Associated Transport, Inc.

ASSOCIATED TRANSPORT, INC. 335 APPENDIX-Continued 4th quarter 1964 Gross backpay due___________________________________ _ $ 1,499.02 Less interim earnings ($905.10; $295.81 ) -------------------------- 1,200.91 Net backpay due---------------------------------------------- 298.11. I st quarter 1965 Gross backpay due_____________________________________________ 1,708.21 Less interim earnings__________________________________________ 1,533.48 Net backpay due---------------------------------------------- 174.73 Associated Transport, Inc. and Harold C. James Local 182, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America (Associated Transport Inc.) and Harold C. James. Cases Nos. 3-CA-2663 and 3-CB- 839. December 27,1965 DECISION AND ORDER, On September 17, 1965, Trial Examiner Lowell Goerlich issued his Decision herein, finding that Respondent Union had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He also found that the Union had not engaged in other ' unfair labor practices alleged. He further found that Respondent Employer had not engaged in unfair labor practices and recommended that the complaint be dismissed as to it. Thereafter Respondent Union filed exceptions to the Decision and the General Counsel filed exceptions and a supporting brief. . Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Jenkins and-Zagoria]., The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in these cases, and finds merit in the General Counsel's exceptions. Accordingly, the Board adopts the Trial Examiner's findings, con- clusions, and recommendations only to the extent consistent.-with the following. The complaint alleged in substance that Respondent Union had caused Respondent Employer to discharge the Charging Party, 156 NLRB No. 23. 336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Harold James, in violation of Section 8(a-) (3) because of James' alleged delinquency in paying dues at a time when James was not required under the Act to pay such dues to Respondent Union. Respondent Employer hired James as an over-the-road truckdriver in August 1956 at its North Tonawanda, New York, terminal. James worked continuously for the Employer until December 31, 1964, when lie was discharged at the request of Respondent Union. The collective- bargaining representative of the Employer's employees at the North Tonawanda terminal from 1956 until the present time has been Team- sters' Local 449. James applied for membership in that local shortly after he was hired in 1956, but the local rejected his application.' Local. 449 did not thereafter solicit James to join the Union. James continued to work without bein a member of Local 449; lie was the only driver at the North Tonawanda terminal, in that position.' In late 1959, Rockwell F. DePerno, president of Teamster Local 182, which had jurisdiction over the Utica, New York, area, about 200 miles from Tonawanda, complained at a Teamster council meeting to Local 449's president, Donald Wells, that the latter "had a man [James] running up and down the highways for two or three years without paying dues to anybody" and that union delegates did not "like the idea." DePerno testified that Wells said he did not want James "in his Union." DePerno asked Wells if the latter had any objection to Local 182's taking James into membership. Wells replied, according to DePerno, "Absolutely, none . . . and may the Gods bless you, because you will be sorry. You can represent him. Take him and do anything you want with him: We don't want him." In February 1960, James joined Local. 182 after DePerno told him that unless he was a union member he would not be permitted to pull freight out of the Utica terminal, which was within the jurisdiction of Local 182. James explained that Local 449 would not accept him into membership. DePerno replied, "Well, we'll take you into the Utica local. I will. put your transfer through from 449. If they don't accept it, we'll find out why." James remained a member of Local 182 until March 1, 1963, when he was expelled from membership for nonpayment of dues since October 1962. However, Local 182 did not notify him of his expulsion, nor did it seek at this time to affect his job rights. In 1964, the Employer and the Union, together with other employers and other locals of the Teamsters, including Local 449, became parties 1 Local 449 's December 3, 1956, minutes recite that "James has become unemployed and in accordance with the constitution is not now eligible for membership and his initiation fee has been refunded." Although James was later rehired, Local 449 did not thereafter seek to enroll him as a member and, as borne out by later statements of Local 449's president, did not want him as a member. ASSOCIATED TRANSPORT, INC. 337 to collective-bargaining,agreements which contained a union-security clause providing, inter ilia : All present employees who are not members of the Local Union and all employees who are hired hereafter shall become and remain members in good standing of the Local Union as a condition of employment on and after the 31st day following the beginning of their employment or on and after the 31st day following the effective date of this subsection or the date of this Agreement, whichever is the later. The agreement defines "Local Union" as applying to the I.B.T. Local Union which represents the employees of the particular employer for the purpose of collective bargaining at the particular place or places of business to which the Agreement and the Supplements thereto are applicable, unless, by agreement of the Local Unions involved, ... jurisdiction over such employ- ees.... has been transfered to some other Local Union, in which case the term Local Union as used herein shall refer to such other Local Unions. It is conceded that the union-shop provisions became applicable to James on March 3, 1964. However, neither Local 449 nor Local 182 informed him of his obligations under the contract prior to his ter- mination. Local 449 neither requested