I B I Security, Inc.

648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I B I Security, Inc and John Umstead, and Allied International Union , Party to the Contract I B I Security, Inc and John Umstead Allied International Union and John Umstead Cases 29-CA-12681, 29-CA-12998, and 29-CB-6489 January 23, 1989 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On December 30, 1987, Administrative Law Judge Arthur A Herman issued the attached deci sion The General Counsel filed exceptions and a supporting brief The National Labor Relations has delegated its authority in this proceeding to three-member panel The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, i and conclusions as modified and to adopt the recom- mended Order We agree with the judge's finding that although the Union caused John Umstead's discharge from I B I Security, Inc (IBI) in May 1986, it did so be cause of Umstead's failure to pay his union initi- ation fee, and therefore it did not violate Section 8(b)(1)(A) and (2) of the Act John Umstead was employed by IBI in Septem ber 1984 According to evidence credited by the judge, the help-wanted ad that Umstead responded to when hired by IBI contained the phrase `Union Shop In light of Umstead's previous union mem bership the judge concluded that Umstead under stood what a union shop was Furthermore, it is undisputed that Umstead was aware that there was a union at IBI In fact, Umstead testified that during the course of his employment, he asked a couple of employees about joining the Union, but was unable to ascertain how he could join the Union IBI's payroll supervisor, David Grossman, testi feed that after Umstead had been employed at IBI for about 30 days, Grossman asked him about sign- ing a union application for membership and a dues checkoff card Umstead informed Grossman that he had previously been a shop steward and that he wanted to check out this Union before joining Grossman testified that he spoke to Umstead on ' The General Counsel has excepted to some of the judge s credibility findings The Board s established policy is not to overrule an administra tive law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for re verumg the findings three or four occasions about joining the Union, but Umstead kept saying that he would get back to Grossman Grossman testified that he told Umstead that it was necessary for him to join the Union and when questioned as to what he meant by that, Grossman stated, both the company and the Union are in agreement that to join is necessary " In the spring of 1986, Robert Wolff, the Union's business representative, met with Umstead and in formed him that IBI had a union shop and that ev erybody was supposed to be a member of the Union Wolff requested that Umstead sign the dues checkoff provision, or at least fill out the membership application and send that in to the Union According to Umstead, Wolff told him that the initiation fee would be $60 Wolff further told Umstead that he "was going to send a letter to the company in reference to finding out why [Umstead was] still here and not a member of our union " Although the judge did not pinpoint when Um- stead and Wolff met, the record supports a finding that they talked in April 1986 Both Wolff and Harry Hendrickson, a coworker of Umstead's who was present at the meeting, testified that the meet- ing took place in April 1986 2 Furthermore, Mar garet Vanson, a union employee, testified that around the end of April, Wolff told her that he had talked with Umstead and learned that Umstead was not a union member According to Vanson, Wolff asked her to inquire into the matter, which she did by contacting IBI at the beginning of May It is apparent from the above that by the end of April Umstead and Wolff had met and discussed Umstead's status During their meeting, Wolff in formed Umstead of the need for him to join the Union, his obligation to pay an initiation fee, the amount of that fee, and the consequences of Um stead's failure to do so 3 When Umstead failed to act within the next month, the Union proceeded to seek his discharge 2 Although Umstead testified that the conversation took place in May the judge neither credited nor discredited his testimony Wolff testified that there were two meetings between Umstead and himself however he placed both meetings in April S Our dissenting colleague asserts that Wolff's statement that he would have to send IBI a letter to find out why Umstead was still there when he was not a member of the Union was too ambiguous to sufficiently ap prise Umstead of the consequences that could flow from his failure to join the Union We disagree As the judge found Umstead had been a union member before he knew what a union shop was he had discussed the Union with various fellow employees and he had been specifically told by Grossman that it was necessary to join the Union In light of Um stead s familiarity with the Union we think Umstead clearly understood Wolff's statement to mean that the Union would seek Umstead s dis charge if he did not join the Union Although Wolff chose a rather collo quial expression in informing Umstead of the consequences of failing to join the Union we find that that expression did fully apprise Umstead of the ramifications of his failure to fulfill his union obligations 292 NLRB No 64 I B I SECURITY It is settled law that prior to seeking the dis- charge of an employee for failure to pay dues or fees, a union must inform the employee of the amount owed, the method used to compute that amount, when such payments are to be made, and the fact that discharge will result from failure to pay See Philadelphia Sheraton Corp, 136 NLRB 888 (1962), enfd sub nom NLRB v Hotel Employ- ees Local 568, 320 F 2d 254 (3d Cir 1963) Al- though the record does not establish that Wolff in- formed Umstead of a specific time period within which the initiation fee had to be paid, we find that this does not preclude us from finding that the Union fulfilled its fiduciary obligation The record shows that after Wolff informed Umstead of the need to pay the initiation fee, the amount of that fee, and that discharge would result from failure to pay, the Union gave Umstead ample time to tender payment Umstead, however, never made any at- tempt to comply until after he was discharged Under these circumstances, we find that the Union did not breach its fiduciary responsibilities, but, rather, adequately notified Umstead of his obliga tions Moreover, even if the Union did not fully comply with its fiduciary obligation, the Board never intended these requirements ` to be so rigidly applied as to permit a recalcitrant employee to profit from his own dereliction in complying with his obligations as a union member" Teamsters Local 630 (Ralph's Grocery), 209 NLRB 117, 124 (1974) Rather, these requirements