Laborers Local 89 (Wagner Construction)

National Labor Relations Board - Board Decisions

Jan 11, 1991

301 N.L.R.B. 96 (N.L.R.B. 1991)

96
301 NLRB No. 10
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel has excepted to some of the judge’s credibility find-
ings. The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the relevant
evidence convinces us that they are incorrect. Standard Dry Wall Products,
91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
1 The complaint uses the surname ‘‘Vara,’’ but, at trial, the Charging Party
was as often referred to as ‘‘Perales,’’ which is the surname adopted by the
General Counsel on brief.
Laborers’ International Union of North America,
AFL–CIO, Local Union No. 89 (Wagner Con-
struction Co.) and Alan Perales Vara. Case 21–
CB–10419
January 11, 1991
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND
RAUDABAUGH
On October 11, 1989, Administrative Law Judge
Timothy D. Nelson issued the attached decision. The
General Counsel filed exceptions and a supporting
brief and the Respondent filed an answering brief to
the General Counsel’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions and to adopt the rec-
ommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Brian J. Sweeney, Esq., for the General Counsel.
Ray Van Der Nat, Esq., of Los Angeles, California, for Re-
spondent Laborers Local 89.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge. I heard
this case in trial at San Diego, California, on May 17 and
18, 1989. It first came to the Board’s attention when Alan
Perales Vara (Perales)1 filed an unfair labor practice charge
against Respondent Laborers Local 89 (the Union) on De-
cember 14, 1988, the same day the Union had taken the ac-
tion which triggered his charge. After investigating, the Re-
gional Director for Region 21 issued a complaint and notice
of hearing against the Union on January 31, 1989.
That complaint alleges, in substance, that on December 14,
1988, the Union violated Section 8(b)(2) and (1)(A) of the
Act by ‘‘request[ing]’’ that Wagner Construction Co. (Wag-
ner) ‘‘immediately remove’’ Perales from its Del Mar, Cali-
fornia jobsite, and that Wagner did, in fact, ‘‘remove’’
Perales on that same date, all under circumstances where the
Union had previously ‘‘failed to give reasonable notice to
Perales of certain alleged dues and fees delinquencies . . .;
failed to inform Perales of the amount owed and the method
used to compute that amount; failed to afford Perales an ade-
quate opportunity to make payment of the alleged delin-
quencies; and failed to warn Perales that he would be dis-
charged if he failed to pay the alleged delinquencies.’’
At trial, I allowed the General Counsel to make certain
amendments to the complaint which, as clarified by the Gen-
eral Counsel’s statements of position at trial and his further
refinements on brief, amount to alternative theories of pros-
ecution. In substance, one theory is that the Union treated
Perales differently from other workers in Perales’ shoes be-
cause Perales was a member of a rival political faction with-
in the Union. At bottom, this theory proposes as a matter of
fact that but for Perales’ protected exercise of his right to en-
gage in rival internal union activities, the Union would never
have proceeded against him as it did. The other theory pro-
poses as a matter of law that Perales was a ‘‘new’’ employee
when, less than 7 full days after he started working for Wag-
ner, the Union allegedly demanded his ‘‘immediate removal’’
from the job; under this theory, the Union was legally re-
quired to wait at least until Perales had completed the Sec-
tion 8(f)-mandated 7 days of work before it could lawfully
demand that he fulfill whatever union security obligations
might apply to such an employee (apparently, to become a
‘‘new’’ member and pay associated initiation fees and dues).
Respondent denies all alleged wrongdoing, averring as af-
firmative defenses that its conduct was ‘‘protected under
Sections 8(b)(2) and 8(a)(3) of the Act,’’ that its conduct was
‘‘not discriminatory [sic] applied to the Charging Party and
has consistently and legally been enforced,’’ and that ‘‘Re-
spondent’s notice requirement was ‘excused.’’’
Based on the record, my study of the parties’ posttrial
briefs, my assessments of the witnesses as they testified, and
my appraisals of the inherent probabilities, I make these
FINDINGS OF FACT
I. INTRODUCTORY OVERVIEW
On December 14, 1988, the Union’s business agent, Louis
Phillips, confronted Perales (who had stopped paying dues 13
months earlier) over his working on a Wagner jobsite while
‘‘on suspension’’ by the Union for dues delinquency. Phillips
also complained to Wagner’s agents, including Super-
intending Foremam Stephen Butler about Perales’ presence
on the site. Butler then spoke with Perales about Phillips’
call, whereupon Perales left the site before quitting time and
went to the Board’s office to file a charge against the Union.
About 2 weeks later, on the advice of a Board agent, Perales
approached the Union to try to settle his arrearage and get
a clearance to get back to work. In the course of these dis-
cussions, Perales claimed that he was entitled to a credit be-
cause he had overpaid dues between 1985 and 1987, during
a period when he was actually disabled, and that he had pre-
viously submitted documentation to the Union supporting his
right to pay a reduced, ‘‘disability dues’’ amount, but had
never received any acknowledgment by the Union of these
submissions, and that this had caused him in November 1987
to stop paying any dues. The Union investigated, and later
97LABORERS LOCAL 89 (WAGNER CONSTRUCTION)
2 In denying Perales’ counterclaims, the Union found no evidence that
Perales had ever previously claimed entitlement to ‘‘disability dues’’ status,
and then invoked a regularly adopted rule of some years’ standing which bars
retroactive credit for dues overpayments more than 6 months before a member
makes such a claim. The complaint does not attack the Union’s disposition
of Perales’ counterclaims and the General Counsel has not otherwise called
it into question.
