Chestnut Hill Bus Corp.

National Labor Relations Board - Board Decisions

Apr 30, 1984

270 N.L.R.B. 212 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chestnut Hill Bus Corp. and Charles H. Jones
Amalgamated Transit Union, Local 1336, AFL-CIO
and Charles H. Jones. Cases 39-CA-1644 and
39-CB-430
30 April 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 30 November 1983 Administrative Law
Judge Hutton S. Brandon issued the attached deci-
sion. The Respondent Employer and the Respond-
ent Union each filed exceptions and supporting
briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions' and to adopt the recommended Order
as modified.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set out in full below and
orders that
A. The Respondent Employer, Chestnut Hill Bus
Corp., Bridgeport, Connecticut, its officers, agents,
successors, and assigns, shall
I The judge examined only arts. 5.1 and 5.2 of the Respondents' collec-
tive-bargaining agreement and found that the union-security provisions
contained in those sections created an "obvious ambiguity" as to whether
current employees who were not members of the Union when the con-
tract was executed were covered by those provisions. The judge failed to
discuss or include in his decision the text of art. 5.4 of the collective-bar-
gaining agreement. That provision reads as follows:
5.4 Any employee who fails to become or remain a member of the
Union by reason of his failure to tender to the Union the initiation
fees (if not already a member) or periodic dues uniformly required as
a condition of acquiring or retaining membership in the Union in ac-
cordance with the Labor-Management Relations Act of 1947, as
amended, shall be discharged by the Company; provided, however,
that the Company shall not be obligated to discharge an employee
unless: (1) the Company has received from the Union (a) written
notice of the employee's failure to tender such initiation fees or peri-
odic dues, and (b) a written demand for such discharge; and (2) such
discharge can be made lawfully in accordance with the Labor-Man-
agement Relations Act of 1947, as amended.
We find it unnecessary, however, to pass on whether art. 5.4 cures the
ambiguity perceived by the judge in the contract's union-security clause
in view of our agreement with the judge's additional findings that the Re-
spondent Union violated Sec. 8(bXIXA) and (2) of the Act and the Re-
spondent Employer violated Sec. 8(aX3) and (1) of the Act because
Jones' discharge was predicated in part on Jones' failure to pay union
dues for a period during which no union-security agreement was in
effect.
s We shall modify the judge's recommended Order to require that both
the Respondent Employer and the Respondent Union comply with an ex-
punction remedy. See Sterling Sugars, 261 NLRB 472 (1982); R. H. Macy
a Co., 266 NLRB 858 (1983).
270 NLRB No. 35
1. Cease and desist from
(a) Discharging or otherwise discriminating
against employees in regard to their hire or tenure
of employment or any term or condition of em-
ployment to encourage or discourage membership
in any labor organization, except as may be author-
ized under the proviso of Section 8(a)(3) of the
Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Charles H. Jones immediate and full re-
instatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other
rights or privileges previously enjoyed, and, jointly
and severally with the Union, make Jones whole
for any loss of earnings and other benefits resulting
from his unlawful discharge in the manner set forth
in the section of the administrative law judge's de-
cision entitled "The Remedy."
(b) Remove from its files any reference to the
unlawful discharge of Charles H. Jones and notify
him in writing that this has been done and that the
discharge will not be used against him in any way.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its facilities in Bridgeport, Connecti-
cut, copies of the attached notice marked "Appen-
dix A."3 Copies of the notice, on forms provided
by the Officer in Charge for Subregion 39, after
being signed by the Respondent Employer's au-
thorized representative, shall be posted by the Re-
spondent Employer immediately upon receipt and
maintained for 60 consecutive days in conspicuous
places including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by the Respondent Employer to
ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Officer in Charge for Subregion
39 in writing within 20 days from the date of this
a 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
212
CHESTNUT HILL BUS CORP.
Order what steps the Respondent Employer has
taken to comply.
B. The Respondent Union, Amalgamated Transit
Union, Local 1336, AFL-CIO, Bridgeport, Con-
necticut, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Causing or attempting to cause Chestnut Hill
Bus Corp. to discriminate against Charles H. Jones,
or any other employee, in violation of Section
8(aX3) of the Act.
(b) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act, except to
the extent that such rights may be affected by a
lawful agreement requiring membership in a labor
organization as a condition of employment.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Notify Chestnut Hill Bus Corp. in writing,
with a copy to Charles H. Jones, that it does not
object to the reinstatement by Chestnut Hill Bus
Corp. of Charles H. Jones.
