Electrical Workers Ibew Local 3 ( General Electric)

ELECTRICAL WORKERS IBEW LOCAL 3 (GENERAL ELECTRIC) 995 Local 3, International Brotherhood of Electrical Workers (General Electric Company) and John R. Kubs. Case 22-CB-6124 September 27, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On March 5, 1990, Administrative Law Judge Edwin H Bennett issued the attached decision The Respondent filed exceptions and a supporting brief The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record in light of the exceptions' and bnef and has decided to affirm the judge's rulings, findmgs, 2 and conclusions as modified, 3 and to substitute the fol- lowing Order4 and notice On exception, the Respondent has raised the issue of jurisdiction We find no merit in the contention that evidence that General Electric is en- gaged in commerce is an insufficient basis for finding that the statutory "affect[ing] commerce" standard is met in this case 2 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative 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 reversing the findings 3 The Respondent contends, contrary to the judge's finding, that the "military assessment" that it demanded Kubs pay as part of the amount he allegedly owed to regain good standing in the Union is uniformly ap- plied to new members as part of the initiation fee—despite its misleading designation as an "assessment" We find It unnecessary to pass on the nature and purpose of the military assessment, or its penodicity or uni- formity, in the circumstances of this case Whether or not It is part of the initiation fee, we agree with the judge that the Respondent violated Sec 8(b)(1)(A) by demanding payment of the military assessment In either case the Respondent failed in its fiduciary duty to Kubs to offer him a full accounting of his dues liability and to explain to him the basis for requiring him to pay the assessment Accordingly, the remedy and the recommended Order concerning the military assessment remain unmodi- fied 4 The judge recommended that the Order and notice be broadened beyond the Employer in this case, General Electric, to Include "or any other employer" He based this recommendation in part on the Respond- ent's extensive history of violating Sec 8(6)(4) and (7) of the Act We find that such violations are unrelated to the violations found here Thus, they do not warrant the broad Order recommended by the judge We further find that R H Macy & Co, 266 NLRB 858 (1983), a case in which the respondent committed substantially similar violations of Sec 8(b)(1XA) and (2) to those found here, and the Involvement of "the Union's international headquarters" in the action taken against Kubs, do not suffice to justify such an order Accordingly, we shall modify the recommended Order and notice by deleting "or any other employer" from its relevant provisions We shall also modify par 2(a) of the recommended Order to make clear that the dues and fees for which the Respondent must reimburse Kubs are those he paid on May 30, 1989 In other words, those "arising from" rather than "subsequent to" the Respondent's unlawful conduct ORDER The National Labor Relations Board orders that the Respondent, Local 3, International Brother- hood of Electrical Workers, its officers, agents, and representatives, shall 1 Cease and desist from (a) Threatening to cause or attempting to cause General Electric Company to discharge or other- wise discriminate against John R Kubs or any other employee (1) for failure to tender to the Re- spondent periodic dues or initiation fees, without adequately advising him of his obligations, in viola- tion of Section 8(a)(3) of the Act, (2) for failure to pay a "military assessment" or advance dues, or (3) for seeking to comply with membership in the Union as a condition of employment, as authorized by Section 8(a)(3) of the Act, by payment of an agency shop fee (b) In any like or related manner restraining or coercing employees in the exercise of rights guar- anteed them m Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized by Section 8(a)(3) of the Act 2 Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Make John R Kubs whole for the monetary loss he suffered as a result of the discnmmation agamst him, by rescinding all charges imposed on him for his alleged delinquency, and by reimburs- ing to John R Kubs all dues and fees paid by him, arising from the Respondent's unlawful action against him in May 1989, in the manner set forth in the remedy section of the judge's decision as modi- fied (b) Permit John R Kubs, or any other employee of General Electric Company, to pay an agency shop fee rather than membership dues when the Company is party to an agreement requiring mem- bership in the Union as a condition of employment, as authorized by Section 8(a)(3) of the Act (c) Remove from its files, and ask the Employer to remove from the Employer's files, any reference to Kubs' unlawful discharge request and notify him in writing that it has been done and that evidence of this unlawful action shall not be used as a basis for future action against him (d) Post at its business office copies of the at- tached notice marked "Appendix " 5 Copies of the 'If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 299 NLRB No 153 996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD notice, on forms provided by the Regional Direc- tor for Region 22, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to members are customarily posted Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other mate- nal (e) Forward a sufficient number of signed copies of the notice to the Regional Director for Region 22 for posting by General Electric Company at its place of business in North Bergen, New Jersey, in places where notices to employees are customarily posted, if the Employer is willing to do so (f) Preserve and, on request, make available to the Board or its agents, for examination and copy- ing, all dues records, membership records, and re- ports, and all other records necessary to analyze the amount of reimbursement due under the terms of this Order (g) Notify the Regional Director in writing withm 20 days from the date