Columbia Transit Corp.

National Labor Relations Board - Board Decisions

Nov 19, 1979

246 N.L.R.B. 483 (N.L.R.B. 1979)

C()I.MBIA TRANSIT (ORP.
Columbia Transit Corporation, a Division of ARA
Senrvices, Inc. and Full Time Drivers' Association
Amalgamated Transit Union, ocal 1580 and Full
Time Drivers' Association. Cases 18 -CA 5991 and
18-CB-922
November 19. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING ANt) MIAFIRFRS JNKINS
AND) MURPIHY
On August 21, 1979, Administrative Law Judge Jo-
sephine H. Klein issued the attached D)ecision in this
proceeding. Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, Respondent FEm-
ployer filed an answering brief, and Respondent
Union filed a brief in support of the Administrative
Law Judge's Conclusions of Law and recommended
Order.
Pursuant to the provisions of Section 3(b) of' the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, anid
conclusions of the Administrative Law Judge and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National l.abor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the complaint be, and it hereby is, dismissed
in its entirety.
DECISION
JOSEPtIINE H. KLEIN, Administrative Law Judge: Pursu-
ant to charges filed on September 22, 1978,' and amended
on February 12, 1979, by Daniel Juntune,' as president of
Full Time Drivers' Association, a labor organization, a con-
solidated complaint was issued on February 22, 1979,
against Columbia Transit Corporation. a Division of ARA
Services, Inc. (Respondent Employer), and Amalgamated
Transit Union, Local 1580 (the Union or ATJ), on Febru-
ary 22, 1979.
Unless otherwise specified, all dates herein are in 1978.
2 The complaint and subsequent documents list "Daniel Juniune, an indi-
vidual" as the Charging Party. However. the charges reseal that in filing the
charges he was acting in his capacity as president of the Full Time Drisers'
Association. which the Board has previously found to he a labor organiza-
tion Columhia Traunit (Cororporaon. 237 NI.RB 1196 (1978).
Thce complaint arises out of the threat of discharge of
seven eplo ces and the actual discharge of five on Sep-
temhber 22 under a valid union-security clause in the collec-
tive-bargaining agreement hetween Respondents. The com-
plaint alleges that the :nimon threatened the discharges and
had them efectuated without meeting its fiduciar' obliga-
tion to notify the employees fully concerning their obliga-
tions and to afford them a reasonable opportunity to meet
those obligations. Respondent (ompany is accused of
threatening and effectuating the discharges when it had rea-
son to believe that the Uinion had not met its fiduciary dutN
of' full 5 inliorming the employees.
Upon due notice, a hearing was held before me in Min-
neapolis. Minnesota. on April 17 and 18. 1979. All parties
were represented and were afforded full opportunity to pre-
sent oral and written evidence and to examine and cross-
examine witnesses. The parties presented short oral argu-
ments and post-trial briefs have been filed on behalft of the
General Counsel. Respondent Union, and Respondent Em-
ployer. Upon the whole record, careful observation of' the
witnesses. and consideration of the briefs. I make the fol-
lowing:
INI)IN\(iS ol, :1 1-
1. P'R:I Nli\ARY tINI)IN(S
A. Respondent Employer, a Minnesota corporation with
its principal office and place of business in St. Paul. Minne-
sota. is engaged in the operation of a local passenger trans-
portation system. During the year 1978. it representative
period, Respondent Employer, in the course and conduct of
its business operations, derived gross revenues in excess of
$250,00). Respondent Employer is now, and hits been at
all times material herein. an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.4
B. Respondent Unlion is a labor organization within the
meaning of Section 2(5) of the Act.
C. Full Time Drivers' Association is a labor organization
within the meaning of Section 2(5) of the Act.
Respondent's major operatlon is the busing of public schxul students. In
addition, it transports students of private schools and performs some charter
bus operations. On March 3 1976, ATU filed a representation petition with
the State of Minnesota Bureau of Mediation Services. On May 18. 1977,
after hearing and an election, the bureau certified the Union as the represent-
ative of "all school husdrivers and yard workers . . who are engaged in
providing schxool district-related bus services." On March 29, 1976. Respon-
dent Employer had filed a representation petition with the National Labor
Relations Board (Case 18-RM 956). On November 8 1976. the Board held
that it had jurisdiction only over the Company's employees engaged in non-
school-distnct transportation, amounting to about 4 percent of Respondent
Company's business. The Board directed an election in a unit defined as:
"All school bus drivers and yards workers employed by the Employer at
[namedl school bus terminals who are engaged in providing nonschool dis-
trict-related bus services." Columbia Transit Corporation. 226 NLRB 812
(1976} The Board denied the Employer's subsequent motion to reopen the
record for further proceedings. 231 NLRB 510 (1977).
In his post-trial brief the General Counsel apparently contends that, on
the basis of National Transportraion Service, Inc., 240 NLRB 565 (1979), and
We Transport. Inc and Towne Bra Corp. 240 Nl.RB 755 (1979), Board
jurisdiction should now be asserted over all of Respondent Employer's op-
erations. However, the scope of the bargaining unit has not been properly
put in issue in the present proceeding Accordingly, to the extent that it may
be material In this case. I deem myself bound hby the Board's prior jurisdic-
tional finding and unit definition
4 National Labor Relations Act, as amended. 29 U S.C. Sec 151 e seq.
246 NLRB No. 79
483
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. IHI: AL.I.EtGLD UNIFAIR .ABOR P'RA(I'I(ES
A. Background and Chronologyv
Respondent employs some 500 to 600 busdrivers and
yard workers. Of the drivers, some 7 to 20 have been full-
time employees, the remainder being part time. In June
1974, Respondent Employer and the Full Time Drivers'
Association executed a collective-bargaining agreement ef-
fective September 3, 1974, through September 4. 1977.'
