United MetalTronics Local 955

National Labor Relations Board - Board Decisions

Jan 14, 1981

254 N.L.R.B. 601 (N.L.R.B. 1981)

UNITED METALTRONICS LOCAL 955
United Metaltronics and Hospital Supply Employ-
ees, Local 955 (Pbarmaseal Laboratories, Inc.)
and Martha Culp, Janalie Erkel, Maria Cal-
deron, Steven Buttery, Mike Frost, Marisol
Llibre, David Harris, Joseph A. Bejarano, and
Eva Morales. Cases 21-CB-6872, 21-CB-6878,
21-CB-6881, 21-CB-6885, 21-CB-6886, 21-
CB-6893, 21-CB-5897, 21-CB-6946, and 21-
CB-7014
January 14, 1981
DECISION AND ORDER
BY MEMBERS PENELLO, TRUESDALE, AND
ZIMMERMAN
On October 15, 1980, Administrative Law Judge
Gerald D. Wacknov issued the attached Decision
in this proceeding. Thereafter, Respondent Union
filed exceptions 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 the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, United Metal-
tronics and Hospital Supply Employees, Local 955,
Irwindale, California, its officers, agents, and repre-
sentatives, shall take the action set forth in the said
recommended Order, except that the attached
notice is substituted for that of the Administrative
Law Judge.
i We have modified the Administrative Law Judge's notice to conform
to his recommended Order
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause
Pharmaseal Laboratories, Inc., to discharge or
to otherwise discriminate against Joseph Bejar-
ano, Steven Buttery, Maria Calderon, Martha
Culp, Marisal Llibre, Michael Frost, Eva Mo-
254 NLRB No. 73
rales, Refugio Ortiz, Hanall Erkel, Laura
Powell, and Richard Hammill, or any other
employee, for failure to render intiation fees or
periodic dues, without providing adequate no-
tification to such employees of their union ob-
ligations.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
their rights guaranteed in Section 7 of the Act.
WE WILL advise Pharmaseal Laboratories,
Inc., and each of the above-named employees,
in writing, that we withdraw and rescind our
request for the discharges of the said employ-
ees, and that we have no objection to their re-
instatement, without loss of seniority and other
rights and privileges previously enjoyed by
them.
WE WILL make the above-named employees
whole, with interest, for any loss of pay suf-
fered because of the discrimination against
them.
UNITED METALTRONICS AND HOSPI-
TAI. SUPPIlY EMPLOYEES, LOCAI 955
DECISION
STATEMENT OF THE CASE
GERAI.D A. WACKNOV, Administrative Law Judge:
Pursuant to notice, a hearing with respect to this matter
was held before me in Los Angeles, California, on April
7, 8, and 9, 1980. The charges were filed between the
dates of April 23 and August 20, 1979. Thereafter, on
November 8, the Regional Director for Region 21 of the
National Labor Relations Board (herein called the
Board), issued the instant complaint alleging that United
Metaltronics and Hospital Supply Employees, Local 955
(herein called Respondent or the Union) attempted to
cause and did cause Pharmaseal Laboratories, Inc.
(herein called the Employer), to discharge various em-
ployees, the Charging Parties herein, in violation of Sec-
tion 8(b)(l)(A) and (2) of the National Labor Relations
Act, as amended (herein called the Act). Respondent has
denied the commission of any unfair labor practices.
The parties were afforded a full opportunity to he
heard, to call, examine and cross-examine witnesses, and
to introduce relevent evidence. Since the close of the
hearing, briefs have been received from the General
Counsel, and counsel for Respondent.
Upon the entire record and based upon my observa-
tion of the witnesses and consideration of the briefs sub-
mitted, I make the following:
FINDINGS OF FACT
I. JURISDICTION
The Employer is and has been at all times material
herein, a corporation engaged in the manufacture of hos-
pital supplies with a facility located in Irwindale, Califor-
601
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nia. In the course and conduct of its business operations,
the Employer annually purchases and receives goods
valued in excess of $50,000 directly from suppliers locat-
ed outside the State of California. It is admitted, and I
find, that the Employer is, and has been at all times ma-
terial herein, an employer engaged in commerce and in a
business affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that Respondent is a labor
organization within the meaning of Section 2(5) of the
Act.
Ill. THE UNFAIR LABOR PRACTICES
A. Issue
The principal issue raised by the pleadings is whether
Respondent violated Section 8(b)(l)(A) and (2) of the
Act by failing to provide certain employees with reason-
able notice and an adequate opportunity to pay union
dues and initiation fees prior to causing their termination
by the Employer.
B. Facts
1. Background
The Respondent was certified by the Board as the col-
lective-bargaining representative of the Employer's em-
ployees in 1965, and thereafter Respondent and Employ-
er have been parties to successive collective-bargaining
agreements.
