John J. Roche & Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD John J. Roche & Co., Inc. and Henry Larkins Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees and Henry Larkins and John J. Roche & Co., Inc., Party in Interest. Cases 13-CA-14552, 13-CB-6002, and 13-CB-6097 August 31, 1977 DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND WALTHER On February 24, 1977, Administrative Law Judge Irving M. Herman issued the attached Decision in this proceeding. Thereafter, Respondents filed sepa- rate exceptions with supporting briefs, and the General Counsel filed cross-exceptions and a sup- porting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclu- sions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge determined that Respondents had violated Section 8(b)(1)(A), 8(b)(2), and 8(a)(3) of the Act by demanding dues from Henry Larkins during a period in which he was suspended from membership in the Union and by seeking and causing the discharge of Larkins for his failure to pay dues during that same period. We do not accept these findings of the Administra- tive Law Judge, primarily because the propriety or legality of requiring a union member to pay periodic dues while suspended from union membership was not the theory of the complaint herein, and we are convinced that the issue of whether or not the Union could properly require the payment of periodic dues from a suspended member was not sufficiently litigated in this case. In the complaint issued in these consolidated cases, the General Counsel alleged that Respondent Union had sought and secured the discharge of Henry Larkins "on some ground other than his failure to tender the periodic dues and initiation fees uniformly ' The General Counsel has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc.. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 231 NLRB No. 180 required as a condition of acquiring or retaining membership" in the Union. In his opening statement, the General Counsel explained that Respondent Union had violated the Act by not giving Larkins reasonable notice of his dues obligations and arrearages, by seeking his discharge after accepting a reinstatement fee, and by refusing to accept a tender of the amount of dues owed before citing Larkins to Respondent Employer. The Administrative Law Judge dismissed all of the allegations of the General Counsel based on Larkins' knowledge of his dues obligations, the erroneous acceptance of a reinstatement fee, and the Union's refusal to accept the payment of past dues before seeking Larkins' discharge. We hereby adopt those findings.2 In agreement with the Administrative Law Judge, we would find that the Union here properly fulfilled its fiduciary obligations before seeking the discharge of employee Larkins. It is well settled that the right to request the discharge of a union member is accompa- nied by an obligation to afford that member an opportunity to satisfy his indebtedness before any attempt is made to effectuate his discharge, but we are unable to agree with our dissenting colleague that such an opportunity was not fully afforded in the instant case. Initially, it must be noted that there is absolutely no evidence in the record for the dissent's assertion that the Union was "negligent" in not giving notice to the Employer that Larkins was now going to have his dues checked off rather than paying them directly to the Union. Rather, any delay was due to the normal administrative hiatus involved in effectuating a change in the deductions from an employee's paycheck. Notwithstanding this delay, as found by the Administrative Law Judge, Larkins had been a member of the Union since 1969, and was fully aware of his general dues obligations as well as the possibilities of suspension from the Union and discharge from employment for the failure to pay dues. Even granting that the Union was less than prompt in checking the dues delinquencies of its member- ship, it nevertheless posted a list of members more than 2 months in arrears of their dues payments in early February with instructions for those on the list to see the financial secretary if there were any questions or problems. Larkins' name was included on this list, along with some 30 others. Although 2 We also adopt the Administrative Law Judge's finding that the Union violated Sec. 8(bXIXA) by not allowing Larkins a 60-day grace period before demanding payment of dues after his discharge and reemployment. I See, e.g., Rocket and Guided Missile Lodge 946, International Associalion of Machinists and Aerospace Workers, AFL-CIO (Aerojet-General Corpora- lion), 186 NLRB 561 (1971). 1082 JOHN J. ROCHE & CO. Larkins testified at first that he had not seen the list, he later testified that he had seen the list but believed it did not apply to him. Larkins apparently held this view despite the fact that he was aware through his paycheck stubs that no dues had been remitted to the Union for the months of September, October, and December. The record reflects that the Union, after the notification of dues delinquencies on the bulletin board, made several informal efforts to obtain the past dues owed by Larkins. These efforts were rebuffed by Larkins, who continually maintained that it (payment of dues) simply was not his responsibility, and that he "had it beat." Finally, after receipt of a notice of suspension from the International Union on February 27, Larkins in- quired about his dues obligations with the appropri- ate union officers. Our dissenting colleague would hold that Larkins' offer to pay his back dues but not the reinstatement fee on that date was a valid tender which the Union improperly refused. He would apparently find this to be the case notwithstanding the uncontroverted facts that Larkins owed the dues for the months claimed, that it was acknowledged that the dues were owed, and that the Union's bylaws validly provide for the payment of a reinstatement fee after suspension from membership. The General Counsel introduced no evidence to show that the Union, in its steps to collect delinquent dues from its members, proceeded against Larkins in a manner different from any of the other members with claimed dues delinquencies. Indeed, there is no evidence of any disparate treatment of Larkins in the entire record.4 Our colleague asserts that the finding the Union had made a demand for discharge by its communica- tion of March 10 "just isn't so." However, as noted by the Administrative Law Judge, we found a similar notification involving the same Union to have constituted an operative demand for discharge in Acme Fast Freight, Inc. 5 The "very terms of the contract" referred to by the dissent provide that if, at a hearing, it is determined that an employee is in violation of the union-security provision, "he shall be released." (Emphasis supplied.) The use of the term "shall" certainly does not indicate that the discharge of an employee in violation of the union-security clause is contingent upon any further action on the part of the Union, negating our colleague's conten- ' In fact, it appears from the record that the Union went out of its way to insure that Larkins maintain his status and preserve his employment. Throughout. however, Larkins consistently maintained that he "had it beat" and that. by authorizing dues checkoff, his payments were now "someone else's responsibility." ; 134 NLRB 1131. 1135 (1961). See also General Motors Corporation, Pacard Elecrric Diisiion, 134 NLRB 1107. 1I109(1961). i In this regard. it is clear that under the contract an employee's optional tion that the right of the Union to request Larkins' discharge did not accrue until after the hearing. 6 If it is true that the fiduciary responsibilities imposed upon unions by our Act were designed to insure against unions employing their powers to request discharge in a discriminatory fashion, it is equally true that these responsibilities were never intended to set as a shield for those who seek to avoid their legitimate dues obligations.7 The Administrative Law Judge went on to find that Respondents had violated Sections 8(b)(l)(A), 8(bX2), and 8(a)(3) of the Act by the alleged unlawful demand for dues during a time when Larkins was suspended from the Union, and by the subsequent demand for, and actual discharge of, Larkins for the nonpayment of those dues. According to the Admin- istrative Law Judge, the Union "acknowledged" that it was not entitled to any dues payment while Larkins was on suspended status. We find merit in Respondents' respective conten- tions, and conclude that the 8(bX)(I)(A), 8(b)(2), and 8(a)(3) findings with respect to the Union's demand for dues and discharge as a result of nonpayment of dues while Larkins was suspended must be reversed. As noted above, the complaint issued in this case does not refer to a violation because of the collection of dues from a suspended member, nor was there any statement in the General Counsel's opening remarks that could be construed as putting Respondents on notice that they were to defend against or explain the appropriateness of receiving dues from a suspended member. Furthermore, nothing developed as evi- dence by the General Counsel during the course of the hearing was aimed at charging the Union with this violation. Instead, the General Counsel's case was appropriately directed toward those topics discussed in his opening remarks, i.e., the fiduciary duty on the part of the Union to inform Larkins of his dues obligations, the erroneously accepted rein- statement fee, and the refusal of the tender of dues prior to discharge. The General Counsel now urges that the issue of the demand for dues from a suspended member was well within the ambit of the complaint's allegations, since the complaint specifi- cally attacks the legality of the Respondents' respec- tive conduct at a hearing held on April 7, 1975, wherein Larkins' liability for December dues (when he was suspended from membership in the Union) was raised as a part of the reason for his discharge. right to a hearing cannot be equated with some type of mandatory formal adjudication as our dissenting colleague holds. Simply put. the kind of notice sent by the Union on March 10 requests the employee's discharge for failure to tender periodic dues, but an employee may dispute the fact that he has failed to tender his dues at the hearing. I See Great Lakes District, Seafarers' International Union of North America, AFL-CIO (Tomlinson Fleet Corporation), 149 NLRB 1114 (1964). 