When that agreement was executed, the Employer was an
independent corporation owned by local individuals.6 How-
ever, in the fall of 1975. the Company was acquired by
ARA Services, Inc. Present management asserts that when
it acquired Respondent Company it was not informed of
the existence of a collective-bargaining agreement with the
Association. However, it maintained the established terms
and conditions of the full-time drivers, employment.
The contract provided that full-time drivers were to be
selected from part-time drivers on the basis of specified
qualifications. Among the qualifications of full-time drivers
was the ability to operate all the equipment. Among the
benefits provided for the full-time drivers were the follow-
ing:
(1) Guaranteed 45- or 60-hour week during school ses-
sions and 40 hours during nonschool periods: (2) six paid
holidays; (3) uniform allowances of up to $75 a year; (4) 1
day of sick leave per month, accruable to a maximum of 12
days; (5) hospitalization insurance for which the Company
was to pay 20 percent of the premium the first year, increas-
ing 20 percent a year until, as of the fifth year, the Com-
pany would pay the entire premium; and (6) I week's vaca-
tion after I year, 2 weeks after 2 years, 3 weeks after 5
years, and 4 weeks after 20 years. The wages as of Septem-
ber 3, 1974, were $4.25 an hour with annual cost-of-living
increases thereafter. At the time here involved, the full-time
drivers were receiving $5.12 per hour.
Kenneth J. Rutz, Columbia's division manager at the
time involved, and the only employer representative who
testified, readily acknowledged that the benefits previously
enjoyed by the full-time drivers were substantially better
than those provided in the ATU contract. There was no
contradiction of Juntune's testimony that the full-time driv-
ers' special benefits were worth some $2,000 per year per
employee. It has never been suggested that Respondent
Employer is unable or unwilling to continue such special
benefits.
Around the beginning of 1976, Respondent Union con-
ducted an organizing campaign among the part-time driv-
ers.7 As a result of that campaign, the Minnesota Bureau of
Mediation, on May 18, 1977, certified Respondent Union
as the representative of all the Company's drivers and yard-
men engaged in school district transportation. Meanwhile,
on November 8, 1976, in response to the Employer's peti-
tion of March 29, 1976, the Board took jurisdiction over all
of Respondent's busdrivers and yard workers "engaged in
providing nonschool district-related services," which
It is not clear whether there were any earlier agreements.
s Although it appears that no representative of the Company signed the
agreement, it is undisputed that its terms were complied with.
' The yard workers are not involved in this case. The record contains no
evidence concerning them.
amounted to about 4 percent of the Company's operations.8
The Board directed an election, but it was never held be-
cause Respondents executed a collective-bargaining agree-
ment on March 24, 1978, whereupon the Employer's peti-
tion was withdrawn on May 30, with Board approval.
On November 11. 1977, after the Board had assumed
jurisdiction and the Company's petition was still pending
an election, the Full Time Drivers' Association filed a peti-
tion in effect seeking severance of the full-time drivers9 from
the "all drivers and yard workers" unit (Case 18 RC-
11627). On August 25, 1978. after Respondents had ex-
ecuted their contract and the Company's petition had been
withdrawn, the Board dismissed the Association's petition
as untimely, without reaching the substantive issue of'
whether past practices warranted placing the full-time driv-
ers in a separate bargaining unit. (Cohrnmbia Transit Corpora-
tion, 237 NLRB 1196 (1978).
The ATU contract covers all drivers, with no provision
for distinction between full-time and part-time drivers. It
contains a valid union-security clause reading, in pertinent
part: "
The Company agrees to discharge, upon receiving
fourteen (14) days' written notice, signed by the Finan-
cial Secretary-of the Union, any employee with respect
to whom such notice may state that such employee is
not a member in good standing of the Union. Good
standing refers only to the refusal to pay dues and fees.
It also contains a dues-checkoff provision reading:
The Company agrees to deduct monthly from the
wages of each employee who is a member of the Union
such initiation fees and dues as shall be required by the
Union and authorized in writing by the employee in
the form, a copy of which is annexed to this agreement.
Under Respondents' collective-bargaining agreement, the
full-time drivers would receive a 10-cent-per-hour wage in-
crease during the first year. Over the 3-year period of the
contract, they were scheduled to receive 48 cents per hour,"
while the part-time employees would receive increases of
around $1 or more per hour. More important, however, is
the fact that the contract makes no provision for the valu-
s Respondent Employer had sought, unsuccessfully. to block the State Bu-
reau's action, at least until the Federal Board had acted. The Federal Board
declined to be a party in that litigation. Columbia Transit Corp. v. Jones, 572
F.2d 168 (8th Cir. 1972).
9 There were 10 full-time drivers at that point.
'° The basic provision reads:
The Company agrees that all employees covered by this Agreement
must be members in good standing of the Union and shall, as a condi-
tion of continued employment be required to become members of the
Union on or after the 30th day of employment or the effectiie date of
this Agreement, whichever is later. All employees who are members of
the Union at the time of execution of this Agreement or who become
members of the Union at any time subsequent thereto shall remain
members of the Union dunng the term of this Agreement. The Union
agrees that all such employees will be accepted into membership on the
same terms and conditions generally applicable to other members.
I reject the General Counsel's characterization of the contractual provision
as "ambiguous and deceptive."
" While not referred to as such, the full-time drivers were the only em-
ployees then receiving the $5.12-per-hour wage rate scheduled for these
minimum increases.
484
COLUMBIA TRANSIT CORP.
able fringe benefits previously enjoyed by the full-time driv-
ers, as summarized above.
