Operating Engineers Local 542C (Ransome Lift)

National Labor Relations Board - Board Decisions

Jul 31, 1991

303 N.L.R.B. 1001 (N.L.R.B. 1991)

1001
303 NLRB No. 157
OPERATING ENGINEERS LOCAL 542C (RANSOME LIFT)
1 The General Counsel filed a cross-exception to the judge’s ‘‘apparent find-
ing’’ that the only reason that the Respondent’s notice to Lavelle of his delin-
quent dues payments was deficient was because it contained an overcharge.
The judge found, and we agree, that the Respondent’s notice to Lavelle was
also deficient because of the Respondent’s failure to give Lavelle a reasonable
opportunity to meet his dues obligation before initiating any adverse action
against him. R. H. Macy & Co., 266 NLRB 858, 860 (1983); Teamsters Local
572 (Ralphs Grocery), 247 NLRB 934, 935 (1980); Boilermakers Local 732
(Triple A South), 239 NLRB 504 (1978). We further find that the notice was
deficient because it did not adequately inform Lavelle of the method used to
compute the amount owed. Teamsters Local 122 (August A. Busch & Co.),
203 NLRB 1041, 1042 (1973), enfd. mem. 509 F.2d 1160 (1st Cir. 1974).
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
3 In his posthearing brief to the judge, counsel for the Respondent asserted
that Lavelle ‘‘told one co-worker that he was not going to pay the Union.’’
The judge, at fn. 10 of his decision, stated that the ‘‘record unmistakably dem-
onstrates that this is in error.’’ Contrary to the judge’s finding, the record sup-
ports the Respondent’s assertion. However, the alleged statement was made in
January 1988, prior to Lavelle’s joining the Union in March 1988, paying the
initiation fee and a 3-month advance on his monthly dues, and signing a
checkoff authorization card allowing the Employer to withhold and remit to
the Union 1 percent of his weekly wages. Under these circumstances, we find
that while Lavelle may have been negligent in not paying his $8 monthly dues
in a timely manner, there is no evidence to indicate that he ‘‘willfully and
deliberately sought to evade his union-security obligations.’’ Teamsters Local
630 (Ralph’s Grocery), 209 NLRB 117, 125 (1974).
Chairman Stephens deems this case distinguishable from I.B.I. Security, 292
NLRB 648 (1989), in which the Board (Member Cracraft dissenting) found
that the union did not breach its fiduciary obligation when it informed a delin-
quent employee of the need to pay an initiation fee, the amount of the fee,
the possibility of discharge for failure to pay, and gave the employee ample
time to tender payment. In that case, the Board found that even if the union
had not fully complied with the notice requirements, it would not have found
a violation because the employee willfully evaded his union responsibilities.
Here, we find that Lavelle did not willfully seek to evade his dues obligation.
Thus, by failing to comply with the notice requirements, the Respondent has
violated Sec. 8(b)(1)(A) and (2) of the Act.
Member Cracraft notes that in I.B.I. Security she would have found that the
union violated Sec. 8(b)(1)(A) and (2), and therefore finds it unnecessary to
distinguish that case.
4 In his recommended Order the judge failed to include an expunction rem-
edy. In R. H. Macy, 266 NLRB at 861 fn. 19, the Board found that such a
remedy is necessary and appropriate in all cases in which a union causes an
employee to be unlawfully discharged, laid off, or otherwise discriminated
against. We shall modify the judge’s recommended Order accordingly.
5 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
International Union of Operating Engineers, Local
542C (Ransome Lift) and John Lavelle. Case 4–
CB–6009
July 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On April 15, 1991, Administrative Law Judge Joel
A. Harmatz issued the attached decision. The Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed a brief in response, a cross-ex-
ception,1 and a brief in support of his cross-exception.