3 So far as this record shows, the practices here described are applied equal-
ly to members who are merely ‘‘delinquent’’ and to members who have been
‘‘suspended’’ for dues nonpayment; see, e.g., direct examination of Stephen
Butler.
4 For all purposes below I assume, without deciding, that Perales’ testimony
concerning his disability is true, including when it first occurred (1985), when
it abated (April 1987), when it recurred (later April 1987), and when it re-
abated (December 1988). I note also that Perales admittedly sought to conceal
the fact of his disability history in completing application forms for Wagner,
explaining at trial that he feared it would impair his future work chances to
disclose that history.
denied, Perales’ counterclaims.2 Perales eventually paid the
back dues the Union said he owed, was reinstated to full
membership, and received the Union’s clearance to go back
to work for Wagner, which he did, on or about January 7,
1989.
Much of the litigation was devoted to an exposition of
background matters. These cannot be ignored if one hopes to
reach a fair understanding of the events central to the com-
plaint, and I thus address them first in some detail.
II. BACKGROUND
A. The Master Labor Agreement and Relevant
Practices Under It
Wagner is a construction contractor in Southern California
whose direct or indirect impact on interstate commerce is
enough to meet the Board’s discretionary standards for tak-
ing jurisdiction. The Union and Wagner are parties to a mas-
ter labor agreement which governs the hiring and referral of
laborers and which was applicable to Wagner’s operations at
all times in question. Section 12 of the agreement contains
a familiar construction industry union-security clause; that
section further provides, however, that an employer ‘‘shall
not be required to discharge any employee pursuant to this
Section until a written notice from the Union of such em-
ployee’s noncompliance with this Section . . . shall have
been served upon such . . . Employer.’’
Customs and practices under the agreement—particularly
those associated with the hiring of laborers and the Union’s
enforcement of the union-security clause—are not strictly
congruent with the literal provisions in the agreement. The
undisputed testimony allows these generalized findings: Al-
though the agreement contemplates that employers will first
make contact with the Union as the exclusive referral source,
and that jobseekers will obtain a referral slip from the Union
before starting work, the Union’s agents concede it is com-
mon for members to locate their own jobs, begin working,
and only later to make arrangements to get a post facto refer-
ral, or ‘‘clearance,’’ from the Union.
Most members get a clearance, either before or shortly
after starting work; the Union’s copy of this record serves as
a cross-reference for the pension and benefit trusts in making
sure that each covered employee receives proper employer
contributions for working under the agreement. But the
Union’s agents also concede that, in practice, the Union is
likely to make an issue of an already-employed laborer’s fail-
ure to get a clearance only if the laborer is dues-delinquent.3
And even in those cases the Union will not normally seek
the laborers’ immediate removal from the job by invoking
the union-security clause; rather, upon discovering a delin-
quent member working, the Union’s business agent will nor-
mally instruct him or her to stop by the Union’s offices after
work to clear up the delinquency. Also typically, the em-
ployee and/or the employer will be warned that the Union
will seek the employee’s removal if the delinquency is not
straightened out and the employee fails to be properly
cleared by the Union for continued employment.
When a delinquent employee complies, the Union in due
course issues a clearance ratifying the employee’s presence
on the job. If informal exhortations do not get the matter
cleared up, the Union will eventually send the employer a
written ‘‘Violation Notice—Removal Slip’’ which contains
as standard language the statement, ‘‘The following named
person was found to be employed . . . in violation of the
above indicated collective bargaining provisions, and you are
hereby notified to remove this person from your job imme-
diately.’’
B. Internal Union Politics
In 1981 Perales defeated Paul Aleman in an election for
the position of business manager, the chief executive office
in the Union, and he thereafter served a 3-year term. After
taking office Perales brought internal union charges against
Business Agent Louis Phillips, and others associated with the
former Aleman slate, in which Perales alleged that Phillips,
et al., was intentionally impeding Perales in his performance
of official duties. The International sustained these charges
and barred Phillips from holding elected positions in the
Union for 3 years. In union elections in 1984 a slate headed
by Aleman defeated Perales and his slate, and dismissed
those rivals from paid positions in the Union shortly after
that. Phillips was then reappointed business agent. Three
years later Perales made another bid for election to the busi-
ness manager post, but was again defeated by Aleman in an
election held in June 1987.
The record contains no evidence that Perales has played
any role in internal union affairs since that date; indeed,
when Perales stopped paying dues in November 1987, it ap-
pears that he dropped from sight until reemerging on Wag-
ner’s job in December 1988.