(b) Jointly and severally with Chestnut Hill Bus
Corp. make Charles H. Jones whole for any loss of
earnings and other benefits resulting from his un-
lawful discharge in the manner set forth in the sec-
tion of the administrative law judge's decision enti-
tled "The Remedy."
(c) Remove from its files, and ask Chestnut Hill
Bus Corp. to remove from its files, any reference
to the unlawful discharge of Charles H. Jones and
notify him in writing that it has done so and that it
will not use the discharge against him in any way.
(d) Post at its office and meeting hall, if any,
copies of the attached notice marked "Appendix
B."' Copies of the notice, on forms provided by
the Officer in Charge for Subregion 39, after being
signed by the Respondent Union's authorized rep-
resentative, shall be posted by the Respondent
Union immediately upon receipt and maintained for
60 consecutive days in conspicuous places includ-
ing all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by
the Respondent Union to ensure that the notices
are not altered, defaced, or covered by any other
material.
(e) Additional copies of Appendix B shall be
signed by the Respondent Union's authorized rep-
resentative and forthwith returned to the Officer in
Charge for Subregion 39. These notices shall be
furnished to Chestnut Hill Bus Corp. and posted in
places where notices to employees are customarily
posted.
4 See fn. 3 above.
(f) Notify the Officer in Charge for Subregion 39
in writing within 20 days from the date of this
Order what steps the Respondent Union has taken
to comply.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you in regard to your hire or
tenure of employment or any other term or condi-
tion of employment for supporting Amalgamated
Transit Union, Local 1336, AFL-CIO, or any
other union, or for refraining from all organization-
al activity, including membership in Amalgamated
Transit Union, Local 1336, AFL-CIO, except as
may be required under the proviso of Section
8(aX3) of the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Charles H. Jones immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or any other
rights or privileges previously enjoyed, and WE
WILL, jointly and severally with the above-named
Union, make him whole for any loss of earnings
and other benefits resulting from his discharge, less
any net interim earnings, plus interest.
WE WILL remove from our files any reference to
the unlawful discharge of Charles H. Jones and WE
WILL notify him in writing that we have done so
and that the discharge will not be used against him
in any way.
CHESTNUT HILL BUS CORP.
-
213
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
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 ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT cause or attempt to cause Chest-
nut Hill Bus Corp. to discriminate against Charles
H. Jones, or any other employee, in violation of
Section 8(aX3) of the Act.
WE WILL NOT in any like or related manner re-
strain or coerce employees of Chestnut Hill Bus
Corp. in the exercise of the rights guaranteed them
by Section 7 of the Act, except to the extent that
such rights may be affected by a lawful agreement
requiring membership in a labor organization as a
condition of employment.
WE WILL notify Chestnut Hill Bus Corp. in writ-
ing, with a copy to Charles H. Jones, that we have
no objection to the employment of Charles H.
Jones, and WE WILL NOT oppose his reinstatement
without loss of benefits or seniority.
WE WILL, jointly and severally with Chestnut
Hill Bus Corp., make Charles H. Jones whole for
any loss of earnings and other benefits resulting
from his discharge, less any net interim earnings,
plus interest.
WE WILL remove from our files, and ask Chest-
nut Hill Bus Corp. to remove from its files, any
reference to the unlawful discharge of Charles H.
Jones and WE WILL notify him in writing that we
have done so and that we will not use the dis-
charge against him in any way.
AMALGAMATED TRANSIT UNION,
LOCAL 1336, AFL-CIO
DECISION
STATEMENT OF THE CASE
HUTTON S. BRANDON, Administrative Law Judge.
These consolidated cases were tried at Fairfield, Con-
necticut, on October 12, 1983.1 The charges in both
cases were filed by Charles H. Jones, an individual
(Jones), on May 5, and an order consolidating cases and
a consolidated complaint and notice of hearing was
issued on June 29. The primary issues presented are (a)
whether Amalagamated Transit Union, Local 1336,
AFL-CIO, hereinafter called the Respondent Union or
the Union, violated Section 8(b)(2) of the National Labor
Relations Act (the Act), by causing Chestnut Hill Bus
Corp. (the Respondent Employer or the Company), to
discharge its employee Jones for his failure to pay union
dues and initiation fees when he was under no obligation
to do so, and (b) whether the Respondent Employer vio-
lated Section 8(aXl) and (3) of the Act, by granting the
Union's request and discharging Jones on April 15.
