District 1199, Natl. Union of Hospital & Health Care Employees

DIST. 1199, NATL. UNION OF HOSPITAL & HEALTH CARE EMPLOYEES District 1199, National Union of Hospital and Health Care Employees, A Division of RWDSU/AFL- CIO (Upper Manhattan Medical Group ) and Ver- neal Salters. Case 2-CB-5891 June 24, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On April 2, 1976, Administrative Law Judge Ber- nard Ries issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions I of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, District 1199, National Union of Hospital and Health Care Employees, A Division of RWDSU/AFL-CIO, New York, New York, its officers, agents, and representatives, shall take the action set forth in said recommended Order. 1 We find it unnecessary to pass upon the finding of the Administrative Law Judge that Respondent's conduct would also be condemned under the theory announced by the Board in Miranda Fuel Company, Inc, 140 NLRB 181 (1962), enforcement denied 326 F 2d 172 (C A 2, 1963) Our finding that Respondent violated Sec 8(b)(1)(A) is predicated on the finding that Respondent caused the discharge for reasons other than her failure to pay dues 2 In the last paragraph of sec I1,B, of the Administrative Law Judge's Decision, the date May 27 should read May 23 DECISION STATEMENT OF THE CASE BERNARD RIES, Administrative Law Judge: Upon a charge filed on May 28, 1975, resulting in a complaint is- sued on September 17, 1975, this proceeding came on for hearing in New York, New York, on December 12 and 16, 1975. The complaint alleges that on or about May 23, 1975, 153 and various other dates in May 1975, Respondent District 1199 threatened Verneal Salters that Respondent would cause her discharge if she continued to ask questions con- cerning the administration of the collective- bargaining agreement in existence between District 1199 and Salters' employer, Upper Manhattan Medical Group, and further alleges that by causing the discharge of Salters on May 28, 1975, because Salters raised questions as to the administra- tion of the collective-bargaining agreement, Respondent violated Section 8(b)(1)(A) and 8(b)(2) of the Act. Respon- dent denied the critical allegations of the complaint. Briefs were received from counsel for the General Counsel and counsel for Respondent on or about January 30, 1976. Upon the pleadings, the evidence, my observation of the demeanor of the witnesses, the entire record in this case,' and after careful study of the briefs submitted by counsel, I make the following: FINDINGS OF FACT 1. JURISDICTION Upper Manhattan Medical Group, a duly organized partnership under the laws of the State of New York, at all material times herein has maintained a place of business in New York, New York, where it is engaged in providing out-patient health service to the general public. During the year preceding issuance of the complaint, Upper Manhat- tan Medical Group, in the course and conduct of its opera- tions, received gross revenues in excess of $1 million, and during the same period purchased goods valued in excess of $5,000 which originated outside the State of New York from firms located in the State of New York, which re- ceived such goods from outside the State of New York. Respondent admitted at the hearing, and I find, that Up- per Manhattan Medical Group is and at all times material has been an employer within the meaning of Section 2(2) of the Act, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I further find that District 1199, National Union of Hospital and Health Care Em- ployees, a Division of RWDSU/AFL-CIO, is a labor orga- nization within the meaning of Section 2(5) of the Act, over which the Board may and should exercise jurisdiction. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Relevant Evidence Verneal Salters, a licensed practical nurse, was employed by Upper Manhattan Medical Group from September 1969 to May 28, 1975, when she was discharged, purport- edly for failure to pay union dues. Since at least 1969, Upper Manhattan Medical Group has recognized Respondent District 1199 as the collective- bargaining representative of a unit of its employees and has executed bargaining agreements requiring employees to join and maintain membership in the Union in order to retain employment. Salters' record of dues payments was, 1 Certain errors in the transcript have been noted and corrected 225 NLRB No. 23 154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to say the least, spotty. She apparently preferred to delay paying her dues as long as possible, and, for the most part, paid irregularly in large sums. For example, from March 1970 until May 1971, she paid no dues, and then paid an amount which wiped out her existing debt to the Union. Again, in February 1972, she was 7 months in arrears at the time she made a dues payment She paid no dues from May 1972 2 through April 1974; in the latter month, she was told by Carl Rath, then the area director of the divi- sion of the Union having jurisdiction over her bargaining unit, that if she did not pay her dues he would request her termination, and she paid in full. From April 29, 1974, until May 28, 1975, when she was discharged, she made no dues payment. As to the operative events leading to her discharge, Sal- ters testified as follows. Between November 1974 and April 1975, Respondent engaged in negotiations for a bargaining agreement with Upper Manhattan Medical Group. Salters was a member of the negotiating committee. At a member- ship ratification meeting held probably on May 5, 1975, Edward Bragg, area director and vice president of the divi- sion of the Union responsible for Upper Manhattan Medi- cal Group, explained to the employees that as a result of the negotiations, they would receive retroactive pay raises in two separate checks in the month of May. After the membership ratified the contract, Bragg spoke to Salters about her dues delinquency. He told her if she did not pay her dues, he would have to send a letter to Upper Manhat- tan Medical Group requesting her termination. Salters tes- tified that she told Bragg that she would pay her dues in full before noon on Friday, May 30. She said that she told him that she was a member of a vacation club which had been making payments into a bank account and that the funds from the account would be distributed to the club members on May 30. According to Salters, Bragg ac- quiesced, but said that if she did not have her money in by May 30, "We're going to send a letter." Salters testified that on earlier occasions, during the contract negotiations, Bragg had urged her to pay her union dues. On May 16, Salters received a check for retroactive pay in the amount of $26, but she made no payment on her back dues. On May 23, she received another check for ret- roactive backpay. When