C. Perales’ Prior Employment By Wagner; His
Disability History; His Reemployment by Wagner in
December 1988; His Actions Before Ceasing Dues
Payments; His Suspension from Membership
Perales first worked for Wagner, with the Union’s post
facto clearance, in April 1987. After about 2 weeks, how-
ever, he requested and received from Wagner’s super-
intending foreman, Stephen Butler, a ‘‘layoff,’’ assertedly
due to the recurrence of a physical ailment which had left
Perales disabled for much of the preceding 2 years.4 When
Perales again felt fit, he made contact with Butler and re-
turned to work for Wagner on or about December 7, 1988,
this time without notifying the Union or obtaining a clear-
ance.
In the meantime, starting in November 1987, Perales had
intentionally stopped paying dues. Perales’ current expla-
nation for this rests on a series of claims: One is that he be-
98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 It is a fair challenge to these findings to question how it could be that
Perales would not have sought ‘‘disability dues’’ status as early as 1985, as
he claims, when I have found that he did, in fact, at least provide documenta-
tion concerning his disability to the election judge in 1987. I think the record
provides a counterexplanation which is at least as plausible as the version
Perales would have me accept: Given Perales’ admitted concern about how
disclosure of his disability might impair his chances for work, he could have
decided in 1985 that continuing to pay ‘‘regular’’ dues was preferable to hav-
ing his disability a matter of record in the union office which served also as
the exclusive hiring hall for the industry. With an election candidacy in mind
by 1987, however, and with the fact that he had scarcely worked in the trade
in the previous 2 years, he could have judged his absence from the workplace
a political liability, and only then have decided to make his prior disability
status a matter of record before the election judge. And, under this alternative
scenario, Perales would not have been submitting his documentation for the
purpose of its being ‘‘passed on’’ to the Union’s officials as a request for
‘‘disability dues’’ status, but rather merely for the purpose of there being a
‘‘record’’ of his disability in the election files, should anyone make an issue
about where he had been in the past 2 years. I remain unpersuaded by Perales’
word alone that, in submitting documents to the election judge, he intended
these to be passed on for action. And even if Perales did intend for the judge
to pass along such a message it should have become increasingly clear to
Perales, as nearly 6 more months passed while Perales continued without com-
plaint to pay ‘‘regular’’ dues, that the message had not been delivered.
6 On this record as previously summarized it appears that, in practice, the
Union seeks to collect delinquent dues only if it discovers a delinquent mem-
ber on the job, and then relies on the threat of job removal, rather than dun-
ning letters, or lawsuits, to enforce its members’ dues obligations. This prac-
tice is not separately challenged by the complaint except insofar as it relates
to the General Counsel’s showing that the Union did not fulfill certain ‘‘no-
tice’’ obligations to Perales before allegedly demanding and obtaining from
Wagner Perales’ ‘‘immediate removal’’ on December 14.
lieved he was due a ‘‘credit’’ for having paid ‘‘regular’’ dues
for the 2 years preceding November 1987, when he had been
disabled, and thus should have been entitled to maintain his
membership by paying a reduced ‘‘disability’’ dues amount
of roughly $10 per month, rather than the roughly $17–$18
per month he had actually paid between 1985–1987 as ‘‘reg-
ular’’ dues. Relatedly, Perales claims that he had twice sub-
mitted documentation to the Union requesting to be allowed
to pay ‘‘disability dues’’ (first, in November 1985, to a cler-
ical in the Union’s ‘‘finance office,’’ and second, in April or
May 1987, to a neutral ‘‘judge’’ in connection with his sub-
mission of papers to become a candidate in the union elec-
tion scheduled for June). In the latter case Perales explains
further that, although he had never before met this election
official (known to Perales only as ‘‘Lee’’), and although Lee
was not an officer or agent of the Union, Perales neverthe-
less trusted him as a ‘‘neutral’’ figure and therefore urged
him to use his good offices to transmit Perales’ ‘‘disability
dues’’ request and associated paperwork to the Union’s sec-
retary-treasurer for action. And, says Perales, it was the
Union’s failure at any time to acknowledge that he had
sought ‘‘disability dues’’ status which caused him finally to
become fed up and to stop paying any dues whatsoever, hop-
ing, he says, to ‘‘force the issue’’ by discontinuing dues pay-
ments entirely.
Agents of the Union uniformly deny being aware of
Perales’ claimed submission of ‘‘disability dues’’ documenta-
tion or of his ever having claimed an entitlement to pay a
reduced dues amount; they say they first became aware of
such claims only in January 1989, after Perales filed his
charge with the Board, and, as summarized above, Perales
raised this claim before eventually paying back-owed dues
and receiving the Union’s clearance to return to work at
Wagner. It was only then, say the Union’s agents, that one
or more of them searched the Union’s files, finding no
record whatsoever of any claimed submission to the ‘‘finance
office’’ in 1985, but discovering indeed (in a ‘‘sealed enve-
lope’’ containing records maintained by the election judge
and subsequently put in storage) copies of the documentation
which Perales said he gave to that judge prior to the June
1987 election.
