Electrical Workers IBEW Local 99 (Electrical Maintenance)

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 613 (N.L.R.B. 1993)

613
312 NLRB No. 107
ELECTRICAL WORKERS IBEW LOCAL 99 (ELECTRICAL MAINTENANCE)
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 In addition to the unfair labor practices discussed below, the
judge concluded that the Respondent violated Sec. 8(b)(1)(A) spe-
cifically by terminating Charging Party Carroll’s union membership.
We adopt the judge’s finding and recommended Order in this regard
only in the absence of exceptions.
3 We find it unnecessary to rely on the judge’s findings in the pe-
nultimate paragraph preceding the section of his decision entitled,
‘‘Conflicting Testimony.’’
Local Union 99, International Brotherhood of Elec-
trical Workers, AFL–CIO (Electrical Mainte-
nance & Control, Inc.) and Robert F. Carroll.
Case 1–CB–7683
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On March 5, 1993, Administrative Law Judge Elbert
D. Gadsden issued the attached decision. The Re-
spondent and the General Counsel filed exceptions and
supporting briefs, and the General Counsel also filed
a brief answering the Respondent’s exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings,1 and conclusions,2 and to adopt the rec-
ommended Order as modified and set out in full
below.
As more fully detailed in the attached decision, the
judge found that on or about July 11, 1991, Respond-
ent Local Union 99 caused Electrical Maintenance &
Control, Inc. (the Employer) to discharge employee
Robert Carroll through the enforcement of the union-
security clause in the parties’ collective-bargaining
agreement following its notification to the Employer
that Carroll’s union membership had been terminated.
The Union acknowledged that such notices generally
resulted in the employee’s being discharged. The judge
found that the Respondent’s conduct violated Section
8(b)(1)(A) and (2) because, prior to seeking his dis-
charge under the union-security clause, the Respondent
did not carry out its fiduciary duty to Carroll to pro-
vide adequate notice of his obligations with respect to
payment of membership dues. See, e.g., Coopers NIU
(Blue Grass), 299 NLRB 720, 723 (1990), and cases
cited there. More specifically, the judge found that the
Respondent’s written notice of dues delinquency, re-
ceived by Carroll on June 26, 1991, was deficient be-
cause it failed to state that the Respondent would seek
his discharge if he did not tender his dues by June 30,
the end of the second quarter. The judge further found
that 5 days—from Wednesday, June 26, to Sunday,
June 30—did not provide Carroll with a reasonable op-
portunity to pay his dues in light of the specific, rel-
evant circumstances. See, e.g., Operating Engineers
Local 150 (Willbros Energy), 307 NLRB 272, 275–276
(1992); Forsyth Hardwood Co., 243 NLRB 1039,
1044–1045 (1979). To remedy the Respondent’s unfair
labor practices, the judge recommended, inter alia, that
the Respondent be ordered to place Carroll at the top
of the ‘‘out-of-work list’’ maintained by the Local, and
to make him whole for any loss in pay over an appar-
ently limited, but unclear, period of time.
We find no merit in the Respondent’s exceptions to
the violations found by the judge, and we affirm his
unfair labor practice findings as indicated above.3 We
do find merit in the General Counsel’s exceptions to
the judge’s recommended remedy, Order, and notice.
In essence, the General Counsel argues that the judge
did not provide the Board’s standard remedy for unfair
labor practices of the kind in this case. We agree that
the Board’s routine remedy is appropriate here, no
grounds having been shown for the extraordinary rem-
edy recommended by the judge. In cases in which, as
here, a union has violated Section 8(b)(1)(A) and (2)
by causing an employer to discharge an employee un-
lawfully through enforcement of the parties’ contrac-
tual union-security provision, and there is no liability
on the employer’s part, the Board’s basic remedy is as
stated in Sheet Metal Workers Local 355 (Zinsco Elec-
trical), 254 NLRB 773, 774 (1981), enfd. in relevant
part 716 F.2d 1249 (9th Cir. 1983). We will therefore
amend the judge’s recommended remedy and modify
his recommended Order in a manner consistent with
the remedy and Order provided in Zinsco and other-
wise consistent with an appropriate remedy in the cir-
cumstances of this case. See, e.g., Willbros Energy
Services, supra at 276–277; Carpenters Local 296
(Acrom Construction), 305 NLRB 822, 830–831
(1991).
AMENDED REMEDY
Having found that the Respondent violated Section
8(b)(1)(A) and (2) of the Act, we shall order that it
cease and desist and that it take certain affirmative ac-
tion designed to effectuate the purposes of the Act.
Having found that the Respondent unlawfully caused
Electrical Maintenance & Control, Inc. to discharge
Robert Carroll, we shall order the Respondent to notify
the above Employer, in writing, with a copy to Carroll,
that it has no objection to the reinstatement of Carroll,
and that it requests Carroll be reinstated. We shall also
order the Respondent to make Carroll whole for any
loss of wages and benefits he may have suffered as a
result of the Respondent’s action, less his net interim
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 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.’’
earnings, until Carroll has been reinstated by the above
Employer to his former or a substantially equivalent
job, or until he obtains substantially equivalent em-
ployment elsewhere. Sheet Metal Workers Local 355
(Zinsco Electrical), supra at 774. See also F. W. Wool-
worth Co., 90 NLRB 289 (1950). The amount of back-
pay shall be computed with interest as provided for in
New Horizons for the Retarded, 283 NLRB 1173
(1987).
ORDER
The National Labor Relations Board orders that the
Respondent, Local Union 99, International Brother-
hood of Electrical Workers, AFL–CIO, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Terminating the union membership of Robert
Carroll without providing him reasonable notice and
opportunity to pay delinquent dues and assessments.
(b) Causing or attempting to cause Electrical Main-
tenance & Control, Inc. to discriminate against any of
its employees in violation of Section 8(a)(3) of the
Act.
(c) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act, except to the extent
that such rights may be affected by an agreement re-
quiring membership in a labor organization as a condi-
tion of employment, as authorized by Section 8(a)(3)
of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Make whole Robert Carroll for any loss of
wages and benefits he may have suffered as a result
of the unlawful discrimination against him, in the man-
ner set forth in the amended remedy section above.
(b) Notify Electrical Maintenance & Control, Inc., in
writing, with a copy to Carroll, that it has no objection
to the reinstatement of Robert Carroll, and that it re-
quests that Carroll be reinstated.
(c) Remove from its records any reference relevant
to the discharge of Carroll and notify him, in writing,
that this has been done and that evidence of his dis-
charge shall not be used as a basis for future action
against him, and request Electrical Maintenance &
Control, Inc. to remove any reference to Carroll’s dis-
charge from its files, and notify Carroll that it has
made this request.
(d) Post in conspicuous places at its business office
and meeting hall, including all places where notices to
members are customarily posted copies of the attached
notice marked ‘‘Appendix.’’4 Copies of this notice, on
forms provided by the Regional Director for Region 1,
after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent imme-
diately on receipt. Once posted, these notices shall re-
main posted for 60 consecutive days. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material.
(e) Deliver to the Regional Director for Region 1
signed copies of the notice in sufficient numbers to be
posted by Electrical Maintenance & Control, Inc. in all
places where notices to employees are customarily
posted, if the Employer is willing.
(f) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT restrain and coerce Robert Carroll or
our other members by terminating their membership
without providing them reasonable notice and oppor-
tunity to pay delinquent dues and assessments.
WE WILL NOT cause, or attempt to cause, Electrical
Maintenance & Control, Inc., or any other employer,
to discharge or otherwise discriminate against Robert
Carroll or any other employee for failure to tender
periodic dues or initiation fees without adequately ad-
vising them of their obligations, in violation of Section
8(a)(3) of the National Labor Relations Act.
615ELECTRICAL WORKERS IBEW LOCAL 99 (ELECTRICAL MAINTENANCE)
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act, except to the extent that
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment.
WE WILL make Robert Carroll whole for any loss of
wages and benefits he may have suffered as a result
of the discrimination against him, plus interest.
WE WILL notify Electrical Maintenance & Control,
Inc., in writing, with a copy to Robert Carroll, that we
have no objection to the reinstatement of Carroll and
that we request his reinstatement.
WE WILL remove from our files any reference rel-
evant to the discharge of Robert Carroll and notify him
in writing that this has been done and that evidence of
his discharge will not be used as a basis for future ac-
tion against him, and WE WILL ask the Employer to re-
move any reference to Carroll’s discharge from its files
and notify Carroll that we have asked the Employer to
do this.
LOCAL UNION NO. 99, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORK-
ERS, AFL–CIO
William F. Grant, Esq., for the General Counsel.
Richard A. Skolmik, Esq. (Temkin, Lipsey & Skolmik, Ltd.),
of Providence, Rhode Island, for the Respondent.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. On a
charge and an amended charge of unfair labor practices filed
on October 23 and December 2, 1991, respectively, by Rob-
ert F. Carroll (Carroll or Charging Party), against Local
Union 99, International Brotherhood of Electrical Workers,
AFL–CIO (IBEW) (Respondent), a complaint was issued
against the Respondent by the Regional Director for Region
1, on behalf of the General Counsel on January 22, 1992.
In substance, the complaint, as amended, alleges that pur-
suant to a written request on July 2 and an oral request July
10, 1991, the Respondent sought to, and did in fact, cause
the Employer to terminate the employment of the Charging
Party because his membership in Respondent Union had
lapsed; and that such conduct by Respondent restrained and
coerced employees in the exercise of their rights protected by
Section 7 of the Act, in violation of Section 8(b)(1)(A) of
the Act; and that such conduct by Respondent also caused
the Employer to discriminate against the Charging Party, in
violation of Section 8(a)(3) of the Act.
The hearing in the above matter was held before me in
Boston, Massachusetts, on June 17 and 18, 1992. Briefs have
been received from counsel for the General Counsel and
counsel for the Respondent, respectively, which have been
carefully considered.
On the entire record in this case, including my observation
of the demeanor of the witnesses and my consideration of the
briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Electrical Maintenance & Control,
Inc. (the Employer or EMC) is and has been at all times ma-
terial, a corporation with an office and place of business in
Foster, Rhode Island (the Foster facility), where it has been
engaged as an electrical contractor in both the construction
industry performing residential, commercial, industrial, and
office construction, and in the repair and installation of elec-
trical apparatus for individual and commercial customers.
At all times material, the Employer (EMC) has been a
member of the Rhode Island and Southeast Massachusetts
Chapter, National Electrical Contractors Association.
During the calendar year ending December 31, 1990, Em-
ployer (EMC), in the course and conduct of its business op-
erations, received in excess of $50,000 for performing elec-
trical services in States other than the State of Rhode Island.
The amended complaint alleges, the parties stipulate, and
I find that Employer EMC is now, and has been at all times
material, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The amended complaint alleges, the answer admits, and I
find that Local Union 99, International Brotherhood of Elec-
trical Workers, AFL–CIO (Respondent) is, and has been at
all times material, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Robert Carroll, the Charging Party, joined the Respondent
Union in 1966 when he worked and completed the appren-
ticeship program in temperature control maintenance at Hon-
eywell. John (Jack) McGee also completed the course along
with Carroll. Both men have been journeymen electricians
for over 25 years. After completing apprenticeship training,
they first worked together at Johnson Controls in 1983 where
McGee was project manager. McGee hired Carroll to per-
form installation of temperature control systems until 1985.
Carroll also worked for McGee in the same capacity when
McGee was project manager for Westminster Electric.
The uncontroverted evidence further established that instal-
lation of temperature controls, involving heating, ventilating,
and air-conditioning systems, is highly specialized and re-
quires experience in reading temperature controls, mechanical
blueprints, and proper installation of sensors and safety de-
vices. This specialized knowledge is not common knowledge
among regular electricians.
At all times material, the following named persons have
occupied the positions set opposite their respective names,
and are now, and have been at all times material, agents of
Respondent within the meaning of Section 2(13) of the Act:
Carmine (Cam) Gelsomino, business manager; Walter Perry,
616 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The facts set forth above are not controverted or in conflict in
the record.
office president; Curtis Hymel, recording secretary; and Al-
fred Spaziano, financial secretary.1
A. Employer’s (EMC’s) Contractual and Membership
Relations with the Union
In 1986, McGee formed Electrical Maintenance & Control,
Inc. (EMC) to perform the above-described services for Hon-
eywell, Johnsons Control, Andover, and Trane Systems. As
such, McGee became a ‘‘union contractor,’’ retaining his
membership in, and signed a letter of consent with the
Union, becoming a party to the ‘‘Inside Wireman’s Agree-
ment of the Providence division of the Rhode Island and S.E.
Massachusetts Chapter, National Electrical Contractors Asso-
ciation (NECA),’’ and successor agreements. The current
agreement (G.C. Exh. 12) contains the clause as follows:
EMC is a small business employing four–seven workers.
The Union has a hiring hall through which it refers members
for employment. Carroll has been a member of the Union
since 1966. In about 1986, McGee, owner of EMC, specifi-
cally requested Carroll through the Union’s hiring hall and
hired him. McGee performed the business responsibility of
EMC, procuring work, paying bills, and keeping records,
while Carroll performed essentially all of the specialized
work in the field.
In 1990, EMC started experiencing a slowdown in busi-
ness when it only had in its employ Carroll and apprentice
Robert Tente. On days when business was slow, Carroll and
Tente worked fewer hours. When business was very slow,
McGee allowed them to miss a week or so and they would
continue to work without reporting to the Union and being
referred by the hiring hall.
Dues
Employees of employers bound by the contract with the
Union paid local dues of 2-1/2 percent of their weekly pay-
check by a dues-checkoff procedure. They also pay a per
capita levy of $53.40 per quarter, collected by the Union and
remitted to the International.
The constitution and rules of the IBEW governing local
unions and councils (G.C. Exh. 11) provides:
Article XXIII, Section 3. Any member indebted to his
L.U. for three months dues, or having any past due in-
debtedness to the I.B.E.W. for dues or assessments,
shall stand suspended, and the L.U. may refuse to ac-
cept dues from any member who is indebted to it. Such
member cannot be reinstated until all indebtedness has
been paid, unless waived by the L.U. However, dues
cannot be waived. Section 4. Any member indebted to
the L.U. for six months full dues shall be dropped from
membership by the F.S. (financial secretary) and cannot
become a member in good standing again in the
I.B.E.W. except by joining as a new member.
Since joining the Union in the late 1960s, Carroll had paid
his dues until the early 1980s when he was engaged in a di-
vorce proceeding, and started paying the quarterly assessment
late on several occasions. Whenever his payment was over-
due he usually received a notice in the mail at the end of
the first quarter for dues owing, plus a reinstatement fee, or
he received a telephone call from the financial secretary, Al-
fred Spaziano, reminding him his dues were late.
Carroll testified that after he remarried in 1990, his wife
assumed the bookkeeping responsibilities of his business. His
local dues continued to be deducted from his paycheck and
remitted to the Union. However, unbeknown to him, he said
his wife neglected to pay the quarterly assessments for the
first two quarters of 1991.
In a notice dated June 21, 1991, which Carroll said he re-
ceived Wednesday, June 26, 1991, Union Secretary Spaziano
informed him he owed $106.80 in dues assessments for the
first two quarters (January 1–June 30) 1991, plus a $30-rein-
statement fee. (G.C. Exh. 2.) The notice also directed
Carroll’s attention to article XXIII, sections 3 & 4 of the
IBEW’s constitution at the bottom of the notice which read
as follows:
(1) Local union’s shall collect dues from members
either monthly or quarterly in advance.
Article XX, Sec. 1
(2) Any member indebted to his L.U. for three
months’ dues or having any past due indebtedness to
the I.B.E.W. for dues or assessments shall stand sus-
pended, and the L.U. may refuse to accept dues from
any member who is indebted to it. Such member cannot
be reinstated until all indebtedness has been paid, un-
less waived by the L.U. However, dues cannot be
waived. [Art. XXIII, sec. 3.]
(3) Any member indebted to his L.U. for six month’s
full dues shall be dropped from membership by the F.S.
and cannot become a member in good standing again
in the I.B.E.W. except by joining as a new member.
[Art. XXIII, sec. 4.]
Carroll further testified that after his receipt of the above
notice on Wednesday, June 26, his wife reviewed his records
on Thursday, June 27, and learned that she had not paid his
dues; that he forgot to mail his payment on Friday, June 28,
but that he mailed three checks (G.C. Exh. 3) for the full
amount owing to the Union on Saturday, June 29, 1991. He
said the mailbox where he mailed the checks indicated a
scheduled pickup at 11 a.m. Saturday, June 29. However, the
envelope with the checks was postmarked with the date July
1, 1991, and it was actually received by the Union on Mon-
day, July 2, 1991. (R. Exh. 1.) On cross-examination, Carroll
admitted that he lived only a short distance from the union
hall and that he actually could have delivered the payment
to the hall himself.
