Local 1908, United Transport Union

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 1908, United Transport Union (Cottrell Bus Service Inc.) and Margaret L. Easton. Case 3-CB- 1805 October 20, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND PENELLO On June 16, 1972, Administrative Law Judge I John F. Funke issued the attached Decision in this proceeding. Thereafter, Respondent 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 attached 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 for the reasons set forth below. We accept the Administrative Law Judge's con- clusion that Respondent violated Section 8(b)(2) and (1)(A), as alleged, because we find that the facts, as set forth in the Decision, establish that the Respondent actually came into possession of Margaret Easton's check for January dues. The check was unquestiona- bly delivered by Hens to Velardo and was among the papers Velardo gave the union treasurer. Although Easton used an unusual method of delivering the dues check, her method did result in actual receipt by the Union and operated to satisfy Easton's obligations under the applicable union-security contract to make a valid tender of her January dues. Having received a valid tender of the dues, the Union acted unlawfully in securing Easton's discharge for failure to pay the dues .2 The Union's action in this regard is not excused by the fact that, through its agent's carelessness or error, it was unaware that the check was in its posses- sion., Furthermore, we note that the union treasurer did not, in Easton's case, notify her by mail as a delinquent member, although he testified that this was his normal practice where an employee was on sick leave, as was Easton. Accordingly, we conclude, as did the Administrative Law Judge, that Respondent secured the discharge of Easton for reasons other than her failure to tender periodic dues and initiation fees and thereby violated Section 8(b)(1)(A) and (2) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent Local 1908, United Transport Union, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. i The title "Trial Examiner" was changed to "Administrative Law Judge" effective August 19, 1972. 2Philadelphia Sheraton Corporation, 136 NLRB 888, enfd sub nom N.L R B v. Hotel, Motel and Club Employees ' Union, Local 568, AFL-CIO, 320 F.2d 254 (C A 3) J Great Atlantic & Pacific Tea Company(Pittsburgh Bakery),l 10 NLRB 918. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOHN F. FUNKE, Trial Examiner: This case was brought before the National Labor Relations Board upon: 1. A charge, filed January 20, 1972, by Margaret L. Easton, herein Easton, against Local 1908, United Trans- port Union, herein the Union, alleging the Union violated Section 8(b)(1)(A) and (2) of the Act. 2. A complaint issued by the General Counsel alleging the Union violated Section 8(b)(1)(A) and (2) of the Act, dated February 14, 1972. 3. An answer of Respondent, dated March 1, 1972, denying the commission of any unfair labor practices. 4. A hearing held by me at Buffalo, New York, on May 11, 1972. 5. A brief received from the General Counsel on June 5, 1972. Upon the entire record in this case and from my obser- vation of the witnesses while testifying, I make the follow- ing: FINDINGS I THE BUSINESS OF COTTRELL BUS SERVICE INC. Cottrell Bus Service Inc., herein Cottrell, is a New York corporation having its principal place of business at Cheektowaga, New York, where it provides school and charter bus services. Its annual gross revenues exceed $500,000 and its annual purchases of goods and material from other enterprises in the State of New York which are received from places outside the State of New York exceed $50,000. Cottrell is engaged in commerce within the meaning of the Act. II THE LABOR ORGANIZATION INVOLVED The Union, at all times material herein, operated un- der a collective-bargaining contract with Cottrell covering 199 NLRB No. 126 LOCAL 1908, UNITED TRANSPORT UNION its drivers and shop and maintenance employees and is a labor organization within the meaning of the Act. 111. THE UNFAIR LABOR PRACTICES A. The Issue The complaint alleges that the Union caused Cottrell to discharge Easton because of Easton's lack of membership in the Union and for reasons other than her failure to tender periodic dues and initiation fees required as a condition of membership therein thereby violating Section 8 (b)(1)(A) and (2) of the Act. B. The Facts 1. The case of the missing check Easton was employed by Cottrell as a schoolbus driver from June 1970 until January 1972 when she was discharged for failure to pay her union dues. The contract between the Union and Cottrell provided:' ARTICLE IV Union Shop and Check Off 7. Any employee who, on the effective date of this agreement is not a member of the U.T.U., and any employee thereafter hired must as a condition of em- ployment, ninety (90) calendar days after date of hire, acquire and maintain membership in the U.T.U. to the extent of tendering the initiation fee and dues required of all U.R.U. members. In the event of rehire within one year the employees original service will count toward his ninety (90) calendar day period. 8. The U.T.U. agrees'that membership in it shall be available to all employees in the bargaining unit on the same terms and conditions applicable to other members. 