Electrical Workers IBEW Local 3 (Fischbach & Moore)

National Labor Relations Board - Board Decisions

Dec 16, 1992

309 N.L.R.B. 856 (N.L.R.B. 1992)

856
309 NLRB No. 139
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If the Respondent had waited until March 30 to deposit the
checks and if they had nonetheless bounced, a different result might
well be warranted.
1 The majority finds that the Respondent’s premature presentment
of the checks prior to March 30 (the checks were dated March 30)
caused the problem of their being rejected for insufficient funds, but
that if the Respondent had, instead, presented the checks on March
30 and they still bounced ‘‘a different result might well be war-
ranted.’’ However, if McMichael acted in good faith, as the majority
finds on this record, presumably he would either have deposited suf-
ficient funds by March 30 to cover the checks or had a plausible
explanation for failing to do so. Because McMichael had no knowl-
edge until March 31 of the Respondent’s premature presentment, it
Local 3, International Brotherhood of Electrical
Workers, AFL–CIO (Fischbach and Moore)
and Norman McMichael. Case 29–CB–7625
December 16, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On February 5, 1992, Administrative Law Judge
Howard Edelman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and
the General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
We disagree with our dissenting colleague that the
judge improperly excluded certain evidence. The ex-
cluded evidence is designed to show that McMichael
had insufficient funds on deposit to cover the checks
on March 30. However, even assuming arguendo that
the bank records would show insufficient funds on
March 30, this would not establish that McMichael
‘‘willfully and deliberately sought to evade his union-
security obligations.’’ To the contrary, McMichael
frankly admitted to the Respondent on March 26 that
he had insufficient funds on that date and he requested
that the checks be postdated and held until March 30.
These are hardly the actions of someone who is trying
to hoodwink the Respondent and not pay his dues.
Further, even if McMichael had insufficient funds on
deposit on March 30, that would not establish that, on
March 26, he had no intention of depositing the req-
uisite funds. Finally, even if he had no such intention,
that would not diminish the unfairness of the Respond-
ent’s conduct. The Respondent promised McMichael
that it would hold the check until March 30, a Friday.
It broke that promise and McMichael did not learn of
the problem until Saturday, March 31. The Respondent
summarily caused McMichael’s discharge for non-
payment on Monday, April 2. In these circumstances,
we do not believe that the Respondent acted fairly to-
ward McMichael when it summarily caused his dis-
charge.1
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Local 3, International
Brotherhood of Electrical Workers, AFL–CIO, its offi-
cers, agents, and representatives, shall take the action
set forth in the Order.
CHAIRMAN STEPHENS, dissenting.
I would remand this proceeding to the administrative
law judge because of the judge’s failure to permit the
Respondent to present evidence relevant to one of its
defenses to the complaint. The complaint alleges that
the Respondent violated Section 8(b)(1)(A) and (2) by
causing the discharge of Charging Party Norman
McMichael pursuant to a union-security dues provi-
sion, without giving adequate notice to McMichael that
his dues were in arrears. One of the Respondent’s de-
fenses to the complaint is that McMichael willfully
and deliberately sought to evade his union-security
dues obligations and, therefore, any failure to notify
McMichael of his dues obligations was excused. See
I.B.I. Security, 292 NLRB 648, 649 (1989); Teamsters
Local 630 (Ralph’s Grocery), 209 NLRB 117, 124
(1974). Cf. Operating Engineers Local 542C (Ransome
Lift), 303 NLRB 1001 fn. 3 (1991). My review of the
record convinces me that, at the hearing, the judge er-
roneously considered McMichael’s alleged acts of eva-
sion to be irrelevant and, accordingly, his exclusion of
evidence pertinent to the alleged evasion unduly lim-
ited the Respondent’s ability to impeach McMichael’s
credibility regarding this matter.
The majority finds that McMichael was not trying to
‘‘hoodwink’’ the Respondent in order to evade his
dues obligations. At the hearing, however, the judge
ruled that McMichael’s intentions were irrelevant.