The checks were returned enclosed with a letter dated July
2, 1991, from secretary of the Union, Spaziano (G.C. Exh.
3), stating: ‘‘We regret to inform you that you have been ter-
minated as a member of Local 99.’’ (G.C. Exh. 3.) Members
dropped from membership cannot become a member again
except by joining as a new member.
At the hearing, the union business manager, Carmine
(Cam) Gelsomino, testified that Carroll’s membership was
terminated pursuant to the constitution for nonpayment of
dues for a period exceeding 6 months (January 1 to June 30,
1991).
617ELECTRICAL WORKERS IBEW LOCAL 99 (ELECTRICAL MAINTENANCE)
Secretary Spaziano sent a letter to EMC (Jack McGee)
dated July 2, 1991 (G.C. Exh. 4), which reads in pertinent
part as follows:
This is to inform you that on July 1, 1991, Robert F.
Carroll was terminated as a member of Local #99,
International . . . .
At the hearing, Secretary Spaziano testified that he mailed
about 10 such notices to employers informing them that cer-
tain employees were no longer members of the Union for
nonpayment of dues. He stated that on the receipt of such
notices from the Union, employers generally discharged em-
ployees for nonmembership in the Union.
B. EMC’s Layoff or Discharge of Carroll
On his return from vacation July 8, 1991, McGee read the
Union’s notice about Carroll’s termination and asked Carroll
what had happened. Carroll told him what he testified to in
this hearing and he told McGee he was going to discuss the
matter with the Union. When Carroll met with Union Busi-
ness Manager Gelsomino that evening, the latter referred him
to the executive board. When Carroll met with the executive
board Wednesday, July 10, he was told the board had only
authority for approval of applications for new membership
and if he desired to be reinstated, he was advised to appeal
his expulsion to the International.
In a letter dated July 26, 1991, Carroll appealed his termi-
nation from the Union to the International Union and re-
quested reinstatement of his membership in the Union. In a
letter dated October 17, 1991, the International informed Car-
roll that his appeal was denied because he failed to comply
with article XXIII, section 1 of the constitution. Carroll
signed the out-of-work list October 21, 1991.
In a letter dated October 28, 1991, the International in-
formed Carroll that effective November 1, 1991, he was ter-
minated from the Union’s health and welfare program be-
cause of his nonmembership in the Union.
Analysis and Conclusions
The complaint alleges that Respondent Union violated
Section 8(b)(1)(A) and (2) of the Act.
Specifically, Section 8(b)(1)(A) of the Act provides as fol-
lows:
(b) It shall be an unfair labor practice for a labor orga-
nization or its agents—
(1) to restrain or coerce (A) employees in the ex-
ercise of the rights guaranteed in section 7: . . . .
(2) to cause or attempt to cause an employer to
discriminate against an employee in violation of sub-
section 8(a)(3) or to discriminate against an em-
ployee with respect to whom membership in such or-
ganization has been denied or terminated on some
ground other than his failure to tender the periodic
dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership
. . . . [emphasis added].
Article XXII, section 1, provides:
Local unions shall collect dues from members either
monthly or quarterly in advance.
Section 1. No member is entitled to notice of the
monthly or quarterly dues of his Local union, nor of ar-
rearages, but must take notice when the payments are
due.
Article XXIII, sections 3 and 4, provides:
Section 3. Any member indebted to his Local union
for three months’ dues, or having any past due indebt-
edness to the I.B.E.W. for dues or assessments, shall
stand suspended and the Local union may refuse to ac-
cept dues from any member who is indebted to it. Such
member cannot be reinstated until all indebtedness has
been paid, unless waived by the Local union. However,
dues cannot be waived.
Section 4. Any member indebted to his Local union
for six (6) months’ full dues shall be dropped from
membership by the Financial Secretary and cannot be-
come a member in good standing again in the I.B.E.W.
except by joining as a new member.
The uncontroverted and credited evidence of record estab-
lished that Charging Party Robert Carroll has been a member
of the Union in good standing since as early as 1966. How-
ever, ever since the early 1980s when he was engaged in di-
vorce proceedings, his payments of the $52.40 quarterly as-
sessments were paid late. The evidence does not show how
late Carroll made his payments. Whenever he was late in
paying his dues or assessments, he usually received a notice
in the mail at the end of the first quarter for dues owing,
plus a reinstatement fee, or he would receive a telephone call
from the Union’s financial secretary, Spaziano.
Although Carroll usually received written or telephonic
notice of delinquent dues and assessments, section 1 of the
Union’s constitution explicitly provides that ‘‘no member is
entitled to such notice for any delinquency or arrearages, but
that such member must take notice when payments are due.’’
Under these circumstances, it appears that past notices to
Carroll for delinquency or arrearages were gratuitously given
to him by the Union. In fact, the constitution provides that
the due date for such payments is the beginning of each
quarter, of which fact all members of the Union are aware.
In the instant case, Carroll was not only delinquent for an
indebtedness to the Union for one quarter, but his delin-
quency was approaching the end of the second quarter, when
he received written notice from the Union dated June 21,
1991, informing him of his delinquency and an arrearage in
the amount of $106.80 plus $30 for a reinstatement fee. The
bottom of the notice further informed Carroll that if such in-
debtedness for 6 months (January 1 through June 30, 1991)
is not paid by June 30, 1991, he would be dropped from
membership by the financial secretary.
