September, Carrasco called Gong to talk about his
benefits. During this phone call, Carrasco mentioned to Gong that he planned to pay $140 in
dues, approximately $9 over the amount noted in the letter from the Union, to ensure his medical 5
benefits would not be interrupted. Carrasco testified that he mailed in a check for $140 but did
not have a copy of the cancelled check. The Union member financial detail report shows that no
such payment was received. (Tr. 36-37).11
A. September Monthly Dues Statement10
Beginning on September 1, the Union sent Carrasco monthly dues statements to his post
office box address. These monthly dues statements are only generated when a member is not on
automatic PRD (Tr. 101). The monthly dues statements show any prior payments received, dues
owed, along with charges for the Union per capita tax, defense fund fees, voice fees, and strike 15
assessment. Each monthly dues statement informed Carrasco, in all capital letters, that he must
contact his business representative of any change to his employment, address or phone number.12
In addition, the monthly dues statement notes,
Dues shall be due and payable on the first business day of each calendar month. 20
The dues for Local 39, 39-A, 39-C, and 39-D shall be computed as two (2) times
the hourly rate of pay, or the base rate, whichever is greater; plus assessments.
All members delinquent sixty (60) days in the payment of dues and/or
assessments may, on vote of the Local Union, be suspended from Membership.

10 Deborah Bridge (Bridge), the Union’s information services manager, credibly testified that
the Employer informed the Union of a change in Carrasco’s permanent address in August—from
the Pleasanton, California address to the Tracy, California address. The Union continued to mail
items to Carrasco’s post office box address until January 2018 when Carrasco changed his
mailing address with the Union, according to Bridge. Carrasco responded vaguely when asked if
he informed the Union of his Tracy, California address when he was hired by the Employer.
Carrasco testified that his Tracy, California address was listed on all the forms he signed when
hired by the Employer (Tr. 46-47). While it may be true that Carrasco communicated his Tracy,
California address to the Employer, Carrasco did not specifically affirm that he notified the
Union to change his mailing address from the post office box address to his Tracy, California
address until January 2018. I cannot credit Carrasco’s claim that the Union knew of his Tracy,
California address in August simply because he informed the Employer. As for the testimony of
Bridge, I found her testimony to be credible due to its precise, detailed nature. Moreover, most,
if not all, of Bridge’s testimony was uncontroverted.
11 I cannot credit Carrasco’s testimony that he sent a check of $140 to the Union to pay his
dues. Throughout this proceeding, Carrasco could not recall many significant, relevant events at
issue such as receiving the monthly dues statements. Regarding the alleged $140 payment,
Carrasco could not produce a cancelled check or any bank statement disproving the Union’s
records which do not reflect such a payment.
12 Bridge testified that members are also reminded in the monthly newsletter to inform the
Union of any changes to their address (Tr. 92–93). Furthermore, Article III, Section 3 of the
Union’s bylaws state, “Members shall immediately notify the Recording-Corresponding
Secretary in writing of any change in their current address or employment status” (Jt. Exh. 3).
JD(SF)–38–18
6
Suspended Members may be removed from employment where valid collective
bargaining agreements or applicable law permits.
At the bottom of each monthly dues statement is a detachable form to include with any payment,
which should be sent to the Union at the address noted on the statement.5
Carrasco’s September monthly dues statement indicated that a payment of $125.27 was
made on August 23, which resulted in a net credit balance of $96.77, and a charge of $131.17 for
dues and other fees resulting in a final balance due of $34.40 which was payable by September
30 (Tr. 108-109). Bridge testified that according to Carrasco’s member financial detail report, 10
Sequoia Hospital made a PRD payment to the Union for July on August 23. Bridge explained
that employers such as Sequoia Hospital deposit money received from an employee’s PRD to the
Union four to six weeks after the money is deducted from an employee’s paycheck which
explains why Carrasco had a balance in his account as of September (Tr. 106). Carrasco testified
that he could not recall receiving this September monthly dues statement from the Union. It is 15
also undisputed that the September monthly dues statement did not explain from where the
payment of $125.27 came; Carrasco would only see the details of this payment from his member
financial detail report which the Union did not send to him.