9. For all employees who are members of the U.T. U. on the effective date of this agreement and for all employees who thereafter become members of the U.T. U. during the term of this agreement, the Company will check off advance monthly dues and assessments as designated by the Treasurer of Local 1123, on the basis of and for the term individually signed voluntary check off authorization cards heretofore and hereafter sub- mitted to the Company. Check-off authorization re- mains in full force and effect until revoked in writing. The Company shall remit to the Treasurer of local 1123, on or before the 25th of the same month, any and all moneys so deducted, plus the names of the employ- ees from whom no deductions were made, plus the Company's contribution if any. In the event there are any changes to be made in deductions, the Treasurer of the Local will so advise the Company in writing before the 10th of the month. Deductions will be made from earnings accumulated for the payroll period pay- able on the third Thursday of each month. ' Resp. Exh 1. 873 Easton had her dues deducted by Cottrell pursuant to this contract until she went on sick leave on November 1, 1971. Since she received no pay while on sick leave she paid her December dues (due before December 25) on Novem- ber 15. She paid them to Edward Dobiesz, secretary- treas- urer of the Union, with a check for $6.49 and, because she did not know the dues had been raised, she gave him $2 in cash. There is no dispute that the dues for December were paid. Although Easton testified that she had no conversa- tion with Dobiesz at this time, Dobiesz testified that he told her that since she was on sick leave he offered her an E-49 form by which on sick leave. Dobiesz stated she told him it was too much trouble to fill out the form. On December 18 Easton made out another check for her dues and gave it to Joseph Hens, another driver and a neighbor, for delivery to Dobiesz.2 Hens testified that he received the check from Easton made out to United Trans- port Union in the amount of $8.49, took it to the plant, and that since Dobiesz had not yet arrived gave it to Frank Velardo, the dispatcher, with instructions to give it to Do- biesz. Later that day Velardo told him he had given the check to Dobiesz. Velardo testified that he received a piece of paper, folded, from Hens on a date he fixed as shortly before Christmas and was told to give it to Dobiesz. Velardo had mail addressed to Dobiesz so he attached the folded paper to the mail for Dobiesz with a clip and gave it to Dobiesz when he came in. Dobiesz put the mail in his pocket. Dobiesz testified that it was his duty as secretary-treas- urer to check the payment of union dues. If a member is late in payment he notifies the member by mail and also the company. If a member is not on sick leave exemption Do- biesz notifies the company and requests termination. When Dobiesz did not receive Easton's dues for December he called Easton "a couple of times" and received no answer. He then notified the company that her time was expiring and that if she did not pay he would expel her pursuant to the contract. On January 14 Easton reported for work and was told by her boss, Ventile, that she could not work because of nonpayment of union dues and could not return until the matter was straightened, out. Later in January she went to the union hall and talked to George Switzer, the union president. She also showed him a statement in writing from Hens setting forth the circumstances under which he deliv- ered the check.3 Switzer referred her to Dobiesz who told her he tore up the check and threw it away. (Her testimony is not clear on this point since it does not establish that Dobiesz was referring to her check or to all the mail he received from Velardo on the day in question.) Easton then asked if she could write a new check and Dobiesz said she could not. He did tell her she could attend the union meet- ing (these conversations took place before the meeting) and take it up but that he did not think it would do any good. Easton did not attend the union meeting. Dobiesz testified that Easton reported to the union hall on Saturday, January 18, when she approached him and he told her he had not yet received her check. Easton offered 2 Easton testified that she was sick and did not want to go to the plant to make personal delivery of the check. 3 G.C. Exh. 4 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD him the Hens letter but he told her he did not have time to read it and asked her to stick around and he would appeal her case to the membership . Easton refused and walked away. Easton's own bank accounts reveal that the check was never cashed. At the time of the hearing Easton had been reemployed by Cottrell but as a new employee. C. Conclusions A literal construction of the statute would relieve the Union of liability since Easton was discharged by it solely for her failure to pay her periodic dues. There is no evidence that the Union had any other motive or that it had any grounds for hostility toward Easton. But, as the Supreme Court has stated, the statute may not be read-literally. A union may not deal at arms' length with its members but owes them fiduciary obligations, including those of equita- ble dealing and fair representation .4 Union-security clauses and checkoff provisions are powerful instruments for con- trol over the right of employment and should not be exer- cised ruthlessly. It is true Easton did not employ extreme diligence when she delivered her check to Hens for further delivery to the union agent but it is also true that Dobiesz