Carroll testified he received the above notice from the
Union June 26, 1991, but admitted he did not mail his
checks for the full amount of indebtedness owing until Satur-
day, June 29, 1991. The evidence is uncontroverted that the
envelope in which he mailed the checks is postmarked Mon-
day, July 1, 1991. If Carroll did in fact mail his checks when
he said he mailed them, in all probability, the mailbox at
which Carroll mailed his checks did not have a pickup until
Monday, July 1, 1991. Respondent acknowledged it received
618 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the checks July 2, 1991, and that it promptly returned them
to Carroll by registered mail the same day, on the ground
that 6 months of nonpayment had elapsed and his member-
ship was terminated pursuant to article XXIII of the Union’s
constitution. The Union informed Carroll of his right to ap-
peal his termination to the vice president of the International
and Carroll made such an appeal on July 26, 1991, and re-
quested his reinstatement.
Also in a letter dated July 2, 1991, the Union notified em-
ployer EMC that Carroll’s membership in the Union was ter-
minated effective July 1, 1991. On October 17, 1991, the
vice president denied Carroll’s appeal on his termination and
request for reinstatement on October 31, 1991, and Carroll
appealed to the International president. In a letter dated Octo-
ber 28, 1991, while Carroll’s appeal was pending, the Union
informed Carroll that effective November 1, 1991, he was
terminated from the Union’s health and welfare program.
On January 17, 1992, the International president ruled that
Carroll’s payment to the Local was timely received (on or
before June 30, 1991) because his postmarked envelope was
not in the record. He informed Carroll to contact the Local
and pay the full amount of indebtedness owed so he could
maintain his good standing in the Local.
Although the Local subsequently forwarded Carroll’s en-
velope postmarked July 1, 1991, to the International presi-
dent and requested reconsideration of his ruling, the Inter-
national president denied the Local’s request. Carroll paid his
indebtedness and was reinstated to full membership in the
Union.
When McGee was asked whether he could have reinstated
Carroll to his former position after the latter’s union mem-
bership was reinstated, McGee testified that he would have
had to lay off Laden in order to do so; and that EMC would
have had to request Carroll’s replacement from the Union’s
out-of-work list. According to the Union’s business manager,
Gelsomino, once Carroll signed the out-of-work list he could
not have been referred to his position at EMC because there
were 230–240 members on the out-of-work list ahead of Car-
roll. He said if EMC reinstated Carroll to work after he was
reinstated by the Union, EMC would have violated both its
contract with the Union and the constitution of the Union.
Article II, section 3 of the IBEW, Inside Construction
Agreement, provides the following union-security clause:
All employees who are members of the Union on the
effective date of this Agreement shall be required to re-
main members of the Union as a condition of employ-
ment during the term of this Agreement. New Employ-
ees shall be required to become and remain members
of the Union as a condition of employment from and
after the thirty-first day following the date of their em-
ployment, or effective date of this Agreement, which-
ever is later.
Aside from the above documentary evidence, the only
other evidence the General Counsel presented to substantiate
the allegations that Respondent caused EMC to discharge
Carroll is McGee’s reported conversations between himself
and the Union’s secretary, Curtis Hymel, and conversations
between himself and Union Business Manager Gelsomino.
McGee’s account is not corroborated by any other witnesses,
nor is Hymel’s account.
A determination of whether McGee or Hymel creditably
testified about their conversation regarding the layoff of Car-
roll will be deferred until after an analysis and discussion of
the evidence of Respondent’s termination of Carroll’s union
membership.
In this regard the General Counsel argues that Respond-
ent’s notice terminating Carroll’s membership was not rea-
sonable and sufficient notice for Carroll to respond to the
Union by the deadline date of June 30, 1991; and that con-
sequently, Respondent had failed to provide Carroll with the
required timely and reasonable notice of termination of his
membership. In support of his position the General Counsel
cites NLRB v. Hotel Employees Local 568, 320 F.2d 254,
258 (3d Cir. 1963), and Machinists Local 946 (Aerojet-Gen-
eral Corp.), 186 NLRB 561 (1970), where the Board and the
court, respectively, held that ‘‘The comprehensive authority
vested in the union, as the exclusive agent of the employees,
leads inevitably to employee dependence on the labor organi-
zation. There necessarily arises out of this dependence a fi-
duciary duty to deal fairly with employees.’’
‘‘That duty requires the Union to inform the employees of
the dues obligation, the amount owed and method of calcula-
tion, and provide a reasonable opportunity to take whatever
action is necessary to protect his/her job.’’ Electrical Work-
ers IBEW Local 3 (Mulvhill Electric), 266 NLRB 224
(1983); Radio-Electronics Officers Union, 306 NLRB 43
(1992); and further, ‘‘It is also settled that the employees
must be notified that failure to tender the dues will result in
discharge.’’ See Forsyth Hardwood Co., 243 NLRB 1039,
1044–1045 (1979); Machinists Local 946, supra at 562.
I find merit in the General Counsel’s argument because
Respondent’s notice to Carroll was apparently mailed to him
Monday, June 24, or Tuesday, June 25, accounting for his
receipt of it June 26, since Respondent presented no evidence
establishing when its notice was mailed. This means that
Carroll had only 4 days from the Union’s deadline of June
30 to take necessary action to pay his indebtedness and pre-
serve his job. The evidence failed to show that Respondent
notified Carroll of his delinquent indebtedness at anytime be-
tween January 1 and June 26, 1991. This failure is particu-
larly significant when it is considered that it was the
undenied past practice of Respondent to call Carroll or other-
wise remind him to pay delinquent dues and assessments and
allow him an opportunity to do so. Electrical Workers IBEW
Local 3, supra; Radio-Electronics Officers Union, supra.
The lack of adequate notice to a member is a key element
of the performance of a union’s duty to its members to treat
them fairly. Teamsters Local 122 (August A. Busch & Co.),
203 NLRB 1041, 1042 (1973). Under the circumstances in
the instant case, I find that 4 or 5 days was not ample or
reasonable notice to Carroll. This is especially true when the
amount of the indebtedness, as well as the fact that Respond-
ent failed to follow its past practice of notifying Carroll of
his delinquency are considered.