Between the dates of November 23, 1977, and August
21, 1978, approximately 300 or some 900 unit employees
had refused to pay union dues and/or initiation fees as a
result litigation pending before the Board concerning Re-
spondent's failure to execute a collective-bargaining
agreement containing a union-security clause. During
this period of time, an employee faction was attempting
to exhort the employees to refrain from belonging to the
Union and was also seeking to process a deauthorization
petition.
By letter dated August 21, 1979, the Acting Director
of the Office of Appeals, NLRB, in essence sanctioned
the aforementioned collective-bargaining agreement,
which Respondent had executed on April 27, 1978, and
stated in denying the appeal of the dissident group of
employees, that:
This is not to say that the Union would be privi-
leged to request the discharge of employees who up
until the present time have failed to pay dues pursu-
ant to the union security clause of the present con-
tract. Rather, under the particular circumstances of
this case, including the employees' vote not to ratify
the contract, the Union's refusal to execute the con-
tract until April 27, 1978, [and] the Regional Direc-
tor's conclusion that such refusal was violative of
Section 8(b)(3), it does not appear that the employ-
ees clearly understood any obligation to pay union
dues. Accordingly, the Union would not be deemed
privileged in seeking the discharge of those employ-
ees up until the present time.
Now, however, in view of our determination as set
forth herein, and upon appropriate notification to
employees of their obligation to pay union dues,
absent Board certification of rescission of the
Unions' authority to enter into a union security
agreement, further refusals by employees to pay
current dues would privilege the Union's request
for their discharge.
Thereupon, Respondent commenced to advise the em-
ployees of their prospective union obligations. On about
August 31, 1978, Respondent posted the following notice
on its bulletin board which it maintained at the Employ-
er's premises:
SPECIAL NOTICE
THE APPEALS TAKEN BY THE ATTORNEY FOR THE
INSURGENT GROUP HAVE BEEN DISMISSED BY THE
NATIONAL LABOR RELATIONS BOARD ON AUGUST 21,
1978. THE LABOR BOARD HAS DIRECTED THAT UPON
OUR NOTIFYING EMPLOYEES OF THEIR OBI.IGATION
TO PAY UNION DUES, "FURTHER REFUSAL BY THE
EMPLOYEES TO PAY CURRENT DUES WOULD PRIVI-
L.EGE THE UNION'S REQUEST FOR THEIR DIS-
CHARGE".
YOUR UNION REQUIRES DUES TO BE PAID FOR ANY
MONTH WHERE YOU HAVE WORKED IN THAT
MONTH.
THE UNION SECURITY CLAUSE CONTAINED IN THE
COLI.ECTIVE BARGAINING AGREEMENT IS NOW IN
FUI.I FORCE AND EFFECT, DUES ARE OWING FOR
THE MONTH OF AUGUST AND FO.LLOWING MONTHS,
ANY FAILURE TO PAY WILL. RESUI.T IN APPROPRIATE
ACTION BEING TAKEN. DO NOT LISTEN TO ANYONE
WHO TELLS YOU NOT TO PAY YOUR DUES, SINCE
FAILURE TO PAY MAY EVENTUAI.LY COST YOU YOUR
JOB.
On or about September 1, 1978, Respondent posted a
similar notice on the bulletin board, which also contained
the additional admonition that employees who were 3
months in arrears in their dues were required to pay a
new initiation fee. Further, on September 28, 1978, Re-
spondent sent mailers to newly hired employees and to
those current members who were in arrears on their
dues, advising them of the initiation fee amount of $75
and dues obligations of $8 per month.
There ensued an additional unfair labor practice
charge by the dissident group against Respondent, alleg-
ing that Respondent was acting improperly in certain re-
spects in seeking to cause the employees to meet their
aforementioned union obligations. This charge was dis-
missed on November 13, 1978, and the appeal therefrom
was denied by the Acting Director of the Office of Ap-
peals, NLRB, on March 15, 1979.
On March 6, 8, and 13, 1979, Respondent wrote to the
Employer requesting the discharge of a total of some 125
employees who had failed to comply with the provisions
602
UNITED METALTRONICS LOCAL 955
of the union-security clause. Although the Employer
posted Respondent's letters, which did not contain any
information regarding the precise monetary obligation of
each named employee, no discharges were immediately
effectuated. Thereafter, Respondent and the Employer
reached an agreement whereby Respondent agreed to
withdraw the requests for immediate discharge and the
Employer agreed to maintain the letters on its bulletin
board, and to take steps in notifying each of the named
employees of their union obligations. As a result, em-
ployer representatives conducted meetings with groups
of employees, and generally advised them of their dues
obligations. However, the Employer had not been ad-
vised by Respondent of the precise amount owed by
each employee, and therefore could not convey this in-
formation to the employees. Moreover, it appears that at
these meetings, which were apparently not attended by
all the employees listed, the employees were told that
Respondent would be sending them notification by mail
of their obligations. Further, some employees who were
not named in the letters were also in attendance at some
of the meetings.
