Local 630, Teamsters

National Labor Relations Board - Board Decisions

Feb 19, 1974

209 N.L.R.B. 117 (N.L.R.B. 1974)

LOCAL NO. 630, TEAMSTERS
Produce, Refrigerated & Processed Foods & Industri-
al Workers Local No. 630, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America (Ralph 's Grocery Company)
and Bobby H. Kelley . Case 21-CB-4572
February 19. 1974
DECISION AND ORDER
BY MEMBIFRS FANNING, KENNLDY, AND
PENEL.LO
On October 9, 1973, Administrative Law Judge
Irving Rogosin issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
Union filed cross-exceptions and a supporting brief
and in opposition to General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the complaint be, and it hereby is,
dismissed in its entirety.
DECISION
STA rEMENT OF r11E. CASE
IRVING RoGosiN, Administrative Law Judge: The
complaint, issued May 4. 1973, alleges that Respondent has
engaged in unfair labor practices within the meaning of
Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the
Act.'
Specifically, the complaint alleges that, on about January
29, 1973, Respondent, without prior notification regarding
his obligations under the union-security provisions of a
collective-bargaining agreement between Respondent and
the Employer, and without affording him an opportunity
to comply with said union-security provisions, demanded
that Ralphs discharge Bobby H. Kelley, effective January
I Designations herein are as follows The General Counsel, unless
.otherwise noted or required by the context, his representative at the hearing,
Produce. Refrigerated & Processed Foods & Industrial Workers Local No
630, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
& Helpers of America. Respondent , Respondent Union. or the Union,
Ralphs Grocery Company, Ralphs, the Employer or the Company. Bobby
H. Kelley, an individual, the Charging Party, the National Labor Relations
117
30, 1973, because of his lack of good standing with
Respondent Union; and on or about January 30, 1973, in
response to Respondent's demand. Ralphs discharged said
employee, thereby causing the Employer to discriminate
against him in violation of Section 8(a)(3), and engaging in
unfair labor practices within the meaning of Section 8(b)(2)
of the Act.
Respondent's answer, filed May 14, 1973, admits the
procedural and jurisdictional allegations of the complaint,
and further admits that it notified Ralphs, on or about the
date alleged, that Kelley should be terminated for lack of
good standing with the Union, but denies the substantive
allegations of the complaint.
Hearing was held on July 2 and 3, 1973, at Los Angeles,
California. The General Counsel and Respondent were
represented by counsel. All parties were afforded full
opportunity to be heard. to examine and cross-examine
witnesses, to introduce oral and documentary evidence
relevant and material to the issues, to argue orally, and to
file briefs and proposed findings of fact and conclusions of
law. The parties declined to argue formally, but discussed
some of the issues on the record. Pursuant to an extension
to August 13, 1973. duly granted, briefs were timely filed
by the General Counsel and Respondent. No proposed
findings of fact or conclusions of law have been filed by
any of the parties.
Upon the entire record in the case2 and, based upon the
appearance and demeanor of the witnesses, and the briefs,
which have been carefully considered, I make the follow-
ing:
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
The complaint alleges, Respondent's answer admits, and
it is hereby found that, Ralphs Grocery Company is, and at
all times material herein has been, a California corpora-
tion, engaged in the business of operating a chain of retail
grocery markets in said State of California, in connection
with which it maintains a produce warehouse in Los
Angeles.
The complaint further alleges, Respondent's answer
admits, and it is hereby found that, in the normal course of
its business operations, Ralphs derives gross revenue in
excess of $500,000 annually from said operations, and
purchases and receives goods and products valued in
excess of $50,000 annually, directly from points located
outside the State of California.
Upon the basis of the foregoing, and upon the entire
record, it is hereby found that, at all times material herein,
Ralphs has been an employer engaged in commerce and in
operations affecting commerce within the meaning of
Section 2(2). (6), and (7) of the Act.
Act, as amended (61 Stat 136, 73 Stat. 519, 29 U S.C sec. 151, et seq ). the
Act, the National Labor Relations Board, the Board. The charge was filed
and served on the parties on March 19, 1973 Unless otherwise stated, all
events occurred in 1973
2 1 he General Counsel's unopposed motion, dated August 10, 1973, to
correct the transcript of the proceedings in stated respects, is hereby
allowed
209 NLRB No. 31
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. THE LABOR ORGANIZATION INVOLVED
Produce, Refrigerated & Processed Foods & Industrial
Workers Local No. 630, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Respondent Union herein, is, and at all times
material herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
ARTICLE IV-DUES DEDUCTION
The Employer agrees to withhold and to remit
promptly to the Union an initiation fee and monthly
dues from the pay check of each employee covered by
this Agreement in accordance with a written order
which the Union agrees to furnish signed by each
individual employee.3
A. Introduction
The record establishes that, at all times material herein,
Ralphs and the Union have been parties to a collective-
bargaining agreement, effective from May 17, 1971, to
May 19, 1974, automatically renewable annually thereafter
in the absence of specified notice, covering, among other
employees, a group known as paper balers. Other ware-
house employees are represented by Respondent Union
under a separate agreement.
The balers agreement, commonly referred to as the crate
yard agreement, contains conventional union-security and
dues-checkoff provisions. The pertinent provisions are as
follows:
ARTICLE I-UNION SECURITY
A. The Employer hereby recognizes the Union as the
sole collective bargaining agent for all employees of the
Employer in the classifications set forth herein, in the
Employer's plant located within the jurisdiction of the
signatory Union.
B. It shall be a condition of employment that all
employees of the Employer covered by this Agreement
who are members of the Union in good standing on the
effective date of this Agreement shall remain members
in good standing, and those who are not members on
the effective date of this Agreement shall, on or after
the thirtieth calendar day following the effective date of
this Agreement, become and remain members in good
standing in the Union.
C. When new or additional employees are needed, the
Employer shall notify the Union of the number and
classification of employees needed. The Union shall
promptly nominate applicants for such jobs. The
Company shall choose between any nominees of the
Union and any other applicants.
