Distillery, Rectifying, Wine & Allied Workers, Local 38

National Labor Relations Board - Board Decisions

May 18, 1979

242 N.L.R.B. 370 (N.L.R.B. 1979)

D (DCISIONS OF NATIONAL LABOR RELATIONS BOARD
Distillery, Rectifying, Wine and Allied Workers' In-
ternational Union of America, Local Union 38,
AFL-CIO (Schenley Distillers, Inc.) and Grant H.
Hall and Morgan A. Bahar. Cases 9 CB- 3607 and
9 CB 3680
May 18, 1979
DECISION AND ORDER
BY MEMBERS PNELLO, MURPHY, AND TRUESDALE
On August 28, 1978, Administrative Law Judge
David S. Davidson issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, and the General Counsel
filed a brief in support of the Administrative Law
Judge's Decision.
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,' and
conclusions of the Administrative L.aw Judge and to
adopt his recommended Order.
We agree with the Administrative Law Judge that
Respondent violated Section 8(b)(2) and (1)(A) of the
Act by causing the discharge of Grant H. Hall and
Morgan H. Bahar for failure to pay dues, without
giving Hall and Bahar clear and unambiguous notice
of its intention to do so.
Respondent and Schenley Distillers, Inc. (Schen-
ley), have a collective-bargaining agreement which
contains a valid union-security provision. That provi-
sion requires, inter alia, that employees must remain
members in good standing or, upon union notification
to Schenley that they are not in good standing, em-
ployees will be discharged. The contract also states
that employees must pay dues as established by Re-
spondent to be in good standing. Respondent's consti-
tution and bylaws state that: (I) a member more than
30 days in arrears on dues payment no longer main-
tains his/her good standing; (2) a member more than
60 days, but less than 6 months, in arrears automati-
cally will be suspended and may be removed from
employment; and (3) members more than 6 months
in arrears may be expelled. All employees receive
copies of the contract and of Respondent's constitu-
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dn' Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
tion and bylaws upon being sworn into union mem-
bership.
Grant Hall was hired by Schenley in September
1975. He was on medical leave from April to Septem-
ber 1976. Although able to work by September, Hall
was then laid off. As of November 1976, Hall was 6
months in arrears on his dues payments.2 Hall had
been in layoff status before and his practice had been
to pay his dues arrearages when he returned to work.
Dean, Respondent's president, called Hall, informed
him of his arrearages, told him that he did not like to
terminate employees, and that, if Hall could pay at
least half of his arrearages, the rest could wait. Also
in late November, Rucker, Respondent's financial
secretary, called Hall and informed him of his dues
arrearages. In December 1976, Hall received a check
for vacation benefits from which dues were deducted;
however, those dues were credited prospectively by
Respondent, i.e., for January and February, thus
leaving Hall still 6 months in arrears on his dues de-
linquencies. There were no further communications
between Respondent and Hall, and on March 22,
1977, Respondent sent a letter to Schenley requesting
that Hall be discharged pursuant to the union-secu-
rity provision of the contract.
Morgan Bahar was hired in January 1976 and laid
off at the end of July 1976. Bahar was not on checkoff
and did not pay any dues at the beginning of his
employment. His name appeared on the October de-
linquency list which, as usual, Respondent posted at
the plant. In November Bahar paid $20 of his arrear-
ages to Rucker. Also in November Dean called Bahar
and stated that, since Bahar was 6 months in arrears,
his "card would be pulled" unless his dues were paid.
In January 1977, Bahar visited Schenley and spoke
with Industrial Relations Manager Burch. Bahar
asked about his dues and was told by Burch to see
Dean; however, Bahar merely left the plant. On April
I, 1977, Respondent sent a letter to Schenley request-
ing that Bahar be discharged pursuant to the union-
security provision involved herein.
Based on the foregoing and the record as a whole,
we conclude, contrary to our dissenting colleague,
that Respondent failed to fulfill its fiduciary duty to
inform Hall and Bahar of their obligations under the
union-security provision of the contract before re-
questing and securing their discharge. The Board has
long held that, because of the finality of a recommen-
dation of discharge, a union must specifically advise a
member of the obligations under the union-security
agreement before effectuating a discharge. A union's
duties include informing the member of the amount
owed, the method used to compute that amount,
2 Respondent required members in layoff status to pay only half their
dues.