On September 4, Carrasco signed a union check-off authorization card to authorize 20
automatic PRD (Jt. Exh. 8). This authorization was effective no earlier than October as long as
Carrasco remitted his current dues and balance in full by the 15th of the month and would be
effective until he revoked it during a specific time period.
B. October Monthly Dues Statement25
The Union mailed the October monthly dues statement, dated October 2, to Carrasco at
his post office box. Carrasco’s dues and assessments increased slightly to $134.47 on October 1
due to a wage increase he received (Tr. 105). Due to further payments by Sequoia Hospital,
Carrasco’s September balance was paid for by those payments, and he owed $43.60 for 30
October.13 Carrasco’s member financial detail report, which the Union did not send to Carrasco,
indicated on October 18 that, since Carrasco had an unpaid balance, his dues could not be
deducted via PRD for November. Moreover, the October monthly dues statement did not
explain to Carrasco how his September balance was paid—this information was contained only
in the member financial detail report. The October dues were due on October 31. Carrasco 35
testified that he could not recall receiving this October monthly dues statement from the Union.
C. November Monthly Dues Statement
The Union again mailed the November monthly dues statement to Carrasco’s post office 40
box. Along with the monthly dues and assessments of $134.47, Carrasco still owed the October
balance, for a total due of $178.07. This amount was due on November 30. Carrasco’s member
financial detail report, dated November 17 and which the Union did not send to him, noted that

13 Sequoia Hospital made a PRD payment to the Union on September 21 which resulted in an
additional $125.27 credit balance (Jt. Exh. 4).
JD(SF)–38–18
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since Carrasco had an unpaid balance by the 15th of the month, he could not participate in PRD
for December 2017.14
D. December Monthly Dues Statement
5
The December monthly dues statement for Carrasco was again mailed to his post office
box. Along with his December assessment of $134.47, he still had not paid the November
balance of $178.07. Thus, Carrasco owed a total of $312.54 by December 31. Carrasco testified
that he could not recall receiving this statement from the Union. On December 19, Carrasco’s
member financial detail report indicated that, since he still had an unpaid balance, he again could 10
not participate in PRD for January 2018.
E. December 26 Verbal Notification of Carrasco’s Late Dues and Assessments
On December 26, Gong left a message for Carrasco regarding his late dues and 15
assessments. According to Carrasco, Gong said, “[Y]ou are -- your dues are -- you are late on
your dues so you need to pay before the end of the year, your dues, because, if not, you will --
you could be suspended or even you could lose your job” (Tr. 37). Carrasco testified that this
December message from Gong was the first time since mid-August to early September that he
had heard from Gong (Tr. 37, 41). Carrasco stated that Gong did not tell him in this message 20
how much he owed for his dues and assessments.15
Instead of returning Gong’s phone call, Carrasco testified that, because the message
sounded “urgent” he sent a check on December 26 for $200 to cover his union dues and
assessments (Tr. 38). Along with the $200 check, Carrasco sent a letter to Gong, writing, “I sent 25
the paperwork to have my dues deduct from my paycheck. How could we make this happen.”
In this letter, Carrasco included his email address and phone number, which had remained the
same since at least 2014 (Jt. Exh. 6). Carrasco also included the bottom portion of his November
monthly dues statement, which had a total amount due of $178.07 (Jt. Exh. 9(c)).16 The check

14 Carrasco’s member financial detail report noted, on November 20, that Gong left a
message for Carrasco regarding his PRD, and that he needed to pay $312.54 by December 15 to
be eligible for PRD for January 2018. Carrasco denied receiving this phone message from Gong
(Tr. 41). Gong did not testify during this proceeding despite his presence as a representative of
the Union during the hearing. Gong could have testified to rebut Carrasco’s claim that he did not
receive a phone call from him. The Union offered no explanation for its failure to call Gong to
testify. “When a party fails to call a witness who may reasonably be assumed to be favorably
disposed to the party, an adverse inference may be drawn regarding any factual question on
which the witness is likely to have knowledge.” International Automated Machines, 285 NLRB
1122, 1123 (1987), enfd. 861 F.2d 720 (6th Cir. 1988). Thus, I draw an adverse inference
against Gong regarding the alleged phone call he made to Carrasco on November 20.
