Electrical Workers Local 1507

National Labor Relations Board - Board Decisions

Sep 29, 1980

252 N.L.R.B. 473 (N.L.R.B. 1980)

ELECTRICAL WORKERS LOCAL 1507
International Union of Electrical, Radio and Ma-
chine Workers, Local Union No. 1507, AFL-
CIO (General Electric Company) and David
Ortiz. Case 32-CB-603
September 29, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENEII.O
On June 12, 1980, Administrative Law Judge
Gerald A. Wacknov issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt his recommended Order, as so modified.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
International Union of Electrical, Radio and Ma-
chine Workers, Local Union No. 1507, AFL-CIO,
San Jose, California, its officers, agents, and repre-
sentatives, shall take the action set forth in the said
recommended Order, as so modified:
i Respondent excepts to that portion of the Administrative Law
Judge's recommended Order requiring that Respondent reimburse Charg-
ing Party Ortiz for loss of wages and other expenses incurred as a result
of having to secure his rights through recourse to the Board's processes.
We find merit in this exception Since we conclude that the defenses
which Respondent has raised herein are debatable, rather than frivolous.
we find that the extraordinary remedy recommended b the Administra-
tive Law Judge is unwarranted. Heck's Inc.. 215 NLRB 765 (1974); 7ide
Products, Inc., 194 NLRB 1234 (1974).
In his recommended Order, the Administrative Law Judge also pro-
vided that Ortiz be reimbursed for any dues or other fees deducted from
his wages, with interest thereon. He inadvertently failed, however, to in-
clude a reference to Florida Steel Corporation, 231 NLRB 651 (1977).
which sets for the manner in which the interest rate shall be determined.
We shall modify the Order accordingly Member Jenkins would provide
interest in accordance with his partial dissent in Olympic .Medical Corpora-
tion. 250 NLRB No. II (1980).
In par. (c) of his recommended Order, the Administrative Law Judge
used the broad cease-and-desist language in any other manner." Howev-
er, we have considered this case in light of the standards set forth in
Hiikmott Food, .,c., 242 NLRB 1357 (1979). and have concluded that a
broad remedial order is inappropriate since it has not been shown that
Respondent has a proclivity to violate that Act or has engaged in such
egregious or widespread misconduct as to demonstrate a general disre-
gard for the employees' fundamental statutory rights Accordingly, we
have modified the recommended Order by substituting the narro'A in-
junctive language. "in any like r related manner
252 NLRB No. 66
1. Substitute the following for paragraph l(c):
"(c) In any like or related manner restraining or
coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act."
2. Substitute the following for paragraph 2(a):
"(a) Notify the Employer, in writing, to cease
giving effect to the membership dues check-off
card of David Ortiz, and reimburse Ortiz for all
dues or other fees deducted under such authoriza-
tion since July 17, 1979, with interest thereon, com-
puted in the manner set forth in Florida Steel Cor-
poration, 231 NLRB 651 (1977)."
3. Delete paragraph 2(b) and reletter the subse-
quent paragraphs accordingly.
4. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONA. LABOR REILATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WI.1 NOT refuse to permit employees to
rescind their membership dues-checkoff cards
when presented with evidence or having
knowledge that employees mistakenly signed
such cards.
WE wil.l. NOT submit membership dues-
checkoff cards to the Employer after such
cards have been effectively rescinded.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the
National Labor Relations Act.
WE WILL notify General Electric Company
to cease giving effect to the checkoff authori-
zation of David Ortiz.
WE WI.i. reimburse David Ortiz for all dues
or fees deducted under such authorization
since July 17, 1979, with interest.
INTERNATIONAL UNION OF ELECTRI-
CAL, RADIO AND MACHINE WORK-
ERS, LOCAl. UNION No. 1507, AFL-
CIO
473
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STAriN11NT OF I Hi CASEI
GLRALDI) A. WACKNOV, Administrative Law Judge:
Pursuant to notice, a hearing with respect to this matter
was held before me in San Jose, California, on January
31, 1980. The charge was filed on August 21, 1979, by
David Ortiz, an individual. On September 26, 1979, the
Acting Regional Director for Region 32 of the National
Labor Relations Board (herein called the Board) issued a
complaint and notice of hearing alleging a violation by
International Union of Electrical Radio and Machine
Workers, Local Union No. 1507, AFL-CIO (herein
called Respondent or the Union) of Section 8(b)(1)(A) of
the National Labor Relations Act, as amended (herein
called the Act).
The parties were afforded a full opportunity to be
heard, to call, examine and cross-examine witnesses and
to introduce relevant evidence. Since the close of the
hearing, briefs have been received from the General
Counsel and counsel for Respondent.
Upon the entire record and based upon my observa-
tion of the witnesses and consideration of the briefs sub-
mitted, I make the following:
FINI)INGS OF FAc-r
I. JURISDICTION
General Electric Company, herein called the Employ-
er, is a Delaware corporation with an office and manu-
facturing facility located in San Jose, California, where it
is engaged in the manufacture of electric motors. During
the past calendar year the Employer, in the course and
conduct of its business operations, purchased and re-
ceived goods, materials, and supplies valued in excess of
$50,000 directly from suppliers located outside the State
of California, and sold and shipped products valued in
excess of $50,000 directly to customers located outside
the State of California.