No applicant will be preferred or discriminated against
because of membership or non-membership in the
Union, nor because of race, color, creed, sex, age or
national origin. Nothing in the above shall restrict the
Employer in his right to select the applicant who best
meets the qualifications for the job to be filled.
D. The Employer agrees to notify the Union prompt-
ly of all terminations and hires.
B. The Issues
(1) Whether Respondent Union adequately notified
Kelley of the union-security provisions of the collective-
bargaining agreement, requiring membership in the Union
after the 30 calendar day following his employment by
Ralphs.
(2) Whether Ralphs notified Kelley of the existence of
the union-security provisions of the collective-bargaining
agreement, and, if so, whether such notification relieved
Respondent Union of its obligation to do so prior to
demanding his termination.
(3) Whether Kelley acquired information from sources
other than Respondent Union regarding his obligations
under the union-security provisions, and, if so, whether
such information relieved Respondent Union of its
obligation to so notify him.
(4) Whether Kelley's membership in a sister Local
Union, on withdrawal status, affected Respondent Union's
duty to notify Kelley of his union-security obligations to
Respondent, or placed him under a duty to inquire of the
Union regarding said obligations.
(5) Whether Ralphs had terminated Kelley's employ-
ment at Respondent Union's request prior to the meeting
of Respondent's executive board.
(6) Whether the information furnished Kelley by union
representatives at said meeting, concerning his union-
security obligations, adequately satisfied the Union's
fiduciary duty to notify Kelley of those obligations.
(7) Whether, following his attendance at the meeting of
the Union's executive board, Kelley made a legal tender of
"periodic dues and initiation fees required as a condition
of employment after thirty days."
C. Sequence of Events
Bobby H. Kelley was hired as a baler at Ralphs' produce
warehouse, on May 1, 1972. He had been referred to
Ralphs by Frances Elnora Lofton, a family friend and job
counsellor at the Neighborhood Adult Participation
Center, a Federally funded project. Although, according to
Kelley, he had wanted a job as a warehouseman, a higher
rated and more desirable job, for which he claimed to have
been qualified by reason of 8 years previous experience,
there was no opening available at the time, and he
accepted a job as paper baler or crate yard and salvage
worker. As has already been mentioned, the warehouse
employees were covered by two separate labor contracts,
both with the Union. Only the baling department contract,
3 The legality of the union -security provisions is not in issue. It is
undisputed that the checkoff provision has not been enforced.
LOCAL NO 630, TEAMSTERS 119
however, is involved here. When Lofton referred Kelley to
Ralphs, she made no inquiry as to whether there was a
union at the warehouse, testifying that she rarely made
such inquiries of prospective employers, and that she did
not do so in this instance.
Warehouse Manager Bobby L. Pearce, who hired Kelley,
testified that, in accordance with his usual practice, he
probably told Kelley when he was hired that he would be
required to join the Union after 30 days, though he
admitted candidly that he had no positive, independent
recollection of having done so. Nor was Pearce able to
recall what response, if any, Kelley made.
James A. Canfield, one of two balers employed on the
day shift at the time Kelley was hired,4 and who instructed
Kelley in the job routine, testified that he told Kelley the
day he started, and several times afterward over a period of
several weeks, that he would be required tojoin the Union
after 30 days, and advised him to contact the Union. On
the first occasion, Canfield showed Kelley his membership
card, and furnished him with the name and address of the
Union from his card. According to Canfield, Kelley made
a note of the union address and said he would "take care of
it." When Canfield later asked him whether he had joined,
Kelley merely repeated that he would "take care of it."
Shortly after Kelley started working, however, when
Canfield went to the union hall to pay his dues, he was
asked by one of the business agents whether there were any
new employees working at Ralphs' warehouse. Canfield
told the business agent that there was one, referring to
Kelley. The business agent told Canfield to advise Kelley
to contact the Union. Canfield did so on several occasions,
without eliciting any response, and eventually dropped the
matter.
Kelley denied that Warehouse Manager Pearce had
notified him at the time he was hired that there was a
union-security contract covering the balers that Pearce had
apprised him of his obligations thereunder. Kelley also
denied that Canfield had notified him to the same effect.
To the extent it may bear on the credibility of the
witnesses, it is found, on the basis of Pearce's plausible and
credible testimony as to his usual practice in notifying
newly hired employees of their union-security obligations,
and Canfield's equally credible testimony that he notified
Kelley several times of the union-security requirements,
that Kelley learned from these independent sources of the
existence of a union-security contract covering baler
employees at the time he was hired or soon afterwards It is
well settled, however, that knowledge of the existence of a
union-security contract, and the obligations thereunder,
acquit-.d from independent sources other than the union,
does not absolve a union of its fiduciary duty to notify the
i Kelley was initially hired on the day shift He was later transferred to
the swing shift (3:30 p in to midnight), and was working on that shift at the
time of his termination
As an employee obligated to pay union dues and initiation fees as a
condition of employment. it is reasonable to assume that Canfield would
have been concerned that newly hired employees should he required to
comply with their union-security obligations as he was
6 Although Kelley at times feigned inability to comprehend questions,
even when simply stated, he appeared to have no difficulty with polysyllabic
words, such as "delinquency " He repeatedly prefaced his answers with such
phrases as "If I am not mistaken," a tendency which cannot be discounted
as a speech habit but rather as a patent effort to keep his options open if it
employee of the financial obligations incumbent upon
him.7
According to Kelley, he did not become aware that the
baler department employees were covered by a union
contract until about October 1972, some 6 months after the
date of his initial hire. On September 16, 1972, Kelley's
father died, and Kelley was absent from work for 3 days.
