Alcoa Construction Systems, Inc.

452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alcoa Construction Systems, Inc. and Randy L. Ward, United Brotherhood of Carpenters and Joiners of America, Millmen's Union Local No. 338, AFL- CIO and Randy L. Ward. Case 19-CA-6306 and 19-CB-2013 July 15, 1974 DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On March 21, 1974, Administrative Law Judge Richard D. Taplitz issued the attached Decision in this proceeding. Thereafter, Respondent Employer filed exceptions and a supporting brief and the Gener- al Counsel filed a brief in answer to the Respondent Employer's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and 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 Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent Employer , Alcoa Construc- tion Systems, Inc., Kent, Washington , its officers, agents, successors , and assigns, and Respondent Union, United Brotherhood of Carpenters and Join- ers of America, Millmen's Union Local No. 338, AFL-CIO, Seattle, Washington , its officers , agents, and representatives, shall take the action set forth in the said recommended Order. ' In adopting the Administrative Law Judge's Decision. Member Fanning finds it unnecessary to pass on or consider the alleged breach of the Union's duty of fair representation as an alternative basis upon which the violations miiht be found The Respondent Employer's assertion that it has ceased operations at the plant in question and that this requires a modification of the Board's Order is a matter which we will leave to be resolved at the compliance stages of this proceeding DECISION STATEMENT OF THE CASE RICHARD D. TAPLITZ, Administrative Law Judge. This case was tried at Seattle, Washington, on January 15, 1974. On March 20, 1973, Randy L. Ward, an individual, filed a charge in Case 19-CA-6306 against Alcoa Construction Systems, Inc., herein called the Company,' and a charge in Case 19-CB-2013 against United Brotherhood of Carpen- ters and Joiners of America, Mtllmen's Union Local No 338, AFL-CIO, herein called the Union. An order consoli- dating cases and a complaint based on the charges issued on November 30, 1973. The complaint alleges that the Com- pany violated Section 8(a)(1) and (3) and the Union violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended. Issues The primary issues are: 1. Whether the Union violated Section 8(b)(1)(A) and (2) of the Act by causing the Company to discharge Randy L. Ward pursuant to a union-security clause under circum- stances: (a) where the union-security clause was enforced in an unlawful manner, or (b) where the Union's actions con- stituted a failure to represent Ward fairly. 2. Whether the Company violated Section 8(a)(3) and (1) of the Act by complying with the Union's demand that Ward be discharged. All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross-examine witnesses, to argue orally, and to file briefs. Briefs, which have been carefully considered, were filed on behalf of the General Counsel, the Company, and the Union. Upon the entire record of the case, and from my observa- tion of the witnesses and their demeanor, I make the follow- ing: FINDINGS OF FACT I THE BUSINESS OF THE COMPANY The Company, a Delaware corporation, is engaged in the manufacture of bathroom , kitchen , and service modules at various locations in the United States. Until about Novem- ber 1973, one of those locations was at 7819 South 192d Street, Kent, Washington , herein called the plant. During 1972, which was a representative year, the Company sold in excess of $50,000 worth of goods to customers across state lines and purchased and received in excess of $50,000 worth of goods and services from out-of-state suppliers . The Com- pany is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 1 The Company is referred to by the parties at times as Alcoa Housing 601 or Housing 601 212 NLRB No. 62 ALCOA CONSTRUCTION SYSTEMS INC 453 11 THE UNION The Union is a labor organization within the meaning of Section 2(5) of the Act. 111 THE ALLEGED UNFAIR LABOR PRACTICES A. The Events 1. The setting Ward was employed by the Company in February 1971. On May 19, 1971, the Company and the Union entered into a collective-bargaining agreement effective from May 1, 1971, to April 30, 1974. Under the agreement, the Company recognized the Union as the exclusive representative of its production and maintenance employees. The contract con- tains a union-security clause 2 and a checkoff clause.3 It has been the longstanding practice, pursuant to an under- standing between the Company and the Union, for the Company to deduct and remit dues from the first paycheck in each month for the dues which have accrued the previous month. However, when an employee is delinquent from previous months, the practice has been for the Union to apply the checked-off dues to the earliest months' delin- quency All of the employees in the bargaining unit have signed dues-checkoff authorizations. Ward Joined the Union and, on May 24, 1971, signed his checkoff authorization. That authorization has never been revoked.' 2 Art V sec 5 01, provides "An employee who is a member of the Union at the time this Agreement becomes effective shall continue membership in the Union for the duration of this Agreement to the extent of paying the membership dues uniformly required as a condition of acquiring or retaining membership in good standing in the Union " Sec 5 02 provides "An employee, who is not a member of the Union at the time this Agreement becomes effective, or he is employed after the effective date of this Agreement, shall become a member of the Union within ten (10) days after the thirtieth (30th ) day following the effective date of this Agreement or within ten (10) days after the thirtieth (30th) day following employment , whichever is later , and shall remain a member of the Union to the extent of paying an initiation fee and the membership dues uniformly required as a condition of acquiring and retaining membership in good standing in the Union, whenever employed under, and for the duration of this Agreement " Sec 5 03 provides "The Union shall accept into membership each em- ployee covered by this Agreement who tenders to the Union the periodic dues and initiation fees uniformly required as a condition of requiring and/or retaining membership Art XXI. sec 21 01, provides that where individually authorized in writ- ing by an employee, the employer will "deduct from the pay of the employee such uniform initiation fee and monthly dues as are required from all appli- cants and members of the Union " Under that provision, the employer is to remit