242 NLRB No. 51
370
DISTII.IERY, RECTIFYING. WINE AND ALLIED WORKERS. I.(X'AI 38
when such payments are to be made, and that dis-
charge will result from failure to pay.'
We are not persuaded in the instant case that Re-
spondent provided to the discriminatees clear and un-
ambiguous notice of their dues delinquencies. the
manner of their computation, or the consequences
which would follow if the arrearages were not paid by
a certain date. Thus, even though Respondent's pres-
ident and financial secretary made calls to both Hall
and Bahar, at no time did Respondent inform them of
a due date for the payment of arrearages or that ter-
mination would follow immediately upon failure to
pay.
Further, analysis of the collective-bargaining agree-
ment and Respondent's constitution and bylaws, and
the provisions therein which pertain to discharge for
members not in good standing, reveals that those pro-
visions do not require discharge, and thus in them-
selves would not provide sufficient notice of the con-
sequences of failure to pay dues arrearages.
Respondent's constitution and bylaws, article X, sec-
tion 1, state that a member "sixty days or more but
less than six months in arrears in the payment of dues
.. shall stand automatically suspended... [and] mayi
be: (a) Removed from employment...." (Emphasis
supplied.) In addition to this ambiguity regarding pos-
sible discharge for dues arrearages, article X, section
2, merely provides that "[m]embers six months in ar-
rears of payment of dues . . . may be expelled." This
section does not even mention the possibility of re-
moval from employment for being 6 months in ar-
rears, and yet that was the alleged status of Hall and
Bahar. Thus, even though the discriminatees may
have received copies of the constitution, bylaws, and
collective-bargaining agreement which set forth
union-security obligations, we do not believe the pro-
visions therein are sufficiently unambiguous to pro-
vide adequate notice of such obligations. Even if a
union member is aware generally of the obligation
under a union-security provision, a union is still re-
quired to give specific and advance notice of the ar-
rearages, and meet the minimum level of conduct re-
quired under its fiduciary duty as described above.
Thus, the fact that the discriminatees had copies of
these documents and were made aware generally that
they owed dues does not establish that the discrimi-
natees were reasonably informed of their obligations
and the consequences of their failure to meet the obli-
t
See Philadelphia Sheraton Corporation. 136 NLRB 888 (1962). enfd 320
F.2d 254 (3d Cir. 1963); District 9. International Association of Machinist.rs
and Aerospace Workers, AFL- CIO (Manel-Schebzer. Diivision of Borg- Wa'rn-
er Corp.). 237 NLRB 1278 (1978). International Brotherhood of Boilermmtkerr,
Iron Shipbuilders, Blacksmiths. Forgers & Helpers. Ical Ldge N,5o -32,
AFL CIO (Triple A Machine Shop. Inc. dh/a Triple .4 Souhj). 239 NlRH
504 (1978).
gations. Moreover, as the Administrative Law Judge
found, Respondent had never sought the discharge of
employees situated similarly to those involved here,
and therefore there could be, and was, no consistent
policy of terminations for failure to pas dues arrear-
ages which an employee could be charged with know-
ing. Thus, contrary to the assertions of our dissenting
colleague, our conclusion that Respondent violated
its fiduciary duty here is not a "hypertechnical and
mechanistic approach." Rather, it is a view which in-
corporates the concept of fundamental fairness inher-
ent in the Act. It is hard to imagine what is "unrea-
sonable" in requiring a union clearly to set forth those
obligations its members owe, and to provide clear and
sufficient notice of the consequences for failure to
meet those obligations; the obligation does not, and
should not, rest on the members.4 We therefore con-
clude that Respondent violated its fiduciary duty, and
thus violated Section 8(b)(2) and (I )(A) of the Act, as
found by the Administrative Law Judge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative aw Judge and hereby or-
ders that the Respondent. Distillery, Rectifying, Wine
and Allied Workers' International Union of America,
Local Union 38. AFL-CIO. Frankfort, Kentucky, its
officers, agents, and representatives, shall take the ac-
tion set forth in the said recommended Order, except
that the attached notice is substituted for that of the
Administrative L.aw Judge.
MEMBER MtRPItY. dissenting:
Contrary to my colleagues and the Administrative
Law Judge, I conclude that Respondent met its fidu-
ciary obligation to Charging Parties Hall and Bahar
prior to causing their discharge for failure to pay
union dues. I would therefore find that Respondent
did not violate Section 8(b)(2} and (I)(A) of the Act
as alleged in the complaint.