15 I credit Carrasco’s testimony regarding this phone call from Gong. Gong did not testify,
and the Union provided no explanation as to why Gong did not testify. Thus, I credit Carrasco’s
version of the conversation, and not Gong’s notes in Carrasco’s member financial detail report.
16 Carrasco testified adamantly that he could not recall receiving the November statement
from the Union but on cross-examination admitted that he must have received the November
statement as he included the payment stub in his December 26 correspondence to the Union (Tr.
75–76). Carrasco then admitted that he had to be reminded by the General Counsel shortly
JD(SF)–38–18
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from Carrasco showed his Tracy, California address. The Union received this letter and check
on January 3, 2018.
F. Union Requests Employer to Remove Carrasco From Work for Failing to Maintain
his Membership in Good Standing5
On January 2, 2018, Gong sent a letter to the Employer requesting that Carrasco be
removed from work due to his failure to pay dues and assessments and therefore he failed to
remain in good standing with the Union (Jt. Exh. 11).17 Meanwhile, the Union continued to send
Carrasco a monthly dues statement. His January 2, 2018 statement showed that he owed a total 10
of $447.01, which included his previous outstanding balance, and his January 2018 dues and
assessments of $134.47. (Jt. Exh. 9(e)). This total was due by January 31, 2018. Carrasco
testified that he received this statement at his home address, not his post office box address (Tr.
43, 66).18
15
On or about January 3, 2018, Carrasco called the Union, and spoke to the secretary.
Carrasco testified that the secretary told him that the Union had not received his December
check, and informed him that he owed 3 to 4 months of dues and assessments, and would need to
pay the reinstatement fee because he did not make the full payment by December 31 (Tr. 50–51).
Carrasco stated that he asked why his payment was late since he sent a check on December 26, 20
and the secretary responded that the Union did not receive the check due to the holidays and he
needed to pay his dues and assessments or he would be suspended or lose his job. The secretary
gave Carrasco the total amount of dues and assessments owed but did not inform him of the
amount of the reinstatement fee. Carrasco asked to speak to Gong’s supervisor to talk “to
someone else about Mark Gong” (Tr. 52).19 25

before the hearing that he had mailed his December 26 check to the Union at the address
provided in his November monthly dues statement along with the payment stub. This lack of
recall greatly undermines Carrasco’s credibility as to whether he received the monthly dues
statements. However, Carrasco’s deficient memory does not impact my legal analysis of
whether the Union’s monthly dues statements are legally sufficient.
17 As stated earlier, the monthly dues statements note that members delinquent sixty days in
the payment of dues and/or assessments may, on vote of the local, be suspended from
membership which may then result in their removal from employment. The General Counsel
contends that the Union provided no evidence that a vote was held before asking the Employer to
suspend Carrasco (Tr. 103). However, whether the Union complied with its internal rules is not
alleged as a violation in this complaint, and will not be addressed.
18 The evidence shows that the January 2018 monthly dues statement was sent to Carrasco’s
post office box address which again undermines Carrasco’s veracity for truth on the issue of
receipt of the monthly dues statements (see Jt. Exh. 9(e)). The General Counsel attempts to
prove that the Union mailed Carrasco’s January 2018 monthly dues statement to his Tracy,
California address by entering in the record an envelope, postmarked January 3, 2018, from the
Union but there is no evidence as to the actual contents of the envelope.