promptly each month the amounts deducted together with a list of names of all employees, showing the amount'deducted from each It further provides "Any employee from whom deductions are due for the current month, who does not have any pay due on the payroll from which deductions are made, will have deductions made from the next payroll from which deductions are made in which the employee receives any pay together with an' amounts that may be due for the month in which deductions are made" Though Ward's employment was terminated in June of 1971, he was subsequently rehired All parties have treated Ward's checkoff as a continu- ing one, and there is no allegation that the hiatus in employment invalidated the checkoff authorization 2. The first suspension of Ward from union membership At the end of June 1971, Ward's employment with the Company was terminated. In July 1971, his June dues were paid so that he was current with his union dues through the end of June. In January 1972, he was rehired. From July through December 1971, Ward paid no dues to the Union nor did he take out a withdrawal card. During that period he was sent two notices of arrearage. The first was on Sep- tember 30, 1971, before he became 3 months in arrears.5 A second notice was sent on December 15, 1971, pursuant to section 45L of the constitution of the United Brotherhood of Carpenters and Joiners of America, the Union's parent organization, herein called the International. That section reads. A member who owes a Local Union five months' dues shall be notified by mail at the last known address by the Financial Secretary not later than the 15th day of the sixth month of said arrearage Unless dues are paid by the end of this sixth month, his name shall be strick- en from the list of membership without a vote of the Local Union. Ward was suspended from membership in the Union on December 31, 1971, because of nonpayment of dues. On January 21, 1972, John L. Carr, the Union's financial secretary-treasurer,6 wrote to R. E Livingston , the general secretary of the international , as follows: On our last monthly report , showing December activi- ty, I had marked Randy Ward Suspended for non pay- ment of dues Randy was working for Housing 601, one of our plants with a payroll dues deduction, and was terminated in June. He was notified about the arrears, but neglected to pay his dues In December he was re-hired by the same firm and they deducted his dues in December, for one month. However, due to their bookkeeping system, we do not receive the December dues deduction until the middle of January. Had this reached us in December, Randy would still be in arrears but not suspended For this reason we are requesting that you not remove him from the rolls. We will notify him that the back dues must be paid imme- diately. Please let us know if this meets with your approval. On the same day, January 21, 1972, Carr wrote to Ward I as follows: Your [sic] were admitted into this Local Union under Sec 45K of the International's constitution provides "A member who owes three months' dues shall not be entitled to the Password , or a seat, or office in any meetings of a Local Union or District Counsel and is not in good standing" Sec 45B provides "Monthly dues shall be charged on the books on the first of each month , but a member does not fall in arrears until the end of the month in which the member owes three months' dues Carr is the chief executive officer of the Union The complaint alleges, the answers admit. and I find that he is an agent of the Union 7 Ward acknowledged receiving this letter 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Organizational agreement along with the other member working at 601 at the time the Union Agree- ment was signed. According to our records, you were terminated or quit in June. Our records also show you were notified by mail when you were three months behind in your dues and again when you were 6 months behind. According to the international, anyone six months behind is dropped from membership and must return to the Brotherhood by the payment of a full initiation fee. We received one months dues for you along with the rest of the payroll deductions and have to apply this to your July dues. In order to be a member in GOOD STANDING, you will have to pay your other five months back dues immedi- ately. You owe $36.75 which is much less than a full initiation fee of $150.00 While you were dropped from membership on the last day of December, we have written the international to re-instate you and this is the only provision they make. You must square your arrears immediately. Please let us hear from you soon. If you have any questions, please call this office. We are open from 4.00 P.M. to 7:00 on meeting nights. Monday January 24 is our next meeting. Check in with John Carr then. On January 31, 1972, the International wrote to Carr stating that if Ward paid all his back dues, his membership records would be adjusted. In February 1972, Ward paid his back dues and was reinstated to membership without the need to pay a new initiation fee. 3. The second suspension from membership and the discharge Ward, along with a number of other employees, was laid off in July 1972. At the time, he was fully paid up in dues through June 1972. Dues are $7.35 per month. He and the other employees were recalled on December 18, 1972. Dur- ing the interval of layoff, Ward paid no dues and did not take out a withdrawal card.8 On September 30, 1972, the Union sent an arrears notice to Ward. On December 14, 1972, a second arrears notice was sent. The second notice contained a quote from section 45L of the International constitution, stating that at the end of 6 months, membership would be lost. Ward did not re- ceive either of these notices. The second notice was returned to the Union with the notation from the post office that Ward had moved and left no address? The second notice was sent to the same address as the Union's January 21, 1972, letter which had been received by Ward. In his brief, counsel for the General Counsel states General Counsel concedes Local 338's right to demand payment of dues for a layoff period where , as here, employees on layoff accrue vacation pay and retain recall rights under the contractual seniority clause Indus- trial Rddio Lodge No. 1561, International Association of Machinists and Aerospace Workers, AFL-CIO (The Bendix Corporation), 205 NLRB 770 9 Sec 441 of the International constitution requires members to keep the Union informed of current addresses Ward credibly testified that he was never given a copy of the constitution On December 31, 1972, Ward was suspended