Teamsters Local Union 150

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Chauffeurs, Teamsters and Helpers Local Union 150, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America and William A. Lowd and Delta Lines, Party in Interest. Case 32-CB-38 (Formerly 20- CB-4482) May 23, 1979 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE On April 26, 1978, Administrative Law Judge Jer- rold H. Shapiro issued the attached Decision in this proceeding. Thereafter, the General Counsel and Charging Party filed exceptions and supporting briefs, and Respondent filed a brief in opposition to the ex- ceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge only to the extent consistent herewith. The Administrative Law Judge found that Respon- dent Union did not violate Section 8(b)(l)(A) and Section 8(b)(2) of the Act when it sought and caused Delta Lines to discharge the Charging Party, em- ployee William A. Lowd. We disagree with that con- clusion for reasons explained below. In 1976, Lowd was employed as a casual long-line truckdriver in the Sacramento, California, area. Al- though Respondent had jurisdiction over this type of work in the Sacramento area, Lowd at the time was a member of a sister Teamsters local having jurisdiction in the Los Angeles area. In October 1976, Lowd con- tacted Respondent about transferring his membership to Respondent. He filled out a membership applica- tion and requested a transfer from the Los Angeles local to Respondent. Shortly thereafter, however, he concluded that there was probably insufficient work for him in Sacramento and asked the Los Angeles local to cancel the transfer request. Also in October 1976, Lowd commenced working for Delta Lines (herein called Delta or the Employer) in Sacramento as a casual long-line driver working on an intermittent basis. He continued to work for the Employer until his discharge on August 8, 1977. Respondent and the Employer were parties to a collective-bargaining agreement which contained a union-security clause. Lowd, who did not accumulate 30 days of driving for the Employer until May 1977, attempted at various times in his tenure with Delta to find out whether the union-security clause applied to casual drivers.' Thus, on several occasions Lowd in- quired of Respondent's steward for the Employer's employees as to his responsibilities. The steward told Lowd that he did not know, but he advised Lowd to continue working. Lowd also requested a copy of the collective-bargaining agreement from the steward but was told they were out of print. Lowd also contacted a third Teamsters local (Local 208), inquiring about transferring membership. Local 208 responded that a transfer was impossible because "in order to transfer into Local 208 one must have a letter of hire." Since casuals are not given letters of hire, and since he had been told that they were necessary to acquire mem- bership, Lowd concluded that union membership pursuant to the union-security clause was not re- quired of a casual employee like himself. Lowd also spoke with other truckdrivers, two former business agents of Teamsters locals, and a supervisor em- ployed by another trucking company about his obli- gations. These conversations contributed to his con- clusion that as a casual driver he did not have to join Respondent. In June or July 1977, he again sought to determine his obligations as a casual driver when he attempted to contact Respondent's business agent. The business agent was not in, and Lowd left his name and phone number. He also mentioned to the secretary who answered the call that he was a mem- ber of Local 224 (the Los Angeles local). In response to the call, the business agent's superior tried to reach Lowd twice that day but was unsuccessful. On August 8, 1977, Lowd was terminated by the Employer pursuant to a termination notice sent to it by Respondent on August 4. The termination notice was for his failure to pay dues and join Respondent.2 The Employer explained to Lowd that the termina- tion was pursuant to Respondent's direction. Lowd did not contact Respondent after receiving the notice because he thought that as a casual driver he did not have any dues obligation to Respondent. The General Counsel alleged that Respondent's conduct in securing Lowd's discharge violated Sec- tion 8(b)(1)(A) and Section 8(b)(2) of the Act because Respondent did not afford Lowd a reasonable oppor- tunity to comply with the contractual union-security provisions, and did not inform Lowd of the amount he owed, the method used to compute the amount, I As found by the Administrative Law Judge. the parties agreed that Lowd was, in fact, obligated to comply with the union-security clause after 30 days of employment. 