As the Administrative Law Judge found, by No-
vember 1976, 5 Hall, who had been laid off by the
Employer, was 6 months in arrears in his dues pay-
4 The facts do show that dues were deducted from a vcation check issued
to Hall; these were applied prospectively. so that Hall remained 6 months in
arrears. Also, Bahar paid $20 of his arrearages to Rucker. hus. contrar to
the assertion of our dissenting colleague. it appears both iHall and Bahar
took some steps toward meeting their obligations. Moreover. as noted above,
it was Hall's practice to pay arrearages when he returned from la-yoff status,
and he was given no cause to believe he would he treated differentl5 on this
occasion. In an eent, even it' neither discriminatec took steps to pa his
arrearages. the result reached herein would not differ. since Respondent did
not provide clear and unambiguous notice of the obligations owed before
securing the discharges here
'All dates herein are in the latter part t ' 197h ir carls 1'97
371
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ments6 and was so informed by Respondent's pres-
ident, Dean. Dean also told Hall that Respondent did
not like to terminate a member and that, if Hall
would pay half the amount he owed, Respondent
would wait for the rest. Also in November, Respon-
dent's financial secretary, Rucker, called Hall and
told him that he owed $24 in back dues and had to
get current. In December, Hall received a vacation
check from the Employer from which $8 of union
dues were deducted; this amount was applied by Re-
spondent as Hall's dues for January and February
1977. On March 22, 1977, Respondent wrote to the
Employer that Hall was no longer in good standing
because of his failure to pay dues and consequently
the Employer did not recall Hall from layoff in the
spring of 1977 when work became available.
Bahar, who was also laid off during much of the
latter half of 1976, appeared on a list of delinquent
members which was posted at the Employer's plant in
October 1976. In November, Bahar paid $20 to Ruck-
er, who told him at the time that he was quite delin-
quent and must get his dues paid, which Bahar prom-
ised to do. After paying the $20, Bahar remained
more than 6 months delinquent. Also in November,
Dean called Bahar and told him that he was 6 months
in arrears and that unless the dues were paid his card
would be pulled.
Bahar did not attempt to communicate with Re-
spondent regarding his dues but, in January, while
visiting the Employer's industrial relations manager,
Burch, about an unrelated matter, asked how much
he owed the Union. Burch responded that he did not
know and that Bahar should talk to an officer of Re-
spondent, but Bahar did not do so. Subsequently, on
April 1, Respondent requested the Employer to drop
Bahar from the seniority list and as a result of the
Employer's compliance with this request Bahar, like
Hall, was not recalled by the Employer when work
became available.
The Administrative Law Judge found that Bahar
and Hall were given copies of Respondent's constitu-
tion and bylaws and the collective-bargaining agree-
ment between Respondent and the Employer, and
that these documents contained explicit provisions
detailing employees' obligations to pay union dues
and the Union's right to demand that employees be
discharged for failing to meet these obligations. Addi-
tionally, as discussed above, Respondent, prior to re-
questing Hall's and Bahar's terminations, told them
they were in arrears and were required to become
current in their dues obligations, but neither Hall nor
6 Employees on layoff status are required either to obtain out-of-work
cards or to pay monthly dues of $4, instead of the regular dues of $8 per
month.
Bahar attempted to pay his back dues. Indeed, nei-
ther employee even attempted to contact Respondent
with regard to the arrearages.
In these circumstances, I do not believe that Re-
spondent owed any further duty to Bahar and Hall to
inform them of the consequences of their failure to
pay back dues prior to advising the Employer that
they were no longer members in good standing and
causing them to be dropped from the Employer's se-
niority list. The evidence clearly establishes that Re-
spondent, by providing them with copies of its consti-
tution and the applicable contract covering their
employment, and by its representative's efforts to get
them to pay their back dues, took reasonable steps to
inform the Charging Parties of their obligations. To
find in the face of these facts, as do my colleagues and
the Administrative Law Judge, that Respondent
failed to give Hall and Bahar sufficient notice that
their jobs were in jeopardy is to take a hypertechnical
and mechanistic approach, and places an unreason-
able burden on unions seeking lawfully to require
members to fulfill their membership obligations.