19 Carrasco testified that he spoke with Gong’s supervisor Shane Mortensen (Mortensen) on
or about January 4, 2018 (Tr. 54). During this conversation, the issue of Carrasco’s address
came up, and Carrasco testified that he asked that his Tracy, California address be used for
correspondences, not his post office box address (Tr. 59–61). Also, during this call, Carrasco
testified that Mortensen made a “deal” with him. I do not credit Carrasco’s testimony regarding
JD(SF)–38–18
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Carrasco testified that he also called Gong, and asked him why he would be late on his
dues and assessments when he signed the check-off authorization card for automatic PRD (Tr.
53). Carrasco testified that Gong did not respond except that “they said that” he needed to pay
the money or be suspended.205
On about January 9, 2018, the Employer removed Carrasco from work until he could
provide written proof of being in good standing with the Union.
On January 10, 2018, the Union confirmed Carrasco’s physical address in Tracy, 10
California, and also confirmed that he still used a post office box address. When questioned
regarding his receipt of union mail at his post office box address, Carrasco testified that he never
received his dues statements from the Union but did receive the union monthly magazine. When
asked if he agreed with the amount of money he owed to the Union, Carrasco testified that he
found the increased dues amounts concerning, and explained that the January 2018 amount owed 15
“caught his attention” as to how much he needed to pay to the Union (Tr. 81-82). Carrasco
testified that he only paid a $200 check to the Union as he thought his dues were being deducted
from his paycheck; Carrasco admitted, though, that he never checked his payroll statements to
see if the dues were actually being deducted.
20
G. The Union Requests the Employer Reinstate Carrasco After He Fulfilled the Union
Security Provision By Paying his Past Dues, Assessments and Reinstatement Fee
On January 11, 2018, after Carrasco had been removed by the Employer, the Union
required Carrasco to pay $408.41 as a reinstatement fee in addition to the dues and assessments 25
he allegedly owed in order for the Union to ask the Employer to return him to work. That same
day, Carrasco sent a check to the Union for $655.49 for his late dues and assessments from
September to December as well as January 2018, and the reinstatement fee.21 Carrasco also
signed another dues check-off authorization card for automatic PRD. Gong then sent a letter to
the Employer, asking that Carrasco be reinstated as he had met all the necessary Union Security 30
Provisions. Carrasco missed 1 day of work as the other 2 days were his regular days off.

this conversation. Carrasco provided inconsistent testimony and could not recall many
significant details in this matter such as receiving the monthly dues payment notices as well as
submitting the November payment stub with his December check. In contrast, Carrasco recalled
significant details of his alleged conversation with Mortensen. This specific recall when
compared to his vague, poor memory of receiving the monthly dues payment notices
demonstrates that Carrasco was not completely forthcoming in his testimony which undermines
his credibility. Moreover, whether Mortensen made a “deal” with Carrasco is not relevant, but
only serves as an example of Carrasco’s selective memory.
20 Carrasco’s member financial detail report contains notes from Gong’s conversation with
Carrasco. These notes state that Carrasco claimed that he was never informed of his late dues,
that Gong told Carrasco that the Union had been trying to reach him to no avail since November,
and that if he did not pay his late dues that day the Union would be sending a letter to the
Employer to suspend him. Carrasco also wanted to speak to Gong’s supervisor. Again, as Gong
did not testify, I decline to rely upon on his notes, and instead rely upon Carrasco’s version of the
conversation.
21 Although Carrasco submitted a check for $655.49, he actually owed $655.42.
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Carrasco returned to work on January 12, 2018, and automatic PRD for his dues and assessments
began in February 2018.