Perales admits that at no time following his claimed sub-
mission of ‘‘disability dues’’ documentation to a clerical em-
ployee in the Union’s ‘‘finance office’’ in November 1985
did he ever again directly communicate with any official of
the Union regarding the Union’s failure to acknowledge that
claimed submission (nor regarding the Union’s failure to ac-
knowledge receipt of the similar or identical papers he gave
in the spring of 1987 to the election judge). He admits more-
over, that either he or his wife appeared personally at the
Union’s office every month between November 1985 and
November 1987 to make a monthly ‘‘regular’’ dues payment,
and did so without ever once challenging the dues amount
or making any reference to the claimed prior submission of
‘‘disability dues’’ paperwork.
In the next section I will discuss my belief that Perales
was untruthful about key events on December 14. Wholly
apart from those considerations, however, Perales’ admis-
sions about his acquiescence in paying ‘‘regular’’ dues for 2
years makes it difficult to believe that he ever made the
original submission in 1985 to the ‘‘finance office’’ which
he now claims he made. To the extent the General Counsel’s
case or any part if it requires me to find that Perales made
the alleged 1985 submission, I find it at least as likely as not
that Perales never did so, and, therefore, that this element has
not been established by a preponderance of the credible evi-
dence in the record as a whole. Similarly, given the state of
the record about Perales’ later submission of documents to
the election judge, I find it at least as likely as not that those
documents were placed only in the sealed election file, were
never brought to the attention of the Union’s officials by the
election judge and, in fact, that no one in the Union’s direc-
torate was ever aware, before January 1989, of the latter sub-
mission, nor of any prior wish on Perales’ part to be allowed
to pay ‘‘disability dues.’’5
Although the Union had never previously notified Perales
of this fact, the Union had marked Perales down on its
records as ‘‘suspended’’ since the point in November 1987
when Perales had ceased paying dues. (This was Perales’
second such suspension; in the early 1970s Perales had also
been suspended from membership for nonpayment of dues,
but was eventually reinstated upon payment of the back-
owed amount.) I will presume that Perales, as a longstanding
member, and a former executive of the Union, knew that the
Union will eventually suspend a member who stops paying
dues. And, given that Perales was not then working (and did
not resume working for another 13 months), and given the
absence of any showing that the Union generally follows dif-
ferent suspension procedures than the one employed in
Perales’ case, it does not appear significant to the merits that
Perales received no contemporary notice of this internal min-
isterial action.6
III. ALLEGED UNFAIR LABOR PRACTICES; THE EVENTS OF
DECEMBER 14
It was against this background that Business Agent Phil-
lips came to Wagner’s Del Mar jobsite in the early afternoon
99LABORERS LOCAL 89 (WAGNER CONSTRUCTION)
7 Phillips explains he came to the site based on a call from a member that
an unnamed person was working on the Wagner site while ‘‘on suspension’’;
he says that as soon as he saw Perales, he assumed Perales was the subject
of the tip, since he knew that Perales had not been paying dues for more than
a year. While I retain some doubts about Phillips’ accounting for his visit to
the site, this does not affect my judgment of the ultimate merits. As I discuss
in the next section, the Union undeniably had a right to enforce its union-secu-
rity clause, and prima facie grounds for believing that Perales was dues-delin-
quent, and it therefore does not matter that Phillips may have approached the
confrontation knowing that Perales was the target, or even that Phillips’ may
have experienced a certain relish over the prospect of confronting a former
rival.
8 There is no dispute that one of Wagner’s agents is named ‘‘Holmberg.’’
Holmberg was not called to testify. I credit Phillips’ account of his remarks
to Holmberg despite Phillips’ tendency to shape his account to avoid using
what he apparently believed were legally damaging words, such as ‘‘remove.’’
Again, I find it implicit even in Phillips’ accounts that the Union would seek
to have Perales ‘‘removed’’ from the job if he did not clear up his delinquency
and obtain a proper clearance to the job.
of December 14,7 and that the three events of central impor-
tance to the case quickly unrolled, as Phillips first confronted
Perales for working during his current suspension, then tele-
phoned Wagner’s office, eventually speaking with Butler, to
protest Perales’ presence on the job, and Butler then went to
the site and spoke with Perales, whereupon Perales left the
site to file his charge at the Board’s offices, which was dock-
eted and timestamped at 2:43 p.m.
Perales’ version of those events in which he was directly
involved is in many ways harmonious with those given by
Phillips and Butler, respectively; in the end the only signifi-
cant variances are between Perales and Phillips about their
original confrontation. Focusing first on that encounter, those
participants agree that Phillips told Perales that Perales had
been suspended by the Union, that he should not be working
without a clearance, and that Phillips intended to contact
Wagner’s agents to complain that they were using a ‘‘sus-
pended’’ man on the job who hadn’t been properly
‘‘cleared.’’ (Perales claims—and Phillips denies—that Phil-
lips expressly threatened to ‘‘remove’’ Perales; I find from
the totality of Phillips’ admitted actions that he commu-
nicated at least the threat of future removal action if Perales
were to fail to make a satisfactory arrangement regarding his
delinquency and to get properly cleared). They agree that
Perales protested (they disagree about the clarity of his pro-
test) that the Union had made a ‘‘mistake’’ when it had sus-
pended Perales because he was then entitled to a credit for
previous overpayments when he was disabled for 2 years.