she saw the amount of the latter check, she realized that it did not include the overtime dif- ferential which the employees had been promised She went to see Zenia Walker, a member of the bargaining unit and the bookkeeper for Upper Manhattan Medical Group. She asked Walker why she had not received full payment in the second check and Walker replied, "Salters, you are always starting trouble." After some argument with Walk- er, in which Walker said that she had been told that the backpay was to be paid in three checks instead of two, Salters called Edward Bragg. Before she did so, she saw Walker in conversation with Cecilya King, the administra- tor of Upper Manhattan Medical Group, and overheard her own name in that conversation. When she called Bragg, according to Salters, she asked him if he could recall the manner of retroactive payment which had been agreed upon at the negotiations. She said she thought the employees were supposed to be paid in full in only two pay checks; Bragg said that he could not imme- diately remember. At that point Bragg received word that Cecilya King was calling him. He took the call from King. When he called Salters back, he said, "Salters, you're al- ways starting trouble. Why don't you just pay your dues and not cause trouble?" Salters reportedly replied, "Hey, this is not about dues, this is about backpay. I told you I would be down on the 30th of May to pay you." Bragg answered, "You got a backpay for $26 and you didn't make any arrangements to come down and pay it." Salters allegedly replied, "Because I told you I'd be down and pay you on the 30th." Bragg answered, "Listen, just pay your dues or I'll send a letter." Salters answered, "You send a letter. You send a fucker." She then hung up on Bragg. Bragg called back and, according to Salters, said, "Don't threaten me." She again hung up on Bragg. Salters thereafter worked on May 24, a Saturday, was off on Sunday and Monday (the latter being Memorial Day), and worked Tuesday, May 27. About noon on Wednesday, May 28, Ms. King handed her a letter informing her that she was being discharged pursuant to the union-security provision of the bargaining agreement. Salters said that she went home and called Bragg's supe- nor, Phillip Kamenkowitz, the executive vice president in charge of the Drug Division of the Union. She told Ka- menkowitz that she had made an agreement with Bragg to pay her dues on May 30, that they had had a difference of opinion, and that he had caused her to be discharged. She testified that Kamenkowitz told her, "I don't know any- thing about it and I don't think we want you back in the Union anymore." 3 After some further conversation, she asked Kamenkowitz to contact Bragg about rescinding the termination and he said that he would call her back. He never did so That same day, Salters went to the Regional Office of the Board and filed a charge. On the following day, May 29, Bragg called her at home and asked her if she wanted to speak to him She said that she was waiting for Kamen- kowitz to call. Bragg told her that Kamenkowitz had said that she wanted to speak to Bragg. She told Bragg that she was going to come to the union office and make payment of her dues, 'and he allegedly replied, "Well, the Union does not want you back in here anymore, and we're not going to take your money." He is further alleged to have said, "Salters, as long as you are a practical nurse and if you ever become a registered nurse, you'll never work again in New York City . . . . As long as you owe union money, you'll never work." Salters then allegedly asked Bragg to make up his mind: "Do you want my money, or don't you want my money?" His reply was, "Miss Salters, go to hell." With that he hung up. On May 30, after having received her share of the vaca- tion club account on May 29, Salters went to the union office in the morning and told the clerk that she wanted to pay her dues. The clerk pulled Salters' card; to it was at- tached a note signed by Bragg which stated that Salters' 2 The May 1972 payment included advance dues for the months of June 3 On cross-examination , Salters admitted that Kamenkowitz had referred and July 1972 to her history of dues delinquency, as indicated in her affidavit DIST. 1199, NATL. UNION OF HOSPITAL & HEALTH CARE EMPLOYEES 155 dues were not to be accepted . The clerk said that she had to speak to her supervisor. After a while Bragg came to the finance department and said , "I am just a mere figurehead. I have nothing to do with Miss Salters' dues. If it's to be accepted you have to clear it with Mr Kamenkowitz" Bragg then departed . Shortly thereafter Salters went to see Kamenkowitz. His secretary said that he was in a meeting, went into an inner office and returned , and said nothing further to Salters. When Salters asked if Kamenkowitz was going to see her, the secretary replied , "Mr. Kamenkowitz is not going to see you at all today or any other day." Salters left the office.4 The essence of Bragg's testimony follows. Bragg is the union official responsible for negotiating and administer- ing collective-bargaining agreements covering a number of different employee groups for which District 1199 is the bargaining representative . He testified that he was assigned his present responsibility as chief operating officer in charge of the Health Insurance Plan (HIP) groups, which includes Upper Manhattan Medical Group, in December 1973, because the administration of the HIP groups was plagued with problems, including that of dues delinquency, and he was appointed to resolve the existing problems He testified that he was aware of Salters' past dues problems, and that after she became delinquent once again in June 1974, he spoke to her about paying her dues and thereafter continuously urged her to make her past-due payments. He says that he raised the matter a number of times during the negotiating period in 1974 75, beginning in November 1974, and told Salters that "If we weren't in negotiations which were very difficult negotiations, that I would have removed her from the job ." Bragg testified that in No- vember 1974 Salters told him that she would pay her dues as soon as she got an income tax refund , which he said would be acceptable . He said that during this period he asked her to make arrangements with the Union's finance department to show her good faith and to relieve the "in- tense pressure" which Kamenkowitz was applying to him about the dues delinquency of Salters and other members. Bragg testified that around March or April 1975 he said something to Salters about the fact that she had received the tax refund, and that she did nothing but smile.6 There- after, whenever he discussed her dues situation with Sal- ters, she merely said that she was going to pay. Bragg testified that after the contract