The majority argues that because the contract and
Respondent's constitution and bylaws did not explic-
itly require discharge of employees who did not re-
main in good standing with the Union, Bahar and
Hall cannot be considered to have been put on notice
of the potential result of their failure to meet their
dues obligations. This argument is without merit. Al-
though the relevant provisions afforded Respondent
the right to seek discharge of employees who were in
arrears in dues payments instead of imposing an obli-
gation to demand discharges in such circumstances,
this fact alone cannot be construed to suggest that
Hall and Bahar were unaware of the consequences of
their continuing dues arrearages.
Accordingly, I would find that Respondent did not
violate Section 8(b)(l)(A) and (2) of the Act as al-
leged and would dismiss the complaint against the
Union in its entirety.
APPENDIX
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause
Schenley Distillers, Inc., to discriminate against
Grant H. Hall or Morgan A. Bahar, or any other
employee, in violation of Section 8(a)(3) of the
National Labor Relations Act, as amended.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
372
DISTILLERY, RECTIFYING, WINE AND ALLIED WORKERS, LOCAL 38
the rights guaranteed them in Section 7 of the
Act, except to the extent that such rights may be
affected by an agreement requiring membership
in a labor organization as a condition of employ-
ment, as authorized in Section 8(a)(3) of the Act,
as amended.
WE WILL make Grant H. Hall and Morgan A.
Bahar whole for any loss of earnings they may
have suffered because of discrimination against
them.
Ill1. THE ALEGED UNFAIR LABOR PRACTICES
A. The Facts
I. The obligation of employees to pay dues
The collective-bargaining agreement between Respon-
dent and Schenley in effect from August 1, 1975, through
July 31, 1978.' contained the following union-security
clause:
DISTILLERY, RECTIFYING, WINE AND ALLIED
WORKERS' INTERNATIONAL UNION OF
AMERICA, LOCAL UNION 38, AFL-CIO
DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: The
charges in these cases were filed by Grant H. Hall and Mor-
gan A. Bahar on July 7, 1977, and September 28, 1977,
respectively. On November 30, 1977, the Regional Director
issued a consolidated complaint alleging that Respondent
Union caused Schenley Distillers, Inc., to discharge Hall
and Bahar pursuant to a union-security agreement without
giving them prior or adequate notice that they were delin-
quent in the payment of their periodic dues to the Union.
The complaint alleges that the Union accordingly violated
Section 8(bX2) and (bX)(l)(A) of the Act. In its answer the
Union denied the commission of any unfair labor practices.
On April 24, 1978, a hearing was held before me in
Frankfort, Kentucky. At the close of the hearing, oral argu-
ment was waived. The parties were given leave to file briefs
which have been received from the General Counsel and
the Union.
Upon the entire record in this case, including my obser-
vation of the witnesses and their demeanor while testifying,
I make the following:
FINDINGS AND CONCLUSIONS
ARTICLE II
Membership
I. (a) All present employees and those to be hired in
the future, shall on the thirtieth day following the be-
ginning of their employment, or the execution of this
agreement, whichever is later, be and remain members
of the Union in good standing, in accordance with the
requirements of the Labor Management Relations Act
of 1947, as a condition of employment, and to the ex-
tent that such membership does not conflict with any
Federal or State laws.
(b) The Company shall be required to discharge any
employee upon notification of the Union to the effect
that said employee is not in good standing, within the
provisions of the Labor Management Relations Act of
1947.
* * *
2. All employees subject to the terms and provisions
of this Agreement shall be required to pay the initi-
ation fee, periodic dues and regularly authorized as-
sessments established by the Union as a condition of
good standing membership.
Respondent's constitution and by-laws provides for a S25
initiation fee. Active employees are required to pay
monthly dues of $8 payable on the first business day of the
month. Laid-off employees are required to pay monthly
dues of $4, unless they obtain out-of-work cards. Respon-
dent's constitution and by-laws further provides:
ARTICLE IX
I. THE BUSINESS OF THE EMPLOYER
Schenley, a Delaware corporation, manufactures distilled
spirits at its Frankfort, Kentucky, facility. Schenley annu-
ally ships goods and materials valued in excess of $50,000
from that facility directly to points outside the Common-
wealth of Kentucky. I find that Schenley is an employer
engaged in commerce within the meaning of the Act and
that it will effectuate the policies of the Act to assert juris-
diction in this case.
II. THE LABOR ORGANIZATION INVOLVED
Respondent Union is a labor organization within the
meaning of the Act.
Good Standing
Section 1. Members more than thirty days in arrears
in the payment of dues, assessments or fines shall not
be in good standing. The foregoing sentence shall not
be applicable to the dues obligation of a member
whose dues have been withheld by his employer for
payment to the Local Union pursuant to the member's
voluntary authorization provided for in collective bar-
gaining agreements between his employer and the Lo-
cal Union and/or the International Union. However, a
member who is on voluntary dues authorization
(checkoff) shall be under the duty to pay his dues di-
rectly to the Local Union if he has no monies owing to
Prior contracts also containing union-security clauses have been in effect
for over 30 ears.
373
DECISIONS OF NATIONA LABOR RELATIONS BOARD
him by his employer which are subject to his checkoff
authorization on the date when the employer deducts
the dues of other members. The due date for a pay-
ment of assessments or fines shall be the date of their
enactment or imposition.
Section 3. Members thirty days and less than sixty
days in arrears in the payment of current dues. assess-
ments or fines may attend meetings but shall have nei-
ther voice nor vote thereat.
ARTICLE X
Suspension and Expulsion for Non-Payment of Dues,
Assessments and Fines
Section 1. Members sixty days or more but less than
six months in arrears in the payment of dues, assess-
ments or fines shall be barred from Local Union meet-
ings, shall be removed from committees and shall
stand automatically suspended from all rights and
privileges of membership.
A suspended member shall be reinstated only upon
payment of full arrears and a reinstatement fee of
$2.00. In addition to suspension from membership,
such member may be:
(a) Removed from employment wherein an agree-
ment between the Local Union and/or the Interna-
tional Union, and employer permits it; and/or
(b) Removed from any Union office without trial.
Section 2. Members six months in arrears of pay-
ment of dues, assessment or fines may be expelled.
At the time new employees report for work, Respondent
conducts an orientation session in which Respondent's pres-
ident, Dean, participates. At this session Dean ordinarily
tells employees about Respondent's initiation fees, regular
dues, and laid-off dues. After employees complete their pro-
bationary periods, Dean arranges to swear them in neither
at the next union meeting or on the job. At that time Dean
customarily gives each new employee a copy of Respon-
dent's contract with Schenley and a copy of Respondent's
constitution and by-laws. Grant Hall and Morgan Bahar,
the charging parties in this case, were both sworn in by
Dean at the plant and at the time each was given copies of
the contract and the constitution and by-laws.'
2. Grant Hall
Grant H. Hall was hired by Schenley on September 23,
1975. In April 1976 he suffered an injury off the job and
2 Hall and Bahar testified that they were not given copies of the constitu-
tion and by-laws and that they received copies of the contract at their orien-
tation sessions. A third employee, Ware, initially testified that when he was
sworn in Dean did not give him a copy of the constitution and by-laws, but
then testified that he did not recall receiving or seeing a copy of the constitu-
tion and by-laws at that time. All three employees identified the documents
by the colors of their covers rather than by their titles or contents and they
testified either that they received or recalled receiving only one blue book. I
have credited Dean that he followed his usual practice in all three cases and
conclude that the three employees' contrary testimony is a product of faulty
recollection of events which seemed unimportant at the time.
was put on medical leave until September 1976. Then, al-
though he was physically able to work, he was placed on
layoff status because of lack of work. Hall had been laid off
previously on five or six occasions for periods from 2 to 4
months.
Hall signed a checkoff authorization after his initial em-
ployment and except when he was on layoff or medical
leave his dues were deducted from his pay. During periods
of layoff before 1976. Hall permitted his laid-off dues to
accumulate until he was recalled. Upon recall, he learned
the amount of his arrearage through a list of delinquent
members posted on the plant bulletin board and paid the
accumulated arrearage to Respondent's financial secretary,
Rucker, after he received his first paycheck.
By November 1976 Hall had been out of' work for 6
months and was 6 months in arrears in payment of his dues.
At that time, Dean obtained the telephone numbers of sev-
eral delinquent employees, including Hall, from Schenley's
personnel clerk, Heady, and called Hall. Dean told Hall
that he was 6 months behind, that the trustees were "getting
on" the financial secretary, and that his dues had to he
paid. Hall replied that he had no money then, but would
shortly receive an unemployment compensation check after
which he would come to the plant to pay him. Dean told
Hall that Respondent did not like to terminate any union
member and that if Hall could pay half of what he owed
Respondent would wait for the remainder until later.
Shortly after Dean asked Heady for Hall's telephone
number, Hall called Heady to ask about the availability of
work. At the end of their conversation, Heady told Hall
that Hall should contact Dean about his union dues.l
In the latter part of November, Financial Secretary
Rucker called Hall and told him that he owed $24 and
would have to get his dues caught up. Hall replied that he
was living solely on unemployment compensation, but
would pay his arrearage as soon as he got his next check.
Rucker said nothing at that time to indicate that Hall's job
was in jeopardy.4
In December Schenley issued a vacation check to Hall
from which it deducted $8 fbr union dues. Respondent ap-
plied this amount as payment of Hall's laid-off dues for
January and February 1977.
On March 22, 1977, Respondent wrote Schenley's indus-
trial relations manager with respect to Hall:
Also, we advise you to drop GCrant Hall [from the se-
niority list] due to the fact that he is behind in his
Heady's testimony corroborates Dean that he sought Hall's telephone
number in order to call him about his dues. Although Hall denied talking to
either Dean or Heady about his dues, he conceded that he was concerned
about his lack of work at the time and that Heady very possibly told him
that Dean wanted to see him about his dues. I have credited Dean and
Heady in regard to these conversations. Although Dean and Heady were not
precise as to the time of the calls, it appears that they occurred in November.
when Hall was 6 months in arrears and when Hall confirmed that he spoke
to Head) about the availability of work.
4 Hall denied that Rucker called him at any time. Rucker testified he
called Htall on two occasions once in November and again in December. In
an affidavit given during the investigation of this case Rucker stated that he
made one call to Hall. His explanation that he was ony asked about a single
conversation at that time and did not volunteer that he had a second conver-
sation is not convincing. While I have not credited Hall's denial that Dean or
Rucker called him, I conclude that the second conversation described by
Rucker did not occur and that Rucker called Hall only once.
374
DISIILLERY. RECTIFYING. WINE AND ALLIED WORKERS, LOCAL 38
Union Dues and he has been contacted but has not
paid them at this time. Therefore, he is not in good
standing with the Local.
As a result, Schenley did not recall Hall in the spring of
1977 when he would otherwise have been recalled to work.
Hall did not learn that he was terminated until he discov-
ered in May that an acquaintance with less seniority had
been recalled. At that time, Hall visited Schenlev's person-
nel clerk, Heady, who told him that he had been terminated
for failure to pay union dues.
In October 1977, Hall paid his arrearages to Respondent
and was reinstated by Schenley without objection from Re-
spondent.
It is conceded that between December, when $8 was
withheld from Hall's pay, and March, when Respondent
requested his discharge, Respondent had no further com-
munication with Hall about his dues, did not notify him
that he had been expelled for nonpayment of dues, and did
not notify him that it had requested his termination.
3. Morgan Bahar
Morgan A. Bahar was hired on January 8, 1976. and
worked with some interruptions due to layoffs of short du-
ration until July 30, 1976. Bahar was then laid off until
October 1976 when he was recalled to work for several days
and again laid off on October 28, 1976.
Bahar did not sign a checkoff authorization when he be-
came a member of the Union. After either a call from Dean
or seeing his name on a delinquency list posted in the plant
Bahar paid Dean his initiation fee in two installments be-
fore July 1976, but Bahar paid no dues before his July lay-
off. In October, Rucker posted a delinquency list in the
plant on which Bahar's name appeared, and in November
1976, Bahar paid $20 to Rucker. At that time, Rucker told
him that he was quite delinquent and must get his dues
paid. Bahar promised that he would do so. Rucker applied
Bahar's payment to his back dues for April, May, and half
of June. After making this payment Bahar still owed half of
his June dues and laid-off dues for 6 months.5
In November, Dean telephoned Bahar and told him that
he was 6 months in arrears and that unless his dues were
paid, his card would be pulled. Although Rucker testified
that he unsuccessfully tried to telephone Bahar in Novem-
ber, neither he nor Dean spoke to Bahar thereafter, and the
Union made no attempt to communicate with Bahar by
mail.
Bahar visited Schenley's industrial relations manager,
Burch, in January 1977, about an unrelated matter. At that
time, he asked Burch how much dues he owed to the
Union, and Burch replied that he did not know but that
Bahar should see Dean or the current financial secretary.
Bahar did not do so, according to him, because he had no
money to pay the dues.