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,2 and con-
clusions,3 and to adopt the recommended Order as
modified and set forth in full below.4
ORDER
The National Labor Relations Board orders that the
Respondent, International Union of Operating Engi-
neers, Local 542C, Norristown, Pennsylvania, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Causing or attempting to cause Ransome Lift to
discharge or otherwise discriminate against John
Lavelle, or any other employee, for failure to tender to
the Respondent periodic dues without adequately ad-
vising him of his obligations, in violation of Section
8(a)(3) of the Act.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act, except to the extent
that those rights may be affected by an agreement re-
quiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(a)(3) of
the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make John Lavelle whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against him, with interest as set forth in
the remedy section of the judge’s decision.
(b) Remove from its files, and ask the Employer to
remove from the Employer’s files, any reference to
John Lavelle’s unlawful discharge request and notify
him in writing that it has been done and that evidence
of this unlawful action shall not be used as a basis for
future action against him.
(c) Post at its business office copies of the attached
notice marked ‘‘Appendix.’’5 Copies of the notice, on
forms provided by the Regional Director for Region 4,
after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive
days in conspicuous places including all places where
notices to members are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that
the notices are not altered, defaced, or covered by any
other material.
(d) Forward a sufficient number of signed copies of
the notice to the Regional Director for Region 4 for
posting by Ransome Lift at its place of business in
Bensalem, Pennsylvania, in places where notices to
employees are customarily posted, if the Employer is
willing to do so.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
1002 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Employer appears as amended at the hearing.
2 The General Counsel’s motion to correct inadvertent errors in the official
transcript is noted and granted.
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
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.
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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT cause or attempt to cause Ransome
Lift to discharge or otherwise discriminate against
John Lavelle, or any other employee, for failure to ten-
der periodic dues without adequately advising him of
his obligations, in violation of Section 8(a)(3) of the
Act.
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, except to the extent that
those rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment.
WE WILL make John Lavelle whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, with interest.
WE WILL remove from our files and ask the Em-
ployer to remove from the Employer’s files any ref-
erence to John Lavelle’s discharge request and notify
him in writing that it has been done and that evidence
of this unlawful action will not be used as a basis for
future action against him.
INTERNATIONAL UNION OF OPERATING
ENGINEERS, LOCAL 542C
Donna Nutini, Esq., for the General Counsel.
Jonathan Walters and Charles T. Joyce, Esqs. (Walters,
Willig, Williams and Davidson), of Philadelphia, Pennsyl-
vania, for the Respondent.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. This case
was tried in Philadelphia, Pennsylvania, on January 29, 1991,
on an unfair labor practice charge filed on January 25, 1990,
and a complaint issued on May 25, 1990, alleging that the
Respondent1 violated Section 8(b)(1)(A) and (2) of the Act
by attempting to cause, and causing the Employer, Ransome
Lift, to terminate John Lavelle on grounds proscribed by the
Act. In its duly filed answer, the Respondent denied that any
unfair labor practices were committed. Following close of the
hearing, briefs were filed by the General Counsel and the
Respondent.
On the entire record,2 including my opportunity directly to
observe the witnesses while testifying and their demeanor,
and after considering the posthearing briefs, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION
The Employer is a Pennsylvania corporation, engaged in
the sale and service of heavy equipment from its facility lo-
cated in Bensalem, Pennsylvania. In the course thereof, the
Employer, during the calendar year preceding issuance of the
complaint, sold and shipped products valued in excess of
$50,000 directly to points outside the Commonwealth of
Pennsylvania. The complaint alleges, the answer admits, and
I find that the Employer is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Respondent, International Union of Operating Engineers,
Local 542C (the Union), is a labor organization within the
meaning of Section 2(5) of the Act.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Issues and Position of the Parties
This case stems from the Employer’s adherence to the
Union’s request that employee John Lavelle be removed
from payroll because of a delinquency in his membership
dues. The complaint, as amended, avers that the Union inter-
vened in this respect without first affording adequate guid-
ance to Lavelle concerning his obligations under the union-
security clause.
The Respondent defends on grounds that Lavelle was op-
posed to the Union, as well as his obligation to pay union
dues, and that, ultimately, the Union caused his separation
only after Lavelle adamantly refused to pay after he was ap-
prised of his precise arrearages in itemized form.