Sometime after his return, he learned through a fellow-
employee that he might be eligible for funeral leave under
the collective-bargaining agreement .8 At the suggestion of
his fellow-employee, Kelley broached the subject to the
union shop steward, whom he identified merely as Art. The
shop steward advised Kelley to take the matter up with the
Union and, when Kelley asked him where the Union was
located, handed him the Union's business card. Kelley
admitted, however, that the shop steward said, " But I am
going to tell you something. All of this is a union but it is
under two different contracts. It is under a different
contract. There is a contract for the warehouse and a
contract for the paper baler department," and advised him
to tell the union representatives in which department he
worked so they would "know what to do."
At or about 1:30 one afternoon during this interval,
Kelley telephoned the union hall, and was referred to
Business Agent Robert W. Ruby. After identifying himself
as an employee at Ralphs produce department, Kelley
asked Ruby whether he was entitled to funeral leave. Ruby
told him that, according to the "retail contract," referring
to the warehouse agreement, Kelley would be eligible for
funeral leave. Ruby again asked him whether he worked in
the produce department, and Kelley said that he did.
When Ruby gave Kelley instructions in regard to the
procedure in applying for these benefits, Kelley told Ruby
that he had applied to the Company for funeral leave and
that his request had been denied. Kelley then volunteered
that there had actually been two deaths in his family, his
father and stepfather. Ruby suggested that Kelley obtain a
death certificate and submit it to the Company.
Kelley later called at the union office, where he met
Business Representative Salvador "Sal" Verduzco, vice
president of the Local and a member of the executive
board. When Kelley identified himself and explained the
purpose of his visit, Verduzco withdrew briefly to procure a
copy of the baler's contract, and returned with it soon
afterward. According to Kelley, Verduzco read from the
contract, and then told Kelley that the contract did not
provide for funeral leave. Kelley testified that at no time
during this interview did Verduzco ask him whether he was
a member of the Union, discuss union membership, or
notify him of any union obligation
Verduzco's version of this incident did not differ
became necessary to change his testimony. as it did on occasion His mien
did not generally inspire credence
7 International Association of Bridge, Structural and Reinforced Iron
Workers Union. Local 378. AFl: CIO (Judson Steel Corporation). 192 N LRB
1069 and cases cited.
" According to Kelley, when his stepfather died earlier in the year, he
made no effort to obtain funeral leave because he had not known about the
union contract it is more probable. however, that he had not been alerted
to the possibility that he might have been entitled to funeral leave under the
contract As it turned out, the warehousemen's contract provided for
funeral leave, but the baler's contract did not.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
materially from Kelley's. According to Verduzco, Phyllis
Swenson, the Union's office manager, had reported to him
that she was having difficulty with a member. Verduzco
approached Kelley and asked him what his problem was.
Kelley told him that he was seeking funeral pay from the
Company. After eliciting from Kelley that he was em-
ployed as a baler at Ralphs, Verduzco asked him whether
he had a copy of the contract. Kelley replied that he did
not, and Verduzco thereupon procured a copy and, reading
aloud from the applicable provisions, told him that the
contract merely covered health and welfare, and holiday
pay, but no funeral leave. Kelley disparaged the contract,
using a vulgar epithet, and stated that he had only accepted
the job as paper baler because he was looking forward to a
job as warehouseman. Verduzco explained that there was
nothing he could do for him with regard to funeral leave as
there was no provision for such benefit in the baler
contract. Verduzco told him, however, that, as a member of
the Union, he was entitled to a copy of the contract, and
asked him if he wanted one. Kelley said nothing to
disabuse Verduzco of his assumption that Kelley was a
member of the Union. In fact, at one point in the
discussion Kelley told Verduzco that he was a former
member of Local 595, that he had had warehouse
experience , wanted a warehouse job because it was more
desirable, and was waiting to be placed in the warehouse.
Kelley accepted a copy of the contract, which he took with
him when he left, without divulging to Verduzco that he
was not a member of Local 630. When he perused the
contract later, according to Kelley, he read only the article
dealing with funeral pay. Admittedly, the contract contains
no provision for funeral pay, so it must be assumed that he
at least, read enough of the contract to determine the
absence of such a benefit. Later, according to him,
allegedly after learning of the Union's action requesting his
discharge, he read the dues checkoff provision.
Admittedly, neither Verduzco, nor the person identified
as the shop steward, notified Kelley of his union-security
obligations. According to Kelley, he was at no time
notified by any union official that he was required to join
the Union or pay dues in order to retain his Job at Ralphs.
Nor, for that matter, according to him, did any employer
representative notify him prior to late in January 1973 of
any such obligation.
During the payroll period ending January 28, Kelley
became ill while at work, and was absent Thursday,
Friday, and Saturday of that week. On the last Thursday of
January (January 25), or the first Thursday of February
(February 1), according to Kelley (he could ^ot be more
specific), he telephoned Warehouse Manager Pearce to
inquire whether he was entitled to sick leave. Pearce told
him, Kelley testified, that he was i,ot, because the Union
had reported that he was "nine months behind" in his
union dues . When Kelley asked, "What Union dues?"
Pearce replied, "Well, you know that when you first started
working here I told you you have to become a member of
the union." Kelley contradicted Pearce, and insisted that
Pearce had not so informed him. Pearce reiterated that he
had told Kelley when he first started working there that he
was required to become a member of the Union and pay
union dues . Kelley persisted in his denial that Pearce had
so informed him, and then protested that it was the
Company's responsibility under the contract to deduct
union dues . Then , according to Kelley, Pearce told him
that he had received a letter from the Union stating that
Kelley was to attend a board meeting the following
Saturday, even stating the time as i p.m. Pearce told Kelley
to call him back after the board meeting and let him know
what happened . Pearce also told him at that time that he
could return to work if he resolved his problem with the
Union.
Pearce conceded that Kelley called him about his sick
leave , testifying that he probably told him that he was not
eligible for such benefits under the contract. He denied any
knowledge of any problem Kelley might have had with the
Union or of any upcoming meeting of the executive board.
In view of Kelley's patent confusion concerning the dates
and sequence of his telephone conversations with Pearce;
Kelley's self-contradictory and shifting positions on this
and other crucial matters ; and Pearce 's overall credibility,
Pearce's version of this telephone conversation is credited.