from mem- bership The week before the December 1972 callback, Carr spoke to company officials about the payment of dues. He told them that the employees were expected to have a month's dues paid prior to the end of December and that each month after that could be paid I or 2 months at a time until they were up to date.to In January 1973, Ward, along with a number of other employees, attempted to attend a union meeting. They were barred at the door because of dues arrearages, but after speaking with Carr, they were allowed to participate in the meeting. Some time in January, Carr came to the plant and met with a number of employees, including Ward. Carr told the employees that those of them who did not pay their dues during the layoff could make up the payments and they would not be terminated. Immediately after the meeting, Ward offered to pay Carr the back dues and Carr replied that Ward would have to come into the office to do it. On January 7, 1973, the Company followed the estab- lished practice of deducting dues pursuant to the checkoff.[[ The Union's records show that on January 18, 1973, it re- ceived checked-off dues on behalf of Ward which it applied to December 1972. The records also show that on February 12, 1973, it received checked-off dues for Ward which it credited to January 1973 The Union also sent receipts to Ward showing that dues payments were credited on his behalf for December 1972 and January 1973. On February 2, 1973, Ward called Carr on the telephone and told him that he wanted to make arrangements to pay his back dues. Ward was told that it was too late to come in that day.t2 On February 12, 1973, Carr wrote to the International as follows: I am requesting your assistance in correcting the re- cords of RANDY WARD, who was entered as Sus- pended on the December activity. The reason for this is, Randy Ward was terminated in July, and neglected to pay his dues while off work. He has been employed at Alcoa Housing 601 which has the payroll deduction for Union dues. Randy was rehired on December 11, 1972 and dues were withheld from his pay check in December. It is the policy of the Company to withhold dues one month and forward these to the Union Office the following month. Due to the fact that the dues were actually paid in December, this would have been within the six These findings are based on the credited testimony of Carr. Unlike the other recalled employees, Ward did not pay any dues in December 11 Employee Rodney Carroll credibly testified that in December 1972 he had a conversation on the telephone with Carr about the recalled employees and that Carr said that they were going to start deduction of dues from the first paycheck the employees received in January 12 Ward also testified that Carr told him that he would have to pay his initiation fee I do not believe that Ward's recollection with regard to that statement was accurate The subsequent letters written by Carr, which are described in detail below, indicate that Can did not expect an initiation fee until a subsequent date ALCOA CONSTRUCTION SYSTEMS INC. month period and Randy Ward should not have been dropped. He should be on the record as having paid one month dues, $7.35 which would be for July 1972. In February we received another month of dues which will pay August. Randy Ward has been notified he must bring the other five months dues immediately to bring this account current. Please do not remove Randy Ward from the rolls, but he is still in arrears and owes dues from August 1972. Thank you for your consideration. On February 13, 1973, Carr wrote to Ward as follows: You were notified in September 1972 that you would be in arrears at the end of the month and in January you were sent a final notice of arrears. We, however did not hear from you and you made no payments on your dues for this six month period, December 31, 1972. You were re-hired at Alcoa Housing on December I 1 and they, according to the contract, deducted dues for one month from you. This was forwarded to our office, as per the arrangements, in January. According to our Union Constitution, we had suspended you at the end of the six month period. We have written to the International Office and re- quested a correction on the record and this, according to past practice will be granted with the provision that you bring your account up to date and square your arrearages. You will have to pick up your dues for the period of time you were not under the payroll deduc- tion. You owe a balance of five months dues, $36,75 plus $2.00 for arrears assessments. Please make arrangements to pay this within the next month so you can be re-instated by the International Brotherhood of Carpenters and Joiners of America, or the Union Security Clause of our agreement will be enforced. By letter dated March 2, 1973, the International replied to Carr as follows: We are in receipt of your communication dated Feb- ruary 12, regarding the Suspension of RANDY WARD on December 31, 1972 and in reply I wish to advise that this same thing happened in December 31, 17 The complaint alleges, the Union's answer admits, and I find that Gierke was an agent of the Union 14 The forms indicated that Ward would have to pay an initiation fee of $150 15 It is noted that by this time the Union had received checked-off dues for Ward in both January and February 1973 and that the Union's records, as well as the receipts issued to Ward. indicated that the dues had been applied to December 1972 and January 1973 If the Union's records were accurate , back dues were still outstanding for the 5 months of July, August. September, October. and November 1972 If the dues payments were attri- buted to the earliest months of delinquency, as Carr testified they should 455 1971 and we gave you a dispensation at that time to accept all his back dues, provided he paid up through and including the current month, which he did on Feb- ruary 19, 1972. Now, he has allowed himself to go three months in arrears September 30, 1972 and six months in arrears, December 31, 1972, but in your letter, you state that dues of July, 1972 were deducted by the company in December, 1972 but not turned over to the Local Union until January, 1973, since he was on a checkoff. However, it deems strange that this man always leaves the place where he works without paying some dues in advance, so as to save this trouble each year. Therefore, we feel that under the circumstances, we cannot grant you permission to accept the dues as the Suspension will stand as reported. On March 6, 1973, Carr sent letters, with copies of the International's letter, to both Ward and shop steward Leroy Gierke.13 The