LEGAL STANDARD
5
A union violates Section 8(b)(2) if it causes or attempts to cause an employer to
discharge an employee for the employee’s failure to pay dues without first providing the
employee with proper notice. Furthermore, unions have a fiduciary duty to deal fairly with
employees whom they seek to terminate for failure to pay dues. See Philadelphia Sheraton
Corp., supra; Western Publishing Co., Inc., 263 NLRB 1110, 1111 (1982); Industrial 10
Contractors Skanska, Inc., 362 NLRB 1396, 1397–1398 (2015). This fiduciary duty requires
that the union:
[M]ust give the employee ‘reasonable notice of the delinquency, including a
statement of the precise amount and months for which dues [are] owed, as well as 15
an explanation of the method used in computing such amount.’ In addition, the
union must specify when such payments are to be made and make it clear to the
employee that discharge will result from failure to pay. This fiduciary
responsibility to advise an employee regarding his dues obligations requires
‘positive action,’ without regard to any concurrent obligation on the employer to 20
provide such notice.
Western Publishing Co, supra at 1111–1112 (citations omitted). The union must give the
employee a reasonable opportunity to make the payment after receipt of notification of
delinquency. Coopers NIU (Blue Green), 299 NLRB 720, 724 (1990), citing United 25
Metaltronics Local 955 (Pharmaseal Laboratories), 254 NLRB 601 (1981). However, the
Board will excuse a union’s failure to fully comply with the notice requirements if the union
proves that the employee made a “conscious decision” to “willfully and deliberately … evade his
union-security obligations.” Ralph’s Grocery, 209 NLRB 117, 124–125 (1974); accord
Conductron Corp., 183 NLRB 419, 526 (1970). But “negligence or inattention on the part of the 30
employee will not relieve the union of its fiduciary obligation.” Grassetto USA Construction,
313 NLRB 674, 677 (1994).
DISCUSSION
35
A. THE UNION PROVIDED NOTICE TO CARRASCO OF HIS MONTHLY DUES AND ASSESSMENTS
OWED TO HIS MAILING ADDRESS OF RECORD

The General Counsel contends that the Union did not properly provide Carrasco notice of
his late dues and assessments because Carrasco did not receive the monthly dues statements. I 40
disagree. The evidence shows that the Union mailed Carrasco his monthly dues statements to his
mailing address of record, and I do not credit Carrasco’s testimony that he did not receive such
statements. The evidence shows that the Union consistently mailed the monthly dues statement
to Carrasco’s post office box address. Carrasco did not proactively change his mailing address
with the Union until January 2018. In fact, Carrasco received the Union’s August 15 45
correspondence to his post office box address as well as the monthly union magazines.
Furthermore, during cross-examination, Carrasco admitted that he must have received the
November monthly dues statement since he included the November payment stub with his
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December 26 check to the Union. Whether Carrasco recalled receiving these notices is not
dispositive. Carrasco did not update his mailing address with the Union until January 2018, and
was responsible for any mailings sent by the Union to his post office box address.
B. THE UNION FAILED TO FULFILL ITS FIDUCIARY DUTY TO DEAL FAIRLY WITH CARRASCO5
The General Counsel contends that even if Carrasco received the monthly dues notices,
these notices did not meet the strict requirements set forth in Philadelphia Sheraton.
Specifically, the General Counsel alleges that the Union failed to provide Carrasco with the
precise amount of dues and related assessment he owed, did not provide the notice of periods for 10
which dues and related assessments were owed, did not provide the method by which the precise
amount was calculated, and did not give a firm deadline and reasonable time period to pay the
claimed amount. The General Counsel claims that the each monthly dues statement does not
explain the past dues amounts, and only if a member were to look at prior month’s dues
statements would the member be able to decipher from where the past dues came (GC Br. at 15). 15
Moreover, even then, the General Counsel argues, Carrasco would not have been able to
determine why, for the months of September and October, his monthly dues and assessments
owed were less than they should have been without reviewing his member financial detail report
that was maintained by the Union and not provided to Carrasco (GC Br. at 16-20). The Union
disagrees, arguing that it sent Carrasco monthly notices of his dues and assessments owed to his 20
current mailing address, and that these notices clearly explained to Carrasco what he owed, how
the dues and assessments were calculated, by what date the dues were due, and the consequences
of such failure.