that he join that union nor that the Employer discharge him. Neither Local 449 nor Local 182 advised him that the local union he was required to join was Local 182, 200 miles from North Tonawanda, rather than Local 449 which rep- resented all other North Tonawanda terminal employees, because of an agreement between the two unions transferring jurisdiction over him to Local 182. About December 30, 1964, DePerno called William Mosley, regional manager of Respondent Employer, and told him that James was in arrears in his dues and was to be suspended or there would be a strike. Mosely in turn called the North Tonawanda terminal manager and told him to suspend James. The suspension took place on Decem- ber 31, 1964. Before suspending James, the Employer made no inves- tigation of the Union's claim of delinquency, and gave James no opportunity to explain or justify his conduct. The General Counsel contends that under the terms of the 1964 Teamster agreement, only Local 449 had standing to enfore the union- security clause, and that as Respondent Local 182 acted without such legal right it violated Section 8(b) (2) of the Act by causing James' discharge, and Respondent Employer violated 8(a) (3) by acquiescing in and effectuating the demand for his discharge. We find it unneces- sary to, and do not, decide whether only Local 449 had the right to 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enforce the union-security clause against James, who was employed within its jurisdiction. We assume, arguendo, that Local 449, could lawfully transfer James out of its jurisdiction to that of Local 182, so as to require James to become and remain a member of Local 182 in order to retain his job. In the Philadelphia Sheraton 2 case, the court of appeals said : The comprehensive authority vested in the union, as the exclu- sive agent of the employees, leads inevitably to employees depend- ence on the labor organization. There necessarily arises out of this dependence a fiduciary duty that the, union deal fairly with employees.... At the minimum, this duty requires that the union inform the employee of his obligations in order that the employee may take whatever action is necessary to protect his job tenure.... The union may not evade this duty, as the Local did here, and then demand the dismissal of the employee when he becomes delinquent in the payment of his dues. If James had been transferred from the jurisdiction of Local 449, which represented all other employees at the North Tonawanda termi- nal, to that of Local 182, he was entitled to be informed of that fact by the unions involved so that he could make his tender of dues to the proper local. But he was never advised of the transfer before he was abruptly terminated without notice. It is true that James had earlier been a member of Local 182, but his membership in that labor organization had terminated almost 2 years before his discharge, and approximately a year before the union-security clause'became appli- cable to him.-- Moreover, he had joined Local 182, not because of a union-security clause, but because he had been threatened that he would be unable to work out of Utica unless he joined Local 182. It is also true that James made no attempt to join Local 449 after the 1964 union-security clause became effective. But on the basis of his entire experience with Local 449, he had the right to assume that Local 449 did not want him as a member, which was a fact. Further, Local 449 never complained to James or to the Employer that James had not offered to join or to tender dues to that labor organization. On- the basis of. the foregoing, we find that, as"Respondent Union never properly apprised James that he was required to, join that labor organization under the existing union-security clause, no obligation on his part to pay dues arose, and that Respondent Union in bringing about the discharge of James for dues nonpayment thereby violated Section 8(b) (2) and (1) (A) of the Act .3 We further' find that, as Respondent Employer made no attempt to investigate the facts' con- 2N.L.R.B. v. Hotel, Motel and Club Employee8' Union, Local 568, AFL-CIO (Phila- delphia Sheraton Corp.), 320 F. 2d 254, 258 (C.A. 3), enfg. 136 NLRB 888. 3 Ibid. ASSOCIATED TRANSPORT, INC. 339 netted with the demand for the discharge of James, but yielded to the will of Respondent Union, Respondent Employer thereby violated Section 8 (a) (3) and (1) of the Act.4 TIIE REMEDY Having found that by the aforementioned conduct, Respondent Employer and Respondent Union have violated Section 8(a) (1) and (3) and Section 8(b) (1) (A) and (b) (2) of the Act, eve shall order them to cease and desist from engaging in such conduct in the future and affirmatively to take such action as will dissipate the effects of their unfair labor practices. As employee Harold C. James returned to employment with the Respondent Employer on June 23, 1965, we shall not order his reinstatement. We shall, however, order that James' reinstatement shall be without prejudice to his seniority or other rights and privileges. We shall further order the Respondent Union to notify the Respondent Employer, in writing, with a copy to Harold C. James, that it withdraws its objections to the Respondent Employer's employment of James and does not oppose his reinstate- ment or the restoration of his seniority as it existed on Decem- ber 31, the date of his discharge or suspension. We shall also order the Employer and Union jointly and severally to make James whole for any loss of pay suffered by reason of dis- crimination against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages from the date of the discrimination until James' reinstatement, less his net earnings during this period. The loss of earnings shall be computed in the manner prescribed in F. TV. Woolworth Company, 90 NLRB 289, and with interest on the backpay due in accordance with Board policy set out in Isis Plumbing & Heating, Co., 138 NLRB 716. We shall also order the Employer to make available to the Board, upon request, payroll and other records to facilitate the checking of compliance with our Order. Upon the above findings of fact, and upon the entire record in the case, we hereby make the following : ADDITIONAL CONCLUSIONS or LAW Delete the Trial Examiner's conclusion of law Nos. 3, 4, 5, and 6 and substitute the following paragraphs. 