Thus, the judge ruled that the issue was ‘‘not what
[McMichael] was trying to do, but what the Respond-
ent did.’’ Consistent with that ruling, the judge refused
repeatedly to permit the Respondent to attack
McMichael’s credibility by attempting to show that
McMichael never intended to cover the checks he
wrote to the Respondent. In his decision, however, the
judge evidently had a change of heart regarding the
relevance of McMichael’s intentions. Thus, the judge
found in his decision ‘‘there is no evidence that
McMichael was acting in bad faith or attempting to
avoid his dues obligations.’’ In my view, it is anoma-
lous and unfair to find ‘‘no evidence’’ when, at the
hearing, the Respondent was precluded from pursuing
such evidence.1 In these circumstances, I would re-
857ELECTRICAL WORKERS IBEW LOCAL 3 (FISCHBACH & MOORE)
logically follows that the premature presentment had no bearing on
McMichael’s conduct between March 26 and 30. Accordingly, the
distinction that the majority poses between a premature and a timely
presentment only reinforces my view that a hearing is warranted to
explore McMichael’s conduct.
mand this proceeding to the judge and direct him to
permit the Respondent to develop this line of inquiry.
Thus, in the absence of an adequately developed
record, I express no opinion on the merits of the Gen-
eral Counsel’s case-in-chief or the Respondent’s de-
fense.
Brian F. Quinn, Esq., for the General Counsel.
Norman Rothfeld, Esq., for the Respondent.
DECISION
HOWARD EDELMAN, Administrative Law Judge. This case
was tried before me on January 28, 1991, in Brooklyn, New
York.
On March 14, 1990, Norman McMichael, an individual,
filed a charge against Local 3, International Brotherhood of
Electrical Workers, AFL–CIO (Respondent) alleging that Re-
spondent had caused Fischbach & Moore, Inc. (the Em-
ployer) to discharge McMichael because of his unlawful ex-
pulsion from membership in Respondent.
On June 22, 1990, a complaint issued alleging that Re-
spondent had caused the above discharge in violation of Sec-
tion 8(b)(1)(A) and (2) of the Act.
On the entire record, including my observation of the de-
meanor of the witnesses, the briefs submitted by the General
Counsel and counsel for Respondent, I make the following
FINDINGS OF FACT
The Employer is a New York corporation with its prin-
cipal office located in the borough of Queens in the City of
New York where it is engaged in the business of electrical
contracting at various locations throughout the New York
City metropolitan area. The Employer annually purchases
and receives goods products and materials at its New York
locations valued in excess of $50,000 directly from points lo-
cated outside the State of New York. I conclude the Em-
ployer is engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
Respondent admittedly is a labor organization within the
meaning of Section 2(5) of the Act.
McMichael has been an electrician and a member of Re-
spondent for about 28 years. In September 1989, McMichael
tendered a check to Respondent for his union dues. When
Respondent attempted to cash it, it was returned for insuffi-
cient funds. Respondent contends that it sent McMichael a
notice concerning his check. McMichael testified that he did
not receive such notice. In any event, from September 1989
through March 30, 1990, McMichael continued to work for
a number of employers without incident. McMichael began
his employment with the Employer on March 2, 1990.
On March 26, 1990, McMichael went to Respondent’s of-
fice to pay his upcoming dues. At that time Respondent’s
clerical, who was on duty, notified him that his September
1989 check had been returned for insufficient funds.
McMichael thereupon proceeded to make out a check cover-
ing the amount of the bounced check and another check cov-
ering the upcoming period of April 1 to September 30, 1990.
He told the clerical handling his transactions that, to ensure
that there were sufficient funds to cover the checks, he had
postdated the checks to March 30, 1990.
On March 29, 1990, notwithstanding the postdated check,
Respondent submitted the check to its bank for collection.
On March 30, McMichael received his membership card
from Respondent. Sometime before April 2, 1990, Respond-
ent received notification from its bank that there were insuf-
ficient funds in McMichael’s account to cover his checks. On
April 2, 1990, McMichael reported for work with the Em-
ployer. Before starting work McMichael was told to meet
with the foreman on the job. He was then told by the job
foreman that William Blaine, financial secretary of Respond-
ent, had called and told him that McMichael’s union dues
were not paid up, and that he should not be permitted to start
work.
Following his conversation with the job foreman,
McMichael telephoned Respondent and spoke to Blaine who
told him to report to the union office and meet with him.