In March 1979, the dissident group distributed the fol-
lowing leaflet:
FIRST THE BAD NEWS-ON MARCH 15, 1979 THE NA-
TIONAL LABOR RELATIONS BOARD DENIED OUR
APPEAL. THEY HAVE STATED THAT WE U'II.I. HAVE
TO PAY UNION DUES OR LOCAI 955 CAN AND WILL
HAVE US FIRED. IT IS OUR UNDERSTANDING FROM
THE LABOR BOARD THAT ALL EMPLOYEES AVE A
30 DAY GRACE PERIOD STARTING MARCH 15, 1979.
IF THIS IS WRONG, WE ARE SURE THAT LOCAL 955
WILL INFORM EVERYBODY. '
On March 29, 1979, Respondent distributed the fol-
lowing handbill to the employees:
HERE WE GO AGAIN!
We are all faced with an election to he scheduled
shortly. Some of our co-workers are trying to in-
validate the Union Security clause and have peti-
tioned the N.L.R.B. for the election. It will be sche-
culed now that the N.L.R.B. has decided the dues
question in our favor. 2
WE CAN REPORT:
(1) THE FREE LUNCH IS OVER! There is a dues re-
sponsibility from September to date. Anyone
with an arrearage of 90 days must also pay a new
initiation fee. Notices are being forwarded to
anyone in this position.
I In September 1978, the dissident group had distributed leaflets to the
unit employees. One such leaflet, entitled "HA HA, NO BACK DUES" in-
cluded the statement, "NO DUtS IHA'I 10 BI PAll) LNIII 01 5 RI NOll-
I:IEt) IN %'RITIN( BY I OCi 95'." Another leaflet advised he emplosees
that although they owed dues in the amount of $8 per month, they did
not need to join the union and could hereby avoid paying an initiation
fee.
2 Apparently, the election was held and the employees voted that the
union-security clause should not be deleted from the contract
(2) I-THE COMPANY I.OVES US TO FIGHT AMONG
OURSELVES! Since we are still scrapping Pharma-
seal has started again. One of our members has
been denied the right to a Steward during investi-
gation. The Company has polled us individually
instead of working through the Union and has
improperly dealt directly with employees. We are
taking steps to stop this now.
We must be strong and Together to head off these
problems. This election only weakens us all. Be pre-
pared to fight. We should work within the Union,
Not against ourselves.
Also on March 29, 1979, Respondent sent a letter by
regular mail to approximately 300 employees informing
each of the precise amount of his or her obligation and
the manner in which the obligation could be satisfied.
The letter concluded with the following admonition:
Failure to do one of the above [either payment by
payroll deduction or in cash at the union office] and
if your dues and initiation fees are not brought up
to date within 14 days of the date of this letter, you
will be discharged in accordance with the Contract.
Thereupon, in April 1979, the dissident group distrib-
uted the following leaflet:
URGENT
LOCAL 955 HAS DEMANDED A.L BACK DUES AND
NEW INITIATION FEES BE PAID IN FULL BY APRIL
12-THIS IHURSDAY. IF NOT PAID BY THEN YOU
WILI. BE FIRED. THE LABOR BOARD HAS RUI.ED
THAT THE UNION MAY DO THIS.
DO NOT ORGET TO PAY BECAUSE ROY BROWN IS IN
TOWN TO COLLECT OR HAVE YOU FIRED.
GO TO THE UNION OFFICE NOW!
Respondent submitted a list to the Employer of some
58 employees who were not current as of the close of
business April 12, 1979, and demanded their immediate
termination for failure to comply with the requirements
of the union- security clause. The Employer did dis-
charge these employees on about April 19, 1979, and of
this group only 11 are the subject matter of the instant
complaint. However, upon being advised of the intention
to issue the instant complaint, it appears that the Em-
ployer offered these employees immediate reinstatement
to their former jobs without loss of seniority, and most
of them have returned to work for the Employer and are
apparently members in good standing of Respondent.
2. The April 19, 1979, dischargees
Joseph Bejarano received a work-related injury on Jan-
uary 9, 1979, and apparently was on a medical leave of
absence until the date of his termination April 19, 1979.
Prior to his discharge, Bejarano was not sent the March
29, 1979, letter, nor did he receive any oral communica-
tion from Respondent regarding his union obligations.