They also agree that Perales threatened in some form to take
the dispute to the ‘‘NLRB.’’ Finally, they agree that when
their conversation concluded, Phillips left the site while
Perales remained at work.
The only material disagreement between their versions is
whether (as Perales, joined by the General Counsel, claims
in substance) Phillips’ threat to ‘‘remove’’ Perales was to be
implemented immediately, or (as Phillips claims in sub-
stance) would occur only if Perales failed to go to the
Union’s offices to get his suspension/delinquency ‘‘squared
away’’ and to get properly ‘‘cleared.’’ For reasons more
fully explained in concluding findings, I find Perales’ ac-
count far less believable than Phillips’ on this point.
As to the next set of events (Phillips’ telephone call to
Wagner, his conversation with Butler, and Butler’s conversa-
tion with Perales on the site) the accounts of those three par-
ticipants are even more harmonious. Phillips admittedly tele-
phoned Wagner’s office, speaking first with a company agent
named ‘‘Holmberg’’ (‘‘Himeberg’’ in the transcript).8 He ad-
mittedly told Holmberg that Perales was working on the site
while on ‘‘suspension,’’ and had not been properly
‘‘cleared,’’ but that he ‘‘didn’t want to cause a problem to
either the company or the man[,] that I would like to see him
just get properly cleared.’’ When Holmberg, in turn, referred
Phillips to Butler, those latter participants roughly agree on
the following: Phillips chided Butler, a member of the Union
and a former functionary within it, that he should know bet-
ter than to be working a member who was suspended. Butler
claimed he was unaware of Perales’ suspension, but tried to
explain away the problem by suggesting that Perales had
simply not had time yet, due to a heavy ‘‘overtime’’ sched-
ule, to get into the Union’s offices to straighten out any dues
arrearage and get cleared to the site. As Butler credibly re-
called it, Phillips also, ‘‘told me that . . . if Perales came
back to work without a clearance . . . he would write the
Company a violation.’’ Butler agreed to talk to Perales and
to get the matter taken care of.
Phillips repeatedly insisted at trial that he never intended
or demanded that Wagner discharge Perales immediately, as
distinguished from urging Perales’ and Wagner’s agents to
get Perales’ suspension cleared up before continuing on the
job. And Butler admittedly did not understand Phillips to be
demanding that Wagner immediately discharge Perales; rath-
er, it is implicit in his quoted account above, and was made
explicit in his later remarks to Perales, summarized next, that
Butler understood that Phillips was prepared to initiate the
‘‘removal’’ process by ‘‘writing a violation against the com-
pany’’ only if Perales were to arrive at work the next day
without having first gone to the union hall to get his
delinquency/suspension straightened out and obtain a clear-
ance slip from the Union to return to work. Thus, Perales
and Butler agree that Butler found Perales at the site, told
him about his call from Phillips, informed him that Butler
‘‘could not work [Perales] without a clearance,’’ and further
advised him to go to the Union to obtain such a clearance.
Perales admits, ‘‘if I recall correctly, Mr. Butler told me that
I needed to get things squared away with the Union and I
said that I would.’’ Indeed, according to Butler (who was not
contradicted on the point by Perales) Butler ‘‘let him leave
early,’’ in the sense of ‘‘allow[ing]’’ him to leave the site.
Butler’s version thus strongly implies that Perales was not
dismissed from the site, but rather sought Butler’s permission
to leave.
It was particularly while narrating his version of the events
of December 14 that Perales seemed the most false, leaving
the impression that he was embellishing his account with liti-
gation considerations foremost in mind. This was best exem-
plified during direct examination as Perales sought to portray
himself as maintaining an attitude of sweet reasonableness in
the face of Phillips’ supposedly brusque and adamant refusal
to consider the possibility that the Union had made a ‘‘mis-
take,’’ or to withhold action until Perales himself could try
to clear up the ‘‘mistake’’ with the Union. Thus,
I said . . . Lou, I could go to the [Union] office this
afternoon if you want . . . and we can get this straight-
ened out. He said no, that as a matter of fact he was
going to call the contractor and he was going to tell
them that I wasn’t supposed to be on the job site. I said
100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 In a page from Butler’s ‘‘Daily Report’’ notebook (G.C. Exh. 11) offered
by the General Counsel to ‘‘corroborate’’ Butler’s testimony, Butler made this
entry:
Union official Phillips came to jobsite told to remove A. Perales did so.