of this Order what steps the Respondent has taken to comply APPENDIX NOTICE TO MEMBERS POSTD BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice WE WILL NOT threaten to cause or attempt to cause General Electric Company to discharge or otherwise discriminate against John R Kubs, or any other employee, (1) for failure to tender peri- odic dues and initiation fees without adequately ad- vising him of his obligations, in violation of Section 8(a)(3) of the Act, (2) for failure to pay a "military assessment" or advance dues, or (3) for seeking to comply with membership in the Union as a condi- tion of employment, as authorized by Section 8(a)(3) of the Act, by payment of an agency shop fee WE WILL NOT in any like or related manner re- strain or coerce employees m the exercise of rights guaranteed them in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment WE WILL make John R Kubs whole for the monetary loss he suffered as a result of our dm- cnmmation against him, by rescmdmg all charges imposed on him for his alleged delinquency, and by reimbursing to him all dues and fees paid by him, arising from our unlawful action against him in May 1989, plus interest WE WILL permit John R Kubs, or any other em- ployee of General Electric Company, to pay an agency shop fee rather than membership dues when the Company is party to an agreement re- quiring membership in the Union as a condition of employment, as authorized by Section 8(a)(3) of the Act WE WILL remove from our files and ask the Em- ployer to remove from the Employer's files any reference to Kubs' discharge request and notify him in writing that it has been done and that we will not use evidence of this unlawful action as a basis for future action against him LOCAL 3, INTERNATIONAL BROTHER- HOOD OF ELECTRICAL WORKERS Wayne Eastman, Esq , for the General Counsel Norman Rothfelti, Esq , for the Respondent DECISION STATEMENT OF THE CASE EDWIN H BENNETT, Administrative Law Judge On October 30, 1989, 1 a hearing was conducted on a com- plamt which had issued on August 30 alleging that in May Local 3, International Brotherhood of Electrical Workers (Union or Respondent) violated Section 8(b)(1)(A) and (2) of the Act by unlawfully enforcing a union-security contract with General Electric Company by attempting to cause that employer to discharge John R Kubs for reasons other than his failure to tender pay- ment of dues and imtiation fees required as a condition of employment More specifically, it is alleged (1) the Union failed in its fiduciary duty by refusing to furmsh an accounting to Kubs of money he allegedly owed, and (2) that it refused Kubs' request to be allowed agency fee status rather than full membership Respondent denies that any of its conduct towards Kubs violated the Act Additionally, it raises several de- fenses including the assertion that the General Counsel (Regional Director) exceeded his statutory authority in issuing the cmplamt because it improperly expanded upon the charge filed by Kubs on May 23 which alleged only that the Union violated Section 8(b)(1)(A) and (2) of the Act by seeking, on May 12, "to cause General Electric Co to terminate J R Kubs whose mem- bership was terminated for arbitrary reasons" On the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by the parties, I make the following 1 AU dates are in 1989 unless otherwise stated ELECTRICAL WORKERS IBEW LOCAL 3 (GENERAL ELECTRIC) 997 FINDINGS OF FACT I JURISDICTION General Electric Company (GE), the employer in- volved in this case, maintains an office and place of busi- ness in North Bergen, New Jersey, where it is engaged in the manufacture, distribution, and repair of electrical and other products GE annually sells and ships products from its North Bergen and other New Jersey facilities valued in excess of $50,000 directly to places outside the State of New Jersey Respondent admits, and I find, that GE is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that Respondent is a labor organization within the meaning of Section 2(5) of the Act II THE UNFAIR LABOR PRACTICES GE and the Union are parties to a collective-bargain- ing agreement effective for the period June 27, 1988, through June 30, 1991 The agreement provides in perti- nent part ARTICLE VI UNION SECURITY 1 Agency Shop (a) Subject to applicable law, all employees who, as of the date of this Agreement are members of the Union in good standing in accordance with the con- stitution and by-laws of the Union or who become members of the Union following the effective date of this Agreement, shall, as a condition of employ- ment, remain members of the Union in good stand- ing insofar as the payment of an amount equal to the periodic dues and initiation fees, uniformly re- quired, is concerned (b) Subject to applicable law, all present employ- ees who are not members of the Union and all indi- viduals hired after the effective date of this Agree- ment, shall, beginning on the thirtieth (30th) day following the effective date of this Agreement or the thirtieth (30th) day following employment, whichever is later, as a condition of employment, either become and remain members of the Union in good standing insofar as the payment of an amount equal to the periodic dues and initiation fees, uni- formly required, is concerned, or, in lieu of such Union membership, pay to the Union an equivalent service charge Kubs had been employed by GE since about 1955 and a member of the Union since about 1960 However, prior to the current agreement, or perhaps the predecessor contract, membership was not required as a condition of employment It appears that dues, at least during the period involved here, was $1270 a month Employees had the option of a dues-checkoff or a direct payment to the Union The record does not disclose any firm, estab- lished, required rule for the frequency of direct payments and Kubs, who utilized this method, regularly transmit- ted his dues anywhere from two to four times a year thereby apparently allowing himself to fall behind in payments from time to time Until the events of this case, however, the Union seems not to have seriously ques- tioned Kubs' practice and I conclude the Union acqui- esced in the procedure or at least was content to accept Kubs' money whenever received Consistent with his standard practice, Kubs mailed a check to the Union on January 18 for $100 which was promptly deposited No acknowledgment or receipt of any kind was returned to Kubs who, as good faith, be- lieved that he had cleared past delinquencies, covered future dues obligations through March, and was a member in good standing To his surprise, however, Sam Canmstraci, union business representative, wrote to him on May 12 as follows Enclosed find letter from Dues Department con- cerning your membership in Local #3, IBEW As of March 31, 1989 you are not a member as Local Union #3, IBEW in good standing In order to maintain your employment with Gen- eral Electric you have until the 22nd of May to send in a new application with a check in the amount of $81 70 for new initiation You can contact your shop steward for the appli- cations Failure to comply would mean termination from your job, according to the contract The enclosure referred to was a memo to Cannistraci from one M Cuiffo of the Union's dues department as follows This is to inform you that J R Kubs, S S #158- 26-3259, card #4477913 is no longer a member of L U #3- His membership has lapsed as of 12/31/88 and ceased as of 3/31/89 He was paid to 9/88 A copy of the letter was mailed to Charles DiMaria, GE's highest ranking official at the facility where Kubs was employed On May 22, after receipt of the letter, Kubs met with his supervisor at work, Nick Barber, the shop superin- tendent, in his office at which the union shop steward, Howie Lightcap was present throughout Both men warned Kubs that if he did not pay the $81 70 he would be fired After some discussion, Barber telephoned Can- mstraci using a speaker telephone and there then ensued a conversation involving all four men The account of this meeting and a subsequent one on May 30 is based on the testimony of Kubs who im- pressed me as a credible witness not given to exaggera- tion or distortion despite his imprecision on some points and a degree of uncertainty regarding whether or not certain remarks were made either at this meeting or at the followup meeting involving the same participants, or perhaps at both meetings In reconstructing these meet- ings it is not significant when critical statements were made, only that they were To the extent that Cannistra- ces testimony disputes that of Kubs' I have credited Kubs as I consider the former an unreliable witness 998 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD whose evidence is a paradigm of obfuscation, equivoca- tion, and evasion Barber and Lightcap did not testify Kubs protested the Union's failure to specify a break- down of the money claimed to be owed by him He in- sisted that $81 70 could not accurately reflect his debt, in light of his $100 payment in January, and as a conse- quence he told Canmstraci that in the future he wanted to pay an agency fee and not be a member of the Union Kubs claimed entitlement to such status in view of the Union's action in terminating his membership as asserted in Canmstraces May 12 letter Canmstraci rejected all re- quests for an agency fee status (repeated several time by Kubs) and warned Kubs he had no choice but to pay the $81 70 and rejoin the Union as Kubs "belonged to the Union" and "was a Union member" despite the letter's contrary assertion In light of Canmstraces adamant position on agency fee, Kubs asked that at least he be given an itemized breakdown of the amount claimed, talung into account his $100 payment Barber joined Kubs in voicing this re- quest Canmstraces reply was no more informative or en- lightening than were his comments regarding agency fee He told Kubs that the Union's dues department was not obliged to furnish such accounting and, in fact, could tell him to "kiss my ____ " After further discussion along the same lines Canmstraci agreed to extend the deadline for payment of the $81 70 until May 30 and a notation to this effect was endorsed on the May 12 letter and signed by Lightcap and Barber Cannistraci confirmed this un- derstanding by letter to Kubs dated May 22 stating in pertinent part "as per our conversation on May 22 your employment with G E has been extended from May 22nd to May 30th" In the interim Kubs was told either to resolve his "problem with the dues department" or send in "a check in the amount of $81 70 for new ini- tiation "2 As directed by the letter Kubs telephoned Mary Cuff° of the dues department, the person who had sub- mitted the memo to Canmstraci that he in turn forward- ed to Kubs along with the May 12 letter Kubs requested an accounting of his dues payments and was told by Cuiffo that the Union did not have to tell him anything as he had been "terminated from the Union" Kubs then asked her to explain why he had been terminated in De- cember 1988 inasmuch as his $100 check had been cashed in February 1989 Again, Cuiffo replied that "I don't have to inform you of anything "3 2 It Is of Interest in passing to note that although Qumistraci denied any direct conversation with Kubs on May 22, his letter of that very date to Kubs begun with a reference to "our conversation" 3 Respondent denies that Cuiffo is its agent and thus not responsible for her conduct in this case The denial is without merit "Actual authoriza- tion or subsequent ratification is not required under the Act to hold a person responsible for the acts of another as agent Common law rules of agency govern, authority may be implied or apparent, as well as ex- press" NLRB v Electrical Workers 1BEW Local 3, 467 F 2d 1158, 1159 (2d Cir 1972) When Cantustraci forwarded to Kubs the memo Cuff° had sent him regarding Kubs' alleged dues delinquency and thereafter told Kubs to resolve his problems with the dues department, he vested Oaf° with apparent authority to deal with Kubs concerning any ques- tion relating to his union dues See Restatement 2d, Agency § 8(aX1958) la]pparent authority results from a mamfestation by a person that an- other is his agent, the manifestation being made to a third person and not, as when authority is created, to the agent" See also Alliance Rubber Co. On May 30 Kubs returned to Barber's office and met with him and Howie Lightcap Kubs turned over a check for $81 70, as previously demanded, made out to Respondent, and completed two forms given to him by Lightcap One form is headed "Application for Member- ship in the Electrical Workers Benefit Society" and the other merely contains some personal information sup- plied by Kubs This second page was photocopied by Barber with Kubs' check for $81 70 superimposed there- on In addition, pretyped on the second page was a breakdown of the $81 70 as follows "$1000 Initiation Fee, $1 50 Military Assessment, $6 70 First months dues, and $63 50 Five months at $1270 per month" The form also contains Lighcap's notation that he received the $81 70 and Barber's notation that Kubs' membership was paid in advance through October, a fact he confirmed in a phone call to Canmstraci Dunng the conversation Kubs again asked to be given agency shop status, a re- quest again refused by Cannistraci who insisted that Kubs was required to rejoin the Union Barber informed Canmstraci that he had possession of the check and would mail it to him as indeed he thereafter did Discussion The Procedural Defense Paragraph 10 of the complaint alleges that "on or about May 30, 1989, Respondent, by its agent Sam Can- mstraci, refused to accept the Charging Party's request to pay an agency fee" Respondent seeks dismissal of this count on the grounds that It constitutes an improper ex- pansion of the charge which alleges only that Respond- ent, on about May 12, "attempted to cause General Elec- tric Co to terminate J R Kubs, an electrical mechanic, whose membership was terminated for arbitrary rea- sons" The subject matter of this defense has recently re- ceived extensive consideration by the Board in Nickles Bakery of Indiana, 296 NLRB 927 (1989) In that case the charge alleged a violation of Section 8(a)(3) predicat- ed on disciplinary action taken against the charging party in April and September 1987, whereas the complaint al- leged a violation of Section 8(a)(1) based on the compa- ny's maintenance of an unlawful no-solicitation rule, be- ginning in April On a Motion for Summary Judgment the Board remanded the case to the Regional Director to determine, on a fuller record, whether or not the com- plaint allegation was closely related to the charge allega- tion and therefore subject to further processing Al- though a substantial issue in Nickles is not present here, 1 e, the effect of catchall "other acts" language in an Section 8(a)(1) charge as the basis for permitting a wide range of complaint allegations (the Board concluded that 8(a)(1) complaint allegations were not exempt from the requirement they be closely related to the charge allega- 286 NLRB 645 (1987) Quffo's job in the dues department (her precise function and dunes are not revealed m the record) coupled with Canna- traces conduct just descnbed, is sufficient to cloak Cuiffo with all the earmarks of at least a special or limited purpose agent, 1 e, "an agent au- thonzed to conduct a single transaction or series of transactions not in- volving a continuity of service" Restatement 2d, Agency, § 3(2)(1958) Accordingly, Respondent is responsible for all of Quffo's statements and conduct at issue here Alliance Rubber Co. supra ELECTRICAL WORKERS IBEW LOCAL 3 (GENERAL ELECTRIC) 999 bons by virtue of the "other acts" language) that deci- sion nevertheless reexamined the extent to which a charge must be related to allegations of the complaint in order to survive attack on 10(b) grounds which restricts complaints to a previously filed charge and forbids the Board from initiating complaints As noted by the Board, the Supreme Court's Fant Milhng4 decision defines the relationship the one must bear to the other In that case, the Court of Appeals had held that Section 10(b) of the Act precluded a complaint allegation of an 8(a)(5) violation based on a unilateral change occurring subsequent to the charge which al- leged only a general refusal to bargain in good faith The lower court reasoned that the complaint did not faithful- ly reflect the facts recited in the charge The Supreme Court (Fant Milling, supra at 307-308) rejected this re- strictive approach and, noting its own earlier precedent, concluded it was statutonly permissible for the Board to deal "adequately with the unfair labor practices which are related to those alleged in the charge and which grow out of them while the proceeding is pending before the Board" The Court further expounded the statutory scheme as follows A charge filed with the Labor Board is not to be measured by the standards applicable to the plead- ing in a private lawsuit Its purpose is merely to set in motion the machinery of an inquiry NLRB v I & M Electric Go, 318 U S 9, 18 The responsibility of making that inquiry, and of framing the issues in the case is one that Congress has imposed upon the Board, not the charging party To confine the Board in its inquiry and in framing the complaint to the specific matters alleged in the charge would reduce the statutory machinery to a vehicle for the vindication of private rights This would be alien to the basic purpose of the Act The Board was cre- ated not to adjudicate private controversies but to advance the public interest in eliminating obstruc- tions to interstate commerce, as this Court has rec- ognized from the beginning NLRB v Jones & Laughhn, 301 U S 1 Once its junsdiction is invoked the Board must be left free to make full inquiry under its broad in- vestigatory power m order properly to discharge the duty of protecting public rights which Congress has unposed upon it There can be no justification for confining such an inquiry to the precise particu- lanzations of a charge [Fant Milling at 307-308 Pursuant to this policy, the Board has fashioned a test for determining the sufficiency of the charge under the "closely related" test The Nickles Bakery decision reaf- firms that test explicated in Redd-I Inc , 290 NLRB 1119 (1988), as requinng a factual and legal nexus between the charge and complaint measured by the following factors "First, the Board will look at whether the otherwise un- timely allegations involve the same legal theory as the al- legations in the pending timely charge Second, the Board will look at whether the otherwise untimely alle- gations arise from the same factual circumstances or se- quence of events as the pending timely charge Finally, the Board may look at whether a respondent would raise similar defenses to both allegations" Nickles Bakery, supra, 927 Application of the foregoing principles and standards leaves no doubt that the complaint and charge here are so substantially intertwined as to satisfy the "closely re- lated" test 5 As already discussed in greater detail both the charge and complaint arise from the identical factual circumstances and events, i e, the Union's efforts in May 1989 to secure Kubs' discharge for allegedly failing to meet his union membership obligations, the same union officials engaged in an unbroken and continuing course of conduct upon which both are based, the same section of the Act allegedly was violated under both theones of violation, and the Union's defenses actually raised, let alone those it might reasonably argue, are substantially similar in both cases, i e, (1) Respondent did not engage in the conduct, and (2) all conduct was permissible in any event because Kubs allowed his membership to lapse Indeed, the very conduct relied on by the Union in its defense created the theory of violation in the com- plaint Thus, Kubs' request for, and rejection of, agency shop status was prompted in large measure by the Union's very act of terminating his membership The agency shop complaint allegation is born directly and immediately from the Union's conduct precisely attacked in the charge Accordingly, I conclude that the complaint allegations are in the same legal class as those m the timely alleged charge, they implicate the same sequence of events for the same objective (enforcement of a umon-secunty clause) as in the pending charge, and they both require consideration of similar legal issues in defense To re- quire any closer relationship than exists here would be tantamount to imposing on a charging party an obliga- tion to recite in the charge the language of the complaint in haec verba The variance between charge and com- plaint is well within permissible limits See Roslyn Gar- dens Tenants Corp, 294 NLRB 506 (1989) Equally without ment is Respondent's closely related argument that it was denied due process by the Court's refusal to permit inquiry of Kubs concerning his inten- tion in filing the charge, the remedy he personally seeks, and his conversations with Agency personnel with whom he consulted m preparing the charge and investi- gating the case, all for the purpose of demonstrating that the complaint does not faithfully reflect Kubs' personal desires No lengthy discourse is required to dismiss this contention as totally failing in the recognition that the Board's proceedings are for the purpose of vindicating public interests and not pnvate grievances Fant Milling, supra That the General Counsel, and not Kubs, framed the issue is, ironically, all to Respondent's advantage Al- though not alleged in the charge or complaint, Kubs did testify that he not only wanted agency fee status but a 5 This case does not raise any tune-bar problems as the complaint was 4 NLRB v Fang Milling Co, 360 US 301 (1959) served well within 6 months of the conduct alleged as unlawful 1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD lower fee than the equivalent of union dues At the hear- ing General Counsel asserted several times that this case involved lower fee issues consonant with the decision of the Supreme Court in Communications Workers of Amer- ica v Beck, 487 U S 735 (1988) However, in his brief (p 12) General Counsel took "the position that the resolu- tion of this case by the Court does not require the reso- lution of any Beck issues" Accordingly, although I find infra that Respondent violated the Act as alleged in the complaint, no consideration will be given to such ques- tions as whether or not the Union was on notice that Kubs wanted to pay a fee for representational purposes only, the obligation, if any, of the Union under the cir- cumstances here to inform Kubs that he could satisfy his union-security obligation by a reduced fee, what notice must be given by Respondent to its members of the fee structure, and, the scope of the remedial relief in this case concerning the amount of agency fee to be paid As General Counsel also states in his brief (p 12), it is to be trusted that Respondent will "consider applicable law in determining that fee" We turn then to the substantive violations The Breach of the Fiduciary Duty and Demand for Improper Fees It is by now hornbook law that a union owes a fiduci- ary duty to employees it represents as the exclusive bar- gaining representative to deal fairly and honestly with them And if a union fails in this fiduciary duty, it for- feits the right granted by the Act to demand the dis- charge of an employee, pursuant to a umon-secunty clause, who becomes delinquent m his dues This fiduci- ary duty translates, at a minimum, to the fulfillment of all the following prerequisites to a demand for discharge, a statement of the precise amount owed, the method of computation, and a reasonable opportunity for the em- ployee to meet his dues obligation NLRB v Hotel & Restaurant Employees Local 568 (Philadelphia Sheraton), 320 F 2d 254 (3d Cir 1963), enfg 136 NLRB 888 (1962) The facts of this case simply elimmate any serious con- tention that Canmstracf s letter of May 12 to Kubs com- plied with the Philadelphia Sheraton requirements Not only did Respondent fail then to compute the amount claimed, it consistently, adamantly, and arrogantly failed and refused to ever provide Kubs with such computation despite his repeated requests for same Indeed, through the conclusion of the hearing we still are without benefit of a clear understanding as to how the Union computed his claimed dues arrearage, particularly in light of the $100 payment in January In reaching this conclusion I refer notably to Canmstraces letter of May 12, his re- marks on May 22 and 30 and, of course, Cuiffo's peremp- tory dismissal of Kubs' requests for an accounting be- tween these two dates (This is not to suggest that absent such request the Umon is relieved of its obligation to provide an accounting prior to initiating an employee's discharge ) Having never provided Kubs with a satisfac- tory accounting, it follows that the Union could not law- fully request his discharge for nonpayment of dues It follows further that Kubs could not and has not been af- forded a reasonable time to satisfy his dues obligation The breakdown of the $81 70 finally given to Kubs on May 30 is not a cure to the violation as argued by Re- spondent, but serves only to intensify the disease Even if it constituted a sufficient accounting, which it does not, Kubs was required to pay the money or be fired that very day Thus, the Union would have failed in its fidu- ciary duty by not affording Kubs a reasonable time in which to meet his dues obligation What is reasonable always depends on particular circumstances but mstanta- neous satisfaction, such as was demanded by Respondent, is the antithesis of reasonableness Furthermore, the item- ization, such as it was, did not address the core issue, namely a clear specification of the months covered by his earlier $100 payment, and the exact amounts owed for past dues To make matters even worse, that May 30 breakdown projected a dues obligation 6 months in the future (through October 1989) and conditioned Kubs' employment on payment of dues for months not yet worked and on moneys not yet obligated, for a period of time when Kubs' employment under a union-security clause is only potential and speculative A demand for dues as a condition of employment under these circum- stances is akin to requiring dues when there is no con- tract in effect and therefore unlawful See, e g, Chestnut Hill Bus Corp, 270 NLRB 212 (1974) This demand for future payments also is inconsistent with the unsupported assertion Kubs was in arrears By presenting Kubs with conflicting claims in this manner we have a further dem- onstration of arbitrary dealmg in disregard for the statu- tory obligation to deal fairly Such conduct evidences a violation of Section 8(b)(1)(A) Helmsley-Spear, Inc , 275 NLRB 262 (1985) I also agree with General Counsel that the demand for a new initiation fee under the circumstances constituted a further violation of Section 8(b)(1)(A) The Union's obli- gation to deal fairly and honestly with represented em- ployees imposes the same need to clearly explain the cir- cumstances justifying such fee as is required in justifying a demand for dues Kubs never was advised of what union rules, if any, permitted or compelled a new initi- ation fee Since he never was informed of the particulars of his alleged dues delinquency, he similarly was not in- formed of the requirement for a new initiation fee in the event of such delinquency Under the circumstances here the demand for a new =nation fee was an arbitrary ex- ercise m raw power and a breach of the fiduciary duty Teamsters Local 122 (August A Bush & Go), 203 NLRB 1041 (1973), enfd 502 F 2d 1160 (1st Cir 1974) Finally, General Counsel also argues that the demand to Kubs to pay what the Union has labelled a "military assessment" as a condition of continued employment, constitutes an additional violation At least prior to the Supreme Court's decision in Beck, supra, Board law did not distinguish between moneys earmarked for collective bargaining, as opposed to "institutional" purposes and union-security clauses permitted demand for membership payments that were periodic, regular, and uniformly re- quired If such payments did not contravene public policy, the Union permissibly could require such pay- ments See Detroit Mailers Local 40, 192 NLRB 951 (1971), and the Court's discussion of this issue in Beck, ELECTRICAL WORKERS IBEW LOCAL 3 (GENERAL ELECTRIC) 1001 supra at fn 7 which casts substantial doubt on the con- tinued vitality of that holding However, there are cru- cial differences between Detroit Mailers and the instant case which, in my view, make it unnecessary to reach the Beck rationale in this case, quite apart from General Counsel's disclaimer on this subject In Detroit Mailers the union utilized part of its regularly collected dues as a payment for an old age pension and mortuary fund The Board, as noted by the Supreme Court, repudiated an earlier holding that would have considered such portion of the dues as special purpose funds or assessments not related to collective bargaining and therefore not subject to mandatory collection pursuant to a union-secunty agreement The record before the Board in Detroit Mail- ers, and upon which its holding was predicated, demon- strated these moneys had been a regular part of the peri- odic dues structure and uniformly required as a condition of membership By contrast, the record here is resoundmgly silent con- cernmg not only the nature and purpose of "military as- sessment" let alone whether or not it is periodic regular, and uniformly required of all members Unlike Detroit Mailers, the payment here is not a part of the dues struc- ture and in fact is characterized by the Union as a special assessment Therefore, apart from whether or not Beck would render the military assessment here uncollectible pursuant to a union-security agreement because its pur- pose may be for other than collective-bargaining matters, I conclude that by labelling the payment an assessment it presumptively is not part of the monthly dues which is all the Union may demand under the second proviso to Section 8(a)(3) NLRB v General Motors Corp, 373 U S 734, 742 (1963) This presumption the Union has failed to overcome on this record As the Union has knowledge of the facts which would justify its demand for such fee, it bears the burden of producing that evidence See McCann Steel Co v NLRB, 570 F 2d 652, 654 (6th Cir 1978) I do not adopt General Counsel's view that the situa- tion is governed by Teamsters Local 959 (RCA Service), 167 NLRB 1042 (1967), for it was this decision which the Court in Beck found to have been repudiated by the Board in Detroit Mailers I find simply that, given the rubric utilized by the Union in referring to the payment as a military assessment, and there bemg no other evi- dence on this issue, the Union has failed to demonstrate that such required payment is permitted pursuant to the language of the second proviso to Section 8(a)(3) as "periodic dues, initiation fees, and assessments (not in- cluding fines and penalties) uniformly required as a con- dition of acquiring or retaining membership" I also reject Respondent's suggested defense that Kubs was not entitled to statutory protection because he was a willful evader of his union dues obligations The record conclusively refutes such contention Kubs at all times acted in good faith to pay his required dues, he followed an established and accepted practice of periodic pay- ments, and when informed of a claimed delinquency he made every effort to determine the details of the claim 6 Under Detroit Mailers the use of the funds must not be for a purpose inimical to public policy only to be rebuffed time and again by the Union Even if Kubs could be considered as neglectful or inattentive to his union obligations, a view to which I am not inclined, the Union was not relieved of its fiduciary duty under Philadelphia Sheraton, Helmsley Spear, supra, R H Macy & Co, 266 NLRB 858 (1983), a case finding a violation by this very Respondent of the very same sections of the Act for breach of the same fiduciary duty involved in the instant case Rejection of Kubs' request for agency fee status The evidence is undisputed that Kubs sought to remove himself from union membership and comply with the union-security clause in the collective-bargaining contract by acquiring an agency fee status Although that contract clause is entitled "Agency Shop" and de- fines required membership solely "as the payment of an amount equal to the periodic dues and initiation fees" and notwithstanding the Union's assertion that Kubs' membership had ceased, the Union repeatedly refused Kubs request for agency fee status and insisted he become and remain a full member As Canmstraci so colorfully and unabashedly put it, Kubs "belonged to the Union" Respondent defends its action on the grounds that Kubs could not legally free himself from the grip of union membership unless and until he proclaimed, in no uncertain terms, that he resigned Respondent's view of the law is contrary to all precedent and is rejected In NLRB v General Motors Corp, 373 U S 734, 742 (1963), the Supreme Court stated Moreover, the 1947 amendments not only abolish the closed shop but also made significant alterations as the meaning of "membership" for the purposes of union-security contracts Under the second proviso to § 8(a)(3), the burdens of membership upon which employment may be conditioned are expressly limit- ed to the payment of initiation fees and monthly dues It is permissible to condition employment upon membership, but membership, insofar as it has significance to employment rights, may in turn be conditioned only upon payment of fees and dues "Membership" as a condition of employment is whittled down to its financial core This Court has said as much before in Radio Officers v NLRB, 347 US 17,41 This legislative history clearly indicates that Con- gress intended to prevent utilization of union securi- ty agreements for any purpose other than to compel payment of union dues and fees Throughout the decision the Court emphasizes that em- ployees may not be discharged for "non-membership" so long as dues and fees are tendered, whether the form of union secunty is labeled "union shop" or "agency shop" Kubs was seeking to avail himself of the right to agency shop status accorded him by the Supreme Court which held that where, as here, the union-security clause is framed as an "agency shop" the option of membership rests exclusively with the employee General Motors, supra, 744 The only aspect of membership that can be 1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD imposed as a condition of employment is the payment of dues and fees Moreover, the contention that Kubs had to voice the word resign (the "R" word as counsel phrased it) is un- fathomable even if Kubs did not have the option afford- ed by the contract language Respondent had terminated Kubs' membership, or so it told him He was Informed in writing that he was not a member, that his membership lapsed, that his membership ceased, and that he had to pay a new initiation fee and rejoin Having been ex- pelled, to have required his resignation would have been a redundancy, the performance of a futile act, and, in no uncertain terms, just plain silly And, if more need be said, it is "unequivocally clear that the membership relationship is a voluntary one which a member can terminate when, and if, he choos- es" Hershey Foods Corp, 207 NLRB 897 (1973) There- fore, even if Respondent did not mean what it said and somehow secretly considered Kubs a member, he re- tamed the absolute nght to resign and he could accom- plish this objective without resort to use of that magical word All that is required is that the employee convey his intent to be free of full membership See Carpenters Seattle Council (Gordon Construction), 277 NLRB 530 (1985) (and cases cited therein) Canmstraci did not have to guess at Kubs' intent, he understood it full well as evi- denced by his responses to Kubs He parried every refer- ence to Kubs having been dropped from membership and his request for an agency fee, by stating that it was beyond consideration because Kubs "belonged to the Union" and had to be a member In any event, by re- questing agency fee status Kubs was seeking "financial core" membership, a status less than full membership Such request therefore was the practical equivalent of a resignation, if one was required, an act Respondent was not free to deny Hershey Foods, supra See also Pattern Makers League v NLRB, 473 U S 95 (1985) Summarizing the foregoing, Respondent restrained and coerced Kubs in violation of Section 8(b)(1)(A) of the Act by threatemng to cause, or attempting to cause, his discharge for alleged nonpayment of union dues under circumstances where it (1) failed to provide