603
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent concedes in its brief that the inclusion of Be-
jarano on the discharge list was improper.
Steven Butter was on medical leave of absence from
January 22 to March 5, 1979. He testified that he never
received the March 29 letter or any verbal or written
notice from Respondent that he would be discharged for
failure to pay dues. Upon his return to work on March 5,
1979, Buttery asked Union Steward Dave Neer to find
out how much he owed Respondent and took a blank
check out of his pocket for this purpose. Neer said there
were letters in the mail to employees advising them of
their obligation, and Neer handed him an authorization
card and a membership card which Buttery filled out,
signed, and deposited in a box that was maintained by
Respondent on the Employer's premises. Buttery admits
seeing his name on the discharge list posted on the bulle-
tin board upon his return to work. Thereupon, he went
by the union office, located immediately outside the
plant gate, on two occasions, but the office was closed.
Upon being discharged, Buttery phoned the union
office and spoke with Joseph Shoats, Respondent's Inter-
national representative, explaining that the Employer had
deducted money out of his wages on his last paycheck,
and requesting that he be allowed to pay his dues obliga-
tions. Shoats said it was too late to pay anything.3
Maria Calderon testified that she did not receive the
March 29 letter from the Union. She was aware, howev-
er, that other employees had received such letters and
she had seen her name on the discharge list on the bulle-
tin board. She was aware that the deadline for paying
dues was April 12, 1979, and went to the union office on
or about April 9, 1979. She spoke to Virginia (Ginger)
Dean, financial secretary and treasurer of Respondent,
and said she had come by to pay her union dues, al-
though she had never received a letter. Dean said that
Calderon had not been sent a letter because the Union
did not have her address. Thereupon, Calderon filled
out, signed, and submitted union authorization and mem-
bership cards to Dean. Dean told her that she was lucky
and did not have to pay anything at the time, that the
money would be deducted from her check, and that she
did not have to worry about being fired.
On the day following her discharge, Calderon went to
see International Representative Shoats, and explained
her prior conversation with Dean. Shoats asked her to
come back later that day but she did not do so. Rather, a
job interview prevented her from returning at the sug-
gested time. Moreover, Calderon picketed the union
office that day with other employees, apparently in pro-
test of the Union's actions in effectuating the discharge
of employees.
Dean testified that on or about April 9, 1979, she ad-
vised Calderon that she would have to pay her back
dues in cash, but could sign an authorization to have her
initiation fees deducted from her paycheck. Calderon re-
plied, according to Dean, that she did not have the
money for the back dues, and Dean suggested that she
attempt to obtain her check early from the Employer.
3 The parties stipulated that $15 had been deducted from Buttery's last
paycheck, and was tendered by the Employer to the Union in May 1979,
subsequent to his discharge.
Dean further denied telling Calderon that she was not
sent a letter because the Union did not have her address.
Martha Culp testified that she did not recieve the
March 29 letter, nor was she ever told by any union offi-
cial that she would be fired if she did not pay her dues.
Moreover, her name did not appear on the discharge list
posted on the bulletin board. On April 19, 1979, she
went to the union office and pleaded with International
Representative Shoats and Irene Smith, president of Re-
spondent, to please take the money and rescind the dis-
charge. They refused and referred her to the Employer.
Marisol Llibre worked weekends. She testified that she
did not receive the March 29 letter from Respondent
which, the record shows, was sent to the wrong address.
However, she did notice her name on the bulletin board
discharge list shortly before April 19, 1979. Following
her discharge she went to the union office to pay her
dues, but they were not accepted.
Michael Frost testified that he did not receive the
March 29 letter. Nor did any steward or officer of the
Union advise him that he would be discharged if he did
not fulfill his obligations. While he was generally aware
of the contents of the March 29 letter as a result of infor-
mation received from a coworker, Frost took no action
because he felt he would be personally approached by
the Union. While he did see his name on the company
bulletin board discharge list, and understood that unless
he paid his dues he would lose his job, he was neverthe-
less awaiting some personal communication from the
Union.
Eva Morales testified that she did not receive the
March 29 letter or any verbal request to pay dues. Al-
though she did notice that her name appeared on the bul-
letin board discharge list about a week before her dis-
charge, she did not go to the union office upon seeing
her name because she believed that she would have to
pay dues from the day she was hired, June 3, 1978, and
did not have sufficient funds.
Refugio Ortiz testified that he did not recieve the
March 29 letter. On or about March 29, 1979, he was not
living at his former address, and he had not given the
employer his change of address which would customar-
ily have been forwarded to the Union. He was not called
into any meeting by the Employer, nor did his name
appear on the bulletin board discharge list. However,
Ortiz testified that he knew generally that he was in ar-
rears on his dues and that he was obligated to become
current with the Union but did not know the precise
amount of his obligations, stating that he "wasn't about
to pay any money if I didn't know how much I owed."