Notwithstanding Kelley's repeated insistence that he first
learned of the existence of a union agreement covering the
baler employees in the telephone conversation with Pearce
regarding sick leave, Kelley admitted elsewhere that he had
previously been told of the existence of the union contract
by the shop steward , who had furnished him with the
address of Union, and informed him that there were two
separate contracts , one applying to the warehousemen and
truckdrivers , and the other to the paper baler employees.
Moreover , Kelley also learned of the baler labor contract
in about October 1972, when he attempted to obtain
funeral leave. Moreover , after first stating that he tele-
phoned Pearce from his home while he was ill, and never
returned to Ralphs afterward , he conceded that, despite his
illness, he called at Ralphs on the day of his telephone
conversation with Pearc, to obtain his paycheck , testifying
that he talked with Pearce in person at 8 o'clock that
morning. According to Kelley, he went to Ralphs for his
paycheck even before his conversation with Pearce because
of rumors he had heard , allegedly before he went home ill,
through Al Bjorklund, his foreman, and unidentified
fellow-employees , that he had been laid off for failure to
pay union dues, and had been expecting a final paycheck
momentarily . Kelley further testified that he did not
receive his final paycheck on Thursday , the day he called
at Ralphs, but received it when he returned the following
day.9
According to Kelley, he had gone to the warehouse on
Wednesday, the night before he telephoned Pearce, to
obtain his paycheck , and talked to Foreman Bjorklund. It
was then that Bjorklund told him of the union letter
requesting his termination , although Bjorklund did not give
him a copy of the letter . Astonishingly, Kelley testified that
Bjorklund told him to look for the letter in Pearce's office,
and that he searched for it on the desks in that office.
9 The paycheck, according to the Company's undisputed records (IBM 299 hours work, with absences due to illness Thursday, Friday, and
computer printout of payroll register) for the payroll ending January 28, was Saturday
in the gross amount of $100 57 and net amount of $85 76, covering a total of
LOCAL NO. 630, TEAMSTERS
Additionally, Kelley testified that he made "two or three
trips to try to get the letter from the union and never did
get it," while admitting that he did not ask Pearce about
the letter because "it wasn't important for me to get the
letter because he told me what it said." Again, Kelley
testified that before talking to Bjorklund he made two or
three visits to the warehouse office to search for the letter,
calling each time in the morning, and questioning the
secretaries about the letter. As to two of these visits, Kelley
testified that they occurred before he became ill, that is to
say, prior to January 25, the last day on which he worked.
On this basis, the alleged rumors of his impending layoff
for failure to pay his union dues would have occurred prior
to the date on which the Union first became aware of his
delinquency.
Business Agent Ruby testified that in about October, he
succeeded Verduzco in administering the union contracts.
He arranged with the employers to have them furnish him
with a roster of the names, social security numbers, and
seniority (hiring) dates of employees covered by the
contract. In November or December (Ruby could not be
more specific), he received such a roster from Ralphs, and
instructed the Union's office employees to check the names
against membership rolls. This revealed that Kelley, hired
on May 1, 1972, had not joined the Union. The record does
not disclose when this was discovered, but on Friday,
January 26, Ruby went to the crate yard at Ralphs'
warehouse to contact Kelley.'(' When Ruby learned that
Kelley was absent due to illness, he left a union business
card with Canfield, and asked him to have Kelley contact
him at the Union on the following Monday before
reporting for work. Next day, Canfield gave Kelley the
union business card, and relayed Ruby's message.
When Kelley failed to appear on Monday, January 29,
Ruby instructed Office Manager Swenson to prepare a
letter to the Company requesting Kelley's termination.
Ruby hand-delivered the letter to Pearce, told him that
Kelley was not in good standing with the local, and should
not be permitted to work thereafter. The letter, on union
stationery, dated January 29. 1973, addressed to Ralphs
Crate Yard at the warehouse, and signed by Archie Neal,
secretary-treasurer and Bob Ruby, business representative,
read as follows:
A check of our records discloses that as of 1 -29-73 the
following named are not in good standing with Local
630, and are to be considered as unqualified personnel.
I. B. J. Kelley $ 104.00
2.
3.
4.
5.
Therefore , unless by not later than 1-29 -73. each
presents to you written evidence that he is in good
standing , we request that you not permit him to work I-
30-73 and thereafter.
10 Ruby testified that with a membership of 7,500, it was impractical to
police the union-security provisions of the contracts and that the Union
relied to a large extent on employees in the bargaining unit to notify newly
hired employees of their union-security obligations This, of course, does
not relieve the Union of its responsibility in this regard or satisfy its
121
Ruby testified that the sum of $104 represented an
initiation fee of $40 and 8 months ' dues , at the rate of $8
per month.
On Thursday, February 1, Kelley reported for work for
the first time since his illness. Foreman Bjorklund had
removed Kelley's timecard on instructions from Pearce.
According to Bjorklund, he gave Kelley a copy of the
Union's letter, and told him that he was not terminated but
would not be permitted to work until he "straightened"
himself out with the Union. Kelley denied receiving a copy
of the Union's letter, testifying that he saw it for the first
time at the hearing. He admitted, however, that he had
learned of the letter from Bjorklund earlier. It is found that
Bjorklund furnished Kelley with a copy of the letter at this
time.
Next day, Friday, February 2, Kelley went to the union
hall, showed Ruby the letter, and told him that he could
not pay the money. Ruby advised him to appear before the
executive board meeting, scheduled for the next day,
Saturday, February 3. at 1 o'clock if he wished to present
his case.
The following day, February 3, Kelley, accompanied by
Lofton, the job counsellor, and Kelley's brother, went to
the union hall where Kelley was to appear before the
executive board. Lofton and Kelley's brother remained
outside when Kelley's case was called. Asked to state his
business before the executive board, Kelley said, "Well,
they say I don't belong to any union." In response to a
question as to why he had never made an effort to "get
squared away" with the Union, Kelley said that he had
been unaware that there was a union contract, and had
never been asked to join. According to Business Agent
William H. Benson, a member of the executive board,
Kelley said that he saw no reason to join because he was
receiving no benefits from the Union.il Furthermore,
Kelley asserted, Ralphs should have withheld any union
dues from his paycheck.
