Local 630, Teamsters

LOCAL NO. 630, TEAMSTERS Produce, Refrigerated & Processed Foods & Industri- al Workers Local No. 630, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Ralph's Grocery Company) and Bobby H. Kelley . Case 21-CB-4572 February 19. 1974 DECISION AND ORDER BY MEMBIFRS FANNING, KENNLDY, AND PENEL.LO On October 9, 1973, Administrative Law Judge Irving Rogosin issued the attached Decision in this proceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and Respondent Union filed cross-exceptions and a supporting brief and in opposition to General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs 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 Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STA rEMENT OF r11E. CASE IRVING RoGosiN, Administrative Law Judge: The complaint, issued May 4. 1973, alleges that Respondent has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the Act.' Specifically, the complaint alleges that, on about January 29, 1973, Respondent, without prior notification regarding his obligations under the union-security provisions of a collective-bargaining agreement between Respondent and the Employer, and without affording him an opportunity to comply with said union-security provisions, demanded that Ralphs discharge Bobby H. Kelley, effective January I Designations herein are as follows The General Counsel, unless .otherwise noted or required by the context, his representative at the hearing, Produce. Refrigerated & Processed Foods & Industrial Workers Local No 630, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Respondent, Respondent Union. or the Union, Ralphs Grocery Company, Ralphs, the Employer or the Company. Bobby H. Kelley, an individual, the Charging Party, the National Labor Relations 117 30, 1973, because of his lack of good standing with Respondent Union; and on or about January 30, 1973, in response to Respondent's demand. Ralphs discharged said employee, thereby causing the Employer to discriminate against him in violation of Section 8(a)(3), and engaging in unfair labor practices within the meaning of Section 8(b)(2) of the Act. Respondent's answer, filed May 14, 1973, admits the procedural and jurisdictional allegations of the complaint, and further admits that it notified Ralphs, on or about the date alleged, that Kelley should be terminated for lack of good standing with the Union, but denies the substantive allegations of the complaint. Hearing was held on July 2 and 3, 1973, at Los Angeles, California. The General Counsel and Respondent were represented by counsel. All parties were afforded full opportunity to be heard. to examine and cross-examine witnesses, to introduce oral and documentary evidence relevant and material to the issues, to argue orally, and to file briefs and proposed findings of fact and conclusions of law. The parties declined to argue formally, but discussed some of the issues on the record. Pursuant to an extension to August 13, 1973. duly granted, briefs were timely filed by the General Counsel and Respondent. No proposed findings of fact or conclusions of law have been filed by any of the parties. Upon the entire record in the case2 and, based upon the appearance and demeanor of the witnesses, and the briefs, which have been carefully considered, I make the follow- ing: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The complaint alleges, Respondent's answer admits, and it is hereby found that, Ralphs Grocery Company is, and at all times material herein has been, a California corpora- tion, engaged in the business of operating a chain of retail grocery markets in said State of California, in connection with which it maintains a produce warehouse in Los Angeles. The complaint further alleges, Respondent's answer admits, and it is hereby found that, in the normal course of its business operations, Ralphs derives gross revenue in excess of $500,000 annually from said operations, and purchases and receives goods and products valued in excess of $50,000 annually, directly from points located outside the State of California. Upon the basis of the foregoing, and upon the entire record, it is hereby found that, at all times material herein, Ralphs has been an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2). (6), and (7) of the Act. Act, as amended (61 Stat 136, 73 Stat. 519, 29 U S.C sec. 151, et seq ). the Act, the National Labor Relations Board, the Board. The charge was filed and served on the parties on March 19, 1973 Unless otherwise stated, all events occurred in 1973 2 1 he General Counsel's unopposed motion, dated August 10, 1973, to correct the transcript of the proceedings in stated respects, is hereby allowed 209 NLRB No. 31 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. THE LABOR ORGANIZATION INVOLVED Produce, Refrigerated & Processed Foods & Industrial Workers Local No. 630, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Respondent Union herein, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES ARTICLE IV-DUES DEDUCTION The Employer agrees to withhold and to remit promptly to the Union an initiation fee and monthly dues from the pay check of each employee covered by this Agreement in accordance with a written order which the Union agrees to furnish signed by each individual employee.3 A. Introduction The record establishes that, at all times material herein, Ralphs and the Union have been parties to a collective- bargaining agreement, effective from May 17, 1971, to May 19, 1974, automatically renewable annually thereafter in the absence of specified notice, covering, among other employees, a group known as paper balers. Other ware- house employees are represented by Respondent Union under a separate agreement. The balers agreement, commonly referred to as the crate yard agreement, contains conventional union-security and dues-checkoff provisions. The pertinent provisions are as follows: ARTICLE I-UNION SECURITY A. The Employer hereby recognizes the Union as the sole collective bargaining agent for all employees of the Employer in the classifications set forth herein, in the Employer's plant located within the jurisdiction of the signatory Union. B. It shall be a condition of employment that all employees of the Employer covered by this Agreement who are members of the Union in good standing on the effective date of this Agreement shall remain members in good standing, and those who are not members on the effective date of this Agreement shall, on or after the thirtieth calendar day following the effective date of this Agreement, become and remain members in good standing in the Union. C. When new or additional employees are needed, the Employer shall notify the Union of the number and classification of employees needed. The Union shall promptly nominate applicants for such jobs. The Company shall choose between any nominees of the Union and any other applicants. No applicant will be preferred or discriminated against because of membership or non-membership in the Union, nor because of race, color, creed, sex, age or national origin. Nothing in the above shall