IBahar testified that neither Dean nor Rucker spoke to him about his dues
after June 1976. and that he had no recollection of paying any dues to
Rucker in November. However. Respondent's dues records support Rucker's
testimony as to receipt of this payment, and there is no apparent reason why
these records should show a payment at that time if it was never made. I
have credited Rucker and Dean rather than Bahar whose recollection ap-
peared to be faulty in this as well as other respects.
On April 1, 1977, the Union sent Schenley's industrial
relations manager a letter stating:
Local t38 hereby advised the Company that Mor-
gan Roberts is not in good standing with the Union
because of his failure to pay past due Union dues. He
has been contacted and has failed to pay as of this
date.
We request the Company drop him from the senior-
ity list effective April 1, 1977.
As a result, Schenley did not recall Bahar when an open-
ing arose in the spring of 1977. In May 1977, Bahar learned
that others had been recalled, and other employees told him
at that time that he had been fired for failure to pay his
union dues. Bahar did not contact the Company or Respon-
dent after receiving this information. In November 1977,
Bahar was reinstated by Schenley without objection from
the Union, and he paid his arrearages to the Union.
B. Concluding Findings
The General Counsel contends that the Union violated
Section 8(b)(2) of the Act by failing to fulfill its fiduciary
duty to inform Hall and Bahar clearly of their union-secu-
nty obligations under the contract before demanding their
discharges.,
Respondent contends that it fulfilled its obligation by
posting notice of their delinquency in the plant and by the
efforts of Dean and Rucker to contact them.
It is well settled that before a union may enforce a union-
security agreement by causing the discharge of an em-
ployee, it has "a fiduciary duty . . . to deal fairly with em-
ployees," which, "at the minimum . . . requires that the
union inform the employee of his obligations in order that
the employee may take whatever action is necessary to pro-
tect his job tenure."
The amounts owed, the basis for the computation, and
the time by which payment must be made all must clearly
be expressed. Responsibility for any ambiguity must be
borne by the union.'
In this case, when Hall and Bahar were first hired, they
were given specific notice that they were required to join
Respondent and pay dues, and both knew that laid-off dues
were required when they were on layoff. However, Hall and
Bahar were not specifically informed as to how Respondent
would enforce the obligation to pay laid-off dues either at
that time or at any time thereafter.
Respondent's constitution and bylaws provides for sus-
pension from membership after 2 months of delinquency
and expulsion after 6 months. They specifically authorize
6The complaint raises no issue as to the validity of the union-security
clause in the agreement or as to its application to require maintenance of
membership during periods of layoff.
' Hotel, Motel and Club Employees' Union, Local 568 (Philadelphia Shera-
ron Corp.) v. N.LR.B. 320 F.2d 254, 258 (3d Cir. 1963), enfg. 136 NLRB 888
(1962).
B Teamsters Local Union No. 122, International Brotherhood of Teamsters,.
Chauffeurs. Warehousemen and Helpers of Amertca (Augusr A. Busch and Co.
of Mass., Inc.), 203 NLRB 1041, 1042, enfd. 509 F.2d 1160 (Ist Cir. 1974)
Bao Area Typographical L'nion Local No. 21, International Typographical
Union, AFL-CIO (Northwest Publications, Inc.), 218 NLRB 812, 814 (1975);
H C. Macaulev Foundry Co., 223 NLRB 815, enfd. 553 F.2d 1198 (9th Cir.
1977)
375
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent to seek an employee's removal from employ-
ment under the union-security clause after 2 months of de-
linquency. However, insofar as it appears, Respondent has
never sought discharge of an employee before he was 6
months in arrears and has no consistent policy, certainly
not one known or publicized to its members, as to when it
seeks an employee's termination. Delinquency notices
posted in the plant request immediate payment, but do not
indicate deadlines for payment after which discharge will
be sought and are not likely to be read by employees on
layoff at the time of posting.
In the case of Hall, although he had never previously
been laid off for more than 6 months, his experience had
been that he was permitted to pay accumulated laid-off
dues after recall, and absent clear notice to the contrary it
was reasonable for him to believe, as he testified, that he
would again be permitted to do so. While Dean told him in
November that the dues had to be paid and that Respon-
dent did not like to terminate any members, neither he nor
Rucker told Hall at that time that he would be terminated
at any specific time before recall if he failed to pay his laid-
off dues. Dues deducted from his vacation paycheck in De-
cember were treated as payments for future dues so that he
remained 6 months in arrears on Respondent's books from
December on, but Respondent did not request his termina-
tion until March. It did not contact Hall again, did not
notify him of its intent to seek his termination, and did not
even notify him that his termination had been requested.