1083 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The difficulty with this argument is that, while it is true the obligation for December dues was raised at the April 7 hearing, the entire thrust of the General Counsel's case was directed at the alleged violative conduct referred to in his opening remarks, and not at any violation based on a demand for dues while a member was on suspended status. Thus, even assuming we could agree that the demand for dues from a suspended member was arguably related to the broad outline of the allega- tions of the complaint, it is clear from the record that the General Counsel did not pursue this alleged violation during the course of the hearing. No mention is made of this theory in .the General Counsel's opening or closing statements, in his presentation of his case-in-chief, nor in his posthear- ing brief to the Administrative Law Judge. In these circumstances, without reaching the merits, we are constrained to conclude that the issue of the obligation of a suspended member to tender periodic dues was not sufficiently litigated to permit a finding to be made as to it.8 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Brotherhood of Railway, Airline and Steamship Clerks, Freight Handlers, Express and Station Employees, Milwaukee, Wisconsin, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Demanding dues or collecting dues under a checkoff authorization of any employee for any period during which said employee is under no legal obligation to pay such dues. (b) In any like or related manner restraining or coercing any employee in the exercise of rights guaranteed by Section 7 of the National Labor Relations Act, except to the extent that such rights may lawfully be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Reimburse Henry Larkins the sum of $11, with interest,9 for dues unlawfully withheld in June 1975. (b) Post at its business office and meeting halls copies of the attached notice marked "Appendix." 1 0 International Offset Corp., 210 NLRB 854 (1974). In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior to August 25. 1977. in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. Copies of said notice, on forms provided by the Regional Director for Region 13, after being duly signed by an authorized representative of Respon- dent Union, shall be posted by Respondent Union immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (c) Sign and mail sufficient copies of the said notice to the Regional Director for Region 13 for forward- ing to John J. Roche & Co., Inc., if that Company is willing, for information and posting by it at all locations where notices to its employees are custom- arily posted. (d) Notify the Regional Director for Region 13, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. IT IS FURTHER ORDERED that all allegations of violations by Respondent Employer be dismissed. MEMBER JENKINS, dissenting in part: The existing collective-bargaining agreement be- tween the Employer and the Union contains a valid union-security clause and, without question, the Union has the right, pursuant to this agreement, to request the discharge of an employee who has failed to tender payment of the periodic dues required of a union member. However, with this right comes the obligation on the part of the Union to properly notify the employee as to the nature and extent of his delinquency and to afford him an opportunity to satisfy his indebtedness before any attempt is made to effectuate his discharge. Here, in my judgment, the evidence shows that the Union failed to meet its fiduciary responsibilities to employee Larkins and, as a consequence, the effectuation of his discharge was in violation of our Act. Larkins has been a member of the Union since 1969 and it had been his usual practice to pay his dues directly to the Union's collection agent. However, on September 11, 1974, Larkins decided to have his dues deducted from his paycheck and, on that date, he executed the necessary checkoff authorization forms. Shortly thereafter, Larkins was advised by an agent of the Union that the checkoff would cover his future dues obligations. Unfortu- nately, the Union failed to give proper notification to 'o In the event that this 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." 1084 JOHN J. ROCHE & CO. the Employer that Larkins was now on checkoff and, as a result, no dues were deducted from his paycheck for the month of September. Larkins did not work during October because of a disciplinary suspension. Under the Union's bylaws, Larkins did not owe regular dues I for October because he was not working. In November Larkins' dues were properly checked off, but again in December no dues were deducted from Larkins' paychecks even though he worked during the entire period. Following this, regular monthly deductions for Larkins were made until the time of his discharge. The Union's bylaws provide that a member who is in arrears of his regular dues payments shall be automatically suspended from membership at the end of the second month for which he owes dues, with no notice of suspension required. The bylaws provide further that a suspended member may be reinstated by payment of the back dues together with a reinstatement fee, subject to approval by the Union. The Union was lax in checking on the dues delinquency of its members and it was not until January 1975 that Larkins' dues delinquency was discovered. The Union posted a list of delinquent members in early February 1975 which included Larkins' name. Larkins responded by advising the Union that he was on checkoff and therefore his dues were "covered." On February 27, 1975, the Union advised Larkins by letter that he was automatically suspended as of October 31, 1974, and that, to avoid being cited to the Employer for noncompliance with the union-security clause in the contract, Larkins would be required to pay his dues for the months of September, October, and December 1974, plus a reinstatement fee of $45, within 10 days. At a union meeting held that same date, Larkins offered to pay his dues for September, October, and December, but not the reinstatement fee. The Union rejected the offer and on March 10 it notified the Employer of Larkins' noncompliance. On March 24, Larkins met jointly with representatives of the Union and the Employer and, at this time, Larkins offered to pay all back dues plus the reinstatement fee. The union representative, acting apparently under the mistaken impression that Larkins had aiready been terminat- ed, told Larkins that it was only necessary for him to pay the $45 reinstatement fee and this would enable him to return to work. Larkins tendered payment of the fee and the union representative accepted it. Sometime later, the Union realized its error and on " In such circumstances, a nominal fee of $1.50 is charged. 1 Under sec. 3(d) of the contract an employee who is cited for dues delinquency is entitled to request a bipartite hearing to resolve the matter. Sec. 3(d) further provides as follows: March 31 it returned the payment to Larkins. On that same date, the Employer notified Larkins that the Union had cited him for noncompliance with the dues requirements of the contract and that, pursuant to the contract, he was entitled to a hearing on the matter.1 2 A hearing was held on April 7 at which Larkins unsuccessfully argued that his checkoff authorization absolved him of all responsibility with respect to the payment of dues. On April 24, the Employer advised Larkins that his employment was terminated as of that day. I have set forth the chronology of events in some detail to show the many ways in which the Union failed in its responsibilities to Larkins. Larkins was charged with being delinquent in his dues for the months of September, October, and December. But who failed in their responsibilities, Larkins or the Respondents? Larkins' dues for September were not checked off because of the Union's negligence in failing to give timely notification to the Employer that Larkins had executed a checkoff authorization. For October, no dues, other than the payment of a nominal fee, were required of Larkins due to the fact that he did not work during that month, and, while it is true Larkins should have made arrangements for the payment of the $1.50 fee, it must be remembered that it was not until some 4 months later that the Union advised Larkins of his delinquency and, until then, Larkins was relying on the earlier assurances of Union Agent Galik that checkoff would cover his dues obligations. There is no explanation for the failure to deduct Larkins' dues for the month of December, but it is clear that the dues should have been deducted, and wherever the fault lies it is not with Larkins. In this posture, it is difficult for me to see how the Union could legitimately claim that Larkins was suspended as of October 31, 1974, and that he was required to pay a $45 reinstatement fee in addition to his back dues. When notified of his alleged delin- quency in February, Larkins did in fact offer to pay whatever dues were owing, but objected to the payment of any reinstatement fee. This offer was unacceptable to the Union. But if one considers the fiduciary responsibilities a union owes to its members can it really be said that the Union was entitled, in these circumstances, to demand the payment of a reinstatement fee from Larkins? I think not and, accordingly, I would treat his February 27 offer to pay back dues as a valid tender which occurred prior to any even arguable request for his discharge. If it is found that the employee is in violation of the provisions of this rule, he shall be released and have his service and senioriil terminated as soon as a qualified replacement can be secured. but in no case later than thirty (30) calendar days from date of hearing. 