Janalee Erkel testified that on April 9, 1979, about 8
p.m., at the plant, she was handed the March 29 letter by
Shop Steward Natalie Wright.4 She filled out the mem-
bership and dues deduction cards which were included
with the letter, and put them in the union box at the
plant on April 10, 1979, after talking to Union Steward
4 The envelope containing the letter was postmarked March 30, 1979,
and had been returned to Respondent from the postal department. The
letter stated that she owed $123, consisting of dues from October 1978
through March 1979. and an initiation fee of $75.
604
UNITED METALTRONICS LOCAL 955
Neer who advised her to do so, stating that everything
would be taken care of.
Erkel phoned Respondent's office on the afternoon of
April 12, 1979, and spoke to Virginia Dean, explaining
that she had received the letter at work. Dean asked
when it was postmarked and Erkel said March 30. Dean
replied that she would have to pay the union dues and a
$75 initiation fee before 5 p.m. that day or she would be
terminated. Erkel did not go to the union hall because
she did not have the money to pay.5 She would have re-
ceived her paycheck that night after 10 p.m.
Erkel further testified that in March 1979 she attended
a meeting conducted by the Employer's personnel man-
ager, Ron Bennett, who told the assembled employees
that if their names were on the discharge list they would
receive letters from the Union, and that if the employees
had not received a letter or if their name was not posted,
they did not need to worry about anything. Erkel's name
was not on the list.
Dean testified that Erkel told her on April 12, 1979,
that Erkel did not feel she should have to join the Union,
and that she did not believe in unions. Dean replied that
she would have to come in and pay her dues and initi-
ation fees by 5 p.m. that day or be terminated, and that
she could pay her initiation fee by checkoff but would
have to pay the back dues in cash. Erkel, according to
Dean, responded that she really did not have the money
to pay the dues, but said she would try to come up with
the money.
Laura Powell had been employed by the Employer for
3 years. She had been a member of the Union in good
standing throughout her employment, having paid an ini-
tiation fee and periodic dues as required. However, for a
reason unknown to Powell, the Employer ceased deduct-
ing monthly union dues from her paycheck in or about
September, 1978. Thereupon, Powell filled out and sub-
mitted another dues deduction card in order to maintain
her membership status. However, this effort was appar-
ently to no avail. Powell spoke to Dean about the
matter, and advised her that she wanted the Employer to
continue deducting her dues. Dean said she would take
care of it, but apparently the matter was never rectified
and Powell paid no dues to the Union at least since Sep-
tember 1978.
Although Powell's name did not appear in the March
1979 discharge letters, she nevertheless filled out another
dues-checkoff authorization card on March 13, 1979,
which was given to her by a union steward whom
Powell could not identify by name. According to
Powell, the card had lines drawn through the amounts
relating to initiation fees, and the steward told Powell
she did not have to pay any initiation fee, but merely the
$8 per month dues. Thereupon, Powell signed the card
and returned it to the steward.
On the next day, March 14, 1979, Respondent sent
Pharmaseal a letter indicating that Laura Powell had
signed an authorization card for the deduction of union
5 On April 16, prior to her discharge. Erkel phoned the union office
and spoke to Shoats, advising him that she then wanted to pay her obli-
gations and explaining that she did not have the moneN to pay on the
April 12 deadline date Shoats said there was nothing he could do about
it,.
dues, and thereafter dues were deducted by the Employ-
er for the months of March and April 1979. These dues
were forwarded to Respondent in May 1979, and were
returned to the Employer by Respondent, as Powell had
been terminated pursuant to the Union's request on April
19, 1979.
Powell received the March 29 letter which notified
her that she owed $131, which amount included the $75
initiation fee and 7 month's back dues, apparently from
September 1978 to March 1979. After receiving this
letter, Powell had a brief conversation with Virginia
Dean who was standing outside the plant passing out
handbills. Dean asked when she was going to pay her
back dues and initiation fees. Powell replied that she did
not believe she owed this, and informed Dean about the
dues deduction card she had previously submitted which
had been given to her by a person she believed to be a
union steward, with the initiation fee requirement de-
leted, explaining that her dues were already being de-
ducted. Dean told Powell that Respondent desired an
initiation fee and back dues as well. Powell declined to
comply as she felt that the Union was wrong, under the
circumstances, and that the Union had waived her initi-
ation fee and back dues. Moreover. she had not been
given credit for the dues which had been deducted from
her paycheck in March 1979.
