Distillery, Rectifying, Wine & Allied Workers, Local 38

D (DCISIONS OF NATIONAL LABOR RELATIONS BOARD Distillery, Rectifying, Wine and Allied Workers' In- ternational Union of America, Local Union 38, AFL-CIO (Schenley Distillers, Inc.) and Grant H. Hall and Morgan A. Bahar. Cases 9 CB- 3607 and 9 CB 3680 May 18, 1979 DECISION AND ORDER BY MEMBERS PNELLO, MURPHY, AND TRUESDALE On August 28, 1978, Administrative Law Judge David S. Davidson issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief, and the General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative L.aw Judge and to adopt his recommended Order. We agree with the Administrative Law Judge that Respondent violated Section 8(b)(2) and (1)(A) of the Act by causing the discharge of Grant H. Hall and Morgan H. Bahar for failure to pay dues, without giving Hall and Bahar clear and unambiguous notice of its intention to do so. Respondent and Schenley Distillers, Inc. (Schen- ley), have a collective-bargaining agreement which contains a valid union-security provision. That provi- sion requires, inter alia, that employees must remain members in good standing or, upon union notification to Schenley that they are not in good standing, em- ployees will be discharged. The contract also states that employees must pay dues as established by Re- spondent to be in good standing. Respondent's consti- tution and bylaws state that: (I) a member more than 30 days in arrears on dues payment no longer main- tains his/her good standing; (2) a member more than 60 days, but less than 6 months, in arrears automati- cally will be suspended and may be removed from employment; and (3) members more than 6 months in arrears may be expelled. All employees receive copies of the contract and of Respondent's constitu- I Respondent has excepted to certain credibility findings made by the Ad- ministrative 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 Dn' Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. tion and bylaws upon being sworn into union mem- bership. Grant Hall was hired by Schenley in September 1975. He was on medical leave from April to Septem- ber 1976. Although able to work by September, Hall was then laid off. As of November 1976, Hall was 6 months in arrears on his dues payments.2 Hall had been in layoff status before and his practice had been to pay his dues arrearages when he returned to work. Dean, Respondent's president, called Hall, informed him of his arrearages, told him that he did not like to terminate employees, and that, if Hall could pay at least half of his arrearages, the rest could wait. Also in late November, Rucker, Respondent's financial secretary, called Hall and informed him of his dues arrearages. In December 1976, Hall received a check for vacation benefits from which dues were deducted; however, those dues were credited prospectively by Respondent, i.e., for January and February, thus leaving Hall still 6 months in arrears on his dues de- linquencies. There were no further communications between Respondent and Hall, and on March 22, 1977, Respondent sent a letter to Schenley requesting that Hall be discharged pursuant to the union-secu- rity provision of the contract. Morgan Bahar was hired in January 1976 and laid off at the end of July 1976. Bahar was not on checkoff and did not pay any dues at the beginning of his employment. His name appeared on the October de- linquency list which, as usual, Respondent posted at the plant. In November Bahar paid $20 of his arrear- ages to Rucker. Also in November Dean called Bahar and stated that, since Bahar was 6 months in arrears, his "card would be pulled" unless his dues were paid. In January 1977, Bahar visited Schenley and spoke with Industrial Relations Manager Burch. Bahar asked about his dues and was told by Burch to see Dean; however, Bahar merely left the plant. On April I, 1977, Respondent sent a letter to Schenley request- ing that Bahar be discharged pursuant to the union- security provision involved herein. Based on the foregoing and the record as a whole, we conclude, contrary to our dissenting colleague, that Respondent failed to fulfill its fiduciary duty to inform Hall and Bahar of their obligations under the union-security provision of the contract before re- questing and securing their discharge. The Board has long held that, because of the finality of a recommen- dation of discharge, a union must specifically advise a member of the obligations under the union-security agreement before effectuating a discharge. A union's duties include informing the member of the amount owed, the method used to compute that amount, 2 Respondent required members in layoff status to pay only half their dues. 242 NLRB No. 51 370 DISTII.IERY, RECTIFYING. WINE AND ALLIED WORKERS. I.(X'AI 38 when such payments are to be made, and that dis- charge will result from failure to pay.' We are not persuaded in the instant case that Re- spondent provided to the discriminatees clear and un- ambiguous notice of their dues delinquencies. the manner of their computation, or the consequences which would follow if the arrearages were not paid by a certain date. Thus, even though Respondent's pres- ident and financial secretary made calls to both Hall and Bahar, at no time did Respondent inform them of a due date for the payment of arrearages or that ter- mination would follow immediately upon failure to pay. Further, analysis of the collective-bargaining agree- ment and Respondent's constitution and bylaws, and the provisions therein which pertain to discharge for members not in good standing, reveals that those pro- visions do not require discharge, and thus in them- selves would not provide sufficient notice of the con- sequences of failure to pay dues arrearages. Respondent's constitution and bylaws, article X, sec- tion 1, state that a member "sixty days or more but less than six months in arrears in the payment of dues .. shall stand automatically suspended... [and] mayi be: (a) Removed from employment...." (Emphasis supplied.) In addition to this ambiguity regarding pos- sible discharge for dues arrearages, article X, section 2, merely provides that "[m]embers six months in ar- rears of payment of dues . . . may be expelled." This section does not even mention the possibility of re- moval from employment for being 6 months in ar- rears, and yet that was the alleged status of Hall and Bahar. Thus, even though the discriminatees may have received copies of the constitution, bylaws, and collective-bargaining agreement which set forth union-security obligations, we do not believe the pro- visions therein are sufficiently unambiguous to pro- vide adequate notice of such obligations. Even if a union member is aware generally of the obligation under a union-security provision, a union is still re- quired to give specific and advance notice of the ar- rearages, and meet the minimum level of conduct re- quired under its fiduciary duty as described above. Thus, the fact that the discriminatees had copies of these documents and were made aware generally that they owed dues does not establish that the discrimi- natees were reasonably informed of their obligations and the consequences of their failure to meet the obli- t See Philadelphia Sheraton Corporation. 136 NLRB 888 (1962). enfd 320 F.2d 254 (3d Cir. 1963); District 9. International Association of Machinist.rs and Aerospace Workers, AFL- CIO (Manel-Schebzer. Diivision of Borg- Wa'rn- er Corp.). 237 NLRB 1278 (1978). International Brotherhood of Boilermmtkerr, Iron Shipbuilders, Blacksmiths. Forgers & Helpers. Ical Ldge N,5o -32, AFL CIO (Triple A Machine Shop. Inc. dh/a Triple .4 Souhj). 239 NlRH 504 (1978). gations. Moreover, as the Administrative Law Judge found, Respondent had never sought the discharge of employees situated similarly to those involved here, and therefore there could be, and was, no consistent policy of terminations for failure to pas dues arrear- ages which an employee could be charged with know- ing. Thus, contrary to the assertions of our dissenting colleague, our conclusion that Respondent violated its fiduciary duty here is not a "hypertechnical and mechanistic approach." Rather, it is a view which in- corporates the concept of fundamental fairness inher- ent in the Act. It is hard to imagine what is "unrea- sonable" in requiring a union clearly to set forth those obligations its members owe, and to provide clear and sufficient notice of the consequences for failure to meet those obligations; the obligation does not, and should not, rest on the members.4 We therefore con- clude that Respondent violated its fiduciary duty, and thus violated Section 8(b)(2) and (I )(A) of the Act, as found by the Administrative Law Judge. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative aw Judge and hereby or- ders that the Respondent. Distillery, Rectifying, Wine and Allied Workers' International Union of America, Local Union 38. AFL-CIO. Frankfort, Kentucky, its officers, agents, and representatives, shall take the ac- tion set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative L.aw Judge. MEMBER MtRPItY. dissenting: Contrary to my colleagues and the Administrative Law Judge, I conclude that Respondent met its fidu- ciary obligation to Charging Parties Hall and Bahar prior to causing their discharge for failure to pay union dues. I would therefore find that Respondent did not violate Section 8(b)(2} and (I)(A) of the Act as alleged in the complaint. As the Administrative Law Judge found, by No- vember 1976, 5 Hall, who had been laid off by the Employer, was 6 months in arrears in his dues pay- 4 The facts do show that dues were deducted from a vcation check issued to Hall; these were applied prospectively. so that Hall remained 6 months in arrears. Also, Bahar paid $20 of his arrearages to Rucker. hus. contrar to the assertion of our dissenting colleague. it appears both iHall and Bahar took some steps toward meeting their obligations. Moreover. as noted above, it was Hall's practice to pay arrearages when he returned from la-yoff status, and he was given no cause to believe he would he treated differentl5 on this occasion. In an eent, even it' neither discriminatec took steps to pa his arrearages. the result reached herein would not differ. since Respondent did not provide clear and unambiguous notice of the obligations owed before securing the discharges here 'All dates herein are in the latter part t ' 197h ir carls 1'97 371 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments6 and was so informed by Respondent's pres- ident, Dean. Dean also told Hall that Respondent did not like to terminate a member and that, if Hall would pay half the amount he owed, Respondent would wait for the rest. Also in November, Respon- dent's financial secretary, Rucker, called Hall and told him that he owed $24 in back dues and had to get current. In December, Hall received a vacation check from the Employer from which $8 of union dues were deducted; this amount was applied by Re- spondent as Hall's dues for January and February 1977. On March 22, 1977, Respondent wrote to the Employer that Hall was no longer in good standing because of his failure to pay dues and consequently the Employer did not recall Hall from layoff in the spring of 1977 when work became available. Bahar, who was also laid off during much of the latter half of 1976, appeared on a list of delinquent members which was posted at the Employer's plant in October 1976. In November, Bahar paid $20 to Ruck- er, who told him at the time that he was quite delin- quent and must get his dues paid, which Bahar prom- ised to do. After paying the $20, Bahar remained more than 6 months delinquent. Also in November, Dean called Bahar and told him that he was 6 months in arrears and that unless the dues were paid his card would be pulled. Bahar did not attempt to communicate with Re- spondent regarding his dues but, in January, while visiting the Employer's industrial relations manager, Burch, about an unrelated matter, asked how much he owed the Union. Burch responded that he did not know and that Bahar should talk to an officer of Re- spondent, but Bahar did not do so. Subsequently, on April 1, Respondent requested the Employer to drop Bahar from the seniority list and as a result of the Employer's compliance with this request Bahar, like Hall, was not recalled by the Employer when work became available. The Administrative Law Judge found that Bahar and Hall were given copies of Respondent's constitu- tion and bylaws and the collective-bargaining agree- ment between Respondent and the Employer, and that these documents contained explicit provisions detailing employees' obligations to pay union dues and the Union's right to demand that employees be discharged for failing to meet these obligations. Addi- tionally, as discussed above, Respondent, prior to re- questing Hall's and Bahar's terminations, told them they were in arrears and were required to become current in their dues obligations, but neither Hall nor 6 Employees on layoff status are required either to obtain out-of-work cards or to pay monthly dues of $4, instead of the regular dues of $8 per month. Bahar attempted to pay his back dues. Indeed, nei- ther employee even attempted to contact Respondent with regard to the arrearages. In these circumstances, I do not believe that Re- spondent owed any further duty to Bahar and Hall to inform them of the consequences of their failure to pay back dues prior to advising the Employer that they were no longer members in good standing and causing them to be dropped from the Employer's se- niority list. The evidence clearly establishes that Re- spondent, by providing them with copies of its consti- tution and the applicable contract covering their employment, and by its representative's efforts to get them to pay their back dues, took reasonable steps to inform the Charging Parties of their obligations. To find in the face of these facts, as do my colleagues and the Administrative Law Judge, that Respondent failed to give Hall and Bahar sufficient notice that their jobs were in jeopardy is to take a hypertechnical and mechanistic approach, and places an unreason- able burden on unions seeking lawfully to require members to fulfill their membership obligations. The majority argues that because the contract and Respondent's constitution and bylaws did not explic- itly require discharge of employees who did not re- main in good standing with the Union, Bahar and Hall cannot be considered to have been put on notice of the potential result of their failure to meet their dues obligations. This argument is without merit. Al- though the relevant provisions afforded Respondent the right to seek discharge of employees who were in arrears in dues payments instead of imposing an obli- gation to demand discharges in such circumstances, this fact alone cannot be construed to suggest that Hall and Bahar were unaware of the consequences of their continuing dues arrearages. Accordingly, I would find that Respondent did not violate Section 8(b)(l)(A) and (2) of the Act as al- leged and would dismiss the complaint against the Union in its entirety. APPENDIX NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Schenley Distillers, Inc., to discriminate against Grant H. Hall or Morgan A. Bahar, or any other employee, in violation of Section 8(a)(3) of the National Labor Relations Act, as amended. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of 372 DISTILLERY, RECTIFYING, WINE AND ALLIED WORKERS, LOCAL 38 the rights guaranteed them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employ- ment, as authorized in Section 8(a)(3) of the Act, as amended. WE WILL make Grant H. Hall and Morgan A. Bahar whole for any loss of earnings they may have suffered because of discrimination against them. Ill1. THE ALEGED UNFAIR LABOR PRACTICES A. The Facts I. The obligation of employees to pay dues The collective-bargaining agreement between Respon- dent and Schenley in effect from August 1, 1975, through July 31, 1978.' contained the following union-security clause: DISTILLERY, RECTIFYING, WINE AND ALLIED WORKERS' INTERNATIONAL UNION OF AMERICA, LOCAL UNION 38, AFL-CIO DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Administrative Law Judge: The charges in these cases were filed by Grant H. Hall and Mor- gan A. Bahar on July 7, 1977, and September 28, 1977, respectively. On November 30, 1977, the Regional Director issued a consolidated complaint alleging that Respondent Union caused Schenley Distillers, Inc., to discharge Hall and Bahar pursuant to a union-security agreement without giving them prior or adequate notice that they were delin- quent in the payment of their periodic dues to the Union. The complaint alleges that the Union accordingly violated Section 8(bX2) and (bX)(l)(A) of the Act. In its answer the Union denied the commission of any unfair labor practices. On April 24, 1978, a hearing was held before me in Frankfort, Kentucky. At the close of the hearing, oral argu- ment was waived. The parties were given leave to file briefs which have been received from the General Counsel and the Union. Upon the entire record in this case, including my obser- vation of the witnesses and their demeanor while testifying, I make the following: FINDINGS AND CONCLUSIONS ARTICLE II Membership I. (a) All present employees and those to be hired in the future, shall on the thirtieth day following the be- ginning of their employment, or the execution of this agreement, whichever is later, be and remain members of the Union in good standing, in accordance with the requirements of the Labor Management Relations Act of 1947, as a condition of employment, and to the ex- tent that such membership does not conflict with any Federal or State laws. (b) The Company shall be required to discharge any employee upon notification of the Union to the effect that said employee is not in good standing, within the provisions of the Labor Management Relations Act of 1947. * * * 2. All employees subject to the terms and provisions of this Agreement shall be required to pay the initi- ation fee, periodic dues and regularly authorized as- sessments established by the Union as a condition of good standing membership. Respondent's constitution and by-laws provides for a S25 initiation fee. Active employees are required to pay monthly dues of $8 payable on the first business day of the month. Laid-off employees are required to pay monthly dues of $4, unless they obtain out-of-work cards. Respon- dent's constitution and by-laws further provides: ARTICLE IX I. THE BUSINESS OF THE EMPLOYER Schenley, a Delaware corporation, manufactures distilled spirits at its Frankfort, Kentucky, facility. Schenley annu- ally ships goods and materials valued in excess of $50,000 from that facility directly to points outside the Common- wealth of Kentucky. I find that Schenley is an employer engaged in commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert juris- diction in this case. II. THE LABOR ORGANIZATION INVOLVED Respondent Union is a labor organization within the meaning of the Act. Good Standing Section 1. Members more than thirty days in arrears in the payment of dues, assessments or fines shall not be in good standing. The foregoing sentence shall not be applicable to the dues obligation of a member whose dues have been withheld by his employer for payment to the Local Union pursuant to the member's voluntary authorization provided for in collective bar- gaining agreements between his employer and the Lo- cal Union and/or the International Union. However, a member who is on voluntary dues authorization (checkoff) shall be under the duty to pay his dues di- rectly to the Local Union if he has no monies owing to Prior contracts also containing union-security clauses have been in effect for over 30 ears. 373 DECISIONS OF NATIONA LABOR RELATIONS BOARD him by his employer which are subject to his checkoff authorization on the date when the employer deducts the dues of other members. The due date for a pay- ment of assessments or fines shall be the date of their enactment or imposition. Section 3. Members thirty days and less than sixty days in arrears in the payment of current dues. assess- ments or fines may attend meetings but shall have nei- ther voice nor vote thereat. ARTICLE X Suspension and Expulsion for Non-Payment of Dues, Assessments and Fines Section 1. Members sixty days or more but less than six months in arrears in the payment of dues, assess- ments or fines shall be barred from Local Union meet- ings, shall be removed from committees and shall stand automatically suspended from all rights and privileges of membership. A suspended member shall be reinstated only upon payment of full arrears and a reinstatement fee of $2.00. In addition to suspension from membership, such member may be: (a) Removed from employment wherein an agree- ment between the Local Union and/or the Interna- tional Union, and employer permits it; and/or (b) Removed from any Union office without trial. Section 2. Members six months in arrears of pay- ment of dues, assessment or fines may be expelled. At the time new employees report for work, Respondent conducts an orientation session in which Respondent's pres- ident, Dean, participates. At this session Dean ordinarily tells employees about Respondent's initiation fees, regular dues, and laid-off dues. After employees complete their pro- bationary periods, Dean arranges to swear them in neither at the next union meeting or on the job. At that time Dean customarily gives each new employee a copy of Respon- dent's contract with Schenley and a copy of Respondent's constitution and by-laws. Grant Hall and Morgan Bahar, the charging parties in this case, were both sworn in by Dean at the plant and at the time each was given copies of the contract and the constitution and by-laws.' 2. Grant Hall Grant H. Hall was hired by Schenley on September 23, 1975. In April 1976 he suffered an injury off the job and 2 Hall and Bahar testified that they were not given copies of the constitu- tion and by-laws and that they received copies of the contract at their orien- tation sessions. A third employee, Ware, initially testified that when he was sworn in Dean did not give him a copy of the constitution and by-laws, but then testified that he did not recall receiving or seeing a copy of the constitu- tion and by-laws at that time. All three employees identified the documents by the colors of their covers rather than by their titles or contents and they testified either that they received or recalled receiving only one blue book. I have credited Dean that he followed his usual practice in all three cases and conclude that the three employees' contrary testimony is a product of faulty recollection of events which seemed unimportant at the time. was put on medical leave until September 1976. Then, al- though he was physically able to work, he was placed on layoff status because of lack of work. Hall had been laid off previously on five or six occasions for periods from 2 to 4 months. Hall signed a checkoff authorization after his initial em- ployment and except when he was on layoff or medical leave his dues were deducted from his pay. During periods of layoff before 1976. Hall permitted his laid-off dues to accumulate until he was recalled. Upon recall, he learned the amount of his arrearage through a list of delinquent members posted on the plant bulletin board and paid the accumulated arrearage to Respondent's financial secretary, Rucker, after he received his first paycheck. By November 1976 Hall had been out of' work for 6 months and was 6 months in arrears in payment of his dues. At that time, Dean obtained the telephone numbers of sev- eral delinquent employees, including Hall, from Schenley's personnel clerk, Heady, and called Hall. Dean told Hall that he was 6 months behind, that the trustees were "getting on" the financial secretary, and that his dues had to he paid. Hall replied that he had no money then, but would shortly receive an unemployment compensation check after which he would come to the plant to pay him. Dean told Hall that Respondent did not like to terminate any union member and that if Hall could pay half of what he owed Respondent would wait for the remainder until later. Shortly after Dean asked Heady for Hall's telephone number, Hall called Heady to ask about the availability of work. At the end of their conversation, Heady told Hall that Hall should contact Dean about his union dues.l In the latter part of November, Financial Secretary Rucker called Hall and told him that he owed $24 and would have to get his dues caught up. Hall replied that he was living solely on unemployment compensation, but would pay his arrearage as soon as he got his next check. Rucker said nothing at that time to indicate that Hall's job was in jeopardy.4 In December Schenley issued a vacation check to Hall from which it deducted $8 fbr union dues. Respondent ap- plied this amount as payment of Hall's laid-off dues for January and February 1977. On March 22, 1977, Respondent wrote Schenley's indus- trial relations manager with respect to Hall: Also, we advise you to drop GCrant Hall [from the se- niority list] due to the fact that he is behind in his Heady's testimony corroborates Dean that he sought Hall's telephone number in order to call him about his dues. Although Hall denied talking to either Dean or Heady about his dues, he conceded that he was concerned about his lack of work at the time and that Heady very possibly told him that Dean wanted to see him about his dues. I have credited Dean and Heady in regard to these conversations. Although Dean and Heady were not precise as to the time of the calls, it appears that they occurred in November. when Hall was 6 months in arrears and when Hall confirmed that he spoke to Head) about the availability of work. 4 Hall denied that Rucker called him at any time. Rucker testified he called Htall on two occasions once in November and again in December. In an affidavit given during the investigation of this case Rucker stated that he made one call to Hall. His explanation that he was ony asked about a single conversation at that time and did not volunteer that he had a second conver- sation is not convincing. While I have not credited Hall's denial that Dean or Rucker called him, I conclude that the second conversation described by Rucker did not occur and that Rucker called Hall only once. 374 DISIILLERY. RECTIFYING. WINE AND ALLIED WORKERS, LOCAL 38 Union Dues and he has been contacted but has not paid them at this time. Therefore, he is not in good standing with the Local. As a result, Schenley did not recall Hall in the spring of 1977 when he would otherwise have been recalled to work. Hall did not learn that he was terminated until he discov- ered in May that an acquaintance with less seniority had been recalled. At that time, Hall visited Schenlev's person- nel clerk, Heady, who told him that he had been terminated for failure to pay union dues. In October 1977, Hall paid his arrearages to Respondent and was reinstated by Schenley without objection from Re- spondent. It is conceded that between December, when $8 was withheld from Hall's pay, and March, when Respondent requested his discharge, Respondent had no further com- munication with Hall about his dues, did not notify him that he had been expelled for nonpayment of dues, and did not notify him that it had requested his termination. 3. Morgan Bahar Morgan A. Bahar was hired on January 8, 1976. and worked with some interruptions due to layoffs of short du- ration until July 30, 1976. Bahar was then laid off until October 1976 when he was recalled to work for several days and again laid off on October 28, 1976. Bahar did not sign a checkoff authorization when he be- came a member of the Union. After either a call from Dean or seeing his name on a delinquency list posted in the plant Bahar paid Dean his initiation fee in two installments be- fore July 1976, but Bahar paid no dues before his July lay- off. In October, Rucker posted a delinquency list in the plant on which Bahar's name appeared, and in November 1976, Bahar paid $20 to Rucker. At that time, Rucker told him that he was quite delinquent and must get his dues paid. Bahar promised that he would do so. Rucker applied Bahar's payment to his back dues for April, May, and half of June. After making this payment Bahar still owed half of his June dues and laid-off dues for 6 months.5 In November, Dean telephoned Bahar and told him that he was 6 months in arrears and that unless his dues were paid, his card would be pulled. Although Rucker testified that he unsuccessfully tried to telephone Bahar in Novem- ber, neither he nor Dean spoke to Bahar thereafter, and the Union made no attempt to communicate with Bahar by mail. Bahar visited Schenley's industrial relations manager, Burch, in January 1977, about an unrelated matter. At that time, he asked Burch how much dues he owed to the Union, and Burch replied that he did not know but that Bahar should see Dean or the current financial secretary. Bahar did not do so, according to him, because he had no money to pay the dues. IBahar testified that neither Dean nor Rucker spoke to him about his dues after June 1976. and that he had no recollection of paying any dues to Rucker in November. However. Respondent's dues records support Rucker's testimony as to receipt of this payment, and there is no apparent reason why these records should show a payment at that time if it was never made. I have credited Rucker and Dean rather than Bahar whose recollection ap- peared to be faulty in this as well as other respects. On April 1, 1977, the Union sent Schenley's industrial relations manager a letter stating: Local t38 hereby advised the Company that Mor- gan Roberts is not in good standing with the Union because of his failure to pay past due Union dues. He has been contacted and has failed to pay as of this date. We request the Company drop him from the senior- ity list effective April 1, 1977. As a result, Schenley did not recall Bahar when an open- ing arose in the spring of 1977. In May 1977, Bahar learned that others had been recalled, and other employees told him at that time that he had been fired for failure to pay his union dues. Bahar did not contact the Company or Respon- dent after receiving this information. In November 1977, Bahar was reinstated by Schenley without objection from the Union, and he paid his arrearages to the Union. B. Concluding Findings The General Counsel contends that the Union violated Section 8(b)(2) of the Act by failing to fulfill its fiduciary duty to inform Hall and Bahar clearly of their union-secu- nty obligations under the contract before demanding their discharges., Respondent contends that it fulfilled its obligation by posting notice of their delinquency in the plant and by the efforts of Dean and Rucker to contact them. It is well settled that before a union may enforce a union- security agreement by causing the discharge of an em- ployee, it has "a fiduciary duty . . . to deal fairly with em- ployees," which, "at the minimum . . . requires that the union inform the employee of his obligations in order that the employee may take whatever action is necessary to pro- tect his job tenure." The amounts owed, the basis for the computation, and the time by which payment must be made all must clearly be expressed. Responsibility for any ambiguity must be borne by the union.' In this case, when Hall and Bahar were first hired, they were given specific notice that they were required to join Respondent and pay dues, and both knew that laid-off dues were required when they were on layoff. However, Hall and Bahar were not specifically informed as to how Respondent would enforce the obligation to pay laid-off dues either at that time or at any time thereafter. Respondent's constitution and bylaws provides for sus- pension from membership after 2 months of delinquency and expulsion after 6 months. They specifically authorize 6The complaint raises no issue as to the validity of the union-security clause in the agreement or as to its application to require maintenance of membership during periods of layoff. ' Hotel, Motel and Club Employees' Union, Local 568 (Philadelphia Shera- ron Corp.) v. N.LR.B. 320 F.2d 254, 258 (3d Cir. 1963), enfg. 136 NLRB 888 (1962). B Teamsters Local Union No. 122, International Brotherhood of Teamsters,. Chauffeurs. Warehousemen and Helpers of Amertca (Augusr A. Busch and Co. of Mass., Inc.), 203 NLRB 1041, 1042, enfd. 509 F.2d 1160 (Ist Cir. 1974) Bao Area Typographical L'nion Local No. 21, International Typographical Union, AFL-CIO (Northwest Publications, Inc.), 218 NLRB 812, 814 (1975); H C. Macaulev Foundry Co., 223 NLRB 815, enfd. 553 F.2d 1198 (9th Cir. 1977) 375 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent to seek an employee's removal from employ- ment under the union-security clause after 2 months of de- linquency. However, insofar as it appears, Respondent has never sought discharge of an employee before he was 6 months in arrears and has no consistent policy, certainly not one known or publicized to its members, as to when it seeks an employee's termination. Delinquency notices posted in the plant request immediate payment, but do not indicate deadlines for payment after which discharge will be sought and are not likely to be read by employees on layoff at the time of posting. In the case of Hall, although he had never previously been laid off for more than 6 months, his experience had been that he was permitted to pay accumulated laid-off dues after recall, and absent clear notice to the contrary it was reasonable for him to believe, as he testified, that he would again be permitted to do so. While Dean told him in November that the dues had to be paid and that Respon- dent did not like to terminate any members, neither he nor Rucker told Hall at that time that he would be terminated at any specific time before recall if he failed to pay his laid- off dues. Dues deducted from his vacation paycheck in De- cember were treated as payments for future dues so that he remained 6 months in arrears on Respondent's books from December on, but Respondent did not request his termina- tion until March. It did not contact Hall again, did not notify him of its intent to seek his termination, and did not even notify him that his termination had been requested. In the case of Bahar, Rucker posted a delinquency notice in October when Bahar was 6 months delinquent, but did not mention the possibility of termination for nonpayment of his arrearage. When Bahar paid part of his back dues in November leaving him still 6 months in arrears, Rucker told him only that he must get his dues paid without stating what would happen if he did not. Although Dean later told Bahar his card would be pulled if his dues were not paid, he gave Bahar no deadline, and Respondent then permitted 4 months to pass before pursuing the matter further. It then acted without any further notice to Bahar. I find that however well-intentioned Dean and Rucker may have been in seeking to enforce the union-security agreement, Respondent failed to give either Hall or Bahar an unambiguous statement of Respondent's intention to seek their termination at any certain time before they were recalled to work if they failed to pay their accrued arrear- ages and that Respondent thereby failed to satisfy its obli- gation to them before seeking their discharge. Although Re- spondent contends that they were willful violators of their obligation to pay dues who now seek to use Respondent's fiduciary obligations as a shield to avoid their known lawful obligations, there is no indication of their unwillingness to pay based on any factor other than their unemployment, their limited financial means, and their lack of awareness of the consequences. In these circumstances, I find no basis for excusing Respondent from the obligation to give them clear notice that their jobs were in jeopardy if they waited to be recalled before paying their arrearages.9 Accordingly, I con- clude that Respondent violated Section 8(b)(2) and (IX)(A) H. C. Macauley Foundry Co., supra; Bay Area Typographical Union Local No. 21, International Typographical Union, AFL-CIO (Northwest Publica- tions, Inc.), supra. of the Act by causing Schenley to terminate them for non- payment of dues. THE REMEDY Having found that Respondent violated Section 8(b)(a) and (I)(A) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. I shall further recommend that Respondent be ordered to make Hall and Bahar whole for any loss of earnings they may have suffered as a result of the discrimination against them by payment to them of the amounts they normally would have earned from the dates of their respective dis- charges to the dates of their respective reinstatements, less net earnings, and interest thereon to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).'° Upon the basis of the above findings of fact and the en- tire record in this case, I make the following: CONCLUSIONS OF LAW 1. Schenley Distillers, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Distillery, Rectifying, Wine and Allied Workers' In- ternational Union of America, Local 38, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By causing Schenley to discharge Hall and Bahar without first clearly informing them of their dues obliga- tions pursuant to a union-security agreement and of the consequences of their failure to meet them, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(bX2) and ()(A) and Section 2(6) and (7) of the Act. Upon the basis of the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I hereby issue the following recommended: ORDER" The Respondent, Distillery, Rectifying, Wine and Allied Workers' International Union of America, Local Union 38, AFL-CIO, and its officers, representatives, and agents, shall: 1. Cease and desist from: (a) Causing or attempting to cause Schenley Distillers, Inc., to discriminate against any of their employees in viola- tion of Section 8(aX3) of the Act. (b) In any like or related manner restraining or coercing '1See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). " 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. 376 DISTILLERY, RECTIFYING. WINE AND ALLIED WORKERS, LOCAL 38 employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act, except to the extent that such rights are affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(aX3) of the Act, as modified by the Labor-Man- agement Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Make Grant H. Hall and Morgan A. Bahar whole for any loss of earnings they may have suffered as a result of the discrimination against them in the manner set forth in the section of the Decision above entitled "The Remedy." (b) Post at its offices copies of the attached notice marked "Appendix."' 2 Copies of said notice, on forms pro- 12 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 Judg- vided by the Regional Director for Region 9, after being duly signed by an authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Deliver to the Regional Director for Region 9 signed copies of said notice in sufficient number to be posted by Schenley Distillers, Inc., the employer willing, in all places where notices to employees are customarily posted. (d) Notify the Regional Director for Region 9, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. ment of the United States Court of Appeals Enforcing an Order of the Na- tional Labor Relations Board." 377