2 Lowd received a copy of the termination notice on Friday. August 5, 1977. It indicated that Lowd should be terminated on August 7 unless he completed his union obligations prior to that date. 242 NLRB No. 66 454 TEAMSTERS, LOCAL UNION 150 the manner in which he could satisfy his obligation before it sought his discharge.3 Despite finding, in agreement with the General Counsel, that Respondent had never informed Lowd of his contractual obligations and had never given him a reasonable opportunity to comply with them, the Administrative Law Judge recommended dis- missal of the complaint. He reasoned that Lowd's failure to comply with the union-security clause was not based on any of Respondent's proven omissions of duty toward Lowd. Rather, the Administrative Law Judge concluded that Lowd's discharge was the result of Lowd's mistaken belief that the union-secu- rity clause did not apply to those, like himself, who were long-line drivers employed as casuals. The Ad- ministrative Law Judge concluded that, whatever Lowd's reason, he had no intention of complying with the union-security clause, regardless of the adequacy of Respondent's notice. Accordingly, the Administra- tive Law Judge found no violation in Lowd's dis- charge. We disagree. As noted above, the Board has long held that a union must afford employees a reasonable opportuni- ty to comply with lawful contractual union-security provisions and must also inform the delinquent em- ployee of the amount owed, the method used to com- pute the amount owed, and the manner in which the obligation may be satisfied before it may seek such employee's discharge for failure to comply with the union-security provisions. An exception to this re- quirement arises where the employee has displayed bad faith, such as by willfully and deliberately evad- ing his or her financial obligations.' The instant facts clearly reveal that Respondent failed to meet its obligations to Lowd. They further reveal that no bad faith was shown to have existed on Lowd's part. In this regard, we note, in particular, that Lowd, on a number of occasions, asked Respon- dent's designated steward of his obligations and the steward told him he did not know what Lowd's obli- gations were. Further, Lowd undertook other inquir- ies (detailed above) which also proved fruitless. We stress that these inquiries undertaken by Lowd did not relieve Respondent of its affirmative duty under the Act specifically to inform Lowd of his obligations and afford him a reasonable opportunity to satisfy them. They simply show Lowd's lack of bad faith in failing to pay his obligations. ' The Board has long held that these obligations must be satisifed before a discharge may be sought for failing to comply with the contractual union- security provisions of a collective-bargaining agreement. See Teamsters Local Union No. 122, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (August A. Busch & Co of Mass., Inc. , 203 NLRB 1041 (1973). 4 See, e.g., Produce, Refrigerated & Processed Foods & Industrial Workers Local No. 630, IBT(Ralph's Grocery Company), 209 NLRB 117 (1974). In light of these above findings, a violation has been established in this proceeding. We disagree with the Administrative Law Judge's implicit legal conclu- sion that even in the absence of bad faith on Lowd's part the General Counsel had to establish a casual connection between Respondent's admitted failings and Lowd's failure to pay his financial obligations. While such casual connection may, in fact, have ex- isted here, it is unnecessary to establish this connec- tion in the face of Respondent's failure to give Lowd proper notice. Such failure where had faith has not been shown establishes the violation. The Adminis- trative Law Judge's conclusions to the contrary run counter to Board precedent.5 Consequently, in agree- ment with the General Counsel and Charging Party, we find that Respondent violated Section 8(b)(1)(A) and Section 8(b)(2) of the Act in seeking and causing Lowd's discharge.6 THE REMEDY Having found that by the aforementioned conduct Respondent Union has violated Section 8(b)(2) and (I)(A) of the Act, we shall order it to cease and desist from engaging in such conduct in the future and, af- firmatively, to take such action as will dissipate the effects of its unfair labor practices. We shall order Respondent Union to notifv Delta Lines, in writing, with a copy to William A. Lowd, that it withdraws its objections to Delta Lines' em- ployment of Lowd and requests it to offer him rein- statement and the restoration of his seniority as it existed on August 8, 1977, the date of his discharge. We shall order Respondent to make Lowd whole for any loss of pay suffered by reason of the discrimi- nation against him, by payment to him of a sum of money equal to the amount he would normally have earned as wages from the date of his discharge to the I We note that there is no factual basis for the Administrative l.aw Judge's conclusion, joined in by our dissenting colleague. that regardless of the ade- quacy of Respondent's notice Lowd was intent on not complying with the union-security clause Proper notification may well have dispelled L.owd's erroneous views of his obligations. The key here is that such notice was not given, and we will not presume what would have happened in its absence Our dissenting colleague further indicates that the blame of Lowd's firing rests in his own failure to seek out Respondent more avidly to determine his obligations. This theory neatly shifts the burden of notification from union to employee and, as such, is a curious legal proposition, at odds with Board precedent and without any legal validity. See the cases cited at sec. III.B, par. 1, of the Administrative Law Judge's Decision. I In agreement with the Administrative Law Judge, however. as discussed in fn. 4 of his Decision, we do not find that Respondent has iolated the Act by notifying Lowd he was obliged to become a full member of Respondent: or by not giving Lowd the 90-day grace period to fulfill his obligations which extended to individuals who were already members of Respondent. In so finding. however, we rely only on the fact that these issues were not suffi- ciently litigated at the hearing. We do not rely on the last sentence f the Administrative Law Judge's footnote in so deciding. 455 DECISIONS OF NATIONAL LABOR RELATIONS BOARD date set forth hereafter, less his net earnings during this period. The loss of earnings shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289(1950), with interest as described in Florida Steel Corporation, 231 NLRB 651 (1977).7 Respondent's backpay liability shall terminate 5 days after it notifies Delta Lines that it has no objection to Lowd's reinstatement, as provided above. CONCLUSIONS OF LAW 1. Delta Lines, the Employer herein, is now, and has been at all times material herein, an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Chauffeurs, Teamsters and Helpers Local Union 150, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is, and at all times material herein has been, a labor organization within the meaning of Sec- tion 2(5) of the Act. 3. By attempting to cause and causing Delta Lines to discharge William A. Lowd for failure to tender periodic dues without adequately advising him of his obligations, Respondent Union has engaged in, and continues to engage in, unfair labor practices within the meaning of Section 8(b)(2) and (I)(A) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Chauffeurs, Teamsters and Helpers Local Union 150, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Delta Lines to discharge or to otherwise discriminate against Wil- liam A. Lowd or any other employees for failure to tender periodic dues without adequately advising them of their obligations, in violation of Section 8(a)(3) of the Act. (b) In any like or related manner restraining or co- ercing employees in the exercise of the rights guaran- 'See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). teed them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement re- quiring membership in a labor organization as a con- dition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Make William A. Lowd whole for any loss of pay he may have suffered as a result of the discrimi- nation against him in the manner set forth in the sec- tion above entitled "The Remedy." (b) Notify William A. Lowd and Delta Lines, in writing, that it withdraws its objections to Lowd's em- ployment and requests the Employer to offer Lowd reinstatement and the restoration of his full seniority and other rights and privileges as they existed on Au- gust 8, 1977, the date of Lowd's discharge. (c) Post at its business office copies of the attached notice marked "Appendix." 8 Copies of said notice, on forms provided by the Regional Director for Region 32, after being duly signed by the Union's representa- tive, shall be posted by the Union immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to members are cus- tomarily posted. Reasonable steps shall be taken by Respondent Union to insure that said notices are not altered, defaced, or covered by any other material. (d) Forward a sufficient number of signed copies of the Appendix to the Regional Director for Region 32 for posting by the Employer at its place of business in Sacramento, California, in places where notices to employees are customarily posted, if the Employer is willing to do so. (e) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. MEMBER MURPHY, dissenting: Contrary to my colleagues, I agree with the Ad- ministrative Law Judge that Respondent did not un- lawfully cause Charging Party Lowd's discharge. As the Administrative Law Judge found, after Lowd be- gan working for Delta Lines (the Employer herein) as a casual long-line driver he asked Respondent's stew- ard at Delta on several occasions if he was obliged to join or pay dues to Respondent, and the steward re- plied that he did not know. The Administrative Law Judge further found that Lowd once called Respon- dent's business agent, the person responsible for po- licing the collective-bargaining agreement at Delta, I 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." 456 TEAMSTERS, LOCAL UNION 150 who was unavailable but who attempted unsuccess- fully to return Lowd's call. Otherwise, Lowd, who was a member of another Teamsters local and generally familiar with employee obligations under union-security clauses, made no attempt to contact any agent or representative of Respondent regarding his responsibility to pay dues. He concluded on the basis of conversations with other individuals that be- cause he was a casual worker the union-security clause in the collective-bargaining agreement between Respondent and Delta did not apply to him. On August 4, 1977, Respondent mailed copies of a letter requiring Lowd's discharge to both Lowd and Delta; Lowd received his copy of the letter on August 5. On August 7, in compliance with the letter, Delta terminated him. It is undisputed that Respondent did not, prior to demanding Lowd's discharge, notify him of his obligations under the union-security clause, and that in fact pursuant to that clause Lowd was obligated to pay dues to Respondent. On these facts, my colleagues find that Respondent breached its duty to inform Lowd of his financial obligations prior to demanding his discharge and thereby violated Section 8(b)(2) and (I)(A) of the Act. In reaching this conclu- sion, however, the majority ignores the reality of the situation.' As discussed above, Lowd was a member of a sister local of Respondent and well aware of the fact that Respondent and Delta were parties to a collective- bargaining agreement which included a valid union- security clause. Thus, Lowd can hardly be viewed as ingenuous regarding his union responsibilities. And, although Lowd asked a steward about the applicabil- ity of the union-security clause to him, when the stew- ard was unable to answer his question Lowd made only one attempt to contact another agent of Respon- dent. Thereafter, Lowd directed his inquiries about his status to other individuals who could not speak on behalf of Respondent, and Lowd formed his own con- clusion about his obligations without bothering to verify the accuracy of that conclusion. In these cir- cumstances, it is naive for the majority to insist that a union provide an employee with notice of his obliga- tions when it is quite clear that in any event the em- ployee has no intention of meeting them. In light of the foregoing, I cannot agree with the majority that Respondent unlawfully obtained Lowd's discharge, and, therefore, I dissent.' I would dismiss the com- plaint against the Union in its entirety. I The majority's attempted disavowal in fn. 5 of the undisputed facts here must fail for the same reason that the Administrative Law Judge found the discharge to be lawful. I0 See my dissent in District 9, International Association of Machinists and Aerospace Workers, AFL-CIO (Marvel-Schebzer, Division of Borg-Warner Corp.), 237 NLRB 1278 (1978). APPENDIX NOTICE To 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 Delta Lines to discharge or to otherwise discriminate against William A. Lowd or any other employee for failure to tender periodic dues without ade- quately advising them of their obligations, in vio- lation of Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. except to the extent that such rights may be af- fected by an agreement requiring membership in a labor organization as a condition of employ- ment. WE WILL notify William A. Lowd and Delta Lines, in writing, that we withdraw our objec- tions to Lowd's employment and request Lowd's reinstatement and the restoration of his full se- niority and other rights and privileges as they existed on August 8, 1977, the date of his dis- charge. WE WILL make William A. Lowd whole for any loss of pay suffered because of the discrimi- nation against him, with interest. CHAUFFEURS, TEAMSTERS AND HELPERS Lo- CAL UNION 150, AFFILIATED WITH THE IN- TERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUTFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: The hearing in this case, held February 28, 1978. is based upon an unfair labor practice charge filed August 11. 1977, as amended October 12, 1977, by William A. Lowd against Chauffeurs, Teamsters and Helpers Local Union 150, affili- ated with the International Brotherhood of Teamsters. Chauffeurs, Warehousemen and Helpers of America. herein called Respondent, and an amended complaint issued Octo- ber 27, 1977, by the General Counsel of the National Labor Relations Board, herein called the Board, alleging that Re- spondent has engaged in unfair labor practices within the meaning of Section 8(bX)(1A) and (2) of the National La- bor Relations Act, as amended, herein called the Act, by seeking to cause and by causing Lowd's employer to dis- charge him for his failure to comply with the terms of a contractual union-security clause even though Respondent failed to notify Lowd "of his obligations regarding the amount, time or manner of making payments under said 457 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clause and without offering him a reasonable opportunity to comply." Respondent filed a timely answer denying the commission of the alleged unfair labor practices. Upon the entire record, from my observation of the de- meanor of the witnesses, and having considered the post- hearing briefs, I make the following: FINDINGS OF FA( I I. THE BUSINESS OF THE EMPLOYER INVOI.VED Delta Lines, herein called the Employer, is a California corporation with a facility located in Sacramento, Califor- nia, where it provides trucking services to other employers. During the calendar year in which the alleged unfair labor practices occurred the Employer purchased goods valued over $50,000 directly from suppliers located outside the State of California. Respondent admits, and I find, that the Employer is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. I further find that it will effectuate the purposes of the Act to assert juris- diction herein. II. IHE LABOR ORGANIZATION INVOI.VII The complaint alleges, Respondent admits, and I find that Respondent is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR .ABO()R PRA( II(CES A. The Facts The Charging Party, William Lowd, has been a member of various local unions affiliated with the Teamsters Inter- national Union since 1958. In 1976, during the material period of time, Lowd was a member of Local 224 whose jurisdiction encompasses Los Angeles, California, and vi- cinity. In 1976, on a date not disclosed in the record, Lowd began working as a casual long-line truckdriver for System 99 Truck Lines which is located in Sacramento, Califirnia. The Union is the Teamsters local which has jurisdiction over this type of work in the Sacramento area. Based upon his prior experience as a member of the Teamsters, Lowd knew that it was customary for a member of a local union affiliated with the Teamsters International Union to trans- fer his membership into the local Union in whose jurisdic- tion he was working. Thus, on October 1, 1976, while work- ing for System 99 Truck Lines, Lowd visited Respondent's office and filled out a membership application and re- quested that his membership be transferred from Local 224. An office clerical employed by Respondent explained the transfer procedure to Lowd and advised him of the amount of monthly dues and assessments he was obligated to pay as a member of Respondent. He was also notified that beflre his transfer could be effective Respondent would have to check with Local 224 to determine whether he owed Local 224 any moneys, and if so, Respondent would collect the money from Lowd and transmit it to Local 224. Later in October Lowd phoned Local 224 and instructed it to cancel his request to transfer into Respondent, explaining to Local 224 that his work with System 99 Truck Lines was slowing down, and there did not appear to be sufficient work for him to remain in Sacramento so he would probably return to work in the Local 224 jurisdiction, Los Angeles. It is undisputed that at all times material herein Lowd was a member of Local 224 and not a member of Respondent.' Lowd did not return to Los Angeles; he remained in Sac- ramento, and in late October 1976 he commenced working for the Employer as a casual long-line driver. Until his ter- mination on August 8, 1977, Lowd worked for the Em- ployer intermittently as follows: October 1976-4 days, No- vember- 3 days, December-3 days, January 1977-- I day, February-2 days, March-9 days, April 7 days, May- 11 days, June-10 days, July--17 days, and August 3 days. Respondent and the Union were parties to a collective- bargaining agreement and the National Master Freight Agreement, which covers the terms and conditions of em- ployment of all the Employer's long-line drivers, including its casuals. However, the casuals acquire no seniority, and after the completion of each job assignment they are issued slips terminating their employment. They are covered by the collective-bargaining agreement's union-security clause, article III, section I(b), which, in pertinent part, reads: All present employees who are not members of the local union and all employees who are hired hereafter shall become and remain members in good standing of the local Union as a condition of employment on and after the 31st day following the effective date of this subsection or the date of this Agreement, whichever is the later. An employee who has failed to acquire or thereafter maintain, membership in the Union as herein provided shall be terminated seventy-two (72) hours after his employer has received written notice from an authorized representative of the local Union, certifying that membership has been. and is continuing to be, offered to such employee on the basis as all other members and, further, that the employee has had no- tice and opportunity to make all dues or initiation fee payments. The parties to this proceeding agree that Lowd, as a casual employee, was legally as well as contractually obligated to comply with the terms of the aforesaid union-security clause after having worked 30 days for the Employer. See State Packing Company. 137 NLRB 1420 (1962). When Lowd started working for the Employer he knew that the Employer was a party to a collective-bargaining contract with Respndent and knew that the long-line driv- ers were required to join Respondent as a condition of con- tinued employment. Lowd testified that he concluded in early 1977 that the union-security clause did not apply to casual workers like himself' but only to the regular employ- ees who acquire seniority. The circumstances which re- It appears, however. that in November 1976 Lowd requested a with- draval card from Local 224. the record is silent as t, whether he was ever issued a withdrawal. 2 .owd's testimony that he did not reach this conclusion until early 1977 is suspect. inasmuch as he admitted during cross-examination that the reason (during his entire period of employment with the mployer, from October 1976 until August 1977), that he did not seek a transfer from Local 224 into Respondent as because of his conviction that the contractual union-secu- rity clause did not apply to casuals. 458 TEAMSTERS. LOCAL UNION 150 suited in his conclusion, Lowd testified, were as follows. In January 1977 Lowd phoned the System 99 dispatcher to find out whether there was any casual work available. The dispatcher advised him, in substance, that Respondent had previously caused System 99 to stop employing him be- cause he had not "straightened himself out with the [Re- spondent}," and that on account of this System 99 could not employ him. Unhappy about being told that he was being denied employment because he had not transferred his union membership from Local 224 to Respondent, Lowd began making inquiries about whether he was obligated, as a casual worker, to join and pay dues to Respondent. His conversations with several persons including truckdrivers. two former business agents of local Teamsters unions, and a supervisor employed by a trucking company convinced him that under the collective-bargaining agreement which gov- erned his employment that only regular workers who ac- quired seniority had to join Respondent and pay dues. This belief was bolstered, he testified, when in early May 1977 Lowd wrote to Teamsters Local 208 asking whether he could transfer his membership into