When questioned about any former union affiliation,
Kelley revealed that he had been a member of Teamsters
Local 595, from which he held a withdrawal card, and
stated that he had "worked on practically every dock in
Los Angeles." Asked whether he was not aware, as a
member of an affiliated local on a withdrawal card, that he
was entitled to a transfer, Kelley said that he was not.
Kelley acknowledged to the executive board that he had
seen a copy of the union contract, which he had discussed
with one of the business agents, and that he had told him
that "it wasn't a very good contract to begin with."
Finally, Secretary-Treasurer Neal, who presided over the
meeting, told Kelley that he owed a total of $104, and
asked him if he had the money to pay it, Kelley
acknowledged, in response to a suggestion that the Union
had learned from Warehouse Manager Pearce that Kelley
had accumulated $600, that he had had the money, but had
intended to use it to go into business for himself.12 A recess
was called and Kelley was excused.
During the recess, Kelley reported to Lofton what had
fiduciary duty
ii lliis would be consistent with the fact that Kelley had sought and
been denied funeral and sick leave
12 According to Warehouse Manager Pearce, Kelley had told him this
some months before his termination.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occurred. Observing Benson in the outer office, Lofton
asked him what Kelley's chances were of keeping his job.
Benson was noncommittal. When the meeting reconvened,
and Kelley was called in, Neal told him that he could
acquire good standing by paying $112, which the Union
would permit him to pay in three weekly installments, two,
of $40 each, a week apart, and the balance of $32 the
following week. Kelley protested that he did not have the
money. Reminded about the $600 he had mentioned,
Kelley said he no longer had the money. He was told that
the Union would issue him a clearance so that he could
return to work the same day upon payment of $40. Kelley
repeated that he did not have the money. Neal asked him if
he could pay the $40 the following Monday. Kelley said, "I
don't know; I don't have the money." Neal told him that if
he made the $40 payment, he would be given a clearance to
go to work.i3
When Kelley left the meeting, he told Lofton of the
executive board's decision. Benson came out of the
meeting, anticipating that Kelley, or others whose cases
had been heard, might want to pay him some money.
When Lofton saw Benson , she asked him his name. As he
did not have a business card with him, he wrote his name
and office telephone number on a slip of paper. According
to Kelley, Benson advised him to pay the $40, and told him
that if he did, he, Benson, would "guarantee" that Kelley
would be the next man to "go into the warehouse." Lofton
testified that Benson said that he wanted Kelley to stay on
the job so that he could secure employment in the
warehouse . Benson conceded that one of the persons in
Kelley's group asked him what Kelley's chances were for
such a job, and Benson said they were as good as anyone's,
adding that Kelley was eligible for the job under the
minority program.
Lofton agreed to loan Kelley $40, and the Monday after
the executive board meeting, February 5, accompanied
Kelley to union headquarters to "pay his dues." The events
which followed are in sharp conflict.
In Kelley's version, he told the girl at the window, who
he insisted was Phyllis Swenson, the office manager, that
the executive board had decided that he could pay $40 to
be reinstated to his job. The clerk obtained a card from a
filing cabinet and, after examining it, told Kelley that he
had to pay "$40 twice" or $80. Kelley placed $40 in cash
on the window ledge but the office employee refused to
accept that amount, contending that he was to pay $80.
Lofton advised Kelley to consult the National Labor
Relations Board. The clerk remarked that they were at
liberty to do so, offering to supply them with the telephone
number, and Kelley and Lofton left.
In Respondent Union's version, it was Annette Hakala,
an office clerk, who actually waited on Kelley. Swenson, as
was her custom, had notified the cler::s of the action taken
by the executive board, and told them that some men,
including Kelley, would be coming in for clearance on
Monday. She confirmed that Kelley presented himself at
the window, accompanied by Lofton, and identified
himself by name. Hakala then went to the files and found a
"dummy application" for Kelley.14 After examining the
entry on the back of the card, indicating the amount
required to obtain clearance, she returned to the window
and told Kelley that he could obtain a clearance immedi-
ately on payment of $40, and that he would be required to
pay $40 the following week, and the balance of $32 a week
later. The initial clearance, she explained, would permit
him to work for the remainder of the week. Upon payment
of an additional $40 the following week, he would be
issued another clearance, and with the payment of the
balance of $32 a week later, he would receive his final
clearance. Kelley told her that he had no intention of
paying anything, that he thought Ralphs should have
withheld his union dues from his paychecks. She rejoined
that he should have examined his paycheck stubs to verify
whether Ralphs had been checking off his dues, but that, in
any case, it was his responsibility to see that his dues were
paid. Hakala categorically denied that Kelley offered or
tendered her any money, or that she saw any currency
placed on the counter, and further denied that she ever
refused any money from him. Specifically, she denied
demanding $40 twice or $80, stating that the entry on the
back of the dummy application, as well as the instructions
relayed to her by Swenson from the executive board,
clearly authorized her to accept an initial payment of $40,
a fact borne out by the minutes of the executive board
meeting. Although Swenson would not ordinarily have
become involved in what appeared to be a routine matter,
when she heard the commotion, she joined Hakala at the
window.
Swenson generally corroborated Hakala's testimony
regarding this episode. Although she admitted stating, in a
pretrial affidavit to a Board agent , "I heard Annette
[Hakala ] advise him that he was to pay $40 twice and one
$32 payment per action taken by the executive board," she
testified that all she meant by the statement in her affidavit
was that Kelley was required to pay two successive weekly
installments of $40, and a final payment of $32. According
to Swenson, when Hakala explained this to Kelley, he said
that he could not make the payments. Swenson told him
that the office clerks were under instructions of the
executive board to accept the dues in installments, as
indicated, and that if they did not abide by those
instructions, they could be subject to discharge. She denied
hearing Hakala used the words, "$40 twice," or mention an
amount of $80, and denied that Kelley or anyone on his
behalf offered or tendered the sum of $40 in cash or
otherwise, or placed any money on the counter. In fact,
Swenson testified, if the sum of $40 had actually been
tendered to Hakala, there could have been no occasion for
her, Swenson, to go to the window, because Hakala had
been under instructions to accept the sum of $40 as an
initial installment.
Despite Lofton's testimony that she loaned Kelley $40,
13 Minutes of this executive board meeting reveal, with regard to Kelley's dues a total of $11200 payable in three installments Motion carried.
case
The additional $8 presumably represented dues for the month of February
Case of Bobby R (sic) Kelley being suspended Subsequent to i4 Since Kelley had not actually applied for membership, his name,
discussion of the case by the Board a motion was made and seconded address, and other pertinent information were recorded on a membership
to accept Bobby Kelley for membership for initiation fee plus back application form.
LOCAL NO. 630, TEAMSTERS 123
and accompanied him to the union hall to make certain
that he paid the money , as well as to act as a witness in the
event of a dispute, she did not testify that she actually saw
Kelley offer or tender the amount in cash or place any
money on the window sill. She testified merely that after
she and Kelley left the union hall, he immediately returned
the $40 to her.
Significantly, both Kelley and Lofton testified that they
dealt exclusively with Swenson; that no other office clerk
was present during the entire discussion at the window;
and that they did not even recognize Hakala when she was
identified at the hearing . Considering that Swenson, the
office manager, did not ordinarily become involved in
routine applications For clearances , and intervened on this
occasion only because of the commotion at the window,
Kelley's and Lofton's testimony has been seriously
impugned.
In deciding, however, whether Kelley did, in fact, tender
the $40, which the Union had agreed to accept as an initial
payment, the question naturally arises as to what Kelley's
purpose was in going to the union hall if it were not to
make the payment. While one can only speculate, it should
be borne in mind that , despite his asserted willingness to
comply with the arrangement which the executive board
had offered him, Kelley manifested ambivalent feelings
about joining the Union. He had indicated at his hearing
before the executive board that he had derived no benefits
from the Union; he had admittedly stated his disapproval
of the union contract to the business agent who had
furnished him with a copy; he had argued that his
employer should have checked off his union dues (al-
though he had never authorized the employer to do so).
and had protested that he did not have the money and
could not procure it unless he were permitted to work.
After counselling Kelley to resort to the National Labor
Relations Board, Lofton allegedly loaned him the $40, and
accompanied him to the union hall, ostensibly to make
certain, according to her, that he made the payment, as
well as to act as a witness in the event of a dispute. Yet
nothing had occurred up to that time even to suggest that
there was any controversy regarding the amount of
Kelley's dues delinquency or the method of payment.
Whatever may have impelled him to change his mind, it
can only be surmised that Kelley entertained second
thoughts about acquiring good standing in the Union, and
sought to confuse the issue by claiming that the office clerk
had refused the $40 amount and demanded $80, contrary
to her specific instructions. It is, therefore, not unlikely that
Kelley's true purpose in going to the union hall, and having
Lofton accompany him to act as a witness, was to attempt
to lay a predicate for the filing of an unfair labor practice
charge against the Union. Be that as it may, without
speculating about his real reason for presenting himself at
the union hall, and even assuming that he actually had the
$40 in his possession at the time, the preponderance of the
credible evidence, especially the mutually corroborative
testimony of Hakala and Swenson, does not support a
finding that Kelley made a tender of the requisite amount
to acquire good standing in the Union. It is found that no
such tender was made.
Next day, Tuesday, according to Kelley, he went to
Lofton's office to obtain a "referral slip" to the National
Labor Relations Board . At Lofton's suggestion , Kelley
placed a call to Business Agent Benson , while Lofton
listened in on an extension . Kelley allegedly told Benson
that he had gone to the union hall on Monday to pay the
$40 but that it had been refused due to a misunderstanding
that he was required to pay "$40 twice ." At that point,
Lofton testified , she hung up the extension phone . Neither
Kelley nor Lofton had the $40 by that time , but Kelley
testified that he called Benson to find out whether Benson
could "work out something," such as an "extension," and
to have him confirm that he had attempted to pay the $40.
According to Kelley , Benson told him to "try to get the
$40," and he would be at the union hall to see that the
money was accepted . Kelley did not follow Benson's
suggestion because , according to Kelley, he no longer had
the money and was unable to borrow it.
Benson , however , testified that he received a call from
Kelley, but that he was certain it was on Friday, rather
than Tuesday, because under his work schedule he would
not have been in his office on the Tuesday Kelley claimed
he called . In any event , Benson denied that Kelley told him
that he had attempted to pay the $40 at the union hall and
that it had been refused , and further denied telling Kelley
that if he brought that sum to the union hall , he would be
there personally to see that it was accepted . Benson denied
that any such conversation took place . According to him,
Kelley called to ask whether he could appeal the executive
board's decision and how he could proceed . Benson told
him that he would have to pay his back dues before
anything could be done . During the conversation , Kelley
told Benson that he had wanted a job on the produce
warehouse dock but that he felt that Ralphs was prejudiced
against him , and had refused to hire him in that capacity
ostensibly because of a back condition , which had been
incorrectly diagnosed due to an inadvertent substitution of
X-rays. Benson told him that if there was an opening for
which he was qualified , there was no reason he could not
have it . particularly in view of the "minority program," but
that the Union could not represent him unless he paid his
delinquent dues.