B. Background
The Employer is engaged in the service and repair of
heavy construction equipment. These operations, often, are
performed offsite, in the Employer’s shop. At this location,
1003OPERATING ENGINEERS LOCAL 542C (RANSOME LIFT)
3 The Respondent unlike constituent building trade locals of the International
is organized on an industrial basis, representing shops essentially engaged in
offsite work in a factory setting.
4 Documentary evidence shows that International Union of Operating Engi-
neers of Eastern Pennsylvania and Delaware, pension and welfare funds, which
is not a party to this proceeding, but which serves as a collection agent on
behalf of the Respondent and its sister locals, acknowledged continued receipt
of dues checked off on behalf of Lavelle during the entire period between his
expulsion and the January termination. G.C. Exhs. 4 and 5.
5 Lavelle testified that at no time between June 1988 and January 16, 1990,
did any union representative discuss his dues obligation with him. However,
he testified that in June 1988, after the new contract had been negotiated, Matt
Smith gave him a checkoff authorization, which he signed and later returned.
He claims that he did not pay his monthly dues because he assumed it had
been deducted from his pay and remitted to the Union.
6 Serota testified that this was his first involvement in the events leading to
the January termination. He avers that in this phone conversation, Lavelle stat-
ed that he believed he had ‘‘screwed up’’ as he thought he was behind in his
dues.
7 Lavelle was rehired in May 1990.
the Employer utilizes a fixed, stationary work force, distinct
from transitory employees customarily represented by the
Operating Engineers on construction jobs.3
Lavelle was hired on August 31, 1987. He completed his
probationary period on November 30, 1987. At that time, by
virtue of article 1, section 4, of the governing collective-bar-
gaining agreement, he was obligated to pay union dues and
initiation fees as a condition of continued employment. (Jt.
Exh. 2.) He did not, however, join the Union at that time,
explaining that he lacked the $68 necessary to meet initial
membership obligations. Several months later, but prior to
March 1988, Lavelle, having borrowed that sum from his
mother, signed a membership application, and other docu-
ments requisite to entry. (R. Exh. l(b).)
From the outset, Lavelle was aware that the Respondent
maintained a two-tiered dues structure. Thus, as described in
a letter forwarded to him by the Union in March 1988, the
financial obligations were to be met through two payments:
(i) monthly dues of $8, plus (ii) weekly dues measured by
1 percent of his gross weekly earnings. (R. Exh. 4.) On join-
ing, Lavelle executed a checkoff authorization covering his
weekly dues. However, at the time, payroll deduction was
not an available medium for remittance of monthly dues.
Until his termination, Lavelle, through checkoff authoriza-
tion, met in full the much larger, percentage of earnings obli-
gation. (G.C. Exh. 4.)
As might he expected, the fixed monthly charge was the
root of Lavelle’s problem. Thus, his initiation fee of $68, in-
cluded a 3-month advance, satisfying his monthly dues
through May 1988. Thereafter, until his termination on Janu-
ary 16, 1990, he did not make a single $8 payment.
In the interim, on August 17, 1988, the Union attempted
to advise Lavelle by certified letter that his monthly dues
were 3 months in arrears, that he would be suspended unless
payment in full were forwarded by August 31, 1988, and ex-
pelled if not paid within 6 months. (R. Exh. 6.)
In September 1988, pursuant to renewal negotiations, the
collective-bargaining agreement was revised, for the first
time allowing employees to authorize check off of their
monthly dues. Lavelle avers that he was under the impres-
sion that he availed himself of this opportunity by execution
of the appropriate checkoff authorization. Neither the Re-
spondent nor the Company had evidence that he did so.
Monthly dues were never deducted from his wages.
As the August 17, 1988 letter warned, Lavelle pursuant to
internal union rules was suspended for nonpayment of
monthly dues in August 1988, and expelled in December
1988 for that same reason. On expulsion, the Union contin-
ued to collect his weekly dues,4 but did not specifically in-
form him that he had lost all vestige of union membership.
It was not until January 16, 1990, 15 months after it alleg-
edly sent the August 1988 warning letter, that the Union in-
formed Lavelle of his ongoing indebtedness for nonpayment
of monthly dues, and the 1988 internal penalties imposed for
that reason.5
The delay was understandable. Local union officials did
not monitor dues payments and were unaware of any defi-
ciency until Lavelle himself inquired if he were paid up.
Thus, in January 1990, the Union effected an increase in the
monthly dues from $8 to $12 per month. Membership ap-
proval was sought, and in the process, a shop steward
learned that Lavelle’s name was omitted from a computer
printout of those that had authorized checkoff of monthly
dues. When the issue was broached to Lavelle, he expressed
belief that he had signed a ‘‘card’’ and should have been on
the checkoff list. The steward verified with the Company’s
personnel department that this was not the case, and then ad-
vised Lavelle to clarify his dues status with the Union.
Lavelle called Business Agent Guy Serota, who was un-
aware of Lavelle’s situation and indicated that he would in-
vestigate.6 In doing so, Serota learned for the first time that
Lavelle had been suspended in August 1988, and actually ex-
pelled in December 1988 for failure to pay monthly dues.
Against this background, and solely because of his finan-
cial problems with the Respondent, Lavelle was removed
from the Company’s payroll on January 16.7
C. Analysis
A labor organization’s use of a union-security clause to
enforce financial membership obligations is subject to pre-
conditions; one, expressly stated in the Act, a second, im-
posed by interpretation. The first proviso to Section 8(a)(3),
in terms, denies use of union-security agreements to enforce
membership obligations ‘‘other than the failure of the em-
ployee to tender the periodic dues and the initiation fees uni-
formly required as a condition of acquiring or retaining
membership.’’ Any other pecuniary charge, even if levied le-
gitimately, must be collected without impact on employment
rights or tenure. Associated Fur Mfrs., 280 NLRB 922
(1986).
Additionally, it is well settled that even where the under-
lying debt is limited to privileged dues and/or fees, a union’s
demand for termination might still run afoul of the Act.
Thus, a labor organization is charged with a fiduciary duty
to deal fairly with represented employees, an obligation de-
fined by the Board in Helmsley-Spear, Inc., 275 NLRB 262
(1985), as follows:
We have consistently held that labor organizations
seeking to enforce valid union security provisions have
a strict fiduciary duty to advise employees of their con-
tractual obligations to maintain membership in good
standing before initiating any adverse action against
them. . . . Among other things, this duty includes the
obligations to apprise a dues-delinquent employee of
1004 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The parties stipulated that the return receipt that accompanied the letter
was never received by the Respondent, and the letter was not returned as un-
delivered. Lavelle denies ever having seen it. At the time the address used by
the Union in communicating by mail with Lavelle was ‘‘25 Pinewood Drive,
Levittown, PA,’’ when his actual address was ‘‘251 Pinewood Drive, Levit-
town, PA.’’ The General Counsel concedes that mail addressed to Lavelle at
the former location would automatically be forwarded by the postal service to
his correct address. Lavelle testified that although this was his legal address
he did not believe that he physically resided there at the time. He had received
other union mailings at this location. Even if controlled by Fansteel, Inc., 236
NLRB 1365, 1366 (1978), and Lavelle were deemed to have received this let-
ter, this communication forwarded 15 months earlier would in no fashion sat-
isfy fiduciary duties that did not mature until the Respondent sought to inter-
fere with his employment. ‘‘[T]he Union must bear the responsibility for . . .
ambiguity. . . . in its effort to substantiate compliance with fiduciary duties.’’
H. C. Macauley Foundry Co. v. NLRB, 533 F.2d 1198, 1201 (9th Cir. 1977).
9 In so concluding, I have not overlooked the fact that Lavelle had reason-
able grounds for suspecting that he had not paid his monthly dues. Thus, after
checkoff was extended to monthly dues, payroll stubs included separate
itemization for monthly dues and the weekly percentage of earnings deduc-
tions. Lavelle avers, somewhat incredulously, that he did not ‘‘usually’’ look
at his pay stub. Even were that the case, anyone who had executed a checkoff
card would be reminded of his having done so by the one check per month
which would net less than the others. This would be particularly so in the case
of Lavelle because he basically worked straight time with earnings therefore
demonstrating consistency as to amount. In any even, the fact that an em-
ployee knowingly waits to be alerted to delinquency is not indicative of a con-
scious choice not to pay. The Union cites Teamsters Local 630 (Ralph’s Gro-
cery), 209 NLRB 117, 124 (1974), for the proposition that ‘‘a recalcitrant em-
ployee [is not permitted] to profit from his own dereliction.’’ On the facts of
this case, the question is whether Lavelle should be penalized with employ-
ment loss because of the Union’s dereliction.
10 In his posthearing brief, counsel for the Respondent asserts that Lavelle
‘‘told one co-worker that he was not going to pay the Union.’’ The record
unmistakably demonstrates that this is in error. Miscite of the record on a mat-
ter which goes to the heart of a contention is difficult to dismiss as inad-
vertent.
the amount of dues arrearage, the time period in ques-
tion, and the precise amount of any reinstatement fee
that may be required.
The complaint, as amended, challenges the Union’s inter-
ference with Lavelle’s employment on a single ground. Thus,
it describes the Union’s action as ‘‘based on the claim that
John Lavelle was in arrears in paying dues to the Respond-
ent, notwithstanding Respondent’s failure to adequately ad-
vise Lavelle of his obligations.’’
Before considering the General Counsel’s position in this
regard, I reject the Union’s contention that Lavelle ‘‘know-
ingly and will fully evaded his his dues obligation, ‘‘ hence
was a ‘‘free rider,’’ who failed to qualify for statutory pro-
tection. See, e.g., Teamsters Local 630 (Ralph’s Grocery),
209 NLRB 117, 124 (1974). The obligation to members
under that policy will be relaxed only in extreme cir-
cumstances. The evidence must disclose a conscious deter-
mination by the employee to frustrate payment. ‘‘Negligence
and inattention to union concerns are not the equivalent of
the willful attempt to evade lawful financial obligations at
which the ‘free rider’ exception is aimed.’’ Helmsley-Spear,
Inc., 275 NLRB 262, 263 (1985).
This is not a case were an employee has frustrated per-
sistent efforts by a union to square accounts. Though
Lavelle, personally, never remitted his monthly dues, the Re-
spondent’s officials prior to January 16 were unaware that
this was the case. In fact, they routinely were unaware of the
status of membership accounts, and apparently maintained no
records of those on the Respondent’s rolls who had or had
not authorized monthly dues checkoff.
Thus, the fault lies with the Union, not Lavelle.
Uncontested evidence refutes any notion that he labored
under any preconceived design to defeat any aspect of his
dues obligation. From the inception of his membership,
Lavelle stood in full compliance with the far more costly im-
post of weekly dues. See Kaiser Foundation Hospitals, 258
NLRB 29, 31 fn. 4 (1981). The Union retained these pay-
ments throughout the period of delinquency, although neither
billing Lavelle nor initiating efforts to collect monthly dues
any time after the 1988 expulsion. Only once, from the date
Lavelle joined the Union until January 16, was there a for-
mal attempt to communicate delinquency. This was by letter
dated August 17, 1988, which was mailed to an erroneous
address, without the Union having secured evidence of deliv-
ery.8 Under the precedent, it was incumbent on the Union to
‘‘take the necessary steps to make certain that a reasonable
employee will not fail to meet his obligation through igno-
rance or inadvertence, but will do so only as a matter of con-
scious choice.’’ Valley Cabinet & Mfg., 253 NLRB 98, 108
(1980).
That Lavelle had not selected such a course is evident
from the compelling, again incontestable fact, that it was
Lavelle, himself, who awakened the Union. Thus, his Janu-
ary 1990 inquiry was an unpressured step which led the Re-
spondent’s officials to discover the suspension, expulsion,
and debt. Indeed, far from repudiating any obligation, ac-
cording to Serota, Lavelle opened this conversation, stating
that he thought he had ‘‘screwed up’’ as he thought he had
fallen behind in his dues. This is hardly the course of action
that would have been selected by one seeking to evade his
dues obligation. In the total circumstances, I am convinced
that Lavelle would have complied with the monthly require-
ment just as he had in the case of weekly dues, and, thus,
short-circuited this entire controversy, had the Respondent
demonstrated ordinary diligence in monitoring arrearages.9
See, e.g., Kaiser Foundation Hospitals, 258 NLRB 29
(1981); Electrical Workers IBEW Local 3 (General Electric),
299 NLRB 995 (1990). Accordingly, as in R. H. Macy Co.,
266 NLRB 858, 860 (1983), it is concluded that Lavelle’s
‘‘failure to keep up with his payments resulted more from in-
attention and neglect, induced in large part by the Union’s
own inattention to such matters, rather than any deliberate or
conscious effort on his part to avoid paying dues.’’ 266
NLRB at 860.
In the above connection, I have considered and rejected
the Respondent’s contention that Lavelle’s 1987–1988 delay
in joining the Union, or his joining coworkers in expressing
exasperation with the value of dues, reflected a propensity on
his part to evade his responsibilities toward the Union. Con-
sidered in conjunction with the above factors, these vagaries
do not suggest that Lavelle held a resistive attitude toward
the payment of dues,10 that he was disposed to give the
Union the ‘‘runaround,’’ or that he was of a mind to chal-
lenge the Union’s power to collect sums rightfully due and
owing. Cf. Big Rivers Electric Corp., 260 NLRB 329 (1982).
Beyond that, the General Counsel insists that the Union
failed to comply with preconditions for terminating a mem-
ber because of dues arrearages. Union security is merely au-
thorized as a collection medium, and not a vehicle for pun-
ishing delinquent employees with job loss. Therefore, the
Union before requesting termination ‘‘at a minimum must in-
1005OPERATING ENGINEERS LOCAL 542C (RANSOME LIFT)
11 An overcharge was involved here which betrays lawful invocation of a
union-security clause. ‘‘[T]he only obligation an employee has under the com-
pulsion of the proviso to Section 8(a)(3) . . . is to pay dues for the period
of employment with the employer who is party to the contract. . . . Mont-
gomery Ward & Co., 121 NLRB 1552, 1558 (1958). Shippers Imperial, 281
NLRB 255, 259 (1986), enfd. 838 F.2d 1217 (9th Cir. 1988). The assigned
total for back dues encompassed delinquencies, when computed at $8 per
month, which accounted for a debt spanning at least 31 months. Lavelle had
been hired on August 31, 1987. Prior to January 16, his entire work history
consisted of only 28 months, including 3 months for which his monthly dues
had been paid, as well as a 3-month probation, neither of which could support
an enforceable claim of dues liability. Del E. Webb New Jersey, 278 NLRB
169, 171 (1986); Tallman Constructors, 238 NLRB 159, 160 (1978); Plain
Dealer Publishing Co., 225 NLRB 1281, 1284 (1976).
12 Question exists as to whether, in the circumstances, a reinitiation fee was
properly enforceable under the union-security clause. Though generally al-
lowed where the employee had previously resigned, only one case permits
such a levy where membership was lost involuntarily due to internal union dis-
cipline. Ramey Super Markets, 226 NLRB 80, 91 (1976). It is problematical
whether that result would follow where, as here, the Union, following expul-
sion, continued to collect weekly dues, and now insists on payment of monthly
dues that accrued since the refusal of membership rights. See, e.g., Commu-
nications Workers Local 1104 v. NLRB, 520 F.2d 411, 419 (2d Cir. 1975).
13 One might also question whether the death benefit charge may be classi-
fied as legitimately collectible, or a nonchargeable assessment for purposes of
union security. RCA Service, 167 NLRB 1042, 1045 (1967); Food & Commer-
cial Workers Local 534 (Shop ’N Save), 294 NLRB 169 (1989). In addition,
the collectability of this charge turns on whether its nature was fully explained
to the employee, an unproven matter which might well fall within the Re-
spondent’s burden of proof. Electrical Workers IBEW Local 3 (General Elec-
tric), supra, 299 NLRB 995. These issues will not affect the result and need
not be reached in this proceeding.