this local from Local 224, and he was advised that such a transfer was impossible because "in order to transfer into Local 208 one must have a letter of hire." Since employers do not issue casuals letters of hire, and since, as stated in Local 208's response, it is necessary to have a letter of hire in order to acquire mem- bership, Lowd reasoned that a casual was not obligated to acquire union membership pursuant to the terms of a con- tractual union-security clause. In approximately February 1977 Lowd spoke to Bill Bel- ger, the employee designated by Respondent to serve as Respondent's steward for the Employer's employees.' Lowd asked whether, as a casual worker, he was obliged to pay dues to Respondent or join Respondent. Lowd explained that it was his understanding that Respondent had caused System 99 to terminate him for failing to do this, but he had since learned Respondent did not have this right because casual workers were not obliged to join Respondent or pay dues. Belger stated that he was unable to answer lIowd's question. explaining to Lowd that he did not have a com- plete understanding of the applicable collective-bargaining agreement. He advised Lowd to continue to work for the Employer. During this conversation Lowd asked for a copy of the collective-bargaining contract. Belger told him that he did not have one, that they were out of print. Thereafter Lowd spoke to Belger about this same topic on several other occasions. Each time Belger indicated that he did not know whether union membership or the paynent of dues was compulsory for a casual worker like Lowd. In June or July 1977 Lowd phoned Respondent's office and asked to speak to Howard Rush. the business agent responsible for policing the terms of Respondent's collec- tive-bargaining contract which covered the Employer's op- eration. Lowd testified that it was his intention to ask Rush whether, as a casual employee, he was obliged to join Re- spondent. Rush was not available, however, so l.owd left his name, phone number, and the fact that he was a mem- I Lowd did not remember when he first spoke to Belger. He testified that the initial conversation occurred 3 or 4 months after he had started working for the Employer in October 1976. ber of Local 224 with the secretary who had taken the call, and without explanation asked that Rush return his call. This message was received by Rush's boss. Jack Kalehuloa. Respondent's secretary-treasurer, who phoned Lowd twice that day but was unable to reach him. On August 8, 1977. the Employer terminated Lowd un- der the following circumstances. On August 4, Respondent mailed copies of a termination notice to Lowd and to the Employer. Lowd's copy was addressed to Lowd in care of the Employer. On August 5, at noontime, Lowd received the envelope containing his copy of the termination notice from the Employer's dispatcher. The notice captioned "Termination Notice" was addressed to the Employer and was signed by Respondent's secretary-treasurer. It reads as follows: Gentlemen: According to the Union agreement in effect between the Company and the Union, any' employee covered by said agreement cannot be retained in employment unless he is a member in good standing. The person named below was dropped from the Union Roster on . This letter will serve as official notice to termi- nate W.A. Lowd no sooner than August 7, 1977 and not later than August 7, 1977. This Union reserves the right to rescind this notice of termination prior to the effective dates if the employee completes his Union ob- ligations. After reading the notice Lowd asked to speak to the Em- ployer's Terminal Manager Jarad McArthur and was in- formed that he was not there. Lowd did not go to Respon- dent's office. He testified that the reason he did not go to Respondent's office upon receipt of the notice, either for an explanation or to have the notice rescinded, was that so far as he was concerned he felt that he had no obligation to join and pay dues to Respondent inasmuch as he was only employed as a casual employee. On Monday. August 8. 1977, Lowd spoke to Terminal Manager McArthur and asked what the termination notice meant. McArthur stated that it meant the Employer could not employ him any longer since Respondent had directed it not to do so. Finally, in reciting the facts pertinent to a disposition of this case. I note that it is undisputed that at no time prior to Lowd's receipt of the termination notice did any represent- ative of Respondent notify him that pursuant to the con- tract between Respondent and the Employer that he was obliged to transfer his membership from Local 224 to Re- spondent or pay dues to Respondent as a condition of con- tinued employment. B. Ul timate Findings and Di.cus.sion A labor organization seeking to enforce a union-security provision against an employee has a "fiduciary" duty to "deal fairly" with the employee atfected. "At the 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." .I. .R. v. Hotel, uotel and Club Etnplo ee.s' Union,. Local 568, FL (10 (Philadelphia Sheraton (orporation), 320 F.2d 254, 258 459 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3rd Cir. 1963), enfg. 136 NLRB 888 (1962). Accord: H.C. MacCaulay Foundry Co. v. N.L.R.B., 533 F.2d 1198, 1201 (9th Cir. 1977), enfg. 223 NLRB 815. In applying this prin- ciple, the Board has held that a union which seeks an em- ployee's discharge for noncompliance of a union-security clause must afford