In the case of Bahar, Rucker posted a delinquency notice
in October when Bahar was 6 months delinquent, but did
not mention the possibility of termination for nonpayment
of his arrearage. When Bahar paid part of his back dues in
November leaving him still 6 months in arrears, Rucker
told him only that he must get his dues paid without stating
what would happen if he did not. Although Dean later told
Bahar his card would be pulled if his dues were not paid, he
gave Bahar no deadline, and Respondent then permitted 4
months to pass before pursuing the matter further. It then
acted without any further notice to Bahar.
I find that however well-intentioned Dean and Rucker
may have been in seeking to enforce the union-security
agreement, Respondent failed to give either Hall or Bahar
an unambiguous statement of Respondent's intention to
seek their termination at any certain time before they were
recalled to work if they failed to pay their accrued arrear-
ages and that Respondent thereby failed to satisfy its obli-
gation to them before seeking their discharge. Although Re-
spondent contends that they were willful violators of their
obligation to pay dues who now seek to use Respondent's
fiduciary obligations as a shield to avoid their known lawful
obligations, there is no indication of their unwillingness to
pay based on any factor other than their unemployment,
their limited financial means, and their lack of awareness of
the consequences. In these circumstances, I find no basis for
excusing Respondent from the obligation to give them clear
notice that their jobs were in jeopardy if they waited to be
recalled before paying their arrearages.9 Accordingly, I con-
clude that Respondent violated Section 8(b)(2) and (IX)(A)
H. C. Macauley Foundry Co., supra; Bay Area Typographical Union Local
No. 21, International Typographical Union, AFL-CIO (Northwest Publica-
tions, Inc.), supra.
of the Act by causing Schenley to terminate them for non-
payment of dues.
THE REMEDY
Having found that Respondent violated Section 8(b)(a)
and (I)(A) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
I shall further recommend that Respondent be ordered to
make Hall and Bahar whole for any loss of earnings they
may have suffered as a result of the discrimination against
them by payment to them of the amounts they normally
would have earned from the dates of their respective dis-
charges to the dates of their respective reinstatements, less
net earnings, and interest thereon to be computed in the
manner prescribed in F. W. Woolworth Company, 90 NLRB
289 (1950), and Florida Steel Corporation, 231 NLRB 651
(1977).'°
Upon the basis of the above findings of fact and the en-
tire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Schenley Distillers, Inc., is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. Distillery, Rectifying, Wine and Allied Workers' In-
ternational Union of America, Local 38, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the
Act.
3. By causing Schenley to discharge Hall and Bahar
without first clearly informing them of their dues obliga-
tions pursuant to a union-security agreement and of the
consequences of their failure to meet them, Respondent has
engaged in unfair labor practices affecting commerce within
the meaning of Section 8(bX2) and ()(A) and Section 2(6)
and (7) of the Act.
Upon the basis of the above findings of fact, conclusions
of law, and the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, I hereby issue the following recommended:
ORDER"
The Respondent, Distillery, Rectifying, Wine and Allied
Workers' International Union of America, Local Union 38,
AFL-CIO, and its officers, representatives, and agents,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause Schenley Distillers,
Inc., to discriminate against any of their employees in viola-
tion of Section 8(aX3) of the Act.
(b) In any like or related manner restraining or coercing
'1See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
" In the event no exceptions are filed as provided by Sec. 102.46 of 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 the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
376
DISTILLERY, RECTIFYING. WINE AND ALLIED WORKERS, LOCAL 38
employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, except to the extent that such rights are
affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in
Section 8(aX3) of the Act, as modified by the Labor-Man-
agement Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Make Grant H. Hall and Morgan A. Bahar whole for
any loss of earnings they may have suffered as a result of
the discrimination against them in the manner set forth in
the section of the Decision above entitled "The Remedy."
(b) Post at its offices copies of the attached notice
marked "Appendix."' 2 Copies of said notice, on forms pro-
12 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursuant to a Judg-
vided by the Regional Director for Region 9, after being
duly signed by an authorized representative, shall be posted
by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to members are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Deliver to the Regional Director for Region 9 signed
copies of said notice in sufficient number to be posted by
Schenley Distillers, Inc., the employer willing, in all places
where notices to employees are customarily posted.
(d) Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
377