3. By discharging Harold C. James for reasons other than his failure to tender periodic dues and initiation fees to Respondent Local 182, 4 International Ur,on of Electrical, Radw and Machine Workers, AFL-CIO, Frigadalre Local 801 ( General Motors Corporation, Frigidaire Division ) v. N.L.R.B , 307 F. 2d 679 (C.A.D.C.), enfg. 129 NLRB 1379 and 130 NLRB 1286, cert. denied 371 US. 936. 217-919-66-vol. 15 6-2 3 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Associated Transport, Inc., violated Section 8(a) (3) and (1) of the Act. 4. By causing Respondent Associated Transport, Inc., to discharge Harold C. James for reasons other than his failure to tender periodic dues and initiation fees, Respondent Local 182 violated Section 8(b) (2) and (1) (A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that: A. Respondent Associated Transport, Inc., North Tonawanda, New York, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Encouraging membership in Local 182, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or in any other labor organization of its employees, by discharg- ing, or in any other manner discriminating against any employee in regard to hire or tenure of employment or any term or condition of employment, except as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Restore to Harold C. James his seniority or other rights and privileges of his former employment, and jointly and severally with the Respondent Local 182 make him whole for any loss of pay suffered as a result of the discrimination against him, in the manner set forth in the section above entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination or copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to an analysis of the amount of back- pay due under the terms of this Order. ASSOCIATED TRANSPORT, INC. 341 (c) Post at its place of business in North Tonawanda, New York, copies of the attached notices marked "Appendix A" 5 and, as soon as forwarded by the Regional Director, "Appendix B." Copies of such notices, to be furnished by the Regional Director for Region 3, shall, after being duly signed by the Respondent Employer's representative, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 3, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. B. Respondent Local 182, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, rep- resentatives, and agents, shall : 1. Cease and desist from : (a) Causing or attempting to cause Respondent Employer to dis- criminate against any of its employees in violation of Section 8(a) (3) of the Act. (b) In any like or related manner restraining or coercing employ- ees in the exercise of rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requir- ing membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Jointly and severally with Respondent Employer make whole Harold C. James for any loss of pay suffered as a result of the dis- crimination against him in the manner set forth in the section above entitled "The Remedy." (b) Notify Harold C. James and the Employer, in writing, that it withdraws its objections to James' employment and does not oppose reinstatement and the restoration of his full seniority or other rights and privileges as they existed on December 31, 1964, the date of his discharge. (c) Post at its business office copies of the attached notice marked "Appendix B." 6 Copies of said notice, to be furnished by the Regional Director for Region 3, shall, after being duly signed by the Respondent Union's representative, be posted immediately upon 5In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals, Enforcing an Order." 0 See footnote 5, supra. 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD receipt thereof, and be maintained by it for 60 consecutive days there- after, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or covered by any other material. (d) Forward signed copies of Appendix B to the Regional Director for posting by the Employer at its place of business. (e) Notify the Regional Director for Region 3, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT encourage membership in Local 182, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, or any other labor organization, by discharging or in any other manner discriminating against any employee in regard to hire or tenure of employment or any term or condition of employment, except as authorized by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as author- ized in Section 8(a) (3) of the Act, as modified by the Labor- ihlanagement Reporting and Disclosure Act of 1959. WE WILL restore to Harold C. James his seniority or other rights and privileges attaching to his former position and make him whole for any loss of pay suffered as a result of our dis- crimination against him. All our employees are free to become or remain, or to refrain from becoming or remaining, members of the above-named Union or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting Disclosure Act of 1959. ASSOCIATED TRANSPORT, INC., Employer. Dated---------------- By---------------------------=-------- (Representative) (Title) ASSOCIATED TRANSPORT, INC. 343 This notice must remain posted for 60 days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 120 Delaware Avenue, Buffalo, New York, Telephone No. 842-3100. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that WE WILL NOT cause or attempt to cause Associated Transport, Inc., to discriminate against Harold C. James or any other employee in violation of Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL notify Associated Transport, Inc., and Harold C. James, in writing, that we withdraw our objections to his employ- ment and do not oppose James' reinstatement and the restoration of his full seniority or other rights and privileges as they existed on December 31, 1964, the date of his discharge. WE WILL make Harold C. James whole for any loss of pay suffered because of the discrimination against him. WE WILL NOT in any like or related manner restrain-or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Dis- closure Act of 1959. LOCAL 182, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Labor organization. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 120 Delaware Avenue, Buffalo, New York, Telephone No. 842-3100. 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On charges filed by Harold C. James against Local 182, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein referred to as the Respondent Union, and Associated Transport, Inc., herein referred to as the Respondent Company, on April 8 and May 17, 1965, respectively, the General Counsel of the National Labor Relations Board on behalf of the Board by the Acting Regional Director for Region 3 on May 26, 1965, issued an order consolidating cases, consolidated complaint, and notice of hearing against the Respondent Union and the Respondent Company. The consolidated complaint alleged that the Respondent Company had engaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8(a)(1) and (3) of the National Labor Rela- tions Act, as amended, herein called the Act, and that the Respondent Union had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and 8(b)(2) of the Act. The Respondents filed timely separate answers to the consolidated complaint denying that they had engaged in or were engaged in the unfair labor practices as alleged. The basic issues which were present for consideration and framed by the consoli- dated complaint and answers were whether in violation of the Act the Respondent Union attempted to cause and did cause the Respondent Company to discharge Harold C. James, its employee, because of his failure to pay to the Respondent Union moneys for dues and whether in violation of the Act the Respondent Company pur- suant to the request of the Respondent Union did discharge Harold C James, its employee, because of his failure to pay Respondent Union moneys for dues. On the issues framed by the consolidated complaint and answers, and pursuant to notice, this case was heard before Trial Examiner Lowell Goerlich in Buffalo, New York, on August 3 and 4, 1965. At the hearing the General Counsel and the Respond- ents were represented by counsel and the Charging Party, Harold C. James, appeared on his own behalf. Each party was afforded full opportunity to present evidence rele- vant to the issues, to call, examine, and cross-examine witnesses, to present oral argu- ment, to file proposed findings and conclusions, and to file briefs. Briefs were sub- mitted by the General Counsel and the Respondent Union and have been duly considered by me. On the record as a whole and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY The Respondent, Associated Transport Inc., is now, and has been at all times mate- rial herein, a Delaware corporation with its principal office at 380 Madison Avenue, New York, New York, and has been engaged in the business of operating trucking terminals including a truck terminal located at North Tonawanda, New York, and of performing trucking services in and between the various States of the United States, including the States of New York, Pennsylvania, Ohio, North Carolina, South Caro- lina, and Georgia, and has been at all times material herein continuously engaged in part in providing and performing trucking services between its North Tonawanda, New York, terminal and points outside the State of New York. During the past year, a representative period, the Respondent Company performed in excess of $1 million worth of trucking services of which services valued in excess of $1 million were per- formed between the various States of the United States During the same period, the Respondent Company performed trucking services valued in excess of $50,000 which services consisted of transporting merchandise directly from Respondent Com- pany's North Tonawanda, New York, terminal to points outside the State of New York. During the same period, the Respondent Company performed trucking services valued in excess of $50,000 which services consisted of transporting merchandise directly from points outside of the State of New York to the Respondent Company's Tonawanda, New York, terminal. The Respondent Company is now and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. IT. THE LABOR ORGANIZATION INVOLVED Local 182, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. ASSOCIATED TRANSPORT, INC. III. THE ALLEGED UNFAIR LABOR PRACTICES 345 Background The parties stipulated that Charging Party Harold C. James was on or about December 31, 1964, discharged pursuant to the request of the Respondent Union.' The Respondent Company reemployed James on June 23, 1965. Prior to his dis- charge, James was employed as a truckdriver attached to the Respondent Company's North Tonawanda terminal which, the parties stipulated, was located within the territorial jurisdiction of Teamsters Local 449. James' employment relationship was governed by a National Master Freight Agree- ment covering over-the-road and local cartage employees of private, common, con- tract, and local cartage carriers for the period of February 1, 1964, to March 31, 1967, and by a supplemental agreement, the New York State Teamsters Joint Council Freight Division Over the Road Motor Freight Supplemental Agreement covering drivers employed by private, common, and contract carriers for the period of August 1, 1964, to Match 31, 1967, in the jurisdiction of the following local unions: Nos. 65, 118, 182, 294, 317, 449, 506, ,529, 648, 649, 687, and 693.2 Employees covered by the latter agreement were defined "to mean any driver, chauffeur, or driver-helper operating a truck-tractor, motorcycle, passenger or horse-drawn vehicle, or any other vehicle operated on the