may have been careless with the papers delivered to him. In any event Dobiesz was aware that Easton was on sick leave status the preceding month and it is reasonable to impose upon him the obligation to inquire further into her failure to pay her dues after two telephone calls were unanswered. This entire mishap could easily have been resolved when Easton attended the union meeting in January and offered to give Dobiesz another check and was refused although she was offered the chance to appeal to the membership. It is hardly arguable that there is blame to be attached to both the individuals involved but in such a situation I am not going to hold an employee or member to the same standards of accountability as I would a union officer. It must be remembered that the Union had lost only 1 month's dues and received an offer of reimbursement for that loss while it, on the other hand, was inflicting upon Easton the loss of employment. Under those circumstances I find the Union in violation of Section 8(b)(1)(A) and (2). Upon the foregoing findings and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. By causing Cottrell to discharge Margaret L. Easton for reasons other than her failure to tender periodic dues and initiation fees, the Respondent Union violated Section 8(b)(2) and (1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent Union engaged in 4Aerojet-General Corporation, 186 NLRB No 77 a certain unfair labor practice it will be recommended that it cease and desist from the same and take affirmative action recommended. It is recommended that Respondent Union notify Cot- trell, in writing, with a copy to Margaret L. Easton, that it withdraws any objection to the employment of Margaret L. Easton without prejudice to her seniority and other rights and privileges which she enjoyed on November 1, 1971, and requests that such rights and privileges, including her rate of pay, be restored as of that date. Respondent Union shall make Margaret L. Easton whole for any loss of pay suffered from January 14, 1972, until 5 days after notice to Cottrell shall have been given as above provided. Loss of earnings shall be computed on quarter basis with interest at 6 percent per annum. F. W. Woolworth Company, 90 NLRB 289; Isis Plumbing & Heat- ing Co., 138 NLRB 716.5 Upon the foregoing findings and conclusions and pur- suant to Section 10(c) of the Act, I recommend issuance of the following: ORDER6 Respondent 1908, United Transport Union, its offi- cers, agents, representatives, and assigns, shall: 1. Cease and desist from causing or attempting to cause Cottrell Bus Service Inc. to discriminate against any of its employees in violation of Section 8(a)(3) of the Act. 2. Take the following affirmative action: (a) Make Margaret L. Easton whole for any loss of pay she may have suffered from January 14, 1972, in the manner set forth in the section entitled "The Remedy." (b) Notify Margaret L. Easton and Cottrell Bus Service Inc., in writing, that it withdraws any objection to the em- ployment of Margaret L. Easton without prejudice to her former seniority and other rights and privileges and that it requests that such rights and privileges, including her rate of pay, be restored as of November 1, 1971. (c) Post at its business office copies of the attached notice marked "Appendix.-7 Copies of said notice, on forms to be provided by the Regional Director for Region 3, shall, after being duly signed by Respondent's representatives, be posted by it immediately upon receipt thereof, and be main- tained by it for a period of at least 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. 5 Said loss of earnings shall include all loss of pay, less interim earnings incurred by Easton from January 14 until her reemployment by Cottrell ano also any loss suffered thereafter by reason of reduction in her rate of pay from that of November 1, 1971, to her rate of pay after reemployment 6 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 7 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board LOCAL 1908, UNITED TRANSPORT UNION 875 (d) Forward copies of said notice to the Regional Di- rector for Region 3 for posting by Cottrell Bus Service Inc., at its place of business at Cheektowaga, New York, where notices to employees are customarily posted, if said Compa- ny is willing to do so. (e) Notify the Regional Director for Region 3, in writ- ing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.' 8 In the event that this recommended Order is adopted by the Board, after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Region 3, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith " WE WILL notify Margaret L. Easton and Cottrell Bus Service Inc. that we have no objection to the em- ployment of Margaret L. Easton and we request that she be given all her former rights and privileges, includ- ing seniority and rate of pay, as they existed on Novem- ber 1, 1971. WE WILL make Margaret L. Easton whole for any loss of pay, including any reduction in her rate of pay, she may have suffered because we discriminated against her. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Cottrell Bus Service Inc. to discriminate against Margaret L. Easton or any other employee in violation of Section 8(a)(3) of the Act. Dated By LOCAL 1908, UNITED TRANSPORT UNION (Labor Organization) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, Ninth Floor, Federal Building, 111 West Huron Street, Buffalo, New York 14202, Telephone 212-264-3311. r