When I received the exhibit for a limited purpose, only as ‘‘being what it pur-
ports to be,’’ I noted the absence of any objection by union counsel. I also
questioned its admissible purpose, deeming it plainly hearsay and therefore not
properly receivable for ‘‘corroboration.’’ On brief, the General Counsel now
argues that the page from Butler’s notebook ‘‘is a record kept in the normal
course of business and, thus, an exception to the hearsay rule.’’ But the Gen-
eral Counsel never identified his moving purpose that way when he tendered
the exhibit, nor did he lay a sufficient foundation that Butler maintained his
notebook ‘‘in the course of a regularly conducted business activity’’ within the
meaning of the hearsay exception contained in Rule 803(6), Federal Rules of
Evidence. Technical evidentiary points aside, I observe that Butler’s summary
notes do not, in fact, ‘‘corroborate’’ Butler’s more detailed accounts and ad-
missions from the witness stand, in which he substantially conceded that he
was neither presented with a union demand for Perales’ immediate ‘‘removal’’
nor did he ‘‘remove’’ Perales from the job, but instead merely gave Perales
permission to leave the job early in hopes that he would get ‘‘squared away’’
with the Union and obtain a clearance to return to work. Moreover, Butler ad-
mittedly kept somewhat inaccurate daily records in other respects, including
records relating to when Perales first returned to work in December, what
hours he worked, and on what jobs. In all the circumstances, I give no weight
to Butler’s summary notebook entry.
10 Aleman and Phillips concede that, after Phillips’ jobsite confrontation
with Perales and his call to Wagner’s agents, Phillips returned to the Union’s
office and was then instructed by Aleman to prepare a ‘‘Violation Notice—
Removal Slip’’ of the type described earlier, against Wagner. And Phillips ad-
mittedly did complete such a form on December 15, routing it back to
Aleman’s desk for approval and issuance. There is no direct evidence, how-
ever, that the Union ever served that slip on Wagner, or, if so, when. Indeed,
Butler, the only Wagner agent called by the General Counsel, was not asked
whether he was aware of Wagner’s ever having received such a slip. Accord-
ingly, this evidence shows only that the Union was prepared to seek Perales’
removal, consistent with what I have found that Phillips separately imparted
to Perales and Butler on December 14. It does not show that the Union had
actually presented Wagner with a ‘‘request’’ for Perales’ ‘‘immediate re-
moval’’ at any time before—or even after—Perales left the site.
11 E.g., Teamsters Local 13 (Mobile Pre-Mix Concrete), 268 NLRB 930,
931 (1982), and cases cited therein.
12 Boilermakers Lodge 723 (Triple A Machine Shop), 239 NLRB 504
(1978), citing Conduction Corp., 183 NLRB 419, 426 (1970).
gee, Lou, give me the benefit of the doubt. Again, I
pleaded with him to let me go to the Local office and
we would get this thing squared away. He said no, that
he was here to do [his] job and that I was a Non-Union
man on the site and I’m going to have to remove you.
Phillips, by contrast, states he merely told Perales that he
‘‘didn’t know anything’’ about a claimed ‘‘credit’’ for an
earlier ‘‘disability’’—related dues overpayment (‘‘that was
not my department . . . I don’t work finances, I cover the
agreement’’) and, significantly, Phillips recalls that it was
he—not Perales—who ‘‘suggested that [Perales] go ahead
and work the day out and come in [to the Union] office that
afternoon and if there was a problem, to get it corrected.’’
Perales’ description of his attitude of pleading reasonable-
ness does not fit well with his own admissions during cross-
examination about his state of mind after speaking with Phil-
lips (‘‘I was mad, sir. I was completely out of my mind’’).
Perales’ attempt to depict himself as having been run off the
job by the Union’s supposed demands for his immediate re-
moval cannot be squared with his own admission that he had
been advised by Butler to go to the Union and get the dis-
pute cleared up and that he had agreed to do so. For the
same reason, I doubt that Perales, in fact, believed at the
time that he was being dismissed from employment, rather
than being given an opportunity to settle the dues arrearage
dispute and obtain a clearance to return to the job. And But-
ler’s testimony suggesting that Perales asked permission to
leave early, which I specifically credit, makes it very hard
to find in Butler’s actions any actual ‘‘removal’’ of Perales
from the job.9
I find it very hard in the circumstances to believe Perales
when he insists that he begged Phillips to permit him to go
to the union hall to get the alleged ‘‘mistake’’ squared away.
What is reasonably clear is that, by all accounts, Perales was
given exactly that chance—that Butler did not ‘‘remove’’
Perales from the site, but rather accommodated Perales’ own
request to leave work early to ‘‘get things squared away with
the Union.’’ What is reasonably clear, moreover, is that
Perales never had any intention to go to the Union to ‘‘get
things squared away,’’ but, rather, departed the site only for
the purpose of filing a charge with the Board. What is rea-
sonably clear, finally, is that Perales had for years studiously
avoided any personal confrontation with the Union’s direc-
torate; so far as the credited record shows, he had never, in
the previous 3 years, spoken directly with any agent of the
Union concerning his alleged prior overpayments or his enti-
tlement to a credit therefor, or concerning his refusal after
November 1987 to pay any more dues. Thus it defies prob-
abilities to suppose that it was Perales who sought the oppor-
tunity to clear up the problem with the Union, only to be
rebuffed by Phillips’ demands for Perales’ ‘‘immediate re-
moval’’ from the jobsite, and further rebuffed by Butler’s
own supposed ‘‘removal’’ of Perales from the site.
