Electrical Workers Local 1507

ELECTRICAL WORKERS LOCAL 1507 International Union of Electrical, Radio and Ma- chine Workers, Local Union No. 1507, AFL- CIO (General Electric Company) and David Ortiz. Case 32-CB-603 September 29, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENEII.O On June 12, 1980, Administrative Law Judge Gerald A. Wacknov issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as so modified.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modi- fied below, and hereby orders that the Respondent, International Union of Electrical, Radio and Ma- chine Workers, Local Union No. 1507, AFL-CIO, San Jose, California, its officers, agents, and repre- sentatives, shall take the action set forth in the said recommended Order, as so modified: i Respondent excepts to that portion of the Administrative Law Judge's recommended Order requiring that Respondent reimburse Charg- ing Party Ortiz for loss of wages and other expenses incurred as a result of having to secure his rights through recourse to the Board's processes. We find merit in this exception Since we conclude that the defenses which Respondent has raised herein are debatable, rather than frivolous. we find that the extraordinary remedy recommended b the Administra- tive Law Judge is unwarranted. Heck's Inc.. 215 NLRB 765 (1974); 7ide Products, Inc., 194 NLRB 1234 (1974). In his recommended Order, the Administrative Law Judge also pro- vided that Ortiz be reimbursed for any dues or other fees deducted from his wages, with interest thereon. He inadvertently failed, however, to in- clude a reference to Florida Steel Corporation, 231 NLRB 651 (1977). which sets for the manner in which the interest rate shall be determined. We shall modify the Order accordingly Member Jenkins would provide interest in accordance with his partial dissent in Olympic .Medical Corpora- tion. 250 NLRB No. II (1980). In par. (c) of his recommended Order, the Administrative Law Judge used the broad cease-and-desist language in any other manner." Howev- er, we have considered this case in light of the standards set forth in Hiikmott Food, .,c., 242 NLRB 1357 (1979). and have concluded that a broad remedial order is inappropriate since it has not been shown that Respondent has a proclivity to violate that Act or has engaged in such egregious or widespread misconduct as to demonstrate a general disre- gard for the employees' fundamental statutory rights Accordingly, we have modified the recommended Order by substituting the narro'A in- junctive language. "in any like r related manner 252 NLRB No. 66 1. Substitute the following for paragraph l(c): "(c) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the following for paragraph 2(a): "(a) Notify the Employer, in writing, to cease giving effect to the membership dues check-off card of David Ortiz, and reimburse Ortiz for all dues or other fees deducted under such authoriza- tion since July 17, 1979, with interest thereon, com- puted in the manner set forth in Florida Steel Cor- poration, 231 NLRB 651 (1977)." 3. Delete paragraph 2(b) and reletter the subse- quent paragraphs accordingly. 4. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONA. LABOR REILATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WI.1 NOT refuse to permit employees to rescind their membership dues-checkoff cards when presented with evidence or having knowledge that employees mistakenly signed such cards. WE wil.l. NOT submit membership dues- checkoff cards to the Employer after such cards have been effectively rescinded. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed them by Section 7 of the National Labor Relations Act. WE WILL notify General Electric Company to cease giving effect to the checkoff authori- zation of David Ortiz. WE WI.i. reimburse David Ortiz for all dues or fees deducted under such authorization since July 17, 1979, with interest. INTERNATIONAL UNION OF ELECTRI- CAL, RADIO AND MACHINE WORK- ERS, LOCAl. UNION No. 1507, AFL- CIO 473 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STAriN11NT OF I Hi CASEI GLRALDI) A. WACKNOV, Administrative Law Judge: Pursuant to notice, a hearing with respect to this matter was held before me in San Jose, California, on January 31, 1980. The charge was filed on August 21, 1979, by David Ortiz, an individual. On September 26, 1979, the Acting Regional Director for Region 32 of the National Labor Relations Board (herein called the Board) issued a complaint and notice of hearing alleging a violation by International Union of Electrical Radio and Machine Workers, Local Union No. 1507, AFL-CIO (herein called Respondent or the Union) of Section 8(b)(1)(A) of the National Labor Relations Act, as amended (herein called the Act). The parties were afforded a full opportunity to be heard, to call, examine and cross-examine witnesses and to introduce relevant evidence. Since the close of the hearing, briefs have been received from the General Counsel and counsel for Respondent. Upon the entire record and based upon my observa- tion of the witnesses and consideration of the briefs sub- mitted, I make the following: FINI)INGS OF FAc-r I. JURISDICTION General Electric Company, herein called the Employ- er, is a Delaware corporation with an office and manu- facturing facility located in San Jose, California, where it is engaged in the manufacture of electric motors. During the past calendar year the Employer, in the course and conduct of its business operations, purchased and re- ceived goods, materials, and supplies valued in excess of $50,000 directly from suppliers located outside the