1085 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I think that it is important to note also that on March 24 Larkins tendered full payment of all dues and the previously disputed reinstatement fee and that the Union accepted at least to the point of taking payment of the $45 reinstatement fee. My colleagues' answer to this is that the tender came too late because the Union had formally requested the Employer to discharge Larkins on March 10. But this just isn't so. The Union's March 10 letter to the Employer is nothing more than it purports to be, i.e., a notification, pursuant to the contract, that Larkins was delinquent in his dues. Under the contract, Larkins had the right to a formal hearing to challenge the Union's assessment of his dues liability, a right which he fully exercised here. Now, unless my colleagues are contending that this hearing is some meaningless after-the-fact determination, it would seem, at least to me, that, by the very terms of the contract, the Union's right to request Larkins' discharge did not come into being until Larkins' dues liability had been adjudicated, i.e., at the conclusion of the hearing on April 7. Long before that, Larkins had made a full tender of dues and fees and the Union accepted a partial payment without demand for any further moneys. The violations in improperly demanding and obtaining Larkins' discharge for moneys not owed but improperly demanded, and for moneys owed because of the Union's and the Employer's mistakes rather than Larkins', are plain. It is equally plain that this is the issue in the case, rather than some esoteric and recondite question about, as my colleagues phrase it, the propriety of "collection of dues from a suspended member." Their assertion that the matter was not fully litigated is contradicted by the record's display of the facts I have recounted above. For these reasons, I would find that Respondent Union's request for Larkins' discharge violated Section 8(b)(1)(A) and 8(b)(2) of the Act and that Respondent Employer's discharge of Larkins violat- ed Section 8(a)(3) of the Act. In all other respects, I agree with the conclusions reached by my colleagues. APPENDIX NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT demand dues or collect dues under a checkoff authorization of any employee for any period during which said employee is under no legal obligation to pay such dues. WE WILL NOT restrain or coerce any employee in any like or related manner in the exercise of his or her rights under the National Labor Relations Act, except to the extent that such rights might be affected by an agreement lawfully requiring membership in a labor organization as a condi- tion of employment. WE WILL reimburse Henry Larkins the sum of $11, plus interest, for dues withheld from him in June 1975. BROTHERHOOD OF RAILWAY, AIRLINE AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYEES DECISION STATEMENT OF THE CASE IRVING M. HERMAN, Administrative Law Judge: This consolidated case was heard before me at Chicago, Illinois, on February 26 and 27, 1976. The complaint issued after due and timely service of charges filed by Henry Larkins, an individual. The primary issues are whether Brotherhood of Railway, Airline and Steamship Clerks, Freight Han- dlers, Express and Station Employees (with its constituent organizations hereinafter called the Union) violated Sec- tion 8(b)(l)(A) and (2) of the National Labor Relations Act, as amended (hereinafter called the Act),' by enforce- ment of a union-security clause in its contract with John D. Roche & Co., Inc. (hereinafter called the Company or Employer) against the Charging Party; and whether the Comphny violated Section 8(a)(1) and (3) of the Act by discharging the Charging Party at the Union's request. Upon the entire record,2 including my observation of the witnesses, and after due consideration of the briefs filed on behalf of the General Counsel and the Union, I make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE EMPLOYER The Employer and Union admit, and I find, that the Employer is an Illinois corporation, maintaining and operating a freight warehouse in Northlake, Illinois; and that during the calendar year 1975, a representative period, in the normal course of its business operations, the Employer received over $50,000 worth of goods from outside Illinois. The Employer admits, the Union does not deny, and I find that the Employer at all times material herein has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. l 29 U.S.C. 15.etr seq. 2 Certain errors in the transcnpt herein have been noted and corrected. 1086 JOHN J. ROCHE & CO. II. THE UNION The Union admits, the Employer does not deny, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. .The Facts I. Union-security provisions Since October 1, 1971, there has been an agreement in effect between the Employer and Union containing in paragraph 3 (called rule 3) a combination maintenance-of- membership and 60-day union-shop clause providing in part as follows: (d) BRAC will notify Company of employees who fail to tender their application and fee within the time limits specified above; or employees who fail to tender uniform dues within the required time. Upon receipt of such notice, the Company will, within ten (10) calendar days of such receipt, so notify the employee concerned in writing by Registered Mail, return receipt requested or by personal delivery evidenced by receipt. Copy of such notice to be furnished the BRAC representative who cited the employee. An employee so notified who disputes the fact that he has failed to comply with the terms of this Rule shall within a period of ten (10) calendar days from receipt of such notice, request the Company in writing by Registered Mail, return receipt requested, or by personal delivery evidenced by receipt, to accord him a hearing. Upon receipt of such request the Company shall set a date for hearing which shall be held within seven (7) calendar days of the date of request therefor. Notice of the date set for hearing shall be promptly given the employee in writing with copy to the BRAC, by Registered Mail, return receipt request- ed, or by personal delivery evidenced by receipt. A representative of BRAC shall attend and participate in the hearing. If it is found that the employee is in violation of the provisions of this rule, he shall be released and have his service and seniority terminated as soon as a qualified replacement can be secured, but in no case later than thirty (30) calendar days from date of hearing. Paragraph 3(e) of said agreement provides for checkoff of fees and dues of willing employees, in part as follows: The local lodge shall certify to the Company in writing each month a list of its members working for the Company who have furnished the required authoriza- tion, together with an itemized statement of dues, initiation fees and assessments (not including fines and penalties) to be deducted for the month designated from the pay of the employees shown thereon. The Company agrees to furnish to the General Chairman and the Financial Secretary of the Lodge the names of : He mentioned both April and June as the time of his request. He testified he addressed his request to Jan Pappas who became the Local lodge chairman and financial secretary-treasurer January I1 1975. and that she new employees hired and delete the names of those who are no longer employed. If an employee who has signed a check-off form has no earnings on the payroll from which the deduction is to be made, he must make arrangements to personally pay such dues to the Financial Secretary of the Lodge. According to Company President Terselich, every employ- ee was given a copy of the agreement upon its negotiation as part of a packet which included, inter alia, new W-2 forms and company rules marking the Company's succes- sorship to the Milwaukee Railroad which had theretofore employed the employees. Larkins was one of such employees, having joined the Union when he went to work for Milwaukee Road in 1969. Larkins testified, however, that he did not receive a copy of the contract until April 1975 when he requested it following the hearing upon his citation for violation of his dues obligation.3 2. The Union's laws governing suspension for nonpayment of dues The Union's statutes for the government of lodges, included in a booklet that also contains its constitution, has the following provisions: ARTICLE 6 SUSPENSION Section 1. Dues are due and payable on the first day of each calendar month, which means that a member owes two months dues on the first day of the second month. It is the responsibility of every member to know when dues are payable and pay them to an authorized representative of his lodge within the time limits specified in this Article. No demand for payment of such dues or notice of nonpayment thereof or of delinquency is necessary or required. A member who fails to pay his dues within the time limits specified in this Article is automatically suspended at 12 o'clock midnight of the last day of the second month for which he owes dues and no notice of suspension is required. The secretary shall report such suspension on the next quarterly per capita tax report to the Grand Lodge. ARTICLE 7 REINSTATEMENT Section 1. A member suspended for non-payment of dues may apply for reinstatement upon payment of reinstatement fee plus any unpaid assessment or any unpaid dues for which he was liable under a union shop or other agreement between the Brotherhood and his employer at the time of suspension. If the suspended member is subject to the terms and conditions of a union shop, check-off or a union security agreement between the Brotherhood and the Employer, and has been reported by the lodge to the General Chairman referred him to the Company. She testified that she gave the few copies she had to employees but that Larkins was not one of them. evidently hasing made his request after her supply had been exhausted. 1087 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for non-compliance with the terms and conditions of such agreement the application and tender of dues and/or fees shall not be accepted unless approved by the General Chairman under whose jurisdiction the suspended member is subject before his application can be acted upon by the lodge. The International Presi- dent may make exceptions where in his judgment exceptions are necessary to accommodate the terms and conditions of union shop or other agreements. Larkins testified he did not receive a copy of this booklet until February 27, 1975, and there is no specific evidence to the contrary. However, there was credible evidence by Pappas indicating that new members are mailed copies by the Grand Lodge. In addition, article 6 is prominently displayed monthly on the inside back cover of the Railway Clerk Interchange, a magazine published for the Union's membership, with the following introduction: IMPORTANT NOTICE The attention of our members is called to Article 6, Section I of the Lodge Statutes which provides that members owing two months' dues will be AUTOMATICALLY SUSPENDED at 12 o'clock midnight on the last day of the second month WITHOUT NOTICE. Here is the complete text of Article 6, Section 1: Although Larkins testified without objection that while he had received this magazine "around about '73 or '71, something like that," he did not receive it in 1974 and that delivery was not resumed until April 1975, the General Counsel stipulated the facts set out in Joint Exhibit I which recites that the magazine is "sent to every member," and Larkins conceded on cross-examination that he knew the publication is "supposed to go to every member" and that the issues he had received before 1974 contained the notice in question.4 Larkins also admitted that his old dues card, used before he went on checkoff, contained essentially the same message. 