ratification vote on May 5, he spoke to several employees who were present and who were more than 3 months delinquent in their dues. He asked them to make arrangements to pay with the union finance office , and each agreed to do so except Sal- ters. He testified that he told Salters that he was under "intense pressure" from Kamenkowitz to remove her from the job , and that when he asked her to make an arrange- ment with the finance office, "[s]he said to me verbatim `I will pay my dues at the end of the month."' Bragg told Salters that the offer was not good enough , and that he expected her promptly to contact the finance office and The secretary was not called to testify, nor was Kamenkowitz 5 As noted, Salters was a member of the negotiating committee 6 Salters did not contradict Bragg's testimony about the promise to pay upon receipt of the tax refund make some sort of arrangement . He denied that she ever mentioned anything about a vacation fund. The evidence shows that dues are payable on the 1st of each month , and that on the 20th the finance department reviews its records to determine which employees are as much as 3 months delinquent Those who become so delin- quent are sent a "final notice ," informing them that they are no longer a member in good standing, and that they will be dropped from membership if they do not pay their obligations within 10 days . Members who fail to pay within 10 days are charged a new initiation fee and a postage fee, if and when they eventually make their payments . As indi- cated by the foregoing discussion about Salters' history and further discussion infra, the fact that a member has fallen into arrears for more than 3 months, and has been expelled from membership , has not automatically resulted in the Union seeking termination of the employee under the union-security clause. Once a month , the union finance division prepares a "Drug Division Delinquency List." It lists the names of members who have received "final notices" in the past (and the date those notices were sent), as well as an indica- tion of the current payment status of such members, and the names of members who, having become 3 months in arrears, are currently being sent final notices. Bragg testi- fied that the vice presidents and other officials normally have a staff meeting each Friday, and that at the staff meeting which is held on the Friday succeeding the distri- bution of the monthly delinquency list, the list is reviewed by Respondent's officials . He said that at the May 23 staff meeting, the May delinquency list had been received and was discussed . In reviewing the status of Salters , there was considerable discussion of Salters' past delinquency. Pur- suant to a "new" "rule of thumb" promulgated by Kamen- kowitz under which , if a member has been delinquent for more than a year , "you have got to take him off the job," Kamenkowitz "mandated" Bragg to seek Salters' termina- tion 7 After the mandate, but before the meeting ended, Bragg received a call from Salters complaining that she had not received her full retroactive overtime payment in her May 23 check. He assertedly told her , "Listen, that is not the most important thing at this point. I was just in a meeting with Kamenkowitz, and Kamenkowitz has instructed me to remove you from the job." He also told her not to worry about the retroactive overtime pay problem because he would check into it. As Bragg was talking to Salters, he received a message that Cecilya King was calling him from the Upper Manhattan Medical Group. King told him that Salters "was upstairs carrying on and complaining about not getting her retro money " When Bragg said that Salters had a right to complain and asked why she did not get the money, King said that bookkeeper Zenia Walker did not know how to compute retroactive overtime and had been unable to get the payment out timely . King told Bragg that she had explained the situation to the union delegates and Although Bragg testified that "you have got" to take a member off the job in such circumstances , he went on to testify that the rule of thumb is applied "strictly solely on the member 's record ." taking into account the "past payments, past practice of the member, how the member paid, wheth- er the member paid on time " 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that they had agreed that it was not the fault of manage- ment but rather the fault of Walker, about which nothing could be done. Bragg then asked to speak to the two union delegates. They "both" said, "I don't know what is wrong with Verneal. She is around here cursing and carrying on and we met with management and it wasn't management's fault, but it was Zenia Walker's fault and she is new and we have tried to explain that to Mrs. Salters , but Mrs. Salters didn't want to hear anything." Bragg said that he then made contact again with Salters, who was "yelling and screaming and carrying on and call- ing me all kinds of dirty names which I felt I didn't de- serve, because I treated her like a sister for the year, year and a half that I handled that place, treated her like a sister, literally, physically, treated her like a sister." He says that he told Salters that he had respected her and that he expected reciprocal treatment Salters then hung up. Bragg called her back and said, "Salters, you shouldn't have hung up on me. I don't know why you did that, that wasn't right, it wasn't fair, and my major concern was trying to save your job." He then told her that he wanted her to come to the Union's office and make arrangements to pay her dues. She uttered an obscenity and again hung up on him. Bragg went and talked to Kamenkowitz about the situa- tion. He was instructed by Kamenkowitz to fill out a form requesting the termination of Salters . The form was pro- cessed through the union finance department and a letter was mailed from the Union to the Employer on May 27, asking that Salters be terminated for her failure to main- tain her membership in good standing. Bragg testified that he had authorized the placement of a note on Salters' file that no dues would be accepted from her until she saw Kamenkowitz. He recalled that Salters had come to see him during the week in which she was terminated; that he met her at the finance department; that she said something to him that he could not remember; and that a man with her said, "Don't say anything to that son-of-a-bitch." He then returned to his office . He testified that his desk is positioned so that he would have a view of anyone entering Kamenkowitz' office and that he did not see Salters do so. B. Discussion and Conclusions "Congress intended to prevent utilization of union secur- ity agreements for any purpose other than to compel pay- ment of union dues and fees." Radio Officers' Union of the Commercial