GreenTeam of San Jose

National Labor Relations Board - Board Decisions

Mar 22, 1996

320 N.L.R.B. 999 (N.L.R.B. 1996)

999
320 NLRB No. 119
GREENTEAM OF SAN JOSE
1 In adopting the judge’s finding that the Respondent Employer
violated Sec. 8(a)(3) and (1) of the Act, we do not rely on the
judge’s conclusion that the Union’s demand-for-discharge letter was
facially inadequate under the parties’ contract.
2 The judge inadvertently failed to conform the notice to be posted
by the Respondent Union with the Order and remedy section of his
decision. We do so here.
1 All dates below are in 1994 unless I say otherwise.
GreenTeam of San Jose and Scott Bailey
Sanitary Truck Drivers and Helpers Local Union
No. 350 affiliated with the International Broth-
erhood of Teamsters, AFL–CIO and Scott Bai-
ley. Cases 32–CA–13821, 32–CA–13920, and 32–
CB–4298
March 22, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On October 10, 1995, Administrative Law Judge
Timothy D. Nelson issued the attached decision. The
Respondent Union and the Respondent Employer filed
exceptions and supporting briefs.
The National Labor Relations Board has delegated
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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Orders as
modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent Union, Sanitary Truck
Drivers and Helpers Local Union No. 350, affiliated
with the International Brotherhood of Teamsters, AFL–
CIO, San Jose, California, its officers, agents, and rep-
resentatives, and the Respondent Employer, Green-
Team of San Jose, San Jose, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order except that the attached Appen-
dix A is substituted for that of the administrative law
judge.
APPENDIX A
NOTICE TO MEMBERS
POSTED 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 or-
dered us to post and abide by this notice.
WE WILL NOT cause or attempt to cause GreenTeam
of San Jose or any other employer to discharge or oth-
erwise discriminate against employees in violation of
Section 8(a)(3) of the Act.
WE WILL NOT invoke or threaten to invoke the dis-
charge provisions of an otherwise lawful union-secu-
rity clause against employees in order to collect
amounts which cannot lawfully be demanded from em-
ployees as a condition of their hire or tenure.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
WE WILL make Scott Bailey whole, with interest, for
any loss of pay or benefits he may have suffered as
a result of his discharge at our request by GreenTeam
of San Jose, during the 5-day period ending February
23, 1994.
WE WILL remove from our files any references to
the unlawful discharge and failure to reinstate Bailey,
and we will notify him in writing that this has been
done and that the discharge and failure to reinstate will
not be used against him in any way.
WE WILL refund $43 to Scott Bailey, with interest,
for September 1993 dues and a death and illness fund
assessment we collected from Bailey by threatening
him with discharge or a refusal to clear him for work
with GreenTeam or both.
SANITARY TRUCK DRIVERS AND HELP-
ERS LOCAL UNION NO. 350, AFFILIATED
WITH THE INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, AFL–CIO
Jeffrey Henze, Esq., for the General Counsel.
Michael Lynn, Labor Relations Representative, of Pleasanton,
California, for Respondent GreenTeam.
Duane B. Beeson, Esq. (Beeson, Tayer & Bodine), of San
Francisco, California, for the Charging Party/Respondent
Union.
Scott Bailey, pro se.
DECISION
STATEMENT OF THE CASE
TIMOTHY D. NELSON, Administrative Law Judge. I heard
these consolidated cases in trial in Oakland, California, on
March 15, 1995, pursuant to a consolidated complaint (com-
plaint) and notice of hearing issued in the name of the Gen-
eral Counsel of the National Labor Relations Board by the
Regional Director for Region 32 on May 27, 1994,1 against
Sanitary Truck Drivers and Helpers Local Union No. 350, af-
filiated with International Brotherhood of Teamsters, AFL–
CIO (the Union) and GreenTeam of San Jose (GreenTeam).
The complaint traced from an original charge filed by the
Union against GreenTeam on March 25, amended on April
1000 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Thus, the Union and GreenTeam admit that (a) the Union is a
labor organization within the meaning of Sec. 2(5) of the Act; (b)
GreenTeam is a California corporation, with offices and places of
business in San Jose, California, engaged in a refuse pickup and re-
cycling business; (c) GreenTeam has annual gross revenues in excess
of $500,000; (d) GreenTeam annually purchases and receives goods
and services valued in excess of $50,000 directly from sellers or
suppliers located outside California; (e) GreenTeam is an employer
engaged in commerce within the meaning of Sec. 2(2), (6), and (7)
of the Act; and (f) all charges filed against the Union and
GreenTeam were served on those parties on or about the dates they
were filed.
3 The Union’s attorney made certain arguments on the record, but
did not file a brief after the trial.
25, and from additional charges against both the Union and
GreenTeam filed on May 6 by Scott Bailey (Bailey).
The complaint alleges that the Union violated Section
8(b)(2) and (1)(A) of the Act when it demanded by letter
dated February 8 that GreenTeam discharge Bailey at the end
of his February 15 shift for his alleged noncompliance with
a governing union-security clause, a demand that GreenTeam
honored by discharging Bailey on February 16. The com-
plaint further alleges that the Union in various ways violated
fiduciary obligations owed to Bailey; thus it alleges that the
Union did not give Bailey proper notice of and a reasonable
opportunity to cure his alleged delinquency before making its
discharge demand. In addition, the complaint, as amended at
the trial, alleges two alternative, independent theories of vio-
lation by the Union of Section 8(b)(1)(A) and (2): As one
alternative, the complaint alleges that the amount demanded
by the Union for Bailey to cure his alleged arrearage improp-
erly included dues for the first 30 days he worked under the
union-security clause. As a second alternative, it alleges that
the amount the Union demanded from Bailey improperly in-
cluded ‘‘advance dues.’’ On brief, the General Counsel ad-
vances an additional, independent attack on the amount the
Union demanded, and eventually got, from Bailey before
clearing him for work—that it included a one-time, $10 as-
sessment for the Union’s death and illness fund. Also on
brief, the General Counsel advances yet one more theory of
8(b)(2) violation—that the Union unlawfully refused to treat
Bailey’s transmission to GreenTeam of a signed checkoff au-
thorization form as compliance with Bailey’s union-security
obligations, and unlawfully maintained its demand for his
discharge in the face of knowledge that Bailey had signed
and transmitted this form to GreenTeam.
The portions of the complaint against GreenTeam allege,
in substance, that GreenTeam violated Section 8(a)(3) and
(1) of the Act when, (a) it discharged Bailey on February 16,
despite having been put on notice and having reason to be-
lieve that Bailey had by then fulfilled his union-security obli-
gations, and (b) it failed to reinstate Bailey on or after Feb-
ruary 17, at times when it knew from the Union that Bailey
had cured his alleged arrearages and was cleared to work,
and at times when it had not replaced Bailey.