Following this call McMichael met with Blaine at Respond-
ent’s office. During this meeting McMichael credibly testi-
fied that Blaine told him he could no longer work for the
Employer because his dues were not paid. Presumably Re-
spondent had received notification from its bank that the two
postdated checks tendered by McMichael described above
had been returned for insufficient funds. Blaine also showed
him a letter allegedly sent to him concerning his bounced
September 1989 check. McMichael denied receiving such let-
ter. As a result of his conversation with Blaine, McMichael
did not attempt to return to his job with the Employer.
Blaine did not deny McMichael’s testimony concerning his
statement to McMichael that in view of his nonpayment of
dues, he could no longer work for the Employer. Blaine did
testify that pursuant to the union-security provisions of their
collective-bargaining agreements with employers in the in-
dustry, if an employee’s dues were not paid up and they are
not members in good standing Respondent invariably en-
forces its union-security provisions with the respective em-
ployers concerned. In other words, an employee not a mem-
ber in good standing with Respondent would not be per-
mitted by Respondent to work for an employer under con-
tract with Respondent. Nevertheless, Blaine denied that he
notified the Employer to terminate McMichael. Blaine then
showed McMichael a copy of Respondent’s October 1989
letter informing him that he was delinquent in his dues.
McMichael said he was unaware of such letter.
On April 12 and 23, McMichael made attempts to tender
his back dues to Blaine. However Blaine refused to accept
the checks. At some unspecified time thereafter, McMichael
was reinstated into Respondent’s labor organization.
Discussion
It is well settled that a union owes a fiduciary duty to em-
ployees it represents as the exclusive collective-bargaining
representative to deal fairly and honestly with them. And if
a union fails in such fiduciary duty, it forfeits the rights pur-
suant to a lawful union-security provision to demand the dis-
charge of an employee who becomes delinquent in his union
dues. Such fiduciary includes, at a minimum, the fulfillment
of all the following prerequisites to a demand for discharge;
858 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
a statement of the precise amount owed, the method of com-
putation, and a reasonable opportunity for the employee to
meet his dues obligation. NLRB v. Hotel Employees Local
568 (Philadelphia Sheraton Corp.), 320 F.2d 254 (3d Cir.
1963), enfg. 136 NLRB 888 (1962).
Whether Respondent sent McMichael a dues delinquent
letter in October 1989, is immaterial to the disposition to this
case. It is clear that Respondent took no action in connection
with such alleged letter.
The issue is whether Respondent fulfilled its fiduciary re-
lationship to McMichael concerning his attempt to pay his
back and current dues obligations in March 1990. In this re-
gard, the evidence establishes that McMichael made a good-
faith tender of his dues on March 26 when he tendered two
checks, one for back dues and one for current dues, which
were accepted by Respondent. The checks were dated March
30, the due date. Presumably, had they been deposited at that
date there would have been sufficient funds to cover these
checks. Yet, notwithstanding such date, Respondent at-
tempted to cash the checks on March 29. Under these cir-
cumstances there is no evidence that McMichael was acting
in bad faith or attempting to avoid his dues liability. What
is critical to the decision in this case is that Respondent ut-
terly failed to provide McMichael with any notice prior to
affecting his termination by the Employer pursuant to the
union-security provisions of its collective-bargaining agree-
ment with the Employer. In this connection McMichael re-
ceived his membership card on or about April 1, 1990. The
first notification McMichael received of any dues delin-
quency was on April 2, when he was informed by an Em-
ployer representative that he could no longer work for the
Employer until he met with Blaine and straightened out his
dual obligations. Therefore until the morning of April 2,
McMichael could reasonably assume that all his dues obliga-
tions were satisfied.
On April 2, when McMichael met with Blaine he was in-
formed for the first time that his dues were in arrears and
that Blaine had informed the Employer that McMichael was
no longer a member in good standing and could no longer
work for the Employer. As set forth above, although Blaine
did not admit that he contacted the Employer to tell him this,
he did testify quite unequivocally that Respondent does not
permit members who are not in good standing to work. Thus,
I find that Respondent, by its agents, caused the Employer
to terminate McMichael on April 2 pursuant to its union-se-
curity provisions with the Employer, and without any notice
to McMichael. Under these circumstances, Respondent failed
to meet its fiduciary obligation of providing McMichael a
reasonable opportunity to meet his dues obligation before en-
forcement of its union-security provisions. In fact Respond-
ent provided McMichael with no opportunity. I find that by
such conduct, Respondent violated Section 8(b)(1)(A) and (2)
of the Act.