3. Larkins' precheckoff dues record Prior to September 11, 1974, Larkins paid his dues directly to the union agent who came to the plant periodically to collect. Contrary to his initial testimony he was not always prompt, conceding, when pressed, first, that there were delays in payment "like maybe a few days, or something like that," and later, that he "might have been a month behind ... at one month or another;" and that on some occasions Zielen, who was then secretary-treasurer, would lay out the money for him subject to later reimbursement. In April 1973 Larkins was erroneously cited to the Company under paragraph 3 of the agreement on the mistaken belief that he had failed to comply with his dues obligation by being 5 months in arrears.5 The matter was 4 Pappas and McPherson, general chairman of System Board No. 24, which includes the Local lodge, testified that they had regularly received the magazine throughout 1974 and 1975. ; The mistake stemmed from a confusion of names. '' The form indicates copies going to "Railway officer," "System Board of Adjustment," and "Local Lodge." cleared up, but Larkins conceded at the instant hearing that at least since that incident he was aware that nonpayment of dues could cause the loss of his job. 4. The checkoff authorization, Larkins' arrearages thereafter, his automatic suspension, and responses when notified On September 11, 1974, Larkins informed Galik, the Company's timekeeper, who also happened to be the Union's sergeant-at-arms and recording secretary, that he wished to go on checkoff. Galik brought him the necessary form addressed to the Company, 6 which Larkins executed, Galik noting on the form that Larkins' dues were "Paid up to & Incl Aug." Galik told Larkins at the time he would no longer have to worry about paying his dues because they would be deducted from his pay. Shortly before this, Larkins had paid Zielen $22 for 2 months' dues which Zielen had receipted on Larkins' dues card for July and August, at the same time placing a question mark in the September box to reflect Larkins' claim that he had already paid for July, and promising Larkins to check into this and advise him what the Union's records showed. Zielen never reported back to Larkins about the matter. The question arose because Larkins' original dues card had been stolen and the above-men- tioned entries were the first on the new card. On September 16 Zielen was informed by written form from the System Board chairman that the wage assignment authorization had been received and that "[t]hese forms" would be furnished to the Company before October 6 "for dues deduction from the last half paycheck for that month, which will cover dues for the month of November 1974." 7 Although addressed to Zielen as local secretary-treasurer, this form indicates the sending of a carbon copy to the same addressee. As far as appears, no copy was sent to Larkins. Relying on Galik's assurances, Larkins testified, he made no dues tender for September even though he knew no deduction had been made therefor from his pay. Larkins was suspended by the Company for the entire month of October for lateness and absences. 8 Under the Union's constitution, however, retention-of-membership dues of $1.50 per month are required in such circumstanc- es, and Larkins admittedly knew this. He nevertheless made no tender for October. He testified on direct examination in this connection as follows: Q. Why didn't you pay during September, 1974? A. Because I was told I was secure by being on the checkoff. I thought I was secure. Q. Now, you did not work during October, nine- teen seventy-four? A. No. Q. And why was that? A. I had 30 days suspension. 7 No explanation appears in the record for the Union's need to send the form to the Company to which the original form had been addressed. It must be inferred that Galik had accepted the authorization on the Union's behalf rather than in his capacity as the Company timekeeper. 8 According to his letter of March 19, 1975, to McPherson, he was out of work from September 30 to November 1. 1088 JOHN J. ROCHE & CO. Q. Did you pay any dues to the Union during October, nineteen seventy-four? A. No, I didn't. And again on cross: Q. (By Mr. Hirsh) When you were off for the month of October, you knew, did you not, that you would have to pay $1.50 out-of-work dues for that month? A. No. I feel like, if I'm secure, yes, I should have been told and pay extra. Q. You thought the Company would pay over $1.50 for October? A. Check off all dues as far as I'm concerned. Q. You thought once you signed a checkoff authorization the company would take care of every- thing? A. I thought it was complete, to my knowledge. Q. And it was not your responsibility then to look after it; is that correct? A. Not exactly. Q. It was now the Company's responsibility? A. Well; right. They paid me. Larkins' dues were checked off for November but, for some reason undisclosed by the record, not for December although the deductions resumed in January 1975, continu- ing through May.9 Meanwhile, however, on February 27, 1975, Larkins received a letter from McPherson, dated February 24, informing him as follows: We have been advised by the Secretary of Lodge No. 549 that you were automatically suspended as of midnight October 31, 1974 for failure to pay dues for the months of September and October. Inasmuch as the terms of the Union Shop Agreement require that employees represented by our craft and class shall maintain membership in such Organization, it is the intent of this notice to afford you an opportunity to reinstate your membership in the Brotherhood of Railway Clerks by payment of the reinstatement fee of $45.00, plus the dues you owe for the months of Sept. Oct. (o.w.) Dec. (or $68.50) on or before March 7, 1975. An application blank is enclosed for your execution in applying for your reinstatement. Please return it to this office with your remittance within the time specified above in order to avoid the necessity of my citing you to Management, for such citation could result in the loss of your seniority and removal from service. I trust you will give this matter your prompt consideration for it is not my desire to pursue the provisions of the Union Shop Agreement to remove an employee from service, but merely for maintaining membership. This letter was based upon information furnished McPherson on January 30 by Pappas which she had " Nobo&d ever asked the Company why the December deduction hb' not been made. discovered while preparing her first per capita tax report, for the last quarter of 1974. Zielen, who helped her with the report, was unable to explain to her why numerous employees had gone uncited and been permitted to continue to work despite defaults which in some cases extended to periods of 4-6 months. Larkins' name was last on the list of those given McPherson and, unlike the others identified as employees of the Company, Larkins was inadvertently identified as an employee of Milwaukee Road. McPherson replied immediately to Pappas with the following letter of January 31: This will acknowledge receipt of your letter of January 30, 1975 file Susp-l, listing 31 members suspended for non-payment of dues for various months. Your statement "I trust you will notify all parties concerned with the suspension of 31 members listed above" is not clear. The procedure and policy adopted by this System Board regarding application of the Union Shop Agreement is as follows. When members leave the service and are suspended for non-payment of dues owed at the time they leave, this office is so notified and we mark our records accordingly. This office is also notified when a member, who is still working and retaining seniority, is suspended for non-payment of dues, and has failed to promptly reinstate his membership when so notified by the Financial Secretary-Treasurer of his arrearage. In that case, we should be furnished all details, such as home address, months for which he owed dues, and if the member worked less or more than 40 hours during each of the months for which he owed dues. Once this office is so notified, the Financial Secretary-Treasurer cannot accept reinstatement fees and dues from the suspended member. When this office is notified, we give the member an opportunity to reinstate within 10 days from date of our certified letter, by payment of reinstatement fee and all dues owing, plus current month's dues. If the member fails to comply as specified in our letter, we pursue the further provisions of the Union Shop Agreement by citing him to management. It would appear, from your list, that these members should be shown as suspended on the per capita tax report; however, it is noted B. Cartagena, for one, is not so shown on the 4th quarter tax report, and per capita tax was paid for him for November and December. Also, the per capita tax report fails to show in instances of suspended members, whether they quit, meaning left the service, were sick, out-of-work etc. as required per instructions on reverse of the per capita tax report forms. I am returning your letter to you with the request that you check to determine whether or not the employees listed in your letter as suspended are still in the service of the company or carrier. 