I find that the Union did not meet the requirements set forth by the Board. I find that the 25
Union did send notices to Carrasco from September through January 2018 which delineated the
amount of dues and assessments he owed per month. These notices also set forth how late each
payment was such that by the December monthly dues statement it is clearly set forth that
Carrasco owed $43.60 past 60 days (Jt. Exh. 9(d)). By the January 2, 2018 monthly dues
statement, Carrasco owed $178.07 past 60 days (Jt. Exh. 9(e)). Each monthly dues statement 30
informed Carrasco that delinquencies past 60 days could result in suspension from membership
and removal from employment. The Union via the monthly dues statements and at least one
phone call from Gong warned Carrasco of his delinquencies along with the consequences of his
failure to pay his late dues.
35
However, the Union failed to fulfill its fiduciary obligation completely for several
reasons. First, the Union did not give Carrasco a reasonable opportunity to remedy his late dues.
See Coopers NIU, supra. The timing of events is critical. Here, the credited evidence shows that
other than the monthly dues payment notices, Carrasco only received a phone message from
Gong on December 26 where Gong did not inform Carrasco of the amount he owed to remain in 40
good standing. As a result of this ambiguous voicemail, Carrasco submitted a $200 check to
cover his late dues on December 26, and asked how to get his dues deducted from his paycheck.
However, this $200 payment was not received by the Union until January 3, 2018, one day after
Gong informed the Employer of Carrasco’s failure to maintain his membership in good standing
and requested that Carrasco be removed from employment. 45
In addition, one day after the Union requested the Employer remove Carrasco for failing
to remain in good standing, the Union secretary told Carrasco he needed to pay a reinstatement
JD(SF)–38–18
12
fee without specifying the amount, needed to pay his past owed dues and assessments, and told
him if he did not pay these amounts he could be suspended or removed from employment for
failing to remain in good standing. But by this time, Gong had already asked the Employer to
remove Carrasco. Ultimately, the Employer did not suspend Carrasco until January 9, 2018, one
week after receiving the Union’s request, but during that time period, Carrasco had paid at least 5
$200 of his past dues, which would have eliminated his over 60 day balance of $178.07,
according to the January 2, 2018 monthly dues statement.
The Union’s monthly dues notices also fail to state with certainty what will happen to an
employee if he fails to remain in good standing with the Union. The Union’s monthly dues 10
payment notices only state that an employee “may” be removed from employment, which is not
“clear and unambiguous notice” of intention to cause discharge. Distillery, Rectifying, Wine and
Allied Workers’ International Union of America, Local Union 38, AFL-CIO, 242 NLRB 370,
370 (1979).
15
As for whether the monthly dues notices set forth the method by which the precise
amount owed was calculated, I find that these notices clearly set forth the method of calculation.
However, with regard Carrasco, as he had various payments made on his behalf to the Union
from his former employer, the calculation of the amount he owed is not clear. Only via Bridge’s
testimony, as well as the member detailed financial report could the calculations of Carrasco’s 20
dues and assessment be understood. The Union never provided the member detailed financial
report to Carrasco nor was the information shared with Carrasco on the monthly dues statements
the Union sent him. Moreover, despite having an account balance, due to his former employer’s
deposits, Carrasco was not even eligible for automatic PRD when the Union sent the August
letter to him inviting him to enroll in the same program. Thus, although these notices explain 25
generally how dues and assessments are calculated, in Carrasco’s specific circumstances, the
September and October monthly dues statements do not explain the sources of these credits in
his account.
Finally, the Union failed to prove that Carrasco “willfully and deliberately” sought to 30
evade his dues obligations. Of import, Carrasco had been a member in good standing of the
Union with another employer for several years prior. Carrasco’s dues and assessments owed to
the Union were automatically deducted via payroll for several years prior to his employment
with the Employer. At most, Carrasco’s acted negligently but not willfully and deliberately.