It is admitted, and I find, that the Employer is now,
and has been at all times material herein, an employer
engaged in commerce and in a business affecting com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. HE lABOR ORGANIZATION INVOI.VEI)
It is admitted, and I find, that Respondent is now, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
III. TriH UNFAIR l.AHOR PRACTICES
A. The Issue
The principal issue raised by the pleadings is whether
the Union has violated Section 8(b)(l)(A) of the Act by
acts and conduct in derogation of its fiduciary obligation
to employee David Ortiz.
B. The Facts
The Union has represented a unit of the Employer's
employees, currently consisting of some 280 individuals,
for a number of years. Prior to the current contract there
apparently had been no form of union-security clause
embodied in any collective-bargaining agreement be-
tween the parties. David Ortiz has worked for the em-
ployer since April 8, 1974, and was a member of the
Union for a 2-year period, from September 1974 until
September 1976, at which time he withdrew his member-
ship. Ortiz testified that thereafter frequent efforts had
been made by the Union's chief steward, Joe Cognetti,
and by Larry Mahone, steward, to encourage Ortiz to
rejoin the Union, but Ortiz consistently refused.
Negotiations for a new nationwide collective-bargain-
ing agreement had been concluded on July 17, 1979, the
same day that the employees returned to work at the San
Jose plant after a plantwide vacation period. On this day,
prior to commencing work, Ortiz was among a group of
employees who were told by Chief Steward Cognetti
that the new contract, unlike prior contracts, contained a
union-security clause requiring that all unit employees
belong to the Union and pay union dues, and that a $50
initiation fee would be waived for those employees who
immediately joined the Union. Later that morning, ac-
cording to Ortiz, he and Cognetti, who worked side by
side, discussed some of the provisions which Cognetti
believed were incorporated in the new contract, and
Cognetti reiterated that Ortiz was obligated to join the
Union and could avoid paying the initiation fee by join-
ing immediately. That afternoon, Ortiz advised Cognetti
that he had decided to immediately join the Union in
order to avoid paying the initiation fee. Cognetti sum-
moned the union steward, Mahone, who presented Ortiz
with two copies of a dues and initiation fee checkoff au-
thorization card, which apparently also operated as a
union membership card. Ortiz filled out and signed both
copies, and handed them to Mahone. Later that after-
noon, Bob Clubb, president of the Union, approached
Ortiz and stated, "I'm going to frame this card."
On the morning of July 19, 1979, Clubb, who main-
tained an office at the plant for the purpose of conduct-
ing union business, invited Ortiz to the office and told
Ortiz, in the presence of Mahone, that the Union's previ-
ous information had been incorrect, and that union mem-
bership was not required under the new contract. There-
upon, Ortiz was given the option of rescinding the card
which he had signed. Ortiz chose to exercise this option,
and requested the return of his card. Clubb then, accord-
ing to Ortiz, brusquely instructed Mahone to "Give him
his f-ing card back," and the meeting concluded. Short-
ly thereafter Mahone returned to Ortiz one signed copy
of the authorization card and, in response to a question
by Ortiz, stated that the second copy had already been
submitted to the Employer, and that Ortiz would have to
obtain it from the payroll office.
Ortiz then requested the return of his card from Gail
McDuffie, a payroll office employee, and was told that
no such card had been submitted by the Union. Ortiz re-
turned to Mahone and advised him of this, and Mahone
said he would look into it. Later that day, Clubb, Cog-
netti, and Mahone approached Ortiz at his machine, and
Clubb advised Ortiz that the Employer's copy was the
one that had been returned to Ortiz, and that the second
474
El.ECTRICAI WORKERS LOCAL 1507
copy had been destroyed. Moreover. Ortiz was told that
the union representatives were doing him a favor by per-
mitting him to rescind the card. To this remark Ortiz re-
plied, "You didn't do me a favor by lying to me."
On August 3, 1979, Ortiz noticed that union dues had
been deducted from his paycheck. Upon asking McDuf-
fie and Ernest Valentine, manager of employee and com-
munity relations, why this had been done, Ortiz was told
that the checkoff card had been submitted to the Em-
ployer by the Union and that the Employer was obligat-
ed to honor it. Ortiz remonstrated that he had been lied
to and cheated by the Union. On the following Monday
morning, Ortiz questioned Clubb about the matter. Clubb
stated that Ortiz was "stuck" and that if he withdrew
from the Union he would be fired within 10 days, pursu-
ant to the terms of the contract.
McDuffie corroborated the above testimony of Ortiz
and further testified that on July 23, 1979, she received a
group of nine authorization cards from the Union includ-
ing the card of Ortiz, together with a list of those cards,
and thereafter sent them to the appropriate department
for processing.