The Board and reviewing courts have also long held ‘‘that
a union may be held accountable for results triggered by
what on the surface appears an innocent act which the union
well knew would produce the desired result.’’ Quality Me-
chanical, 307 NLRB 64 (1992). In the instant case Respond-
ent Union acknowledged that when it notifies an employer
a member’s membership has been terminated, the employer
generally terminates the member’s employment. Thus, Re-
619ELECTRICAL WORKERS IBEW LOCAL 99 (ELECTRICAL MAINTENANCE)
spondent not only should have known, but it knew that by
notifying EMC (McGee) Carroll’s membership was termi-
nated July 1, that EMC in all probability was going to lay
off or terminate him, as in fact it did. Respondent Union
therefore achieved the result it knew would occur by notify-
ing EMC.
In fact when it is considered that Carroll might not have
had $136.80 in his home or in his bank account on June 26,
that it may not have been possible for him to get to his bank
within a day or so, or as he testified, that his checks
forseeably or understandably could have been mailed on the
weekend as he testified they were, and not picked up by the
post office until Monday, July 1, it becomes clear that Re-
spondent Union was more interested in taking advantage of
a deadline technicality, than it was of carrying out its fidu-
ciary duty to deal fairly with Carroll. The Board has also
held that the union must notify the employees that their fail-
ure to tender their delinquent dues will result in discharge.
Forsyth Hardwood Co., supra at 1044–1045 (1979); Machin-
ists Local 946, supra at 562. Respondent’s notice to Carroll
did not inform him of the consequence of losing his job if
he failed to timely pay the indebtedness to the Union by June
30, 1991.
In all the above respects the Board and the courts have
long held that the authority vested in the Union as the exclu-
sive agent of employees leads to employee dependence on
the labor organization, and that there necessarily arises out
of that dependence a fiduciary duty to deal fairly with em-
ployees. NLRB v. Hotel Employees Union, supra at 258; Ma-
chinists Local 946, supra.
It is obvious from the above essentially uncontroverted
evidence that Respondent did not deal fairly with Carroll as
his agent. This conclusion is further supported by the fact
that Respondent’s International president ruled that Respond-
ent’s receipt of Carroll’s checks on July 2 was sufficiently
timely to preserve his membership in the Union in good
standing. A request by the Union for reconsideration of the
decision was denied by the International president. Notwith-
standing, Respondent’s lack of good faith in carrying out its
fiduciary duty to Carroll is further demonstrated by Respond-
ent having had Carroll sign the out-of-work list, instead of
complying fully with the International’s ruling of restoring
Carroll to full membership in good standing. Since Carroll’s
checks were ruled timely received by the Local, his member-
ship was considered never interrupted and Respondent should
have so treated him, by formally notifying EMC that
Carroll’s membership was not terminated. Not only did Re-
spondent not so notify EMC, but it had Carroll sign the out-
of-work list in late October 1991, and did not remove him
from that list after it received the ruling of the president of
the International in January 1992.
I therefore conclude and find on the foregoing analysis of
the evidence and cited legal authority, that Respondent
breached its fiduciary duty to deal fairly with Robert Carroll
by failing to properly notify him, and afford him a reason-
able opportunity to take action to preserve his union mem-
bership and his job with EMC. Forsyth Hardwood Co.,
supra; Teamsters Local 122, supra at 1042.
Conflicting Testimony
The factual dispute in this proceeding involves testimonial
accounts of EMC’s owner, Jack McGee, The Union Record-
ing Secretary Curtis Hymel, Union Business Manager, Car-
mine Gelsomino, and alleged discriminatee Robert Carroll,
regarding conversations between McGee and Hymel, and
conversations between McGee and Gelsomino, with respect
to the reason or cause for McGee (EMC) terminating the em-
ployment of Carroll. In this regard, McGee testified that on
or about July 11, 1991, his friend, Union Secretary Hymel
told him it would be in the best interest of himself and Car-
roll to lay off Carroll. In this way, McGee said Hymel told
him, he (McGee) would avoid violating the Local’s rules by
which he (EMC) was bound by his contract with the Union
to hire and retain only union members in his employ.
Carroll testified that later that afternoon (July 11) he spoke
with McGee by telephone, and McGee told him he (McGee)
was told by Hymel that he (McGee) had to lay him (Carroll)
off. Hymel said he had had lunch with Curt, who told him
he had a message from Gelsomino (Cam) for him to lay off
Carroll. Thereafter, McGee told Carroll to finish up the job
he was working on and go to the office. At the office McGee
told him he did not know what he was going to do; that
business was terrible, he did not want to lose him (Carroll);
but he may have to shut the doors. He then told Carroll that
he had to lay him off; that it was in the best interest of him-
self and Carroll; that he did not know what he was going
to do with the business but he could not afford anymore
problems. Carroll and Tente were scheduled to work a part
of the next week and McGee said he would decide whether
to continue in business by that time. McGee testified he laid
off Carroll because he (McGee) was in violation of his con-
tract with the Union.
Union Secretary Hymel testified that McGee called him
Monday, July 8, and told him ‘‘it was not his responsibility
and he did not want to get involved in it.’’ A few days later
at lunch, McGee mentioned the letter (notice) he received
from the Union concerning the termination of Carroll’s mem-
bership. McGee, who appeared nervous and upset because he
would not have the skilled help he needed without Carroll,
asked was he (McGee) still legal and could he employ any-
one. Hymel denied he told McGee it would be in the best
interest of himself (McGee) and Carroll if Carroll were laid
off, or that he should lay off Carroll. Hymel also denied he
had any conversation with Gelsomino, made any reference to
Gelsomino, or that the latter had made any suggestion to him
about the layoff or retention of Carroll.