restrict the Employer in his right to select the applicant who best meets the qualifications for the job to be filled. D. The Employer agrees to notify the Union prompt- ly of all terminations and hires. B. The Issues (1) Whether Respondent Union adequately notified Kelley of the union-security provisions of the collective- bargaining agreement, requiring membership in the Union after the 30 calendar day following his employment by Ralphs. (2) Whether Ralphs notified Kelley of the existence of the union-security provisions of the collective-bargaining agreement, and, if so, whether such notification relieved Respondent Union of its obligation to do so prior to demanding his termination. (3) Whether Kelley acquired information from sources other than Respondent Union regarding his obligations under the union-security provisions, and, if so, whether such information relieved Respondent Union of its obligation to so notify him. (4) Whether Kelley's membership in a sister Local Union, on withdrawal status, affected Respondent Union's duty to notify Kelley of his union-security obligations to Respondent, or placed him under a duty to inquire of the Union regarding said obligations. (5) Whether Ralphs had terminated Kelley's employ- ment at Respondent Union's request prior to the meeting of Respondent's executive board. (6) Whether the information furnished Kelley by union representatives at said meeting, concerning his union- security obligations, adequately satisfied the Union's fiduciary duty to notify Kelley of those obligations. (7) Whether, following his attendance at the meeting of the Union's executive board, Kelley made a legal tender of "periodic dues and initiation fees required as a condition of employment after thirty days." C. Sequence of Events Bobby H. Kelley was hired as a baler at Ralphs' produce warehouse, on May 1, 1972. He had been referred to Ralphs by Frances Elnora Lofton, a family friend and job counsellor at the Neighborhood Adult Participation Center, a Federally funded project. Although, according to Kelley, he had wanted a job as a warehouseman, a higher rated and more desirable job, for which he claimed to have been qualified by reason of 8 years previous experience, there was no opening available at the time, and he accepted a job as paper baler or crate yard and salvage worker. As has already been mentioned, the warehouse employees were covered by two separate labor contracts, both with the Union. Only the baling department contract, 3 The legality of the union-security provisions is not in issue. It is undisputed that the checkoff provision has not been enforced. LOCAL NO 630, TEAMSTERS 119 however, is involved here. When Lofton referred Kelley to Ralphs, she made no inquiry as to whether there was a union at the warehouse, testifying that she rarely made such inquiries of prospective employers, and that she did not do so in this instance. Warehouse Manager Bobby L. Pearce, who hired Kelley, testified that, in accordance with his usual practice, he probably told Kelley when he was hired that he would be required to join the Union after 30 days, though he admitted candidly that he had no positive, independent recollection of having done so. Nor was Pearce able to recall what response, if any, Kelley made. James A. Canfield, one of two balers employed on the day shift at the time Kelley was hired,4 and who instructed Kelley in the job routine, testified that he told Kelley the day he started, and several times afterward over a period of several weeks, that he would be required tojoin the Union after 30 days, and advised him to contact the Union. On the first occasion, Canfield showed Kelley his membership card, and furnished him with the name and address of the Union from his card. According to Canfield, Kelley made a note of the union address and said he would "take care of it." When Canfield later asked him whether he had joined, Kelley merely repeated that he would "take care of it." Shortly after Kelley started working, however, when Canfield went to the union hall to pay his dues, he was asked by one of the business agents whether there were any new employees working at Ralphs' warehouse. Canfield told the business agent that there was one, referring to Kelley. The business agent told Canfield to advise Kelley to contact the Union. Canfield did so on several occasions, without eliciting any response, and eventually dropped the matter. Kelley denied that Warehouse Manager Pearce had notified him at the time he was hired that there was a union-security contract covering the balers that Pearce had apprised him of his obligations thereunder. Kelley also denied that Canfield had notified him to the same effect. To the extent it may bear on the credibility of the witnesses, it is found, on the basis of Pearce's plausible and credible testimony as to his usual practice in notifying newly hired employees of their union-security obligations, and Canfield's equally credible testimony that he notified Kelley several times of the union-security requirements, that Kelley learned from these independent sources of the existence of a union-security contract covering baler employees at the time he was hired or soon afterwards It is well settled, however, that knowledge of the existence of a union-security contract, and the obligations thereunder, acquit-.d from independent sources other than the union, does not absolve a union of its fiduciary duty to notify the i Kelley was initially hired on the day shift He was later transferred to the swing shift (3:30 p in to midnight), and was working on that shift at the time of his termination As an employee obligated to pay union dues and initiation fees as a condition of employment. it is reasonable to assume that Canfield would have been concerned that newly hired employees should he required to comply with their union-security obligations as he was 6 Although Kelley at times feigned inability to comprehend questions, even when simply stated, he appeared to have no difficulty with polysyllabic words, such as "delinquency " He repeatedly prefaced his answers with such phrases as "If I am not mistaken," a tendency which cannot be discounted as a speech habit but rather as a patent effort to keep his options open if it employee of the financial obligations incumbent upon him.7 According to Kelley, he did not become aware that the baler department employees were covered by a union contract until about October 1972, some 6 months after the date of his initial hire. On September 16, 1972, Kelley's father died, and Kelley was absent from work for 3 days. Sometime after his return, he learned through a fellow- employee that he might be eligible for funeral leave under the collective-bargaining agreement .8 At the suggestion of his fellow-employee, Kelley broached the subject to the union shop steward, whom he identified merely as Art. The shop steward advised Kelley to take the matter up with the Union and, when Kelley asked him where the Union was located, handed him the Union's business card. Kelley admitted, however, that the shop steward