Telegraphers Union, AFL [The A H. Bull Steamship Company] v . N.L R. B, 347 U.S. 17, 41. My re- view of the record leads me to conclude that Respondent caused the termination of Verneal Salters primarily for rea- sons unrelated to her failure to pay dues. I must begin my analysis with the caveat that I did not find all of General Counsel's evidence to be particularly reliable. One peculiar quirk in the case was some testimony by a witness named Eileen Wells, a coworker of Salters For the purpose of shoring up the testimony of Salters that she had told Bragg that the Union would receive its money at the end of May, when the vacation fund was distributed, Wells was brought on to testify that on a train ride to Washington to the "Jobs Now" rally in which District 1199 members participated, Wells was sitting with Salters when they were briefly joined by Bragg. Wells testified that Bragg asked Salters, "Sister Salters, when are you going to pay some union dues?," and that Salters replied, "I told you that I would pay you when I got my vacation club." When Salters herself was asked about this conversation, she recalled speaking to Bragg on the train , but could not remember what was said. Respondent introduced the May publication of the Union's newsletter which referred to the jobs rally in Washington as having taken place on Satur- day, April 26. I have no doubt that the train ride in fact occurred on that date . But since Salters testified that the first time she mentioned the vacation club to Bragg was the evening of the ratification meeting, and since Bragg was probably accurate in stating that the ratification meeting was May 5, it is very unlikely that, on April 26, as Wells testified, Salters would have said to Bragg that she had already "told" him that she would pay when she got her vacation club money 8 Nonetheless, Bragg conceded that, on May 5, Salters did say to him that she would pay the money "at the end of the month." A central feature of Respondent 's case is its claim that the decision to request the termination of Salters had al- ready been reached at a staff meeting on May 23 after Kamenkowitz and the other union officials had reviewed the May dues delinquency list earlier received , and that the brouhaha caused by Salters on that day was simply coinci- dental. I am persuaded, however, that in fact the dues de- linquency list for May had not been prepared prior to the May 23 staff meeting (since there is no evidence to the contrary , I will assume that the regular Friday staff meet- ing was indeed held on May 23) Bragg testified that the delinquency list is usually re- ceived by the union officers around the 20th of each month and is discussed at the next regular Friday staff meeting. Mary Austin has been the supervisor of the Union's fi- nance department for 20 years, and she testified as to the procedures employed by the Union, including those relat- ing to the recording of dues payments, the dispatch of "fi- nal notices" regarding payments due, etc. On three sepa- rate occasions in her initial appearance as a witness, she testified that the monthly delinquency list is prepared after the "final notices" are sent to those members who, as of the current month, have become in arrears for 3 months dues. Thus, Austin testified that "After the letters are prepared and mailed to the members, a list" of delinquents is pre- pared. When asked "When does [the name of a newly de- linquent member] go on the list, what period of time?," Austin answered, "Immediately upon the mailing of this letter." Austin testified, "This is what we call [the] delin- quency list, which is produced immediately after these no- tices are sent to our members. This list was sent (sic) based on notices sent May 27, 1975." 8 Salters was not always a convincing witness Her testimony contains some discrepancies, as Respondent points out in its brief But as General Counsel observes in its brief, Bragg's testimony was demonstrably suspect at times Of the two, f think Salters was the more credible witness f credit her testimony that she told Bragg on May 5 that she would pay her dues at the end of the month , and that he acquiesced I further credit her general ac- count of the May 23 conversations , which makes more sense than Bragg's version f suspect, however, that, as Bragg indicated , she was more voluble in those conversations than her testimony would show DIST. 1199, NATL. UNION OF HOSPITAL & HEALTH CARE EMPLOYEES 157 The delinquency list for the month of May is in evi- dence . The format of the caption is as follows: Drug Division Delinquency List AREA HLA MONTH May DATE NOTICE SENT May 27, 197.5 DEADLINE June 6, 1975 The following delinquent members marked * received statements and owe a balance on a new initiation fee. All others were sent Final Notices. The date indicated is for those sent prior to this month. There follows a list of members' names, their book num- bers, and their bargaining unit; some of the names have asterisks preceding them; others have a date indicating that they received a final notice prior to May. Thus, the remain- der of the caption, and the first delinquent listed, reads. NAME BOOK# STORE DATE SENT * Zenia Walker 33511 Upper Manh Nov. 25, 1974 Med Grp The language on the form, as shown above, indicates that the names of the delinquents listed on it who were being listed as delinquent for the first time had already received their notices prior to the publication of the delinquency list itself. Thus, one of the entries in the caption reads "DATE NOTICE SENT" followed by the date "May 27, 1975." The first sentences below that state, "The following delinquent members marked * received statements and owe a balance on a new initiation fee. All others were sent Final Notices " The foregoing language, as well as Austin's original testi- mony, clearly indicates that the delinquency list for May was not compiled until the final notices for the newly de- linquent members had been sent out on May 27. When a question was raised about the tense used in the caption, Austin was recalled to the stand and, contrary to her prior testimony, said that the delinquency list was in fact pre- pared on the 20th of each month. She further explained that even though the caption reads "DATE NOTICE SENT," it really means date notice "will be" sent. Although not spe- cifically asked, she presumably also would have said that the statement "all others were sent Final Notices" actually meant all others who had not previously received them "will be" sent final notices. Such a tortured construction of the language of the form is clearly at odds with her initial testimony, given three times, that the delinquency list is not prepared until after the current "final notices" are actually sent. Austin was also asked about the sentence in the explana- tory legend