On March 10, 1978. while the Association's petition was
still pending before the Board, Juntune, the Association's
president, wrote to Respondent Company that the full-time
employees objected to being included in the same seniority
list with part-time employees and believed "it is totally im-
proper that we be treated as a part of that unit." Then, on
April 3, 1978, after Respondents' contract was executed
and made available to the employees, Juntune again wrote
to the Company. saying that the full-time drivers were not
parties to the ATU contract and did not want the 10-cent-
per-hour raise provided for them therein. Juntune requested
that the Company's payroll department be directed not to
put that increase into effect. The Company apparently com-
plied with that request.
On May 15 Respondent Union filed a grievance, com-
plaining because the 10 full-time drivers then employed had
not been required to join the Union in accordance with the
union-security clause of the contract. The Union also ob-
jected to the fact that the full-time drivers were still receiv-
ing benefits not available to part-time drivers. And the
grievance further complained that the full-time drivers were
"being paid $5.12 per hour instead of $5.22 per hour as
stipulated in the contract." The Union demanded that the
Employer refrain from any conduct "that tends to identify
[full-time drivers] as a separate and distinct group of em-
ployees from the others covered by the agreement." The
final paragraph of the grievance read:
The Union agrees that full compliance with these re-
quests may not at this time be legally permissible for
the Company. The Union requests that the Company
comply as soon as matters bearing on this issue are
resolved by the appropriate governmental agency in
such a fashion as to make compliance permissible.
On September 14. 1978. after the Board had dismissed the
Association's petition, in a letter to Donald D. Mort, the
Company's president, the ATU renewed and somewhat en-
larged its grievance. The Union there demanded that all
benefits, privileges, or advantages being enjoyed by the full-
time employees be discontinued forthwith. It also de-
manded that the full-time employees be paid at contract
rate, i.e., 10 cents an hour more than they had been receiv-
ing.
On September 22 there were seven full-time drivers. Two
of the seven chose to join the Union and come under the
ATU contract; the remaining five were discharged.
B. The Discharges
Within 2 weeks after the contract was executed, the
Union placed a stack of them on a table in the drivers'
rooms, where they were available for any driver to take one.
Juntune testified that he took a copy and at least glanced
through it. Apparently other full-time drivers also took cop-
ies.
Early in April 1978, shortly after the agreement had been
executed, Peter Calhoun, president and business agent of
ATU. indicated to Rutz that Calhoun would like to talk to
the full-time employees. A meeting was held on or about
April 6, attended by Calhoun. Glad Olinger (a member of
the Union's executive board). Juntune. Henry F. Gebhardt.
and Donald B. Bjorkman," both full-time drivers. At that
meeting, Calhoun invited the full-time drivers to join the
Union. Juntune testified that, when asked what the effect of
joining the Union would be. Calhoun replied "that the full-
time drivers had had it so good for so long it was time for
[them] to suffer a little bit now, and that [they] would have
to get no more than the benefits that were in their con-
tract." Calhoun's version is not substantially different. He
testified:
Well, we, of course, mentioned the fact that we had a
contract which had a security clause in it, and that it
was our position that that covered full-time drivers as
well as everybody else. and that we were intending to
enforce that part of it. I said, "But in view of the fact
that there is this petition pending that you have with
the NLRB." I said, "We don't want to do anything
improper or to take some action against you like that
when the petition is pending that could materially af-
fect their situation regarding the security clause." I
said, "If and when your petition is dismissed, make no
mistake about the fact that, at that time, we will insist
that you become members and comply with all the
terms of the contract."
Calhoun further testified:
I acknowledged the fact that it could possibly be a
hardship for them or they would be getting less com-
pensation under the terms of the contract than they
had been getting. But I also said that I wasn't inter-
ested in seeing any of them take a pas cut.
I think I indicated that we did the best we could on the
contract and we would have liked to have been able to
have everybody get the kind of benefits that they were
enjoying, but that this whole full-time drivers situation
was, in my view as I explained to them. was a holdover
from the previous ownership whose forte was not ex-
actly harmonious labor relations, that things had
changed and we had a contract and that the situation
where a few selected employees, whose duties and re-
sponsibilities were essentially the same as all the oth-
ers, were not just going to keep on getting the kind of
benefits and wages that would totally bankrupt the
Company if they had to give them to everybody.
He then emphasized the point, saying that "if the company
couldn't afford to pay those kind of benefits to everybody,
that the few people who had been singled out for that kind
of treatment shouldn't receive it either." There has never
been any suggestion that Respondent Employer ever said it
was either unable or unwilling to continue the full-time
drivers' benefits. On the contrary, as set forth hereafter,
Mort, Respondent's president, said he was trying to negoti-
ate with Respondent Union for a continuation of the bene-
fits for current full-time drivers."
Calhoun also testified that at the April 6 meeting, full-
time driver Gebhardt said: "I'm not going to pay $25 just to
" Bjorkman quit the Company's employ before the discharges, which were
effectuated on September 22.
13 Manifestly benefits such as employee-paid health insurance, paid holi-
days and vacations, and guaranteed hours of work would have a different
and greater economic effect when applied to part-time workers.
485
D)ECISIONS OF NAT-I()NAL. L.ABOR RATIONS BOARD
lose all my benefits." Calhoun understood the reference to
be to the Union's $25 initiation fee. Calhoun replied that he
thought some day Gebhardt was going to have to decide
whether to pay the $25 or not. According to Calhoun. Geb-
hardt's rejoinder was: "Well, the day that I have to join
your union just to keep working here, that's the day that I
will be gone.""