said, " But I am going to tell you something. All of this is a union but it is under two different contracts. It is under a different contract. There is a contract for the warehouse and a contract for the paper baler department," and advised him to tell the union representatives in which department he worked so they would "know what to do." At or about 1:30 one afternoon during this interval, Kelley telephoned the union hall, and was referred to Business Agent Robert W. Ruby. After identifying himself as an employee at Ralphs produce department, Kelley asked Ruby whether he was entitled to funeral leave. Ruby told him that, according to the "retail contract," referring to the warehouse agreement, Kelley would be eligible for funeral leave. Ruby again asked him whether he worked in the produce department, and Kelley said that he did. When Ruby gave Kelley instructions in regard to the procedure in applying for these benefits, Kelley told Ruby that he had applied to the Company for funeral leave and that his request had been denied. Kelley then volunteered that there had actually been two deaths in his family, his father and stepfather. Ruby suggested that Kelley obtain a death certificate and submit it to the Company. Kelley later called at the union office, where he met Business Representative Salvador "Sal" Verduzco, vice president of the Local and a member of the executive board. When Kelley identified himself and explained the purpose of his visit, Verduzco withdrew briefly to procure a copy of the baler's contract, and returned with it soon afterward. According to Kelley, Verduzco read from the contract, and then told Kelley that the contract did not provide for funeral leave. Kelley testified that at no time during this interview did Verduzco ask him whether he was a member of the Union, discuss union membership, or notify him of any union obligation Verduzco's version of this incident did not differ became necessary to change his testimony. as it did on occasion His mien did not generally inspire credence 7 International Association of Bridge, Structural and Reinforced Iron Workers Union. Local 378. AFl: CIO (Judson Steel Corporation). 192 N LRB 1069 and cases cited. " According to Kelley, when his stepfather died earlier in the year, he made no effort to obtain funeral leave because he had not known about the union contract it is more probable. however, that he had not been alerted to the possibility that he might have been entitled to funeral leave under the contract As it turned out, the warehousemen's contract provided for funeral leave, but the baler's contract did not. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD materially from Kelley's. According to Verduzco, Phyllis Swenson, the Union's office manager, had reported to him that she was having difficulty with a member. Verduzco approached Kelley and asked him what his problem was. Kelley told him that he was seeking funeral pay from the Company. After eliciting from Kelley that he was em- ployed as a baler at Ralphs, Verduzco asked him whether he had a copy of the contract. Kelley replied that he did not, and Verduzco thereupon procured a copy and, reading aloud from the applicable provisions, told him that the contract merely covered health and welfare, and holiday pay, but no funeral leave. Kelley disparaged the contract, using a vulgar epithet, and stated that he had only accepted the job as paper baler because he was looking forward to a job as warehouseman. Verduzco explained that there was nothing he could do for him with regard to funeral leave as there was no provision for such benefit in the baler contract. Verduzco told him, however, that, as a member of the Union, he was entitled to a copy of the contract, and asked him if he wanted one. Kelley said nothing to disabuse Verduzco of his assumption that Kelley was a member of the Union. In fact, at one point in the discussion Kelley told Verduzco that he was a former member of Local 595, that he had had warehouse experience, wanted a warehouse job because it was more desirable, and was waiting to be placed in the warehouse. Kelley accepted a copy of the contract, which he took with him when he left, without divulging to Verduzco that he was not a member of Local 630. When he perused the contract later, according to Kelley, he read only the article dealing with funeral pay. Admittedly, the contract contains no provision for funeral pay, so it must be assumed that he at least, read enough of the contract to determine the absence of such a benefit. Later, according to him, allegedly after learning of the Union's action requesting his discharge, he read the dues checkoff provision. Admittedly, neither Verduzco, nor the person identified as the shop steward, notified Kelley of his union-security obligations. According to Kelley, he was at no time notified by any union official that he was required to join the Union or pay dues in order to retain his Job at Ralphs. Nor, for that matter, according to him, did any employer representative notify him prior to late in January 1973 of any such obligation. During the payroll period ending January 28, Kelley became ill while at work, and was absent Thursday, Friday, and Saturday of that week. On the last Thursday of January (January 25), or the first Thursday of February (February 1), according to Kelley (he could ^ot be more specific), he telephoned Warehouse Manager Pearce to inquire whether he was entitled to sick leave. Pearce told him, Kelley testified, that he was i,ot, because the Union had reported that he was "nine months behind" in his union dues . When Kelley asked, "What Union dues?" Pearce replied, "Well, you know that when you first started working here I told you you have to become a member of the union." Kelley contradicted Pearce, and insisted that Pearce had not so informed him. Pearce reiterated that he had told Kelley when he first started working there that he was required to become a member of the Union and pay union dues . Kelley persisted in his denial that Pearce had so informed him, and then protested that it was the Company's responsibility under the contract to deduct union dues. Then, according to Kelley, Pearce told him that he had received a letter from the Union stating that Kelley was to attend a board meeting the following Saturday, even stating the time as i p.m. Pearce told Kelley to call him back after the board meeting and let him know what happened . Pearce also told him at that time that he could return to work if he resolved his problem with the Union. Pearce conceded that Kelley called him about his sick leave, testifying that he probably told him that he was not eligible for such benefits under the contract. He denied any knowledge of any problem Kelley might have had with the Union or of any upcoming meeting of the executive board. In view of Kelley's patent confusion concerning the dates and sequence of his telephone conversations with Pearce; Kelley's self-contradictory and shifting positions on this and other crucial matters ; and Pearce's overall credibility, Pearce's version of this telephone conversation is credited. Notwithstanding Kelley's repeated insistence that he first learned of the existence of a union agreement covering the baler employees in the telephone conversation with Pearce regarding sick leave, Kelley admitted elsewhere that he had previously been told of the existence of the union contract by the shop steward, who had furnished him with the address of Union, and informed him that there were two separate contracts, one applying to the warehousemen and truckdrivers, and the other to the paper baler employees. Moreover , Kelley also learned of the baler labor contract in about October 1972, when he attempted to obtain funeral leave. Moreover, after first stating that he tele- phoned Pearce from his home while he was ill, and never returned to Ralphs afterward , he conceded that, despite his illness, he called at Ralphs on the day of his telephone conversation with Pearc, to obtain his paycheck , testifying that he talked with Pearce in person at 8 o'clock that morning. According to Kelley, he went to Ralphs for his paycheck even before his conversation with Pearce because of rumors he had heard, allegedly before he went home ill, through Al Bjorklund, his foreman, and unidentified fellow-employees, that he had been laid off for failure to pay union dues, and had been expecting a final paycheck momentarily . Kelley further testified that he did not receive his final paycheck on Thursday, the day he called at Ralphs, but received it when he returned the following day.9 According to Kelley, he had gone to the warehouse on Wednesday, the night before he telephoned Pearce, to obtain his paycheck , and talked to Foreman Bjorklund. It was then that Bjorklund told him of the union letter requesting his termination , although Bjorklund did not give him a copy of the letter. Astonishingly, Kelley testified that Bjorklund told him to look for the letter in Pearce's office, and that he searched for it on the desks in that office. 9 The paycheck, according to the Company's undisputed records (IBM 299 hours work, with absences due to illness Thursday, Friday, and computer printout of payroll register) for the payroll ending January 28, was Saturday in the gross amount of $100 57 and net amount of $85 76, covering a total of LOCAL NO. 630, TEAMSTERS Additionally, Kelley testified that he made "two or three trips to try to get the letter from the union and never did get it," while admitting that he did not ask Pearce about the letter because "it wasn't important for me to get the letter because he told me what it said." Again, Kelley testified that before talking to Bjorklund he made two or three visits to the warehouse office to search for the letter, calling each time in the morning, and questioning the secretaries about the letter. As to two of these visits, Kelley testified that they occurred before he became ill, that is to say, prior to January 25, the last day on which he worked. On this basis, the alleged rumors of his impending layoff for failure to pay his union dues would have occurred prior to the date on which the Union first became aware of his delinquency. Business Agent Ruby testified that in about October, he succeeded Verduzco in administering the union contracts. He arranged with the employers to have them furnish him with a roster of the names, social security numbers, and seniority (hiring) dates of employees covered by the contract. In November or December (Ruby could not be more specific), he received such a roster from Ralphs, and instructed the Union's office employees to check the names against membership rolls. This revealed that Kelley, hired on May 1, 1972, had not joined the Union. The record does not disclose when this was discovered, but on Friday, January 26, Ruby went to the crate yard at Ralphs' warehouse to contact Kelley.'(' When Ruby learned that Kelley was absent due to illness, he left a union business card with Canfield, and asked him to have Kelley contact him at the Union on the following Monday before reporting for work. Next day, Canfield gave Kelley the union business card, and relayed Ruby's message. When Kelley failed to appear on Monday, January 29, Ruby instructed Office Manager Swenson to prepare a letter to the Company requesting Kelley's termination. Ruby hand-delivered the letter to Pearce, told him that Kelley was not in good standing with the local, and should not be permitted to work thereafter. The letter, on union stationery, dated January 29. 1973, addressed to Ralphs Crate Yard at the warehouse, and signed by Archie Neal, secretary-treasurer and Bob Ruby, business representative, read as follows: A check of our records discloses that as of 1 -29-73 the following named are not in good standing with Local 630, and are to be considered as unqualified personnel. I. B. J. Kelley $ 104.00 2. 3. 4. 5. Therefore, unless by not later than 1-29-73. each presents to you written evidence that he is in good standing, we request that you not permit him to work I- 30-73 and thereafter. 10 Ruby testified that with a membership of 7,500, it was impractical to police the union-security provisions of the contracts and that the Union relied to a large extent on employees in the bargaining unit to notify newly hired employees of their union-security obligations This, of course, does not relieve the Union of its responsibility in this regard or satisfy its 121 Ruby testified that the sum of $104 represented an initiation fee of $40 and 8 months' dues, at the rate of $8 per month. On Thursday, February 1, Kelley reported for work for the first time since his illness. Foreman Bjorklund had removed Kelley's timecard on instructions from Pearce. According to Bjorklund, he gave Kelley a copy of the Union's letter, and told him that he was not terminated but would not be permitted to work until he "straightened" himself out with the Union. Kelley denied receiving a copy of the Union's letter, testifying that he saw it for the first time at the hearing. He admitted, however, that he had learned of the letter from Bjorklund earlier. It is found that Bjorklund furnished Kelley with a copy of the letter at this time. Next day, Friday, February 2, Kelley went to the union hall, showed Ruby the letter, and told him that he could not pay the money. Ruby advised him to appear before the executive board meeting, scheduled for the next day, Saturday, February 3. at 1 o'clock if he wished to present his case. The following day, February 3, Kelley, accompanied by Lofton, the job counsellor, and Kelley's brother, went to the union hall where Kelley was to appear before the executive board. Lofton and Kelley's brother remained outside when Kelley's case was called. Asked to state his business before the executive board, Kelley said, "Well, they say I don't belong to any union." In response to a question as to why he had never made an effort to "get squared away" with the Union, Kelley said that he had been unaware that there was a union contract, and had never been asked to join. According to Business Agent William H. Benson, a member of the executive board, Kelley said that he saw no reason to join because he was receiving no benefits from the Union.il Furthermore, Kelley asserted, Ralphs should have withheld any union dues from his paycheck. When questioned about any former union affiliation, Kelley revealed that he had been a member of Teamsters Local 595, from which he held a withdrawal card, and stated that he had "worked on practically every dock in Los Angeles." Asked whether he was not aware, as a member of an affiliated local on a withdrawal card, that he was entitled to a transfer, Kelley said that he was not. Kelley acknowledged to the executive board that he had seen a copy of the union contract, which he had discussed with one of the business agents, and that he had told him that "it wasn't a very good contract to begin with." Finally, Secretary-Treasurer Neal, who presided over the meeting, told Kelley that he owed a total of $104, and asked him if he had the money to pay it, Kelley acknowledged, in response to a suggestion that the Union had learned from Warehouse Manager Pearce that Kelley had accumulated $600, that he had had the money, but had intended to use it to go into business for himself.12 A recess was called and Kelley was excused. During the recess, Kelley reported to Lofton what had fiduciary duty ii lliis would be consistent with the fact that Kelley had sought and been denied funeral and sick leave 12 According to Warehouse Manager Pearce, Kelley had told him this some months before his termination. 122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD occurred. Observing Benson in the outer office, Lofton asked him what Kelley's chances were of keeping his job. Benson was noncommittal. When the meeting reconvened, and Kelley was called in, Neal told him that he could acquire good standing by paying $112, which the Union would permit him to pay in three weekly installments, two, of $40 each, a week apart, and the balance of $32 the following week. Kelley protested that he did not have the money. Reminded about the $600 he had mentioned, Kelley said he no longer had the money. He was told that the Union would issue him a clearance so that he could return to work the same day upon payment of $40. Kelley repeated that he did not have the money. Neal asked him if he could pay the $40 the following Monday. Kelley said, "I don't know; I don't have the money." Neal told him that if he made the $40 payment, he would be given a clearance to go to work.i3 When Kelley left the meeting, he told Lofton of the executive board's decision. Benson came out of the meeting, anticipating that Kelley, or others whose cases had been heard, might want to pay him some money. When Lofton saw Benson, she asked him his name. As he did not have a business card with him, he wrote his name and office telephone number on a slip of paper. According to Kelley, Benson advised him to pay the $40, and told him that if he did, he, Benson, would "guarantee" that Kelley would be the next man to "go into the warehouse." Lofton testified that Benson said that he wanted Kelley to stay on the job so that he could secure employment in the warehouse . Benson conceded that one of the persons in Kelley's group asked him what Kelley's chances were for such a job, and Benson said they were as good as anyone's, adding that Kelley was eligible for the job under the minority program. Lofton agreed to loan Kelley $40, and the Monday after the executive board meeting, February 5, accompanied Kelley to union headquarters to "pay his dues." The events which followed are in sharp conflict. In Kelley's version, he told the girl at the window, who he insisted was Phyllis Swenson, the office manager, that the executive board had decided that he could pay $40 to be reinstated to his job. The clerk obtained a card from a filing cabinet and, after examining it, told Kelley that he had to pay "$40 twice" or $80. Kelley placed $40 in cash on the window ledge but the office employee refused to accept that amount, contending that he was to pay $80. Lofton advised Kelley to consult the National Labor Relations Board. The clerk remarked that they were at liberty to do so, offering to supply them with the telephone number, and Kelley and Lofton left. In Respondent Union's version, it was Annette Hakala, an office clerk, who actually waited on Kelley. Swenson, as was her custom, had notified the cler::s of the action taken by the executive board, and told them that some men, including Kelley, would be coming in for clearance on Monday. She confirmed that Kelley presented himself at the window, accompanied by Lofton, and identified himself by name. Hakala then went to the files and found a "dummy application" for Kelley.14 After examining the entry on the back of the card, indicating the amount required to obtain clearance, she returned to the window and told Kelley that he could obtain a clearance immedi- ately on payment of $40, and that he would be required to pay $40 the following week, and the balance of $32 a week later. The initial clearance, she explained, would permit him to work for the remainder of the week. Upon payment of an additional $40 the following week, he would be issued another clearance, and with the payment of the balance of $32 a week later, he would receive his final clearance. Kelley told her that he had no intention of paying anything, that he thought Ralphs should have withheld his union dues from his paychecks. She rejoined that he should have examined his paycheck stubs to verify whether Ralphs had been checking off his dues, but that, in any case, it was his responsibility to see that his dues were paid. Hakala categorically denied that Kelley offered or tendered her any money, or that she saw any currency placed on the counter, and further denied that she ever refused any money from him. Specifically, she denied demanding $40 twice or $80, stating that the entry on the back of the dummy application, as well as the instructions relayed to her by Swenson from the executive board, clearly authorized her to accept an initial payment of $40, a fact borne out by the minutes of the executive board meeting. Although Swenson would not ordinarily have become involved in what appeared to be a routine matter, when she heard the commotion, she joined Hakala at the window. Swenson generally corroborated Hakala's testimony regarding this episode. Although she admitted stating, in a pretrial affidavit to a Board agent, "I heard Annette [Hakala ] advise him that he was to pay $40 twice and one $32 payment per action taken by the executive board," she testified that all she meant by the statement in her affidavit was that Kelley was required to pay two successive weekly installments of $40, and a final payment of $32. According to Swenson, when Hakala explained this to Kelley, he said that he could not make the payments. Swenson told him that the office clerks were under instructions of the executive board to accept the dues in installments, as indicated, and that if they did not abide by those instructions, they could be subject to discharge. She denied hearing Hakala used the words, "$40 twice," or mention an amount of $80, and denied that Kelley or anyone on his behalf offered or tendered the sum of $40 in cash or otherwise, or placed any money on the counter. In fact, Swenson testified, if the sum of $40 had actually been tendered to Hakala, there could have been no occasion for her, Swenson, to go to the window, because Hakala had been under instructions to accept the sum of $40 as an initial installment. Despite Lofton's testimony that she loaned Kelley $40, 13 Minutes of this executive board meeting reveal, with regard to Kelley's dues a total of $11200 payable in three installments Motion carried. case The additional $8 presumably represented dues for the month of February Case of Bobby R (sic) Kelley being suspended Subsequent to i4 Since Kelley had not actually applied for membership, his name, discussion of the case by the Board a motion was made and seconded address, and other pertinent information were recorded on a membership to accept Bobby Kelley for membership for initiation fee plus back application form. LOCAL NO. 630, TEAMSTERS 123 and accompanied him to the union hall to make certain that he paid the money, as well as to act as a witness in the event of a dispute, she did not testify that she actually saw Kelley offer or tender the amount in cash or place any money on the window sill. She testified merely that after she and Kelley left the union hall, he immediately returned the $40 to her. Significantly, both Kelley and Lofton testified that they dealt exclusively with Swenson; that no other office clerk was present during the entire discussion at the window; and that they did not even recognize Hakala when she was identified at the hearing. Considering that Swenson, the office manager, did not ordinarily become involved in routine applications For clearances , and intervened on this occasion only because of the commotion at the window, Kelley's and Lofton's testimony has been seriously impugned. In deciding, however, whether Kelley did, in fact, tender the $40, which the Union had agreed to accept as an initial payment, the question naturally arises as to what Kelley's purpose was in going to the union hall if it were not to make the payment. While one can only speculate, it should be borne in mind that , despite his asserted willingness to comply with the arrangement which the executive board had offered him, Kelley manifested ambivalent feelings about joining the Union. He had indicated at his hearing before the executive board that he had derived no benefits from the Union; he had admittedly stated his disapproval of the union contract to the business agent who had furnished him with a copy; he had argued that his employer should have checked off his union dues (al- though he had never authorized the employer to do so). and had protested that he did not have the money and could not procure it unless he were permitted to work. After counselling Kelley to resort to the National Labor Relations Board, Lofton allegedly loaned him the $40, and accompanied him to the union hall, ostensibly to make certain, according to her, that he made the payment, as well as to act as a witness in the event of a dispute. Yet nothing had occurred up to that time even to suggest that there was any controversy regarding the amount of Kelley's dues delinquency or the method of payment. Whatever may have impelled him to change his mind, it can only be surmised that Kelley entertained second thoughts about acquiring good standing in the Union, and sought to confuse the issue by claiming that the office clerk had refused the $40 amount and demanded $80, contrary to her specific instructions. It is, therefore, not unlikely that Kelley's true purpose in going to the union hall, and having Lofton accompany him to act as a witness, was to attempt to lay a predicate for the filing of an unfair labor practice charge against the Union. Be that as it may, without speculating about his real reason for presenting himself at the union hall, and even assuming that he actually had the $40 in his possession at the time, the preponderance of the credible evidence, especially the mutually corroborative testimony of Hakala and Swenson, does not support a finding that Kelley made a tender of the requisite amount to acquire good standing in the Union. It is found that no such tender was made. Next day, Tuesday, according to Kelley, he went to Lofton's office to obtain a "referral slip" to the National Labor Relations Board. At Lofton's suggestion, Kelley placed a call to Business Agent Benson, while Lofton listened in on an extension . Kelley allegedly told Benson that he had gone to the union hall on Monday to pay the $40 but that it had been refused due to a misunderstanding that he was required to pay "$40 twice." At that point, Lofton testified, she hung up the extension phone . Neither Kelley nor Lofton had the $40 by that time , but Kelley testified that he called Benson to find out whether Benson could "work out something," such as an "extension," and to have him confirm that he had attempted to pay the $40. According to Kelley , Benson told him to "try to get the $40," and he would be at the union hall to see that the money was accepted . Kelley did not follow Benson's suggestion because, according to Kelley, he no longer had the money and was unable to borrow it. Benson, however, testified that he received a call from Kelley, but that he was certain it was on Friday, rather than Tuesday, because under his work schedule he would not have been in his office on the Tuesday Kelley claimed he called. In any event, Benson denied that Kelley told him that he had attempted to pay the $40 at the union hall and that it had been refused, and further denied telling Kelley that if he brought that sum to the union hall, he would be there personally to see that it was accepted. Benson denied that any such conversation took place . According to him, Kelley called to ask whether he could appeal the executive board's decision and how he could proceed . Benson told him that he would have to pay his back dues before anything could be done. During the conversation, Kelley told Benson that he had wanted a job on the produce warehouse dock but that he felt that Ralphs was prejudiced against him, and had refused to hire him in that capacity ostensibly because of a back condition , which had been incorrectly diagnosed due to an inadvertent substitution of X-rays. Benson told him that if there was an opening for which he was qualified, there was no reason he could not have it. particularly in view of the "minority program," but that the Union could not represent him unless he paid his delinquent dues. It is evident that Kelley called Benson primarily to find out whether there was any way he could take an appeal from the decision of the executive board, and to enlist his aid in obtaining union clearance , without the necessity of laying out any immediate funds. It is equally apparent that Kelley was eager to obtain a warehouse job and, in light of Kelley's repeated mention of the subject, it is plausible that Kelley would have broached the subject again. On the other hand , there appears to be no logical reason for Benson to have denied that he offered to make certain personally that the Union accepted the $40 from Kelley if he could raise it, if he actually made the statement. If anything, such an offer would have tended to mitigate the action taken by the Union . Moreover, Lofton's testimony that she eavesdropped on the telephone conversation between Kelley and Benson only until she allegedly heard Kelley say that he had attempted to make the $40 payment at the union hall, and it had been refused, and then hung up, appears to be a contrived attempt to corroborate Kelley's testimony regarding the purported tender. 124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under all the circumstances, and based primarily on the appearance and demeanor of the witnesses involved, it is found that Kelley did telephone Benson but only for the purpose of ascertaining whether he could appeal the decision of the executive board, and what steps he could take to obtain some further leniency from the Union. It is further found that the evidence regarding this telephone conversation furnishes no corroboration for Kelley's contention that he made a tender of the $40 to the Union on the day in question, as he maintained. On about February 5 or 6, according to Warehouse Manager Pearce, presumably after Kelley and Lofton went to the union hall, Kelley called Pearce and asked him "what was up." Pearce reiterated that the Union had requested his termination because he was not in good standing. Kelley asked him what he ought to do about it, and Pearce told him to make his peace with the Union, stating that as soon as he furnished proof of good standing, Pearce would put him back to work. There was no showing that Kelley told Pearce that he had attempted to do so but had been denied. Pearce also testified, without contradic- tion, that during one or more telephone conversations the same week, Kelley told him that he had no intention of paying his union dues or of returning to work at Ralphs. Kelley has not since paid or tendered the sum of $112, representing the initiation fee and dues for the month ending February, or any part of said sum and, on February 14, 1973, was formally terminated. Issues; Contentions; Concluding Findings of Fact Section 8(a)(3) of the Act proscribes discrimination in regard to hire or tenure of employment to encourage or discourage membership in a labor organization. It does, however, permit union-security agreements, within the limitations of that section, with the proviso that employees may not be discriminated against under such an agree- ment, except for failure to tender periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership. Under the correlative provision, Section 8(b)(2), a labor organization commits an unfair labor practice when it causes or attempts to cause an employer to discriminate against an employee in violation of Section 8(a)(3) or to discriminate against an employee with respect to whom membership in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership. In applying these provisions the Board has held, with court approval, that as a precondition to demanding the discharge of an employee for delinquency in payment of union dues and initiation fees, the Union is under a fiduciary duty to deal fairly with the employee, requiring at a minimum "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." 15 See also N.L.R.B. v. Local 182, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 401 F.2d 509, enfg. 156 NLRB 335, as amended, 169 NLRB 1143, cert. denied. 314 U.S. 213; International Association Bridge, Structural and Reinforced Iron Workers Union, Local 378, AFL-CIO (Judson Steel Corporation), 192 NLRB 1069, and cases cited. N. L. R. B. v. Hotel, Motel and Club Employees' Union, Local 568, AFL-CIO (Philadelphia Sheraton Corp.), 320 F.2d 254, 258 (C.A. 3, 1963).'5 Furthermore, the Board and the Courts have held that the Union's fiduciary duty to notify the employee of his obligations under the union-security provisions of the contract is not satisfied by the fact that the employee may have acquired independent knowledge of the existence of the union-security clause and his obligations thereunder.16 It must be assumed, however, that the policy of the Board was never intended to be so rigidly applied as to permit a recalcitrant employee to profit from his own dereliction in complying with his obligations as a union member on withdrawal status, or under circumstances such as those presented here. The question here is whether the special and unusual circumstances of this case justify a departure from the line of cases in which unions have been found to have violated Section 8(b)(2) by failing to notify the employee directly of his union-security obligations and affording him a reasona- ble opportunity to comply, before requesting his termina- tion. Cases on which the General Counsel relies have usually involved situations where employees have attempt- ed to acquire union membership, paid or attempted to pay or tender initiation fees and union dues, which were refused, or where membership may have been refused for invidious reasons.'7 Summarizing the salient facts, the record discloses that Kelley was hired at Ralphs on May 1, 1972. There was then in force and effect a valid union-security contract, requiring membership in the Union as a condition of employment after 30 days. While employed by another company in the Los Angeles area in 1970, Kelley had been a member of Local Union 595, a sister local, affiliated with the International Brotherhood of Teamsters. On March 31, 1970, he obtained an honorary withdrawal card from that Local. Under the International constitution, the pertinent provisions of which were excerpted on the back of the withdrawal card, a union member on withdrawal is required "[i]mmediately upon going to work, or before if practicable, [to] make a request" for a transfer from the Local of which he is a member to the Local into which he is seeking to transfer. "Within forty-eight (48) hours after a member has received a transfer card he shall deposit the same with the Local Union to which he seeks to transfer, and upon such deposit the transfer shall become effective." (International constitution, article XVIII, section 3(a). By complying with the provisions regarding transfer, the member is exempted from paying an initiation fee to the new Local. Failure to comply, however, results in the loss of this benefit. Had Kelley complied with his union obligations, and deposited his withdrawal card with Respondent Union, it is obvious that he would have been apprised of the existence of the union-security contract with Ralphs and of 16 International Association of Bridge, Structural and Reinforced Iron Workers Union, Loca1378, AFL-CIO, supra, and cases cited. 17 See, e.g., International Association of Bridge, Structural and Reinforced Iron Workers Union, Local 378, AFL-CIO (Judson Steel Corporation), supra, and collected cases. LOCAL NO. 630, TEAMSTERS his financial obligations thereunder. Kelley admitted at the hearing before the executive board that he was aware of his obligation to deposit his withdrawal card upon going to work for an employer under contract with a Local affiliated with the International Brotherhood 18 His only reason for not doing so, he contended, was that he was unaware that Ralphs was under a contract with the Union. The record indisputably establishes that Kelley was aware, at least as early as October 1972 (when he attempted to obtain funeral leave), if not soon after he was hired (through Warehouse Manager Pearce and fellow- employee Canfield), not only of the existence of a union contract but of the union-security provisions thereunder. Moreover, when he went to the union hall in October, he was provided with a copy of the contract which clearly set forth the union-security provisions on the very first page (of a mere 5 1/2 page document) and, despite his denial that he read any of the provisions, excepting those relating to "funeral leave" (or the absence of such provision), and the health and welfare provisions, he admittedly read the checkoff provisions (at a much later date, according to him) and insisted, in fact, that his union dues should have been checked off, although he had never authorized it. Granting that, under decided cases, these circumstances may not have relieved the Union of its duty to notify Kelley of his financial obligations before requesting his termination, the fact is that Kelley had actual knowledge, albeit from sources other than the Union, and under his obligations as a union member on withdrawal, was duty bound to deposit his withdrawal card with Respondent Union. At the very least, the knowledge he acquired of the existence of the union-security contract, coupled with his obligation to deposit the withdrawal card, imposed a duty on Kelley to make further inquiry of the Union. Thus, the plight in which he found himself was due as much to his failure to abide by his union membership obligations as to the Union's neglect in notifying him of his union-security obligations. Kelley had worked for Ralphs some 9 months before the Union discovered that he had never complied with the union-security requirements. Whatever may be said re- garding the Union's lack of diligence in policing the union- security provisions of the contract, it is obvious that, by the simple act of depositing his withdrawal card and accom- plishing his transfer to the Union, he would have obviated all his problems arising from any alleged ignorance of his financial obligations under the union-security provisions. Instead, he wilfully and deliberately sought to evade his union-security obligations, on the pretext that he had never been notified directly by the Union of the existence of a union-security contract, and his financial obligations thereunder. Yet. at the same time, this did not deter him from seeking benefits under a contract, a copy which had been furnished him, which he claimed was not binding on him. At the hearing before the executive board, he is This, despite his denial that he had ever read the hack of the withdrawal card, or that he had knowledge of its contents In any event, this would not relieve Kelley of his union obligations "The articles of agreement of a labor union , whether called a constitution, charter, by laws, or by any other name, constitute a contract between the union and its members, as well as a contract between the members of the union, which the courts will enforce " 48 Am Jur 2d 103 Members of a labor union are hound to 125 protested that he had received no benefits under the contract, and saw no reason he should join the Union. Moreover, despite his claim that he had been totally unaware of the existence of the union-security contract, he asserted that his union dues should have been checked off from his wages. Notwithstanding Kelley's attitude, and even after for- mally requesting his termination , Respondent Union afforded him an opportunity to acquire good standing by permitting him to satisfy his delinquency in installments, and agreeing to grant him clearance to return to work on payment of the initial installment , with similar clearances upon payment of each succeeding installment. The elaborate strategem by which Kelley claimed to have made a tender of the initial payment appeared wholly contrived and unconvincing. The record, taken as a whole, fairly establishes that Kelley engaged in a calculated attempt to evade the union- security obligations of the contract, as long as he was able to do so, and until it was discovered that he was not a member in good standing. It has been said that the protection of Section 8(b)(2) was never intended to be extended to "free riders," a phrase which aptly describes Kelley's status during his employ- ment at Ralphs.19 Furthermore, it would be grossly unjust and inequitable to permit Kelley to profit from his own disregard of his obligations as a union member on withdrawal status. It is, therefore, found, upon the basis of the foregoing and the entire record , and under the special circumstances of this case, that, by causing or attempting to cause Kelley's discharge, on January 29, 1973, Respondent has not engaged in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act, and it will, therefore, be recommended that the complaint be dismissed. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Ralphs Grocery Company, the Employer herein, is now, and at all times material herein has been, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2). (6), and (7) of the Act. 2. Produce, Refrigerated & Processed Food & Industri- al Workers Local No. 630, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Respondent Union herein, is. and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Union has not engaged in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act Upon the basis of the foregoing findings of fact and know the constitution of their society Lawlor v Lowe, 235 U S 522 VI "IT]he congressional policy underlying Section 8(h)(2) and [Section 8(a)(3)(B ) l was not to protect free riders against excessive union demands, but rather to insure that employees who were willing to pay their financial obligations were not discharged for improper reasons." Great Lakes Dnrtnu, Seafarers ' International Union of North America, AFL-(7O (Tomlmcon Fleet Corporation), 149 NLRB 1114,1121 126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conclusions of law, and upon the entire record, and ORDER20 pursuant to Section 10(c) of the Act, the undersigned makes the following recommended: The complaint is dismissed in its entirety. 20 in the event no exceptions are filed as provided by See 102 46 of the 102 48 of the Rules and Regulations, be adopted by the Board and become Rules and Regulations of the National Labor Relations Board, the findings, its findings, conclusions, and order, and All objections thereto shall be conclusions, and recommended Order herein shall, as provided in Sec deemed waived for all purposes