at the top of the list which states, "The follow- ing delinquent members marked * received statements and owe a balance on a new initiation fee." Only one name on the first page of the delinquent list bears an asterisk next to it; that is the name of Zenia Walker. When asked what the sentence meant, Austin testified: Zenia Walker made a payment, leaving a balance of initiation fee, and Verneal Salters made no payment so they (sic) was left with no balance and she didn't make a payment. It remained as is. JUDGE RIES: When you say owe a balance on a new initiation fee, you mean if somebody hasn't made any payment for- THE WITNESS: Hasn't made any payments at all. The difference in the two cards, if you look at the cards, Zenia Walker made a payment after that and after making the payment, she was left with a balance We are showing area director (sic) that Zenia Walker indeed did come and make a payment It wasn't com- plete and she still owes a balance. Whereas Verneal Salters made no payment so she owes everything from whatever point the letter was sent. The ledger cards for Zenia Walker are in evidence. They show that on November 25, 1974, Zenia Walker was sent a final notice, being 3 months delinquent in payment at that time. They further show that she made no additional pay- ment until May 30, 1975. Since, as explained by Austin, an asterisk would be placed next to the name of a delinquent member only if she had made some payment since she received her final notice, and since Zenia Walker made no payment until May 30, it is obvious that the asterisk next to Walker's name can only be explained by the fact that the delinquency list was not prepared until May 30 or thereaf- ter 9 Thus, despite the fact that Austin appeared to be a highly credible witness, I simply cannot give any credence to her testimony on this point I am therefore left to conclude that the delinquency list had not been prepared as of May 23, 1975, and that the delinquent members were not the subject of discussion at the staff meeting which presumably was held as a matter of course on that date. My conclusion in this regard is further supported, I believe, by the contradiction in the testimony of Bragg that Kamenkowitz had, on May 23, prior to the receipt of the call from Salters, "mandated" him to request Salters' termination. If Bragg had been so mandated, I find inexplicable his testimony that, during the call, he told Sal- ters "I want you to get down here and make arrangements to pay your dues." It therefore appears to me that the sequence of events occurred as follows. On May 23, Bragg was attending a staff meeting at which no discussion of delinquent mem- bers was had. He received a call from Salters complaining about the fact that she had not received her full retroactive pay. He then received a call from King, the administrator of Upper Manhattan Medical Group, who told him, as he testified, that Salters was "carrying on and complaining about not getting her retro money " He then spoke to his union delegates who told him that Salters was "cursing and carrying on and we met with management and it was not management's fault, but it was Zenia Walker's fault and she is new and we have tried to explain that to Mrs. Salters, but Mrs Salters did not want to hear anything." He then talked to Salters again and she "started yelling and scream- ing and carrying on and calling me all kinds of dirty names which I felt I didn't deserve, because I treated her like a e Perhaps because she had recognized this fact, Austin testified on recall that the asterisk next to Walker's name merely meant that she had "made some kind of arrangements to start making payments " Unlike the case of Janice Johnson, Respondent produced no notation showing that Walker had in fact made such an arrangement prior to May 30 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sister .. " Salters then hung up on him and when he called her back she hung up on him again. Shortly thereafter, Bragg initiated the formalities which resulted in the termination of Salters. The procedure the Union uses is somewhat cumbersome Bragg must fill out a form giving information about Salters, her history, the amount of her delinquency, the attempts he has made to collect dues from her, etc 10 The form must then be ap- proved by Kamenkowitz. It is thereafter sent to the con- troller, Arthur Schuman, and then forwarded to Austin's department, where a check is made to see that the member is in fact delinquent. When that is done, someone in Austin's department types up a letter which is signed by Schuman and sent to the employer involved The record shows that the letter requesting Salters' termination was mailed by the Union on May 27, 1975. As indicated above, the conversations between Bragg and Salters occurred on Friday, May 23. Monday, May 26, was Memorial Day, a holiday. The Union's letter to the employer must have been dispatched reasonably early on May 27, since around noon on May 28, the employer handed Salters a typewritten let- ter informing her that she was discharged. It will be recalled that Bragg admitted that Salters had told him on May 5 that she would pay the full amount of back dues at the end of May; I credit Salters' testimony that she told him this again on May 23. A review of Bragg's testimony indicates that at no time in the past had Salters made such a fixed and definite commitment to pay. He testified , without contradiction, that in November 1974 she had told him that she would pay her back dues when she received her income tax refund, a rather vague proposal. Thereafter, Bragg testified, Salters simply said that she would pay at sometime in the future, giving no special date. But despite the fact that she became much more spe- cific in May and told him on May 5, and again on May 23, that she would pay by the end of the month (May 30 fell on a Friday), Bragg refused to wait a few more days after May 27 to see if Salters would hold to her promise, and instead immediately set into motion, most probably on May 23, after his phone conversations with her, King, and the two union delegates, the procedure for removing her from her job. On the assumption that the delinquency of the members was not discussed at the staff meeting (if there was one) on May 23, it therefore appears that the initiating force for the removal of Salters was her telephone call to Bragg and its aftermath. Although I do believe the testimony of Bragg, as conceded by Salters, that he had been urging her to pay her back dues and had threatened to terminate her, he did not in fact do so at the end of the contract negotiations, despite his testimony that he had told her as early as November 1974 that it was only the pendency of the negotiations which prevented him from making good his threat. Nor did he attempt to terminate