Kubs with an accounting of his alleged debt, (2) failed to afford a reasonable time for extinguishing the debt, (3) demanded a new initiation fee without an adequate explanation therefore, (4) demanded payment of a military assessment in addition to the regular dues, and (5) demanded 6 months of future dues without demonstrating that it is a regular and uniform requirement Respondent further violated Section 8(b)(1)(A) by rejecting Kubs' request to satisfy his union "membership" obligation by payment of an agency shop fee and upon insisting that he become and remain a full union member It follows, and I find, that Respondent also violated Section 8(b)(2) of the Act when it transmitted to GE the aforesaid demands and threats made upon Kubs as evidenced by the letters of May 12 and 22 sent to Charles DiMana and the conver- sations on May 22 and 30 involving Canmstraci and Barber CONCLUSIONS OF LAW 1 GE is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 Respondent Union is a labor organization within the meaning of Section 2(5) of the Act 3 By threatening to cause and attempting to cause GE to discharge or otherwise discriminate against John R Kubs, or any other employee, for failure to pay periodic dues in the circumstances described below, Respondent violated Section 8(b)(1)(A) and (2) of the Act (a) Without adequately advising him of his obligations as to any amounts of money owed, and the requirement to pay a new initiation fee (b) Without affording him a reasonable time in which to pay any lawfully required dues (c) By demanding the payment of a "military assess- ment" and dues for 6 months in advance (d) By refusing his request to pay an agency shop fee and by insisting upon full membership thereby condition- ing employment upon reasons other than the failure to tender dues in violation of Section 8(a)(3) of the Act 4 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meamng of Sec- tion 2(6) and (7) of the Act THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and take certain af- firmative action designed to effectuate the purposes of the Act Having exacted moneys from Kubs under an il- legal threat of discharge and never having presented any evidence concerning what moneys, if any, he legitimate- ly owed, restoration of the status quo ante requires that all such moneys be refunded to Kubs with interest calcu- lated in accordance with the principles prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987) Fur- thermore, full restitution is particularly appropriate here for two additional reasons First, there is the possibility that Kubs may be entitled to pay an agency fee that is less than a full member's dues Although an agency fee generally is equivalent to membership dues, this record, as discussed above, is insufficient for determining wheth- er or not the principles of the Beck decision are applica- ble in the instant case A resolution of this issue, as it concerns Kubs' past, as well as future obligations, must await further proceedings Secondly, to restore the status quo ante, I also recommend that the Union be ordered to convert Kubs from a full member to an agency fee "member" effective as of the date of his request on May 22, 1989, thereby giving rise to consideration of the ap- plicability of the Supreme Court's decision in Beck, supra The remedy to this violation shall also require the Union to expunge from its records any reference to Kubs' alleged dues delinquency, notify Kubs in writing that it has done so and that it shall not be used as a basis for future action against him The Union also must re- quest GE to remove from its files any reference to the Union's unlawful demand for Kubs' discharge and notify Kubs in writing that this has been done The Board has ELECTRICAL WORKERS IBEW LOCAL 3 (GENERAL ELECTRIC) 1003 held, in a case involving this Respondent, that expunc- tion remedies are necessary in cases such as the instant one R H Macy & Go, 266 NLRB 858 (1983) This leads to my recommendation that a broad order issue protecting employees of employers other than those of GE Respondent is a recidivist having committed sub- stantially similar violations of Section 8(b)(1)(A) and (2) in R H Macy, supra, as it committed here In addition, the evidence shows that the violation against Kubs origi- nated in and was orchestrated by, the Union's interna- tional headquarters Thus, Canmstraci acted only after receiving instructions from the headquarters of the Union, he referred Kubs to that headquarters to "cor- rect" his problem where, as found, the violation was compounded, and headquarters' control of the entire matter was colorfully and graphically demonstrated by Canmstraci who, when asked by GE and Kubs for an itemized breakdown of the alleged dues arrearage, re- plied that the dues department was not required to fur- nish one and could tell him to "kiss my " Conse- quently, there is a real likelihood the type of violation committed here will be repeated at other employers Manifestly, there is nothing unique about Kubs' situation at GE to believe that this case is an isolated incident lim- ited by peculiar facts to GE alone Moreover, this Respondent has a long history of disre- garding the dictates the dictates of the Act The Court of Appeals for the Second Circuit recently observed that "Since 1960, Local 3 has been found to violate Section 8(b) of the National Labor Relations Act (the Act) at least twenty-three times", and "It was this pattern of misconduct that led us, four terms ago, expressly to rep- rimand Local 3 as an incorrigible secondary boycotter with a two-decade-long history of secondary boycott ac- tivity" NLRB v Electrical Workers Local 3 (Telecom Plus), 861 F 2d 44 (2d Cir 1988) While the history re- ferred to by the Court concerned violations under Sec- tions 8(b)(4) and 8(b)(7) of the Act, this blatant and egre- gious disregard for the purposes of the Act should not be ignored in fashiomng a remedy, where, as here, Re- spondent also is a repeat violator of the statutory provi- sions involved in the instant case, and where the viola- tions are pursuant to policy at the highest level [Recommended Order omitted from publication ]