were established to ensure that "a reasonable employee will not fail to meet his obligation through ignorance or inadvert ence, but will do so only as a matter of conscious choice "4 Thus, the Board will excuse a union's failure to fully comply with the notice require- ments when it is shown that the employee involved has `wilfully and deliberately sought to evade his union security obligations 5 As the judge found, Umstead was well aware of his union dues obligation from early on in his em ployment at IBI Umstead, however, resisted join ing the Union and procrastinated until the Union had no alternative but to seek his dismissal In these circumstances, we find that Umstead con- sciously chose not to fulfill his union security obli- gations until it was too late Thus, even if the Union had not fully complied with the notice re quirements set forth in Philadelphia Sheraton, supra, we would find no violation because Umstead will- fully evaded his union responsibilities 4 Valley Cabinet & Mfg 253 NLRB 98 108 (1980) 5 Teamsters Local 630 supra at 125 See also Big Rivers Electric Corp 260 NLRB 329 (1982) 649 Therefore, we find that the Union legitimately requested Umstead's discharge and consequently did not violate Section 8(b)(1)(A) and (2) as alleged in the complaint ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and the complaint is dismissed MEMBER CRACRAFT, dissenting in part Contrary to my colleagues and the judge, I find that the Respondent, Allied International Union, violated Section 8(b)(1)(A) and (2) of the Act by causing the first discharge of employee Umstead for failing to pay dues as required under its union security agreement with I B I Security, Inc 1 The Board has long held that a union seeking to enforce a union-security provision against an em ployee has a fiduciary obligation to deal fairly with that employee 2 Thus the Board requires a union to inform the employee of the nature and extent of his membership obligations, including any dues paying requirements, and to notify the employee that unless those obligations are satisfied by a certain date, it would request his discharge 3 In the ab- sence of such a showing by the Union, "the mdi vidual's rights must be held paramount and protect ed "4 I believe, under the facts of this case, that the General Counsel has established that Umstead did not receive sufficient notice of his obligations under the union security clause or of the ramifica- tions of failing to fulfill those obligations Union Business Representative Wolff's testimony reveals that in April 1986, some 17 months after Umstead was hired by I B I Secunty,5 Wolff met and talked with Umstead for the first time since Umstead had been employed at I B I and identified himself as being from the Union Umstead then questioned Wolff about the Union and the contract Wolff asked Umstead if he had an "ID" card and whether he was a member of the Union Umstead replied no to both questions On learning that Um- ' However I agree with my colleagues that I B I Security did not vio late Sec 8(a)(3) and (1) by discharging Umstead pursuant to the Union s request as it had no reasonable basis for believing that the Union s request was unlawful See R H Macy & Co 266 NLRB 858 (1983) Valley Cabi net & Mfg 253 NLRB 98 (1980) I also agree with their finding that Um stead s second discharge in April 1987 for insubordination was not unlaw ful 2 Iron Workers Local 378 (Judson Steel) 192 NLRB 1069 1074 (1971) Teamsters Local 270 (Bulk Transport) 186 NLRB 299 301 (1970) Phila delphia Sheraton Corp 136 NLRB 888 (1962) enfd sub nom NLRB v Hotel Employees Local 568 320 F 2d 254 258 (3d Cir 1963) a Distillery Workers Local 38 (Schenley Distillers) 242 NLRB 370 (1979) Teamsters Local 270 186 NLRB at 301 4 Iron Workers Local 378 192 NLRB at 1075 5 Wolff first met Umstead in March 1986 but did not speak with him at that time 650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD stead had been working at I B I Security for almost 2 years, Wolff commented, "Where have you been?" He then handed Umstead a two part membership application,6 and stated that he would appreciate Umstead signing the card, that the Union would mail him all the required literature, but that he had to be a member of the Union When Umstead expressed an interest in learning more about the Union, Wolff provided Umstead with a copy of the "highlights" of the contract that outlined only the benefits received by employees under the contract, but made no mention of their membership and dues obligations 7 In a second April meeting, Wolff reminded Um- stead that he had not yet joined the Union, ex plained the benefits available to employees under the contract, and, as noted , handed him part I of the membership card, instructing him to fill it out and mail it to the Union Wolff then told Umstead that Wolff "was going to send a letter to the com pany in reference to finding out why [Umstead was] still here and not a member of our union " Wolff testified that he also told Umstead that em ployees had 30 days in which to join the Union, followed by a probationary period According to Umstead, he was told by Wolff, and later by Peggy Vanson, a union secretary, that the initiation fee was $60 8 There is no evidence to suggest that Um stead was informed that under the contract he could be fired if he did not join the Union Wolff's testimony, as noted, indicates only that he told Umstead that he was going to send a letter to Umstead's employer to find out why he "was still here and not a member of our union " This remark is too ambiguous to sufficiently apprise Umstead of the consequences that could flow from his failure to pay dues or an initiation fee by a specified date Similarly, Vanson's testimony, even if Vanson were considered to be an agent of the Union, contains nothing that can be construed as 6 One part of the membership application (part I) simply stated that the signer was applying for membership and authorized the Union to repre sent the signer for collective bargaining purposes It provided space for the signer s name address and other relevant data The second part of the application (part II) described the signer s membership obligation in cluding a statement that the initiation fee for new members was $65 plus 1 months fee of $10 in advance for an initial total of $75 It is unclear from the record whether Umstead took the card handed to him at that time by Wolff However at a subsequent meeting in April Wolff gave Umstead only part I of the membership card that the latter accepted 7 Umstead had previously received the same highlights of the con tract in March 1986 from acting shop steward Hendrickson There is ro record evidence to indicate that Hendrickson informed Umstead of his dues obligation under the contract when he gave Umstead the high lights of the agreement 