35
For these reasons, I find that the Union did not fulfill its fiduciary obligation to Carrasco
before informing the Employer that Carrasco failed to remain in good standing with the Union
and should be removed from employment. Thus, the Union violated Section 8(b)(2) of the Act.

CONCLUSIONS OF LAW40
1. International Union of Operating Engineers Local 39 (the Union) is, and has been at all
times material, a labor organization within the meaning of Section 2(5) of the Act.
2. Kaiser Foundation Hospitals (the Employer) is, and has been at all times material, an 45
employer engaged in commerce and in a business affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
JD(SF)–38–18
13
3. The Union violated Section 8(b)(2) of the Act by causing the Employer to remove
Marcelo Carrasco (Carrasco) for nonpayment of dues and reinstatement fees by informing the
Employer that Carrasco was ineligible for work due to his failure to maintain union membership,
without satisfying its fiduciary duty to Carrasco.
5
4. The foregoing unfair labor practice affects commerce within the meaning of Section 2(6)
and (7) of the Act.
COMPLIANCE SPECIFICATION AND REMEDY
10
In this matter, the General Counsel consolidated the complaint with the compliance
specification. The parties reached a stipulation as to the amount of backpay and other monetary
amounts the Union would be obligated to pay in the event the General Counsel prevailed (Jt.
Exh. 15).
15
Based upon these stipulations, the Union shall pay Carrasco $863.29 with interest at the rate
prescribed in New Horizons, 283 NLRB 1172 (1987), compounded daily as prescribed in
Kentucky River Medical Center, 356 NLRB 6 (2010). In accordance with Don Chavas, LLC
d/b/a Tortilla Don Chavas, 361 NLRB 101 (2014), the Union shall compensate Carrasco for the
adverse tax consequences, if any, of receiving lump sum backpay awards and file a report with 20
the Social Security Administration allocating backpay awards to the appropriate calendar quarter
for Carrasco.
In addition, the Union shall make back pension contributions to the Stationary Engineers
Local 39 Pension Trust Fund totaling $66.88, plus any additional interest or penalty payments 25
that have accrued against respective delinquent contributions until paid in full, assessed in
accordance with Merryweather Optical Co., 240 NLRB 1213 (1979).
On the basis of the foregoing findings of fact, conclusions of law, compliance
specification and remedy, and the entire record and pursuant to Section 10(c) of the Act, I issue 30
the following recommended22
ORDER
International Union of Operating Engineers Local 39, San Leandro, California, its officers, 35
agents, successors, and assigns, shall
1. Cease and desist from
(a) Causing Kaiser Foundation Hospitals (Employer) to discharge or otherwise 40
discriminate against employees for failure to tender to the Union periodic dues,
without first providing the employee notice of the amount owed, the period for which
dues are owed, and the method by which the amount owed was computed, and

22 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the
findings, conclusions, and recommended 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.
JD(SF)–38–18
14
without providing the employee with a reasonable opportunity to pay the amount
owed.