It was stipulated that Respondent's constitution pro-
vides that any member whose dues have been withheld
by his Employer for payment to Respondent pursuant to
a voluntary authorization provided for in the collective-
bargaining agreement shall be a member in good stand-
ing.
Richard Hammill was hired on January 17, 1979. Upon
being hired he filled out a membership and dues authori-
zation card and deposited them in the union box at the
plant. Dues were not thereafter deducted from his pay-
check, however. He received the March 29 letter stating
that he owed 131 from September 1978. He showed this
to the shop steward, Ed Harris, who said he would take
care of the matter and acknowledged that the letter obvi-
ously was in error as Hammill had only been employed
for 3 months. The next day Harris told Hammill not to
worry, advising him that everything had been taken care
of.6
On April 11, 1979, Hammill again filled out the mem-
bership and deduction authorization cards that had been
enclosed with the March 29 letter, indicating that he
wanted his initiation fees and his dues deducted. He de-
posited them in the union box at the plant, believing that
this would fulfill his obligations to the Union.
Upon being advised by his supervisor that he was to
be discharged on the afternoon of April 19, 1979, he im-
mediately went to see International Representative
Shoats at the union office. Shoals acknowledged that
Hammill had not been employed long enough to be 90
days in arrears on his dues, but said the matter was out
or his hands. Thus, he refused to permit Hammill to pay
February and March dues which Hammill tendered to
him.
Ki H;lrris, ho h not been a shop steward since April or M 1979
catcgorlcll (dc1nid e tri;lt alls uch c,,rsa tln . .cr ll.k lace
605
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Analysis and Conclusions
In Chauffeurs, Salesdrivers & Helpers Union, Local 572,
IBT (Ralphs Grocery Company), 247 NLRB No. 108
(1980), the Board summarized the applicable law govern-
ing the scope of a union's fiduciary duty to inform em-
ployees of their obligations under a valid union-security
clause, as follows:
We find merit in the Generel Counsel's conten-
tion that a "reasonably couched effort" to notify
Roy of her membership obligations is not surficient
under Section 8(b)(l)(A) and (2) to satisfy the
Union's fiduciary duty to her. In N.L.R.B. v. Hotel,
Motel & Club Employees' Union, Local 568, AFL-
CIO (Philadelphia Sheraton Corp.),6 the Third Cir-
cuit held that the "minimum" requirement of this
duty is to "inform the employee of his obligations in
order that the employee may take whatever action
is necessary to protect his job tenure." In Teamsters
Local Union No. 122 (August A. Busch & Co. of
Mass.. Inc.), 7 the Board specifically denied the
union's duty as including "a statement of the precise
amount and months for which dues were owed, as
well as an explanation of the methods used in com-
puting the amount" plus "an adequate opportunity
to make payment." In Chauffeurs, Teamsters and
Helpers Local Union I50 et al (Delta lines), we
stressed that inquiries made by an individual as to
his or her obligations do not relieve a union of its
afirmative duty under the Act specifically to inform
an individual of his obligations and afford him a
reasonable opportunity to satisfy them before seek-
ing his discharge under a union-security clause.
6 320 F.2d 254. 258 (1963), enfg. 136 NLRB 888 (1962).
7 203 NLRB 1041, 1042 (1973). enfd. 502 F.2d 1160 (Ist Cir.
1974).
6 242 NLRB 454, 455 (1979).
It is clear that any notification to the employees prior
to their receipt of the March 29 letter did not fulfill Re-
spondent's aforementioned fiduciary obligation. Thus,
neither the handbills distributed by Respondent, nor Re-
spondent's letters requesting the discharge of some 125
named employees which letters were posted by the Em-
ployer, nor the meetings conducted by the Employer for
the purpose of generally advising the employees of their
obligation,7 included "a statement of the precise amount
and months for which dues were owed, as well as an ex-
planation of the methods used in computing the
amount." 8
It is, in effect, admitted that the March 29 letter to the
employees contained the requisite specific information.9
However, employee Joseph Bejarano was never sent
7 From the evidence of such meetings adduced at the hearing it ap-
pears that the employees were generally advised of their obligations to
the Union and were further told that they would receive written notifica-
tion of such obligations.
6 See Teamsters Local Union No /22 (August .4. Busch & Co. of Mass..
Inc.). supra.