The Union and GreenTeam admit, and I find, that the
Board’s jurisdiction is properly invoked,2 but they each deny
the wrongdoing attributed to them in the complaint.
The General Counsel and GreenTeam filed posttrial briefs,
which I have considered.3 I will conclude, based on findings
and reasoning set forth below, that the Union independently
violated Section 8(b)(2) and (1)(A) when, (a) it demanded
Bailey’s discharge for nonpayment of a sum that included
amounts that the Union could not lawfully collect by invok-
ing the discharge provisions of the union-security clause; and
(b) it failed to revoke its discharge demand once it learned
that Bailey had signed a checkoff form and had turned it in
to GreenTeam. I will further conclude that GreenTeam vio-
lated Section 8(a)(3) and (1) when, (a) it fired Bailey even
though it had reasonable grounds to believe that the Union’s
discharge demand was unlawful, and (b) it failed to reinstate
Bailey after it had gotten proof in the form of a union clear-
ance that Bailey had satisfied those alleged obligations.
FINDINGS OF FACT
I. BACKGROUND
A. GreenTeam’s Operations; the Effective Date of the
Extension Agreement Bringing Recyclables Drivers and
Helpers Under Union Contract Coverage; and Relevant
Union-Security Provisions
GreenTeam began operations on July 1, 1993, when it
took over a garbage pickup and disposal contract with the
city of San Jose, California, a contract formerly held by
Waste Management, Inc., whose drivers and helpers were
represented by the Union. On assuming Waste Management’s
garbage pickup duties, GreenTeam also signed a labor agree-
ment with the Union covering the drivers and helpers, called
the ‘‘Garbage Service Agreement’’ (garbage agreement),
which is effective by its terms from July 1, 1993, to July 1,
1996.
At roughly the same time it took over the San Jose gar-
bage pickup contract, GreenTeam also took over a separate
contract with the city of San Jose for pickup of recyclable
materials, a contract formerly held by Waste America, whose
drivers and helpers were unrepresented by any union.
GreenTeam and the Union then argued for a few months
over the Union’s demand to extend the coverage of the gar-
bage agreement to the recyclables drivers and helpers, but in
September, this dispute was resolved when GreenTeam
signed a memorandum of understanding with the Union, the
‘‘effective date’’ of which was recited to be ‘‘September 6,
1993.’’ This memorandum functioned in gross as an agree-
ment to extend the provisions of the garbage agreement to
the recyclables drivers and helpers, with special provision for
separate hourly pay rates for the latter group, and an ac-
knowledgment that the latter group would constitute a sepa-
rate seniority pool.
The garbage agreement contains a union-security clause
which now applies to the recyclable drivers and helpers. In
pertinent part, the union-security language states (my empha-
sis):
It shall be a condition of employment that all em-
ployees covered by this Agreement shall apply for
membership in the Union on or after the 31st day of
employment, or the effective date of this Agreement,
whichever is later, and as a condition of continued em-
ployment, shall maintain their membership in the Union
in good standing. A member in good standing shall
mean any member who pays or tenders payment of reg-
ular initiation fees and dues to the Union. Written evi-
dence of loss of good standing will be submitted by the
1001GREENTEAM OF SAN JOSE
Union to the employer before severance is made from
the payroll.
[T]he employer agrees to make deductions from em-
ployees’ wages for Union membership dues (including
any past dues owed but unpaid), initiation fees, and as-
sessments only on the following basis:
1. The Union must present the Paymaster with a
legal written authorization dated and signed by the em-
ployee.
2. The Union agrees to furnish the Employer written
notice of the amount to be deducted for initiation fees
and dues and of the identity of the Union official au-
thorized to receipt of [sic] such deduction.
[Other provisions omitted.]
At material times the standard initiation fee charged by the
Union was $300. However, the Union had waived the initi-
ation fee for new members from the recyclers drivers’ and
helpers’ ranks who had voluntarily joined and begun to pay
monthly dues by no later than October 15, 1993. The stand-
ard monthly dues amount was $33, to be paid on the first
day of each month, and to be applied through the end of that
same month. In addition, the Union typically required new
members to make a one-time payment of $10 into the
Union’s death and illness benefit fund.
B. Relevant Practices of the Parties
The parties stipulated, and I find, that ‘‘[o]ne way for a
recycling driver [or] helper to satisfy his or her obligations
under the union security clause was to fill out copies of the
forms [described next] and turn them in to the employer.
Who would, then, turn them in to the Union.’’
One such form is captioned ‘‘Employment Notice and
Union Contract Requirements’’ (employment notice form).
Among other things, this form recites verbatim the first para-
graph of the union-security clause, supra, and contains a
space for the employee’s signature underneath the sentence,
‘‘I have read and understand the above requirements.’’ The
other form in the set is captioned ‘‘Checkoff Authorization’’
(checkoff form). This form, although containing the Union’s
name and address at the top, is implicitly addressed to the
signer’s employer, and is apparently treated by the parties as
the ‘‘legal written authorization’’ to the ‘‘Paymaster,’’ de-
scribed in the union-security clause, supra. The checkoff
form states in pertinent part:
I . . . hereby assign to [the Union] from any wages
earned or to be earned by me as your employee, any
initiation fee, monthly dues or assessments, which are
required to be paid by me for the purpose of maintain-
ing membership in the Union, and I authorize and di-
rect you to deduct such moneys from my first pay each
month and remit the sum to the Union.
I also note in this regard that the union-security clause per-
mits the employer, on receipt of such a signed checkoff
form, ‘‘to make deductions from employees’ wages for
Union membership dues (including any past dues owed but
unpaid), initiation fees, and assessments.’’
Based on the testimony of GreenTeam’s human resources
manager, Heather Anderson, I further find as follows: When
an employee submits such forms to GreenTeam, Anderson
examines them for completeness and accuracy, then sends
one copy to the Union. GreenTeam then waits for the
Union’s next monthly billing statement, listing drivers on
checkoff and the amount claimed to be owed to the Union
by each driver. When it gets this statement, GreenTeam then
transmits a check to the Union for the total sum on the state-
ment, and makes appropriate deductions from the listed em-
ployees’ next paychecks. GreenTeam relies on the Union’s
billing statement, and makes no independent effort to ascer-
tain whether the amount claimed to be owed by each em-
ployee is properly calculated.