highway, street, or private road for transportation purposes when used to defeat the purposes of this Agreement." The National Master Agreement provides that "The execution of this Master Agreement on the part of the employer shall cover all operations of the Employer which are covered by this Agree- ment, and shall have application to the work performed within the classifications defined and set forth in the Agreement supplemental hereto." In reference to the supplemental agreement, the National Master Agreement provides that "All . supplemental agreements are subject to and controlled by the terms of this Master Agreement . . ." and that the Master Agreement and the supplemental agreements shall be "binding upon the parties" thereto. The National Master Agreement provides for a single bargaining unit composed of "The employees covered under [the] Master Agreement and various supplements thereto." Under the National Master Agreement "The Employer recognizes and acknowledges that the National Union Committee and Local Unions affiliated with the International Brotherhood of Teamsters are the exclusive representatives of all employees in the classifications of work covered by the Master Agreement and Supplements thereto for the purposes of collective bargaining as provided by the National Labor Relations Act." The National Master Agreement further provides that "All present employees who are members of the Local Union on the effective date of this subsection or on the date of execution of this Agreement, whichever is the later, shall remain members of the Local Union in good standing as a condition of employment. All present employees who are not members of the Local Union and all employees who are hired hereafter shall become and remain members in good standing of the Local Union as a condition of employment on and after the 31st day following the beginning of their employment or on and after the 31st day following the effective date 3 of this subsection or the date of this subsection or the date of this Agreement, whichever is later." [Emphasis supplied.] The Master Agreement defines the term "local union" as follows: "The term `Local Union' as used herein refers to the I.B.T. Local Union which represents the employees of a particular employer for the purpose of collective bargaining at the particular place or places of business to which this agreement and the supplements thereto are applicable, unless by agreement of the Local Unions involved, or a Change of Opera- tions Committee jurisdiction over such employees, or any number of them, has been transferred to some other Local Union, in which case the term Local Union as used herein shall refer to such other Local Unions." At the time of his discharge James was not a member of any "I.B.T. Local Union." James was hired as an over-the-road driver on August 26, 1965, by the Respondent Company to be attached to its North Tonawanda terminal. Sometime prior to Decem- ber 3, 1956, James applied for membership in Local 449, "the I.B.T. Local Union" 1 William Mosley, regional manager for the Respondent Company, testified that Rock- well F. DePerno, president of the New York State Teamsters Joint Council, Freight Division, and Local 1'82 said to him that "James had to be suspended or we were on strike " 2 These agreements sometimes are referred to herein together as the 1964 Teamsters' agreements. 3 The National Master Agreement was executed on January 16, 1964, "to be effective as of February 1, 1964." 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD which administers the 1964 Teamsters' agreements for those over-the-road drivers who are attached to the Respondent Company's North Tonawanda terminal. James deposited $25 with Local 449. On December 3, 1956, the minutes of Local 449 relate, "Harold James application held up because he reported he was formerly a member of Local 822 in Norfolk, Virginia. Communications sent to Local #822 asking for information which resulted in an answer stating #822 had no record of James ever being a member. In the meantime James has become unemployed and in accordance with the constitution is now not eligible for membership and his initia- tion fee has been refunded." James received a check dated December 14, 1956, from the Truckdriver's Local Union No. 449 returning the $25 which he had deposited. James testified that he had attended a meeting of Local 449 and "was sworn in" but when he tried to pick up his union book, the girl in charge said that she had orders "to hold it up." After his deposit was returned by Local 449, James heard nothing further from the local. Thereafter James continued as the only over-the-road driver working for the Respondent Company out of its North Tonawanda terminal who was not a member of Local 449.4 James worked without a book until 1959 at which time he was told that if he did not have a book he could not pull his freight out of the Utica, New York, terminal.5 James explained, "I talked to Mr. DePerno about it and explained the situation to him of what happened-on 449. He says, `Well, we'll take you into the Utica local 6 I will put your transfer through from 449. If they don't accept it. We'll find out why.' That's how I was taken into 182." James paid dues and carried a book thereafter in the Utica, New York, Local No. 182. At the time of his discharge his dues, except for $12, were paid for the year 1962. James paid no dues thereafter.? Local 182 ledger record reveals that James was expelled from the local on March 1, 1963,8 James was never notified by the local of the action taken against him by the local or that he was delinquent in the payment of dues. Upon his discharge James contacted Belden of Local 182 who advised him that the local had not received his 1964 dues. James replied that he had mailed a "money order for $70 in January." James then sent a money order for $100 to the union with a note that he "sent $68 in Jan. 1964 for dues." The $100 money order was returned on February 4, 1965, with a letter from the local's