letter to Ward stated that the Union was obligated to collect the full initiation fee with the payments commencing at once. The letter to Gierke stated that Ward had to rejoin the Union and enclosed an application for dues and initiation deduction."' It also enclosed a handwrit- ten memo from Carr telling Gierke to have the checkoff authorizations signed and ending "Any B. S. - Send it Back , We'll Terminate." On March 7, 1973, pursuant to his instructions from Carr, shop steward Gierke approached Ward and told him that he had to pay the full initiation fee or he would be terminated. Ward refused to sign the initiation fee deduction form and told Gierke that he didn't see how he was 6 months in arrears.15 Ward asked why he had to rejoin the Union and Gierke replied that there was some doubt as to how long he had been in arrears and that this was what he was supposed to do. In this conversation, Ward convinced Gierke that he was not 6 months in arrears .16 Gierke said that he would try to find out what was going on. Gferke then spoke about the matter to Edgar Cheeley, the Company's accountant.17 Gierke told Cheeley that he had done some paper work for Ward and that he had come to have the Company's books checked. Gierke showed Chee- ley the paper work and a copy of the constitution. Gierke said that after 6 months, a man can be suspended. They went over the Company's books and Gierke said that he couldn't come up with 6 months, but only 5.18 Gierke also spoke to Donald H Neff, the plant superin- tendent, and told him that he had talked to Cheeley about Ward, and they couldn't come up with 6 months delinquen- cy. Neff replied they would look into it and see what could be done. 19 have been , they would have been applied to July and August 1972, which would have still left 5 months delinquency for September, October, Novem- ber, and December 1972 and January 1973 16 Gierke credibly testified to that effect 17 The complaint alleges, the answers admit, and I find that Cheeley is a supervisor within the meaning of the Act 1s These findings are based on the testimony of Gierke Cheeley, in his testimony, acknowledged that he spoke to Gierke about Ward, but he did not recall seeing the constitution or recall any specific discussion about 5 or 6 months arrearage or the position the Union was taking He averred , though, that he could not state much of this with definiteness I credit Gierke 19 This finding is based on credited testimony of Gierke Neff testified that Continued 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sometime later that day, March 7, 1973, Gierke had a conversation with Robert L . Greer, the plant superinten- dent,20 and employee Rodney Carroll Gierke , Greer, and Carroll looked over some notes that Cheeley had given Gierke and they agreed that there was no way Ward could be 6 months in arrears Greer said that there wasn't much he could do about it and that he would hate to lose Ward because Ward was a good worker.21 That afternoon Gierke was speaking to Carroll when Cheeley came out of his office and gave Gierke some notes taken from company records which showed that Ward was 5 months delinquent Carroll asked Cheeley what the regu- lar procedure was for taking dues out of a man 's check. Cheeley answered that, through Carr, they had set up a policy where dues are taken out each month for the previous month and that Ward's December dues were paid in Janu- ary. Gierke then left and Cheeley continued his conversa- tion with Carroll . Cheeley said that somebody's records must have been messed up.22 Later, on March 7, Gierke spoke to Carr on the telephone and discussed the months that Ward was delinquent . Gierke told Carr that Ward had refused to rejoin the Union, and Carr instructed Gierke to write a note stating that Ward had refused to join the Union and that he (Gierke) had told Ward that he (Ward) could be terminated. On March 8, 1973, Gierke wrote to Carr as follows- Randy Ward has refused to sign the application for membership form and his authorization for deduction of initiation fees. I have explained that he will be termi- nated in the near future. On March 12, 1973, Carr wrote two letters. One was to Ward, enclosing a check for $14.70 and stating that the dues checked off in January and February 1973 were not accept- ed as Ward was suspended prior to the receipt of those dues. The letter also stated that a request would be made to termi- nate Ward under the union-security clause. The second let- ter was to the Company It requested that Ward be discharged pursuant to that clause. On March 14, 1973, Donald H. Neff, the plant manager, wrote to Carr stating that Ward would be terminated at 7 a m. on March 15, 1973, in accordance with the contract terms. On March 14, 1973, Supervisor John Bradley 23 asked Ward if he had joined the Union yet. Ward replied in the negative. Bradley then said that he talked to Greer, but Greer didn't have anything to say about it. The discharge actually occurred on March 16, 1973. On that date, Ward was given a dismissal notice by Gierke Shortly after, Gierke and Ward spoke to Greer, who told them that the Union had asked for the dismissal. On the the conversation never took place and that he was not even in the plant at the time of the alleged conversation Gierke may well have been mistaken in his recollection of the time sequence , but I credit his testimony that the conversation did take place 20The complaint alleges , the answers admit, and I find that Greer was a supervisor within the meaning of the Act 21 These findings are based on credited testimony of Gierke and Carroll. Greer did not testify 22 These findings are based on the credited testimony of Carroll same day, Gierke spoke to Greer and repeated that they couldn't come up with more than 5 months delinquency Greer suggested that Ward contact the Union and said that they hated to lose him because he was a good worker. Carr acknowledged that the Union's request that Ward be discharged was based solely on the fact that Ward had been suspended and had refused to pay the initiation fee B. Analysis and Conclusions I The alleged dues delinquency a. The Union's responsibility With an exception relating to the enforcement of a valid union-security clause, it is unlawful under Section 8(a)(1) and (3) of the Act for an employer to discharge an employee because that employee is not a member of a union. With the same exception, it is unlawful under Section 8(b)(1)(A) and (2) of the Act for a union to cause or attempt to cause an employer to discharge an employee for nonunion member- ship. The Union demanded, and the Company effectuated, Ward's discharge because he had