When the Union wishes to exercise its right under the
union-security clause to seek a bargaining unit employee’s
discharge for noncompliance with union-security obligations,
the Union routinely issues a form letter to the employer seek-
ing the employee’s discharge on a future date, which is usu-
ally about a week after the date the demand-for-discharge let-
ter was transmitted. The letter the Union sent to GreenTeam
on February 8 concerning Bailey is a specimen of the
Union’s standard demand-for-discharge letter; that letter said:
This letter is to advise you that employee SCOTT BAI-
LEY is not in compliance with the Union Security
Clause of the Collective Bargaining Agreement.
We are requesting his termination at the end of the
shift of FEBRUARY 15, 1994.
Unless you hear directly from the Local Union of-
fice, the above is final.
The Union routinely mails a copy of this letter to the tar-
geted employee, in the hope that the employee will come
into compliance with his or her union-security obligations
before the discharge deadline in the letter. Moreover, the
record suggests overall, and I find, that the targeted em-
ployee learns in writing for the first time of his claimed non-
compliance (but not the nature of the noncompliance, nor the
amount of any sums claimed to be owed, nor the manner of
computation of such amounts) only on receipt of a copy of
the Union’s demand-for-discharge letter. The Union’s chief
executive, Secretary-Treasurer Robert Morales, testified that
he will go out of his way to be ‘‘lenient’’ with employees
who claim financial difficulty as an obstacle to paying any
sums owed, and will work with them to set up extended pay-
back schedules in such instances, and reserves such demand-
for-discharge letters only for the obviously recalcitrant em-
ployees. The record further shows that the Union targeted
several GreenTeam recyclables drivers with such letters in
the months after they became covered by the provisions of
the garbage agreement, but later ‘‘cleared’’ them for work
when they in one way or another satisfied the Union that
they were in ‘‘compliance.’’
C. Bailey’s Background
Bailey, originally hired by GreenTeam for the recycling
operation on July 6, 1993, was a recycling driver at all times
that concern us. Bailey admittedly had done nothing to sat-
isfy his union-security obligations until, at the earliest, mid-
November 1993, at which time he claims to have signed and
submitted a set of employment notice and checkoff forms to
one of GreenTeam’s dispatchers. Neither GreenTeam nor the
Union has any record of ever receiving these forms, how-
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 This credibility judgment on a point which does not materially
affect my ultimate findings and analyses is based on Bailey’s
unimpressive demeanor and the somewhat shifting and improvisatory
quality of his testimony as a whole. I note further in discrediting
Bailey on the matter of his alleged mid-November 1993 submission
of forms that he was admittedly aware that no dues or fees were de-
ducted from his paycheck after mid-November 1993, that he admit-
tedly still waited until sometime in late January before making any
overtures to the Union concerning his status and union-security obli-
gations, and that he admittedly took no steps to arrange for any pay-
roll deductions until February 14, and only after he had received a
copy of the Union’s February 8 letter to GreenTeam, supra, demand-
ing his discharge.
Moreover, to the extent my further findings below conflict with
certain features of Bailey’s testimony, this is because I have discred-
ited Bailey based on similar considerations.
5 Bailey insisted repeatedly that he did this on January 28, and that
he told Hill that he had two reasons for his request—to take care
of his union-dues obligations and also to get his mother a birthday
present, whose birthday was that very day, January 28. At the end
of the trial, however, confronted with payroll and attendance records
showing that he did not work on January 21, but did work a full
shift on January 28, he acknowledged that he must have been mis-
taken in claiming that his day off was on January 28. (Presumably,
he was either likewise mistaken about his mother’s birthday, or his
mother’s birthday had nothing to do with his request for time off
on January 21.)
ever, and if it mattered to the outcome, I would find that
Bailey made no such submission in mid-November 1993.4
On January 21, Bailey asked GreenTeam’s operations
manager, Mosie Hill, to take the day off to take care of
‘‘union business.’’5 Hill granted his request. Crediting Shop
Steward Charles Remlinger, I find that Bailey also told
Remlinger on January 21 that he intended to go to the
Union’s office in San Francisco to take care of his dues obli-
gations, and asked Remlinger for directions, whereupon
Remlinger drew out a map and gave it to Bailey. However,
Bailey admittedly did not go to the Union’s office that day
and, although he claimed that he instead called the Union’s
office that day and spoke to Marina George, the secretary-
bookkeeper, I find instead, crediting George’s more convinc-
ing testimony, that Bailey did not call George until February
1, during which conversation occurred the events described
next.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Bailey called the Union’s office on February 1, spoke to
George, and questioned why he wasn’t yet a member and
what he had to do to join the Union. George asked him for
his social security number, employer’s name, and other iden-
tifying information, and then used this information to do a
computer search of the Union’s records. She reported to Bai-
ley that she had no record that he existed, much less that he
was employed by GreenTeam. Bailey then asked how much
he would have to pay to join. George said she wasn’t sure,
expressing particular doubt about whether Bailey would have
to pay the $300 initiation fee, and she told Bailey she would
check with Secretary-Treasurer Morales. After that call
ended, George went to Morales, who confirmed that it was
too late for Bailey’s initiation fee to be waived, and George
then computed Bailey’s total obligation to be $475, broken
down as follows: $300 for the initiation fee and $165 for
monthly dues for the 5-month period from September 1
through January 1, plus an additional $10 for the one-time
death and illness benefit contribution.
Later on February 1, or soon thereafter, Bailey called
George again. She told Bailey that he owed $475, and gave
him the breakdowns, as above. She further explained that
Bailey could have avoided the $300 initiation fee if he had
joined the Union during the period when the Union was
waiving that fee. Crediting George, I find that Bailey agreed
to ‘‘send’’ the $475 amount to her. Crediting Morales, how-
ever, I find that Bailey soon thereafter called Morales and
professed to have been confused about whether he owed the
initiation fee in the light of the Union’s waiver of that fee;
whereupon Morales scoldingly told Bailey that he knew that
the initiation-fee waiver period had expired last October 15,
and that he must now pay what he owed or be fired.
On February 8, having received neither money nor any
further call or visit from Bailey, the Union sent the demand-
for-discharge letter, supra, by fax to GreenTeam, addressed
to Hill. Bailey found a copy of this letter in his mailbox
when he got home on the evening of February 10. The next
day, Friday, February 11, Bailey talked to Shop Steward
Brad Paulding about the Union’s discharge demand; Paulding
advised him to call the Union’s office. Bailey claims to have
called the Union’s office at lunchtime and to have asked to
speak either to George or to Morales, but he admits that
when he was told that both were at lunch, he left no mes-
sage, and made no further tries that day to call the Union’s
office. Later that day, however, Bailey got a set of employ-
ment notice and checkoff forms from someone at work, and
took them home with him for the weekend.
On Monday, February 14, Bailey filled out and signed
both forms and gave them to someone in the dispatcher’s of-
fice, a delivery process which Human Resources Manager
Anderson agrees is an appropriate and commonly used
means by which drivers turn such forms in to GreenTeam for
appropriate handling by her office. Still later on February 14,
dispatcher Ricardo Ramirez brought the forms back to Bailey
and told Bailey that he had signed in the wrong space on the
employment notice form. Bailey then crossed out his signa-
ture on the wrong space and re-signed in the correct space,
then gave both forms back to Ramirez. However, as I elabo-
rate below, these forms received no further management at-
tention until the morning of February 16.
Crediting Hill, I find that on the afternoon of February 15,
Bailey called Hill via his truck radio and arranged to meet
with Hill at a point on his route where Hill expected to pass
on his way home for the day. When they met, Bailey ex-
pressed some concern about the Union’s discharge demand
letter, and Hill reassured him that ‘‘as long as he took care
of whatever obligations that needed to be taken care of it
shouldn’t be a problem.’’
Bailey returned to work the next day, February 16, appar-
ently assuming that, by having turned in his forms on Feb-
ruary 14, he had done what he had to do to satisfy the
Union. Unknown to Bailey, however, the Union had gotten
no notice on February 14 or 15 that Bailey had signed these
forms. Rather, for unexplained reasons, the forms Bailey had
turned in to dispatcher Ramirez on February 14 had lan-
guished without responsible attention until the morning of
February 16, when Anderson found Bailey’s completed
forms on the floor of her office when she arrived at work
shortly before 6:30 a.m. Apparently, the forms had been
1003GREENTEAM OF SAN JOSE
6 Hill testified without contradiction that he received no informa-
tion about developments on February 17 and 18 from anyone at any
time during his extended weekend at home.
slipped under her door during her overnight absence. Ander-
son then gave the forms to Hill, who transmitted copies of
them by fax to the Union, addressed to Morales’ attention.
The Union received this fax sometime between 6:35 and
6:45 a.m.
Bailey continued to work through the end of his shift on
February 16. Hill admittedly allowed this because he be-
lieved that the Union, having been shown evidence that
morning by fax that Bailey had executed an appropriate
checkoff form, would soon fax back to GreenTeam a clear-
ance to permit Bailey to remain employed. However, when
the Union had not thus cleared Bailey by 5 p.m., the end of
Bailey’s shift, Hill admittedly decided to discharge Bailey.
(Hill further testified that he would not have discharged Bai-
ley if he had received the clearance at any time prior to the
end of Bailey’s shift on February 16.) Thus it was that Bai-
ley and Shop Steward Paulding were called into Hill’s office
at the end of the February 16 shift, where Hill announced to
the two that he was discharging Bailey in accordance with
the Union’s demand in its February 8 letter. When Bailey ar-
gued that he had turned in his forms, Hill confirmed this, but
explained that, absent a clearance from the Union, he had no
choice but to dismiss Bailey. Bailey and Paulding then called
the Union’s office, using Paulding’s union-issued telephone
charge card to pay for the call. Once Paulding had dialed the
number and turned the phone over to Bailey, Bailey waited
for four or five rings and then hung up.
On February 17, Bailey called the Union’s office in the
morning and protested to Marina George that he had been
fired, and asked her what he needed to do to be reinstated.
George admittedly told Bailey that to be current through
February, he would now have to pay 6 months’ dues, i.e.,
$198 for dues for the 6-month period from September 1,
1993, through February 1, plus $300 for the initiation fee,
and $10 for the death and illness fund, yielding a total now
due of $508. Bailey went to the Union’s office and paid
$508 to George. She gave him a membership card and a
dues receipt, showing that he was ‘‘Paid Thru Feb 94.’’ It
was then about noon. In Bailey’s presence, George then
called GreenTeam’s office and left a message on Hill’s voice
mail system, advising that Bailey was paid up and now
cleared by the Union to work. Hill had already left for the
day, however, to begin an extended weekend at home, and
he did not return to his office until Monday, February 21,
at which time he received this message for the first time.
However, other GreenTeam agents were made aware of
Bailey’s changed status in the early afternoon of February
17, when Bailey traveled to GreenTeam’s office and met
there with Human Resources Manager Anderson and a part
owner of the Company, Lou Pellegrini. He showed his new
membership card and dues receipt to these agents, and asked
to be reinstated on that showing. Anderson and Pellegrini
would not allow this on their own, however; neither did they
call Hill at home to consult about this development.6 Instead,
crediting Bailey’s undisputed account, I find that Anderson
only agreed to check with the Company’s outside labor rela-
tions representative, Michael Lynn, and to set up a meeting
for Monday morning, February 21, at which time Bailey and
a steward of his choice could deal with Lynn, Hill, and An-
derson.
On Friday, February 18, at about 2:45 p.m., the Union’s
George sent a fax transmission to GreenTeam’s number, ad-
dressed to and promptly received by Anderson. The fax said:
This notice is to confirm our message of yesterday
2/17/94 to Mosie Hill (message left on his voice mail)
that the above employee, Scott Bailey, is cleared for
work, since he is now in good standing with this local
union.
On Monday, February 21, Bailey had not been able to get
the assistance of a steward, and thus met alone at
GreenTeam’s offices with Lynn, Hill, and Anderson. It ap-
pears from Bailey’s essentially undisputed account that the
meeting was very brief, and that Lynn served as the Compa-
ny’s spokesman. Crediting Bailey, I find that Lynn rational-
ized GreenTeam’s discharge of Bailey in terms of its con-
tractual obligation to honor the Union’s demand for dis-
charge, noting further that GreenTeam had given Bailey an
additional day’s grace period, i.e., all day of February 16, to
get the Union’s clearance, and that GreenTeam couldn’t have
waited forever for the Union’s clearance. As to Bailey’s re-
quest for reinstatement in the light of his current good stand-
ing with the Union, Lynn replied summarily, ‘‘Once you’re
fired, you’re fired.’’
At the time of these final events, i.e., in the period Feb-
ruary 17 through 21, GreenTeam had not hired a replacement
for Bailey, nor had it permanently assigned Bailey’s driving
job to anyone else. Rather, it had covered his route on Feb-
ruary 17, 18, and 21 by drawing from its pool of ‘‘casual’’
or ‘‘relief’’ drivers, who are normally used to fill in when
a regular driver is absent due to illness or another temporary
reason. Indeed, Hill conceded that Bailey’s driving route
continued to be covered by drivers from the relief pool for
at least another ‘‘couple of weeks’’ after Bailey’s discharge,
before it was finally awarded on a regular, full-time basis to
a driver from that pool.
In the following weeks and months, the Union’s Morales
made several contacts with GreenTeam’s outside representa-
tive, Lynn, and with one of GreenTeam’s owners, Jose
Rodriguez, during each of which he tried to persuade
GreenTeam to reinstate Bailey, without backpay, if nec-
essary. GreenTeam uniformly rebuffed the Union’s efforts.