On the entire record, including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel, the Respondent Em-
ployer and the Respondent Union, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent Employer is a Connecticut corpora-
tion with an office and place of business in Bridgeport,
Connecticut, where it is engaged in the providing of
school bus transportation services. During the 12-month
period ending April 30 the Company in the course and
conduct of its business operations derived gross revenues
in excess of $250,000 and during the same period pur-
chased and received at its Bridgeport, Connecticut facili-
ty products, goods, and materials valued in excess of
$50,000, directly from points outside the State of Con-
necticut. The complaint alleges and both the Company
and the Union admit that the Company is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The complaint also alleges, and both the Company and
Union admit, that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
11. MATERIAL FACTS
Jones was employed by the Company in 1980 and
worked on a part-time basis as a bus driver. While the
empoyees of the Company were represented by the
Union, Jones never joined the Union.
The Union and Company were parties to successive
collective-bargaining agreements, the first one having
been executed in September 1976. The last collective-
bargaining agreement were not concluded until mid-De-
cember 1982, and the new agreement was not executed
until December 27, 1982. However the new agreement
was made retroactive to the day following the expiration
of the preceding agreement to ensure a continuity of the
existence of the collective-bargaining agreement between
the parties.
The new collective-bargaining agreement contained in
article 5 the following provision on union security which
was identical to a provision negotiated in the first collec-
' All dates are in 1983 unless otherwise indicated.
214
CHESTNUT HILL BUS CORP.
tive-bargaining agreement between the parties and which
was continued unchanged in all succeeding agreements:
5.1 All employees covered by this agreement
shall become and remain members of the Union as a
condition precedent to continuing employment
during the terms of this Agreement, in accordance
with paragraph 5.2
5.2 Any employee who is a member of the Union
in good standing on the effective date of this agree-
ment shall, as a condition of employment, after the
thirtieth day following said effective date, maintain
his membership in the Union to the extent of paying
membership dues uniformly levied against all union
members. Any employees thereafter hired shall, as a
condition of employment start on the 31st day fol-
lowing the beginning of employment, acquire and
maintain membership in the Union to the extent of
paying the initiation fee and the periodic member-
ship dues uniformly required of all union members.
The date of hire is the date the employee's name is
placed on the Company roster.
Following execution of the current collective-bargain-
ing agreement the Union through its president Robert
Newman drafted a notice to employees of the Company
dated January 10 which Newman had posted in the driv-
ers' room at the Company's facility. In the notice
Newman advised employees of the execution of the
agreement, set forth their union dues obligations, and re-
lated the method by which back dues could be paid for
the preceding 4 months during which no collective-bar-
gaining agreement had been in effect.' The notice also
related that nonmembers employees would be required
to join and pay initiation fees as well as dues including
dues for the preceding 4 months.
On or about January 13 Union President Newman and
Robert Raiente, the Union's financial secretary, went to
the company facility to enlist union members.3 It is un-
disputed that during this visit to the facility Newman
talked to Jones about becoming a union member. There
is, however, some dispute regarding exactly what was
said. Jones testified that when he came into the drivers
room on January 13 he talked to Newman about joining
the Union. Jones inquired of Newman what benefits he
had from the Union. Newman began to list the benefits,
but Jones found the listing inadequate and asked
Newman why he should join the Union if he got no ben-
efits. While apparently there were other comments,
Jones testified that at no time did Newman tell Jones
how much money Jones owed the Union or how much
' It was the practice of the Company to lay off its drivers during the
summer months. After the driven were recalled in September they ap-
parently worked without a bargaining agreement until an agreement was
reached on the new contract.
' Newman made no claim on the part of himself or on the part of the
Union that there had been any prior effort to enforce the Union's securi-
ty provisions of either the newly negotiated collective-bargaining agree-
ment or the prior agreements. It was explained that there was a constant
turnover among employees so that it was difficult for the Union to keep
up with who was in the collective-bargaining unit. Raiente conceded in
his testimony that as of January 14 there were about 58 collective-bar-
gaining unit employees who were not members of the Union.
union dues were. In leaving Jones told Newman that he
was not joining the Union and if Newman was going to
fire him to go ahead and fire him because Jones was not
going to join. Newman in his testimony, on the other
hand, contradicted Jones claiming that he specifically
told Jones that the Union dues were $10 a month and the
Union's initiation fee was $10. Newman related how dues
back to September could be paid. He described Jones as
belligerent during the exchange. Raiente generally cor-
roborated Newman.
Jones made no subsequent effort to join the Union. On
February 18 another notice was posted by the Union at
the Company advising employees that if they were not
members of the Union that they had until March 4 to
register and join the Union. The notice stated that failure
to join the Union and tender initiation fees and periodic
dues would result in a written demand to the Company
to discharge the employees. Jones testified he did not see
this notice.
By letter dated March 29 Newman sent the Company
a list of names of 12 employees including Jones whom
the letter said had failed "to tender membership, initi-
ation fees, or periodic dues as outlined in our contract,
page 4, article 5.4." The letter demanded the discharge
of the listed employees. It is undisputed that Newman's
letter was also posted at the Company including a hand-
written notation at the bottom of the letter stating, "Give
them until 4/15/83 to sign or terminate them per Bob
Newman, Union President." Jones admittedly saw this
letter after it was posted and even removed it to make a
copy of it. Nevertheless, he made no efforts prior to
April 15 to attain union membership or pay back dues.
On April 15 he received a termination slip from a com-
pany secretary listing the reason for his termination as
"does not want to join the union."'
III. ARGUMENTS AND CONCLUSIONS
The General Counsel relies on a number of arguments
to establish the violation attributed to the Company and
the Union. First, he argues that the union-security clause
herein is in actuality only a maintenance of membership
clause which can serve no lawful predicate for Jones'
discharge since he had never joined the Union. Accord-
ing to the General Counsel, the alleged union-security
provision is totally silent on the obligation of an employ-
ee who is not a union member on the date the latest con-
tract was effectuated to join the union. Moreover, even
if Jones had been required under the collective-bargain-
ing agreement to join the Union when he was initially
hired in 1980 his obligation to remain a member ceased
when the contract expired on June 30, 1982, and he was
not required to join the Union when the new contract
came into effect under the language of the contract.
As a second argument the General Counsel contends
that the discharge was unlawful because the Union
sought and accomplished the discharge because of Jones'
failure to pay union dues during the hiatus between the
expired contract and the new contract, a period when
4 Jones related in his testimony that he provided the secretary the lan-
guage inserted on the separation slip.
215
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there was no union-security provision in existence. The
General Counsel citing Typographical Union (Plain Dealer
Publishing Co.), 225 NLRB 1281 (1976), asserts that dues
obligations under a union-security agreement start on the
day of the execution of the agreement and not the date
to which the agreements is made retroactive.
The General Counsel proceeds to argue alternatively,
and although not specifically alleged in the complaints,
that even assuming a valid union-security clause existed
the Union failed to fulfill its fiduciary obligation to Jones
thus making his discharge unlawful under Section
8(bXIXA) of the Act, because the Union never specifi-
cally provided Jones with accurate information concern-
ing the amount of the dues and fees he owed, the
method of computations, or the date payment was re-
quired. Such information to the affected employee is nec-
essary, the General Counsel urges citing Philadelphia
Sheraton Corp., 136 NLRB 888 (1962); Machinists Lodge
946 (Aerojet-General Corp.), 186 NLRB 561 (1970), before
a union-security provision may be legitimately invoked.
According to the General Counsel, Jones was entitled to
actual notice of the dues and fees information as well as
the Union's intent to seek his discharge and the effective
date of the discharge. In this connection the General
Counsel argues that the Union's notices posted at the
Company's facilities requesting the discharge of Jones
and the discharge date was insufficient notice to Jones
under Board law.
The Company in its brief relies solely on the union-se-
curity provision in the collective-bargaining agreement.
Under its construction of the agreement the union-securi-
ty provision is not ambiguous. Moreover the Company
relies on the testimony of Ralph Arganese, the Compa-
ny's president, and William Kyer, the former union presi-
dent, who testified regarding the intent and application
of the union-security provision. Both testified that the
parties intended the agreement to be a union-security
agreement and that it had been applied in that manner.
However, Arganese admitted that prior to the Union's
request involved in the discharge of Jones, there had
been no other attempt by the Union to enforce the
union-security provision through discharges of employ-
ees. With respect to the sufficiency of the notice given
Jones regarding his dues and fees obligation as well as
the Union's request to discharge him the Company
argues that Jones had actual notice of such information
through the remarks to him by Union President Newman
and through the notices posted at the Company's facili-
ties. Jones, according to the Company, deliberately ig-
nored the warnings and decided that he would rather
accept the discharge than join the Union. The Union ar-
guments contained in its brief are the same as those ad-
vanced by the Company.
Concidering first the issue of the existence of a valid
union-security provision, it is quite clear that the parties
intended to have, and believed that they had, a valid
union-security provision. They entitled the pertinent pro-
vision "Union Security." And, aside from the testimony
of Arganese and Kyer to that effect, section 5.1 of article
V clearly reflects the intent of the parties that "all em-
ployees" covered by the agreement were to become
members of the Union as a condition of employment.
Section 5.2 does not attempt, in my view, to modify or
limit the all exclusive intent of section 5.1, but it never-
theless fails to specifically apply the intent of section 5.1
to employees who were not members on the effective
date of the execution of the agreement. Thus, it is un-
clear what terms or within what period such employees
could be required to join the Union. This omission cre-
ates an obvious ambiguity. The Board has held, as the
General Counsel points out, that union-security provi-
sions relied on as justification for discharge must be ex-
pressed in clear and unmistakable language. In Jack Wat-
kins G.M.C., 203 NLRB 632, 635 (1973), the Board
stated: "In view of the extreme consequences that can le-
gally be imposed on a nonconforming employee, it is not
asking too much to require the parties to a labor agree-
ment to express the essentials of union-security provi-
sions in unmistakable language." Moreover, it is a famil-
iar principle that ambiguities in construing contractual
provisions are to be construed most strongly against the
parties drafting such provisions. See Taft Broadcasting
Co. v. NLRB, 441 F.2d 1382, 1384 (8th Cir. 1971); Willis-
ton, Contract 621 (3d ed. 1961).
As the Company and Union argue, past practices may
be used to demonstrate the intent of an ambiguous con-
tract provision. Standard Homes, 249 NLRB 1085 (1977).
However, the record is clear that the Union had never
previously attempted to enforce the union-security provi-
sion under the old collective-bargaining agreement.
Thus, past practice demonstrates nothing that would
serve to define the critical omission in the clause as
argued by the General Counsel.
The Company and Union correctly argue that even an
oral union-security agreement is lawful and enforceable
citing Pacific Iron & Metal Co., 175 NLRB 604 (1969).
By this argument they imply that whatever deficiency
exists in the written agreement it was cured by the un-
derstanding of the parties and their past practice. Oral
agreements must be subject to proof of their precise
terms and affected employees must be fully and mistak-
ably informed of such terms before such agreements may
become effective. There was no evidence here of a spe-
cific oral agreement between the parties curing the omis-
sion in the written agreement. Moreover, since the par-
ties never recognized an omission in the union-security
arrangement they could hardly have fully informed em-
ployees regarding an oral agreement on an interpretation
curing the ommission.
Finally, Respondents argue that in the instant case
Jones did not rely any particular interpretation of the
union-security provision in deciding not to join the
Union and that the argument against the provision arose
in the General Counsel sui generis. The fact remains that
the validity of the provision as applied to Jones was put
in issue by his discharge pursuant to the provision. Jones'
filing of a charge in this matter obligated the General
Counsel to access the legality of the discharge under the
Act considering all the circumstances, including the
union-security provision relied on by Respondents as ap-
plied to Jones.
Accordingly, and considering all the foregoing, I con-
clude that the provision on union security in the applica-
216
CHESTNUT HILL BUS CORP.
ble collective-bargaining agreement between the parties,
silent as it was with respect to its application to employ-
ees who were not union members on the date of its exe-
cution, did not constitute a valid union-security provision
as applied to such employees.
Jones was hired in 1980 during the existence of the
then effective collective-bargaining agreement containing
provisions making union membership a condition of em-
ployment for new hires. As his continued employment
during the term of that agreement which expired on June
30, 1982, was contrary to the union-security provision as
it applied to new hires Jones was subject to discharge.
The Union did not, however, seek his discharge at that
time, and even in the instant case did not predicate its
attempt to discharge him on his lack of membership
during the existence of the prior agreement. As the Gen-
eral Counsel points out a union-security clause does not
survive the expiration of a contract absent a contractual
provision continuing it. Trico Products Corp., 238 NLRB
1306 (1978). Thus, when the new collective-bargaining
agreement was executed on December 27 Jones enjoyed
the status of a current employee, not a new hire and, not
having become a member of the Union, he was not re-
quired under the provisions of the agreement to maintain
his membership in the Union. Under these circumstances,
having construed the union-security provision as being
inapplicable to current employees on the effective date
of the execution of the agreement, I conclude, as argued
by the General Counsel, that Jones had no obligation
under the latest contract executed by the parties to join
the Union and the Union's request for his discharge
therefore violated Section 8(bX2) and (lXA) 5 of the Act
and the Employer's acceding to that demand violated
Section 8(a)(3) and (1) of the Act.
I also find merit to the General Counsel's argument
that Jones' discharge was additionally violative of Sec-
tion 8(bX2) of the Act, even assuming the existence of a
valid union-security agreement applicable to Jones, be-
cause Jones' discharge was predicated in part on Jones'
failure to pay dues during a time when no collective-bar-
gaining agreement was in effect. Union dues accrual may
not be made retroactive and can begin only from the
date of the execution of the current collective-bargaining
agreement on December 27, 1982. See Typographical
Union 53, supra. The Union's notice to employees of Jan-
uary 10 which the parties concede was posted at the
Company's premises reflected that nonunion employees
were required to join the Union, and pay an initiation fee
and double dues catching up for the months of Septem-
ber, October, November, and December. This covers the
retroactive period of the contract. There is no evidence
herein that the Union retracted that notice at any time
subsequent to its posting. Moreover, Newman admitted
' The complaint is devoid of an 8(bXIXA) violation. However, it is
clear that the facts which establish the 8(bX2) violation were litigated and
support the 8(bXIXA) finding since a discharge occurred. Cf. Food d
Commercial Workers (Gallahue's Supermarkets), 247 NLRB 1031, 1033 fn.
7. It is well established that the Board may find and remedy a violation
even in the absence of a specific allegation in the complaint so long as
the issues are closely connected to the subject matter of the complaint
and have been fully litigated. See Crown Zellerbach Corp., 225 NLRB
911, 912 (1976); Rochester Cadet Cleaners, 205 NLRB 773 (1973).
that he advised Jones of the double dues requirement.
Because the Company was also aware, by virtue of the
January 10 notice, that the Union was requiring dues de-
ductions to cover the period when there was no union-
security agreement in effect, the Company had reasona-
ble grounds for believing that the Union's request for dis-
charge was predicated on his failure to join the Union
and pay union dues for a period when he could not le-
gally be required to do so. Reasonable grounds for be-
lieving the Union's request was unlawful provides the
basis for the finding of an 8(aX3) and (1) violation by the
Company in this case. See Forsyth Hardwood Co., 243
NLRB 1039, 1040 (1979). Accordingly, by acceding to
the Union's demand under these circumstances also, the
Employer violated Section 8(a)(1) and (3) of the Act as
alleged.
I find no merit, however, to the General Counsel's al-
ternative contention that assuming the validity of the
union-security agreement, the Union nevertheless
breached its fiduciary obligation in violation of Section
8(b)(l)(A) and (2) of the Act6 by failing, before taking
action against Jones, to specifically advise him of his fail-
ure to satisfy his obligations under the collective-bargain-
ing agreement, failing to specify to him the amounts
owed and method of computations, and failing to specify
the dates payments were due. This is because I credit the
testimony of Newman and Raiente where their testimony
contradicts Jones regarding what Jones was told about
dues and fees. Newman and Raienter impressed me as
honest and straightforward. Jones in his testimony ap-
peared defensive, argumentative, and indirect. Moreover,
Jones conceded on cross-examination that he told either
Newman or Raiente that paying union dues would be
like taking S10 and throwing it out a bus window. The
union dues in this case happened, in fact, to be S10 per
month. It is beyond belief in the coincidence Jones
claims that he would happen to pick $10 in his analogy if
he had not already been told that that was the monthly
dues.
I also find, contrary to the General Counsel's argu-
ment, that Jones had ample actual notice of the Union's
request to discharge him for his failure to join. In addi-
tion to the information, I find, was provided to him by
Newman regarding the union-security arrangement and,
although Jones did not see the Union's posting of Febru-
ary 18 (and may not be charged with knowledge of its
contents), Jones admittedly saw the Union's notice of
March 29, and, in fact, made a copy of it. He thus had
actual notice of the Union's request that he be dis-
charged on April 15 if he had not joined the Union and
paid his dues and fees by that date. Jones was not likely
to misinterpret the notice or its affect for he was not un-
aware of the requirement of union membership under a
legitimate union-security agreement between an employ-
er and a union. Indeed, Jones admitted that at his regular
6 The complaint does not specifically set forth this allegation. Howev-
er, since the General Counsel's argument on this issue is based on the
Union's failure to give Jones adequate notice of his membership and dues
obligations under the collective-bargaining agreement, and because all
elements of the notice to Jones of these matters was fully litigated, I
deem the matter ripe for decision. See cases cited at fn. 5, supra.
217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
full-time place of employment he was a dues paying
member of another union due to the existence of a legiti-
mate union-security agreement between that union and
his full-time employer. It is true, of course, that Board
decisions hold that "a union's fiduciary duty to its mem-
bers entails taking the necessary steps to make certain
that a reasonable employee will not fail to meet his union
obligations through ignorance or inadvertence, but will
do so only as a matter of conscious choice." Valley Cabi-
net & Mfg., Inc., 253 NLRB 98, 108 (1970). On this
record, I find that Jones had actual notice of the Union's
claim of a valid union-security agreement applicable to
him, that Jones was aware of the amounts claimed by the
Union to be due from him, and that Jones was aware
several days7 in advance of the Union's request that he,
among others, be discharged for failure to join the Union
on April 15 if he had not joined prior to that date.
Rather, I find Jones made a conscious decision not to
join or pay fees. That conclusion is confirmed by Jones'
direction to a company secretary to state on his termina-
tion slip as the reason for termination, "does not want to
join the Union." Accordingly, I find no breach of the
Union's fiduciary duty in this respect, and, thus, no con-
sequential violation of Section 8(a)(b)(XIXA) or (2) of the
Act in this regard. The violations of the Union here, as
well as those of the Company, stem from the findings al-
ready made herein that the union-security arrangement
was invalid as applied to Jones under the circumstances
of this case and that the discharge of Jones was predicat-
ed in part of his failure to pay union dues and fees for a
period of time when he could not legitimately be re-
quired to join the Union.
CONCLUSIONS OF LAW
1. Respondent Chestnut Hill Bus Corp. is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Respondent Amalgamated Transit Union, Local
1336, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
I The record deos not indicate precisely when the Union's March 29
letter was posted by the Company. It is reasonable to infer that it was
posted around the date written, particularly in the absence of any conten-
tion by Jones that the time afforded him after posting was inadequate to
allow him to respond thereto.
3. Respondent Union did wrongfully and unlawfully
cause Respondent Employer to discriminate in regard to
the tenure and employment of Charles H. Jones in viola-
tion of Section 8(a)(3) of the Act, thereby encouraging
membership in Respondent Union, and did thereby vio-
late Section 8(b)(1XA) and (2) of the Act.
4. By discharging Charles H. Jones at the request of
the Union, Respondent Employer has interfered with, re-
strained, and coerced its employees in violation of their
Section 7 rights under the Act and by the same conduct
discriminated in regard to the tenure and employment of
Jones, all of which encouraged union membership in vio-
lation of Section 8(a)(1) and (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found both Respondent Employer and Re-
spondent Union to have engaged in certain unfair labor
practices, I shall recommend that each be ordered to
cease and desist therefrom and to take certain affirmative
action in order to effectuate the policies of the Act.
I shall recommend that Respondent Union advise
Chestnut Hill Bus Corp., in writing, with a copy to
Charles H. Jones, that it has no objection to the reem-
ployment of Jones. It will be further recommended that
Respondent Employer offer Jones immediate and full re-
instatement to his former job, or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights and privileges. It
shall also be recommended that Respondent Union and
Respondent Employer, jointly and severally make Jones
whole for any loss of pay or other benefits he may have
suffered by reason of the unlawful discrimination against
him from the date of the discriminatory act of discharge
until reinstated. Backpay is to be computed in accord-
ance with the formula approved in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest computed in the
manner prescribed in Florida Steel Corp., 231 NLRB 651
(1977). 8
[Recommended Order omitted from publication.]
a See generally Isis Plumbing Co., 138 NLRB 716, 717-721 (1962).
218