McGee testified that he talked to Gelsomino who offered
to refer a replacement for Carroll; that the latter agreed for
McGee to pay Tente journeymen’s wages, and permitted
Carroll to finish the job as a nonworking supervisor of Tente.
However, when EMC resumed operations July 22, he said
the Union referred a journeyman electrician (Ferell Laden) to
EMC who did not have temperature control experience to re-
place Carroll. When Gelsomino testified, he admitted he had
talked to McGee but said McGee asked him could Carroll be
allowed to be a working supervisor for only a day or two,
and he said ‘‘sure.’’ He also said McGee asked for a jour-
neyman and he (Gelsomino) agreed to refer Laden.
Gelsomino denied he authorized McGee to work with his
tools or that he knew when Carroll signed the out-of-work
list. The General Counsel did not produce any specific evi-
dence that Gelsomino knew when Carroll signed the out-of-
work list.
620 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In this proceeding, McGee testified, apparently with some
reservations, that he laid off Carroll because he (McGee) was
in violation of his contract with the Union.
Questions
The preliminary credibility question raised by the above
partially conflicting testimonial versions of Jack McGee and
the testimonial versions of Union Officials Alfred Spaziano,
Curtis Hymel, and Carmine Gelsomino regarding conversa-
tions concerning Carroll’s union membership and layoff, is
who is telling the truth.
The principal question presented for determination is,
whether the Respondent Union attempted to cause or did in
fact cause the layoff or discharge of Robert Carroll by EMC.
Who Testified Truthfully?
In evaluating the credibility of the conflicting testimonial
versions of McGee versus Hymel and Gelsomino, with re-
spect to conversations they held regarding the termination of
Carroll by EMC (McGee), it is first noted that all of the con-
versations assertedly occurred on and after July 8, 1991. This
was approximately 7 days after Respondent Union notified
EMC on July 2, that Carroll’s union membership was termi-
nated July 1, 1991. Hence, the credibility of the afore-named
witnesses who participated in those conversations have little
or no causative effect on the previous findings, that Respond-
ent did not deal fairly with Carroll in providing him adequate
and reasonable notice.
Notwithstanding, although McGee testified Hymel told
him Gelsomino said it would be in the best interest of
McGee and Carroll for McGee to lay off Carroll; that McGee
should lay off Carroll because if he did not, he (McGee)
would be in violation of his agreement with the Union; and
that Carroll stood a better chance of being reinstated in the
Union if he (McGee) did not violate his contract with the
Union. Hymel categorically denied he told McGee any of the
remarks attributed to him by McGee. Instead, according to
Hymel, it was McGee who called him July 8 telling him he
(McGee) did not want to be involved in the Carroll issue;
and that it was McGee who asked him was he (McGee) still
legal and could hire anyone, because he was concerned about
losing his skilled electrician (Carroll).
As I closely observed both witnesses testify, I was per-
suaded by the demeanor of both that neither was telling the
truth, or at least not the whole truth. They knew each other
well. It was not a novelty for them to have lunch together,
and I was persuaded that they at least discussed the Carroll
dilemma. Both were members of the Union and presumably
knew the consequences of either violating the constitution or
contracts with the Union. As manifested by the evidence of
record McGee did not want to violate his agreement with the
Union, and Hymel did not want to be accused or be respon-
sible for the consequences of the Union telling McGee to lay
off or discharge Carroll. Except, McGee had another di-
lemma, he did not want to face up to telling his longtime
colleague and only skilled field worker on whom he de-
pended so heavily that he had to lay him off. Evidence infer-
ring the latter manifestations is the fact that McGee, for the
first time, invited Carroll and his wife to his home for dinner
where he expressed uncertainty about remaining in business,
and some bewilderment—confusion (partially reflected on
the record)—suggesting he was trying to give Carroll a soft
landing (prior to layoff).
Likewise, with respect to McGee’s conversations with
Gelsomino, I was persuaded by the demeanor by each wit-
ness that neither was telling the truth, or at least not the
whole truth, regarding permission for Carroll to finish the job
and for EMC to obtain a prospective referral for Carroll’s re-
placement. Although Gelsomino denied the statement attrib-
uted to him by Hymel through McGee, I was persuaded by
the contents of their respective versions that they did have
discussions on how to make an accommodation on the Car-
roll dilemma, without Gelsomino violating the president of
the International’s ruling against the Local, and thereby
caused Respondent to violate the Act, without McGee violat-
ing his contract with Respondent, as well as McGee facing
his good friend and essential electrician (Carroll) to tell him
he had to discharge or lay him off.
Throughout his testimony, McGee’s demeanor, as well as
the substance of his testimony (partially reflected in the
record), manifested a struggle of trying to stay in good favor
with the Union (Respondent) and at the same time, not say
anything against Carroll to adversely affect his personal in-
terest and work relationship with Carroll. It is for all of the
aforegoing reasons that I do not credit or rely on the testi-
mony of McGee, Hymel, or Gelsomino in reaching a deci-
sion in this case. If, for a moment, I had the slightest inclina-
tion to believe and rely on the smallest aspects of the testi-
mony of McGee, Hymel, or Gelsomino, which I do not rely
on, that inclination would go in favor of McGee simply be-
cause some of his version would be more consistent with the
past conduct of Respondent’s failure to deal fairly with Car-
roll and his membership.
Additionally, Respondent Union’s failure to deal fairly
with Carroll’s interests is clearly demonstrated by: (1) its
swift notice to Carroll by registered mail terminating his
membership on the very day it received his checks for full
payment, (2) its immediate return of Carroll’s 2 days’ late
payment the same day it was received, (3) immediately mail-
ing notice of its termination of Carroll’s membership to his
Employer (EMC) on the same day it so notified Carroll, and
(4) its failure to notify Employer that Carroll won his appeal
on termination of his membership which was wrongfully in-
terrupted on July 1, 1991, and that Carroll was then and still
is a member of the Union in good standing.