9 Umstead s conversation with Vanson occurred in early May In that conversation Vanson told Umstead that when someone is hired by I B I Security he or she has to join the Union after completing 30 days of em ployment She then told Umstead to deal only with her that she would take care of everything and that she would send him a membership card to sign in case he did not have one notification to Umstead that he risked discharge unless he joined the Union and forwarded the re quired fees and dues Finally, as noted, Umstead was never given a copy of the Union's contract with I B I Security, which might have placed him on notice of the existence of the union security provision Instead, he received from Wolff only a summary of the benefits available to employees under the contract Because of the above testimony and as it is clear that Umstead was not given a particular date in which to satisfy his membership obligations, I find that the Respondent Union breached its fiduciary obligation to Umstead by requesting his discharge without first adequately notifying him of, and giving him an opportunity to comply with, his union-security obligations The fact that Umstead may have known that other employees of I B I Se curity were members of the Union, or that he pre sumably had some knowledge of union membership from some previous employment, or that he had been advised by I B I Security that he had to join the Union did not relieve the Respondent Union of its duty to fully advise Umstead of his membership obligations and the ramifications of the failure to abide by these obligations 9 For this reason I find, contrary to my colleagues and the judge, that the Respondent Union violated Section 8(b)(1)(A) and (2) of the Act when it requested Umstead's dis- charge 10 In all other respects, I agree with my colleagues' findings 9 Iron Workers Local 378 192 NLRB at 1074 1075 1s I agree with my col'eagues that the Board never intended a union s fiduciary obligation to be so rigidly construed as to permit a recalcitrant employee to profit from his own dereliction in complying with his obli gations as a union member Teamsters Local 630 (Ralph s Grocery) 209 NLRB 117 124 (1974) However I disagree with my colleagues conclu sion that Umstead willfully evaded his union responsibilities thus excus mg any infirmities in the Respondents notice to him I do not find that Umstead s actions rise to the level of recalcitrance or willful evasion which the Board has previously found excuses a union s fiduciary duty In Ralph s Grocery no violation of the Act was found when the union requested the discharge of employee Kelley even though it did not di rectly inform him of his obligations The Board relied on the fact that Kelley a longstanding member of a sister local knew that he was re quired to deposit the sister local s withdrawal card with the union on at taming employment with the employer Kelley also received a copy of the contract knew of its union security provision sought benefits under the contract while claiming that the contract was not binding on him and demonstrated knowledge of his union security obligations by assert ing that his union dues should have been checked off from his wages Further Kelley was afforded an opportunity to meet his dues delinquen cy in installment payments after the union requested his discharge He de clined this offer In Big Rivers Electric Corp 260 NLRB 329 (1982) the Board found that any infirmities in a written notice sent to employee Melton were excused by her recalcitrance in light of the judge s finding that the employee was repeatedly warned orally about the consequences of failing to meet her obligations Beatrice Kornbluh Esq for the General Counsel John C Mallon Esq for I B I Security, Inc I B I SECURITY Gerald V Dandeneau Esq, for Allied International Union DECISION STATEMENT OF THE CASE ARTHUR A HERMAN, Administrative Law Judge On 15 October 1986, John Umstead, filed charges against IBI Security Inc (the Employer or IBI) in Case 29- CA-12681, and against Allied International Union (the Union) in Case 29-CB-6489 Based on those charges, a consolidated complaint issued on 28 November 1986 al leging (1) an unlawful discharge of Umstead by the Em ployer caused by the Union s unlawful request that the Employer discharge him, (2) an unlawful refusal by the Union to provide Umstead with a copy of the collective bargaining agreement in effect between the Employer and the Union, and (3) the failure of the Union to repre sent Umstead regarding his discharge and claim for back pay After reinstatement, and specifically on 20 April 1987, Umstead filed a charge in Case 29-CA-12998 al leging a further unlawful discharge by the Employer be cause he engaged in protected concerted activity and be cause he filed charges under the Act On 25 June 1987, an order further consolidating cases consolidated com plaint, and notice of hearing issued reiterating the allega tions listed above, with the additional allegation that the Employer discharged Umstead on 13 April 1987 because he filed charges in Cases 29-CA-12681 and 29-CB-6489 The General Counsel contends that the Employer violat ed Section 8(a)(1) (2) (3), and (4) of the Act, and that the Union violated Section 8(b)(1)(A) and (2) of the Act In their separate duly filed answers, the Employer and the Union deny the commission of any unfair labor prac tices This case was tried before me in Brooklyn New York, on 11 August 1987 and in New York, New York on 12- 13 August 1987 At the trial all parties were given a full opportunity to participate, and subsequently all parties filed briefs On the entire record in the case and from my observation of the witnesses and their demeanor while testifying under oath and after careful consider ation of the briefs I make the following FINDINGS OF FACT I JURISDICTION OF THE RESPONDENT EMPLOYER I B I Security, Inc a New York corporation is en gaged in providing armored courier and related services for various banking financial, and commercial institu tions During the past year, the Employer performed services valued in excess of $50 000 for various enter prises located in New York and Connecticut each of which enterprises is directly engaged in interstate com merce and meets a Board standard for the assertion of ju risdiction Based on those facts which the Employer does not deny I find that the Employer has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act II LABOR ORGANIZATION 651 The consolidated complaint alleges, neither the Em ployer nor the Union denies and I find that Allied Inter national Union is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The 27 May 1986 Termination The record shows that I B I Security and Allied Inter national Union have maintained a collective bargaining relationship for many years with the Union representing all of