It is evident that Kelley called Benson primarily to find
out whether there was any way he could take an appeal
from the decision of the executive board , and to enlist his
aid in obtaining union clearance , without the necessity of
laying out any immediate funds. It is equally apparent that
Kelley was eager to obtain a warehouse job and, in light of
Kelley's repeated mention of the subject, it is plausible that
Kelley would have broached the subject again. On the
other hand , there appears to be no logical reason for
Benson to have denied that he offered to make certain
personally that the Union accepted the $40 from Kelley if
he could raise it, if he actually made the statement. If
anything , such an offer would have tended to mitigate the
action taken by the Union . Moreover , Lofton's testimony
that she eavesdropped on the telephone conversation
between Kelley and Benson only until she allegedly heard
Kelley say that he had attempted to make the $40 payment
at the union hall , and it had been refused , and then hung
up, appears to be a contrived attempt to corroborate
Kelley's testimony regarding the purported tender.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under all the circumstances, and based primarily on the
appearance and demeanor of the witnesses involved, it is
found that Kelley did telephone Benson but only for the
purpose of ascertaining whether he could appeal the
decision of the executive board, and what steps he could
take to obtain some further leniency from the Union. It is
further found that the evidence regarding this telephone
conversation furnishes no corroboration for Kelley's
contention that he made a tender of the $40 to the Union
on the day in question, as he maintained.
On about February 5 or 6, according to Warehouse
Manager Pearce, presumably after Kelley and Lofton went
to the union hall, Kelley called Pearce and asked him
"what was up." Pearce reiterated that the Union had
requested his termination because he was not in good
standing. Kelley asked him what he ought to do about it,
and Pearce told him to make his peace with the Union,
stating that as soon as he furnished proof of good standing,
Pearce would put him back to work. There was no showing
that Kelley told Pearce that he had attempted to do so but
had been denied. Pearce also testified, without contradic-
tion, that during one or more telephone conversations the
same week, Kelley told him that he had no intention of
paying his union dues or of returning to work at Ralphs.
Kelley has not since paid or tendered the sum of $112,
representing the initiation fee and dues for the month
ending February, or any part of said sum and, on February
14, 1973, was formally terminated.
Issues; Contentions; Concluding Findings of Fact
Section 8(a)(3) of the Act proscribes discrimination in
regard to hire or tenure of employment to encourage or
discourage membership in a labor organization. It does,
however, permit union-security agreements, within the
limitations of that section, with the proviso that employees
may not be discriminated against under such an agree-
ment, except for failure to tender periodic dues and
initiation fees uniformly required as a condition of
acquiring or retaining membership. Under the correlative
provision, Section 8(b)(2), a labor organization commits an
unfair labor practice when it causes or attempts to cause an
employer to discriminate against an employee in violation
of Section 8(a)(3) or to discriminate against an employee
with respect to whom membership in such organization has
been denied or terminated on some ground other than his
failure to tender the periodic dues and the initiation fees
uniformly required as a condition of acquiring or retaining
membership. In applying these provisions the Board has
held, with court approval, that as a precondition to
demanding the discharge of an employee for delinquency
in payment of union dues and initiation fees, the Union is
under a fiduciary duty to deal fairly with the employee,
requiring at a minimum "that the Union inform the
employee of his obligations in order that the employee may
take whatever action is necessary to protect his job tenure."
15 See also N.L.R.B. v. Local 182, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, 401 F.2d 509, enfg. 156
NLRB 335, as amended, 169 NLRB 1143, cert. denied. 314 U.S. 213;
International Association Bridge, Structural and Reinforced Iron Workers
Union, Local 378, AFL-CIO (Judson Steel Corporation), 192 NLRB 1069,
and cases cited.
N. L. R. B. v. Hotel, Motel and Club Employees' Union, Local
568, AFL-CIO (Philadelphia Sheraton Corp.), 320 F.2d 254,
258 (C.A. 3, 1963).'5
Furthermore, the Board and the Courts have held that
the Union's fiduciary duty to notify the employee of his
obligations under the union-security provisions of the
contract is not satisfied by the fact that the employee may
have acquired independent knowledge of the existence of
the union-security clause and his obligations thereunder.16
It must be assumed, however, that the policy of the
Board was never intended to be so rigidly applied as to
permit a recalcitrant employee to profit from his own
dereliction in complying with his obligations as a union
member on withdrawal status, or under circumstances such
as those presented here.
The question here is whether the special and unusual
circumstances of this case justify a departure from the line
of cases in which unions have been found to have violated
Section 8(b)(2) by failing to notify the employee directly of
his union-security obligations and affording him a reasona-
ble opportunity to comply, before requesting his termina-
tion. Cases on which the General Counsel relies have
usually involved situations where employees have attempt-
ed to acquire union membership, paid or attempted to pay
or tender initiation fees and union dues, which were
refused, or where membership may have been refused for
invidious reasons.'7
Summarizing the salient facts, the record discloses that
Kelley was hired at Ralphs on May 1, 1972. There was then
in force and effect a valid union-security contract,
requiring membership in the Union as a condition of
employment after 30 days. While employed by another
company in the Los Angeles area in 1970, Kelley had been
a member of Local Union 595, a sister local, affiliated with
the International Brotherhood of Teamsters. On March 31,
1970, he obtained an honorary withdrawal card from that
Local.
Under the International constitution, the pertinent
provisions of which were excerpted on the back of the
withdrawal card, a union member on withdrawal is
required "[i]mmediately upon going to work, or before if
practicable, [to] make a request" for a transfer from the
Local of which he is a member to the Local into which he
is seeking to transfer. "Within forty-eight (48) hours after a
member has received a transfer card he shall deposit the
same with the Local Union to which he seeks to transfer,
and upon such deposit the transfer shall become effective."
(International constitution, article XVIII, section 3(a). By
complying with the provisions regarding transfer, the
member is exempted from paying an initiation fee to the
new Local. Failure to comply, however, results in the loss
of this benefit.
Had Kelley complied with his union obligations, and
deposited his withdrawal card with Respondent Union, it
is obvious that he would have been apprised of the
existence of the union-security contract with Ralphs and of
16 International Association of Bridge, Structural and Reinforced Iron
Workers Union, Loca1378, AFL-CIO, supra, and cases cited.