On April 21 and May 4 the Union distributed flyers, en-
titled "Union Update." They were handed to employees
entering or leaving the premises and stacks were left in the
drivers' rooms. Employee testimony confirms that such fly-
ers were widely distributed and readily available. The April
21 "Update," concerned with the newly executed contract.
said, in part:
UNION SHOP AND ('H'CKO()FF
The contract also establishes a "closed shop" or
"Union shop" at Columbia. This means that all drivers
and yard workers employed by the Company must
maintain good standing in the Union by the payment
of monthly dues and, if applicable, the initiation fee.
The initiation fee of $25.00 is required from any new
employees and from those who were on the payroll but
not members as of March 24, the effective date of the
contract. Monthly dues, approved by the membership
along with the initiation fee at the April business meet-
ing, are $7.00 for anyone averaging less than four
hours a day and $9.00 for anyone averaging four or
more hours a day.
The easiest way to take care of your dues obligation is
to sign a Check-Off Authorization Card, which autho-
rizes the Company to deduct your dues and fee from
your paycheck and transmit them to the Union. Union
officers will be in each drivers' room during the next
few days for this purpose, and if you have not already
done so, we encourage you to sign a Check-Off Card as
soon as possible.
In a section entitled "Check-Off Cards," the Union's "Up-
date" of May 4 said, inter alia: "April dues are still being
collected by hand. If you owe dues for April or previous
months, they should be paid to a Union officer or brought
to the May business meeting."
Although, as noted above, ATU filed a grievance in May
1978, it was not in contact with any full-time drivers be-
tween the meeting early in April and September 6. On the
latter date, Calhoun handed dues checkoff cards to full-time
employees Juntune, Turnquist, Walter Wdowychyn. and
Richard Leibold. In handing the cards to the men, Calhoun
said something to the effect that he thought they needed
them. He offered no explanation and none was requested.
Apparently all four men returned the cards, unsigned, to
Calhoun on the spot. Calhoun testified that he attached
union checkoff cards to the timesheets of full-time drivers
Gebhardt, George Wdowychyn, and Nordeen. The seven
14 It is interesting that. as the General Counsel observes, Calhoun revealed
that he had unsuccessfully applied for promotion to a full-time driver's posi-
tion. He was unsuccessful, apparently because, inter alia, he was not quali-
fied to operate all of the Company's equipment.
persons named were the only full-time drivers then in Re-
spondent's employ. There was no subsequent direct com-
munication between ATU representatives and any of the
full-time drivers.
On September 8 and 12, Respondent Union gave the
('ompany requests for the termination of the seven drivers
for their failure to become members in good standing of the
ATU. Each termination request asked for the discharge of
the employee "within fourteen (14) days of the date" of the
request "barring notice to the contrary within that time."
Attached to the termination requests were checkoff authori-
/;ation cards.
On Mort's initiative, he and Rutz met with full-time driv-
ers Juntune, Gebhardt, and Turnquist on September 8.' 5
According to Gebhardt. Mort "said that certainly he was
not going to bargain with seven men and put seven men in
a position of being able to close the company down." How-
ever, according to Gebhardt, Mort told the full-time drivers
that they "shouldn't be concerned" since Mort was at-
tempting to negotiate with ATU "to determine whether or
not they could put [the full-time drivers] into the union on a
different basis." Mort indicated that he was going to try to
negotiate with the Union "nationally" because Calhoun
was too personally involved. According to Gebhardt, Mort
advised a "wait-and-see" course by the full-time drivers.
Even after the Board's dismissal of the Association's peti-
tion, Mort said that "the terms of the contract were still up
in the air." Gebhardt testified that he relied on Mort's reas-
suring statements. Juntune corroborated Gebhardt's testi-
mony. Juntune further testified that as late as the morning
of September 22. the date of the discharges, Rutz "said that
they were still attempting to make some arrangement by
which [the full-time drivers] could keep [their] benefits and
not to worry about how things were going. They were still
working on it." Full-time driver Turnquist also testified that
in the meeting on September 8, Mort told the full-time driv-
ers "not to worry," since the Company "was trying to pro-
tect [them] in whatever way he could." Mort said that, if
necessary, he would try to "grandfather" the full-time driv-
ers into the bargaining unit with all their existing benefits.
Mort did not testify and the employee testimony concern-
ing his reassuring statements was essentially uncontradicted
and is credited.
Calhoun testified that after the Board dismissed the Asso-
ciation's petition for severance, he spoke to company repre-
sentatives and said that enforcement of the union-security
clause as to the full-time drivers was then in order.'6 Ac-
cording to Calhoun, the company representatives suggested
filing with the Minnesota Mediation Services "a unit clarifi-
cation petition." Calhoun replied that he had "been
through enough litigation here and it is fairly clearcut that
since their petition was dismissed, they will have to be in
our unit." However. around September 18 or 19 Calhoun
did speak informally with Kenneth Tri, a state mediator.
Calhoun testified that Tri said:
You have got a good case as far as the security is con-
cerned, but you would have a hard time convincing an
i Gehhardt erroneously dated this meeting as sometime in August. It may
he a fair inference that the meeting was a reaction to the 14-day termination
requests made by the Union on September 8
i The transcript of record is hereby corrected to change "not" to "now"
on p 249,1. 2.
486
COI.liMBIA TRANSIT CORP.
arbitrator that he can't exceed the contract. that the
Company can't exceed the terms and provisions of the
contract if they want to. 'There is nothing you can do to
stop that.
Calhoun testified that, in view of this opinion, he called
Rutz "and said that [the Union'sl position was modified
and that this matter of eliminating all their other benefits
and everything was open, wasn't as firmly set as indicated
in [Calhoun's] letter" of September 14. So far as appears.
this turn of' events was not communicated to the full-time
drivers. Nor does it appear that there have been any further
negotiations between Respondents.
On September 14, in a letter to Mort, Calhoun restated
the substance of the Union's grievance of May 15 and de-
manded immediate action, which the Union contended was
now permissible. A copy of Calhoun's letter was sent to
James C. O'Neill, Esq., the Association's counsel.'
Full-time driver Kermit Nordeen testified that he had
received the Union's "Updates" and thus knew the fact.
although his knowledge of the Union's fees and dues was
not precise. About 2 weeks in advance he learned that Sep-
tember 22 was to be his termination date. By September 22
he had decided to join the Union and had so informed his
fellow full-time drivers. When he was called to the office on
September 22, he told Rutz that he had never received a
checkoff card and Rutz then produced one, which Nordeen
signed. In each of the 2 ensuing months. $14 was deducted
from his pay and thereafter the deduction was $9 per
months" There is no evidence that any retroactive dues'
payments were withheld.
Richard Leibold was also called to Rutz' office on Sep-
tember 22. In the course of his discussion with Rutz, I.ei-
bold left to telephone attorney O'Neill, who was his per-
sonal counsel as well as the Association's. After speaking to
O'Neill, Leibold said he would join the Union, but would
not sign a checkoff card. He has since paid his initiation fee
and dues directly to the Union in cash. He is still employed
by Columbia.
The five remaining full-time drivers declined to join the
Union, despite Rutz' apparent advice or request that they
do so. Their testimony establishes that the reason for their
conduct was the loss of benefits under the ATU contract.
Juntune testified that he spoke to Rutz at least three
times on September 22. Early in the morning, Rutz said the
Company was attempting "to make some arrangement by
which [the full-time drivers] could keep [their] benefits and
not to worry." (Rutz denied that he told any of them "not
to worry.") At or about I or 1:30 p.m.. Rutz said that Jun-
tune would have to join the Union that day or be dis-
charged. He was terminated at the end of the day. Juntune
conceded that he knew of the collective-bargaining agree-
ment and knew the amount of the Union's initiation fee and
dues. He acknowledged that his refusal to join the Union
was "substantially" occasioned by the loss of some $2,000
annually. He maintained, however, that no union represent-
1 O'Neill signed the Association's petition fr severance on November I .
1977 (Case 18-RC 11627). At the present hearing it was stipulated that he is
the Association's counsel, but he did not appear at the hearing.
a It appears probable that the testimony in this regard was inaccurate.
since the figures stated would not provide $25 fior the initiation fee in adih-
lion to $9 per month for dues.
ative had ever informed him of his obligations under the
union-security clause.
Gebhardt testified that in casual conversation, appar-
entlv around the middle of Septemberl Rutz asked where
Gehhardt stood on the union matter and then said: "You
know you are going to have to join it sooner or later." In
reply, Gebhardt said "that nobody had notified [himl in
writing or verbally or any other way that he] was going to
have to join it." When he was called to the office on Sep-
tember 22. (Gebhardt asked "what would become of [his]
benefits," if he were to join the Union. Rutz replied that the
full-time drivers' accrued vacation rights would remain in
effect until the end of September and their health insurance
would continue until the end of the year: however, all other
benefits would terminate immediately." Thereupon Geb-
hardt "told [Rutz] that was not satisfactory so [Rutz] would
have to do whatever he had to do." Rutz then produced a
termination notice, effective immediately.
Walter Wdowychyn testified that, around September 20.
he was called to Rutz' office. Rutz referred to the fact that
Wdowchyn was soon to return to school, but W'dowychyn
said that his plans were not definite. Rutz said that Respon-
dent's lawyer was "working on" the situation, but Wdowyc-
hyn said he doubted that any solution could be found
within 2 days. Wdowychyn did not take or sign the checkoff
authorization that Rutz produced. Wdowychyn had al-
ready learned "through general knowledge that if you're
not a union member, you don't work" and on September
20, Rutz said Wdowychyn would be discharged on Septem-
ber 22 if he did not join. On September 22, Wdowychyn
was again called into the office, where Rutz said that unless
Wdowychyn "joined the union [he] would be terminated."
Wdowychyn testified that he did not ask what "joining" the
Union meant, but said he would not join "[blecause [he]
would not get [his] benefits, that the union would not guar-
antee the same benefits [he] had prior to [his] discharge."
Wdowychyn testified that he had seen the ATU contract
sometime in May and knew that the initiation fee was $25
and monthly dues were $9. but no union representative had
informed him personally of the union-security clause or the
employees' financial obligations thereunder.
George Wdowychyn testified that on September 22 he
was called to the office, where Rutz said: "You have to join
the union or you have to resign.... Or you have to be
discharged." Wdowychyn asked whether his pay and bene-
fits would remain as they were if he joined the Union.
When Rutz answered in the negative, Wdowychyn said he
would not sign the checkoff card Rutz had offered him.2 '
Wdowychyn denied that Rutz informed him that he could
stay on without joining the Union until September 26. In
any event, he chose to be terminated with the rest, on Sep-
tember 22.
Wdowychyn testified that he had heard that some part-
time drivers had been discharged for not joining the Union,
but no union representative had given him any informa-
tion it was Rutz who informed him, on September 22, that
the union dues were $9 per month. Wdowychyn further
i0 Presumably after Rutz had received the Utnion's 14-day termination no-
tices.
20 Turnquisl also testified to a similar statement by Rutz.
21 I.ke Nordeen. George Wdowych,n denied ever having received a
checkliff card attached to his timeslip
487
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that, upon learning that he would not retain his
benefits if he joined the Union, he said: "If nothing, then I
don't want it," and Rutz replied: "If not, then you have the
termination."
Respondent Union introduced evidence that 14-day ter-
mination notices were given in May to the Employer cover-
ing eight part-time drivers. It appears, however, that none
of them were actually discharged for nonpayment of union
dues or fees before the end of the school year, when they
were laid off for lack of work. They were all later recalled,
on various dates between September 11, 1978, and January
8, 1979. Upon returning to work for Respondent Employer,
these part-time employees joined the Union.
Respondent Union also introduced into evidence the
names of I part-time drivers who had enrolled as union
members on various dates between October , 1977, and
December 1, 1978, but had not executed checkoff authori-
zations. Five of those drivers had "withdrawn" from the
Union before the present hearing.
C. Discussion and Conclusions
I. The Union
It is true, as the General Counsel argues, that numerous
Board decisions have established that, before a union may
lawfully demand the discharge of any employee pursuant to
a valid union-security clause, it must fully and clearly in-
form the employee of the existence of the clause and the
effect of the employee's failure to join the union or at least
pay required fees and dues, and the amount of the fees and
dues payable, including the method of computation and the
period covered thereby. Philadelphia Sheraton Corp.. 136
NLRB 888 (1962), enfd. sub nom. N.L.R.B. v. Hotel, Motel
and Club Employees Union, Local 568, 320 F.2d 254 (3d Cir.
1963); Teamsters Local Union No. 122 (August A. Busch &
Co. of Mass. Inc.), 203 NLRB 1041 (1973); Construction and
Building Material Teamsters Local No. 291, affiliated with
the International Brotherhood of Teamsters, Chauffeurs.
Warehousemen and Helpers of America (Kaiser Industries),
236 NLRB 1100 (1978); Granite City Steel Company, 169
NLRB 1009, 1011 (1968); Conductron Corporation, a subsid-
iary of McDonnell Douglas Corporation, 183 NLRB 419
(1970); Rocket and Guided Missile Lodge 946, International
Association of Machinists and Aerospace Workers, AFL
CIO (Aerojet-General Corporation), 186 NLRB 561 (1970);
H. C. Macaulay Foundry Company, 223 NLRB 815 (1976):
Jo-Jo Management Corp., d/b/la Gloria's Manor Home for
Adults, 225 NLRB 815 (1976). The General Counsel also
correctly states that, after providing the requisite informa-
tion, the Union must give the employee a reasonable time
within which to meet his obligations before his discharge
can be requested for nonpayment of union dues and fees.
Kaiser Industries, supra; Busch & Co. supra, 203 NLRB at
1042.
It has further been held, again as the General Counsel
maintains, that a union may not be excused for failing to
notify the employees properly by the fact that the employer
may have undertaken to advise the employee or that the
employee may have otherwise acquired the necessary infor-
mation. Busch & Co., supra, 203 NLRB 1041; International
Association of Bridge, Structural and Reinforced Iron Work-
ers Union, Local 378, A FL. (IO (Judson Steel Corporation).
192 NLRB 1069 (1971). See Gloria's Manor Home for
Adults. supra. 225 NLRB at 1143. The Union's duty is to
advise the delinquent employees personally and that duty is
not met by posting notices, at least when the employees
have not actually seen the notices. International Brother-
hood of Boilermakers. Iron Shipbuilders, Blacksmiths, Forg-
ers & Helpers. Local Lodge No. 732 (Triple A Machine Shop,
Inc., d/b/a Triple A South), 239 NLRB 504, 505 (1978).22
The Board decisions cited by the General Counsel are
uniform and unambiguous. However, they appear inappli-
cable to the present case. In each of the cases cited, the
employee's failure to meet his financial obligations to the
union, leading to his discharge, was caused by or related to
the union's failure to provide adequate notice. In all the
cases, the employees attempted to pay union dues and/or
fees in order to retain their jobs: in none did employees
advertently choose to be discharged rather than join the
union.
In the present case, there was no causal relationship be-
tween the Union's failure to give adequate notice and the
employees' failure to meet their financial obligations under
the contract. Indeed, at the last moment two of the seven
employees involved chose to meet their obligations and
were not terminated. The remaining five were given the
same opportunity, but consciously and advertently chose
discharge in preference to working under the ATU contract
with the Employer.
In deciding each case, its particular facts are of vital im-
portance. See, e.g.. Conductron Corp.., supra, 183 NLRB at
426:
Under the principle of the Hotel Employees case [supra,
136 NLRB 888, and 320 F.2d 254], the extremity of the
penalty against the employees for nonpayment of dues
requires that it should not be sanctioned unless as a
practical matter the Union has taken the necessary
steps to make certain that a reasonable employee will
not fail to meet his membership obligation through ig-
norance or inadvertence but will do so only as a matter
of conscious choice.
The record in the present case unequivocally establishes
that the five discharged full-time drivers' failure to pay the
Union's initiation fee and dues was not the result of "igno-
rance or advertence," but rather was clearly "a matter of
conscious choice."
A similar thought is suggested in Building Construction,
Highway Pavers, Sewer and Tunnel Workers Union No. 113
of the International Hod Carriers, etc. (James Luterbach
Construction Co., Inc.), 167 NLRB 39, 42 (1967). In that
case, a union representative, without mentioning the exis-
tence of a union-security clause, asked an employee to join
the union. In an ensuing exchange, the union representative
became irate at what he considered was the employee's
"smart-guy" attitude. The union representative then had
the employee discharged. In holding that the union violated
22 Where it is stated:
Under these circumstances, and in view of [the discharged employees7
credited denials that they had seen the posted notice, we find Respondent
[Union] breached its fiduciary duty not only by its treatment orf [the
employees], as found by the Administrative Law Judge, but also by the
inadequacy of its initial notice procedure. [Emphasis supplied.]
488
COLUAM1BIA TRANSIT CORP.
the.Act. the Trial Examiner, affirmed by the Board, pointed
out that the evidence warranted the inference that the em-
ployee would have joined the union if the union represent-
ative had explained the situation. In the present case, it is
clear that the five discharged full-time drivers refused to
join the Union because. under the union contract, they
would lose benefits worth $2,000 per year. No notice or
explanation by any union representative of their obligations
under the union-security provision could have changed that
decision.
Another consideration point up the practical and funda-
mental difference between the instant case and those upon
which the General Counsel relies. In the cited cases, the
unions' derelictions could be remedied by their being re-
quired to admit the employees to union membership and
requesting their reinstatement in their jobs. In the present
case, however, such remedy would be totally inapplicable
and ineffective. The discharged employees did not want to
be admitted to the Union and reinstated by the Employer
so long as they would not receive their former benefits.
The General Counsel contends that in the present case
the employees should be ordered reinstated with their for-
mer benefits. However, there is no apparent legal basis for
ordering continuation of such benefits. Apart from the fact
that the Association's collective-bargaining agreement had
expired,2 it is clear that the full-time drivers are included
within the appropriate unit heretofore defined in Board
proceedings and that, therefore, they are subject to the
terms of the ATU contract. Particularly in view of the
Board's dismissal of the Association's previous petition for
severance, there is no basis in the present proceeding for
ordering Respondents to provide the full-time drivers more
favorable terms than are granted to all other drivers.
Although Calhoun quoted the state mediator as having
informally suggested that an "arbitrator" might in effect
ignore the terms of the collective-bargaining agreement,
there is no apparent legal basis for such conclusion."
On the foregoing considerations, it is concluded that, on
the particular facts here presented. the Union's alleged fail-
ure fully to inform the full-time drivers of their detailed
obligations under the union-security clause of the contract
did not cause any loss of statutorily guaranteed rights.'
The General Counsel further contends that the Union
violated the Act by requiring that the employees meet their
financial obligations to the Union by executing checkoff
authorizations. There is, of course, no legal basis for the
Union's requiring that employees execute checkoff authori-
zations, the method of paying union fees and dues being left
to employees' free choice. International Union of Electrical.
Radio and Machine Workers, local 601 (Westinghouse Elec-
tric Corporation), 180 NLRB 1062, 1066 (1970): Comnuni-
cations Workers of America, Local 6306 (Southwestern Bell
Telephone Company), 198 NLRB 1098 (1972): International
2 At the hearing. counsel for the General Counsel expressly disavowed
claiming "contract-bar" effect for the Association's contract.
24 The arbitration provision of the agreement calls for submission "by ei-
ther the Union or the Company " It is doubtful whether the full-time drivers
individually, or through their Association, could invoke arbitration
21 It is thus unnecessary to decide whether the Union met its obligations by
making the contract readily available and hb distributing to all emploees
the "Union Updates." which clearly set forth the requirements n the em-
ployees.
Utlion of District 50, and Lacal lUnion No. 14029 Interna-
tional Union of District 50, United Mine Workers of A merica
(Rtuheroid Co.), 173 NLRB 87 (1968): Gloria's Manor Home
for Adults, supra, 225 NLRB at 1143: Kona Surf Hotel (In-
ter-I.sland Resorts. Ltd). 201 NLRB 139. 142 (1973): Brown
Transport. spra.
But the evidence in the present case does not warrant a
finding that the Union did, as a matter of fact, attempt to
require that the employees all execute checkoff cards. To be
sure, the Union "encouraged" that manner of payment: its
"Union Updates" referred to the checkoff as the "easiest"
way of payment. But the "Updates" did not suggest that
checkoff was the only way of paying dues and fees. As
noted above, full-time driver Leibold has chosen to pay his
dues directly in cash. Undisputed evidence establishes that
some other part-time drivers similarly pay their dues di-
rectly to the Union, rather than by checkoff. Gebhardt did
testify that on September 22 Rutz said that "either [Geb-
hardt] sign the dues checkoff card or that was it." In testify-
ing, Gebhardt also said: "How was I to square up when I
didn't even know what to pay?" However, Gebhardt made
it clear that the checkoff and the amount of dues were not
the issues. His testimony was: "The conversation that ex-
isted between the two of us was the big concern with us that
time which was the benefits.... It wasn't a question of did
I want to join. [Rutz] didn't offer me to join. I told him I
would not join if I would not get any better benefits than he
outlined to me. .... I explained to him that because of the
loss of the benefits I would not join the union, and he would
have to do whatever he had to do." Gebhardt also testified
that he knew he "did not have to sign [the checkoff] card
regardless of [his] intentions" concerning joining the Union.
Like other employee witnesses, Gebhardt conceded that the
amount of the initiation fee, like the dues, "was common
knowledge." It is perhaps also significant that the Associ-
ation, found to have been a labor organization, was repre-
sented and advised by acknowledged competent labor
counsel. I find that the General Counsel has failed to estab-
lish that the Union made it mandatory for the full-time
drivers to sign dues checkoff authorization cards. The five
discharges were causally unrelated to the signing or non-
signing of such cards.
2. The Employer
Any violation by the Employer would of necessity de-
pend on violation by the Union. The Employer would be
under any responsibility to the employees only if it had
reasonable cause to believe that the Union had in effect
improperly prevented the employees' meeting their finan-
cial obligations to the Union. Cf. Allied Maintenance Corn-
panv, 196 NLRB 566. 571 (1972): Zoe Chemical Co., Inc.,
160 NLRB 1001, 1031 (1966), enforcement denied 46 F.2d
574 (2d Cir. 1969).