(b) In any like or related manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of the Act.5
2. Take the following affirmative action necessary to effectuate the policies of the Act:
(a) Within 14 days from the date of the Board’s Order, make Marcelo Carrasco whole for
any loss of earnings and other benefits suffered as a result of the discrimination 10
against him. The backpay owed to Carrasco is $863.29 with interest at the rate
prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky
River Medical Center, supra. In accordance with Don Chavas, LLC d/b/a Tortillas
Don Chavas, supra, the Union shall compensate Carrasco for the adverse tax
consequences, if any, of receiving lump-sum backpay awards. 15
(b) In accordance with AdvoServ of New Jersey, Inc., supra, the Union shall, within 21
days of this Order or Board order, submit and file with the Regional Director for
Region 20 a report allocating the backpay award to the appropriate calendar year for
Carrasco. 20
(c) The Union shall make back pension contributions to the Stationary Engineers Local
39 Pension Trust Fund totaling $66.88, plus any additional interest or penalty
payments that have accrued against respective delinquent contributions until paid in
full, assessed in accordance with Merryweather Optical Co., supra. 25
(d) Within 14 days after service by the Region, post at its facility in San Leandro,
California, copies of the attached notice marked “Appendix.”23 Copies of the notice,
on forms provided by the Regional Director for Region 20, after being signed by the
Union’s authorized representative, shall be posted by the Union and maintained for 30
60 consecutive days in conspicuous places including all places where notices to
employees/members are customarily posted. In addition to physical posting of paper
notices, the notices shall be distributed electronically, such as by email, posting on an
intranet or an internet site, and/or other electronic means, if the Union customarily
communicates with its employees/members by such means. Reasonable steps shall 35
be taken by the Union to ensure that the notices are not altered, defaced, or covered
by any other material. In the event that, during the pendency of these proceedings,
the Union has gone out of business or closed the facility involved in these
proceedings, the Union shall duplicate and mail, at its own expense, a copy of the
notice to all current and former members of the Union and current and former 40
employees employed by the Employer at any time since January 9, 2018.

23 If this Order is enforced by a judgment of a United States court of appeals, the words in
each of the notices referenced herein 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.”
JD(SF)–38–18
15
(e) Within 21 days after service by the Region, file with the Regional Director a sworn
certification of a responsible official on a form provided by the Region attesting to the
steps that the Union has taken to comply.
Dated, Washington, D.C. December 13, 20185
____________________
Amita Baman Tracy
Administrative Law Judge10
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated Federal labor law and has
ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf with your employer
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
WE WILL NOT cause Kaiser Foundation Hospitals (the Employer) to discharge or otherwise
discriminate against you for failure to tender to us periodic dues, without first providing you
notice of the amount owed, the period for which dues are owed, and the method by which the
amount owed was computed, and without providing you with a reasonable opportunity to pay the
amount owed.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise
of your rights under Section 7 of the National Labor Relations Act.
WE WILL pay to Marcelo Carrasco backpay of $863.29, plus interest computed and compounded
daily plus the amount of any adverse tax consequences.
WE WILL file with the Regional Director for Region 20, within 21 days of the date of the Board
Order, a report allocating the backpay award to the appropriate calendar year.
WE WILL make back pension contributions to the Stationary Engineers Local 30 Pension Trust
Fun totaling $66.88, plus any additional interest or penalty payments that have accrued against
respective delinquent contributions until paid in full.
INTERNATIONAL UNION OF OPERATING
ENGINEERS LOCAL 39
(Union)
Dated By
(Representative) (Title)
The National Labor Relations Board is an independent Federal agency created in 1935 to enforce the National Labor
Relations Act. It conducts secret-ballot elections to determine whether employees want union representation and it
investigates and remedies unfair labor practices by employers and unions. To find out more about your rights under
the Act and how to file a charge or election petition, you may speak confidentially to any agent with the Board’s
Regional Office set forth below. You may also obtain information from the Board’s website: www.nlrb.gov.
901 Market Street, Suite 400, San Francisco, CA 94103-1735
(415) 356-5130, Hours: 8:30 a.m. to 5 p.m.
The Administrative Law Judge’s decision can be found at www.nlrb.gov/case/20-CB-212943 or by
using the QR code below. Alternatively, you can obtain a copy of the decision from the Executive
Secretary, National Labor Relations Board, 1015 Half Street, S.E., Washington, D.C. 20570, or by
calling (202) 273-1940.
THIS IS AN OFFICIAL NOTICE AND MUST NOT BE DEFACED BY ANYONE
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF POSTING AND MUST NOT BE
ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. ANY QUESTIONS CONCERNING THIS NOTICE OR
COMPLIANCE WITH ITS PROVISIONS MAY BE DIRECTED TO THE ABOVE REGIONAL OFFICE’S
COMPLIANCE OFFICER, (628) 221-8875.