been suspended and therefore was not a member of the Union. The Union and the Company have therefore violated the Act unless the exception relating to the enforcement of a valid union-se- curtly clause is applicable to the facts of this case That exception is set forth in the provisos to Section 8(a)(3) 24 of the Act which read. .. . Provided, That nothing in this Act . . . shall pre- clude an employer from making an agreement with a labor organization . to require as a condition of employment membership therein on or after the thirti- eth day following the beginning of such employment or the effective date of such agreement, whichever is the later. . . Provided further, That no employer shall justify any discrimination against an employee for non- membership in a labor organization (A) if he has rea- sonable grounds for believing that such membership was not available to the employee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership. The phrase "failure of the employee to tender the periodic dues and the initiation fees uniformly required" necessarily 23 The complaint alleges , the answers admit, and I find that Bradley was a supervisor within the meaning of the Act 24 The parallel provision in Sec 8(b)(2) makes it unlawful for a union "to cause or attempt to cause an employer to discriminate against an employee in violation of subsection (a)(3) or to discriminate against an employee with respect to whom membership in such organization has been denied or termi- nated 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 " ALCOA CONSTRUCTION SYSTEMS INC. 457 implies that the employee is delinquent in dues that have already accrued . If in fact Ward was not delinquent, then the proviso could not be raised as a viable defense. In de- termining the amount of delinquency that would warrant resort to discharge under the union -security clause , the stan- dard applied by the Union must be uniform , as the proviso allows such discharge only for nonpayment of periodic dues and initiation fees "uniformly required as a condition of acquiring or retaining membership." Section 45K of the International 's constitution provides that a member who owes 3 months dues is not in good standing, and Section 5.02 of the collective-bargaining con- tract provides that employees shall pay dues uniformly re- quired as a condition of acquiring or retaining membership in good standing in the Union . However, no contention is made by any party that a 3 months' delinquency in dues has been used as the basis for discharge under the union-securi- ty clause of the contract . On the contrary , Carr acknowl- edged that the Union's request that Ward be discharged was based solely on the allegation that Ward had been suspend- ed for a 6 months dues delinquency and had refused to pay the new initiation fee. If the Union had insisted on Ward's discharge because of a 3 months ' delinquency where the standard uniformly applied had been a 6 months ' delin- quency, the uniformity requirement of the proviso would clearly not have been met. 5 As the parties have interpreted and applied the union- security clause of the contract , an employee's discharge can be effectuated only after a 6 months' dues delinquency and a consequent suspension from membership. Thus, under the uniform standards required by the proviso, Ward's dis- charge, to be lawful , would have to be based on a 6 months' dues delinquency. It follows that , if Ward was discharged when he was only 5 months' delinquent in the payment of dues, the uniform standard required by the proviso would not have been met and the discharge would have violated the Act. Section 45B of the International's constitution provides that monthly dues shall be charged on the books on the first of each month but a member does not fall in arrears until the end of the month in which the member owes 3 months' dues. It thus appears that dues do not become delinquent until the end of the month for which they are due. When Ward was recalled by the Company in mid-December 1972, he was 5 months' delinquent in dues. The December 1972 dues were not yet delinquent. In the ordinary course of events, the December dues would have become delinquent on December 31, 1972 , and Ward would have been 6 months in arrears . However, in the instant case, two addi- tional factors were present . The first was that Ward had in effect an outstanding dues-checkoff authorization The sec- ond is that the understanding and practice with regard to checkoff was that dues would be checked off from the first paycheck in the month following the one in which the dues had accrued. Carr had agreed with the Company and in- formed the employees that December 1972 dues would be checked off from the first paycheck in January 1973. In 25 It is noted that the Union placed in evidence the records of employees in other bargaining units showing that they had been suspended after 6 months and had been required to pay new intiauon fees effect, the Union waived its right to have December dues paid by the end of December and agreed to accept them from the January checkoff . In fact, the Union did just that and accepted the checkoff for Ward in both January and February. Under these circumstances , it cannot be said that Ward became delinquent for 6 months' dues on December 31, 1972 . The Union had extended the time for payment so that the delinquency did not occur . As the dues were not delinquent, it follows that, under a uniform standard, a new initiation fee could not be required as a condition of em- ployment. The Union may or may not have had the right to suspend Ward under these circumstances , but it could not lawfully require his discharge for nonpayment of dues or initiation fee when they were not delinquent . Apparently even the Union did not believe there was a 6 months' delin- quency, as Carr wrote to the International on February 12, 1973, saying that Ward had been notified that he must pay 5 months' dues immediately to bring his account current and requesting a correction of records with regard to the suspension. The Union is a respondent in this case and cannot justify its actions by its assertion that it was merely following the orders of the International. In sum , I find that the Union violated Sections 8(b)(1)(A) and (2) of the Act by causing the Company to discharge Ward because of Ward's failure to pay dues and initiation fee that were not delinquent. b. The Company's responsibility Under the terms of the proviso , the Company cannot justify the discharge if it had reasonable grounds "for be- lieving that membership was denied or terminated for rea- sons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership." The Company knew that Ward was not 6 months ' delinquent in dues at the time of the discharge . On March 7, 1973, shop steward Gierke spoke about Ward's situation with Supervi- sor Cheeley . Gierke told him that after 6 months a man can be suspended, and they went over the Company's books together. Gierke told him that he could come up only with 5 and not 6 months' delinquency . Gierke spoke about the problem to Plant Superintendent Neff, who said that he would look into it. Supervisor Greer spoke to Gierke and employee Carroll about the Ward situation and they agreed that there was no way Ward could be 6 months in arrears. Greer added that there wasn't much he could do about it and that he would hate to lose Ward because Ward was a good worker . Cheeley told Carroll that somebody 's records must have been messed up. The Company knew that the Union's request to discharge Ward was based on Ward's suspension because Supervisor Bradley asked Ward on March 14, 1973, if he had joined the Union yet. Bradley told Ward that he had spoken to Greer and Greer didn't have anything to say about it. The Company knew that Ward was suspended from the Union because of an alleged 6 months' dues delinquency and knew from its own records that Ward in fact was only 5 months' delinquent. It also knew that the Union 's request for Ward's discharge was based on the suspension . In spite of this, the Company promptly and without question com- 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plied with the Union 's demand and discharged Ward. A company does not have a duty to investigate the circum- stances behind a union's request to discharge an employee under a union-security clause, unless that company has rea- sonable grounds for believing that the request was improp- er. Conductron Corp., 183 NLRB 419, and cases cited therein . In the instant case the Company 's own records combined with the information given its supervisors by shop steward Gierke put it on notice that the request was improp- er. In discharging Ward under these circumstances, the Company violated Section 8 (a)(1) and (3) of the Act. 2. The duty of fair representation The above conclusions are based on a finding that Ward was discharged for nonpayment of dues and initiation fee that were not delinquent. The same conclusions are war- ranted based on the broader proposition that the Union's actions with regard to Ward were in defiance of the Union's duty to represent him fairly. The duty of fair representation was first enunciated by the United States Supreme Court in 1944 in the case of Steele v. Louisville & Nashville Railroad Company, 323 U S. 192, which arose under the Railway Labor Act. The Court held that the same statute that gave the union a right to act as exclusive bargaining agent inherently required the union to represent employees fairly, impartially, and in good faith. 6 The Board first applied this "duty of fair representa- tion" concept in an unfair labor practice proceeding in Mir- anda Fuel Company, Inc., 140 NLRB 181, enforcement denied 326 F.2d 172 (C A. 2, 1963).27 The Board held: ... Section 7 thus gives employees the right to be free from unfair or irrelevant or invidious treatment by their exclusive bargaining agent in matters affecting their employment. This right of employees is a statuto- ry limitation on statutory bargaining representatives, and we conclude that Section 8(b)(1)(A) of the Act accordingly prohibits labor organizations, when acting in a statutory representative capacity, from taking ac- tion against any employee upon considerations of clas- sifications which are irrelevant, invidious, or unfair .... To the extent'... that an employer participates in such union's arbitrary action against an employee, the employer himself violates Section 8(a)(I) of the Act. This would obtain, for example, where, for arbitrary or irrelevant reasons, a statutory bargaining representa- tive attempts to cause an employee's discharge and the employer then becomes party to such violation of Sec- tion 7 rights by acceding to the union's efforts. We further conclude that a statutory bargaining rep- resentative and an employer also respectively, violate 26 Ford Motor Co v Huffman, 345, U S 330 (1953) and Humphrey v Moore. 375 U S 335 (1964) 27 Though the Court of Appeals for the Second Circuit refused to enforce the Miranda decision, a majority of that court did not rule on the question whether a breach of the duty of fair representation was an unfair labor practice Section 8(b)(2) and 8(a)(3) when, for arbitrary or irrele- vant reasons or upon the basis of an unfair classifica- tion, the union attempts to cause or does cause an employer to derrogate the employment status of an employee. Since the Miranda case, the Board has consistently fol- lowed the principle that a union owes a duty of fair repre- sentation to the employees it represents .28 The Board has often applied this principle to situations involving the en- forcement of union -security clauses . In Teamsters Local Union No. 122 International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (August A. Busch & Co. of Mass, Inc), 203 NLRB 1041 (1973), the Board found that a union violated the Act by enforcing a union -security clause where the employee did not have suf- ficient notice of his obligations. The violation was premised on the union's breach of its fiduciary duty to treat the em- ployee fairly . In that case, the Board quoted the Court of Appeals for the Third Circuit in N.L. R B. v. Hotel, Motel and Club Employees ' Union, Local 568, AFL-CIO (Philadel- phia Sheraton Corp.), 320 F .2d 254, 258 (C.A. 3, 1963), as follows: The comprehensive authority vested in the union, as the exclusive agent of the employees, leads inevitably to employee dependence on the labor organization. There necessarily arises out of this dependence a fidu- ciary duty that the union deal fairly with employees , , At the ininimum, this duty requires that the union inform the employee of his obligations in order that the employee may take whatever action is neces- sary to protect his job tenure. In deciding what constitutes a breach of the Union's fiduci- ary duty to deal fairly with employees, all the background circumstances must be considered. ' I am not persuaded that Ward was given insufficient notice of -what the Union intended to do. Ward did not receive the two delinquency notices in 1972, but that ap- pears to have resulted from his failure to leave a forwarding address. Ward's poor experience with a suspension in 1971 should have alerted him that he faced the same problem in 1972 After the suspension but before the discharge, Ward