IBI s employees, and Armored Carrier Division Captains and Couriers and Transfer agents and assistant transfer agents i John Umstead was hired by IBI on 22 September 1984 and worked as a driver and helper2 in IBI s armored carrier division The pickup man obtains his own gun permit from the civil authorities and then is issued a handgun by the Employer In addition, each ar mored truck is equipped with a 12 gauge shotgun The driver of the armored vehicle drives to the various stops on the route, and the pickup man picks up the customers deposits for delivery to a bank or retains it in the vehi cle's safe until the vehicle comes back to IBI s terminal, for safekeeping During May 1986, Umstead worked as a pickup man on IBI s trucks Umstead testified that from the time he was hired in 1984 through April 1986, there was no union shop stew and on IBI s premises and that he was never asked by anyone to join the Union 3 However when shown his own affidavit4 on cross examination Umstead admitted that in 1985 he knew there was a union at IBI and he asked Dennis Davis how to go about joining the Union He also asked an employee, Said how he could get in touch with the Union Although Davis told Umstead that he was a union member and paying dues neither Davis nor Said could tell him how to join the Union He also admitted that at some time either in March or April 1986 he approached a coworker whom he knew as Harry,5 and asked him about the Union Harry gave him a copy of a letter dated 11 March 1986 addressed to the Union and signed Members and Employees of IBI in which the members petition the Union to call a meeting for the purpose of electing a shop steward noting that there has not been a shop steward for at least 3 months And Harry said to Umstead Well we re getting some thing started Umstead further testified that on a day sometime be tween 9 and 13 May 1986, he was introduced to Robert Wolff6 by Hendrickson who told him that Wolff is the i G C Exh 8 This 3 year collective bargaining agreement was in effect from 2 February 1984 to 1 February 1987 and contains a valid union security clause 2 Also referred to as a pickup man a On cross examination Umstead admitted that the Employers help wanted ad that he responded to in 1984 contained a phrase Union Shop but that he did not know what the phrase meant * Party to the Contract Exh 1 5 I presume this to be Harry Hendrickson e Wolff testified at the hearing and identified himself as Robert Ray mond Wolff secretary treasurer and business representative for Allied International Union 652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD man from the Union Umstead says he replied It s about time, but told Wolff he could not stand around to talk because he had to go out on his route He said he would see Wolff later According to Umstead the next time he saw Wolff was 15 May 1986 Wolff, dressed in a New York City Sanitation Department uniform was standing outside IBI s locker room entrance talking to some employees, when Umstead approached him Wolff asked Umstead if he was a member of the Union Umstead said No Wolff asked him how long he had been working for IBI and Umstead told him Then, Umstead asked Wolff if he was from the Union, and Wolff told him he was an exec utive member Wolff than asked Umstead to sign a union membership card 7 Umstead asked Wolff, What did the Union offer? Wolff replied, I cannot tell you until you sign this card I cannot talk to you until you sign this card Umstead then asked to see the union contract but Wolff refused because Umstead did not sign the card In response to a question by the General Counsel Umstead could not recall whether Wolff gave him a deadline for submitting the signed authorization card And when asked by the General Counsel if Wolff told him what the initiation fee would be, Umstead at first could not recall, but when the General Counsel refreshed his recollection Umstead said that Wolff told him it was $60 Hendrickson testified that he was present at this con versation and confirms Umstead s testimony, but he con tends that the conversation took place some time in April, not May Wolff testified that after he received Hendrickson s letter to the Union in March 1986 he came to IBI s premises in March and asked Hendrickson to be the tern porary shop steward Wolff gave Hendrickson some membership cards for those employees who had not signed up with the Union some copies of the Union s medical plan, and some copies of the highlights of the existing contract between IBI and the Union a Wolff says he first met Umstead at the end of March 1986, but did not have a conversation with him On 11 April 1986 Wolff met again with Umstead and asked him to sign a membership card Umstead inquired about the Union, and Wolff claims he tried to explain to Umstead that IBI had a contract with the Union he gave Umstead a copy of the highlights and then told him he had to join the Union According to Wolff, the two men met again later in April and Wolff reminded Umstead that he still had not signed up with the Union Umstead kept hedging and inquiring about the Union At this point Wolff tore the card in half and handed G C Exh 2(b) (the membership portion) to Umstead he told Umstead to fill it out and mail it to the Union Wolff told Umstead that if he failed 7 G C Exh 2(b) Wolff had torn off the other half of the card which pertained to authorization to deduct dues for the Union See G C Exh 2A 8 See G C Exh 7 Hendrickson testified that in April 1986 he gave Umstead a copy of the highlights to read After reading the highlights Umstead returned it to Hendrickson Hendrickson places this incident in April because he states that it took place about I month before a new shop steward Livingston Lovely was elected by the membership on 15 May 1986 to do so, the Union would have to send a letter to IBI advising IBI of Umstead s union status As of 15 May 1986 Umstead did not sign a union membership card, and so the Union sent IBI a letter, dated 15 May 1986 advising IBI that Umstead although employed for over a year had not yet joined the Union 9 It asked IBI to check into this matter reminding IBI of the existing union security clause in the contract 10 The next day 16 May 1986 while Umstead was out on his route he received a message to call IBI s payroll supervisor David Grossman At his next stop Umstead called Grossman and according to Umstead Grossman asked him, What are you doing giving the Union a hard time9' Umstead denied it and told Grossman that he in tended to call the union office Umstead testified that Grossman had never previously given him a union apple cation card nor had Grossman ever talked to him about joining the Union Grossman testified that as part of his duties, he proc esses union checkoff of dues by notifying new employees that after 30 days of employment they