1089 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For those who have left the service, we will just mark our records accordingly, and you would do likewise. For those still working and who have not thus far reinstated, please furnish full details and information as outlined herein, and if the member was liable for full dues or retention-of-membership dues for each month dues are owed, and we will handle the matter in line with the System Board policy. Your cooperation to the above extent will be appreciated. Should you have any further questions in this regard, please do not hesitate to advise. In accordance with McPherson's instructions to contact the defaulters directly, Pappas prepared a list of those suspended, advising them to see her about reinstatement. According to her and Shop Steward Zonka, Larkins' name was on the list. The list was posted the first week in February. On February 21, having been unsuccessful in collecting from 21 of the employees involved, Pappas testified, she listed them for McPherson; this time Larkins' name appeared among the other employees of the Compa- ny but, unlike them, out of alphabetical order.'0 Pappas testified that Larkins had come to see her on February 18 claiming his dues had been deducted; that she went over his check stubs with him and Zonka, showing no deduc- tions for the amounts in question, and promised to review her own records; that after doing so she told Zonka to try to get Larkins to make the necessary payments; and that she thought that even as early as February 18 Larkins took the position "that it wasn't his fault, that he was on checkoff, and it was our responsibility." According to Zonka, he told Larkins he could lose his job for failure to pay but Larkins laughed and said, "No way you can do that to me," "This is the Company's mistake," "I got it beat." Zonka also testified that he had numerous similar conversations with Larkins between that time and Febru- ary 27. According to Larkins, he had had no indication from either the Company or the Union, prior to McPherson's letter, that he was in default." After first denying that he remembered a notice posted on the plant bulletin board in the first week of February listing employees behind in their dues, he admitted having "heard a few fellows" talk about it "but it didn't hit me," and he testified that although he had not seen the list his name was not on it. However, his testimony on redirect in this connection was as follows: Q. Now, Mr. Hirsh asked you if you had seen a notice posted at the warehouse, and I believe you testified you hadn't seen it but you had heard about some kind of posting from some other people; is that correct? A. That's right. Q. And at one point you said, I believe-and correct me if I'm wrong-that you didn't look at the '° McPherson sent the others so listed similar letters to that sent to Larkins on February 24. [] He testified that, although he had seen Pappas "a few times" at the plant after her election as secretary-treasurer. he did not know who she was until the union meeting on the night of February 27. thing. As far as you knew, it didn't concern you and then you said something about it didn't reach you. A. That's right. My name wasn't up there in that list that they had at that time. Q. From your understanding of what you heard about the thing that was posted did it have something to do with seniority? A. It have, yes. It have something to do with paying your dues or either warning you, when they put you on that board. Q. But you didn't see it? A. I didn't see that. Q. And nobody from the Union came and told you to look at it? A. They didn't told me that, no. JUDGE HERMAN: When was that? THE WITNESS: This was- JUDGE HERMAN: When that notice was posted? THE WITNESS: I think this was around January-or somewhere back-a little bit before I got this letter. I'd say around bout January, the last of January. JUDGE HERMAN: Of seventy-five? THE WITNESS: That's right. They put up about 59 names up there, I think it-but I was not in those 59 at the time. JUDGE HERMAN: How do you know? THE WITNESS: I looked at the bulletin board. JUDGE HERMAN: Oh, you did look at the notice? THE WITNESS: Oh yes, I looked at that. JUDGE HERMAN: I thought you just said you hadn't seen the notice. THE WITNESS: I said I didn't see my name in the notice. Larkins attended the regular monthly union meeting on the night of February 27. After the meeting he offered to pay Pappas all but the $45 reinstatement fee, but she refused to accept the lesser amount, insisting, according to his undenied testimony, on "[t]he whole sixty-eight, or nothing at all." He testified that the reason he did not offer the reinstatement fee was that he did not have that much money, and that if he could have borrowed it he would have paid it. Pappas and Zonka testified that, although Larkins protested that he lacked the money, he rejected Zonka's offer to advance it to him so he could pay in full 12 but that Larkins clung to the position that it was the Company's responsibility and he "[had] it beat." 13 Larkins did not reply to McPherson's letter until March 19, at which time he had timekeeper Galik type the following letter to McPherson: According to the dues authorization sheet the dues for the month of September and October 1974 should have been deducted from the pay check. I was suspended in the month of September and was out of work from Sept. 30, 1974 to November 1, 1974 12 General Counsel's statement in his brief that Zonka did not testify to such an offer is erroneous. 13 Larkins denied ever taking the position that he did not have to pay the $45 because he was not at fault. 1090 JOHN J. ROCHE & CO. Hoping this straightens up the situation between you and me, I remain, HENRY LARKINS 5. Union's request for Larkins' discharge; his subsequent tender, hearing, and termination Meanwhile, by letter of March 10, McPherson cited Larkins' default to the Company as follows: You are hereby advised that Henry Larkin, an employee of the John J. Roche Company, has failed to comply with the terms of Rule 3 of the Clerks' Rules Agreement for the reason that he failed to pay dues for September and October, 1974. It is therefore requested that such employee be so notified in accordance with the provisions of Rule 3(d) of the Agreement effective October 1, 197 1. And, on March 20, McPherson replied to Larkins' letter of March 19 with the following: This has reference to your letter of March 19, 1975 in connection with your suspension from membership in the Brotherhood account non-payment of dues for months of September and October, 1974. Inasmuch as you failed to comply with my letter of February 24, 1975 which gave you an opportunity to reinstate your membership within a specified time, we had no alternative but to cite you to management for failure to comply with Rule 3 of the Clerk's Agreement. Regarding your statement "According to the dues authorization sheet the dues for the month of Septem- ber and October should have been deducted from the pay check." [Emphasis supplied.] Although you state these dues should have been deducted, the fact remains, and your pay check stub should have reflected, that dues were not deducted for the months of September and October, as well as December. It is the responsibility of every member to know when his dues are payable and to pay them. This is brought to the attention of every member through a NOTICE in the Railway Clerk/Interchange every month. Under the circumstances cited above, I am not in a position to alter or withdraw the citation to manage- ment regarding your suspension. On March 24, Larkins gave Pappas $45 during a 2-hour meeting in the office of John Terselich, the Company's president. Larkins testified that he offered her $68.50 to "straighten the whole thing out"'4 but that she said $45 was all she needed for him to be able to return to work.' 5 The only explanation Larkins could suggest for such refusal was his black color.'r General Counsel specifically disavowed any claim of racial motive "or any special animus," and the record supports none." According to Pappas and Terselich, Larkins insisted at length that he did not have the money and only near the close of the meeting, ii Evidently intending thereby to preserve his senionty. i; As of March 19 he admittedly "couldn't have paid the whole sixty- eight." '" He pointed to the fact that of the seven employees (including himself) after much discussion of who was at fault and the limits of Pappas' authority to waive amounts owed, did he produce the $45, at which time Pappas, professedly believing Larkins' employment to have been terminated but expect- ing his imminent rehire, had him sign a new membership application form. Although Zonka confirmed Larkins' statement that he offered the whole $68.50, his testimony agreed with that of Pappas and Terselich that Larkins had made no offer at all for 2 hours. Pappas handled the case of another employee similarly situated in the same way but, because neither employee had been terminated as of that time, McPherson informed Pappas that she had erred in accepting such payments and their money was refunded on March 31. Meanwhile, at the union meeting on March 27, Larkins testified, he renewed his offer to pay the balance of the $68.50, but Pappas said it was too late. Pappas testified that while such a conversation might have occurred she could not recall it but that in any event she would have had to say it was too late. The Company notified Larkins on March 31 of the Union's request for his termination for his delinquency and advised him of his right to a hearing to contest his alleged default. At Larkins' request a hearing was held on April 7. Larkins took the position there that he "figured [he] was paid up by being on the checkoff system" and that his payments were "someone else's responsibility." However, according to the transcript of that hearing, Larkins understood at the outset, apparently in light of McPher- son's letter of February 24 and the subsequent conversa- tions, that December dues were as much involved as those for September and October. And numerous questions put to him by Terselich and the Union's assistant general chairman, Waters, showed them to be under the same impression. By letter dated April 24, the Company advised Larkins that in accordance with the provisions of rule 3 his seniority and employment were terminated as of that day. On May 6, pursuant to instructions from the Systems Board, Pappas refunded $55 to Larkins, representing his dues deductions for January-May 1975, when no deduc- tions should have been made in view of his prior suspension from membership. 6. Larkins' reemployment and subsequent events On May 9, 1975, Larkins applied for his former job and was hired as a new employee. He immediately called Pappas to inquire as to his status and she informed him that he had to pay a new initiation fee and a month's dues. He asked her if he was not entitled to the 60-day grace period, and she, mistakenly believing that he was not, told him so. She reiterated that at the next union meeting on May 22 or 29. She also instructed Zonka to the same effect, and Zonka similarly demanded the payment of $56 on June 4. Larkins paid it that day. On July I I McPherson wrote to Pappas to the effect that rule 3 was to be applied to Larkins, as well as to two other employees rehired in May, effective July. "[F]or some reason ... the letter . . . charged with default at that time only two were on checkoff and both were black. There was no evidence that any white employees had ever avoided a similar charge or finding of default because they were on checkoff. 17 Larkins testified that all the union officials are his "friends." 1091 DECISIONS OF NATIONAL LABOR RELATIONS BOARD didn't really register with [her]," and she neglected to refund any payment erroneously received. Larkins, how- ever, raised the matter again at the Union's October meeting, which McPherson attended, complaining that he should not have been required to pay the May dues following his reemployment. McPherson, apparently ac- knowledging the validity of the claim, suggested that Larkins put his request in writing, and Pappas followed this up with a letter of October 30, advising Larkins that he was entitled to the May refund but should write to McPherson therefor. Larkins did so on November 21, McPherson authorized the repayment of $11 on November 24, and Pappas mailed him a check in that amount on November 28. McPherson conceded at the hearing that the payment for June 1975 was in the same category as that for May.' 8 Also, like Pappas, he was unable to explain the theory for retaining the dues deducted for November 1974 in view of Larkins' automatic suspension at the end of October.19 And Respondent indicated on the record that if Larkins wanted reimbursement for these 2 months he could have it. B. Analysis I. Introductory In my opinion the instant case well illustrates the continuing need for concern over the administration of union-security provisions. Notwithstanding the growing consciousness among employees of their ability to resist encroachments on their statutory rights by labor organiza- tions,20 union-security provisions offer a peculiarly fertile field for such infringement not only on the part of unscrupulous unions but even, as here, through ignorance, inadvertence, inexperience, or sheer inability to cope with the difficult-often abstruse-questions which confront those charged with enforcing such provisions. In this particular case the problem stems not from the employee's lack of knowledge of his dues obligation generally, which, as will appear, I find sufficient, but from the Union's numerous honest errors as manifested in part by the correspondence between the Local Union and System Board, by the extension of the April 7 hearing beyond the confines of the specifications embraced in the March 10 citation, and by the utter absence of explanation for the mishandling of the months of November and December 1974 and June 1975.21 If the Union-the architect of the dues payment system-could be confused and stray so far from the course charted by the provisions involved, some leeway must be allowed an errant employee who is obliged to take the system as he finds it. ', This relates to the May dues erroneously exacted as part of Larkins' $56 payment on June 4, and must be distinguished from the May dues originally checked off erroneously during his period of suspension and refunded as part of the $55 on May 6. "' The November payment should have been returned along with the $55 refund on May 6 for January-May 1975. Inexplicably, as stated, supra, Larkins was esen charged with delinquency for December 1974 dues. And although McPherson had specified only September and October in citing Larkins to the Company, the interrogation of Larkins at the April 7 heanng, 2. The Union's request for Larkins' discharge a. General principles It is well established that "a union seeking to enforce a union-security provision against an employee has a 'fiduciary' duty to 'deal fairly' with the employee affected. 'At a minimum this duty requires that the union inform the employee of his obligations in order that the employee may take whatever action is necessary to protect his job tenure.' " Rocket & Guided Missile Lodge 946, International Association of Machinists and Aerospace Workers, AFL- CIO (Aerojet-General Corporation), 186 NLRB 561, 562 (1970), and cases there cited. It is also settled that the failure to meet this duty is not excused by the Union's lack of hostile intent. Ibid. Nor, as General Counsel also contends, is the duty "satisfied by the fact that the employee may have acquired independent knowledge of the existence of the union-security clause and his obliga- tions thereunder," Produce, Refrigerated & Processed Foods & Industrial Workers Local No. 630, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Ralph's Grocery Company), 209 NLRB 117, 124 (1974). However, despite this panoply designed to protect employees against their bargaining representatives' negli- gence or other sins of omission, the law's solicitude "was never intended to be so rigidly applied as to permit a recalcitrant employee to profit from his own dereliction in complying with his obligations." Ibid. The policy underly- ing Section 8(b)2) and proviso (B) to Section 8(a)(3) "was not to protect free riders against excessive union demands, but rather to insure that employees who were willing to pay their financial obligations were not discharged for improp- er reasons." Great Lakes District, Seafarers' International Union of North America, AFL-CIO (Tomlinson Fleet Corporation), 149 NLRB 1114, 1121 (1964). Although Larkins was clearly not a free rider in the usual sense, his dues payments prior to the checkoff had frequently been less than punctual, and the question remains whether he was "recalcitrant" concerning the specific obligation here involved or whether he was "willing to pay" it. b. Sufficiency of Larkins' knowledge of his dues obligation I have no doubt whatever that-the effects of the checkoff apart-Larkins was fully aware of his general dues obligations. In the face of Terselich's testimony concerning the distribution of copies of the contract among the employees, Larkins' denial that he received one until he requested it in April 1975 is quite incredible. Assuming that he did not receive one in 1971, it is impossible to believe that he would have waited until after his hearing to request one rather than to have made his request in February, conducted by Terselich and the unionrepresentative, Assistant General Chairman Waters, treated all 3 months alike. 2" The Board's most recent annual report reveals that 62 percent of all charges filed against unions last year were filed by individual employees. 41 NLRB Ann. Rep. 13 (1976). The comparable figure 10 years earlier was 52 percent. 31 NLRB Ann. Rep. 8 (1966). 21 I do not even consider in this connection the entirely inadvertent union action against Larkins in 1973. 1092 JOHN J. ROCHE & CO. when notified of his default, or in March while he was still attempting to negotiate some adjustment in the Union's position, or at the latest at the beginning of April when he received the notice to request a hearing if he wished to dispute his alleged "fail[ure] to comply with the terms of Rule #3 of the agreement." Equally incredible is Larkins' denial that he just happened not to receive his regular copies of the Railway Clerk Interchange between 1973 ("or '71, something like that") and April 1975. In any event he did recall seeing the constitutional provision concerning suspension for dues delinquency both in the issues of that publication he received prior to 1974 and on his dues card.2 2 And he did concede that, at least since 1973, when he had mistakenly been charged with dues delinquency, he was aware that nonpayment of his dues, even for months not worked, could cost him his job. Despite the assurances given Larkins by Galik at the time of executing the checkoff authorization that he would not have to worry about paying his dues in the future, and although Larkins was never directly advised that the actual institution of the checkoff would need to be deferred in order to permit the necessary preliminary clerical steps, Larkins' knowledge of his obligation to the Union for monthly dues was in no way affected. Nor was he unaware that he had not paid dues for September and October 1974.23 He admitted the contrary. And the last sentence of rule 3 of the contract specifically provided that If an employee who has signed a checkoff form has no earnings on the payroll from which the deduction is to be made, he must make arrangements to personally pay such dues to the Financial Secretary of the Lodge.24 c. Validity of the request for Larkins' discharge (1) Period prior to February 27 The General Counsel contends in his brief that the only document Larkins signed was the checkoff authorization itself which contains no indication that the employee will be "disciplined" for the employer's failure to make the necessary deductions. In the first place, the checkoff authorization was not the only paper signed by Larkins. He had also signed a membership application in the Union whose governing laws specifically made payment of his dues his responsibility. Secondly, the question here at the outset is not one of "discipline." It is rather whether an employee, admittedly aware that his failure to pay dues for 2 months rendered him subject to discharge and that the employer had failed to withhold from his pay the authorized moneys necessary to make such payments, could avoid discharge simply by maintaining that it was all the employer's fault. Such a theory may generally inhere in the Board's view that a checkoff authorization operates as a continuing tender. See Producers Transport, Inc., 125 NLRB 1056. 