secretary-treasurer stating that James was $197.25 in arrears for dues. James took no further step to liquidate the arrearage. I asked James whether he thought that if he "ceased paying dues in Local 182" he might lose his job James responded, "No doubt about it, I figured I would. That's why I tried to pay my dues and tried to keep them up." DePerno testified that at a council meeting of the New York Teamsters he brought to the attention of the delegates that Wells, president of Local 449, "had a man [James] running up and down the highways for two or three years without paying dues to any body." According to DePerno the delegates did not "like the idea." DePerno com- mented, "I think it's a detriment to the Teamsters movement to a man running up and down the highways this way. If you [Wells] won't take him, have you any objec- tion to any other union in the State covered by this agreement." Wells answered that he had "no objection," whereupon DePerno said that he would take James into the Utica local union and that the Utica local would represent him. Wells was agreeable and a couple of months later James became a member of Local 182. According to James, in 1962 he sought to process a grievance through Local 449. Local 449 referred him to the Utica Local 182. On February 20, 1963, a warning letter was issued by the Respondent Company to James, a copy of which was sent to Local 182. A copy of a warning notice is sent to the Union which represents the individual. 'Rockwell F. DePerno, president of the New York Teamsters Joint Council, Freight Division, and Local 182, testified that employees other than James worked within the jurisdiction of Local 449, who were members of other Teamsters locals 'The distance between North Tonawanda, New York, and Utica, New York, is approxi- mately 200 miles. 8 The Utica local is Local 182. 7 While James claimed he had transmitted dues to Local 182 by money order for the years 1963 and 1964, the money order receipt numbers which he produced were for the years 1961 and 1962. 8 The constitution of the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America provides "Any member who, shall be (3) months in arrears in the payment of dues, fines , assessments, or other charges , shall automatically stand suspended at the end of the third (3d) month, and shall not be entitled to any rights or privileges as a member of the Local Union or International Union." ASSOCIATED TRANSPORT, INC. 347 Concluding Findings First: The 1964 Teamsters agreements referred to above required all employees of the Respondent Company to "become and remain members in good standing of the Local Union as a condition of employment ... on and after the 31st day follow- ing the effective date of [the] subsection [March 3, 1964] or the date of [the] agreement [February 16, 1964] whichever is later." 9 On March 1, 1963, Harold C. James was expelled from membership in Local 182, he had been delinquent in the payment of dues since November 1962. Thus on March 3, 1964, James was not a member of a "Local Union" nor had he tendered the periodic dues uniformly required as a condi- tion of retaining membership. He was lacking in a condition for continued employ- ment and became subject to immediate discharge under the union-security clause of the 1964 Teamsters' agreements. Moreover, unless James was excused from the per- formance of the requirements of the union-security clause, his subsequent discharge was lawful and not in violation of Section 8(a)(3) of the Act. Apparently the General Counsel does not contend otherwise but urges that James is excused from performance because in 1956 he tendered appropriate fees to Local 449, "the only local which could properly accept them," and thus fulfilled "all legal obligations for union security." However, James' default occurred on March 3, 1964, under an agreement which did not come into existence until over 7 years after he was refused membership in Local 449 because he became "unemployed" and "in accordance with the constitution" was not eligible for membership.1° These happenings in 1956 lend no support to an inference 11 that in 1964 Local 449 would not have accepted a tender of appropriate fees from James which he was obliged to make if Local 449 were the "local union" to which he was required to make tender under the union- security clause. Under the circumstances, the fact that James was not admitted to membership in Local 449 in 1956 does not excuse him.in 1964 from the performance of the union-security provision of a contract which was not in existence in 1956 but first appeared in 1964 12 Moreover, if inferences are to be drawn from remote hap- penings, it is clear that in 1960 when James became a member of Local 182, Local 449 by agreement transferred jurisdiction over James to Local 182 and James became obligated to such local under the union-security clause of the 1964 agreements.13 At a meeting of the New York Teamsters Joint Council, Local 449 relinquished jurisdiction over James at the behest of President DePerno. Thereafter, Local 449 referred James to Local 182 for the processing of his grievances against the Respond- ent Company. James admitted that he "looked to Local 182 to handle [his] griev- ances." On at least one occasion Local 182 considered a grievance brought to its attention by James. Indeed James recognized he might lose his job if he did not pay dues to Local 182. The Respondent Company recognized the representative status of Local 182 in respect to James in that it transmitted to Local 182 a copy of a warn- ing letter addressed to James dated February 20, 1963. Moreover, Local 182, as a party to the 1964 Teamsters' agreements, had a direct interest in the compliance of the union-security terms of the agreement and consequently had standing to insist upon the performance of these terms.14 The condonation of "free riders" would adversely affect the financial means for administering the agreements of which Local 182 was a beneficiary. 'The General Counsel makes no contention that this union-security clause does not satisfy the requirement of Section 8(a) (3) of the Act. 1s The minutes of Local 449 which reveal the reason for the denial of membership to James were offered into evidence by the General Counsel for which reason they are presumed to be accurate and truthful as to the action taken by the local. n Remoteness in point of time may render evidence irrelevant "where lapsed time is so great as to negative all rationale or logical connection between the fact sought to be proved and the remote evidence in proof thereof." Jones on Evidence, p 273 (5th ed ). "As the record stands prior contracts, if any, may not have contained union-security clauses 13 The National Master Agreement provides that if the local unions involved agree to transfer jurisdiction over an employee from one local to another, the other local shall become the local union to which the union-security clause refers and the transferred em- ployee must become or remain a member of such local. 14 "A labor organization which is a party to a union-security contract is entitled to require some form of adherence to its terms." Plasterers Union Local No. 77 Operative Plasterers' and Cement Masons' International Association (Piper & Greenhall, Inc.), 143 NLRB 765, 767. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In Grain Processors' Independent Union, Local No. 1 (Union Starch & Refining Company), 87 NLRB 779, 784, enfd. 186 F. 2d 1008 (C.A. 7), cert. denied 342 U.S. 815, in reference to Section 8(a)(3) of the Act the Board said ". . . proviso (B) requires a tender of dues and fees ...." Since on March 3, 1964, the date upon which the union-security clause became applicable to him, James did not tender the appropriate fees required under such clause he lost the protection of proviso (B) in that he did not perform his statutory and contractual obligations. James became vulnerable to discharge under the Respondent Union's union-security agreement with the Respondent Company and his discharge which followed was not in violation of Section 8(a)(3) of the Act. An employer may lawfully accede to a request from a union to discharge an employee "where there exists a valid union security clause" and the "employee has failed to tender the initiation fees and dues properly owing the Union as a consequence of that clause." The Gabriel Division of the Maremont Corporation, 153 NLRB 631. Thus the Respondent Company did not violate 8(a)(1) or 8 (a)(3) of the Act and the Respondent Union did not violate 8(b)(2). Second: The General Counsel's reference to Miranda Fuel Company Inc., 140 NLRB 181, 185 is pertinent. Therein the Board held ". . . we are of the opinion that Section 7 thus gives employees the right to be free from unfair ... treatment by their exclusive bargaining agent in matters affecting their employment" and "Sec- tion 8 (b)(1)(A) of the Act accordingly prohibits labor organizations, when acting in a statutory representative capacity, from taking action against any employee upon considerations ... which are ... unfair." The Board cites International Union of Electrical, Radio and Machine Workers, AFL-CIO, Frigidaire Local 801 (General Motors Corporation, Frigidaire Division) v. N.L.R.B., 307 F. 2d 679, 683 (C.A.D.C.) in which the court opined: Among the most important of labor standards imposed by the Act as amended is that of fair dealing, which is demanded of unions in their dealings with employees. The court observed that the obligation of "fair dealing carries with it "the duty to inform the employee of his rights and obligations so that the employee may take all necessary steps to protect his job." In affirming Philadelphia Sheraton Corp., 136 NLRB 888, the court said in N.L.R.B. v. Hotel, Motel and Club Employees' Union, Local 568, AFL-CIO, 320 F. 2d 254, 258 (C.A.3): The comprehensive authority vested in the union, as the exclusive agent of the employees, leads inevitably to employee dependence on the labor organiza- tion. There necessarily arises out of this dependence a fiduciary duty that the union deal fairly with employees ... At the minimum, this duty requires that the union inform the employee of his [dues] obligations in order that the employee may take whatever action is necessary to protect his job tenure. The court held in that the Union "failed to advise the employees of their obliga- tions and the consequences arising out of arrearages allegedly incurred" the Board could "properly find that no obligation to pay dues arose, and that the union's demand for discharge violated the Act." Local 182's precipitious demand for James' discharge upon threat of strike without first communicating with him, under the circumstances of this case is incompatible with Local 182's role as a statutory collective-bargaining agent. Local 182's agents were conversant with the events which were involved in James' rejection for mem- bership by Local 449 15 and his assumption of membership in Local 182. Thus Local 182 must have known that the inaction of Local 182 during the 2-year lapse during which James failed to pay dues would have led James to believe that Local 182 had abandoned interest in him as a member, as did Local 449, or that under the most recent Teamsters' agreements he was not required to maintain membership in Local 182.16 Moreover, the question of James' transfer to Local 449, as far as James was concerned, had never been finally settled 17 nor had James been advised what was required of him by way of compliance with the union-security provision of 15 Although it was not urged certain of the testimony in the record suggests that membership in Local 449 was not available to James on the same terms and conditions generally applicable to other members 16 This was the position taken by the General Counsel in respect to James' obligation to Local 182 17 James testified "When I joined 182, I had the understanding he [DePerno] was going to put the transfer through to 449 for me " ASSOCIATED TRANSPORT, INC. 349 the 1964 Teamsters' agreements