The Union eventually filed the first of the charges here
against GreenTeam on March 25. Its attorney, Duane
Beeson, followed this charge with a three-page letter to
Lynn, dated April 11, in which Beeson urged Bailey’s imme-
diate reinstatement, set forth the facts which he thought es-
tablished that the Union’s charge against GreenTeam was
meritorious, suggested that it was ‘‘in the interests of both
parties that this matter be settled as soon as possible,’’ and
asked Lynn to ‘‘let me know if you want to discuss this fur-
ther.’’ If Lynn made any response to this letter, it is not of
record. However, in a letter dated April 19 to the Board’s
Regional Office setting forth GreenTeam’s position on the
Union’s charge, Lynn stated that Bailey ‘‘was terminated in
accordance with the labor agreement and the actions of the
union Secretary-Treasurer, Mr. Robert Morales,’’ and that
‘‘the labor agreement does not provide for returning any ter-
minated employee to his prior seniority position. To do so
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 253 NLRB at 99, citing Forsyth Hardwood Co., 243 NLRB
1039, 1040 (1979), and Conductron Corp., 183 NLRB 419, 427
(1970). See also, e.g., Claremont Resort Hotel & Tennis Club, 260
NLRB 1088, 1093 (1982).
would obviously violate those individuals with less senior-
ity.’’
On May 16, the Union filed a grievance against
GreenTeam, protesting its ‘‘continuous refusal to place Scott
Bailey back to work.’’ The disposition of that grievance, if
any, is not of record.
III. ANALYSES AND CONCLUSIONS OF LAW
A. Legal Setting; Union’s Fiduciary Obligations; and
GreenTeam’s More Limited Obligations
In pertinent part, Section 8(a)(3) of the Act makes it un-
lawful for an employer to
. . . discriminat[e] in regard to hire or tenure of em-
ployment or any term or condition of employment to
encourage . . . membership in any labor organization:
Provided, That nothing in this Act . . . shall preclude
an employer from making an agreement with a labor
organization . . . to require as a condition of employ-
ment membership therein on or after the thirtieth day
following the beginning of such employment or the ef-
fective date of such agreement, whichever is later
. . . . Provided further, That no employer shall justify
any discrimination against an employee for nonmem-
bership in a labor organization (A) if he has reasonable
grounds for believing that such membership was not
available to the employee on the same terms . . . gen-
erally applicable to other members, or (B) if he has rea-
sonable grounds for believing that membership was de-
nied or terminated for reasons other than the failure of
the employee to tender the periodic dues and the initi-
ation fees uniformly required as a condition of acquir-
ing or retaining membership.
Section 8(b)(2) of the Act dovetails with, and to some extent
incorporates, Section 8(a)(3) and its provisos; that section
makes it unlawful for a union to
. . . cause or attempt to cause an employer to discrimi-
nate against an employee in violation of subsection
(a)(3) or to discriminate against an employee with re-
spect to whom membership in such organization has
been denied or terminated on some ground other than
his failure to tender the periodic dues and initiation fees
uniformly required as a condition of acquiring or retain-
ing membership.
Section 8(a)(3) and Section 8(b)(2), when read together,
facially intend to legitimize a union’s demand for the dis-
charge of an employee who has failed to comply with the
requirements of a lawful union-security clause, and to legiti-
mize, as well, an employer’s discharge action in reaction to
such a union demand. However, under the gloss of case law,
both unions and employers are now clearly held to owe more
particular duties to the employee targeted by a union’s dis-
charge demand for alleged union-security noncompliance.
Thus, it is settled that a union operates under a strict fidu-
ciary duty to the targeted employee. NLRB v. Hotel & Res-
taurant Employees Local 568 (Philadelphia Sheraton), 320
F.2d 254, 258 (3d Cir. 1963), enfg. 136 NLRB 888 (1962).
More specifically, this fiduciary duty requires the union to
give reasonable ‘‘notice’’ to the alleged delinquent in time
for him or her to cure the delinquency, which notice must
satisfy even more specific requirements as to its form. Thus,
in Communications Workers Local 9509 (Pacific Bell), 295
NLRB 196 (1989), the Board said:
Under Philadelphia Sheraton, a union seeking to en-
force a union-security clause against an employee has
a fiduciary duty to deal fairly with that employee. This
requires that before a union may seek the discharge of
an employee for the failure to tender owed dues and
fees, it must at a minimum give the employee reason-
able notice of the delinquency, including a statement of
the precise amount and months for which dues are
owed and of the method used to compute this amount,
tell the employee when to make the required payments,
and explain to the employee that failure to pay will re-
sult in discharge.
See also, e.g., Coopers NIU (Blue Grass), 299 NLRB 720,
723 (1990); and Electrical Workers IBEW Local 99 (Elec-
trical Maintenance), 312 NLRB 613 (1993).
It is equally settled that, to avoid being implicated in an
8(a)(3) violation by firing an employee based on a union’s
unlawful discharge demand, an employer, too, owes certain
duties to the targeted employee, although these duties do not
derive from any fiduciary relationship to the employee, and
they involve a different, lowered, standard of care. Thus, in
Valley Cabinet & Mfg., 253 NLRB 98 (1980), the Board
construed Section 8(a)(3) and its second proviso, supra, as
meaning that
. . . an employer is held to a lower standard than the
union . . . that is, it violates the Act only when it dis-
charges an employee at the request of the union when
it has ‘‘reasonable grounds for believing’’ that the re-
quest was unlawful.7
B. The Union’s Violations of Section 8(b)(2) and (1)(A)
If the only attack on the legality of the Union’s actions
were its alleged failure to give proper notice to Bailey in the
terms and forms required by the authorities, supra, I would
conclude from my earlier findings that the Union gave all re-
quired notice. Thus, I have found that the Union’s George
spelled out in required detail to Bailey, both on February 1
and February 17, what Bailey was alleged to have owed to
satisfy his union-security obligations, and gave him a de-
tailed breakdown of the bases for her calculations, including
the months, starting with September 1993, for which he
owed dues. And I have also found that the Union’s Morales
unmistakably told a reluctant Bailey on or shortly after Feb-
ruary 1 that he would be fired if he didn’t pay up. Moreover,
after Morales gave Bailey that warning, roughly another
week passed—during which Bailey could have, but did not,
try to clear up his arrearage—before the Union made its de-
mand for Bailey’s discharge, and yet 1 more full week re-
mained for Bailey to cure any arrearage before the Union’s
demand for his discharge would be vitalized. Accordingly, I
would dismiss the complaint to the extent it merely attacks
1005GREENTEAM OF SAN JOSE
8 No one has contended that Bailey’s checkoff form was an unac-
ceptable substitute for cash in the Union’s hands. Indeed, from An-
derson’s undisputed testimony, it appears that, on the Union’s
issuance of a routine monthly billing statement to GreenTeam de-
manding $508 to cure Bailey’s alleged arrearage, GreenTeam would
have deducted the demanded amounts from Bailey’s next paycheck,
and would have transmitted those amounts to the Union, no ques-
tions asked.
the adequacy, in terms of form or timing, of the Union’s
‘‘notice’’ to Bailey.
However, the complaint is not so limited, but also alleges,
in substance, that the Union independently violated its fidu-
ciary duty to Bailey by demanding, as a condition of keeping
his job, that Bailey pay amounts he was not lawfully re-
quired under the union-security clause to pay. Thus, the Gen-
eral Counsel cites the Union’s consistent demand for a total
sum from Bailey which included dues for the month of Sep-
tember 1993, and argues that, under the union-security
clause, Bailey’s obligation to pay dues did not become per-
fected until the 31st day after the effective date (September
6, 1993) of the agreement (the memorandum of understand-
ing) that made the union-security clause applicable to
recyclables drivers and helpers. I construe the same agree-
ment documents the same way, and I agree that Bailey owed
no obligation under the union-security clause to begin paying
monthly dues to the Union before October 7, 1993, i.e., the
31st day after the effective date of the memorandum of un-
derstanding.
‘‘It is well settled that a union’s demand for payment of
back dues which arose during a period where there was no
obligation to maintain membership cannot lawfully be im-
posed as a condition of employment, even under a valid
union security agreement.’’ Operating Engineers Local 139
(Camosy Construction), 172 NLRB 173, 174 (1968). See
also Machinists Local 1198 (Interstate Food), 278 NLRB
154 fn. 1 (1986) (unlawfulness of dues assessments for em-
ployment within ‘‘30-day statutory grace period’’). There-
fore, I find that the Union unlawfully used the threat of dis-
charge to collect September 1993 dues from Bailey, and that
the Union’s unlawful overreaching in this respect alone fa-
tally tainted its February 8 demand for Bailey’s discharge.
Operating Engineers Local 139 and Machinists Local 1198,
supra; see also, e.g., Service Employees Local 32B-32J, 289
NLRB 632 (1988).
Although the complaint does not specifically suggest this
theory, the General Counsel further argues on a fully liti-
gated record, and I agree, that the Union independently over-
reached its legitimate rights under the union-security clause
by using the threat of discharge to enforce its demand for the
$10 death and illness benefit payment, a payment distinct
from, and ‘‘other than,’’ the ‘‘periodic dues and initiation
fees uniformly required as a condition of acquiring or retain-
ing membership.’’ It is settled that when a union attempts to
collect any charge other than periodic dues and initiation
fees, any such other charge, ‘‘even if levied legitimately,
must be collected without impact on employment rights or
tenure.’’ Operating Engineers Local 542C (Ransome Lift),
303 NLRB 1001, 1003 (1991), citing Associated Fur Mfrs.,
280 NLRB 922 (1986). It is clear, moreover, that the $10 fee
was in the nature of a one-time special assessment, rather
than ‘‘periodic dues.’’ NLRB v. Food Fair Stores, 307 F.2d
3, 11 (3d Cir. 1962); see also, e.g., Teamsters Local 439
(Shippers Imperial), 281 NLRB 255, 257–258 (1986).
Accordingly, for either of the foregoing reasons, I con-
clude as a matter of law that when the Union launched its
February 8 demand for Bailey’s discharge, and maintained
that demand through the point on February 16 when Bailey
was discharged, the Union violated Section 8(b)(2) and, de-
rivatively, Section 8(b)(1)(A) of the Act.
Taking a separate tack on brief, the General Counsel also
argues on a fully litigated record, and I agree, that Bailey
satisfied all relevant union-security obligations when, on Feb-
ruary 14, he signed and transmitted to GreenTeam’s dis-
patcher Ramirez a set of forms, the most critical of which
was the checkoff form authorizing GreenTeam to deduct
from his paycheck and transmit to the Union ‘‘any initiation
fee, monthly dues or assessments, which are required to be
paid by me for the purpose of maintaining membership in the
Union[.]’’ The parties stipulated that ‘‘One way for a recy-
cling driver [or] helper to satisfy his or her obligations under
the union security clause’’ was to do precisely what Bailey
finally did on February 14, i.e., ‘‘to fill out copies of the
forms . . . and turn them in to the employer.’’ Given that
stipulation, and absent any showing that GreenTeam was not
empowered by Bailey’s executed checkoff form to transmit
to the Union in due course any amounts the Union could
lawfully collect from Bailey,8 it is hard to discern from this
record why the Union did not promptly issue a clearance to
Bailey once it learned on the morning of February 16 that
Bailey had turned in the checkoff form. In this regard, I give
little attention to the reason eventually given by Morales
from the witness stand for not honoring Bailey’s checkoff—
that Bailey had been in default for ‘‘seven months.’’ Clearly,
this explanation is merely inculpatory on one level, for it
concedes that the Union was still unlawfully seeking to use
limited discharge rights under the union-security clause to
collect September 1993 dues from Bailey. Moreover, even if
Morales were understood to mean by this that Bailey’s
lengthy procrastination made Morales especially unwilling to
exercise his otherwise admitted tendency to be ‘‘lenient’’ and
to work with delinquent members who propose a reasonable
way to retire any past-owed dues or fees to the Union, this
explanation still implies a merely punitive motive. And I
judge that such a motive is wholly inconsistent with the
Union’s fiduciary duty to give even a known, procrastinating
delinquent a reasonable opportunity to use established proce-
dures in the workplace—here, the execution and transmittal
of a checkoff form—to satisfy his union-security obligations.
Accordingly, where the Union knew by the morning of Feb-
ruary 16 that Bailey had executed and delivered a checkoff
form to GreenTeam, and the Union punitively refused to
honor this checkoff as a valid ‘‘tender’’ of allegedly owed
amounts and thus refused to ‘‘clear’’ Bailey for continued
work with GreenTeam, I conclude as a matter of law that the
Union independently violated Section 8(b)(2), and, deriva-
tively, Section 8(b)(1)(A).
C. GreenTeam’s Violations of Section 8(a)(3) and (1)
After Valley Cabinet & Mfg., supra, the pivotal question
affecting the legality of GreenTeam’s discharge of Bailey is
this: Did GreenTeam have ‘‘reasonable grounds for believ-
ing’’ that the Union’s demand for Bailey’s discharge was an
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 So far as this record shows, Bailey himself was unaware of these
lurking taints in the amounts the Union was demanding he pay under
threat of discharge and, in any case, he never raised any such objec-
tions to any agent of GreenTeam.
‘‘unlawful’’ one? The answer is debatable if we focus simply
on whether or not GreenTeam knew or had reason to believe
that the Union’s demand was unlawfully tainted by an at-
tempt to collect September 1993 dues and a death and illness
fund contribution from Bailey, amounts which the Union had
no lawful right to collect by invoking the discharge provi-
sions of the union-security clause. Certainly, nothing on the
face of the Union’s discharge demand gave GreenTeam any
grounds for suspecting that the demand was thus tainted; and
there was no showing by the prosecution that GreenTeam
knew or had reason to believe from independent sources that
the Union’s demand was thus tainted.9 Nevertheless, even if
I accept that GreenTeam did not know or have reason to be-
lieve that the amount the Union was trying to collect in-
cluded sums not lawfully collectable through threat of dis-
charge, I judge in the circumstances of this case that
GreenTeam’s ignorance on those points does not immunize
it from liability under Section 8(a)(3) and (1).
First, I would find that the form of the Union’s demand-
for-discharge letter was itself facially inadequate under the
contract to require GreenTeam to fire Bailey; indeed, I think
GreenTeam has always overstated its contractual duty to dis-
charge an employee in response to a form letter such as the
one used in Bailey’s case. It is worth recalling what the con-
tract actually says on this subject, as follows (my emphasis):
A member in good standing shall mean any member
who pays or tenders payment of regular initiation fees
and dues to the Union. Written evidence of loss of good
standing will be submitted by the Union to the em-
ployer before severance is made from the payroll.
As I construe this language, GreenTeam is not contractually
bound to fire an employee in response to the Union’s de-
mand when that demand is grounded simply in a
conclusionary assertion that the employee ‘‘is not in compli-
ance with the Union Security Clause.’’ Rather, under the
contract, GreenTeam is not simply entitled to receive from
the Union some ‘‘written evidence’’ of the employee’s ‘‘loss
of good standing,’’ but it must have such ‘‘written evidence’’
in hand before it may ‘‘sever’’ the employee from the pay-
roll. Accordingly, in this case, GreenTeam had not only a
contractual right, but a contractual duty to demand such evi-
dence from the Union before firing Bailey. And if it had
acted on that right or that duty, it could be expected that
GreenTeam would have gained written evidence from the
Union that would have revealed that the amounts the Union
was demanding from Bailey included sums not lawfully col-
lectable through threat of discharge. In any case, I judge
under Valley Cabinet & Mfg., supra, that the inadequate and
conclusionary form of the Union’s demand was alone enough
to give GreenTeam ‘‘reasonable grounds for believing’’ that
the Union’s demand was an ‘‘unlawful’’ one, in that it was
not accompanied by the contractually required ‘‘written evi-
dence.’’
I reach the same result for the following independent rea-
son, one directly urged by the General Counsel: Before
GreenTeam fired Bailey at about 5 p.m. on February 16,
GreenTeam had reasonable grounds for believing that Bailey
had satisfied his union-security obligations and, therefore,
that the Union’s failure to provide an affirmative, written
clearance for Bailey was based on some factor other than
Bailey’s noncompliance with lawful requirements. Thus,
Company Agents Hill and Anderson knew that the Union
had received a fax transmission on the morning of February
16 showing that Bailey had executed and turned in to
GreenTeam a checkoff form, a normal way for a driver to
satisfy his union-security obligations. Indeed, it was admit-
tedly because of this knowledge, and because he expected
the Union to issue a clearance based on Bailey’s checkoff
form, that Hill allowed Bailey to work a full shift on Feb-
ruary 16. In the circumstances, therefore, I judge that
GreenTeam had enough grounds for doubting the lawfulness
of the Union’s continuing demand to implicate GreenTeam
in an 8(a)(3) and (1) violation for acting on that demand.
Claremont Resort Hotel, supra, 260 NLRB at 1093–1094.
Moreover, to avoid being so implicated, I judge that
GreenTeam at least operated under a duty to make an affirm-
ative inquiry to the Union on February 16 as to its reasons
for witholding Bailey’s clearance, and that its admitted fail-
ure to do so must weigh further against it in my assessment
of the violation. Conductron Corp., supra, 183 NLRB at
428–429.
As yet a separate ground for finding that GreenTeam vio-
lated the Act, I judge that GreenTeam’s refusal to reinstate
Bailey on notice on February 17 that he had been cleared by
the Union to work amounted to an independent breach of
Section 8(a)(3) and (1). It is clear that Bailey had not been
replaced and that GreenTeam had not lost its need for his
services. Indeed, GreenTeam has offered no plausible, legiti-
mate reason for not honoring the Union’s clearance and re-
turning Bailey to work. In this regard, GreenTeam’s position,
as expressed by Lynn, appears to be grounded in the dual
propositions that GreenTeam operates under no affirmative
contractual obligation to reinstate an employee who has been
fired lawfully, and that to have done so in Bailey’s case
would have somehow ‘‘violated’’ the ‘‘seniority’’ rights of
others. However, the absence of an affirmative contractual
duty to reinstate Bailey is quite irrelevant, and is no defense
to a charge that the failure to reinstate Bailey violated his
statutory rights. And the notion that to have reinstated Bailey
would have compromised the seniority rights of other drivers
is hard to accept on this record, which affirmatively shows
that GreenTeam simply drew on relief pool drivers to cover
Bailey’s route for several weeks after Bailey’s discharge.
Therefore, GreenTeam’s professed concern for the integrity
of its employees’ seniority rights, although touching, is an
unsatisfactory and implausible ‘‘reason’’ for its admitted re-
fusal to reinstate Bailey. And if GreenTeam’s actual motive
for this refusal to reinstate were a dispositive factor, I would
infer from this record that there are only two plausible moti-
vational explanations, both of them proscribed by Section
8(a)(3), and neither of them privileged by any of its provisos:
Either GreenTeam wished to ‘‘discourage’’ union member-
ship by embarrassing and undermining the Union’s status in
the eyes of employees by not honoring its attempt to return
Bailey to work, or it intended the very opposite—to ‘‘en-
courage membership’’ in the Union by making of Bailey’s
case an object lesson to other employees of the drastic con-
sequences of failing to pay amounts demanded by the Union
1007GREENTEAM OF SAN JOSE
10 See, e.g., Machinists Local 1198, supra, 278 NLRB 154 fn. 1;
C.B. Display Service, 260 NLRB 1102, 1104 (1982).
11 Backpay shall be computed in accordance with F. W. Wool-
worth Co., 90 NLRB 289 (1950), with interest as prescribed in New
Horizons for the Retarded, supra.
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
13 If this Order is enforced by a judgment of a United States court
of appeals, the words in both Appendix A and Appendix B reading
‘‘Posted by Order of the National Labor Relations Board’’ shall read
‘‘Posted Pursuant to a Judgment of the United States Court of Ap-
peals Enforcing an Order of the National Labor Relations Board.’’
under the union-security clause, no matter how unlawful
might be those demands.
IV. THE REMEDY
Having found that both the Union and GreenTeam have
engaged in certain unfair labor practices, I find that both
must be ordered to cease and desist therefrom, to post appro-
priate notices, and to take certain affirmative actions de-
signed to restore the status quo ante and to effectuate the
policies of the Act. Specifically, having found that the Union
unlawfully used threat of discharge and withholding of clear-
ance to compel Bailey to pay September 1993 dues of $33
and a $10 death and illness fund assessment, the Union will
be ordered to refund such amounts to Bailey,10 with interest
computed in accordance with New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). And having found that
GreenTeam violated Section 8(a)(1) and (3) by discharging
and refusing to reinstate Bailey, GreenTeam shall be ordered
to offer Bailey immediate and full reinstatement to his
former position with GreenTeam, without prejudice to his se-
niority or any other rights or privileges previously enjoyed.
In addition, both the Union and GreenTeam shall be ordered
to expunge from their files any and all references to the un-
lawful discharge and unlawful failure to reinstate Bailey, and
to notify him in writing that this has been done. Finally, hav-
ing found that both the Union and GreenTeam share respon-
sibility for Bailey’s unlawful termination, each shall be or-
dered to make Bailey whole for any loss of earnings and
other benefits suffered as a result of that termination,11 sub-
ject to the following conditions and limitations:
Normally, where such 8(b)(2)/8(a)(3) violations occur, the
union and the employer are held jointly and severally liable
for such make-whole amounts, although the union’s share of
that joint and several liability will be extinguished 5 days
after it gives a required notice to the employer that it no
longer objects to the targeted employee’s employment, fol-
lowing which the employer’s backpay liability becomes ex-
clusive and does not terminate until the date it offers rein-
statement to the employee. See, e.g., Claremont Resort
Hotel, supra, 260 NLRB 1088 fn. 1. However, in essential
agreement with the General Counsel’s principal position as
to remedy on brief, I judge that the Union has already un-
mistakably and effectively communicated such a no-objection
notice to GreenTeam, and that its liability for backpay be-
came extinguished 5 days later. Forsyth Hardwood, supra,
243 NLRB 1039, 1047, and case cited. Specifically, I find
that the 5-day period began on Friday, February 18, when the
Union successfully communicated by fax to GreenTeam’s
Anderson that Bailey was now deemed to be in good stand-
ing and was thus cleared for work. Accordingly, I find that
the Union’s share of liability for backpay became extin-
guished at the close of the drivers’ work shift 5 days later,
on Wednesday, February 23, and that GreenTeam’s backpay
liability thereafter became exclusive and continues until the
date it makes the required offer of reinstatement.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
A. The Respondent Union, Sanitary Truck Drivers and
Helpers Local Union No. 350 affiliated with the International
Brotherhood of Teamsters, AFL–CIO, its officers, agents,
and representatives, shall
1. Cease and desist from
(a) Causing or attempting to cause Respondent GreenTeam
to discharge or otherwise discriminate against employees in
violation of Section 8(a)(3) of the Act.
(b) Invoking or threatening to invoke the discharge provi-
sions of an otherwise lawful union-security clause against
employees in order to collect amounts which cannot lawfully
be demanded from employees as a condition of their hire or
tenure.
(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. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Scott Bailey whole, with interest, for any loss of
pay or benefits he may have suffered as a result of the dis-
crimination against him in the manner set forth in the remedy
section of this decision.
(b) Remove from its files any references to the unlawful
discharge and failure to reinstate Bailey and notify him in
writing that this has been done and that the discharge and
failure to reinstate will not be used against him in any way.
(c) Refund $43 to Scott Bailey, with interest, for Septem-
ber 1993 dues and a death and illness fund assessment it col-
lected from Bailey by unlawfully threatening him with dis-
charge and/or a refusal to clear him for work with Green-
Team.
(d) Post at its offices at San Francisco, California, copies
of the attached notice marked ‘‘Appendix A.’’13 Copies of
the notice, on forms provided by the Regional Director for
Region 32, after being signed by the Union’s authorized rep-
resentative, shall be posted by the Union immediately upon
receipt and maintained for 60 consecutive days in conspicu-
ous places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondent Union to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(e) Sign and return to the Regional Director sufficient cop-
ies of Appendix A for posting by GreenTeam of San Jose,
if willing, at all places where notices to employees are cus-
tomarily posted.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent Union
has taken to comply.
1008 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 See fn. 13, above.
B. The Respondent Employer, GreenTeam of San Jose,
San Jose, California, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against em-
ployees in response to a union demand where it has reason-
able grounds for believing that the demand is not privileged
by a lawful union-security agreement or is otherwise unlaw-
ful.
(b) Failing or refusing to reinstate an employee discharged
pursuant to an unlawful union demand, or otherwise failing
and refusing to reinstate an employee where an object thereof
is to encourage or discourage membership in a labor organi-
zation.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Scott Bailey immediate and full reinstatement to
his former position, without prejudice to his seniority or any
other rights or privileges previously enjoyed, and make him
whole for any loss of earnings and other benefits suffered as
a result of the actions against him in the manner set forth
in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharge and failure to reinstate Bailey and notify him in
writing that this has been done and that the discharge and
failure to reinstate will not be used against him in any way.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facilities in San Jose, California, copies of
the attached notice marked ‘‘Appendix B.’’14 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 32, after being signed by GreenTeam’s authorized rep-
resentative, shall be posted immediately upon receipt and
maintained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by
GreenTeam to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps GreenTeam has taken
to comply.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge or otherwise discriminate against
employees in response to a union demand where we have
reasonable grounds for believing that the demand is not priv-
ileged by a lawful union-security agreement or is otherwise
unlawful.
WE WILL NOT fail or refuse to reinstate an employee dis-
charged pursuant to an unlawful union demand, or otherwise
fail and refuse to reinstate an employee where an object
thereof is to encourage or discourage membership in a labor
organization.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL offer Scott Bailey immediate and full reinstate-
ment to his former position, without prejudice to his seniority
or any other rights or privileges previously enjoyed, and
make him whole, with interest, for any loss of earnings and
other benefits suffered as a result of our discharge and re-
fusal to reinstate him.
WE WILL remove from our files any reference to our dis-
charge and failure to reinstate Bailey and notify him in writ-
ing that this has been done and that the discharge and failure
to reinstate will not be used against him in any way.
GREENTEAM OF SAN JOSE