are required to join the Union Grossman stated that he first approached Umstead in 1984 after Umstead worked for IBI more than 30 days and asked him about siging a union applica tion for membership and a dues checkoff card Umstead told Grossman that he had been a shop steward at a pre vious job and that he wanted to check out this union Grossman said he spoke to Umstead on three or four oc casions after that but Umstead kept putting him off Fi nally in April 1986 after the Union had contacted IBI about Umstead s union status Grossman called Umstead again, and again Umstead said he would get back to Grossman Umstead testified that on 20 May 1986, he called the union office spoke to Peggy (Margaret Vanson) told her that he spoke to Wolff on 15 May that Wolff re fused to tell Umstead the union benefits, and that he was calling her to get that information According to Um stead, Peggy asked him when he started to work for IBI and then she enumerated the union benefits She then told Umstead to fill out the card he had and send it to her When Umstead told her he only had half of the card she offered to send him the whole card and she told him that he had 30 days to make up his mind about joining the Union Umstead told Peggy that he heard that a Mr Lovely had been elected shop steward and he assured her that he would get a complete card from Lovely and he would sign it and return it to her in time Peggy testified that around the end of April, Wolff told her that he had been to IBI and found out that Um stead a long time employee had not joined the Union and he asked her to check it out She verified the fact by her remittance sheets and called IBI in the beginning of May to check on it Peggy then got a call from Umstead just a couple of days later, who told her he did not join the Union because he did not like unions and unions 8 Party to the Contract Exh 4 1' In response to my question to Wolff whether the Union at any time in March April or May 1986 sent Umstead a letter advising him of the necessity of his becoming a member of the Union Wolff responded nega tively I B I SECURITY could not do anything for him Peggy listed many of the benefits the Union offered and as a result, Umstead told her he would sign up According to Umstead, he did obtain a complete card from Lovely he filled it out and together with a $60 check he sent it to the Union on Tuesday 27 May 1986 11 Umstead stated that on his way to work that Tuesday morning, he dropped the letter into a mailbox in front of a post office Umstead claims that he sent the letter to the Union by regular first class mail On cross examination counsel for the Union intro duced into evidence the envelope that accompanied the letter 12 Umstead acknowledged that both the named ad dressee (Allied International Union, 275 Warnon Ave Roslyn Hts , NY 11577) and the return address (J R Umstead, 592 Bainbridgest Brooklyn N Y 11233) were written by Umstead The face of the envelope bears a printed 22 cents U S stamp and affixed to the envelope is a $2 95 US postage meter stamp dated May 27 86, out of a Brooklyn New York, US P S In addition there are two Special Delivery prints stamped on the envelope and a stamped face of a clock showing the en velope having been received in Roslyn Heights at 6 30 am on May 28 1986 By way of explanation Umstead testified that there have been times I ve gone to the post office and gotten special delivery letters and did not send them that particular day 13 Thomas A Clare IBI s chairman of the board and chief executive officer testified that in or about May 1986, he received a call from either Edward Benvenuto the Unions president or a Mr Bachman 14 informing IBI that Umstead had not joined the Union and that pursuant to the contract Umstead had to join or be let go Clare states that he passed the information on to the administrator of the Long Island City office Andy loannu telling him that Umstead had to either sign the application to join or else he had to be terminated When Umstead arnved at work that Tuesday, 27 May 1986, he was terminated On 2 June 1986 the Union sent Umstead a letter, en closing his check and application for membership, in forming him that they could not process his application because it had arrived after he was terminated by IBI 15 On 3 June 1986 Umstead filed an unfair labor practice charge with Region 29 in Case 29-CA-12452 On or about 6 June 1986, Umstead received a call from Lovely telling him to come back to work the next day When Umstead returned the next day, he met with Clare and Clare gave the order to go back to work Because of the necessary paperwork, which delayed his returning to the i i Monday 26 May 1986 was Memorial Day and Umstead did not work that day 12 Party to the Contract Exh 3 13 In light of the fact that this envelope bore a postage meter stamp dated May 27 86 I do not credit Umstead s explanation nor do I credit his statement that he sent the letter regular first class mail and de posited it in a mailbox I find that Umstead went to work that Tuesday morning found out that he had been terminated and then decided to send his union application in he then went to the post office and mailed the letter by special delivery 14 I presume that Bachman is a union officer although the record does not say he is 15 G C Exh 6A 653 job, Umstead did not actually start work until either 10 or 11 June 1986 And when he returned, his route had been changed 16 On 9 June 1986 Umstead withdrew his charge in Case 29-CA-12452 B The 13 April 1987 Discharge Shortly after Umstead returned to work in June 1986, Lovely the shop steward gave him a union application for membership card and attached a dues deduction au thorization card Umstead signed both cards and re turned them to Lovely At the same time Umstead made several attempts to get paid for the 2 weeks that he was out of work, but IBI refused to pay him 17 He spoke to Lovely on several occasions, but to no avail Finally he contacted the Union directly He spoke to Peggy on the phone but that did not help and he wrote a letter to Benvenuto on 4 September 1986 requesting to be repre sented in this matter, but nothing was done on his behalf And so, on 15 October 1986 Umstead filed the initial two charges in this proceeding, which resulted in the is suance of a consolidated complaint on 28 November 1986 The hearing date as stated in the complaint was 4 March 1987 On 10 February 1987 counsel for the Union requested an adjournment and the hearing was adjourned to 3 June 1987 On Saturday, 11 April 1987 Umstead was sent out on a route as the pickup man on the armored truck Mike Riccione was the driver One of the stops that day was at Dan s Supreme #32 a supermarket The armored truck #357 pulled up in front of the store and Umstead went into the store 18 While he and the store manager were conversing, one of the store s stockboys reported to them that there was a strange vehicle in the back of the parking lot and that a person appeared to be taking pic tures of the armored truck Umstead states that he was reminded of a prior incident that occurred in September 1986 at the Motor Vehicle Bureau (lust 5 minutes away from Dan s) when he had to shoot his way out of a rob bery attempt And so he picked up the money bags at Dan s had his gun out of the holster, and deposited the money in the armored truck Umstead told Riccione what the stockboy had said he put his gun back in the holster and proceeded to walk to the suspicious vehicle telling Riccione to keep his eyes on him 19 Riccione con I6 This is alleged by the General Counsel to be a violation The facts are that when Umstead was terminated in May he had to return his handgun When he was rehired in June it took until July to get him his handgun And so from June to July he worked as a driver rather than a pickup man Drivers were paid $2 05 per hour pickup men got $2 85 per hour After obtaining the handgun Umstead continued his duties as a driver but on Saturdays he would substitute as a pickup man or when his regular pickup man was out As it turned out his weekly paycheck was greater as a driver but that was because his new route had more stops 17 Umstead had alternating conversations about the backpay through September 1986 with Michael Goun IBI s assistant vice president of its armored carrier division and John Mallon IBI s counsel but both made it clear to him that they would not pay wages for work not performed 19 Umstead stated that because they had arrived early for the pickup Riccione first drove the truck to the rear of the parking lot where they both had lunch and Umstead did some paperwork in the truck Riccione then drove the truck to the door of the supermarket 19 According to Umstead the armored truck was equipped with large outside mirrors that have the ability to pull objects closer to the viewer Continued 654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD firmed that he could see the right side of the suspicious vehicle As Umstead got fairly close to the vehicle, he recognized the individual as Martin Gladstone, IBI s se curity officer According to Umstead he walked over to the vehicle and said Oh, it s you, what are you doing here? Gladstone responded, You don't have enough work to keep you busy9' Umstead then saw the camera, which to him looked like a machinegun, and he said, Oh, so it's you and not the insurance company that s taking pictures' 20 Umstead continued Well, what are you taking my picture for? What-what-what did I do? You know, this is- this-this is very dangerous, you-you know, doing this You could cause somebody to get hurt or you could get hurt yourself This make no sense And I did make the statement that I'm a black man and you re a black man, what are you-what are you taking my pictures for? Q Yes A And he just laughed They sit there and laughed, with a smile that he had on his face too Q Yes A And I say Okay, I don t want you doing this no more Don't follow me around no more today because it's very dangerous, somebody could get hurt I left, walked back to the truck Umstead stated that he then told Riccione to wait while he phoned the police department to get them to stop Gladstone from following him around But there was no public phone in the supermarket and so Umstead walked all around the area looking for a phone but to no avail 21 He came back to the armored truck and noticed that Gladstone had driven up to about 15 feet from the truck, and Umstead said, Mr Gladstone look, don t do this Its dangerous don't follow me around no more I don t want it 22 Umstead and Riccione then left the scene for the next stop Gladstone followed for a short distance and then left Riccione testified that when they arrived at Dan s #32 he drove the armored truck right up to the door of the supermarket 23 Because it was too early for the pickup, they stayed in the truck and Umstead did some paper work Then Umstead made the pickup and returned to the truck with the money telling Riccione that there was somebody in the back of the parking lot that was following them and he was going to check it out Ac cording to Riccione Umstead walked towards a green Also a viewer seated in the truck could see right out the back of the vehicle because it had an open bay 20 The evidence established that IBI held several meetings with its em ployees devoted to stressing security precautions while on the job and telling the employees that they will be watched with pictures taken to show mistakes that employees are prone to make 21 When asked on cross examination why he did not ask the store man ager to use his office phone Umstead had no response 22 Umstead claims he tried calling the office on the truck radio to tell them to get Gladstone off of my back but he is sure that the radio was not working 23 His affidavit states that they first parked in the loading area and then pulled up near the store door after Umstead completed his paper work See R Exh l1 station wagon, parked about 100-150 feet away On cross examination, Riccione admitted that when he saw the station wagon he assumed it was Gladstone although he could not see Gladstone seated in the car On that as sumption, Riccione saw no reason to call his office or the police because there was no emergency Riccione, however, continued to watch Umstead Riccione saw Umstead lean into the car on the passenger side and talk to Gladstone According to Riccione, he could not hear what they were saying, but he could see that Umstead s gun was in its holster After about 5 minutes Umstead re turned to the armored truck and told Riccione he was going to make a phone call Before Umstead returned, Gladstone drove up within 10-15 feet of the armored truck, and when Umstead returned and was inside the truck with the door open, Riccione heard Umstead say to Gladstone Stop following this vehicle otherwise I in calling the office, I in not working anymore You have no reason to follow this vehicle, no reason to try to find any fault with me or anything like that, and stop following this vehicle otherwise I in not going to work for the rest of the day According to Riccione, Umstead then closed the door, and they drove off Gladstone s version of the incident is quite different 24 He arrived at the parking lot before the armored truck He then saw the truck drive in and park in the middle of the lot He videotaped the truck and noted that the driver and the courier remained in the truck for 1 hour The truck then moved up to the entrance of the store and Gladstone changed his position so that he was about 75 yards from the truck and could get a good view of it Gladstone saw a person get out of the truck and walk in his direction Gladstone testified He came over to me and he walked to the side of the car took out his gun and said you black moth erfucker you re the one taking all the pictures and giving them We are all black alike and you re spying on us I am going to blow your motherfuck ing brains out, and I dare you to use that camera on my activities Your Honor the man was agitated and shaking I was sitting like this and the aim was at my head I didn t wink an eyelash because by even moving he might squeeze the trigger so I remained quiet until he holstered his gun and walked away Then I came out of the car and I videotaped him again going into the truck He went in the truck and then entered the store A I drove up to the armored truck and parked alongside, since I know [sic] observed and I was ac cused and now I am going to see what this guy is really up to because he knows I work for the com pany he knows what I am doing so why he was in 24SeeGC Exh 10 IBI SECURITY 655 that condition, so now I want to see what he was up to, and I parked and waited until he come from the store Q All right now, how long was he in the store? A Fifteen minutes, twenty minutes Q Then what happened9 A When he came back he opened the door, his partner opened the door and he went on the run ning board of the engine and he gave the guy the money and he stood up and said, I warned you you black motherfucker, if you follow me from this spot, you are a dead black motherfucker Every body gathered around, so I said to him you are going to lose your gun my friend He jumped in the truck and he drove on Gladstone testified that when Umstead was standing on the running board, he was between Gladstone and Ric crone, who was seated behind the wheel When asked by counsel what he observed Riccione doing, Gladstone re plied He was inside there and he said to me, Gladstone, you are going to get it, and he had a shotgun, a palm shotgun, and he clicked it like this, but I knew it was empty, he was only jesting because of this guy's behavior 25 According to Gladstone, he then followed the ar mored truck out of the parking lot for a few blocks, and advised the central office on the radio what happened He also called Gene Reed the assistant vice president related the incident to him and told him that he was going to notify the police Reed advised against it and told Gladstone that management would handle it On Monday 13 April 1987 Gladstone handed in his report of the incident and later that morning Umstead was dis charged Umstead filed a grievance with the Union, and about a week after the discharge, there was a meeting attended by Umstead, Lovely Goun, and Elvin Boston a business representative for the Union IBI stuck by its decision and Boston told Goun that the Union would submit the matter to arbitration On 20 April 1987 Umstead filed an unfair labor practice charge in Case 29-CA-12998, and on 25 June 1987 the Region issued an order further con sohdatmg cases adding additional allegations of viola tions of Section 8(a)(3) and (4) of the Act At the instant hearing, counsel for IBI moved to defer the second discharge because of the pendency of the ar bitration The General Counsel opposed the motion to defer Inasmuch as it is alleged that the second discharge occurred as a result of Umstead availing himself of the Board processes i e , an 8(a)(4) violation it is incumbent on the Board to retain jurisdiction, and thus IBI s motion is denied 25 Riccione denies doing anything with the shotgun C Analysis and Conclusions 1 Umstead's first discharge-May 1986 The General Counsel contends that Umstead s initial discharge in May 1986 was caused by the Union for rea sons other than Umstead s failure to pay dues as required by the union security clause in the contract The General Counsel maintains that the Union's insistence that Um stead sign a membership application card constituted a violation of the Act And the General Counsel cites Her shey Foods Corp, 207 NLRB 897 (1973), for its prece dent In Hershey, however, the union was found to have caused the discharge of an employee who had resigned his union membership but continued to tender to the Union an amount equal to the dues In the instant case, Umstead never made a tender offer of any kind Al though it is true that the Act does not compel full union membership in a `union shop, there is nevertheless a re quirement that the employee pay dues or its equivalent to retain his employment As the Supreme Court charac terized the requirement, membership as a condition of employment is whittled down to its financial core " NLRB v General Motors Corp, 373 U S 734, 742 (1963) The record evidence in this case reveals that since September 1984 until his discharge in May 1986 Umstead had been employed by IBI From the time he was hired to 15 May 1986, Umstead was made aware of the fact, on at least six or seven different occasions, that IBI s em ployees were covered by a collective bargaining agree ment containing, inter alia a union security clause requir ing that, as a condition of employment all unit employ ees had to become members of the Union within 30 days of employment These occasions can be pinpointed as follows (1) Umstead was aware that the help wanted ad that he responded to when hired contained the phrase Union Shop' ,26 (2) Umstead s affidavit refers to four separate occasions in 1985 when he had conversations with other employees namely, Davis, Said Rimalwee, and Riccione, who told him that they were paying union dues 27 (3) Umstead testified about his conversation with Hendrickson in March or April 1986 in which Hen drickson gave Umstead a copy of a letter addressed to the Union (4) Grossman IBI s payroll supervisor credi bly testified that he spoke to Umstead on several occa sions since 1984 urging him to sign up with the Union and (5) Hendrickson testified that in April 1986 he gave Umstead a copy of the highlights of the union contract Despite all this Umstead continued to resist Even as he relates his conversation with Wolff on 15 May 1986 he admits that Wolff told him the initiation fee was $60 And again in his conversation with Peggy on 20 May 1986, he states that Peggy enumerated the union benefits to him and told him to submit his membership applica 26 I do not credit Umstead when he said that he did not know what the phrase meant The record establishes in fact that Umstead had an extensive scholastic background and previously worked for a firm that was forced out of business because of adverse union activity at a suppli er s plant In addition Umstead attempted to show throughout his testi mony that he was the one who was interested in finding out about a union at the shop 27 See Party to the Contract Exh I 656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tion card to the union office However Umstead contin ued to procrastinate Finally the Union had no