CONCLUSIONS OF LAW
1. The Employer is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
3. By causing the Employer to discharge Norman
McMichael because he failed to pay his union dues and re-
main a member of Respondent in good standing, without giv-
ing McMichael any notice that such failure would result in
his discharge, or providing McMichael with reasonable time
to satisfy his dues obligations, Respondent has violated Sec-
tion 8(b)(1)(A) and (2) of the Act.
REMEDY
Having found that Respondent violated Section 8(b)(1)(A)
and (2) of the Act, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative action
designed to effectuate the purposes of the Act.
Having found that Respondent Union caused Fischbach &
Moore, Inc. to unlawfully discharge Norman McMichael, I
shall recommend that Respondent Union notify the above
employer, in writing, with a copy to McMichael, that it has
no objection to the reinstatement of McMichael, and that it
requests McMichael be reinstated. I shall also recommend
that Respondent Union be ordered to make McMichael
whole for any loss of wages and benefits he may have suf-
fered as as result of the Respondent Union’s action until
McMichael has been reinstated by the above-named em-
ployer to his former or substantially equivalent job, or he ob-
tains substantially equivalent employment elsewhere, less his
net interim earnings. Sheet Metal Workers Local 355 (Zinsco
Electrical Products), 254 NLRB 773 (1981). The amount of
backpay shall be computed with interest as provided for in
New Horizons for the Retarded, 283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, Local 3, International Brotherhood of
Electrical Workers, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Causing or attempting to cause Fischbach & Moore,
Inc. to discriminate against any of its employees in violation
of Section 8(a)(3) of the Act.
(b) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed by Section 7
of the Act, except to the extent that such rights may be af-
fected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized by
Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole Norman McMichael for any loss of wages
or other rights and benefits he may have suffered as the re-
sult of its discrimination against him, in the manner set forth
in the remedy section of this decision.
(b) Notify Fishback & Moore, Inc., in writing, with a copy
to McMichael, that it has no objection to the employment of
Norman McMichael, and that it requests that McMichael be
reinstated.
(c) Expunge from its records any reference to the unlawful
discharge of Norman McMichael and notify him, in writing,
that this has been done and that evidence of his unlawful dis-
859ELECTRICAL WORKERS IBEW LOCAL 3 (FISCHBACH & MOORE)
2 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
charge shall not be used as a basis for future action against
him.
(d) Post at its business office and meeting hall copies of
the attached notice marked ‘‘Appendix.’’2 Copies of the no-
tice, on forms provided by the Regional Director for Region
29, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to mem-
bers are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Deliver to the Regional Director for Region 29 signed
copies of the notice in sufficient numbers to be posted by
Fishbach & Moore, Inc., in all places where notices to em-
ployees are customarily posted, if it is willing. Ask the Em-
ployer to remove any references to McMichael’s unlawful
discharge from the Employer’s files and notify McMichael
that it has asked the Employer to do this.
(f) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten to cause, or attempt to cause,
Fischbach & Moore, or any other employer, to discharge or
otherwise discriminate against Norman McMichael, or any
other employee: (1) for failure to tender periodic dues or ini-
tiation fees without adequately advising him of his obliga-
tions, in violation of Section 8(a)(3) of the National Labor
Relations Act.
WE WILL NOT in any like or related manner restrain or co-
erce employee in the exercise of 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 employment.
WE WILL reimburse Norman McMichael for any loss of
wages or other rights and benefits he may have suffered as
a result of our discrimination against him on April 2, 1990,
plus interest.
WE WILL expunge from our files any reference to our re-
quest for the discharge of Norman McMichael and notify
him in writing that this has been done and that evidence of
this unlawful request will not be used as a basis for future
action against him, and WE WILL ask the Employer to remove
any reference to McMichael’s unlawful discharge request
from its files and will notify McMichael that we have asked
the Employer to do this.
LOCAL 3, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS