Kaiser Foundation Hospitals

National Labor Relations Board - Board Decisions

Sep 18, 1981

258 N.L.R.B. 29 (N.L.R.B. 1981)

KAISER FOUNDATION HOSPITALS
Kaiser Foundation Hospitals and Kaiser Foundation
Health Plan of Oregon and Service Employees
International Union, Local No. 49, AFL-CIO.
Case 36-CA-3541
September 18, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 26, 1980, Administrative Law Judge
Russell L. Stevens issued the attached Decision in
this proceeding. Thereafter, Respondents filed ex-
ceptions and a supporting brief.
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 at-
tached Decision in light of the exceptions and
briefs' and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge only to the extent consistent herewith.
The Administrative Law Judge found that Re-
spondents violated Section 8(a)(5) and (1) of the
Act by failing and refusing, in response to the
Union's letter of October 18, 1979, to discharge
employees Tenderella, Harding, Nauta, and Clarke
pursuant to the union-security provisions of the
contract then in effect between Respondents and
the Union. We disagree.
Respondents and the Union have been parties to
a series of bargaining agreements covering a bar-
gaining unit of service and maintenance workers
since 1942. The 1979-81 contract, effective from
July 1, 1979, to July 1, 1981, was executed on
August 21, 1979. The 1976-79 contract was effec-
tive from July 1, 1976, to July 1, 1979. Both of
these contracts contain a union-security clause pro-
viding, inter alia, that employees who are not mem-
bers of the Union on the execution date of the con-
tract must become members in good standing
within 31 days.
On February 7, 1979, the Regional Director for
Region 19 issued a Decision and Order Clarifying
Unit in Case 36-UC-70, which included in the bar-
gaining unit Respondents' part-time and full-time
I At the hearing, Fred Tenderella, one of the employees whom Re-
spondents refused to discharge as requested by the Union. moved to in-
tervene. The Administrative Law Judge denied that motion but permitted
Tenderella to file an amicus curiae brief Thereafter, Tenderella filed with
the Board a document entitled "Intervenor's Appeal and Exceptions to
Administrative Law Judge's Decision and Brief in Support of Excep-
tions," in which, inter alia, he excepted to the Administrative Law
Judge's ruling denying intervention. We affirm the Administrative Law
Judge's ruling. However, we have considered the "Intervenor's Appeal
and Exceptions to Administrative Law Judge's Decision and Brief in
Support of Exceptions" as an amicus curiae brief.
258 NLRB No. 4
courier employees. Neither Respondents nor the
Union requested review of the Regional Director's
decision, but Fred Tenderella, one of the couriers,
requested review on February 19. By letter dated
February 27, the Board denied his request on the
ground that he was not a party to the proceeding.
Thereafter, the Union sent letters to couriers
Tenderella, Harding, and Clarke on May 18, 1979,
and to courier Nauta on May 24, informing them
that, pursuant to the Regional Director's decision
of February 7, they were included in the bargain-
ing unit; that they had become obligated to pay
union dues beginning March 12; and that they
should pay dues for March, April, and May. On
June 18, Swanson, an assistant business representa-
tive for the Union, met with all the courier em-
ployees, gave them copies of the then-current bar-
gaining agreement, and explained their obligations.
On August 17, 4 days before the 1979-81 bargain-
ing agreement was executed, Swanson wrote letters
to Tenderella, Harding, Clarke, and Nauta telling
them that by September 20 they must pay dues in
the amount of $75 for the months of March
through August or the Union would request their
discharge. 2
On September 10, Swanson wrote a letter to
Shell, Respondents' chart courier supervisor, en-
closing "stop work" cards for 16 employees, in-
cluding Tenderella, Harding, Nauta, and Clarke,
and requesting that these cards be made effective
September 21 if these employees had not become
current in their dues by that date. On September
24, she wrote a second letter to Shell, quoting the
union-security provisions of the new bargaining
agreement and requesting the discharge of seven
"delinquent" employees, including Tenderella, Har-
ding, Nauta, and Clarke.
On September 25, Thompson, Respondents'
labor relations representative, wrote to Swanson
that Respondents had distributed a questionnaire to
their couriers and that, upon receipt of the request-
ed information, Respondents would seek verifica-
tion from the Union and then comply with the
union-security clause. Respondents through this
questionnaire sought to determine whether the
couriers had paid their dues or had made arrange-
ments to do so. On October 10, Thompson again
wrote to Swanson, listing the information obtained
from the couriers and asking Swanson to verify it.
This information indicated that all the couriers
2 According to Swanson's testimony. she sent one copy of this letter to
each of the four employees by certified mail and a second copy by regu-
lar mail. The record shows that Nauta never claimed the certified copy
sent to him. In light of our decision herein, we find it unnecessary to re-
solve the issue of whether Nauta received the regular mail copy or other-
wise received notice of the amount of dues the Union alleged he owed.
29
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except Tenderella, Harding, Nauta, and Clarke had
either paid their dues or had made arrangements to
do so. It further indicated that Tenderella had ex-
pressed a willingness to pay dues for September
1979, "which would be the cost all other similarly
situated newly organized employees would pay";
Nauta had expressed a willingness to pay current
dues but no "back dues"; Harding had stated that
he had contacted Swanson and offered to pay dues
for September 1979 only but had been refused; and
Clarke had stated that she had a 1976 withdrawal
card from the Union.
On October 18, Swanson wrote Thompson, veri-
fying most of the information. She further stated
that she had talked to Clarke on September 24 con-
cerning the latter's dues obligations, at which time
Clarke stated that she did not want to listen and
that Shell had told her she would not lose her job
even if she did not sign up. Swanson also stated
that neither Nauta nor Tenderella had contacted
her, and Harding was willing to pay only part of
his obligation. Accordingly, Swanson again re-
quested the discharge of Tenderella, Harding,
Nauta, and Clarke for failure to pay their dues. On
October 26, Thompson again wrote Swanson. In
this letter, he stated that Respondents' position was
that Harding's offer to pay his September dues sat-
isfied the requirements that could lawfully be im-
posed on him; that, if Tenderella and Nauta ten-
dered payment for current dues by November 2,
the same analysis would apply to them; and that
Swanson's statements to Clarke that she must join
the Union by September 24 and pay her back dues
were not conditions that could lawfully be im-
posed. Accordingly, Respondents refused to dis-
charge the four employees.
The Administrative Law Judge found that the
Union fully complied with the Board's require-
ments that it inform employees of their dues obliga-
tions and afford them a reasonable opportunity to
satisfy such obligations before seeking their dis-
charge under the union-security clause. Additional-
ly, he found that the four employees' obligation to
pay dues for the period from "March 10" (sic) to
July 1, and after September 21 was clear, and that
they had deliberately refused to pay such dues. He
further found that, although the Union erred in
seeking dues for the hiatus period between the two
contracts, this was a "minor error" which did not
justify the employees' repudiation of all their obli-
gations under the union-security clause. According-
ly, he concluded that the Union could properly re-
quest Respondents to discharge the four employees
pursuant to the union-security clause in the 1979-
81 contract, and that Respondents violated Section
8(a)(5) and (1) of the Act by refusing to do so.3
As indicated previously, we disagree with the
Administrative Law Judge's analysis. A union seek-
ing to enforce a union-security clause against an
employee has a fiduciary duty to inform the em-
ployee of his or her obligations, to furnish a state-
ment of the precise amount of dues owed, as well
as an explanation of the methods used to compute
the amount, and to provide a reasonable opportuni-
ty to make payment. Chauffeurs, Salesdrivers &
Helpers Union, Local 572, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers
of America (Ralphs Grocery Company), 247 NLRB
934 (1980); Chauffeurs, Teamsters and Helpers Local
Union 150, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Delta Lines), 242 NLRB 454,
455 (1979); Teamsters Local Union No. 122, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (August A. Busch
& Co. of Mass., Inc.), 203 NLRB 1041, 1042 (1973),
enfd. 502 F.2d 1160 (Ist Cir. 1974). It is thus clear
that in order for a union to meet its fiduciary obli-
gation to an employee the amount claimed as dues
arrearages must be consistent with the employee's
actual obligation under the union-security clause.
In this regard, it is well settled that "the only obli-
gation an employee has under the compulsion of
the proviso to Section 8(a)(3) of the Act is to pay
dues for the period of employment with the em-
ployer who is a party to the contract and during
the term of the contract." Montgomery Ward & Co.,
Incorporated, 121 NLRB 1552, 1558 (1958). The
Board has made an exception to this principle
when there are successive contracts containing
union-security clauses without any hiatus. Id. at fn.
13; National Lead Company, Titanium Division, 106
NLRB 545, 548 (1953). Further, even where a sub-
sequent contract is made retroactively effective, a
union cannot use a union-security clause to cause
the discharge of an employee for failure to pay
dues during a period when the union-security
agreement was not actually in effect. See, e.g.,
Brotherhood of Teamsters & Auto Truck Drivers,
Local No. 70, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of Amer-
ica (Sea-Land of California, Inc.), 197 NLRB 125
(1972).
3 Additionally, the Administrative Law Judge rejected arguments by
Tenderella, as amicus curiae, that the Union's letters to the employees
were not clear and that the Union sought more than the simple payment
of dues. He also rejected Respondents' contention that the contract re-
quired the Union to show that competent replacements could he found as
a prerequisite to requesting discharge of the four employees. In view of
our decision herein, we find it unnecessary to pass on these issues
30
KAISER FOUNDATION HOSPITALS
Applying these principles to the present case, we
find that the Union did not satisfy the fiduciary ob-
ligations it owed to the four employees. Thus, as
noted above, the 1976-79 contract between the
parties expired on July 1, 1979. The 1979-81 con-
tract, although made retroactively effective to July
1, was not executed until August 21. Accordingly,
the Union lawfully could not use the union-security
clause of the 1979-81 contract to cause the dis-
charge of four employees for failure to pay dues
during this hiatus. Contrary to the Administrative
Law Judge, the Union's inclusion of dues for this
hiatus of nearly 2 months in the total amount of
dues it sought from the employees under pain of
discharge cannot reasonably be viewed as a "minor
error." Furthermore, because of the hiatus between
the two contracts, the union-security clause of the
1979-81 contract could not properly be used to en-
force unpaid obligations under the 1976-79 con-
tract; i.e., dues for the period from March 12 to
July 1, 1979. Therefore, in contrast to the Adminis-
trative Law Judge's finding that liability for the
period from "March 10" (sic) to July I was
"clear," the only dues obligation which the four
employees had which was enforceable under the
union-security clause of the 1979-81 contract at the
time the Union requested their discharge was the
amount of current dues payable on September 21;
i.e., 31 days after the August 21 execution date of
the 1979-81 contract. Accordingly, the Union, by
notifying the employees that they were obligated
to pay dues for the months of March through
August as a condition of employment, and by then
attempting to enforce this alleged obligation
through the exercise of the union-security clause of
the 1979-81 contract, violated its fiduciary duty to
furnish the employees a statement of the precise
amount of dues owed.4
Based on the foregoing, it is clear that, if alleged,
we would find that the Union violated Section
8(b)(1)(A) and (2) of the Act by attempting to
cause the discharge of the four employees under
the union-security provisions of the 1979-81 con-
tract after having failed to notify them of the pre-
4 We also reject any implication by the Administrative Law Judge
that, even if the Union had sought only those dues which the four em-
ployees were obligated to pay as a condition of employment under the
1979-81 contract's union-security provisions, the employees deliberately
would have refused to meet their obligations. Given the circumstances
here, such a suggestion rests on pure speculation. Indeed, the expressed
willingess of several of the employees to pay I month's dues under the
1979-81 contract contradicts the Administrative Law Judge's conclusion
on this point. Accordingly, we find this case distinguishable from those
situations where the union's notice to the employees of their obligations
was defective, yet it was clear on the record that proper notice would
have been ignored. See, e.g., Produce. Refrigerated & Processed Foods &
Industrial Workers Local No. 630, International Brotherhood of Teamsters.
Chauffeurs, Warehousemen & Helpers of America (Ralphs Grocery Cornmpa-
ny), 209 NLRB 117 (1974)
cise and accurate amount of dues which they were
obligated to pay under those provisions. In such
circumstances, it would be contrary to the pur-
poses of the Act to find that Respondents' refusal
to comply with the Union's request to discharge
the four employees constituted a violation of Sec-
tion 8(a)(5) and (1). Accordingly, we shall dismiss
the complaint in its entirety.
CONCLUSIONS OF LAW
1. Kaiser Foundation Hospitals and Kaiser Foun-
dation Health Plan of Oregon are employers en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. Service Employees International Union, Local
No. 49, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The evidence does not establish that Respond-
ents engaged in the unfair labor practices alleged in
the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
DECISION
STATEMENT OF THE CASE
RUSSELI. L. STEVENS, Administrative Law Judge: This
case was heard in Portland, Oregon, on April 17, 1980.'
The complaint, 2 issued December 12, is based on a
charge filed October 30 by Service Employees Interna-
tional Union, Local No. 49, AFL-CIO (herein called the
Union). The complaint alleges that Kaiser Foundation
Hospitals and Kaiser Foundation Health Plan of Oregon
(herein called Respondents) violated Sections 8(a)(1) and
(5) and 8(d) of the National Labor Relations Act, as
amended.
All parties3 were afforded full opportunity to partici-
pate, to introduce relevant evidence, to examine and
cross-examine witnesses, to argue orally, and to file
briefs. Briefs, which have been carefully considered,
were filed on behalf of the General Counsel and Re-
spondents. An amicus curiae brief was filed by the attor-
ney for Tenderella, Lester V. Smith, Jr., and that brief
also has been carefully considered.
I All dates hereinafter are within 1979, unless stated to be otherwise.
2 As amended at the hearing. with leave of the Administrative Law
Judge.
3 At the hearing. counsel for Fred Tenderella. one of the employees
whose discharge was requested by the Union and whose discharge was
refused by Respondents, moved to intervene. That motion was denied by
the Administrative Law Judge on the ground that Tenderella was not a
necessary party, and. further, the basis of the motion was that the testi-
mony and evidence on behalf of Tenderella would cover issues that were
resjudicara under Case 36-UC-70
31
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
I. THE BUSINESS OF RESPONDENTS
Kaiser Foundation Hospitals is a California, nonprofit,
charitable corporation engaged as a health care institu-
tion operating hospital facilities and services provided at
Bess Kaiser Hospital in Portland, and at Sunnyside Medi-
cal Center in Clackamas County, Oregon.
Kaiser Foundation Health Plan of Oregon is a Wash-
ington nonprofit corporation operating as a nonprofit,
prepaid health care plan to arrange medical, hospital, and
other services to meet the obligations set forth in its
membership contracts. Pursuant to its contract obligation
to provide prepaid health care to its members, Kaiser
Foundation Health Plan of Oregon contracts and oper-
ates on a coordinated basis with four legal entities, in-
cluding Kaiser Foundation Hospital.
During the past fiscal year Respondents, individually
and collectively, in the course and conduct of their oper-
ations described above, derived gross revenues in excess
of $500,000, and during the same period of time individ-
ually and collectively purchased and received goods
valued in excess of $50,000 directly from vendors located
outside the State of Oregon.
I find that Respondents are, and at all times material
herein have been, employers engaged in commerce
within the meaning of Section 2(6) and (7) of the Act,
and are health care institutions within the meaning of
Section 2(14) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Service Employees International Union, Local No. 49,
AFL-CIO, is, and at all times material herein has been, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Background 4
Since 1942, the Union has represented employees in
the unit described below, except those employees work-
ing as part-time and full-time couriers. Since that date,
Respondents and the Union have been parties to succes-
sive bargaining agreements, the most recent of which is
for the period July 1, 1979 to July 1, 1981. The current
contract's predecessor was effective from July 1, 1976, to
July 1, 1979. The current agreement has a union-security
clause, as did the preceding agreement covering the
period 1976-79, requiring union membership of employ-
ees within 31 days of employment.
On February 7, 1979, the Regional Director for
Region 19 issued a decision and order clarifying the unit,
which included part-time and full-time courier employees
within the unit. Prior to that decision and order, those
4 This background summary is based on credited testimony and evi-
dence that is not in dispute.
employees had not been included within the unit. As de-
scribed by the Regional Director, the clarified unit is:
All employees in the following classifications em-
ployed at those clinics known as the Kaiser Foun-
dation Health Plan of Oregon located in Portland
and Beaverton, Oregon and Vancouver, Washing-
ton, at those dental clinics known as the Kaiser
Foundation and Dental Care Program, Bess Kaiser
Hospital in Portland, Oregon and Sunnyside Medi-
cal Center in Clackamas, Oregon: Gardener aides,
gardeners, senior gardeners, housekeeping aides I
and II, linen room workers, messengers, orderlies,
patient aides, central supply aides and senior central
supply aides, surgical aides, pack room aides, cafete-
ria aides I and II, dental assistants, dental service
clerks, clinic assistants, diet aides I and II, appoint-
ment clerks, unit secretaries, arteriogram aides,
HHA assistants, licensed practical nurses I and II,
senior licensed practical nurses, cooks I and II,
warehousemen, central supply distributors, small
van drivers, van driver helpers, large van drivers
and part-time and full-time courier employees; but
excluding confidential employees, guards and super-
visors as defined in the Act.
Neither Respondents nor the Union requested review
of the Regional Director's decision and order, but Fred
Tenderella, 5 one of Respondents' couriers, requested a
review on February 19. By letter dated February 27, the
National Labor Relations Board rejected Tenderella's re-
quest, on the ground that he was not a party in Case 36-
UC-70.
On May 18 the Union sent letters6 to couriers Tender-
ella, Tom Harding, and Jean Clarke, and on May 24 to
John Nauta. The letters were the same, and read as fol-
lows:
Pursuant to the decision of the Nineteenth (19th)
Region of the National Labor Relations Board
dated February 7, 1979, the part-time and full-time
courier employees were included into the collective
bargaining Unit covered by the Contract befween
Kaiser Foundation Hospitals and Kaiser Foundation
Health Plan of Oregon and this Union.
Accordingly, the previous Bargaining Unit was
clarified to include the part-time and full time couri-
ers.
As the present contract contains a legal union secu-
rity clause, you are covered by its terms and condi-
tions. In order to accommodate you, the Union has
decided to waive the usual Initiation Fees and, fur-
ther, give you an extension of thirty days from the
date of the above decision and order for you to
apply for membership into our Union. Thus your
monthly dues of $12.50 becomes effective on the
twelfth day of March, 1979. Please complete the en-
closed application and return to us with the sum of
5 Individuals are referred to herein by their last names.
6 G.C. Exhs. 6(a), (b). (c), and (d).
32
KAISER FOUNDATION HOSPITALS
$37.50, which will represent your dues covering the
months of March, April, and May, 1979. If you
desire to have future dues deducted by your Em-
ployer, please sign the Deduction Authorization
form on the back side of the application.
If you have any questions, please contact the under-
signed in as much as we shall vigorously represent
you.
On June 15 Janice Swanson, an assistant business rep-
resentative for the Union, posted the following notice on
a wall near the courier office, where other union notices
have been posted. The notice reads as follows:
SERVICE EMPLOYEES INTERNATIONAl UNION
LOCAl NUMBER 49, AFL-CIO
3653 S.E. 34TH AVENUE
PORTLAND, OREGON 97202
June 15, 1979
Special Union Meeting!
To: All couriers, employed at Kaiser Foundation
We want to meet your-give you a copy of your
contract-and answer any questions you may have.
We want to inform you of what is happening with
negotiations, to let you know about the union you
will now belong to.
DATE: June 18, 1979 (Monday)
TIME: 7:30 P.M.
PLACE: Conference Room A & B Sunnyside Hos-
pital
Please make ever effort to attend!!!!!
Fraternally yours,
SERIVCE EMPLOYEES INTERNATIONAL UNION,
LOCAl. No. 49
/s/Janice M. Swanson
Asst. Business Representative
On June 18 Swanson met with all the courier employ-
ees as scheduled, gave them copies of the current bar-
gaining agreement, and told them about the Union and
related matters.
On August 17 Swanson wrote letters to Tenderella,
Nauta, Clarke, and Harding, again requesting their com-
pliance with the requirement that they join the Union.
On September 10 Swanson wrote a letter to John
Shell, chart courier supervisor at Respondents' facility,
enclosed "stop work" cards for 16 employees, and re-
quested that the cards be made effective September 21, if
those employees had not, by then, become current in
their payment of dues.
After Swanson's letter of September 10, all except
seven of the delinquent employees became current in
their payment of dues.
On September 24 Swanson wrote a second letter to
Shell, similar to the one of September 10 except it listed
only seven delinquent employees. The second letter was
written because Jack Thompson, a labor relations repre-
sentative of Kaiser Foundation Health Plan of Oregon,
had advised Swanson that the September 10 letter was
not acceptable, since it did not quote the pertinent provi-
sions of the bargaining agreement. The September 24
letter quotes those provisions.
On September 25 Thompson wrote to Swanson, en-
closed copies of a letter and questionnaire he had sent to
couriers, and advised Swanson that Respondents would
comply with the bargaining agreement after replies to
the questionnaires had been verified with her.
On October 10 Thompson wrote a letter to Swanson,
listed pertinent information obtained from all couriers as
a result of the questionnaires he sent to them, and asked
verification of that information.
On October 18 Swanson wrote to Thompson, verified
certain information Thompson had sent her, gave
Thompson additional and more current information on
some couriers, and requested the discharge of Harding,
Tenderella, Nauta, and Clarke, because of their failure to
pay dues.
On October 26 Thompson wrote to Swanson, as fol-
lows:
This is in reply to your letter dated October 18.
1979, relative to the status of chart couriers with re-
spect to union membership in Local 49.
Both Tom Harding and the Union state that he has
offered to pay union dues for September 1979. It is
the Employer's opinion that this satisfies the re-
quirements that may not lawfully be imposed on
employees and therefore is unwilling to discharge
Mr. Harding.
Fred Tenderella and John Nauta have stated that
they are willing to pay current dues. If these two
employees tender payment in writing to the Union
by November 2, 1979 with a copy to the Employer,
the same analysis as indicated above with respect to
Mr. Harding would apply.
Jean Clark 7 asserts that she has a withdrawal card
from Local 49. Local 49 states that Ms. Clark was
told she had to join Local 49 by 5:00 p.m. on Sep-
tember 24, 1979 and that she would have to pay an
amount of back dues. These are not conditions
which, in the opinion of the Employer, may lawful-
ly be imposed. Therefore, the Employer concludes
it may not lawfully discharge Ms. Clarke.
Contentions of the Parties
The General Counsel contends that the Union lawfully
requested Respondents to discharge Clarke, Harding,
Nauta, and Tenderella for nonpayment of dues, and that
Respondents' refusal to discharge the employees violated
Section 8(a)(5) and (1) of the Act.
Respondents acknowledge that they have an obligation
to discharge bargaining unit employees who do not
become and remain members of the Union, and also ac-
knowledge that they refused to discharge the four em-
ployees in question. Respondents contend, however, that
I The correct spelling of this name a not clarified at the hearing.
33
DECISIONS OF NATIONAL. I.ABOR RE.I.ATIONS BOARD
they are not obligated to discharge employees until the
Union takes certain steps to protect the rights of the em-
ployees whose discharge is sought. Those steps, Re-
spondents contend, are the employee must: (I) be in-
formed of his or her obligations in order that he or she
may take whatever action is necessary to protect his or
her job tenure; (2) be provided with a statement of the
precise amount and months for which dues are owed, as
well as an explanation of the methods used in computing
the amount; and (3) be provided an adequate opportunity
to make payment. Respondents contend that the Union
did not take the aforesaid steps. Respondents also con-
tend that they "received nothing from the Union to indi-
cate that it was attempting to meet its obligation to the
individuals in question," hence, that it was unable to de-
termine whether the Union had accorded the four em-
ployees the rights to which they were entitled. Respond-
ents further contend that they were not obligated to dis-
charge the four employees, because the Union intro-
duced no evidence that, as the contract requires, compe-
tent replacements should be obtained.
A. The Intervention Question
At the hearing Tenderella's attorney moved to inter-
vene, on the basis that Tenderella's job and his rights
were involved. Three reasons were given:
I. The Board's decision in Case 36-UC-70 was defec-
tive.
The computation of dues claimed by the Union is de-
fective, since there was a hiatus between expiration of
the 1976-79 contract and execution of the 1979-81 con-
tract.
2. Tenderella's discharge is sought, not on the basis of
failure to pay dues and an initiation fee, but rather, on
the basis that Tenderella has not become a full-fledged
member of the Union, subject to all the duties of such
membership.
3. In his motion to intervene, Tenderella's attorney
stated, inter alia, "Intervention is requested specifically
to insure that all of the evidence and arguments that
would support the position that Kaiser acted properly by
not discharging Mr. Tenderella are presented to the Ad-
ministrative Law Judge."
Section 102.29 of the Board's Rules and Regulations,
Series 8, as amended,8 states, in pertinent part, "The ad-
ministrative law judge . . . may by order permit inter-
vention in person or by counsel or other representative
to such extent and upon such terms as he may deem
proper." The fact that said provision vests discretionary,
rather than mandatory, authority in the administrative
law judge is not in dispute, nor is it contended that Ten-
derella is a necessary party to this .ction.
The arguments that Tenderella's attorney presented at
the hearing and those that subsequently were presented
in an amicus curiae brief, could have been presented at
the time of hearing on the Union's petition for an order
clarifying the unit. The Regional Director's order is de-
tailed and complete, with full explanation of the bases for
I This provision is based on Sec. IO(b) of the Act, which states, in
part, "In the discretion of the . . agency conducting the hearing or the
Board, any other person may be allowed to intervene in the said proceed-
ing and to present testimony."
clarifying the unit. As noted above, that order was not
appealed to the Board by any party. Tenderella's request
for review of the order, made on February 19, was
denied because Tenderella was not a party to the action
in Case 36-UC-70, and the merits of the Regional Direc-
tor's order were not reconsidered. Under such circum-
stances, the Regional Director's action was final, and the
merits of that action are not subject to relitigation by an
administrative law judge."
Tenderella's attorney primarily relied on the allegedly
defective unit when he argued his motion to intervene at
the hearing. That argument was carefully considered by
the administrative law judge, who concluded, and stated,
that Case 36-UC-70 was res judicata. Tenderella's attor-
ney further argued for intervention on the bases of the
two points set forth in 2 and 3 above. Those arguments
also were carefully considered by the Administrative
Law Judge. However, it was clear that they were sec-
ondary arguments, and that testimony relative to the ar-
guments was not required. Had intervention been permit-
ted, a result would have been a longer hearing than was
necessary, and the probability that much irrelevant testi-
mony and argument would be offered, particularly so far
as the unit determination in Case 36-UC-70 was con-
cerned. 1 0 In order for Tenderella's arguments to be
placed in the record, his attorney was given leave to file
an amicus curiae brief. That brief covers the matter of
proposed intervention, as well as the other two subjects
mentioned above.
Tenderella's attorney argues that "It is unclear when
the second contract in issue went into effect." The 1976-
79 contract expired July 1, 1979. The successor contract
is dated August 21, 1979, "made and entered into as of
July 25, 1979," but is "effective on the Ist day of July,
1979." 2 The pertinent portion of the security provision
of the 1976-79 contract, which is the same as the one in
the 1978-81 contract, is as follows:
ARTICLE III-RECOGNITION AND UNION
SECURITY
The Employer recognizes the Union as the exclu-
sive bargaining agency of the employees covered by
this Agreement for the purposes of collective bar-
gaining with respect to rates of pay, hours of work
and working conditions.
It shall be a condition of employment that all em-
ployees of the Employer covered by this Agree-
ment who are members of the Union in good stand-
ing on the execution date of this Agreement shall
remain members in good standing and those who
are not members on the execution date of this
Agreement shall, within thrity-one (31) days follow-
Induvrrial Steel Corporation. 228 NLRB 802, fn. 3 (1977); Ken .Lee.
Inc., 137 NLRB 1642 (1962). It is noted that Tenderella's attorney does
not contend that he is in possession of newly discovered evidence that
probably would change the decision in Case 36-UC-70.
° Semi-Steel Casing of.St. Louis .N.L.R.B. 160 F2d 388 (8th Cir
1947); .L.R.B. v. Pennsvlvania Greyhound ine. Inc.. 303 U.S. 261
(1938).
' This language is from the contract's preamble.
12 Art. XXXII of the contract.
34
KAISER FOUNI)ATI()N H()OSIITAI.S S
ing the execution date of this Agreement, become
and remain members in good standing in the Union.
It shall also be a condition of employment that all
employees covered by this Agreement and hired on
or after its execution date shall, within thirty-one
days following the beginning of such employment
become and remain members in good standing in
the Union.
Employees who are required hereunder to maintain
membership and fail to do so and employees who
are required hereunder to join the Union and fail to
do so shall upon notice of such fact in writing from
the Union to the Employer be discharged; pro-
vided, however, that the Employer shall not be re-
quired to discharge such employee until a compe-
tent replacement can be obtained.
For the duration of this Agreement, the Employer
shall deduct from each employee's wages an initi-
ation fee and monthly Union dues, as specified by
the Union; provided that the employee has volun-
tarily agreed to and signed a written assignment and
authorization which has been received by the Em-
ployer. Such assignment and authorization shall be
effective at the time it is signed by the employee
and it shall remain irrevocable for a period of one
(1) year thereafter, or for a period of fifteen (15)
calendar days prior to the termination date of the
current collective bargaining Agreement between
the Employer and the Union, whichever occurs
sooner. :3
The 1976-79 contract contained no provision for con-
tinuing the contract after the date of its expiration on
July , 1979, nor is there any evidence that the parties
otherwise agreed to its extention. Thus, Respondents'
unit employees were not obliged to pay dues under the
contract for any period after July 1, 1979, until a succes-
sor contract was in force.' 4 The 1979-81 contract pro-
vides, as quoted above, that all employees who are mem-
bers of the Union in good standing on the execution date
of the contract shall remain members in good standing,
and nonmembers have 31 days following the execution
date of the contract to become members. The execution
date of the 1979-81 contract was August 21, 1979.
Therefore, employees were under no obligation to pay
dues pursuant to the union-security provisions of the
contracts between July I and August 21, 1979.'5
Section 8(a)(3) of the Act gives to employees a 30-day
grace period from the execution date of the contract, and
the 1979-81 contract extends that period to 31 days.
Therefore, the four employees here involved were obli-
gated to pay dues for two separate periods; i.e., from
March 10, 1979 (31 days after the decision in Case 36-
UC-70), until July 1, 1979, and from September 21, 1979
(31 days after the contract was executed), to the present.
'a The precise language of the 1976-79 union-security provision is not
shown in G.C. Exh. 3, but that exhibit shows the existence. and applica-
lion, of the union-security provision, and the wording of the provision is
not in dispute.
14 Brolherhood of Tanlterr & Autol 7ruck Driver. Local .No. 7(1 (Sea.
Land ofCli/abrna. Inc.l, 197 NL.RH 125 (1972)
i lamners Local No. 70. supra.
The fact that the Union gave to four employees accu-
rate. prompt, and adequate notice of their obligations
under the union-security clause of the 1976-79 contract
is shown by the letters quoted above, sent to the four
employees on May 18 and (ill the case of Nauta) on May
24. Further, Swanson met with the employees and ex-
plained their obligation on June 1X. The four employees
ignored their obligations and refused to pay their dues to
the Union. They now are delinquent under that contract
from March 10 to July I, 1979.
By letters dated August 17, Swanson again notified the
four employees of their delinquency and asked for pay-
ment by the close of business on September 20 of dues
for March through August. Those notices were not cor-
rect, since they covered a period of approximately 5
weeks when the parties did not have a contract.
On September 10 Swanson initiated efforts with Re-
spondent to obtain the discharge on September 21 of the
four employees. On September 25 Respondents initiated
efforts directly with employees of the unit, to determine
who, if anyone, was delinquent. After exchanges of cor-
respondence, Thompson notified Swanson on October
26, in a letter quoted above, that the four employees did
not feel obligated to pay back dues, and that Respond-
ents agreed with the employees. The four employees
presently are delinquent in payment of dues since Sep-
tember 21, 1979.
It is seen from the foregoing that the four employees
are delinquent in payment of dues and that they deliber-
ately refused to pay them. The only defect in the Union's
actions is its effort to collect dues for July and August
1979. However, (1) that error was not, prior to the hear-
ing, objected to by any employee or by Respondents; (2)
liability for dues from March 10 to July 1, and after Sep-
tember 21, is clear: (3) the Union has exhibited patience
and understanding in its efforts to educate the unit em-
ployees in their obligations: it has not been arbitrary in
its actions; (4) the four employees, willingly and know-
ingly, have refused to meet their obligations. The only
positive move made by them was a stated willingness to
pay I month's current dues, but even that willingness
was not expressed until after discharge appeared to be a
possibility. In any event, such a limited and defective
offer is ineffective, and does not relieve the employee of
his obligations under a union-security provision. i The
General Counsel's quotation from John I. Roche & Co.
is apt:
If it is true that the fiduciary responsibilities im-
posed upon Unions by our Act were designed to
insure against Unions employing their powers to re-
quest discharge in a discriminatory fashion, it is
equally true that these responsibilities were never
intended to set as a shield for those who seek to
avoid their legitimate dues obligations.
N .¥.I..R.B Brotherhxod of Tiuamsrer ad Auto Truck Drivers Local
N.o. 85. International Brotherhood of Tcamters. Chauffeurs. Warehousemen
uad IHelpers of .Amerwa [Pacrfic Motor Trucking Companyl., 458 F.2d 222
(9th Cir 1972); Inlernational ['nion,. L ied .lutomobi. .erospace and .4g-
ri-ultural Inplsenil.t Workers of .4merica. tA4W. Local 1772 (Kuhlman
Elecric Comnpanr). 211) NI. R 798 (1978).
: 231 NRBH I(82. I()3 (977)
35
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Teamsters Local No. 70, supra, is relied on by Tender-
ella's attorney as authority for his argument. That case is
inapposite, since there the charging party did pay his
dues to the union, both before and after the no-contract
period. He was discharged for not paying his dues
during that no-contract period, as he was entitled to do.
Here, the four employees have denied their liability to
pay any dues at all, which clearly is in violation of their
duty. As shown above, they owe dues under a union-se-
curity provision for periods of time both before and after
the no-contract period.
Business Machines Technicians and Engineers Section,
Allied Services Division, Brotherhood of Railway, Airline &
Steamship Clerks, Freight Handlers, Express & Station
Employees, AFL-CIO, Local No. 1937 (NCR Corpora-
tion),'8 also is relied on by Tenderella, but it, too, is in-
apposite, for the same reasons Teamsters Local 70 is inap-
posite. In Business Machines, the employees were not
fired because of refusal to pay dues when they should
have, as is the instant case. They were fired because of
failure to pay dues only during a period when a union-
security provision was not in effect. There was no allega-
tion, such as this case rests on, that the employees re-
fused to acknowledge liability for any dues at all, even
during the life of a contract with a valid union-security
provision which was a condition of employment.
The Union's error in asking for dues during a no-con-
tract period, in addition to dues that are owing, is a
minor error that can be corrected during the compliance
state hereof.
Tenderella's attorney argues that the Union was seek-
ing to enforce the union-security provision against the
four employees for reasons other than failure to pay dues
and initiation fees.' 9 However, that argument neither is
supported by the record, nor timely advanced. It is true
that the Union's correspondence with employees, and the
union-security clause of the contract, refer to union
membership as a requirement for employment after a
grace period, but that is not unusual. Such references
commonly are made, and indeed, are embodied in the
same sense in the language of the Act. Union-security
clauses usually are considered membership clauses, and
simple payment of dues without union membership is the
exception, rather than the rule. The record does not
show that the Union was demanding anything of the
four employees, other than demands that customarily are
made after a union and an employer execute a contract
containing a union-security provision. The employees
here involved never have tendered dues to the Union as
required by the contract, hence, there has not been any
refusal by the Union to accept that tender as satisfaction
of the terms of the union agreement. Further, the Union
has asked Respondents to discharge the employees for a
single reason-refusal to pay dues required by the union-
security provision. No other obligation has been sought,
Is 235 NLRB 666 (1978).
19 Tenderella's attorney also argues that union letters to employees
concerning their obligations, and the union-security clause of the con-
tract, are not clear. That argument has been carefully considered and is
found to be without support.
or used, as a basis for requesting discharges. 20 Nor, until
the hearing herein, did Respondents ever intimate that
they supported the employees' refusal to pay dues be-
cause the Union was demanding that the employees
assume all the obligations of union membership, plus
payment of dues.
B. Respondents' Defenses
1. Respondents argue that the employees were not no-
tified of their obligations to the Union, either generally
or by specific computation of the amounts claimed by
the Union.
The letters quoted above, and the credited testimony
of Swanson relative to her meeting with employees,
show that the employees clearly, specifically, and repeat-
edly were informed of their obligations to the Union.
The notices to employees, written and oral, fully com-
plied with Board requirements. 2 t The erroneous inclu-
sion of a short period of time during which dues were
not owed by the employees does not provide justification
for the employees repudiating all their obligations under
the union-security provision of the contract. Further, the
unit included several delinquent employees other than
the four involved in this case, yet those others acknowl-
edged their obligation and made their peace with the
Union. If there was any misunderstanding on the part of
those other employees, that misunderstanding was re-
solved. Only the four now under consideration refused
to comply with the security provision of the contract,
and it is apparent that their refusal was not based on lack
of knowledge concerning their obligations. This defense
of Respondents is without merit.
2. Respondents argue that it was not advised by the
Union that the latter was meeting its obligations to em-
ployees, as it is required to do. That argument is con-
trary to the record, which shows that the Union kept
Respondents fully informed, and that Respondents
worked with the Union in corresponding with employees
and ascertaining the status of each, under the union-secu-
rity provision. Under such circumstances, it was incum-
bent on Respondents, after they received the Union's re-
quest for discharge, to investigate and to determine
whether or not employees were delinquent in payment of
dues,2 2 and, if they were found delinquent, to honor the
union-security provision by giving the employees an op-
portunity to pay their dues, or else be discharged. 23 Re-
spondents did not meet their contractual obligations, and,
in so doing, violated the Act as alleged.
3. Finally, Respondents argue that they are not obli-
gated to discharge the four employees, because the
Union introduced no evidence that competent replace-
20 Thus, Union Starch Refining Co., 87 NLRB 779 (1949), enfd. 186
F.2d 1008, cert. denied 342 U.S. 815 (1951), relied on by Tenderella's at-
torney, is inapposite.
21 Teamsters, Salesdrivers d Helpers Union. Local 572. International
Brotherhood of Teamsters, Chauffeurs, Warehousemen d Helpers of America
(Ralph's Grocery Company), 247 NLRB 934 (1980); International Brother-
hood of Boilermakers. Iron Shipbuilders, Blacksmiths. Forgers d Helper.
Local Lodge .Vo. 732, AFL-CIO (Triple A Machine Shop. Inc.. d/b/a
Triple A South), 239 NLRB 504 (1978).
22 Independent Stave Company. 248 NLRB 219 (1980).
23 California Blowpipe & Steel Company, Inc., 218 NLRB 736 (1975).
36
KAISER FOUNDATION HOSPITALS
ments can be obtained. However, that argument attempts
to place the burden on the wrong party. The Union does
not have an affirmative duty to show that replacements
are available, as a condition precedent to requesting dis-
charge of the delinquent employees. Under the contract
the burden is on Respondents, if such a defense is sought,
to show that replacements are not available. Respondents
have not made that claim, nor have they introduced any
evidence to establish that defense. So far as the record
shows, replacements are available, and Respondents
simply do not want to honor their contract with the
Union. Certainly, Respondents introduced no evidence to
show that they attempted, without success, to obtain re-
placements.
In refusing, without proper cause, to discharge the
four employees as requested by the Union, Respondents
violated Section 8(a)(5) and (1) of the Act, as alleged.
THE REMEDY
Having found that Respondents have engaged in, and
are engaging in, certain unfair labor practices affecting
commerce, I shall recommend that they be ordered to
cease and desist therefrom, and take certain affirmative
action in order to effectuate the purposes of the Act.
CONCLUSIONS OF LAW
1. Respondents Kaiser Foundation Hospitals and
Kaiser Foundation Health Plan of Oregon, are employers
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Service Employees International Union, Local No.
49, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondents violated Section 8(a)(5) and (1) of the
Act by failing and refusing, in response to the Union's
demand letter of October 18, 1979, to discharge employ-
ees Harding, Tenderella, Nauta, and Clarke for failure to
comply with the union-security provision of the contract
between Respondents and the Union.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
37