9 Although, as discussed below, the letters to employees Laura Powell
and Richard Hammill contained inaccurate amounts and were therefore
deficient.
such a letter, and employees Steven Buttery, Maria Cal-
deron, Martha Culp, Marisol Llibre, Michael Frost, Eva
Morales, and Refugio Ortiz credibly testified that they
neither received such a letter nor, I find, were they
given the necessary precise information regarding their
dues obligations by any representative of Respondent.°O
It is clear that regardless of Respondent's good faith at-
tempt to advise the employees of their obligations by
mail, such a mailing does not constitute the requisite
notice where the employees credibly testify that they did
not receive the letter. District 9 International Association
of Machinists and Aerospace Workers, AFL-CIO (Marvel-
Schebzer, Division of Borg-Warner Corp.), 237 NLRB 1278
(1978). Under the instant circumstances, the requirement
that the employees be given precise information concern-
ing their obligation is of particular importance as a result
of the confusing history of the applicability of the union-
security clause and the lengthy hiatus which interrupted
employees' dues obligations. Nor has it been demonstrat-
ed, I conclude, that any of the aforementioned employ-
ees exhibited bad faith by attempting to willfully and de-
liberately evade their obligations of which they were
otherwise "specifically" aware, thus excusing actual affir-
mative notification by the Union. See Chauffeurs. Sales-
drivers & Helpers Union, Local 512, et al. (Ralph's Grocery
Company), supra, Chauffeurs, Teamsters and Helpers Local
Union 150, et al. (Delta Lines), supra. Cf Produce, Refrig-
erated & Processed Foods & Industrial Workers, Local No.
630, et al., 209 NLRB 117 (1974). I thus find that by
causing the Employer to discharge the aforementioned
employees, Respondent violated Section 8(b)(l)(A) and
(2) of the Act, as alleged. "
Janalee Erkel was handed the March 29 letter by a
union steward at about 8 p.m. on April 9, and was ad-
vised that she owed $123, consisting of dues from Octo-
ber 1978 through March 1979, and an initiation fee. On
April 10, she signed a dues-checkoff authorization card
and deposited it in the union box. On April 12, the dead-
line date, she advised the Union, according to Dean's tes-
timony, that she did not have the funds to meet her obli-
gation.
The March 29 letter, which could be expected to have
been received by the employees a day or so thereafter,
was designed to give the employees apprximately 12
days to meet their dues and initiation fee obligations.
Erkel had only 3 days to do so, and during these 3 days
there was no intervening pay period. In fulfilling its fidu-
ciary responsibility, Respondent is charged with provid-
ing unit employees with an adequate opportunity to meet
their union obligations following appropriate notice.
Under the circumstances, a 3-day notice is not adequate,
and it was eminently unreasonable, and therefore I find a
breach of Respondent's fiduciary duty to refuse to permit
'o Moreover I find that, as occurred in the case of lanalee Erkel,
infra, Calderon was not given sufficient time to tender to the Union any
back dues she may have owed, having advised Dean on April 9, 1979.
that she did not then have the money for back dues.
" Whether Respondent may have deemed the mailing of such letters
to have constituted sufficient notification to the employees, under the cir-
cumstances herein. as a result of a conversation with a Board agent, does
not excuse Respondent's conduct. See Capitol Temptrol Corporation, 243
NLRB 575, fit. 59 (1979).
606
UNITED METALTRONICS LOCAL 955
Erkel to discharge her union obligations on April 16,
1979, prior to her termination and only a week after re-
ceiving the requisite notice of such obligations. See
Teamsters Local Union No. 122 (August A. Busch & Co. of
Mass., Inc.), supra, wherein a I-week notice was deemed
by the Board to be insufficient. I therefore find that Re-
spondent violated Section 8(b)(1)(A) and (2) of the Act
by causing the discharge of Erkel on April 19, 1979.
Richard Hammill had only been employed since Janu-
ary 1979, and his obligations to the Union would have
commenced sometime in February 1979. The March 29
letter was clearly in error in demanding 7 month's dues,
and Hammill had demonstrated his good faith in desiring
to meet his union obligations by submitting prior to both
his discharge and the deadline date of April 12, 1979, a
dues and initiation fee deduction card. Moreover, I credit
Hammill's testimony and find that Shop Steward Harris
told him not to worry about the obviously incorrect data
appearing in the March 29 letter and that everything had
been taken care of. As Hammill never received a correct
accounting of his obligations which he attempted to sat-
isfy in a reasonable manner, I find that Respondent
breached its fiduciary duty to Hammill in causing his dis-
charge.
Similarly, Laura Powell repeatedly attempted to fulfill
her union obligations, but to no avail. Obviously, had
Dean taken care of the matter in November 1978, as she
said she would,1 2 Powell would not have been in arrears
in her dues, and therefore would have owed no initiation
fee in March 1979. Moreover, I credit Powell's testimo-
ny that a union steward advised her on March 13, 1979,
that she did not have to pay a new initiation fee. I find
that Powell made every reasonable effort to attempt to
satisfy her union obligations and, if she was delinquent in
her dues payments or if she indeed owed a new initiation
fee, Respondent's fiduciary obligation required it to spe-
cifically discuss the matter with her in an attempt to con-
vince her of the correctness of its position and explain to
her why the representation of the union steward, who
told her that she owed no new initiation fee, may have
been erroneous. On the basis of the foregoing, I conclude
that by causing Powell's discharge Respondent also vio-
lated Section 8(b)(1)(A) and (2) of the Act, as alleged.