The General Counsel apparently contends that Geb-
hardt's testimony establishes that Respondent Employer
had reasonable grounds to believe that the Union had
failed to inform the full-time employees adequately as to
their position and obligations under the union-security
clause. Gebhardt did testify that on September 22. at his
termination interview, he told Rutz that the Union had not
provided specific information. However. it is clear that
489
I)E('ISIONS OF NA'I IONA. I.AB()R RELA IO()NS BOARI)
Gebhardt fully understood the situation and Rutz was
aware of Gebhardt's knowledge. The stalemate was caused
by the full-time drivers' loss of benefits under the collective-
bargaining agreement. It would have been unrealistic and
an act of futility at that point to require that C('alhoun ap-
pear to explain to Gebhardt what ebhardt obviously al-
ready knew. Nothing Calhoun might say would alter (ieh-
hardt's determination not to pay the union fee and dues so
long as he would be ineligible for his former benefits. The
same considerations apply equally to the four other full-
time drivers who were discharged.
The employees, particularly Gebhardt, claimed to have
acted in reliance on assurances by Company President
Mort that some protection for the full-time drivers would
be worked out. Since Mort did not testify, the employee
testimony concerning his reassurances is taken as true.
However, Mort's conduct would not create any effective
"estoppel," and the General Counsel apparently does not
claim any estoppel. Since the full-time drivers were fully
aware of the collective-bargaining agreement, they could
not reasonably construe Mort's statements as more than a
promise to attempt to negotiate with the Union for some
relief for the full-time drivers.
It should be noted that the Board had previously held, in
effect, that the Association was guilty of "laches" is not
attempting to protect their own interest until it filed its pe-
tition for severance on November 11, 1977 (Case 18- RC
11627). Nothing had subsequently happened to ameliorate
the Association's "laches."
Nor can it be said that the Employer violated any em-
ployee rights when it apparently failed to reveal that Cal-
houn had indicated that, pursuant to the state mediator's
informal opinion, the Union's position might not be ada-
mantly opposed to some relaxation. Any duty in that con-
nection was part of' the Union's obligation of fair represen-
tation.
The foregoing considerations are equally dispositive of
the General Counsel's final contention that Columbia un-
lawfully threatened the full-time drivers with discharge on
September 22. when Rutz called each of them into the office
and gave them the checkoff authorization cards attached to
the Union's 14-day termination requests.
D. Final Comment
The General Counsel's brief' actually provides the true
clue to the present case. Frequent reference is made to "the
Respondent Union's hostility toward the full-time drivers."
That hostility was undisguised from the very beginning of
the Union's appearance on the scene. Possibly, as the Gen-
eral Counsel's brief suggests, Respondent Employer might
have bargained harder to protect the full-time drivers. But,
particularly in view of the extensive prior litigation, Colum-
bia cannot be faulted for its refusal to deal with two labor
organizations, the ATU and the Association, covering driv-
ers who were embraced in one bargaining unit. This is par-
ticularly true when the full-time drivers numbered only
around 10, while there were some 600 part-time employees
who had selected the Union.
It is possible that the Respondent Union was guilty of
unfairly representing the full-time drivers. It may well be
that the full-time drivers were, and possibly still are, enti-
tied to some relief.: Ilhe fct is, however. that the present
complaint does not allege "unfair representation." Nor was
the case tried on any such theory. And in his brief the Gen-
eral Counsel advances no such legal basis for an order
against either the Union or the Company. In no sense can it
be said that anN issue of "unfair representation" was liti-
gated at the hearing.
Accordingly, on the basis of the foregoing analysis of the
record and arguments of counsel, I find and conclude that
the General Counsel has failed to establish that either Re-
spondent engaged in any unfair labor practices.
CO)N(I Sl()NS ()I 1LAWN
1. The Respondent. Columbia Transit Corporation, a
Division of ARA Services. Inc., is an employer within the
meaning of Section 2(2), (6) and (7) of the Act.
2. The Respondent. Amalgamated Transit Union. Local
1580, is a labor organization within the meaning of Section
2(5) of the Act.
3. Full Time Drivers' Association is a labor organization
within the meaning of Section 2(5) of the Act.
4. The General Counsel has failed to establish that
Amalgamated Transit Union, Local 1580. infringed on any
statutorily protected rights of full-time employees of Co-
lumbia Transit Corporation by failing to inform such em-
ployees in detail concerning their obligations under the
union-security provision of the collective-bargaining agree-
ment between Columbia Transit Corporation and Amalga-
mated Transit Union, Local 1580.
5. Columbia Transit Corporation did not commit any
unfair labor practices by discharging five full-time drivers
upon the Union's request pursuant to the union-security
clause of the relevant collective-bargaining agreement.
6. It has not been established that either Respondent
Union or Respondent Employer committed unfair labor
practices by threatening and effectuating the discharge of
five full-time drivers on September 22, 1978. pursuant to the
union-security provisions of the applicable collective-bar-
gaining agreement.
7. It has not been established that either Respondent
Union or Respondent Employer threatened or effectuated
the discharge of any employees for their failure to execute
authorization cards for the checkoff of union fees and dues.
Upon the basis of the foregoing findings of fact. conclu-
sions of law and the entire record, and in accordance with
Section 10(c) of the Act, I hereby' issue the following recom-
mended:
ORDER'7
The consolidated complaint against Columbia Transit
Corporation, a I)vision of' ARA Services. Inc., and Amal-
gamated Transit Union, Local 1580, is hereby dismissed in
its entirety.
2 P)ossibl) an action under Sec. 301 of the Act would be in order. Or,
colncelabl, a grievance might provide an appropriate forum. Obviousl), no
finding or ruling in this connection is here made r even suggested.
2' In the event no exceptions are filed as provided b Sec. 102.46 o the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided In Sec. 102.48
of he Rules and Regulations, be adopted b) the Board and become its
findings, conclusions, and Order. and all objections thereto shall be deemed
waised fo1 ll purposes
490