14 The account of this conversation in Serota’s sworn prehearing affidavit
does not impute any remark to Lavelle of such tenor. Indeed, adamant resist-
ance to payment seems out of kilter with Serota’s suggestion in that conversa-
tion that Lavelle withdraw his unfair labor practices charges in order first to
obtain satisfaction through internal union processes.
15 At least one aspect of Serota’s testimony is difficult to reconcile with his
assertion that Lavelle adamantly refused to pay. Thus, not only did Serota set
up the examining board meeting, but he did so on an ‘‘accelerated’’ basis.
This raises the question of whether such a step would have been taken on be-
half of a member who, with defiance, had renounced obligation. At the same
time, Serota’s conduct with respect to the examining board is totally consistent
with the mutually corroborative testimony of Lavelle, Shop Steward Matt
Smith, and Employer Representatives Robert Senski and Robert Bowling that
Serota’s stated position was that Lavelle under no conditions could work until
reinstated by that body.
16 All dates refer to 1990 unless otherwise indicated.
form the employee of his obligations in order that the em-
ployee may take whatever action is necessary to protect his
job tenure.’’ H. C. Macauley Foundry Co. v. NLRB, 533
F.2d 1198, 1201 (9th Cir. 1977). Obviously, the duty to in-
form includes a concomitant obligation to provide the em-
ployee ‘‘an opportunity to make payment.’’ R. H. Macy Co.,
supra, 266 NLRB at 859 fn. 10 (1983).
The Respondent, in effect, argues that the opportunity to
comply was preempted by Lavelle, who, when the terms of
his obligation were communicated, resisted payment. On the
other hand, the General Counsel disputes that this was the
case, pointing to testimony that the Union would not accept
payment as an alternative to termination.
Thus, Serota answers the assertion that Lavelle was not
given the opportunity to pay, by testimony that, in their sec-
ond conversation on January 16, Lavelle adamantly declared
that he simply would not pay the itemized sum of $418 at
that time or thereafter. More specifically, Serota testified
that, in this conversation, after advising Lavelle of his
monthly dues deficiency, Lavelle reacted by stating that he
thought the monthly dues were coming out of his check.
Serota disagreed, pointing out that had this been the case,
Lavelle would have noted the $8 shortage in one check per
month. Serota insists that he advised Lavelle that he owed
the Union $418, and would have to pay that amount in order
to have his membership reinstated, adding that when Lavelle
questioned why the amount was so ‘‘high,’’ he itemized the
components as:
Back dues: 11$248
Reinstatement Fee: 12150
Re-Enter Death Benefit Fund: 1320
lllll
$418
To this, according to Serota, Lavelle was ‘‘quite adamant’’
and reacted by stating that ‘‘he didn’t owe it, and he wasn’t
going to pay it.’’ Serota allegedly reasoned: ‘‘If you are an
expelled member and you are not going to pay any back
dues or reinstatement, you can’t work here.’’ Serota con-
cedes, however, that he indicated that he would set up an ex-
amining board meeting so that if Lavelle did get the money,
he could be reinstated. He admits that this seemed a futile
step inasmuch as ‘‘[Lavelle] . . . felt he was right, I was
wrong, and he wasn’t going to pay his back dues.’’
According to Serota this was reenforced by Lavelle the
next day, when Lavelle called him insisting that Serota was
wrong, that the money should have been coming out of his
check and that he wouldn’t pay any money.14 Critical ele-
ments of Serota’s account were uncorroborated, yet sharply
contradicted.15
First, Lavelle testified that after reporting his problem ini-
tially to Serota, the latter, on January 16, 1990,16 telephoned
him at work, reporting that he had learned that Lavelle had
been expelled since 1988, and that he should finish out the
day, but after that there was no way he could avoid termi-
nation, that is, until a special union board was convened, and
his reinstatement approved, a process that could take several
months. According to Lavelle, Serota did not advise him as
to the amount owed the Union, but did refer to the aforemen-
tioned letter send in August 1988 threatening him with sus-
pension. Lavelle denied having received that letter.