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8(b)(1)(A) and (2)
of the Act by causing the discharge of employees Joseph
Bejrano, Steven Buttery, Maria Calderon, Martha Culp,
Marisal Llibre, Michael Frost, Eva Morales, Refugio
Ortiz, Janalee Erkel, Laura Powell, and Richard Ham-
mill for nonpayment of dues and initiation fees in a
manner which did not satisfy its fiduciary obligation to
said employees.
4. The aforesaid unfair labor practices are unfair labor
pratices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
12 I credit Powell's testimony in this regard.
THE REMEDY
Having found that Respondent has violated the Act as
alleged, I shall recommend that it cease and desist there-
from, and from engaging in any like or related conduct,
and that it post an appropriate notice, signing additional
notices for posting by the Employer should the Employ-
er so desire.
Respondent shall further be ordered to advise the Em-
ployer and each of the employees, in writing, that it
withdraws and rescinds its request for the discharges of
the named employees, and that it has no objection to
their reinstatement, without loss of seniority or other
rights and privileges previously enjoyed.
In addition, Respondent shall be ordered to make
whole the said employees, with interest, for losses suf-
fered by them as a result of Respondent a conduct found
to be unlawful herein. Said backpay is to be computed in
the manner prescribed in F. W Woolworth Company, 90
NLRB 289 (1950), and Florida Steel Corporation, 231
NLRB651 (1977). See, generally, Isis Plumbing & Heat-
ing Co., 138 NLRB 716 (1962).
The General Counsel suggests in her brief that certain
employees, namely Culp, Erkel, Ortiz, and Powell
should provisionally be excused from an obligation to
pay a reinitiation fee until such time as it is determined
that the employees have such an obligation. In this
regard, the General Counsel requests that Respondent be
ordered to return the reinitiation fee these employees
may have paid upon their reinstatement subsequent to
April 19, 1979.13 I deem this matter to be properly rel-
egated to the compliance stage of the proceeding.
Upon the foregoing findings of fact, conclusions of
law, and the entire record herein, and pursuant to Sec-
tion 10(c) of the Act, I hereby issue the following rec-
ommended:
ORDER '14
The Respondent, United Metaltronics and Hospital
Supply Employees, Local 955, Irwindale, California, its
officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Causing or attempting to cause Pharmaseal Labora-
tories, Inc., to discharge or otherwise discriminate
against employees Joseph Bejarano, Steven Buttery,
Maria Calderon, Martha Culp, Marisal Llibre, Michael
Frost, Eva Morales, Refugio Ortiz, Janalee Erkel, Laura
Powell, and Richard Hammill, or any other employee,
for failure to timely tender initiation fees or periodic
dues, without adequately advising them of their obliga-
tions.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
xa See Chauu/fur/ . Slhsdriver & Itelpe'rs Uion Local 572. et at
Raulphr Grocery (f'ompany. 247 NL.RB No 108, fn 10 (1980)
4 In the etent nIl exceplions are filed as prosided by Sec 1()246 off
the Rules and Regulations of the National labor Relations Board, the
findings, conclusion', and recommended Order herein shall, as proided
in Sec 102 4 of the Rules and Regulations, be adtopted by the Board and
become Its findings, conclhusils, and Order and all objicfIons thereto
shall he deemed s iatied for all purposes
607
I)F(CISIONS OF NATIONAL LABOR RLATIONS BOARD
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Advise Pharmaseal Laboratories, Inc., and each of
the above-named employees, in writing, that Respondent
withdraws and rescinds its request for the discharges of
the said employees and that it has no objection to their
reinstatement, without loss of seniority and other rights
and privileged previously enjoyed.
(b) Make whole the named employees, with interest
for any loss of pay they may have suffered in the manner
set forth in the section above entitled "The Remedy."
(c) Post at its business office and on the union bulletin
board at the plant, copies of the attached notice marked
"Appendix." s Copies of said notice, on forms provided
Is In the event that this order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted bh
Order of the National Labor Relations Board" shall read "Posted 'arsu
by the Regional Director for Region 21, after being duly
signed by the Respondent's representative, shall be
posted by the Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to members are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(d) Forward a sufficient number of signed copies of
the notice to the Regional Director for Region 21, for
posting by the Employer, in places where notices to em-
ployees are customarily posted, if the Employer is will-
ing to do so.
(e) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relatiotns Board."
608