1074 (1959). Yet even this principle cannot be 22 General Counsel urges in his bnef that., even if the specific language had been brought to Larkins' attention. "he would have learned only that it was possible to be automatically suspended without notice." I do not perceive how an automatic suspension could only be "possible" rather than inevitable. But. more important. General Counsel seems to be arguing, strangely. that a union is incapable of directly conveying to a member the vert, information the Act requires. absolute. For example, if an employee is out ill for over 2 months during which period he has no earnings, obviously the employer can make no deduction, and absent provision dispensing with the dues obligation the checkoff authoriza- tion neither extinguishes the employee's debt nor shifts his burden elsewhere so as to prevent his automatic suspension from the union or the consequent exercise of the union's right to demand his discharge. Indeed, the Court of Appeals for the Seventh Circuit denied enforcement in Producers Transport, supra, with the following language (284 F.2d 438, 441 (1960)): The Act is designed to prevent both employers and unions from discriminatorily discharging or causing the discharge of employees, but industrial stability requires that the employee too must assume some responsibility for his own conduct in the area of union dues payment. This record reveals Pool's actual knowledge that his dues were not being deducted from his paycheck. Although his removal from the checkoff was effected without written notice, Pool acquiesced in the lax procedure followed by the Union in that respect. The record reveals a total lack of understanding on the part of either Pool, the Company, or the Union that Pool's dues were tendered as they became due and payable through the checkoff arrangement. Under those cir- cumstances, the checkoff authorization cannot be legally construed as a continuing tender of dues. Here, too, prior to his automatic suspension, Larkins had "actual knowledge that his dues were not being deducted from his paycheck." Yet he made no other tender to the Union-not even of the dues for September and October- until after receipt of McPherson's letter on February 27, notifying him of the suspension and the peril to his job; and he failed to tender the reinstatement fee at least until some 2 weeks after the deadline set forth in that letter and the citation of his default to the Company under rule 3 of the agreement.s5 This, then, seems a situation where reservations expressed to the checkoff-as-tender principle in the case authority should be resolved against the employee. Thus, in Edward G. Partin, Business Agent, General Truck Drivers, Chauffeurs, Warehousemen & Hel- pers of America, Local No. 5, a/w IBT (Ryder Truck Lines, Inc.), 148 NLRB 819 (1964), after recognizing the principle, and despite his finding that "it was the Union's failure to include [the employee's] name on the monthly checkoff list which alone accounted for the delinquency," the Trial Examiner, whose decision was adopted in toto by the Board, stated, "But that fact might not alone have negated the possibility of a valid request for [the employee's] discharge after the termination of his membership if it were truly based on the ground of [the] failure to pay or to tender his dues." Id at 823-824. Then, taking note of the Board's holding in General Motors Corporation, Packard 23 At most he might have been uncertain as to whether his S22 payment to Zielen shortly before covered September in view of Zielen's failure to report back to him. But even this is highly dubious in light of Galik's notation on Larkins' checkoff authonzation. subsequent to Larkins' conversation with Zielen. that his dues were "Paid up to & Incl Aug." 24 As indicated. Larkins was out of work the entire month of October. 2s Larkins concedes the absence of such a tender at least until March 24. 1093 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Electric Division, 134 NLRB 1107, 1109 (1961), that "the question to be determined is the reason underlying the discharge" and that "a tender belatedly made after a lawful request for discharge is [not] sufficient standing alone to warrant . . . an inference" that the union's refusal to accept the offer was "for some undisclosed reason other than his prior delinquency," the Trial Examiner in Partin found the violation only because the employee "had tendered a full reinstatement fee prior to any operative or lawful request for his discharge" and because of indepen- dent evidence of disparate treatment arising out of the employee's union activity. (148 NLRB at 824.) No such disparity exists here, nor does the record disclose or the General Counsel suggest any reason why the Union might have sought Larkins' discharge here other than its belief of his failure to keep his dues payments current as is uniformly required by the Union's laws.2 6 Accordingly, had the Union sought Larkins' discharge for his failure to pay or tender $57.50, representing dues for September and October 1974 plus the $45 reinstatement fee, I should have found no violation. (2) Period from February 27 to March 24 The first difficulty with the Union's conduct derives from its demand, in McPherson's letter of February 24, 1975, for dues for December 1974. As the Union acknowledged in the course of the hearing herein, it was not entitled to any dues from Larkins for the period November 1974-May 1975, while Larkins was in a suspended status. Insistence on the December payment as a condition of continued employment would of course have violated the Act. Holmes Transportation, Inc., 203 NLRB 253, 256 (1973). Larkins received the letter on February 27 and discussed the matter with Pappas and Zonka that night. He offered $23.50 but not the $45 reinstatement fee, and I credit his uncontradict- ed testimony that Pappas insisted on the "whole sixty- eight, or nothing at all." This demand, however, must be viewed in the context of an offer that failed to include the $45 legally due, and it is arguable that since he did not offer $57.50, i.e., all money then due (withholding only the $11 for December), his tender was insufficient and it may not be assumed that such an offer would necessarily have been rejected. While I am inclined to the view that it would have been rejected in the circumstances by Pappas, a novice at the job of guarding the Local's finances, who, even if convinced herself of the merits of such a claim by Larkins, was not likely to question the judgment of McPherson who had already demanded the December payment, and because Pappas at that very time was still having Larkins' dues checked off and continued to do so through May 1975, nevertheless, a finding of the futility of such a tender27 would not be in order here. First, Larkins' claimed reason for not tendering the reinstatement fee was simply lack of "6 The sole suggestion to the contrary was Larkins' reference to color, a motive specifically disavowed by the General Counsel. It is my strong impression, in fact, that this case would not have arisen but for Larkins' belief that he was the victim of racial discrimination. 27 Cf. Holmes Transportation. Inc.. 203 NLRB 253, fn. 1 (1973). :" In my opinion. the 10 days allowed Larkins-and the other employees similarly situated--to avoid citation to the Company constituted "an money.28 Indeed, from the fact that his offer of $23.50 included the $11 for December, it may not be inferred that his failure to make a complete tender in the amount legally due resulted from his belief that it would have been futile or that the futility of such a tender played any part in his subsequent discharge. Besides, I credit Pappas and Zonka as to Larkins' insistence that he "[had] it beat." I find Pappas and Zonka generally more credible than Larkins whose manner was evasive and his testimony self-contra- dictory in significant respects. Moreover, his letter to McPherson as late as March 19 appears to reassert the same position Pappas and Zonka ascribe to him on February 27. Hence, while the demand itself in McPherson's letter of February 24 violated Section 8(b)(1)(A) as an unlawful threat to his job (Local 545, International Union of Operating Engineers, AFL-CIO (Joseph Saraceno & Sons, Inc.), 161 NLRB 1114, 1115, fn. I (1966), the Union could still properly have sought Larkins' discharge after February 27, and McPherson's letter to the Company on March 10, requesting Larkins' discharge, did not affect the situation since the default there specified related only to September and October 1974. (3) The period from March 24 to April 7 The General Counsel contends that two significant events occurred in March after Larkins' citation of March 10. He urges in his brief, first, that the Union rejected Larkins' tender of $68.50 on March 24 and again on March 27, and that it may not rely on General Motors, supra, because the March 10 citation did not constitute a request for discharge but only a request to notify Larkins of his right to a hearing to dispute his alleged failure to meet his dues obligation. I credit Larkins' testimony that he did offer the full amount demanded on March 24. Zonka's testimony corroborates this. In any event, even Pappas concedes that such an offer could have been made on March 27 when Larkins says he repeated it. However, in a case involving this same International, the Board held this type of citation an operative demand for discharge notwithstanding "that a hearing under the collective- bargaining contract was a necessary condition to a discharge." Acme Fast Freight, Inc., 134 NLRB 1131, 1135 (1961). General Counsel's attempted distinction between the two cases, based on a difference in the contract provisions, lacks substance. He argues that unlike Acme, which involved "an express and unambiguous demand for discharge" because the contract there provided "The Brotherhood will notify management of employees who fail . . . and such employees will be released ... after proper hearing" (emphasis the General Counsel's), the instant case involves "simply a request for initiation of an investigatory process which might not result in a discharge" because the contract here "provided only that the demand notification adequate opportunity to make payment" (see 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, 1042 (1973), particularly in view of Pappas' and Zonka's prior appeals to Larkins and Zonka's offer of February 27 to lend him the money, all of which I credit, especially in light of Larkins' precheckoff assistance from Zielen when in similar financial straits. 1094 JOHN J. ROCHE & CO. be sent, a hearing be scheduled, and 'If it is found [at the hearing] that the employee is in violation' . . . he shall be released," (emphasis the General Counsel's). One can only wonder what purpose the General Counsel believes the Acme hearing was designed to serve if he believes that the express "if' in the instant case was not implicit in Acme. And grammatically, of course, "shall be released" here is firmer than Acme's "will be released" which, in the third person, denotes mere futurity. In fact, the union's demand upon the employer in Acme was essentially identical to the instant one, and the hearing there offered the same opportunity to the employee involved as the hearing here offered to Larkins. Id. at 1134. If the March 10 citation was not a request for discharge I fail to understand the theory of General Counsel's case against the Union. There is no other request for discharge in the record.29 The General Counsel's second contention concerning the March 24 meeting is that Pappas' acceptance of $45 from Larkins constituted a waiver of the delinquency as a ground for his discharge. As General Counsel urges, it is settled law, unchanged by General Motors, supra, that "once a union accepts the tender of delinquent dues after it has requested discharge for such delinquency but before actual discharge, the union thereby waives all rights to continue to assert dues delinquency as a ground for discharge." Colgate-Palmolive Company, 138 NLRB 1037, 1039 (1962). The Union counters with the argument that there was no conscious waiver because Pappas accepted the money under the misapprehension that Larkins had already been discharged and that in any event the money was returned to Larkins 7 days later. In my view it is unnecessary to resolve the factual question whether Pappas actually believed Larkins to have been terminated at the time she accepted the $4530 because I find merit to the Union's second point. If there was a waiver here it has to be implied. But "To make out a case of implied 'waiver' of a legal right, there must be a clear, unequivocal and decisive act of the party showing such purpose, or acts amounting to an estoppel on his part." Rosenthal v. New York Life Ins. Co., 99 F.2d 578, 579 (C.A. 8, 1938),3' holding that an insurance company did not waive its right to cancel reinstatement of certain policies because it waited 30 days after discovery of fraud before notifying the insured of its intention to rescind the reinstatements. The court there stated that, absent a showing of prejudice by reason of the delay, "We think the company acted with reasonable promptness in giving notice of rescission." Ibid. See also Black's, supra at 1752, citing Astritch v. German-American Ins. Co., 131 F. 20 (C.A. 3, 1904), for the proviso "that the other party concerned has been induced by such conduct to act upon the belief that there has been a waiver, and has incurred trouble or expense thereby." While the majority of the Board in ::1 General Counsel's reliance on (Cramp Shipbuilding & Drvdock (C,mpioa,. 151 Nl RB 504 1965), in this connection is misplaced. The Board there sustained a 1 rial Examiner's finding that a somewhat similar citation to an emplbo\er did not amount to a request for discharge only because other evidence in the case showed the request to have been merely one for layoff suhlct to tull reinstatement with seniority upon payment of a reinstatement lee. The record in the instant case clearly shows that the intention at all tinmes wa to return I.arkins only as a new employee upon payment of the Colgate implicitly rejected the two dissenters' position that the absence of reliance by the employee on the union's acceptance of the money ruled out a finding of waiver (138 NLRB at 1045), it is important to keep in mind that Colgate involved not only receipt of the money by the union but also its retention, a fact specifically noted in the holding in the main opinion (id. at 1039) and particularly stressed by mention three separate times in Member Fanning's one-page concurrence (id at 1042-43).32 The only case that has come to my attention in this connection involving a refund is International Woodworkers of America, AFL-CIO, Local Union 13-433 (Ralph L. Smith Company), 119 NLRB 1681, 1682-83 (1958), where the Board found waiver of a right to reject a membership application solicited by a job steward in exercising his normal duties but without knowledge of the union's outstanding request for discharge of the employee in question; dues checked off by the employer after the discharge were returned to the employee 3 days later. I believe the emphasis thereafter given in Colgate to the absence of a refund signals serious misgivings by the Board concerning future applicability of the doctrine to a refund case. See International Union, United Automobile Aerospace and Agricultural Implement Workers of America, UA W, Local 1772 (Kuhlman Electric Company), 210 NLRB 798, 801 (1974), where no waiver was found as to a dues payment accepted by the union president but returned an hour later. There was here no detriment, no change of position, no prejudice of any kind to Larkins as a result of reliance on Pappas' receipt of the $45. I perceive no valid reason why the Union's holding the money for 7 days before returning it to him operated as a waiver of the Union's rights. (4) The hearing of April 7 The April 7 hearing was designed to afford Larkins an opportunity to demonstrate that he was not in such default in respect to dues or fees as warranted his suspension and consequent discharge. Notwithstanding his citation by the Union confined the matter to September and October 1974, the hearing clearly was directed as well to December. The transcript of the hearing unmistakably reveals the impression of all parties, beginning with Larkins, that December was involved, and neither Terselich nor Assis- tant General Chairman Waters, both of whom conducted the examination of Larkins, attempted to disillusion him. On the contrary, 3 of the 20 questions put by Terselich and 2 of the 7 questions asked by Waters specifically mentioned December in the same connection as their references to September and October, and both adverted to McPher- son's letter of February 24 as the basis for the Union's position as to his delinquency. Since the hearing left the Union's demand for discharge intact and the December dues clearly constituted part of the alleged default, the demand constituted an unlawful requisite fee. Unlike the instant case. Cramp involved a second communica- tion from the union which formed the predicate for the finding against it. 3n A waiver, of course, is an "intentional or voluntary relinquishment of a known right." Black 's Law Dicrionar, p. 1751 (4th Ed., 1951). 31 Vacated and remanded on other grounds 304 U.S. 263 (1938). 12 General Counsel apparently overlooked these references in asserting that neither the majority opinion nor the concurrence mentioned "whether the Union retained or refunded the money." 1095 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attempt to cause Larkins' discharge and, upon his dis- charge, matured into the cause thereof, all in violation of Section 8(b)(2) of the Act. 3. Union's postrehire conduct The Union's brief "concedes that Pappas and Zonka improperly sought to have Larkins reinstate his member- ship effective immediately after he was reemployed" because of "the mistaken impression that a reinstated member had to begin paying dues right away." But, contends the Union, since "the matter was promptly remedied" by refunding his dues for May, and since he never claimed a refund of his June dues and could have voluntarily reinstated his membership in June, the General Counsel has failed to sustain his burden of proving that the Union coerced Larkins to join within less than the 60-day period provided by the contract. The defense is entirely frivolous. "[P]romptly" is a poor adverb to describe a refund on November 28, requested in October, of an exaction in June following a month's unlawful harassment. And the harassment is not excused by the Union's mistake however honest. Similarly, "volun- tar[y]" is hardly an apt description of the June payment which was made only after Pappas' unlawful refusal to honor Larkins' request in May for the 60-day grace period to which he was entitled. The conduct in question patently violated Section 8(b)(l)(A) of the Act. 4. The Company's conduct In light of Terselich's own conduct at the April 7 hearing, recited above, it is impossible to find otherwise than that the Company had "reasonable grounds for believing that [Larkins' membership was suspended] for reasons other than [his] failure . . . to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership." The Company there- fore violated Section 8(a)(3) and (1) of the Act by discharging Larkins and depriving him of his seniority on rehire. The Company also violated Section 8(a)(1) and (3) by withholding Larkins' dues for April, May, and June 1975 because it had already received notice in March that Larkins' membership in the Union had been suspended since the end of October. :l:1 Communications Workers of America, Southern California Local 9590, A FL CIO (Western Electric Company, Inc.), 203 NLRB 923, 926(1973). :*1 The November dues were deducted from Larkins' pay prior to CONCLUSIONS OF LAW 1. Respondent Union is a labor organization within the meaning of Section 2(5) of the Act. 2. Respondent Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. By demanding dues from Henry Larkins for Decem- ber 1974 Respondent Union has violated Section 8(b)(IXA) of the Act. 4. By causing the discharge of Henry Larkins, with consequent loss of seniority on rehire, for not paying dues for December 1974, Respondent Union has violated Section 8(bX2) of the Act. 5. By collecting dues from Henry Larkins for Novem- ber 1974 and for January through June 1975, Respondent Union has violated Section 8(b)(1)(A) of the Act. 6. By collecting dues from Henry Larkins for April through June 1975, Respondent Company has violated Section 8(a)(1) and (3) of the Act. 7. By discharging Henry Larkins at the Union's request and thereafter depriving him of seniority on his rehire, Respondent Company has violated Section 8(a)(1) and (3) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY In order to remedy the unfair labor practices found herein my recommended Order will require Respondents to cease and desist therefrom and, because such violations strike at the heart of the Act, 33 to refrain from infringing in any other manner upon employees' Section 7 rights. In order to effectuate the policies of the Act I shall also recommend that Respondents be required to take the following affirmative action: that the Union notify the Company in writing that it has no objection to Larkins' reinstatement to the seniority status he held prior to his discharge; that the Company reinstate Larkins to such status; that Respondents jointly and severally make Larkins whole, with interest at 6 percent per annum, for any loss of pay he may have suffered by reason of the discrimination against him; that in addition the Union refund to Larkins the sum of $22, with interest at 6 percent per annum, representing dues unlawfully collected from him for November 1974 and June 1975, the 2 months for which he has not been reimbursed; 3 4 and that Respon- dents post the usual notices. [Recommended Order omitted from publication.] company knowledge of his suspension from the Union. I do not recommend imposing any financial obligation on the Company in respect to the June dues because it turned the money over to the Union. 1096