I therefore find as fact that Phillips did not communicate
either to Perales or to any agent of Wagner any ‘‘request’’
for Perales’ ‘‘immediate removal,’’ as factually alleged in the
complaint. Similarly—and contrary to factual pleadings in
the complaint—I find as fact that Butler never ‘‘removed’’
Perales from the site. Rather, I find that Perales himself left
the site voluntarily, and, with equal willfulness, failed to
make any effort to return to the site or to deal directly with
the Union over this dispute until counseled to do so by the
Board’s agent roughly 2 weeks later. In sum, I find that the
Union had not progressed to the point of demanding Perales’
removal at any time before Perales himself quit the scene.10
Analysis and Conclusions of Law
It is settled under Section 8(b)(2) and (3) of the Act that
a union may enforce a lawful union-security clause in a labor
agreement by insisting that an employer discharge any em-
ployee who is obliged under that clause to pay dues and who
fails to do so. But, hand-in-hand with that right is the union’s
‘‘fiduciary duty,’’ before seeking an employees’ discharge
for dues-delinquency, to forewarn the delinquent employee of
his or her obligations by giving, ‘‘reasonable notice of this
delinquency, including a statement of the precise amount and
months for which dues were owed, as well as an explanation
of the method used in computing such amount.’’11 One ra-
tionale for imposing such a duty is to help ensure that an
employee, acting reasonably, will not fail to satisfy a dues
obligation to a union out of mere ‘‘ignorance’’ or ‘‘inadvert-
ence,’’ but only as a result of ‘‘conscious choice.’’12 It is
equally established, however, that, ‘‘the Board never in-
tended these notice requirements to be so rigidly applied as
to permit a recalcitrant employee to profit from his own
dereliction in complying with his obligations as a union
101LABORERS LOCAL 89 (WAGNER CONSTRUCTION)
13 Big Rivers Electric Corp., 260 NLRB 329 (1982), and cases cited.
14 Seeking to avoid a finding that Perales was ‘‘recalcitrant’’ within the
meaning of the cases referred to above, the General Counsel urges that
‘‘Perales ceased paying dues solely because he legitimately [emphasis added]
felt that he was due a credit for his overpayment of dues.’’ I find no persua-
sive evidence that Perales ceased paying dues out of any reasonable (or ‘‘le-
gitimate’’) belief that he had ‘‘overpaid’’ in the 24 months preceding Novem-
ber 1987 to such an extent that he was still ‘‘current’’ 13 months after he
stopped paying any dues, at the point he was confronted by Phillips on De-
cember 14, 1988. Certainly, there is no evidence that either Perales (or the
General Counsel) ever made any careful accounting of his alleged 1985–1987
‘‘overpayment’’ and sought to compare it with his admitted ‘‘underpayment’’
(that is, no payments at all) from November 1987 through December 14, 1988.
Indeed, even if Perales subjectively believed all along that he had previously
‘‘overpaid’’ for 2 years, it appears that he was never certain what the ‘‘dis-
ability dues’’ amount should have been at any given point, and thus never
made any attempt at any accounting of where he stood with the Union as of
December 1988, when he returned to work for Wagner. Neither am I per-
suaded by the General Counsel’s implicit attempt to analogize Perales’ conduct
herein to that of employee Murphy in Valley Cabinet & Mfg., 253 NLRB 98
(1980), whose nonpayment of dues the administrative law judge found was
‘‘not . . . clearly shown to have been due to anything other than inattention
or negligence,’’ as distinguished from a ‘‘conscious choice’’ on her part to
‘‘avoid her obligations.’’ 253 NLRB at 109. Here, there can be no doubt that
Perales ‘‘consciously chose’’ to stop paying dues in November 1987, and did
not do so merely because of ‘‘inattention’’ or ‘‘negligence’’ in the manage-
ment of his affairs with the Union.
15 188 NLRB 832, 833 (1971), where the Board found,
it is clear . . . that [union agent] Sweetser twice warned [employer agent]
Langowski and once warned [delinquent employee] Huber that he would
pull Huber off the job if he did not pay his dues, but always phrased
such warnings prospectively, each time giving Huber another opportunity
to pay his dues and avoid that eventuality. Sweetser further told
Langowski that he had a letter prepared calling for Huber’s discharge,
but, significantly, did not deliver it. Langowski . . . neither expressly nor
impliedly indicat[ed] [to Huber] that Huber was discharged. In these cir-
cumstances, we perceive nothing to support a conclusion that the Re-
spondent directly or indirectly ever requested or demanded that the Com-
pany discharge Huber or that the Company did in fact discharge him. As-
suming that such a demand by the Respondent was imminent, and that
the Company would have acquiesced, Huber himself left the Company’s
employ before the Respondent had taken any action actually to request
that the Company effect his termination.
In sum, we conclude that the General Counsel has not sustained his burden
of establishing that any violation of Sec. 8(b)(2) or (1)(A) occurred.
16 Moreover, the most that can be presumed from Perales’ history of polit-
ical opposition to the Union’s current officers is that an atmosphere of rivalry
and mutual distrust would have surrounded any interactions between Perales
and the Aleman group in the (more than 4) years since Perales had been voted
out of office. But there is no evidence that Perales interacted in any way with
the Aleman group in that period, other than during his confrontation with Phil-
lips on December 14, 1988. And there is no claim nor specific evidence that
anyone in the current union directorate headed by Aleman had ever, prior to
the disputed events of December 14, 1988, sought to interfere with Perales’
employment as a laborer or had otherwise treated him differently from other
rank-and-file members with respect to matters affecting his working in the
trade. Indeed, when, as discussed above, Perales went to work briefly for
Wagner in April 1987, the Union furnished Perales with a clearance for the
job, notwithstanding that he had located his own job and had already started
working when he appeared at the Union’s office to obtain the clearance.
17 Counsel for the General Counsel went to great lengths to show (for a dif-
ferent purpose—to rebut any claim that Perales should have obtained a new
‘‘clearance’’ before returning to Wagner in December 1988) that Perales had
earlier left Wagner’s employ under a ‘‘layoff,’’ that Perales’ status as an em-
ployee of Wagner was already a matter of record with the pension and benefit
trusts (thereby further undermining any need to obtain a new clearance), that
he at all times enjoyed a reasonable expectancy to be recalled from that ‘‘lay-
off’’ as soon as he became fit, and that the Union did not generally require
‘‘laid off’’ employees to get a new clearance upon their being recalled by the
same employer. It is therefore somewhat awkward for the General Counsel
now to claim that Perales enjoyed ‘‘new’’ employee status with Wagner when
he arrived on the job in December. In any case, although I invited briefing
from the General Counsel on this point, he has not called my attention to any
case which suggests that a construction employee’s union-security obligations
in a multiemployer bargaining unit allow him a new 7-day ‘‘grace period’’
with each new employer he may find work with. Accordingly, if Perales was
already delinquent in his dues-obligations when he found work with Wagner,
it was seemingly no defense to the Union’s right to seek his removal (subject
to its previously acknowledged duty to give appropriate ‘‘notice’’ of the delin-
quency amount, etc.) that Perales might properly be treated as a ‘‘new’’ em-
ployee of Wagner.
member[,]’’ and, therefore, that such ‘‘recalcitrance’’ on the
delinquent employees’ part may ‘‘excuse’’ any ‘‘infirmity’’
in the union’s ‘‘formal notice’’ to the delinquent.13
The Union defends against the complaint in part on the
ground that its actions were ‘‘excused’’ by Perales’ ‘‘recal-
citrance’’ in consciously choosing not to pay dues for the 13
months before Phillips confronted him on December 14.
While there is much in the record to support such a claim
by the Union,14 I do not find it necessary to reach that de-
fense on its merits, for I have found that the Union did not,
in fact, seek Perales’ removal from Wagner’s employ at any
time before Perales’ removed himself from the job. In the
circumstances, the Union’s duty under the cases to provide
various forms of notice to Perales about the details of the
Union’s claim for back-owed dues had not yet been perfected
when Perales left the job, and therefore I need not decide,
in turn, whether Perales’ alleged prior ‘‘recalcitrance’’ would
have ‘‘excused’’ the Union’s failure to give such prior notice
if the Union had sought Perales’ ‘‘immediate removal’’ from
the job.
Rather, in essential agreement with the Union on this
point, I find not only that the facts herein are ‘‘keenly simi-
lar’’ to those in Carpenters Local 515 (G.E. Johnson Con-
struction),15 but that the Board’s holding in that case also
substantially disposes of the General Counsel’s central claims
here. Insofar as the original complaint supposes that the
Union requested Perales’ immediate discharge, and that Wag-
ner did in fact discharge Perales, it cannot be sustained by
the facts as I have found them.
I could not find on this record, as proposed in one of the
General Counsel’s alternative theories, that the Union acted
discriminatorily, or out of hostile motive, or ‘‘arbitrarily,’’ in
approaching Perales on December 14 and demanding that he
clear up his delinquency suspension as a condition of obtain-
ing the Union’s clearance to remain on the job. As found
above, I am not persuaded that the Union was ever on notice
before December 14, 1988, of any claim by Perales that he
had overpaid dues between 1985 and 1987, or that he was
entitled to a credit for such overpayment. I therefore do not
find it remarkable, much less evidence that the Union was
proceeding with discriminatory or hostile intent, that the
Union would seek to confront Perales over his 13-month
dues arrearage when it learned he had gone back to work for
Wagner in mid-December 1988.16
Neither can I reach the merits of the General Counsel’s
final alternative theory of violation—that Perales’ was a
‘‘new’’ employee, entitled to a full 7-day ‘‘grace period,’’
before the Union could lawfully demand his discharge. Apart
from the evidentiary problems with the proposition that
Perales returned to work for Wagner as a ‘‘new’’ em-
ployee,17 this theory likewise supposes, contrary to findings
above, that the Union took some action on December 14 to
effect Perales’ ‘‘immediate removal’’ from the job. Thus, it
is ultimately a moot question whether the Union could law-
fully have demanded Perales’ immediate removal from the
site under circumstances where he had arguably worked
fewer than a full 7 days for Wagner as of December 14.
102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 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 objec-
tions to them shall be deemed waived for all purposes.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended18
ORDER
The complaint is dismissed.