Shop Steward Smith basically confirms that Serota had
adopted a stance against Lavelle’s continued employment ir-
respective of full reimbursement. Thus, Smith relates that on
January 16, after Lavelle informed him of the expulsion, he
sought out Serota. After both expressed surprise at the fact
that, because initiation, Lavelle had never made a monthly
dues payment, Smith claims that Serota asked if Lavelle was
going to pay. After Smith indicated that he did not know,
Serota replied:
[W]ell . . . he just can’t work until he’s reinstated
. . . . you are going to have to let them know . . . that
he can’t work until he is reinstated.
Following this conversation, Smith returned to the shop,
where he talked with Robert Senski, the Employer’s branch
manager, Steve Bussa, Lavelle’s foreman, and Lavelle, him-
self. He describes the position he expressed at that session
as follows:
I made . . . clear . . . that he couldn’t work until he
was reinstated.
1006 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 Serota had no specific recollection of any conversation with Bowling, but
does recall that someone from the Company sought confirmation that Lavelle
had been ‘‘expelled.’’ He denied stating that even if the dues were paid,
Lavelle couldn’t be reinstated. Serota suggests that references by both Senski
and Bowling to the fact that Lavelle could not work until the examining board
approved his reinstatement was inconsistent with union practices. His testi-
mony in this respect was not entirely consistent. Thus, he initially related that
once the monetary obligation is paid, ‘‘The examining board is a technicality
. . . . [i]ts mechanical . . . you have to go in front of the examining board
to . . . re-enter the union.’’ Later, he suggested that reinstatement was not
automatic but that the examining board would ‘‘have to decide whether to take
someone back or not’’ subject to approval by the executive board. Finally, he
testified, in response to a set of prejudicially leading questions that ‘‘on many
occasions, employees, who paid off arrearages, were permitted to work before
reinstated by the examining board.’’ He did not testify that this was always
the case.
Smith states that Lavelle seemed saddened by his situation,
making no comment about his obligation. Lavelle and Senski
basically agree with this account, but add that when Senski
inquired as to whether the matter could be resolved through
payment of the obligation, Smith replied that Lavelle would
not be permitted to work until the board met.
Additional testimony attributes identical statements to
Serota directly. Thus, after meeting with Smith, Senski re-
ported what had transpired to his superior, Robert Bowling,
the Employer’s operations manager. Bowling testified that he
then called Serota, who confirmed that the Union objected to
Lavelle’s employment even if he paid the dues arrearage, and
that he could not work until reinstated by the ‘‘board.’’17
Management deferred to the Respondent, with Senski in-
forming Lavelle that nothing could be done and that he could
not work, whereupon Lavelle, who was not feeling too well,
left the facility.
The uncorroborated testimony of Serota is rejected in
favor of the pattern of conduct attributed to him by Shop
Steward Smith, an agent of the Respondent, and Senski and
Bowling, both of whom were disinterested, lacking in appar-
ent reason to implicate the Union in misconduct. Accord-
ingly, based on the credited testimony of Smith, Senski, and
Bowling, it is concluded that the Respondent violated Section
8(b)(1)(A) and (2) of the Act by requesting Lavelle’s termi-
nation, without providing both accurate advice as to his mon-
etary obligation and an opportunity to comply.
CONCLUSIONS OF LAW
1. Ransome Lift is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Respondent Union is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(b)(1)(A) and (2) of
the Act by, on January 16, 1990, causing the termination of
John Lavelle, without first providing adequate advice as to
his obligations and an opportunity to comply.
4. The above unfair labor practice has an affect on com-
merce within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, it shall be recommended that it be or-
dered to cease and desist therefrom and to take certain af-
firmative action designed to effectuate the policies of the
Act.
Having found that the Respondent Union violated Section
8(b)(1)(A) and (2) of the Act by causing Ransome Lift to
terminate John Lavelle, it shall be recommended that the Re-
spondent Union be ordered to make John Lavelle whole for
any loss of wages and benefits he may have suffered as a
result of the Respondent’s action, from January 16, 1990, to
the date of his reemployment, less any net interim earnings.
Backpay due shall be computed on a quarterly basis as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as authorized in New Horizons for the Retarded, 283
NLRB 1173 (1987).
[Recommended Order omitted from publication.]