Procedural Note
Charging Party Robert Carroll was the first witness called
by the General Counsel on Wednesday, June 17, 1992, and
he testified and was cross-examined in full. The General
Counsel then called Jack McGee (the Employer) who testi-
fied, was cross-examined in full, and was excused from the
hearing without objection.
The Union’s financial secretary, Alfred Spaziano, was
called by the General Counsel. He testified, was cross-exam-
ined in full, and the General Counsel rested his case. At no
time did counsel for Respondent inquire as to whether Car-
roll or McGee had submitted an affidavit. Nor had he re-
quested to view any affidavits.
Thereafter, counsel for Respondent Union called Curtis
Hymel, recording secretary of the Union, and Walter Perry,
office president, both of whom testified and were cross-ex-
amined in full. Respondent then called Carmine Gelsomino,
621ELECTRICAL WORKERS IBEW LOCAL 99 (ELECTRICAL MAINTENANCE)
business manager for the Union, who proceeded to testify but
the trial was adjourned around 5 p.m. until the next morning,
Thursday, June 18, 1992.
In spite of several omissions in the transcript of a discus-
sion the next morning (Thursday, June 18) regarding an affi-
davit assertedly given to the General Counsel by Carroll and
McGee, counsel requested to examine Carroll. Carroll was
permitted to testify concerning his affidavit. However, since
McGee was excused without objection after completing his
direct and cross-examination the day before, he was not
present in the courtroom on Thursday morning when counsel
for Respondent raised the question about the existence of an
affidavit of McGee.
The bench first thought the parties were willing to stipu-
late admission of McGee’s statement, but the General Coun-
sel objected on the ground that McGee would not have been
present to explain or answer questions on the statement. The
objection was sustained and counsel for Respondent was ad-
vised that he could address the bench’s ruling in his
posthearing brief. The bench did not see the affidavit and no
further argument or motion was made by Respondent.
Although counsel for Respondent wanted to have McGee’s
affidavit admitted in evidence over the objection of the Gen-
eral Counsel, it was not established that McGee was unavail-
able to testify at anytime. The General Counsel did not offer
to recall, and Respondent did not offer to call McGee as a
witness, at its own expense.
Under the foregoing circumstances, I, in my discretion, de-
nied admission of McGee’s affidavit and it was not made a
part of the record or considered by me in reaching my deci-
sion.
Findings
Consequently, I find that the General Counsel has estab-
lished by a preponderance of the evidence of record, that Re-
spondent breached its fiduciary duty to Carroll by failing to
provide him with adequate and reasonable notice of his de-
linquent union assessments; that it thereafter unlawfully ter-
minated his membership on July 2, 1991, and that on the
same day, it notified his Employer (EMC) that Carroll’s
membership in the Union was terminated July 1. I further
find, on such evidence, that Respondent, by its conduct, at-
tempted and did in fact successfully cause EMC to lay off
or discharge Carroll on or after July 11, 1991, and that by
doing so, Respondent restrained and coerced Carroll in the
exercise of his rights guaranteed in Section 7, and thereby
caused Employer (Electrical Maintenance & Control, Inc.) to
discriminate against Carroll, in violation of Section
8(b)(1)(A) and (2) of the Act. Forsyth Hardwood Co., 243
NLRB 1039, 1044–1045 (1979); Teamsters Local 122, 203
NLRB 1041 (1973); United Metaltronics, 254 NLRB 601–
606 (1981); and Western Publishing Co., 263 NLRB 1110,
1112–1113 (1982).
THE REMEDY
Having found that the aforedescribed conduct by Respond-
ent Union has violated Section 8(b)(1)(A) and (2) of the Act,
I will recommend that it be ordered to cease and desist there-
from and that it take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondent Union interfered with, re-
strained, and coerced its member by failing to provide Car-
roll with reasonable notice of his delinquent dues and assess-
ments, and affording him reasonable opportunity to pay
them, Respondent Union violated Section 8(b)(1)(A) of the
Act; and that by taking the above action and notifying
Carroll’s employer that his membership in the Union was
terminated, Respondent failed to deal fairly with its member,
and thereby caused Carroll’s employer to discriminate
against him, in violation of Section 8(b)(2) of the Act, the
recommended Order will provide that Respondent cease and
desist from engaging in such unlawful conduct, and that it
make Robert Carroll whole for any loss of earnings he may
have suffered by reason of the discrimination Respondent
caused to be practiced against him; and that such loss of
earnings shall be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), and with inter-
est on any backpay due in accordance with the Board’s pol-
icy in New Horizons for the Retarded, 283 NLRB 1173
(1987), except as specifically modified by the wording of
such recommended Order.
CONCLUSIONS OF LAW
1. The Respondent Union is a labor organization within
the meaning of Section 2(5) of the Act.
2. The Employer is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
3. By terminating the membership of Robert Carroll with-
out providing him reasonable notice and opportunity to pay
delinquent dues and assessments, Respondent Union has re-
strained and coerced its members in the exercise of rights
guaranteed in Section 7, in violation of Section 8(b)(1)(A) of
the Act.
4. By wrongfully informing Robert Carroll’s employer that
his membership was terminated, Respondent Union attempted
and did in fact cause his employer to discriminate against
him by laying off or discharging him, in violation of Section
8(b)(2) of the Act.
5. By failing to represent Robert Carroll in a fair and im-
partial manner, Respondent Union breached its fiduciary rela-
tions to him, in violation of Section 8(b)(1)(A) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]