alterna tive but to advise IBI that one of their employees Urn stead, had been employed for over a year and had not yet joined the Union As Clare testified, IBI verified the information and pursuant to the Union s request, termi nated Umstead on 27 May 1986 The Board has long held that a union has an absolute fiduciary duty to inform unit employees of their obliga tions under a valid union security agreement, including the correct particulars of any obligations due and owing and the consequences of noncompliance, and to afford a reasonable opportunity to comply before invoking a re quest for discharge for noncompliance Philadelphia Sher aton Corp 136 NLRB 888 (1962), enfd sub nom NLRB v Hotel Employees Local 586, 320 F 2d 254 (3d Cir 1963) It is my belief that the Union fulfilled all its obli gations to Umstead told him what the payment was, and afforded him ample time to comply I can only conclude that Umstead sought to avoid his legitimate dues obliga tions Under all the circumstances, I find that although the Union caused Umstead's discharge, it did so because of Umstead's failure to pay dues, and therefore it did not violate Section 8(b)(1)(A) and (2) of the Act as alleged in the complaint As stated in footnote 14 supra Umstead s tender of dues after his discharge was untimely and therefore unacceptable And since IBI had no reasonable cause to believe that the Union s request for Umstead s discharge was invalid, I find that IBI did not violate Sec tion 8(a)(3) and (1) of the Act 2 Umstead s second discharge-April 1987 As the record states Umstead was rehired by IBI 2 weeks after his first discharge He attempted to recover the lost wages for the 2 weeks he was out of work, but IBI refused to pay him and there is no evidence to show that the Union aided him in his quest 28 This action or inaction by the Employer and Union however prompt ed Umstead to file the October 1986 charges with the Board which resulted in the issuance of a consolidated complaint in November 1986 The General Counsel contends that the second dis charge of Umstead in April 1987 occurred because Um stead filed the October 1986 charges and because the Board issued the November 1986 complaint In addition, the General Counsel contends that the Employer dis criminated against Umstead when it rehired him by fail ing to reinstate Umstead to his former position 29 As for Umstead s discharge in April 1987 I analyze the situation based on the Board s decision in Wright Line 30 In that case the Board stated that when an em 28 Inasmuch as I have determined that the action taken by the Union in seeking Umstead s discharge was lawful then I must conclude that Umstead was not entitled to the 2 weeks backpay and therefore the Union s failure to represent him was not a violation of the Act 28 Based on my discussion of the facts surrounding the reinstatement in fn 16 supra I conclude that IBI did not act in a discriminatory manner Its placement of Umstead was not motivated by his union activity or be cause he availed himself of the Board s processes 30 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert denied 455 U S 989 (1982) ployee is discharged for both legitimate and illegitimate reasons, the General Counsel must make a prima facie showing that the employees protected activity was the motivating factor in the employers decision to dis charge The burden then shifts to the employer to show that the same action (discharge) would have taken place even in the absence of the protected activity In advancing her theory of animus on the part of IBI toward Umstead because he filed charges, the General Counsel sets forth the assumption that Umstead s insist ence on the 2 weeks backpay became quite annoying to IBI so much so that even when Umstead performed the courageous act of foiling the armed robbers in Septem ber 1986 he was not properly commended by IBI 31 Thus the entire extent of the General Counsels argu ment is surmise and innuendo There is no evidence that IBI threatened or harassed Umstead because he sought the 2 weeks backpay Nor is it likely that an employer, who is involved in handling millions of dollars daily and who employs hundreds of men, would become so ob sessed with the miniscule claim of one man sufficient to cause his discharge Rather, the events of 13 April 1987 are crucial IBI contends that Umstead engaged in an unprovoked assault on Gladstone by pulling out a loaded gun, sticking it in his face, and threatening to blow his head off Although Umstead denies that he pulled out his gun, and Riccione states that he did not see a drawn gun both admit that Umstead did leave his vehicle and did approach Glad stone s vehicle In making my assessment on credibility I am greatly persuaded by the fact that Gladstone testified with conviction in his tone and a ring of truthfulness in his remarks Umstead, on the other hand appeared eva sive in his responses and downright unbelievable when he tried to explain the special delivery letter that he sent the Union in 1986 On the whole, his testimony lacked trustworthiness There is no question but that Gladstone was present at Dan s Supermarket #32 per forming his duties on behalf of IBI He was not there to harass Umstead In fact, by Umstead s own admission Gladstone s vehicle was quite a distance away Rather Umstead sought out Gladstone and caused the confronta tion Under the circumstances I credit Gladstone s ver sion of what transpired and find that Umstead s actions were sufficiently reprehensible to warrant his discharge And I find that IBI would have acted in the same manner even in the absence of Umstead s protected ac tivity Accordingly, I shall dismiss the allegation regard mg the second discharge Under all the circumstances in this case I shall dismiss the consolidated complaint in its entirety CONCLUSIONS OF LAW 1 I B I Security Inc, is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce as defined in Section 2(6) and (7) of the Act 2 Allied International Union is a labor organization within the meaning of Section 2(5) of the Act 0' The evidence shows however that a commendation was placed in Umstead s personnel file I B I SECURITY 3 Respondent IBI did not violate the Act in any re spect alleged in the consolidated complaint against it 4 Respondent Union did not violate the Act in any re spect alleged in the consolidated complaint against it On these findings of fact and conclusions of law and on the entire record, I issue the following recommend ed32 ORDER 657 It is ordered that the consolidated complaint is dis missed in its entirety Order shall as provided in Sec 102 48 of the Rules be adopted by the 32 If no exceptions are filed as provided by Sec 102 46 of the Board s Board and all objections to them shall be deemed waived for all pur Rules and Regulations the findings conclusions and recommended poses