the employee a reasonable opportunity to satisfy his financial obligation, inform him of the precise amount of his obligation, specify the months for which the obligation is owed, and explain the method used in comput- ing the amount owed. Teamster Local Union 122, etc. (Au- gust A. Busch & Co. of Mass., Inc.), 203 NLRB 1041, 1042 (1973); Granite City Steel Company, 169 NLRB 1009, fn. I, 1011 (1968). Counsels for the General Counsel and the Charging Party take the position that in causing Lowd's discharge Respondent violated Section 8(b)(2) and (1)(A) of the Act because it failed to deal fairly with him in that it did not afford him a reasonable opportunity to comply with the contractual union-security provision and failed to inform him of the precise amount of his obligation, the months for which the obligation was owed, the method used in com- puting the amount owed, and the manner in which he could satisfy his obligation.' Respondent argues that under the circumstances of this case its August 4 termination notice to Lowd constitutes proper notice; and even assuming that it should have acted more diligently, Respondent argues that its request which caused Lowd's discharge was not unlawful because the record establishes that even upon receipt of a proper notification Lowd would not have complied with the terms of the contractual union-security clause and would have been discharged in any event. I am of the view that the complaint must be dismissed inasmuch as the record establishes that it was not Lowd's lack of knowledge of the terms of the union-security clause or that he risked termina- tion if he failed to comply with this clause which brought about Lowd's termination; rather, the record establishes that Lowd's discharge resulted from his belief that the terms of the union-security clause did not apply to him. The union-security clause included in the applicable col- lective-bargaining contract covered Lowd, who was em- ' I reject General Counsel's and Charging Party's further contentions that Respondent failed to fulfill its duty of fair representation, as well as indepen- dently violated the Act, by notifying Lowd that he was obliged to become a full member of Respondent and by discriminating against him by allowing employees who were already members of Respondent a grace period of 90 days to meet their union-security obligation, whereas employees like Lowd who are applying for membership are not given the same grace period. Nei- ther contention was advanced as a theory of the complaint nor sufficiently litigated. It is not surprsing that these contentions were not litigated by Respondent inasmuch as the complaint in this case, which specifically sets out the theory of the violation, significantly does not include these additional contentions. Thus the complaint alleges that Respondent sought and secured Lowd's discharge, and that this conduct violated the Act because it was done "without first notifying William Lowd of his obligations regarding the amount, time or manner of making payments under [the union-security clause} and without offering him a reasonable opportunity to comply there- with." In any event, assuming the aforesaid additional contentions advanced by the General Counsel and Charging Party are within the ambit of the complaint and have been established in the record, I would still find no violation herein because, as found infra, the record reveals that in refusing to comply with Respondent's termination notice Lowd was not influenced by the notices terminology or by the fact that it afforded him only a short period of time to comply; rather, given any amount of time and regardless of the terms of the notice, Lowd had made up his mind not to comply with the terms of the union-security clause and would not have complied. ployed by the Employer as a long-line driver on a casual basis. From the time that Lowd began working for the Em- ployer, he knew that Respondent and the Employer were parties to a contract which included a clause requiring long- line drivers to join Respondent as a condition of continued employment. Based upon his 18 years as a member of the Teamsters, Lowd knew how to go about transferring his membership from Local 224 into Respondent, and based upon his abortive effort to transfer into Respondent he knew where Respondent's office was located and the cur- rent transfer procedure. The reason that Lowd did not transfer from Local 224 was because he believed, mis- takenly, that the union-security clause in Respondent's con- tract with the Employer did not apply to long-line drivers employed as casuals. He testified that he became absolutely convinced of this as early as May 1977: and he further testified that on August 7, upon receipt of the termination notice, he did not go to Respondent's office or otherwise contact Respondent and take steps to have it rescind the termination notice because, in his opinion, he was not obliged to comply with the union-security clause. To recapitulate, the record establishes that Lowd, who was covered by the applicable collective-bargaining con- tract including the union-security clause, was intent on ig- noring the requirements of this clause and was intent on working as a "free rider." It was not a lack of knowledge about the union-security clause or a lack of knowledge about his obligations under the clause which resulted in Lowd's discharge. Nor did his discharge result from Re- spondent's neglect in affording him a reasonable opportuni- ty to comply with the clause. Lowd knew long-line drivers had to comply with the union-security clause or face dis- charge, but when he was faced with the choice of comply- ing or being discharged he took the position that as a casual long-line driver he was privileged to work for Respondent as a "free rider." In the light of all of these circumstances I shall recommend that the complaint in this case be dis- missed. Cf. John J. Roche & Co., Inc., 231 NLRB 1082 (1977); Produce, Refrigerated & Processed Foods & Indus- trial Workers Local 630, etc. (Ralph's Grocery Company), 209 NLRB 117 (1974); Great Lakes District, Seafarers' In- ternational Union of North America, AFL-CIO (Tomlinson Fleet Corporation), 149 NLRB 1114 (1964). For as the Board, in John J. Roche & Co., Inc., supra, recently stated (231 NLRB 1083): 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 dis- charges 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. The General Counsel and Charging Party urge that Lowd cannot appropriately be described as an employee looking for a "free ride" inasmuch as his refusal to comply with the applicable union-security clause was based upon an honest and understandable mistake. They urge that Lowd's resolve not to comply with the union-security clause should not excuse Respondent's failure to deal fairly with him inasmuch as Lowd was acting in good faith. I recognize that each Board decision which has dealt with the discharge 460 TEAMSTERS, LOCAL UNION 150 of an employee for noncompliance with a union-security clause in which the Board, despite evidence of union con- duct proscribed by the Act, has dismissed the complaint on the basis that the discharged employee was intent upon being a "free rider," has involved employees who appear to have been acting in bad faith so as to avoid the expense of joining the union. See Local 630 (Ralph's Grocery Com- pany), supra, John J. Roche & Co., Inc., supra; Great Lakes District, Seafarers' International Union of North America, AFL-CIO (Tomlinson Fleet Corp.), supra. Nevertheless, I do not believe this circumstance was essential to the outcome of these cases. No persuasive reason has been advanced to distinguish between different classes of "free riders" who chose not to comply with a union-security clause.5 I am persuaded that the essential question to be answered in cases of this sort is whether, as in the instant case, Respon- dent has proven that Lowd, for whatever his reason, had no intent of complying with the union-security clause regard- less of the adequacy of Respondent's notice. Of course, in- sofar as Lowd's belief that the union-security clause did not apply to his situation was caused by Respondent's conduct, then equitable considerations would estop Respondent from raising this as a defense. The only evidence from which an inference can be drawn attributing Lowd's belief to Respondent's conduct is the failure of Respondent for several months to notify Lowd that he was obligated to comply with the union-security clause, and the failure of Respondent's steward, Belger, to notify Lowd that he was 'The employees who decide not to comply with a union-security clause as a matter of conscience; the employees who decide not to comply with a union-security clause based upon a good-faith belief that the clause does not apply to them; and the employees who decide not to comply with a union- security clause out of a desire to line their own pockets with the money they will save by not meeting their obligations. covered by the union-security clause. There is no evidence, however, that Lowd's misunderstanding was based even in part upon these factors. Quite the opposite, Lowd's testi- mony indicates that he did not rely on either one of these factors in concluding that the union-security clause did not apply to him. In any event, laxity by a labor organization in enforcing a union security clause does not estop it from enforcing the clause. Zoe Chemical Co., Inc., 160 NLRB 1001. 1013 (1966). This is particularly true where, as in the instant case, Lowd was employed as a casual employee on an intermittent basis, thereby making it more difficult than usual to determine at which point of time he was obligated to comply with the contract's union-security clause. See State Packing Company, 137 NLRB 1420. In connection with the several conversations between Belger and Lowd, there is unsufficient evidence that Belger, expressly or by implication, advised Lowd that he was not obligated to comply with the union-security clause. Belger said nothing which reasonably should have led Lowd to ignore Respon- dent's subsequent notice of termination which clearly stated that he was covered by the contract's union-security clause. Quite the opposite, Belger at all times advised Lowd that he did not know whether casuals were covered by the union- security clause. In summation, the record establishes that Lowd, through no fault of Respondent, believed that the contract's union- security clause did not apply to him because he was a ca- sual worker, and that because of this belief, and for no other reason, Lowd ignored Respondent's notification that the clause applied to him, and that he would be discharged absent his compliance. Based upon the foregoing, I shall recommend that the complaint in this case be dismissed in its entirety. [Recommended Order for dismissal omitted from publi- cation.] 461