Valley Cabinet & Mfg., Inc.

DIECISIONS OF NATIONAL. LABOR RELATIONS BO()ARD Valley Cabinet & Mfg., Inc.' and Dolly Murphy Millmen and Industrial Carpenters, Local Union No. 1618, nited Brotherhood of Carpenters and Joiners of America, AFL-CIO2 and Dolly Murphy. Cases 20-CA-14554 and 20-CB-4840 October 21, 1980 DECISION AND ORDER Y3I CIIAIRNMAN LANNING ANI) MlIMlI3RS JENKINS ANI) PINII I O On June 24, 1980, Administrative Law Judge Frederick C. Herzog issued the attached Decision in this proceeding. Thereafter, the Employer and the Union each filed exceptions and supporting briefs. 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 oard has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, finid- ings,: anrd conclusions of the Administrative Law Judge only to the extent consistent herewith. 1. We agree with the Administrative Law Judge that the Union violated Section 8(b)(1)(A) and (2) of the Act by requesting employee Dolly Murphy's discharge without adequately informing her of her financial obligations to the Union.4 Chauffjjur, ieuamster¥ and Helpers Local Union 150, uaJiliuted with the International Brotherhood of l'eamnsterv, ChaufjlIurs, Ware/housemen and llelpers of America (Delta Lines), 242 NLRB 454 (1979). We also agree that the Employer violated Section 8(a)(3) and (1) of the Act by twice laying off Murphy for filing grievances.: However, for the reasons stated llcrcialftr referred t II1 the ih FrI phuycr 2 l,tnicaltcr rlctrrcd IT as t ihl t[rio I 'i I rirlrploycr aid he Lilion hacl txt ccptel to crlil crilihilit 5 fitling, rirdcl b5 the A llliinn iratic la lV Jtidgc It is til i t eii.T' , ccil) litilt polio r( to o.crrilc air adiintralicv c i Iuldgc's re.'i-]htirion wit rpcci il rcdibilils ulrcis nlc lear prepondelrarnce of il of tich rclcill, aL cLIdtIIcC ColcillLccL us that IIh roluliis ar i llcrr.c Snid- urd 0, ill I'odut . In I N R 544 (1950). citd I8X8 i 2d 362 I tdi C'ir 1951) W ' haIlclte tlrcllll y xl t llilcl I .. rc ald ll ln ha s Ifor rrcrsilg Iih firidilgs it' Adnmiraliimcr lau Judgt ialtldcrItr ly rcRrrdr l tr tile Ilplr y- cr's sipervisor. Jthi Wooldridgeg ita' J"IlI WV olridg " XVWc hrehy cor rcct Ihis rrrr 4 Ii fil 17 if is Deiciii, the Adnnilicriiltr c ila Jldg. denieid hr lionil' reques for cfTrrall f Ihr issL raied h Murphls : d ichrarge ti ile grl,ancc prccdure hbecause ti Inlol' in ltrcests arc II1 cill llict Aith Murphy' inticrests It is Board plic t refuse to defer il this Hituatilon hecauc the cac iLIlvtcs alleged iolalions orf Scc 8(h)(1)(A) and (2) of tlie Act (rneral 4rriiwrn Irrunporrtilo,, Cirporairrrrn. 228 N RIt 80)8. 811 (1977) Chairman arnning and Membiher Jnkins ould not dfer ill anly ecitl hasecd Ton tcilr oIrpiinil in (;Tenirad 1 rmeri/nrr Iantiprorltilorr upra aIl 808 Mlbhcr I'PrcIll io ,uldl niol dcfrr fi)r thc reasolls tel firti ill the Adnilistralivc I av Judgr's I)cililon In a tili nptg the Adtniiitrali c I.aiW Juldgc's CIIclclir] thirt tile t- pliycr crltaitcl Sec 8(a)(3) aind () f Ih A h lalyirg I1 Mrph il 253 NLRH No. 8 below, we cannot adopt the Administrative Law Judge's conclusion that the Employer violated Sec- tion 8(a)(3) and (1) of the Act by discharging Murphy at the Union's request. The record reveals that the Union requested the Employer to discharge Murphy as provided in the collective-bargaining agreement, because she had fallen behind in the payment of her dues and had consequently lost her membership rights. The Em- ployer promptly complied with the Union's re- quest, and Supervisor John Wooldridge terminated Murphy on March 21, 1979, showing her the letter the Employer had received from the Union. Murphy did not protest her discharge at the time, nor did she indicate in any way that the letter re- questing her discharge was incorrect. s No evidence was presented to show that the Employer had any basis for believing that the Union had acted unlaw- fully in requesting the discharge. Section 8(a)(3) of the Act makes it an unfair labor practice for an employer to discriminate in regard to hire or tenure of employment to encour- age or discourage union membership, but allows an employer to enter into a valid union-security agree- merit and abide by its terms under the following proviso: No .cilihtr alid l1)ctcnlci-tt 1978, %ct dti io rTl oIl }1i% appiitlon o 1tL "il plt'" tci t fit llt Il i, liallOllS Rithlcr, R ct c a;lll/c Iicl tai, hasid Ion oiuir r[Citlll ~.CCilc III &C righT Lln Ai I D)oi' ilif Wight i .lilI , ilt . 251 NI R 1083 (98). ilpil>ing the Icsi sct firth therein. ,c find thrl the (icncral Colursel nladce ; priman jal shhumig that Murph>'s filing f gricancc, ,as a rlnO ating actor in tilt Imploscr', dccisioll o la 5 heir off tie record thaloc till Mirphts filcd gri larcc ll JiuneT 178 cor- tclirrlig t11i I rinli crcr Ifaluri ITo iiiriotc hr Supcricror Jfli Wiool- ritdgcl l icl iri 11i l a tic lrlnt Murphli hcfoirc htr fircI ra i if i Nc. cii- hc 1 li Io h Du78c Ich I hh th preslitt of thr llp, icr W iil. makc IIIlgS Ill gh (1 11I clplI ccii xlii fi]I grlc alilC After cel1ic ' rlulrliCd Ill Niuork fro ll thr iiiial ioiriff, Murphs iled iliothrr grilc anc a ill thi liclT itxsif ' hltci I)ais ricc-iel it cl op lf 1' tl grilalilCc tic ClCilt Ill ilurp,L Irccc iell glri ,ll rC c ll her irkiahc , ldll lll a c tlgrT icrark Si-cral nurniiL lcri idr i Mldgc r M thi rict iatrpli lial slhe cla br.ing laid nl'' again tln'ciUs ec ci had I1 i work iit Atil 'tiT MNiirphli ckcl-d i'f WCoIIoldrilg as i ng til tIrulh, h r,poidcl hS 'is nlig, "Well. ll kilc, ihet lid IllI an Irl)ais "l , olIdrilgc lalcr iniformid Murphll tha t)iliS Tc.s citrcnlic) allgry h ici htic rtirnlid fro ic itaiOil illid dls ii ,crcd tilat NuUrph, had l t hrt lailld ( i l i c1' te tlrl t } laie 1t1een glilt ' liS itcL cILhilriltled t ill (icuiral 'nulci cffctic ly S11lfled tic hiurdeiti tc t lllJlllLscr tI( ct10 ilial tilc li uft c tiud 1 acl c.lil i - ctrrid ccn i the ahscricc if Murpti's LCtlgagtliIt Ii cclhalr ciirC Lltally protcul(d aVlicit tRs I'he Enplor ailcgcid that Miirlli alc lit ff fir taclk ork and lbrinltLd eidcicc thaiti oihcr crllsc. cci %trlaUd uif tlirig tlh iriL period ocliucccr, )vi)c ras loit calcd as a , .i[Ins, anid tilc icilruiny of Vooliridge, ti. Iulpliycr' Oin s Xiile a to Ihis Istic, ccti largcl drcdied h the Adnilutrati.c I ai Judilge itc cvi- dlrT ' iI)ais' ingr) ractions to Murphy'c liing ofl grci anccs Aac, not rihthtilld lb ti hre Irnploscr ll ay ay W therecore conclude itial te I iiiiilocr has failed o nimet ils hrden, aid affirm tie Admurruirat'i- I i Judge's colIuiolri thait tcse htfs ioilatd Sc 8(a)( ) arid (I) I (if thie AcL Indeed, there ic i o iontetillon h tIh (iriecrai Couil] that Murpl c.rc noii il1 arrcars, the sole basi for tile 8(b) I(IA) ad 21 ciliation agililllt tie Unil wiac ic [lnio[' failure ( auLatralC Ill }rifr Murphs if hcr dtc illqucnicL' hcforc rqusting ht r dictargc 9 VAIl.I Y CABINIET & MF(i.. INC. . . . ProvidcdJfrtihr, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the em- ployec on the same terms and conditions gen- erally applicable to other members, or (13) if he has reasonable grounds for believing that membership was denied or terminated for rea- sons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership. Thus, an employer is held to a lower standard than the union under this proviso to Section 8(a)(3) of the Act; that is, it violates the Act only when it discharges an employee at the request of the union when it has "reasonable grounds for believing" that the request was unlawful. tForsyth Hardwood Com- pany, 243 NLRB 1039, 1040 (1979); Conductron Corporation, a subsidiary of' McDonnell Douglas Cor- poration, 183 NLRB 419, 427 (1970). The Administrative Law Judge found that the Employer herein violated Section 8(a)(3) and (1) of the Act by discharging Murphy, noting Murphy's earlier discriminatory layoffs, testimony that Presi- dent Davis said, "I finally found a way of getting rid of her" the afternoon of Murphy's discharge, and the subsequent refusal of the Employer to rein- state Murphy. The Employer contends that it had no reasonable cause to believe that the Union was unlawfully requesting Murphy's discharge, and thus it did not violate Section 8(a)(3) and (1) of the Act by acceding to the Union's demand. We find merit in the Employer's contention. While we agree that the Employer demonstrated animus toward Murphy in laying her off in No- vember and December 1978, there is no evidence that the Employer conspired with the Union to assert Murphy's dues delinquency as a pretext to justify her discharge. Murphy did nothing to put the Employer on notice that the Union had not adequately informed her of her arrearages or acted improperly in any way. The record reveals that she did not protest her discharge either when Wool- dridge terminated her or when she called the Em- ployer's office later that day.7 While the Employer was no doubt pleased to acquiesce to the Union's demand, there is no evidence that it had any basis to suspect that the Union had acted improperly. 