which became applicable to him on March 3, 1964, a long time after he had ceased paying dues to Local 182. Moreover, it would have been reasonable for James to have assumed that by reason of Local 182's failure to press collection of its dues for such a long period, no obligation to pay dues to Local 182 arose under the 1964 Teamsters' agreements. The record is barren of any rea- son for Local 182's failure to contact James before it demanded his discharge. Indeed upon the information in the possession of Local 182 at the time of the demand, as disclosed in the record, James might well have been a member in good standing of Local 449. The distance of over 200 miles between James' place of work and Local 182's headquarters, which obviously limited his participation in local union's affairs, was enough to put Local 182 on notice that James' over 2 years' dues delinquency should have been investigated rather than seized upon as a cause for dismissal. As a minimum of fair treatment these circumstances imposed upon the Respondent Union the duty, before it demanded James' discharge, to inform James of the circumstances surrounding his union status with it, so that he could take whatever action was necessary "to protect his job tenure." A union may not evade this duty and then demand the dismissal of an employee when he becomes delinquent in the payment of his dues. N.L.R.B. v. Hotel, Motel and Club Employ- ees' Union, Local 568, AFL-CIO, supra. A purpose of the Act is "to protect the rights of individual employees in their rela- tions with labor organizations whose activities affect commerce " (See declaration of policy.) The right of employees "to bargain collectively through representatives of their own choosing," guaranteed under Section 7, becomes an empty right if the bargaining agent fails or refuses to fulfill the obligations imposed upon it by the Act and treats an employee it is bound to represent unfairly. The statutory protection afforded unions against "free riders" was not meant to allow a union to be more zealous in the collection of dues than the preservation of the employee's job. It is the responsibility of an exclusive bargaining representative to "act as a genuine representative." See Miranda Fuel Company, Inc., supra, at 184. "The bargaining representative, whoever it may be, is responsible to, and owes complete loyalty to, the interests of all whom it represents." Ford Motor Company v. Huffman, 345 U.S. 330, 338. Under the circumstances disclosed in the record, having failed to apprise James of his dues paying obligations, the Respondent cannot justify its demand for the discharge of James. Accordingly, solely for the foregoing reasons, by causing the Respondent Employer to discharge James, the Respondent Union has violated Sec- tion 8 (b) (1) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent Union set forth in section III, above, occurring in connection with the operations of the Respondent Company set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It has been found that the Respondent Union has engaged in and is engaging in unfair labor practices. Thus it will be recommended that the Respondent Union be required to cease and desist therefrom and take certain affirmative action set out below designed to effectuate the purposes of the Act. Employee Harold C. James returned to employment with the Respondent Com- pany on June 23, 1965. To effectuate the purposes of the Act it is recommended that the Respondent Union notify the Respondent Company, in writing, with a copy to Harold C. James, that it withdraws its objections to the Respondent Company's employment of James and does not oppose his reinstatement or the restoration of his seniority as it existed on December 31, 1964, the date of his discharge. CONCLUSIONS OF LAW 1. Associated Transport, Inc., is an employer engaged in commerce within the meaning of Section 2(6) of the Act. 2. Local 182, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. By causing the discharge of Harold C. James, the Respondent Union has restrained and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act, and has thereby engaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 4. The Respondent Union has not engaged in any unfair labor practices by reason of conduct alleged in the complaint to have been in violation of the Act except insofar as such conduct has been found hereinbefore to have violated 8(b) (1) (A) of the Act. 5. The Respondent Company has not violated Section 8(a)(1) and (3) of the Act as alleged in the complaint. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] Assonet Trucking Company, Inc.; Assonet Sand & Gravel Com- pany, Inc. and Chauffeurs & Teamsters Local Union #526, In- ternational Brotherhood of Teamsters , Chauffeurs, Warehouse- men and Helpers of America .' Cases Nos. 1-CA-4653 and 1-CA- 4750. December 27,1965 DECISION AND ORDER On May 25, 1965, Trial Examiner Robert E. Mullin issued his Decision in the above-entitled proceeding, finding that the Respond- ents had engaged in and were engaging in certain unfair labor prac- tices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, the Respondents filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed with the Board the brief submitted to the Trial Examiner.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and the entire record in these cases, including 1 Herein called the Teamsters. 2 On June 29 , 1965, the Respondents filed with the Board copies of the weekly time- cards of employee Stanley Mason, and moved that they be made part of the record in these cases. The General Counsel filed a motion in opposition to the request . The time- cards are not newly discovered evidence ; in fact, the General Counsel sought to subpena them in advance of the hearing , and the Respondents presented evidence at the hearing as to the work record of Mason during the weeks in question . In view of these facts, the Respondents' request that the Board receive this additional evidence is hereby denied. 156 NLRB No. 35.