her after May 16, when she re- ceived a partial retroactive payment and failed to make a payment on her dues. The impulse to terminate her came 10 It is of interest that.although Bragg conceded that, on May 5, Salters had told him that she would pay her dues "at the end of the month," he wrote on the form, in the space for indicating the member's response to previous contacts, only "When she got the money, she would pay " about not as a result of a discussion at a staff meeting, but as a result of a phone call placed by her to him complain- ing about the administration of the contract and of adverse comments voiced about Salters to Bragg by King and the two union delegates. There is every reason to believe that Salters would not have been terminated on May 28, had she not made that phone call to Bragg on May 23. As previously stated, King had complained to Bragg that Salters was "carrying on and complaining about not get- ting her retro money." The union delegates had told Bragg that Salters was "cursing and carrying on" and complain- ing about the actions of a fellow member, Zenia Walker," whose inability to compute the overtime pay had caused the delay. Bragg testified that in the second call to Salters, she "started yelling and screaming and carrying on and calling me all kinds of dirty names, which I felt I didn't deserve ..." Bragg revealed a great deal, I think, when, in discussing the procedure for terminating Salters, he gra- tuitously interjected, "They probably didn't want to take her back, probably happy to get rid of her." When asked why he had ventured this opinion, he said, " Because Sal- ters unfortunately is very-at times uncouth, very crude, very unprofessional, and her coworkers don't particularly care for her, some of her coworkers." When asked how he knew this, he answered, " Because I have got a good rela- tionship with my members and my members were very in- dignant, as I testified before, very indignant and upset about the way she carried on about her members. Zenia Walker, her coworker, her sister, who made the mistake in paying the dues, paying the retroactive money-." Additional and convincing support for my conclusion that Bragg caused Salters to be discharged, in large part, for prohibited reasons, is found in other evidence in the record disclosing the leniency generally accorded to delin- quent members. The record shows, for example, that De- lores Williams was delinquent as of April 1973 and re- ceived a "final notice" on June 27, 1973. Although she made a $25 payment on November 5, 1974, this only paid her up through May 1973 Thus, as of May 28, 1975, the date on which Salters was terminated, Delores Williams was fully 2 years in arrears. Bragg explained his benefi- cence to Williams by saying, "I understand the people have tough problems and Delores Williams had children, she had family and Dust didn't want to terminate her from her job without giving her every opportunity to get it straight." He said, however, that he thinks that in "either April or May of 1975" he told Williams that he had no choice but to remove her from herjob. At that time Williams said that he did not have to do so because she was quitting. The record shows that Williams terminated on June 10, 1975.12 The fact is, however, that Williams was allowed to stay in a delinquent status of some 2 years until Bragg threatened her termination "in either April or May, 1975 " 13 The re- cord is silent on when the new "rule of thumb" allegedly 11 Referred to by Bragg as "our member, good union member" lz Williams did not testify ° In the light of Williams' record and Bragg's testimony that he was assigned "specifically to clean [Upper Manhattan Medical Group] because everybody was delinquent there," it is difficult to understand how he could testify that "[nlo one was as bad as Salters and no one refused to pay dues like Salters did " DIST. 1199, NATL UNION OF HOSPITAL & HEALTH CARE EMPLOYEES 159 promulgated by Kamenkowitz, requiring the termination of 1-year delinquents, was introduced; from Williams' re- cord it would appear that, at best, it did not surface until April or May 1975, when the decision to discharge Salters was made. 14 The May 1975 delinquency list shows that, as of May 28, seven Upper Manhattan employees were 3 months or more delinquent in their dues- Zenia Walker, 9 months; Emma Ford, 4 months; Doris Davis, 5 months; Arline King, 3 months; Salters, 13 months; Mary Layton, 5 months; and Constance Bernard, 4 months. Janice Johnson's name does not appear on the list, but other evidence shows that she was 7 months delinquent at that time. Similarly, the delin- quency list does not include the name of Delores Williams, for some unknown reason. The addition of Johnson and Williams to the list would mean that nine unit employees were more than 3 months delinquent. As of May 28, the bargaining unit at Upper Manhattan comprised 35 em- ployees (including Salters). Bragg testified that he spoke to some of the foregoing delinquents at the May 5 ratification meeting. Of those he mentioned, Zenia Walker was, as of May 5, 9 months de- linquent in her dues. Bragg testified that he asked the em- ployees to whom he spoke to on that date "to just make arrangements." It would appear, however, that Walker did nothing until May 30, as discussed above, and there is no evidence that Bragg took any further steps to have her make arrangements to pay her dues until she actually did SO. 15 As of May 5, Janice Johnson was 7 months delinquent. Bragg testified that he thought he spoke to Johnson at the ratification meeting. He interjected "though Janice John- son had already made arrangements with Miss Austin to pay"; the evidence shows that Bragg erred in so stating The fact is, according to Austin's notes, Johnson did not come to the office to make any arrangement until May 29. While those notes, as supplemented by Austin's testimony, say that Johnson agreed to mail $50 on May 29 and pay the balance due in two payments on June 13 and June 20, Johnson's ledger card shows that she did not make a $50 payment until June 12, 1975, and thereafter made no fur- ther payment until October 24, 1975, when she paid $25. It would therefore appear that Respondent maintained a flexible policy with regard to the dues delinquency of its members and was rather generous in that regard.16 It seems to me that, aside from its predischarge behavior, Respondent's conduct after Salters attempted to pay her dues on May 30 reflects a rigidity not characteristic of 14 The record also shows that, in 1974, employee Laura Gomez had been allowed to fall 12 months behind in her dues without incident 15 Walker made a payment of $76 on May 30 One could speculate that she, too, had received a distribution from the vacation club on that date 16 The May delinquency list in evidence