17 See, e.g., International Association of Bridge, Structural and Reinforced
Iron Workers Union, Local 378, AFL-CIO (Judson Steel Corporation), supra,
and collected cases.
LOCAL NO. 630, TEAMSTERS
his financial obligations thereunder. Kelley admitted at the
hearing before the executive board that he was aware of his
obligation to deposit his withdrawal card upon going to
work for an employer under contract with a Local
affiliated with the International Brotherhood 18 His only
reason for not doing so, he contended, was that he was
unaware that Ralphs was under a contract with the Union.
The record indisputably establishes that Kelley was
aware, at least as early as October 1972 (when he
attempted to obtain funeral leave), if not soon after he was
hired (through Warehouse Manager Pearce and fellow-
employee Canfield), not only of the existence of a union
contract but of the union-security provisions thereunder.
Moreover, when he went to the union hall in October, he
was provided with a copy of the contract which clearly set
forth the union-security provisions on the very first page
(of a mere 5 1/2 page document) and, despite his denial
that he read any of the provisions, excepting those relating
to "funeral leave" (or the absence of such provision), and
the health and welfare provisions, he admittedly read the
checkoff provisions (at a much later date, according to
him) and insisted, in fact, that his union dues should have
been checked off, although he had never authorized it.
Granting that, under decided cases, these circumstances
may not have relieved the Union of its duty to notify
Kelley of his financial obligations before requesting his
termination, the fact is that Kelley had actual knowledge,
albeit from sources other than the Union, and under his
obligations as a union member on withdrawal, was duty
bound to deposit his withdrawal card with Respondent
Union. At the very least, the knowledge he acquired of the
existence of the union-security contract, coupled with his
obligation to deposit the withdrawal card, imposed a duty
on Kelley to make further inquiry of the Union. Thus, the
plight in which he found himself was due as much to his
failure to abide by his union membership obligations as to
the Union's neglect in notifying him of his union-security
obligations.
Kelley had worked for Ralphs some 9 months before the
Union discovered that he had never complied with the
union-security requirements. Whatever may be said re-
garding the Union's lack of diligence in policing the union-
security provisions of the contract, it is obvious that, by the
simple act of depositing his withdrawal card and accom-
plishing his transfer to the Union, he would have obviated
all his problems arising from any alleged ignorance of his
financial obligations under the union-security provisions.
Instead, he wilfully and deliberately sought to evade his
union-security obligations, on the pretext that he had never
been notified directly by the Union of the existence of a
union-security contract, and his financial obligations
thereunder. Yet. at the same time, this did not deter him
from seeking benefits under a contract, a copy which had
been furnished him, which he claimed was not binding on
him. At the hearing before the executive board, he
is This, despite his denial that he had ever read the hack of the
withdrawal card, or that he had knowledge of its contents In any event, this
would not relieve Kelley of his union obligations "The articles of agreement
of a labor union , whether called a constitution, charter, by laws, or by any
other name , constitute a contract between the union and its members, as
well as a contract between the members of the union, which the courts will
enforce " 48 Am Jur 2d 103 Members of a labor union are hound to
125
protested that he had received no benefits under the
contract, and saw no reason he should join the Union.
Moreover, despite his claim that he had been totally
unaware of the existence of the union-security contract, he
asserted that his union dues should have been checked off
from his wages.
Notwithstanding Kelley's attitude, and even after for-
mally requesting his termination , Respondent Union
afforded him an opportunity to acquire good standing by
permitting him to satisfy his delinquency in installments,
and agreeing to grant him clearance to return to work on
payment of the initial installment , with similar clearances
upon payment of each succeeding installment. The
elaborate strategem by which Kelley claimed to have made
a tender of the initial payment appeared wholly contrived
and unconvincing.
The record, taken as a whole, fairly establishes that
Kelley engaged in a calculated attempt to evade the union-
security obligations of the contract, as long as he was able
to do so, and until it was discovered that he was not a
member in good standing.
It has been said that the protection of Section 8(b)(2) was
never intended to be extended to "free riders," a phrase
which aptly describes Kelley's status during his employ-
ment at Ralphs.19 Furthermore, it would be grossly unjust
and inequitable to permit Kelley to profit from his own
disregard of his obligations as a union member on
withdrawal status.
It is, therefore, found, upon the basis of the foregoing
and the entire record , and under the special circumstances
of this case, that, by causing or attempting to cause
Kelley's discharge, on January 29, 1973, Respondent has
not engaged in unfair labor practices within the meaning of
Section 8(b)(2) and (1)(A) of the Act, and it will, therefore,
be recommended that the complaint be dismissed.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Ralphs Grocery Company, the Employer herein, is
now, and at all times material herein has been, an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(2). (6), and (7)
of the Act.
2. Produce, Refrigerated & Processed Food & Industri-
al Workers Local No. 630, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Respondent Union herein, is. and at all times
material herein has been, a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent Union has not engaged in unfair labor
practices within the meaning of Section 8(b)(2) and (1)(A)
of the Act
Upon the basis of the foregoing findings of fact and
know the constitution of their society Lawlor v Lowe, 235 U S 522
VI "IT]he congressional policy underlying Section 8(h)(2) and [Section
8(a)(3)(B ) l was not to protect free riders against excessive union
demands , but rather to insure that employees who were willing to pay their
financial obligations were not discharged for improper reasons." Great
Lakes Dnrtnu, Seafarers ' International Union of North America, AFL-(7O
(Tomlmcon Fleet Corporation), 149 NLRB 1114,1121
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conclusions of law, and upon the entire record, and ORDER20
pursuant to Section 10(c) of the Act, the undersigned
makes the following recommended: The complaint is dismissed in its entirety.
20 in the event no exceptions are filed as provided by See 102 46 of the 102 48 of the Rules and Regulations , be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board , the findings, its findings , conclusions , and order, and All objections thereto shall be
conclusions , and recommended Order herein shall, as provided in Sec deemed waived for all purposes