was notified, by Gierke that he would be discharged pur- suant, to the union-security clause if he did not rejoin the Union by payment of a new initiation fee. However, timely and proper notice that a union intends to act in an arbitrary manner in no way makes the subsequent action less arbi- trary. I am also not persuaded that the Union's failure to demand Ward's discharge after the first suspension in any 28 The U S' Supreme Court has not yet ruled specifically on the question of whether a breach of the duty of fair representation by a union violates the unfair labor practice sections of the Act However, in Vaca v Sipes, 386 U S 171 (1967), the Supreme Court, in dec.dmg a preemption question, reviewed the history of the Miranda decision in detail and stated "Moreover, when the Board declared in Miranda Fuel that a union's breach of its duty of fair representation would henceforth be treated as an unfair labor practice, the Board adopted and applied the doctrine as it had been developed by the federal courts " ALCOA CONSTRUCTION SYSTEMS INC way waived whatever right it may have had to seek his discharge after the second one. Lenient enforcement of a union or contract right after a first offense does not bar strict enforcement when the offense is repeated.29 However, it is no defense to a present violation of the Act to claim that the Act was not violated in the past. As set forth in full above, the longstanding practice pur- suant to agreement of the parties was that dues for I month were to be paid through checkoff from the first paycheck of the following month. Pursuant to this practice and agree- ment, Ward should not have been considered 6 months in arrears when the January 1973 checkoff was sent to the Union for December dues. Ward therefore should not have been suspended because of a 6 months' delinquency; a new initiation fee should not have been charged, and the union- security clause should not have been invoked. The Union's action in accepting the dues checked off for Ward in Janu- ary and February was consistent with the agreement it had with the Company. Carr's February 12, 1973, letter to the International, asking the International to refrain from re- moving Ward from the rolls, and his February 13, 1973, letter to ward, in which he said that Ward owed a balance of 5 months' dues, were also consistent. Under these circum- stances, I believe the Union acted arbitrarily and in defi- ance to its duty to represent Ward fairly when it reneged on its prior understanding with both the Company and Ward by returning the dues that had been checked off for Ward in January and February, by treating him as a nonmember, and by demanding his discharge for nonpayment of the new initiation fee. The evidence detailed above also establishes that the Company discharged Ward pursuant to the Union's demand even though it was aware of the Union's failure to perform the fiduciary duty it owed Ward.30 Under these circumstances, I find that the Union's de- mand that Ward be discharged violated Section 8(b)(1)(A) and (2), and the Company's discharge of Ward violated Section 8(a)(1) and (3) of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section 111, above, occurring in connection with the'operations.of the Company described in section 1, above,-have a close, inti- mate, and substantial relationship 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 Having found the Union violated Section 8(b)(1)(A) and (2) of the Act, and that the Company violated Section 29 General Longshore Workers, International Longshoremen 's A rrociat ion. Local 1418, AFL-CIO (Lykes Bros Steamship Co. Inc). 195 NLRB 8 JOCf Associated Transport, Inc, 169 NLRB 1143. enfd 401 F 2d 509 (C A 2, 1968) 459 8(a)(3) and (1) of the Act, I shall recommend that they be ordered to cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. As I have found that the Union caused the Company to discharge Ward for nonpayment of dues and initiation fees that were not delinquent, I shall recommend that the Union be ordered to notify the Company, in writing, with a copy to Ward, that it has no objection to his immediate and full reinstatement to his former job, or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. I shall also recommend that the Company be ordered to offer Ward immediate and full reinstatement to his former job, or if that job no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges. I shall also recommend that the Union and the Company be ordered jointly and severally to make Ward whole for any loss of earnings he may have suffered as a result of the discrimination against him by payment to him of the amount he normally would have earned from the date of his discharge to the dates set forth hereafter, less net earnings, to which shall be added interest at the rate of 6 percent per annum, in accordance with the formula set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumb- ing & Heating Co, 138 NLRB 716 (1963). In the case of the Union, its backpay liability shall terminate 5 days after it notifies the Company and Ward that it has no objection to his reinstatement, as provided above. In the case of the Company, its backpay liability shall terminate on the date that Ward is offered reinstatement. I shall further recommend that the Company be ordered to preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll re- cords, social security payment records, timecards, personnel records and reports, and all other records necessary to ana- lyze the amount of backpay due. CONCLUSIONS OF LAW . 1. The Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By causing the Company to discharge Ward for non- payment of dues and initiation fees that were not delin- quent, the Union has engaged in unfair labor practices in violation of Section 8(b)(1)(A) and (2) of the Act. 4. By discharging Ward for nonmembership in the Union when it had reasonable cause to believe that Ward was suspended from the Union for nonpayment of dues and initiation fees that were not delinquent, the Company has engaged in unfair labor practices within, the meaning of Section 8(a)(1) and (3) 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. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER 31 A. Respondent United Brotherhood of Carpenters and Joiners of America, Millmen's Union Local No. 338, AFL- CIO, its officers, representatives, and agents, shall. 1. Cease and desist from: (a) Causing or attempting to cause Alcoa Construction Systems, Inc., to discharge any employee for nonpayment of dues and initiation fees that are not delinquent (b) Causing or attempting to cause Alcoa Construction Systems, Inc , to discriminate against any employee in viola- tion of Section 8(a)(3) of the Act. (c) In any like or related manner, restraining or coercing employees in the exercise of their rights guaranteed in Sec- tion 7 of the Act, except to the extent that such rights are affected by the lawful enforcement of a lawful agreement requiring membership in a labor organization as a condition of employment. 2 Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Jointly and severally with Respondent Alcoa Con- struction Systems, Inc , make Randy L. Ward whole for any loss of earnings he may have suffered as a result of the discrimination against him in the manner set forth in the section of this decision entitled "The Remedy." (b) Notify Alcoa Construction Systems, Inc., in writing, that it withdraws its objection to Ward's employment and requests the Company to offer him reinstatement , and fur- nish Ward with a copy of such notification. (c) Post at its offices and meeting halls copies of the attached notice marked "Appendix A." 32 Copies of said notice, on forms provided by the Regional Director for Region 19, after being signed by an authorized representa- tive, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered, de- faced, or covered by any other material. (d) Deliver to the Regional Director for Region 19 signed copies of said notice in sufficient numbers to be posted by Alcoa Construction Systems, Inc., in all places where no- tices to employees are customarily posted. (e) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of this Order, what steps it has taken to comply herewith. B. Respondent Alcoa Construction Systems, Inc., its of- ficers, agents, successors and assigns, shall: 31 In the event no exceptions are filed as provided by Sec 10246 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , 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 1. Cease and desist from: (a) Discharging any employee for nonmembership in a union unless that discharge is pursuant to the lawful en- forcement of a lawful agreement requiring membership in a labor organization as a condition of employment. (b) In any like or related manner interfering with, re- straining , or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by the lawful en- forcement of a lawful agreement requiring membership in a labor organization as a condition of employment. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Offer Randy L. Ward immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. (b) Jointly and severally with Respondent United Broth- erhood of Carpenters and Joiners of America, Millmen's Union Local No. 338, AFL-CIO, make Randy L. Ward whole for any loss of earnings suffered as a result of the discrimination against him in the manner set forth in the section of this decision entitled "The Remedy " (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary to analyze the amount of backpay due. (d) Post at its Kent, Washington, place of business (or at any location the business may have moved to) copies of the attached notice marked "Appendix B." 33 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by its representative, shall be posted by it immediately upon receipt thereof and be maintained by it for 60 consecutive days, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Re- spondent Company to insure that said notices are not al- tered, defaced, or covered by any other material. (e) Deliver to the Regional Director for Region 19 signed copies of said notice in sufficient number to be posted by United Brotherhood of Carpenters and Joiners of America, Millmen's Union Local No. 338, AFL-CIO, in places where notices to members are customarily posted. (f) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. 32 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 33 See In 32 ALCOA CONSTRUCTION SYSTEMS INC. 461 NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government APPENDIX A 1511 Third Avenue, Seattle, Washington 98101, Telephone 206-442-4532. APPENDIX B Pursuant to the recommended Order of an Administra- tive Law Judge 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: After a trial in which all sides had a chance to give evidence, an Administrative Law Judge of the National Labor Rela- tions Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. WE WILL NOT cause or attempt to cause Alcoa Con- struction Systems, Inc., to discharge any employee for nonpayment of dues and initiation fees that are not delinquent. WE WILL NOT cause or attempt to cause Alcoa Con- struction Systems, Inc , to discriminate against any em- ployee in violation of Section 8(a)(3) of the Act. WE WILL NOT, in any like or related manner, restrain or coerce employees in the exercise of their rights guar- anteed in Section 7 of the Act, except to the extent that such rights may be affected by the lawful enforcement of a lawful agreement requiring membership in a labor organization as a condition of employment. WE WILL notify Alcoa Construction Systems, Inc., in writing, that we withdraw our objections to the employ- ment of Randy L. Ward and request his reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, and WE WILL furnish him with a copy of such notification: WE WILL make Randy L. Ward whole by paying him backpay with interest at 6'percent Dated By UNITED BROTHERHOOD OF CAR. PENTERS AND JOINERS OF AMERI- CA, MILLMEN'S UNION LOCAL No 338 AFL-CIO (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, 10th Floor, Republic Building, NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government Pursuant to the recommended Order of an Administra- tive Law Judge 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: After a trial in which all sides had a chance to give evidence, an Administrative Law Judge of the National Labor Rela- tions Board has found that we violated the National Labor Relations Act, and has ordered us to post this notice. WE WILL NOT discharge any employee for nonmem- bership in a union unless the discharge is pursuant to the lawful enforcement of a lawful agreement requiring membership in a labor organization as a condition of employment. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by the lawful enforcement of a lawful agreement requiring membership in a labor organization as a condition of employment. WE WILL offer Randy L Ward immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges. WE WILL make Randy L. Ward whole by paying him backpay with interest at 6 percent ALCOA CONSTRUCTION SYSTEMS, INC (Employer) Dated . By (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, 10th Floor, Republic, Building, 1511 Third Avenue, Seattle, Washington 98101, Telephone 206-442-4532.