8 Accordingly, we reverse the Administrative Law Judge's conclusion that the Employer violated Sec- I Intera Buli (Carrier~. Inc.. 211 NRH 932, 93h-937 (1974) C' II C. MaculaU i I-,undrv (rempain,. 223 NI R II5. 81 gl9 t (1976). cnrfd 553 F2d 1198 (9lh Cir 1]77) Cf .- lid .Afiaulmn l ( ?, rrn . Iqh NI.RiH 5h (Ig'72) tion 8(a)(3) and (I) of the Act by discharging Dolly Murphy at the Union's request. As the Ad- ministrative Law Judge found the Union and the Employer jointly liable for the discharge, we shall amend the remedy. 2. The Administrative Law Judge also concluded that the Employer violated Section 8(a)(3) and (1) of the Act by refusing to reinstate Murphy.9 While we agree that a violation of Section 8(a)(3) and (1) of the Act occurred, we so find on the theory that the Employer refused to consider Murphy for em- ployment. The Administrative Law Judge found that Murphy went to the Union's offices immediately after her discharge on March 21, 1979, and at- tempted to settle her financial affairs with the Union. Murphy was apparently worried about her ability to pay the $260 that she owed. Patricia Rainey, secretary for the Union, was sympathetic to Murphy's plight and suggested that Murphy first call the Employer and make sure she could get her job back before she paid such a large sum. Murphy agreed, and called the offices of the Employer, asking for Davis. Instead, Wooldridge spoke to her and told her Davis refused to talk with her. Murphy explained that she wanted to know wheth- er she could return to work if she paid her debt to the Union. After checking with Davis. Wooldridge informed her that Davis had said she could not have her job back. Murphy did not pay the Union that day; her obligation was not fully satisfied until May 25, 1979, the date the Union informed the Employer that it had no objection to her reinstate- ment. Murphy did not reapply at that time. The Administrative Law Judge found that the Employer violated Section 8(a)(3) and (1) of the Act in refusing to reinstate Murphy on March 21, 1979. We disagree with that finding. The Employer could not have reinstated Murphy at the time of the telephone call because the Union's request for her termination had not been rescinded. In light of our finding that the Employer had no reasonable ground for believing that the Union's request was unlawful, it would have been impossible for the Employer to have reinstated Murphy at that time without breaching the union-security clause of the collective-bargaining agreement. Rather, we find that the Employer's actions con- stituted a discriminatory refusal to consider Murphy for employment. The Board has held that an employer violates Section 8(a)(3) and (1) of the Act when it refuses to consider an application for " Although the complaint did illt allege I rtfiuail t rilirstae, the con- duct is coely related to the discharge allegatiols of the co plaintl. and the matter "as , fult lilgtgated Sete liec lvra (, 23 N R 12th (I 17 I)t CISI()NS ()F NATI()NAI AIB)R RE. AI(NS It()ARI) emloyment for reasons proscribed by the Act. Shawrnee Industrie.v., Inc.. Subsidiary of Thiokol Chemical Corporation, 140 NLRB 1451, 1453 (1963), enforcement denied on other grounds 333 F.2d 221 (10th Cir. 1964). When Murphy tele- phoned the Employer's offices from the union hall, she was asking to be considered for reemployment once the Union indicated that she had fulfilled her financial obligations. Wooldridge told Murphy that Davis had refused to reemploy her. There is clear evidence that Davis resented Murphy's use of the grievance procedure, and had laid her off in retali- ation for filing grievances. (See footnote 5, supra.) Davis' statement on the day of the discharge that he had found a way to get rid of Murphy bolsters the conclusion that Davis refused to consider Murphy for reemployment because of her use of the grievance procedure, an activity protected by Section 7 of the Act. Accordingly, we find that the Employer violated Section 8(a)(3) and (1) of the Act by discriminating against Murphy with respect to consideration for reemployment because of her protected activity. 3. In his Conclusions of Law, the Administrative Law Judge found that the Union violated Section 8(b)(l1)A)' 0 and (2) of the Act by failing to repre- sent Dolly Murphy in a fair and impartial manner. As this violation was neither alleged in the com- plaint nor litigated at the hearing, we do not adopt his finding in this regard. We shall amend the Con- clusions of Law accordingly. AMFINI)II) CONCLUSIONS 01 LAW 1. Substitute the following for paragraph 5 of the Administrative Law Judge's Conclusions of Law: "5. By repeatedly laying off Dolly Murphy and by refusing to consider her for employment, the Employer has engaged in and is engaging in con- duct in violation of Section 8(a)(3) and (1) of the Act." 2. Delete paragraph 6 and renumber the remain- ing paragraph accordingly. THi Rt:MII)Y Having found that the Employer discriminated against Dolly Murphy in laying her off in Novem- t'I he U!nionll ha excepted Ithe Adnliii lrati e a.l Judge I clchl- slon that it llatled Scc 8(hl(I)(A) s well as Sec 8(h)(2) of the Act hy failing il properly norlif Murphy of her dues obhlgatilons hefire rqustc- ing her discharge the tilllon conlntlds that a ,olatio of Sec 8(h)(I)(A) of the Act %a not alleged in the complaint, and thal the Administrative I.aw Judge herefirce had nio hasis for finding such a iolation A the underll g facts pertaining to a violation of Sec 8(h)()(A) of the Act are identical to those upoli which the 8(h(2) violation i premised and the legal theory fr both violations is identical. we adopt the Adminlitra- tive I .av Judge's clnclusion that the Ulnion also volated Sec (b)(l)(A) of the Act by failing in its fiduciary duty It Murphy. I ( .Muacuulu [oundrv (mpnvy. 223 NIRH 815, 818 enfd. 553 F 2d 119X bcher and December 1978, we shall order that the Employer cease and desist therefrom and make her whole for any loss of earnings or other benefits during the periods of those layoffs, as recommend- ed by the Administrative Law Judge. Having found that the Employer did not violate Section 8(a)(3) and (1) of the Act by complying with the Union's request to discharge Dolly Murphy, we shall delete that portion of the cease- and-desist order against the Employer. We also find that the Employer is not jointly liable with the Union for backpay from the date of Murphy's dis- charge (March 21, 1979) to the date 5 days after the Union notified the Employer and Murphy that the Union had no objection to Murphy's reinstate- ment (May 30, 1979), as provided in the Adminis- trative Law Judge's recommended remedy. Having found that the Union violated Section 8(b)(l)(A) and 8(b)(2) of the Act by requesting Dolly Murphy's discharge without adequately in- forming her of her dues obligation, we shall order that it cease and desist therefrom and make Murphy whole for any loss of earnings and benefits she would have received for the period from March 21, 1979, the date of her discharge, to May 30, 1979, the date 5 days after the Union notified the Employer and Murphy that it no longer had any objection to Murphy's reinstatement. Having found that the Employer discriminated against Dolly Murphy with regard to consideration for reemployment, we shall order that it offer her immediate employment in the same or substantially equivalent position as Murphy would have re- ceived on or about May 30, 1979, if she would have been rehired absent discriminatory consider- ations. We shall also order that the Employer make Dolly Murphy whole for any loss of earnings or benefits, f any, from the date she would have been rehired absent discrimination by the Employer until the date of offer of employment as set forth above. In all of the above determinations, the earnings and losses of benefits shall be computed in the manner prescribed in F: W: Woolworth Compuny, 90 NLRB 289 (1950), plus interest as set forth in F7or- ida Steel Corporation, 231 NLRB 651 (1977). See. generally, Isis Plumbing & Iteating Co., 138 NLRB 716 (1962). Whether Dolly Murphy would have been enm- ployed on or about May 30, 1979, or thereafter, is a matter that can be determined in the compliance stage of this proceeding. Accordingly, whether the Employer is liable for any backpay based on such discrimination can also be determined at that stage. Pierce Governor Company. Division of Avis Industrial Corporation, 243 NLRB 1009 (1979). I (X) VAt 1.1iY CAIN! & Mi(I. INC ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National I ahor Re- lations Board hereby orders that: A. Respondent Valley Cabinet & Mfg.., Inc., Sac- ramnto, California. its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Laying off, refusing to consider for cnmplo!- menit, or otherwise discriminating against ciploy- ces because said employees have filed griexlances or have engaged in union or protected concerted ac- tivities. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the amended Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as it condition of employment as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Dolly Murphy immediate employment in the same position as Murphy would have re- ceived on or about May 30, 1979, if she would have been employed absent the discrimination against her or, if that job no longer exists, to a sub- stantially equivalent one, without prejudice to her seniority or other rights and privileges previously enjoyed. Make her whole for any loss of earnings she may have suffered by reason of the discrimina- tion against her as a result of being laid off in No- vember and December 1978, and as a result of not being considered for reemployment, in the manner set forth above in the section of this Decision enti- tled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, anid all other data necessary to analyze the amount of backpay due and the right of reinstatement under the terms of this Order. (c) Post at its Sacramento, California, facility copies of the attached notice marked "Appendix A." " Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent Employer's representa- tive, shall be posted by Respondent Employer irn- mediately upon receipt thereof, and be maintained * In the eerii that thil Order is enfrgc h a Judgmenrt of a l ltCd Stalte Court of Appeals. the .ord. io thte Iltt r.eadin g '.o)sted h\ ()ruer off the National I abor Relalilon loird" ,hall rad ti"Pletd I urIu- ant o a Judgment olf he tiited Stale, Court of Appeals I riorilnig l Order of the Natio.lla t ahor Rlalions oard by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent Employer to insure that said notices are not altered, defaced. or covered by any other material. (d) Notify the Regional Director for Region 20. in writing, within 20 days from the date of this ()rder, what steps Respondent Employer has taken to comply herewith. 13. Respondent Millmen and Inidustrial Carpein- ters, I.ocal Union No. 1618, United Brotherhood of Carpenters and Joiners of America. AFL-CI() Sacramento, California, its officers, agents, aid rep- resentatives. shall: I. Cease and desist from: (a) Giving effect to, implementing, or in an) manner enforcing a practice which fails to accord reasonable notice to members of their dues deliln- quency, said reasonable oral or written notice to in- clude a statement of the precise amount of dues owed, the morinthis for which said dues are owed. and an explanation of the method used in comput- ing the amount of the dues owed, and which, addi- tionally, accords members an adequate opportunity to pay the amount specified as owing. (b) Causing or attempting to cause Valley Cabi- net & Mfg., Inc., or any other employer, to dis- charge or discriminate against employees with re- spect to their tenure of employment or terms and conditions of employment or to apply the union-se- curity provisions of any collective-bargaining agreement to which Respondent Union is a signato- ry to employees who have not been accorded rea- sonable notice of their dues delinquency, or in an arbitrary or capricious manner inconsistent with the fiduciary responsibility owed by it to its mem- bers. (c) I any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them in Section 7 of the amended Act, except to the extent that such rights may be affect- ed by an agreement requiring membership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Make Dolly Murphy whole, with interest, for any loss of earnings she may have suffered because of the discrimination against her during the period from March 21 to May 30, 1979, in the manner set forth above in the section of this Decision entitled "The Remedy." I)E}'ISI()NS ()I NA I()NAI I AIB()R RIlT. A I I()NS I½(}ARI) (b) Post in its office and meeting halls copies of the attached notice marked "Appendix B." 12 Copies of said notice, on forms provided by the Regional Director for Region 20, after being duly signed by Respondent Union's official represerita- tive, shall he posted by Respondent Union immnedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to mem- bers are customiarily 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) Forward a sufficient number of signed copies of Appendix B to the Regional Director for Region 20 for posting by Respondent Employer at its Sacramento, California, facility, in places where notices to employees are customarily posted, if the Employer is willing to do so. (d) Notify the Regional Director for Region 20, in writing, within 20 days from the date of this Order, what steps Respondent Union has taken to comply herewith. I See fIn I I. upr. APPENDIX A Nolicit To ENI'II OYNtI S POSr III) HY ()RI)IDR 01 THE NATIONAI LABOR RKIAI IONS BOARI) An Agency of the United States Government WF- Wil I NO lay off, refuse to consider for employment, or otherwise discriminate against employees because said employees have filed grievances or have engaged in union or other protected concerted activities within the mean- ing of the National Labor Relations Act, as amended. WIL WIl.L NOT in any like or related manner interfere with, restrain, or coerce employees of Valley Cabinet & Mfg., Inc.. in the exercise of the rights guaranteed them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act. Wi wit.i offer Dolly Murphy immediate employment in the same position as Murphy would have received on or about May 30, 1979, if she would have been employed absent the discrimination against her or, if such job no longer exists, to a substantially equivalent job, without prejudice to her seniority or other rights and privileges previously enjoyed, and WvI Wll I make her whole, ilh interest, for any loss of earnings she may halve suffered by reason of the discrimination against her as a result of her layoffs in Norember and )ccenm- bher 1978, as well as our refusal to consider her for reemploymenlt. Vx I t C SNI I & M(t., INC. APPENI)IX B13 NoIIi(c. To MtMIn. RS lP(sI I. IY OR ()ER I III NAI IONAI . ,\11OR I,\ 1 IONS I()ARI) An Agency of the United States io\ erinment Wi wi I NI fail to carry out our fiduciary responsibility to our members by failing to give them reasonable notice of their dues de- linquency which would authorize us to require any company to terminate them under the union-security provision of our collective-bar- gaining agreement with the affected company. Wl Wll. . NOT fail in our fiduciary responsi- bility to our members by implementing the unilon-security provision of our contract with any companlly in an arbitrary and capricious way so as to lead to the termination of our members or their loss of employment, senior- ity, or other rights and privileges. Wit Will. NO'I cause or attempt to cause Valley Cabinet & Mfg., Inc., to discriminate against Dolly Murphy, or any other employee, in violation of Section 8(a)(3) of the National Labor Relations Act, as amended. Wi wll I. NOt in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them in Section 7 of the Act, except to the extent that such rights may be affected by our lawful application and im- plementation of an agreement requiring menm- bership in a labor organization as a condition of employment as authorized by Section 8(a)(3) of the Act. WI wii.: make Dolly Murphy whole, with interest, for any loss of pay suffered by her be- cause of the discrimination against her during the period from March 21 to May 30, 1979. MII.IMIEN ANI INI)USRI,\I CARPI!N- TI-RS, LO(' AI UNION No. 1618, UNI 1Ii) BRO()HI-RHOO) ()OF CARPI N- I RS ANI) JOINERS OI ANlRKIA, AFL-CIO 102 \'VAI.I FY 'ABINI( & M:(. INC FIN)IN(i 01 o1 : I S I ll \I I (1i 11 ii C \Sl FR-IIRI(K C. IlII R/(i)(, Adllninisiativt l aIi Judge: ()n April 2, 1979, Doll) Murphly all indiidUal, filed the charge in Case 20 C-4840 against Millilen and In- dustrial Carpenters, Local Ullion No. Ihl8, United Brotherhood of Carpenters and Joiners of Aniericai AFt. CIO (herein calletd the Unioi). alleging that it had violated Section (b)()(A) of the Act since on or about March 21, 17(q, by, among other things, refusing to accept her proffered reinstatement fee and causing her discharge b Valley Cabinet & Mfg., Inc. (herein called the Company). ()n April 24 Murphy amended her charge against the Union. so as to allege only violations of Sec- tion 8(b)(2) based on the same factual situation which had formed the basis of her initial charge. On the same day, Murphy also filed a charge against the Company al- leging that it violated Section 8(a)(1) and (3) of the Act by laying her off due to her activities on behalf of the Union, and by terminating her at the Union's request. On May 21, the Regional Director for Region 20 of the Na- tional Labor Relations Board issued an order consolidat- ing cases, consolidated complaint, and notice of hearing based on the charges mentioned above, and alleging io- lations of Section 8(b)(2) against the Union and violations of Section 8(a)(1) and (3) against the Company. Both the Union and the Company filed answers denying any wrongdoing, and generally denying any knowledge of the conduct or affairs of the other. On August 20 the Re- gional Director issued an amendment to the complaint to allege that Murphy was laid off for 3 days on or around December , 1978, and for 2 days on or around Decem- ber 13, 1978, by the Company because of her union or other protected concerted activities. l'hereafter, the Union requested a continuance of the hearing, then set for August 30. The request was denied by the Regional Director's telegram of August 27 ". . . without prejudice to your renewing your request before the administrative law judge at the commencement of the hearing." At the hearing, the Company, through counsel, denied the alle- gations of the amended complaint; the Union took no po- sition in response thereto, stating that the allegations did not concern the Union. Finally, the Union amended its answer during the course of the hearing to admit the agency status of its business agent. The parties were afforded full opportunity during the hearing, which was conducted before me in Sacramento, California, on August 30, 1979, to examine and cross-ex- amine the witnesses, to introduce relevant evidence, and to present oral argument. Briefs were subsequently re- ceived from the General Counsel and from the Union, both of which have been carefully considered by me. Upon the entire record of the case and from my obser- vation of the witnesses and their demeanor, I make the following: I Unliess ,lhcrrwlse indiciltCd. allt datie referred to herelnraftl r Ire ill t979 I. I II (()1lI'. \N i I SINISS The Respondent Compan, Valle Cabinet & NMfg.. Inc., is alleged in the complaint to he a California corpo- ration with a place of business in Sacramento, California, from .%hich it is engaged in the manufacture and distri- bution of kitchen cabinets and bath vanities. It is further alleged that during the calendar year of 1978 it pur- chased and received goods and supplies valued ill excess Of 50,00(0 directly from suppliers outside the State of California. Based on such allegations, and the admissions contained in the answers of both the Respondents, I find and conclude that the Company is, aid at all times mate- rial herein has been, an employer engaged in commerce and in an operation affecting commerce \within the mean- ing of Section 2(6) and (7) of the Act. 11. TIlt I AHOBOR lR; \NI/ \ I ION The complaint alleges, the answers admit, and I find that at all times material herein the Union has been a labor organization within the meaning of Section 2(5) of the Act. tlt. IHIt Al.l .Ct( I) LiNt AIR I H()R PR\H 'H ( t S A. Factual Background The Company and the Union have, for some time, been parties in a collective-bargaining relationship. No evidence or claim was advanced that, during the course of their relationship, either has been prone to commit unfair labor practices, whether of the type alleged hereiii or otherwise. Nor was any claim advanced that their re- lationship has been marked by either industrial strife or undue cooperation. Their most recent collective-bargain- ing agreement had a term from May 1, 1978, to May 1. 1981. The agreement provides for union security, though without any provision for dues checkoff, in article 2, sec- tion A, as follows: A. Every employee covered by this agreement who is a member of the Union and in the employ of the Employer shall, as a condition of employment or continued employment, remain a member in good standing of the appropriate Local Union. Every other employee covered by this agreement shall be required as a condition of employment or continued employment to apply for and become a member of and to maintain membership in good standing in the appropriate Local Union on or after the expiration of thirty-one (31) continuous or cumulative days of employment, or following the thirty-first (31st) day after execution of this Agreement, whichever is later. In the event that federal law setting forth the time limitations for requiring membership is changed so as to allow a shorter period before membership must be obtained, the parties hereto agree that such shorter periods as may be allowed by law shall be applicable hereto. For the purpose of this Article "good standing" shall be defined to mean employees who tender pe- DFCISI()N 1(1) IF0t)'ISI()NS )OF NA I I()NAI l.A()R RI! AIIO()NS B()ARI) riodic dues, intiatio(lt aid reiistateLiment fees. ini- formly required as a condition of acquiring or rc- taining mellmbership on the sanle teris and condll- tions generally applicable of' other mcember cnlploy- ees. Upon written iotice front the Union of failurc on the part of any individual to complete mnieniber- ship in the Union or to continue mnembership in the Union as required by this Article. the Employer shall immediately discharge said employee. No party has claimed herein that the provisions set forth above are illegal. The agreement further provides, at article 13, section E, as follows: E. The Employer shall have the right to make temn- porary layoffs without regard to seniority (as pro- vided in this Article) up to a maximum of a three (3) work day period. The Union's constitution and bylaws also contain pro- visions for acquiring or reacquiring membership, the pay- ment of dues, initiation fees, and the suspension of mem- bers for nonpayment of dues. These provisions are set forth, in relevant part, below: ADMISSION OF MEMBIERS A. Section 44. A candidate qualified and who de- sires to become a member of any Local Union of the United Brotherhood must fill out and sign the regular application . B. The application of the candidate must be pre- sented . . . with the full initiation fee, and a sum equal to the current month's dues .... An appli- cant may be permitted to pay the initiation fee in in- stallments over a period not to exceed 90 days. In such cases the applicant shall deposit dues for each month, commencing with the month of application. Dues deposited shall be retained by the ocal Union, together with any initiation fee paid, if the applicant fails to become a member by reason of failure to complete payment of the initiation fee or deposit dues. C... The new member shall be supplied with a Due Book and a copy of the Constitution and Laws of the United Brotherhood and By-laws and Work- ing Rules of the District. * * * * I. Each member is required to keep the Record- ing Secretary and Financial Secretary properly noti- fied of correct place of residence and any change of same under penalty of One Dollar ($1.(X)) assess- ment. K. An ex-member desiring to rejoin the United Brotherhood may be readmitted only as a new member, subject to such readmission fee as pro- vided for in the By-Laws of the Local Union or District Council where application for membership is made. The Local Union or District Council read- mitting the ex-member shall ascertain the reason he or site wsas dropped from icinlhership aid if dropped for nloilpaynlciltt of dues, shall collect an addiional sum of Tn Dollars ($10().(X)). Also, if saitd ex-iimhcbr owed anlly fines or assesscniens a the lilnc of being dropped from rmembecrship in the Brotherhood, the Local Union or )istrict Council readniitting such cx-member shall collect the amnourit of the indebtedness and forward it to the Iocal Union or District Council to which it is due. FINANCE;S ANI I)lDUES Section 45. B. Monthly dues shall be charged on the books on the first of each month, but a member does not fiall in arrears until the end of the month in which the member owes three months' dues. No officer or member shall be exempt from paying dues or assess- ments, nor shall the same be remitted or cancelled in any manner. C. Any Local Union or District Council may es- tablish working dues, dues checkoff, supplemental work dues or work fees payable to the Local Union or District Council by members working in its juris- diction. If a member who owes such dues or fees fails to pay them as provided by the Local Union or District Council, such dues shall be charged to the member and collected in the maniner provided for fines and assessments in Section 45 N and subject to the provisions thereof. G. A member who owes three months' dues must be reported on the Monthly Statement as delinquent at the end of the third month and per capita tax de- ducted only for the third month. The member shall not again be reported until: (1) the member is dropped from membership for owing six months' dues or; (2) when the member pays dues to keep within the six months' limit, but does not square the current month, starting with the third month of his or her arrearages or any month thereafter, dues paid for that month or months, must be reported on the Monthly Statement giving date (day and month) and arrears tax will be charged; (3) when all back dues including the current month are paid, the Fi- nancial Secretary shall report same on the Monthly Statement as squaring arrears and per capita tax for the unpaid months will be charged. J. A member who owes the Local Union two months' dues shall be notified by mail, in Address Correction Requested envelopes, at last known ad- dress by the Financial Secretary, not later than the fifteenth (15th) day of the third month of said delin- 104 \VAI.IY CAllINET & MFG., INC' quency, that if said arrearages are not paid before the last day of the third month the member will be suspended from benefits of death and disability do- nation until the member squares up entirely all of the indebtedness (including dues for the month in which the member squares up the arrearages) and furthermore that the member will not be entitled to any benefits during the time of such arrearages or for a three-month period from the date of squaring all arrearages. K. A member who owes three months' dues or who has not squared his or her arrearages in full shall not be entitled to the Password, or a seat, or office in any meetings of a Local Union or District Council and is inot in good standing and is not enti- tled to vote. L. A member vcho owes a l.ocal Union five months' dues shall be notified by mail, in Address Correction Requested envelopes, at the last known address b the Financial Secretary not later than the 15th day of the sixth month of said arrearage. Unless dues are paid by the end of the sixth month, the member's name shall be stricken from the list of membership without a vote of the I ocal Union. M. ocal Unions may impose alil assessmlenlt not to exceed Three Dollars ($3.(X)) for each notice mailed pursuant to the requirements of Paragraphs J and L, above, to be paid by the member to whom such notice is sent. N. All fines imposed and assessments legally levied including strike assessments. aid working dues, dues checkoff, supplemental work dues or work fees duly established under Section 45 C, shall be charged by the Financial Secretary to the member from whom due, and the member shall be notified in writing that same must be paid within thirty (30) days to entitle the member to any privi- lege, rights or donations. If the member does not make payment within the timle prescribed the member shall not be in good standing and he or she shall be notified in writing by the Financial Secre- tary that unless the amount owing is paid within thirty (30) days thereafter his or her name shall be stricken from membership, except in the case of a fine where an appeal is pending. Notices shall be sent to the last known address of the member as re- ported by the member to the Local Union. B. Murphy Work and Membership Record Dolly Murphy was hired by the Company in Septem- ber 1976. She was hired by Darryl Tetz, the Company's vice president. She went to work hinging doors, in the collective-bargaining agreement's work classification known as Group Three. Within a month she joined the Union. While with the Company she had occasion to file sev- eral grievances. One such grievance, filed in mid-June 1978. alleged that her supervisor, John Woolridge denied her promotion to Group Two because of sexually discriminatory considerations. It also alleged that he had repeatedly engaged in sexually harassing conduct such as grabbing her breasts,2 and asking her to go out. Murphy claimed that her mid-June 1978 grievance was provoked by having received a written warning from Woolridge in which he complained that she'd developed a lazy work attitude, which caused her, as Woolridge claimed, to be slow in her own work and to disturb the work of others. Thereafter and through the Union, on October 18, 1978, she signed a "release" of the Company upon the griev- ance, provided that she be given an opportunity at the next Group Two opening. Within a week she was pro- moted to Group Two, and assigned to operate a panel saw. Murphy continued working for the Company until March, when she was fired. In the meantime, however. she was given two layoffs. One was for 3 days in late November 1978, while the other was for 2 days in mid-' December 1978. The Company contends that the layoffs were caused solely by a shortage of work, that Murphy was only one of several employees given relatively short layoffs as a result, and that she was laid off in accord- ance with the collective-bargaining agreement's pro\i- sions for layoff by seniority, 4 as well as the provisions of article 13E, set forth upra. While not agreeing swith the Company, the Union did not contest the Company's con- tentions. But the General Counsel did so, asserting that, even were one to assume arguendo the Company's coi- tentions were correct, it remains unlawful to discriminate against an employee for having filed a grievance. The General Counsel contends that both the first' and second layoffs were motivated in part by the Company's desire to retaliate against Murphy for having filed a grievance in June, and that the second layoff was doubly infected by the Company's desire to avenge her filing of a griev- ance' over the first layoff. Soon after she returned to work from the first layoff Murphy filed a grievance over the layoff. She com- plained that she was not treated as male employees were treated, and that the Company was holding a grudge against her because she had filed the June 1978 grie,- ance. A couple of days later, after the Company received her grievance in the mail, the Company's president, Bob Davis, 7 spoke to her about it. Davis, apparently quite angry, came up to Murphy, threw her grievance down 2 No finding s made herein regarding the validity of the allegllon, 1hey arc rioted solely to provide necessary taclual background to udge the merits of the General Counsel's claim that Murphis w as later ill iiff oni1 tvo ccasions for discriminatory reason :' Murphy conceded hat other employees were laid off for smilarly short periods of time the same general lime period of her la!offs, as shown by the Companty',s eidence Murphy conceded that she had less sernlorit than ins of the other sesen Group Two employees T' Ihe General Counsel claimed that the Company's dcrlmiators intent was evidenced by the fact that someone else ran Murphy's ma- chine while she was on layoff I iew the evidence as establishting, at most, that the machine was run briefly during her layoff land perhaps o lly t) corrcct Mhurphy's prior errr,) It do es rot s a;rranl agreement with the (ieneral Counsel's contention " Ihis grievance, as well as one filed over the second layoff. w.ia still pending at the time of the hearing herein a Dais ;a, not called to testll'y I draw an advrse iinfereilce fron the failure of the Company to call )avs as a wltnes, or to eplain Is h- sernce 1 therefore, credit Murphs's testimony about whal Dasvis said 1()5 Df CISI()NS OF1 NA I()NAI. I.AII()R RIEIA IO()NS tt()ARI) on her worktable and exclaimed that Murphy could wipe [her] f-king ass with it." Davis then left and returned to the office portion of the Company's premises. Several minutes later, Woolridge came out of the offices and approached Murphy. He told her of her second layoff. She asked him why she was being laid off. Wool- ridge replied that she had no work to do. Murphy asked him if he was telling the truth. Woolridge responded lamely, "Well, you know the old man [Davis]." Another grievance was soon filed, which was still pending at the time of the hearing. After Murphy returned from her second layoff she had a conversation with Woolridge. He confided to her that Davis had returned from a vacation and had been angry when he learned that Murphy had not been laid off all of the time ihe had been gone. Woolridge told her that he had told Davis that he (Davis) would have to do it him- self if he wanted it done. Still later, following the Company's move into new quarters, Murphy had another conversation with Wool- ridge. Woolridge told her that he and Davis were keep- ing watch over her work by means of a television camera installed in the new quarters and aimed at her workplace. He told her he thought it unfair that she be so singled out.' Against this background we can now view the facts relating to the primary issue in this case, i.e., Murphy's discharge pursuant to the Union's request. Murphy continued to work at the Company until March 21. That day she was approached by Woolridge at work. He showed her a letter the Company had re- ceived from the Union, dated March 16, which read as follows: DISCHARGE NOTICE PURSUANT TO ARTICLE 2(A) OF THE CURRENT MILLMEN AGREEMENT ON HIEHAI.I O1F IHE UNION, YOU ARiE H.RIlHY RI:QUIESrID '10 COMPLY WlITH TI'l PROVISIONS 01 ART IICI I 2Ar 01 I H CURRENI ML.l.IMXN'S AGRI IMIlNI BY DISCHARGING THE INDIVII)UAI (S NAMItD BHl.OW FOR AII.UIRE TO COMPL.Y W'l H 'iltl PROVISIONS 01; ARtICI.IE 2(A) OF SAII) AGRII.M-NT IN IAT SAIl) IN)VI)UAI. HAS FAI..ED) O REMAIN A MEMBEHR IN (001) STANI)ING o01: til APPROPRIAtE LOCAI. UNION. EMPLOYEE'S NAME Murphy, Dolly R. SOCIAL SECURITY NUMBER 565-82-8576 With verbal prodding from the General Counsel, Murphy recalled that Woolridge told her, when he showed her the above letter, that Davis and McNeely had "finally found a way to get rid of [her]."9 , No allegation of illegal urveillance was contained in the complaint The evidence of this conversation was admitted oIlly upon the General Counswl's assurance that he sought no finding of a violation based there- on 'This evidence, accepted over objections, ears upon the Company's. and not the Union's, culpability The "way" referred to was obviously the union-secLu- rity provision in the colleclive-bargaining agreement, set forth above. he validity of those prtvisions has rnot been attacked. And I find no evidence to lead me to be- lieve any of the provisions of the collective-bargattgiiig agreement or the Union's bylaws. set forth above. to be illegal o their face or as iiterpreted. Instead. what is at- tacked is the Uniotl's alleged failure to fulfill its duties as a fiduciary with respect to Murphy. and the Company's failhre to either check into the merits of the Union's re- quest for Murphy's discharge, or to llovw Murphy to resume working following her telephonic request. Murphy fell behind in her dues payments to the Utiton during the latter months of 1978. On December 13. 1978, the Union mailed a notice to that effect to Murphy at the address she occupied when she ',as first employed at the Company, an address from w hich she had long since moved. The notice read: OFFICIAI N()OTIC OF)I ARREARS UNI II) ROI IER(ROI) 01 C ARP'IN I IRS NI) JOINIERS o() AtlRICX Io()CI UNI()N 1,I1 D)ate 12-13-, 1978 You are hereby notified pursuant to the provi- siOllS of Section 45 of the Constitution and I.aws (see reverse side) that y will owe 6 months clues at the end of this month. Ac You are hereby notified pursuant to the provi- sions of Section 45 that you owe an [assessment] [fine] of $6h(X) which must be paid within thirty days from the date hereof. G.T. ESC()'IT. Fin. Sec. DOI.LY R. MURPHY 8255 Oahu Drive Fair Oaks, Ca. 95628 MM Murphy, however, had failed to advise the Union of at least this one, and probably several additional, changes of address and/or telephone numbers she had while working for the Company. Similarly, on February 14 the Union mailed another, though different,) "Official Notice Of Arrears" to Murphy at an address from which she had moved only the month before, and of which she had given notice to the Union by mentioning it to McNeely when she hap- pened to see him. Though the notice was never returned to the Union neither was it ever delivered to Murphy. The notice read: ' I he exact iam(lullt Murphy vas in arrears rcnlains i doubt Ily the terms of Ihe above inot ice she owed for the lasi h nmirlnhs i I 7 HiosA- ever, by the terms of allother notice ll t to t her oil Fehriars 14. sih could not has e o,sed nllore than 4 monlths dues as of late ecemhcr ' N explanation has been olffered colncerning the pparent discrepall- cy between the termns of this notice and that vshich the Utniionr mailed to Murphy on December 13, 1978. upra I()h VAl 11Y (AllINI I & MI(;. IN{C ()FFICIALI NOTICE OF ARRIEARS UNI II) BRO)I itl Rl()l) 0 C RPI:NTI I RS NI) JOINIRS ()i AMI RAI(A L(( \1 UNION #Ihl8 I)ate ()02 14, 79 You are herehby notified pursuant to the Provi- sions of Section 45 (paragraph .) that you will oc 6 months tiles at the end of this month. Total (lue I 11 (). (L) A member who owes a Local Union five months' dues hall be notified by mail at the last known address by tile Financial Secretary not later than the 15th day of the sixth month of said arrear- age. Unless dues are paid hb the end of the sixth month, his name shall he stricken from the list of membership without a note of the l.ocal Union.' Gene T. Escott Fin. Sec. DOLLY R. MURPHY 6328 Walerga Road North Highlands, Ca. 95660 MM As a result, though at least two notices sere mailed to her, Murphy never received any written or verbal no- tices from the Union of her delinquency in dues, or its effect, until she went t the Union's office on March 13. She testified that she did not previously realize she as so far behind in her dues as she then discov ered. On March 13 she accompanied a fellow employee. Pa- tricia Higuera, and Higuera's husband, to the Union's office. Patricia Higuera went there to discuss a problem she had. She wished to discuss it with Cal McNeely, the Union's business representative. Murphy went along, evi- dently with the primary purpose of discussing her pend- ing grievances with McNeely. At the Union's office Patricia Higuera and Murphy learned that McNeely was not in. that he was out on a special assignment, and would be unavailable for about 2 weeks. Murphy asked the clerical employee who ran the Union's office, Pat Rainey, whether she could pay a couple of months' back dues. Rainey replied that she could not accept Murphy's money since she was "too far behind." Rainey explained to Murphy that she had al- ready been suspended, that she owed a total of $260, and that Murphy would have to discuss the matter with McNeely. So Murphy left a message' 2 for McNeely to phone her, providing Rainey with her then current home and employment phone numbers. McNeely, however, did not call her. When Murphy learned from Rainey that the amount she owed was $26 0i3 Murphy commented that there was "no way" she could pay such a large amount, and that to do so she would have to write a "hot check." 12 Murphy's message for McNeely said nothing about anlly object of her visit other than her pending griesances. which related to the Nol.em- her-December layoffs " This figure is not In dispute It represents all monies the Union claimed from Murphy) 1t become current in dues and Il be ellstatcd However, its method or calculation renmains a mystery to me and. pre- sumably, to Murphy as well A couple of days later. having still not heard from McNcely and being unable to contact him by phone, Mlurphy decided to send the tion a check for a portion of her indebtedness. So she wrote a check for 15t) and mailed it to the Union. ()n March 21, after being fired, Murphy once again went to the Union's office While she was there Rainey returlned her check for 150 and said that the Union had already requested that the Company discharge her before it had received her check. Murphy then offered to pa5 the full-reinstatement fee but Rainey, though svmpathet- ic, declined to accept it, telling Murphy to first check and see if she could get her old job back, or secure an- other (from a list of a ailable jobs provided her by Railey) before paying out a sum which seemed so large under the circumstance of her apparent impoverishment. MIurphy took Rainey's ad ice. She telephoned the Company from the Union's office, and asked for Davis. Woolridge, however, got on the phone with her, saying that Davis ould not talk to her anid asking what she wantcd. She explained to him that she wanted to find out whelther she could have her job back if she wras able to pay her debt to the Union and he reinstated. %Woolridge responded that he would have to check ith Davis before saying anything. Woolridge put the phone down atd was gone for a while. Wheni he returned Woolridge said that Davis had said no to the idea, and that she could not have her job back. On April 6 the Union notified Murphy by mail, at the address she had given to Raiise in March, th;t she could be readmitted to membership if she paid an initi- ation fee of 5260 O()n May 25 the Union advised the Company that it had no objectionl to the Company rehiring Murphl, sendinig Murphly a carbon copy of the letter. The Union also csnt Murphy a separate letter advising her that the Union was willing to pursue her grie ance, should she choose to file one, over having been fired. There is no record that either the Union or Murphy ever responded. Nor is there any record of any payment of, or arrantige- mcint to pay. arrears by Murphy, whether of past dues or of a readmission or initiation fee. C. Credibility Resolutionv Murphy's testimony stands at odds with that of the Company's witness, Woolridge, and the Union's witness, Rainey. But, significantly, the Company failed to call either Davis, its president, or Tetz, its vice president, as witnesses. Nor did it explain their absence. And though the Union did call its agent. McNeely. as a witness, the questions put to him seemed contrived to guide his testi- mony away from any important area in controversy, such as efforts he may have made to fulfill the Union's duty to afford notice to Murphy. Under these circum- stances I conclude that the Company's and the Union's tactics were occasioned by an apprehension that such testimony, if offered, would not have been favorable to their respective positions. This naturally lends a degree of additional strength to Murphy's testimony in those areas where contradiction may normally have been ex- pected. 0()7 I) tCISI()NS ()F NA I I()NAI I.ABOR RLA I()NS BI()ARI) A somewhat different approach was used by the Com- pany in calling Murphy's supervisor. John Woolridge. Woolridge was no longer employed by the Company at the time of the hearing. He testified pursuant to subpena, and was observed by me to be singularly evasive in his responses. It was only after extensive, ad increasingly precise, questioning that he admitted that one of Mur- phy's grievances had been discussed by him and Tetz, and that Tetz, the Company's vice president, told him that Davis would make things tough on employees who filed grievances. Woolridge passed this arning on to Murphy sometime prior to Murphy's layoffs in Novem- ber and December 1978. Woolridge said he told this to Murphy in order to dissuade her from filing grievances. Further, though Woolridge denied that he had been present in Tetz' office with Telz and Davis on the after- noon following Murphy's discharge, or that he had over- heard Davis say, "Well, we finally got rid of one of our problems," he was ultimately forced to admit that the quoted statement had been made by him in an affidavit given to counsel for the General Counsel while this case was being investigated. 14 In light of such inconsistelicies and prevaricationi I discredit Woolridge's testimony in any respect where it conflicts with that of Murphy. I do so despite the fact that I was not highly impressed with Murphy's testimo- nial demeanor. She exhibited a flippant attitude toward any questioner who sought details. As I observed her testify, however, I ultiniately concluded that Murphy's deficiency as a witness stemmed from false bravado rather than attempts to falsify. Accordingly, while I have credited the greater portion of her testilmony, I have done so only after carefully weighing its inherelt plausi- bility. The Union's witness, Rainey, impressed me as a truth- ful person. But it also seemed clear that, while she was attempting to answer questions truthfully and candidly, her recollection of the events in question was sketchy and imprecise. As a result, I have determined to credit the testimony of Murphy over that of Rainey in any in- stance of conflict. Another witness, Donald Hess, testified on behalf of the General Counsel and stated that Davis told him on the afternoon of Murphy's discharge that "I finally found a way of getting rid of her" Hess initially claimed that Davis had spoken to him on a previous occasion of his intent to get rid of Murphy, but when asked for any detail about the prior conversation he found himself ut- terly unable to remember more. Further, Hess described himself as a good friend of Murphy. Indeed he was living with her at the time of the hearing, though he denied being her lover. Thus while I find Hess' testimo- ny somewhat implausible and his demeanor somewhat in- credible I conclude that, in the absence of any contradic- tion or denial by the Company, through Davis, I have no basis to entirely discredit Hess. 5 '4 This alleged statemerl by Davis is s not cited here as ubhsanlive cvi- dence I have trealed this solel as II bears oni Woolridge's credlihility i [Tlhe cstimtorly of oether witlnesses on the collateral poiltis that (is) ither ermnhers ha e been reirsilel uplon parlial paymenll and/'or (h) r- instated to their employmenlli upon resolutlion of their Irldcteldnesst t the Union, is credited in the ahsence of dall [). Discussion and Conclusions 1. The Union's request for Murphy's discharge T'lhc amalgam of eidcnce in this case establishes that Murphy fell behind in her dues to the Union during the latter half of 1978 and that the Union suspended her from membership as a result. Shortly thereafter, the Union sent the Company a request that Murphy be dis- charged, pursuant to the terms of its collective-bargain- ing agreement with the Company. The Company com- plied with the request and later refused to reinstate Murphy to her old job based on any assumption that she could square herself with the Union. The Union had mailed notices to Murphy regarding her dues delinquency, but they were not delivered since she had moved and had failed to notify the Union of her new addresses. Thus, the conclusion is inescapable that the Union took action to suspend Murphy from membership, and to thereafter cause her discharge by the Company, without having given her actual notice of her obligations. For. even were I to credit the testimony of Rainey, it would still appear that Murphy was not told of her jeopardy and how to avoid it, until after her membership ill the Union had been suspended. And even then she was re- ferred, for relief, to a man not then available to discuss with her how she might extricate herself from her finan- cial quagmire, and thereby save her job. Compounding its culpability, the Union then went ahead and requested her discharge, despite its knowledge of Murphy's efforts, ineffectual, incomplete, and tardy as they may have seemed, to fulfill her obligations to the Union. Under such circumstances I have no alternative but to hold that the Union's failure in this regard, which did, in fact, lead to her discharge. was violative of Section 8(b)(2). This is so because the Board holds that unions have an affirmative duty, of a fiduciary nature, to inform employees of their failure to satisfy obligations incurred as a result of provisions contained in union-shop clauses prior to taking any action against an employee. The Union is required to actually provide the employee with accurate information concerning the amount due, the day of payment, months for which dues are delinquent, and the method of computation of amounts due, as well as in- formation about the method for satisfying the employee's obligation. Chauffeurs, Teamsters and Helpers Local Union 150, affiliated ith the International Brotherhood of lTeamsters, Chauffeiurs. Warehousemen and Helpers of ,,ltnerica (Delta Lines), 242 NLRB 454 (1979). The Board consistently holds that a union's fiduciary duty to its members entails taking the necessary steps to make cer- tain that a reasonable employee will not fail to meet his obligation through ignorance or inadvertence, but will do so only as a matter of conscious choice. Conductron Corporation, a subsidiary of McDonnell Douglas Corpora- tion, 183 NLRB 419, 426 (1979); International Brother- hood of Boilermakers Iron Shipbuilders, etc., Lodge No. 732 (Triple .4 Machine Shop. Inc., d/b/a Triple ,4 South), 239 NLRB 504 (1978). This duty may not be met by the Union's having en- gaged in a "reasonably couched effort" to notify the 108 \ AlI FY CAIINI I & \ I(, INC member, aid the Ilnion is inot relieved of its dul\ h virtue of tile member's inquiries abhot the dues obliga- lilon. Chaujf'urN Sesdrivcr & 1t lp'rs \ 'loii lo a! 52 Iternational Brothellrhood oJ l cisterr. ('Ihau(ll/'urs. 1if are- housemen & elpcers (/ .tnteri' (Rolphs (rocerie (Com/,/- ny), 247 NLRB3 No. 108 (198f)). I note that NlMrphyl's actions inl this n;matter seemn marked bh an air of casualness. W'hile thie ltnio failcd to adequately advise her of the nimainner ill vllich lher iidehl- edness had been incurred, the months for hich she owed, or the nlethod of satisfaction. her o\ i actions suggest that she regarded the matter as a hit of a lark FIor example, she ailed repeatedly to fulfill her obliga- tion to notify the Union of changes in her address. While at the Union's office she never asked for precise informa- tion about what months she owed, or just hilt sums went into the total due of $260. Nor can her exclama- tions about there being "no way'' for her to pay 'i26), or her need to write a "hot check,' be vie cd as totally re- sponsible efforts to extricate herself from her predica- ment. And, not to be ignored cntirel, is the fact that Murphy must have, herself, harbored sonic small doubt that the Union would go on and on, month after month, treating her as a full-fledged and paid-up member in the face of her failure, without explanation or excuse, to pa her dues over sonie h months. In sum. howe\er, I am unable to conclude that Mur- phy's actions amounted to a "conscious choice" to a\oid her obligations to the Union."' Instead of conscious choice, Murphy appears to have operated her affairs on the basis of chance. THer failures to pay her dues have not been clearly shown to have been due to anything more than inattention or negligence. As a consequence, I find and conclude that the Union was not relieved of its fiduciary obligations toward her. lamsterv Local nion 150 (Delra Line.s). supra: leamsters Local 572 (RUlph\ Grocery Company), supra; Boilermakers Local Lodge No. 732 (Triple A South), supra; compare John J. Roche & Co., Inc., 231 NLRB 1082 (1977); and Product'. ReJriger- ated & Processed Foods & Industrial Worker.s Local No. 630. International Brotherhood of l'eamsters. Chauffeurs. Warehousemen & Helpers of America (Ralph's Grocert Company), 209 NLRB 117 (1974). By its failure to fulfill its fiduciary duty to Murphy, the Union violated Section 8(b)(2) of the Act when it sought and secured her dis- charge, and, further, its failure therein to fairly represent Murphy amounted to a violation of Section 8(b)(1)(A) of the Act. 7 2. The Company's layoffs and discharge of' Murphs As has been shown the Company's defense of thlis case was incomplete in that two of the witnesses whose moti- 1 In thi, ci rllecirl t specificallsI discredit. il lt hI lis il f h4 s ltrilta nor hich uluggesled a Irllg hias agalint MurphN. he Itinills Io Herman riders. h apparentlI a a former Inver of Slurph,s II t lified that shile e livced ith her in Noemnher 197l she rsced lIlli from the nion and that. hen she examined t contents, hie t xcinedmcd that she was behind in her dues and ould not pa lrinli the tllion1 helped her resil.c I lpending gries ante, Addillniail.u I miLtn 1t lIells Iliat I find the scenario hu depicted to he lacking Irn inrherenlt prohalhil ] I deeml the tiloln' requcst fr deferral of hlits nilltlr i th ILri, i ance procedlurc ae Inappro prlite I he Itilt11Is illlteress are 1Ili oillltil with those f the aggrised cmnploee at.ti iiis \c.cIt i sla Isste ere ite r c;C\ lle C tId t ) C1 if\. orc) - o\er. Ile tilloll)t of the (onipa 's fornimer slupt sor. \\oolrilgc, h;as been found ailtlig. As a rult I find that the (Conllpal iolated Section S(a)( I atld () in both of Its loflfs of MuNlrph ini late 1 7XS. i its discharge of her itn March 1)7). and ill its rc- Iu'sil t retillstat' her as she rluested oi the day of her discharge Ilh illegality of Nlurph,,'s first la ;ioff mna be seen on ly by reference to W oolridgc's adillissitli that he had \airiILed Murphy, before her liaNofts, though after a coli- \ersation between hini ad ct, that Davis would mlake it tough on employees who filed grievatices. Murph\ haid filed a grievance i June 1978 over the Compani,'s fail- tire to promote her. t In tlhe face of the C(oipail 's fA 1- tire to delln either Nlurph 's assertions or VWtolridgc's admission, I am conslrained to find that the discriminato- r> frame of mind evidenced hy Woolridge's ,*ariitig played a part inl Murphy's first layoff. AccordinglI. I find the layoff to have been illegal. in iolation of See- liotn X(a)(I) and (3) of the Act. 1to\ e cr ohscure the Companl's motivation may ha e been ith respect to the first layoff, there can he little doubt that its motives in the second layoff. the discharge. and the refusal to reinstate were tainted ith illegal dis- crimination. Davis' angry and vulgar outburst to Nlurphy occurred only a few minutes before her layoff was announced to her, plus Woolridge's lame response to Murphy's ques- tion ablhut the motivation behind the layoff. as ell as hii, statemetits to her about Davis' alger upon learningig tha; she had not been laid off for as long a period of tintei as Davis would have preferred, tend to point up the. atimus \hich Murphy had stirred up in I)avis by either filing (a) grievance(s) or i being unrepentalt oer ha\,ing dotte so. In either case the second layoff was clearly caused. at least i part, by Davis' anger o er Murphy's filing of a griecance. And, it is not unreasonable to presume that such illegal motivation continued through the date of Murphy's discharge and refusal of reinstatement. Certain- ly there was no evidence introduced tendinig to shov the contrary. And. while I have indicated tmy reluctatice to place much eight on tess' testitiol. I do not feel free to disregard it altogether. Thus. while tlhe Compantiy's part in Murph\'s discharge secnliitglI amounted to ntltthing more thatl its accession to thie Linion's unlawful demand, I find and c onclude that the Conpany's layoffs, discharge. and refusal to re- instate Nlurph were tainted by its discriminator moti- . ationi - I Ih (i i terit. (r slJ L .I ttc tlldeI l at le prtItIO ) .ta grid, gigl glti'll lll dletti' lll lllttc llt (i tti tlp ts lls illHitis .ig1i l vtlurp hN tir tilllg - zrlt' x n.Ie t lrl ltls t Agrt t JI Ct s dt' kils i t ithe II1C lL .l tf ill .111d CIolld Il t .11 h hb tt littlcl Ii II Nit I'L Li Il .C i.'ii '01 r d IIl reig uills TIl ttlC I hiCdIllg - htiTL t tIt i t t il1 l lltqte I)It CISI()NS () NAIIt)NA INAI A()KR RL.A IONS O()ARI) CONCI I SIONS )1 L.\W 1. The Respondent Fmploycr is all employer engaged in commerce withlin the meaning of Section 2(6) and (7) of the Act. 2. The Respondent Union is a labor organization wilhin the meaning of Section 2(5) of the Act. 3. By failing in its fiduciary responsibilities to I)Dolly Murphy, in ailing to accord her reasonable notice of her dues delinquency, including a statement of the precise amount of the dues owed, the months for which the dues were owed, a reasonable explanation of the method used in computing the amount of dues, and in failing to pro- vide her with a reasonable opportunity to pay the amount of dues owed, the Respondent Union restrained and coerced a member in the exercise of the rights guar- anteed in Section 7 of the Act, and thereby engaged in an unfair labor practice within the meaning of Section 8(b)(1)(A) of the Act. 4. By causing, and attempting to cause, the Respond- ent Employer to discharge Dolly Murphy, the Respond- ent Union engaged in conduct in violation of Section 8(b)(2) of the Act. 5. By repeatedly laying off Dolly Murphy and by dis- charging Dolly Murphy and thereafter refusing to rein- state her without investigating and/or ascertaining the circumstances underlying the Union's request to dis- charge in the face of reasonable cause to believe such in- vestigation was warranted, the Respondent Employer has engaged in and is engaging in conduct in violation of Section 8(a)(3) and (1) of the Act. 6. By failing to represent Dolly Murphy in a fair and impartial manner, the Respondent Union has engaged in and is engaging in unfair labor practices within the meaning of Section 8(b)(1)(A) and (2) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMII)Y Having found that the Respondent Employer and the Respondent Union have engaged in and are engaging in unfair labor practices within the meaning of the Act, I shall recommend that they cease and desist therefrom and take affirm ative action designed to effectuate the policies of the Act. As I have found that the Respondent Emniployer un- lawfully discharged Dolly Murphy and unlawfully failed to reinstate her and unlawfully laid her off on two differ- cnt occasions, I shall recommend that the Respondent Employer be ordered to offer Murphy immediate and full reinstatement to her firmer position or, if that is no longer in existence, to a substantially equivalent one, without prejudice to her seniority or other rights and privileges, if it has not already done so. Normally, as a condition for tolling the Respondent Union's backpay liability, I would recommend that the Respondent Union be required to notify Murphy and the Respondent Employer that it no longer objects to Mur- phy's employment. However, it is settled that "where prior to a Board finding that a union has violated Section 8(b)(2), the union voluntarily notiices both the employer and the employee that it has no objection to the reemployment of the employee, the Board has held that such notification constitutes compliance with the usual 8(b)(2) order and effectively terminates the union's backpay liability" 5 days after such notification. Wevrwood Pluhmbers, 131 NLRB 562, 562-563 (1961). Here, the Respondent Union, on May 25, notified both Murphy and the Respondent Employer that it had no objection to the reinstatement of Murphy. Under these circumstances, I find that the Respondent Union's back- pay liability was tolled as of May 25. Accordingly, I shall recommend that the Respondent Union and the Re- spondent Employer jointly and severally make Murphy whole for any loss of earnings incurred from March 21 through May 25, but that the Respondent Employer shall be solely liable for any loss of earnings which Murphy may have incurred thereafter. Additionally, the Respond- ent Employer shall be solely responsible for any loss of earnings incurred by Murphy for her layoffs during 1978. The loss of earnings shall he computed in the manner prescribed in F W Woolworth Company, 90 NLRB 289 (1950), and with interest on the backpay due in accord- ance with the Board policy set out in is Plumbing & Hleating Co., 138 NLRB 716 (1962). [Recommended Order omitted from publication.] 10