State of California, and sold and shipped products valued in excess of $50,000 directly to customers located outside the State of California. It is admitted, and I find, that the Employer is now, and has been at all times material herein, an employer engaged in commerce and in a business affecting com- merce within the meaning of Section 2(6) and (7) of the Act. II. HE lABOR ORGANIZATION INVOI.VEI) It is admitted, and I find, that Respondent is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. TriH UNFAIR l.AHOR PRACTICES A. The Issue The principal issue raised by the pleadings is whether the Union has violated Section 8(b)(l)(A) of the Act by acts and conduct in derogation of its fiduciary obligation to employee David Ortiz. B. The Facts The Union has represented a unit of the Employer's employees, currently consisting of some 280 individuals, for a number of years. Prior to the current contract there apparently had been no form of union-security clause embodied in any collective-bargaining agreement be- tween the parties. David Ortiz has worked for the em- ployer since April 8, 1974, and was a member of the Union for a 2-year period, from September 1974 until September 1976, at which time he withdrew his member- ship. Ortiz testified that thereafter frequent efforts had been made by the Union's chief steward, Joe Cognetti, and by Larry Mahone, steward, to encourage Ortiz to rejoin the Union, but Ortiz consistently refused. Negotiations for a new nationwide collective-bargain- ing agreement had been concluded on July 17, 1979, the same day that the employees returned to work at the San Jose plant after a plantwide vacation period. On this day, prior to commencing work, Ortiz was among a group of employees who were told by Chief Steward Cognetti that the new contract, unlike prior contracts, contained a union-security clause requiring that all unit employees belong to the Union and pay union dues, and that a $50 initiation fee would be waived for those employees who immediately joined the Union. Later that morning, ac- cording to Ortiz, he and Cognetti, who worked side by side, discussed some of the provisions which Cognetti believed were incorporated in the new contract, and Cognetti reiterated that Ortiz was obligated to join the Union and could avoid paying the initiation fee by join- ing immediately. That afternoon, Ortiz advised Cognetti that he had decided to immediately join the Union in order to avoid paying the initiation fee. Cognetti sum- moned the union steward, Mahone, who presented Ortiz with two copies of a dues and initiation fee checkoff au- thorization card, which apparently also operated as a union membership card. Ortiz filled out and signed both copies, and handed them to Mahone. Later that after- noon, Bob Clubb, president of the Union, approached Ortiz and stated, "I'm going to frame this card." On the morning of July 19, 1979, Clubb, who main- tained an office at the plant for the purpose of conduct- ing union business, invited Ortiz to the office and told Ortiz, in the presence of Mahone, that the Union's previ- ous information had been incorrect, and that union mem- bership was not required under the new contract. There- upon, Ortiz was given the option of rescinding the card which he had signed. Ortiz chose to exercise this option, and requested the return of his card. Clubb then, accord- ing to Ortiz, brusquely instructed Mahone to "Give him his f-ing card back," and the meeting concluded. Short- ly thereafter Mahone returned to Ortiz one signed copy of the authorization card and, in response to a question by Ortiz, stated that the second copy had already been submitted to the Employer, and that Ortiz would have to obtain it from the payroll office. Ortiz then requested the return of his card from Gail McDuffie, a payroll office employee, and was told that no such card had been submitted by the Union. Ortiz re- turned to Mahone and advised him of this, and Mahone said he would look into it. Later that day, Clubb, Cog- netti, and Mahone approached Ortiz at his machine, and Clubb advised Ortiz that the Employer's copy was the one that had been returned to Ortiz, and that the second 474 El.ECTRICAI WORKERS LOCAL 1507 copy had been destroyed. Moreover. Ortiz was told that the union representatives were doing him a favor by per- mitting him to rescind the card. To this remark Ortiz re- plied, "You didn't do me a favor by lying to me." On August 3, 1979, Ortiz noticed that union dues had been deducted from his paycheck. Upon asking McDuf- fie and Ernest Valentine, manager of employee and com- munity relations, why this had been done, Ortiz was told that the checkoff card had been submitted to the Em- ployer by the Union and that the Employer was obligat- ed to honor it. Ortiz remonstrated that he had been lied to and cheated by the Union. On the following Monday morning, Ortiz questioned Clubb about the matter. Clubb stated that Ortiz was "stuck" and that if he withdrew from the Union he would be fired within 10 days, pursu- ant to the terms of the contract. McDuffie corroborated the above testimony of Ortiz and further testified that on July 23, 1979, she received a group of nine authorization cards from the Union includ- ing the card of Ortiz, together with a list of those cards, and thereafter sent them to the appropriate department for processing. Manager Valentine also corroborated the testimony of Ortiz, and further testified that on July 17, 1979, Clubb came to Valentine's office and mentioned, during the course of discussing various provisions of the new con- tract, that the contract contained a "closed shop" provi- sion. Valentine corrected him stating that the contract contained a "maintenance of membership" clause rather than a closed shop provision, and pointed out the perti- nent language to Clubb in a copy Valentine had. Clubb replied that he was going to check with International representatives to verify Valentine's understanding of the contract language. Valentine testified that several days later Clubb advised Valentine that he had checked with International representatives of the Union and had been told that the contract did contain a maintenance-of-mem- bership clause rather than a clause making union mem- bership mandatory. Clubb, according to Valentine, ad- mitted that the Union did enroll some people in the Union based on that misunderstanding, and stated, "I'm going to give these people an opportunity to get out of the Union." Clubb testified that at no time did he approach Ortiz, along with Cognetti and Mahone, and have any conver- sation with Ortiz about Ortiz' dues checkoff card. Rather, according to Clubb, the only discussion of this matter with Ortiz took place in Clubb's office at which time Clubb explained that the union-security provision of the contract had been misinterpreted, and that in fact employees were not obligated to join the Union. Ortiz, being so advised, asked what could be done, and Clubb stated, "As far as I know, it's out of my hands, because once we sign these cards, we don't have any jurisdiction what to do with them, except turn them in." Clubb testi- fied that he had similar conversations, on an individual basis, with each of the 9 or 10 employees who had joined the Union that week. Cognetti denies that he told any employees on July 17, 1979. including Ortiz, that they would have to join the Union. Rather, Cognetti testified that he was approached by Ortiz on that day, and that Ortiz commenced the con- versation by inquiring about an initiation fee. Cognetti told Ortiz that the initiation fee would be waived for a period of time, and Ortiz stated that he wanted to join the Union. On a later date Ortiz said he wanted to get out of the Union. Cognetti replied that there was nothing that could be done, and referred him to Clubb. Mahone testified similarly to Cognetti. Mahone further stated that, contrary to the testimony of Ortiz, he was not in Clubb's office during Clubb's conversation with Ortiz concerning the terms and obligations of employees under the maintenance-of-membership provision of the new contract. Moreover, Mahone repeatedly testified that he "did not remember" returning any union card to Ortiz. C. Analysiv and Conclusions While the record is replete with serious conflicts in testimony, Clubb maintains that he told Ortiz, in Clubb's office, that the union representatives had misinterpreted the union-security provisions of the contract. As a result of this admission, Ortiz asked, according to Clubb, what could be done, and Clubb responded that once the dues- checkoff card is signed the Union has no alternative but to process it. According to Ortiz, the only conversation in Clubb's office occurred on July 19, 1979, and Re- spondent did not proffer testimony indicating that its version of the conversation occurred on any other date. Moreover, the record is clear that the dues-checkoff card of Ortiz was not submitted by the Union to the Employ- er until July 23, 1979. Thus, it is crystal clear that within several days after Ortiz signed a dues-checkoff card, based upon the belief. however acquired, that he was contractually obligated to join the Union and pay dues, Clubb advised Ortiz that this portion of the contract had been misinterpreted and that in fact such an obligation did not exist. Assuming that, as Clubb testified, Ortiz merely asked Clubb what could be done about this, Clubb was thereby placed on notice, given the context of the conversation, that Ortiz desired to rescind his prior authorization or at least wanted Clubb to explain the options available to him at that point. However, Clubb maintains that he stated nothing could be done, even though the dues-checkoff card signed by Ortiz was then in the Union's possession and had not yet been submitted to the Employer. Obviously, at this point, Clubb was obligated to truth- fully advise Ortiz of his available options, one of which was, of course, to rescind the prior authorization he had signed. However, according to Clubb, he chose to advise Ortiz that his signing of the card, albeit based on errone- ous information, was a fait accompli, and that having joined the Union, Ortiz was thereafter bound by the maintenance-of-membership provisions in the contract which included provisions for his discharge should he not remain a member. Clearly, by this conduct which Clubb attested to, the Union did not fulfill its fiduciary responsibility to deal fairly with Ortiz by truthfully, accurately, and specifical- ly informing him of his rights, duties, and obligations vis- a-vis the Union. See Disti/llerv. Rectifying, Wine and .4llied Workers' International Union of A4merica, Local Union 8. 475 DECISIONS OF NATIONAL LABOR RELATIONS BOARD AFL-CIO (Schenley Distillers, Inc., 242 NLRB 370 (1979); Chauffeurs, Salesdrivers & Helpers Union, Local 572, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Ralphs Grocery Company), 247 NLRB No. 108 (1980); Local 1445 United Food and Commercial Workers International Union, AFL- CIO (Gallahue's Supermarkets), 247 NLRB No. 151 (1980). Thus, according to Clubb, rather than advising Ortiz of his right to rescind the checkoff card, Clubb told Ortiz that nothing could be done, and Respondent thereafter turned in the dues-checkoff card to the Em- ployer, threatening Ortiz with certain discharge should he withdraw his union membership or cease to pay dues. Such conduct clearly constitutes a breach of Respond- ent's fiduciary duty, and violates Section 8(b)(1)(A) of the Act. I so find. The foregoing analysis assumes, arguendo, that Clubb is credited. However, I specifically do not credit either Clubb, Cognetti, or Mahone, and find that the sequence of events and concurrent conversations occurred substan- tially as described by Ortiz. Ortiz, who appeared to have a vivid recollection of the events herein, favorably im- pressed me as a credible individual, and his testimony, which was totally consistent and plausible on its face, was corroborated in many significant respects by the tes- timony of McDuffie and Valentine, whom I also credit. The testimony of the three union representatives, on the other hand, is inconsistent, implausible, and incomplete. Moreover, according to the credible testimony of Valen- tine, Clubb told him on July 19, 1979, that, based on the misunderstanding of the local union representatives, the employees would be given an opportunity to rescind the cards they had signed. Such testimony supports the ac- count rendered by Ortiz that, in fact, Clubb did give him such an opportunity to rescind his checkoff card, which opportunity Ortiz accepted without hesitation. I therefore find that the Union, after having permitted Ortiz to rescind the membership dues-checkoff card which he had signed as a result of misrepresentations made to him by union representatives, nevertheless sub- mitted the card to the Employer thereby causing the Employer to deduct such dues even though not author- ized by Ortiz. Such conduct evidences a blatant disre- gard of Respondent's fiduciary duty to Ortiz, and clearly constitutes a violation of Section 8(b)(l)(A) of the Act as alleged. I so find. CONCI.USIONS OF LAW 1. General Electric Company is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Respondent is a labor organization within the mean- ing of Section 2(5) of the Act. 3. By refusing to permit employee David Ortiz to re- scind his membership dues-checkoff card, or by submit- ting the membership dues-checkoff card to the Employer subsequent to the time Ortiz had effectively rescinded such card, Respondent has violated Section 8(b)(l)(A) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8(b)(1)(A) of the Act by refusing to permit David Ortiz to rescind his membership dues-checkoff card, or by submitting the card to the Employer subsequent to the time the card had been effectively rescinded, I shall recommend that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. I shall recommend that Respondent notify the Em- ployer, in writing, to cease giving effect to the checkoff authorization of David Ortiz, and that Respondent reim- burse David Ortiz for all dues or other fees deducted under such authorization since July 17, 1979, with inter- est thereon. Moreover, as Respondent's conduct evi- dences a willfull disregard of its fiduciary duty to em- ployees, Respondent shall be required to reimburse David Ortiz for his loss of wages and other expenses in- curred as a result of having to secure his rights through recourse to the Board's processes, with interest thereon. ORDER' The Respondent, International Union of Electrical, Radio and Machine Workers, Local Union No. 1507, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Refusing to permit employees to rescind their membership dues-checkoff card when presented with evidence or having knowledge that employees mistaken- ly signed such cards. (b) Submitting membership dues-checkoff cards to the Employer after such cards have been effectively rescind- ed. (c) In any other manner restraining or coercing em- ployees in the exercise of their rights guaranteed by Sec- tion 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Notify the Employer, in writing, to cease giving effect to the membership dues-checkoff card of David Ortiz, and reimburse Ortiz for all dues or other fees de- ducted under such authorization since July 17, 1979, with interest thereon. (b) Reimburse David Ortiz for his loss of wages and other expenses incurred as a result of having to secure his rights through recourse to the Board's processes, with interest thereon. (c) Post in conspicuous places at its business offices, meeting halls, and all other places where notices to mem- bers are customarily posted, including the Union's office at the Employer's premises, copies of the attached notice marked "Appendix." 2 Copies of said notice, on forms In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 2 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Continued 476 ELECTRICAL WORKERS LOCAL 1507 provided by the Regional Director for Region 32, after being duly signed by Respondent's authorized repre- sentative, shall be posted by it immediately upon receipt thereof, and be maintained by Respondent for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by Respondent to Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " insure that said notices are not altered, defaced, or cov- ered by any other material. (d) Deliver to the Regional Director for Region 32 signed copies of the attached notice marked "Appendix" in sufficient numbers to be posted by the Employer in places where its notices to employees are customarily posted, should it be willing. (e) Notify the Regional Director for Region 32, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 477