shows that certain employees of Hudson Vitamin had received "final notices" as early as 1973 and had not had any sanctions imposed upon them Bragg testified, however, without contradiction, that those employees had already left the Hudson Vitamin bargaining unit The list also shows, however, that one Michael Keskeny, an employee of Bendiner & Schlesinger, received his "final notice" on July 25, 1974, the same day on which Salters had received hers, and apparently made no payments after that date it would be interesting to know what Keskeny's fate was under the 1-year "rule of thumb", the record, however, tells us nothing more about Keskeny Respondent's normal operation. As Bragg conceded, he had left a note on Salters' file that no dues were to be accepted from her unless Kamenkowitz approved. This note was appended after the request for discharge had been made, and was, according to Bragg, a routine procedure, which indicates that withdrawal of the request for termina- tion is contemplated as a possibility, even after discharge. When Salters attempted to clean up her account on May 30, however, Kamenkowitz refused to see her.17 In view of the extreme leniency which the Union had afforded to other employees in the past (and in fact had afforded to Salters for a period of some 2 years between 1972 and 1974), it is difficult for me to understand what legitimate reason the Union could have had for not accepting Salters' attempt to pay in full on May 30. Respondent cites the case of General Motors Corporation, Packard Electric Division, 134 NLRB 1107 (1961). In that case, the Board overruled Aluminum Workers International Union, Local No 135, AFL (The Metal Ware Corporation), 112 NLRB 619 (1955), where the Board had held that a full tender of dues made prior to actual discharge, even though a request for discharge had previously been made, is a proper tender, and that a refusal to accept the late tender and a subsequent discharge based upon the earlier request is unlawful in such circumstances. In General Motors Cor- poration, the Board said that where a union made a lawful request for discharge, its refusal to accept the tender of dues made to the union after the request for discharge but before the discharge took effect did not give rise to an inference of unlawful purpose simply from the fact that the union continued to seek the discharge. Its stated rationale was that "there can be little if any union security if dissi- dent members can frustrate the orderly administration of lawful collective-bargaining agreements by delaying pay- ment of dues and fees they are lawfully obligated to pay until the last minute before their actual discharge." 134 NLRB at 1109 That rationale makes sense in the context of a union which operates a tightly administered union- security system, inexorably bringing about the discharge of members when they fall into arrears. That sort of system very plainly was not in effect in the present setting. Here, the record shows, members could go into arrears for 3 months before their membership was terminated and, even after that occurred, years could go by without dues pay- ments being made and without the delinquent members suffering any sanctions For Respondent to suddenly draw the line at Salters is, in the circumstances of the case, high- ly suspicious; but, in any event, my reliance on Respondent's postdischarge conduct is simply supportive of the predischarge evidence establishing Respondent's un- lawful motive. I find, accordingly, that Respondent sought the dis- charge of Salters on May 27, 1975, primarily because she was perceived by Bragg to be a nuisance-she raised ques- 17 I believe Salters' testimony in this regard, despite Bragg's testimony that he would have seen Salters had she made an effort to come to Kamenkowitz' office and that he did not see her Neither Kamenkowitz nor his secretary were produced to deny Salters' testimony Salters is a forceful person and I do not believe that she would have let a job which she had held for nearly 6 years slide into oblivion without at least attempting to go to the top of the union hierarchy 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tions about the administration of the bargaining agree- ment, which irritated both Cecilya King, the administrator of Upper Manhattan Medical Group, and the union dele- gates at the Group, and which embarrassed Zenia Walker, the member of the bargaining unit who was apparently responsible for the company's failure to make appropriate payments under the bargaining contract.18 While I am not particularly sympathetic to the fact that Salters deposited in the vacation club moneys which could have been paid to the Union, probably so that she could earn some interest on those funds, I do note that Respondent collected a $25 initiation fee whenever a member fell more than 3 months in arrears and therefore more than recouped the interest which it otherwise could itself have earned if the dues pay- ments had been timely made. The foregoing consider- ations, however, are irrelevant ; the question is whether the discharge of Salters was caused by reasons other than her failure to pay her dues. I find that the efficient reasons for the discharge were as described above. I conclude, there- fore, that by demanding the discharge of Verneal Salters on May 27, 1975, and causing her to be discharged on May 28, 1975, Respondent violated Section 8(b)(1)(A) and 8(b)(2) of the Act. Cf. International Union of Electrical, Ra- dio and Machine Workers, AFL-CIO, Frigidaire Local 801 v. N. L.R.B, 307 F.2d 679, 684 (C.A.D.C., 1962). On my findings, Respondent's conduct would also be condemned under the theory announced by the Board in Miranda Fuel Co., Inc., 140 NLRB 181 ( 1962), enforcement denied 326 F.2d 172 (C A. 2, 1963). In addition, the preci- pitate discharge of Salters , after Respondent had cried "wolf" for so long and been so lax in notifying delinquent members as to precisely when Respondent would stop being benevolent, may well fall into that category of cases in which "the Board has fleshed out the statute by requir- ing the union to give reasonable notice that [the employee] will lose his job for non-payment of dues," N.L.R.B. v. Local 182, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America [Associated Transport, Inc.], 401 F.2d 509, 510 ( 1968), enfg. 156 NLRB 335. While Respondent had given such warning, it had done so with such frequency and without consequence that Salters could have been understandably misled. In such circumstances, a formal notification setting a reasonable deadline for paying her debt seems the least that was re- quired. I further conclude that the statement made by Bragg to 18 Respondent stresses Salters' testimony that Bragg said to her on May 23, "Listen , dust pay your dues or I'll send a letter," interpreting this as an offer of a last opportunity to square her account In the context of the remainder of Salters ' version of the conversation , which I credit , during which Bragg complained heatedly about Salters' making trouble , I view this less as an offer than as an expression of pique-in effect, that one who is delinquent in her dues had better keep quiet about the way in which the contract is being administered Furthermore , Bragg plainly extended to Sal- ters no meaningful opportunity to Fay, as indicated previously , he must have begun the termination process almost immediately after their conver- sation on May 23 , despite the fact that she had told him twice in May that she would pay at the end of the month Thus, even if the statement be interpreted as a genuine offer, it seems clear that Bragg's mental review of the previous occurrences, followed by Salters ' hanging the phone up on him for the second time, caused him almost immediately to retract it and to vent his emotions against her by initiating the discharge process Salters on May 27-"listen, just pay your dues or I'll send a letter"-constituted an unlawful threat in violation of Section 8(b)(1)(A) While Bragg had in the past, as Salters conceded, threatened to send a letter requesting her dis- charge, he had done nothing since he had talked to her at the May 5 ratification meeting, despite the fact that she had made no effort to pay her dues. I think it likely, as Salters testified, that when she told Bragg on May 5 that she would pay in full at the end of the month , he agreed to wait until then. It was not until Bragg received a call from Salters and was thereafter apprised by Cecilya King and by the other union members of their unhappiness with Salters that he reactivated his threat to seek her discharge; it was in that context, one which was not triggered simply by her failure to pay dues, that he again threatened to seek her termination. CONCLUSIONS OF LAW I Respondent, District 1199, National Union of Hospi- tal and Health Care Employees, a Division of RWDSU/AFL-CIO, is a labor organization within the meaning of the Act. 2. Upper Manhattan Medical Group is an employer en- gaged in commerce within the meaning of the Act. 3. By causing Upper Manhattan Medical Group to dis- charge Verneal Salters on May 28, 1975, for reasons other than her failure to tender dues and initiation fees, Respon- dent violated Section 8(b)(1)(A) and (2) of the Act. 4. By threatening Verneal Salters on May 23, 1975, that Respondent would seek her discharge for failure to pay dues, said threat being motivated by Respondent 's antipa- thy toward Salters for raising questions about the adminis- tration of the collective-bargaining agreement, Respondent violated Section 8(b)(1)(A) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of the Act, I shall order that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the purposes of the Act. Having found that the Respondent has caused Upper Manhattan Medical Group to discriminate against Verneal Salters, it will be recommended that the Respondent make Salters whole for any loss of pay and other benefits sus- tained by reason of the discrimination against her from May 28, 1975, to the day that the Respondent requests her reemployment. Backpay shall be computed in accordance with the Board's formula stated in F W. Woolworth Com- pany, 90 NLRB 289 (1950), together with interest at 6 per- cent per annum, as provided in Isis Plumbing & Heating Co, 138 NLRB 716 (1962) Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: DIST. 1199, NATL. UNION OF HOSPITAL & HEALTH CARE EMPLOYEES ORDER is The Respondent, District 1199, National Union of Hos- pital and Health Care Employees, A Division of RWDSU/AFL-CIO, New York, New York, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Threatening to cause Upper Manhattan Medical Group or any other employer to discriminate against em- ployees in violation of Section 8(a)(3) of the Act. (b) Causing Upper Manhattan Medical Group or any employer to discriminate against employees in violation of Section 8(a)(3) of the Act. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act 2. Take the following action which will effectuate the policies of the Act: (a) Make whole Verneal Salters for any loss of pay and other benefits she may have suffered by reason of the dis- crimination against her caused by the Respondent in the manner set forth in the section of this Decision called "The Remedy." (b) Notify Upper Manhattan Medical Group in writing that it has no objection to the employment of Verneal Sal- ters and that it requests Upper Manhattan Medical Group to return Salters to the employment from which she was discharged. (c) Post at its offices in New York, New York, copies of the attached notice marked "Appendix " 20 Copies of said notice, on forms provided by the Regional Director for Region 2, after being duly signed by Respondent's repre- sentative, 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. Reason- able steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Mail to the Regional Director for Region 2 signed copies of the notice attached hereto marked "Appendix" for posting by Upper Manhattan Medical Group, if it be willing, at its premises in New York, New York, in places where notices to employees are customarily posted. Copies of the notice, to be provided by the Regional Director for Region 2, after being duly signed by an authorized repre- sentative of Respondent, shall be forthwith returned to the Regional Director for such posting. 161 (d) Notify the Regional Director for Region 2, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 19 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, 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 20 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a hearing, that we violated the National Labor Relations Act, we hereby notify you that: WE WILL NOT threaten employees with loss of jobs for raising questions about the collective-bargaining agreement or for any reason other than their failure to pay dues and fees as required by a collective-bargain- ing agreement. WE WILL NOT cause or attempt to cause Upper Man- hattan Medical Group or any other employer to dis- criminate against employees in violation of Section 8(a)(3) of the Act. WE WILL request that Verneal Salters be returned to the employment from which she was discharged, upon our demand, on May 28, 1975, by Upper Manhattan Medical Group. WE WILL make Verneal Salters whole for any loss of pay and other benefits she may have suffered as a result of the discrimination against her since May 28, 1975. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them in Section 7 of the Act. DISTRICT 1199 , NATIONAL UNION OF HOSPITAL AND HEALTH CARE EMPLOYEES, A DIVISION OF RWDSU/AFL-CIO