Manager Valentine also corroborated the testimony of
Ortiz, and further testified that on July 17, 1979, Clubb
came to Valentine's office and mentioned, during the
course of discussing various provisions of the new con-
tract, that the contract contained a "closed shop" provi-
sion. Valentine corrected him stating that the contract
contained a "maintenance of membership" clause rather
than a closed shop provision, and pointed out the perti-
nent language to Clubb in a copy Valentine had. Clubb
replied that he was going to check with International
representatives to verify Valentine's understanding of the
contract language. Valentine testified that several days
later Clubb advised Valentine that he had checked with
International representatives of the Union and had been
told that the contract did contain a maintenance-of-mem-
bership clause rather than a clause making union mem-
bership mandatory. Clubb, according to Valentine, ad-
mitted that the Union did enroll some people in the
Union based on that misunderstanding, and stated, "I'm
going to give these people an opportunity to get out of
the Union."
Clubb testified that at no time did he approach Ortiz,
along with Cognetti and Mahone, and have any conver-
sation with Ortiz about Ortiz' dues checkoff card.
Rather, according to Clubb, the only discussion of this
matter with Ortiz took place in Clubb's office at which
time Clubb explained that the union-security provision of
the contract had been misinterpreted, and that in fact
employees were not obligated to join the Union. Ortiz,
being so advised, asked what could be done, and Clubb
stated, "As far as I know, it's out of my hands, because
once we sign these cards, we don't have any jurisdiction
what to do with them, except turn them in." Clubb testi-
fied that he had similar conversations, on an individual
basis, with each of the 9 or 10 employees who had
joined the Union that week.
Cognetti denies that he told any employees on July 17,
1979. including Ortiz, that they would have to join the
Union. Rather, Cognetti testified that he was approached
by Ortiz on that day, and that Ortiz commenced the con-
versation by inquiring about an initiation fee. Cognetti
told Ortiz that the initiation fee would be waived for a
period of time, and Ortiz stated that he wanted to join
the Union. On a later date Ortiz said he wanted to get
out of the Union. Cognetti replied that there was nothing
that could be done, and referred him to Clubb.
Mahone testified similarly to Cognetti. Mahone further
stated that, contrary to the testimony of Ortiz, he was
not in Clubb's office during Clubb's conversation with
Ortiz concerning the terms and obligations of employees
under the maintenance-of-membership provision of the
new contract. Moreover, Mahone repeatedly testified
that he "did not remember" returning any union card to
Ortiz.
C. Analysiv and Conclusions
While the record is replete with serious conflicts in
testimony, Clubb maintains that he told Ortiz, in Clubb's
office, that the union representatives had misinterpreted
the union-security provisions of the contract. As a result
of this admission, Ortiz asked, according to Clubb, what
could be done, and Clubb responded that once the dues-
checkoff card is signed the Union has no alternative but
to process it. According to Ortiz, the only conversation
in Clubb's office occurred on July 19, 1979, and Re-
spondent did not proffer testimony indicating that its
version of the conversation occurred on any other date.
Moreover, the record is clear that the dues-checkoff card
of Ortiz was not submitted by the Union to the Employ-
er until July 23, 1979.
Thus, it is crystal clear that within several days after
Ortiz signed a dues-checkoff card, based upon the belief.
however acquired, that he was contractually obligated to
join the Union and pay dues, Clubb advised Ortiz that
this portion of the contract had been misinterpreted and
that in fact such an obligation did not exist. Assuming
that, as Clubb testified, Ortiz merely asked Clubb what
could be done about this, Clubb was thereby placed on
notice, given the context of the conversation, that Ortiz
desired to rescind his prior authorization or at least
wanted Clubb to explain the options available to him at
that point. However, Clubb maintains that he stated
nothing could be done, even though the dues-checkoff
card signed by Ortiz was then in the Union's possession
and had not yet been submitted to the Employer.
Obviously, at this point, Clubb was obligated to truth-
fully advise Ortiz of his available options, one of which
was, of course, to rescind the prior authorization he had
signed. However, according to Clubb, he chose to advise
Ortiz that his signing of the card, albeit based on errone-
ous information, was a fait accompli, and that having
joined the Union, Ortiz was thereafter bound by the
maintenance-of-membership provisions in the contract
which included provisions for his discharge should he
not remain a member.
Clearly, by this conduct which Clubb attested to, the
Union did not fulfill its fiduciary responsibility to deal
fairly with Ortiz by truthfully, accurately, and specifical-
ly informing him of his rights, duties, and obligations vis-
a-vis the Union. See Disti/llerv. Rectifying, Wine and .4llied
Workers' International Union of A4merica, Local Union 8.
475
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AFL-CIO (Schenley Distillers, Inc., 242 NLRB 370
(1979); Chauffeurs, Salesdrivers & Helpers Union, Local
572, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America (Ralphs Grocery
Company), 247 NLRB No. 108 (1980); Local 1445 United
Food and Commercial Workers International Union, AFL-
CIO (Gallahue's Supermarkets), 247 NLRB No. 151
(1980). Thus, according to Clubb, rather than advising
Ortiz of his right to rescind the checkoff card, Clubb
told Ortiz that nothing could be done, and Respondent
thereafter turned in the dues-checkoff card to the Em-
ployer, threatening Ortiz with certain discharge should
he withdraw his union membership or cease to pay dues.
Such conduct clearly constitutes a breach of Respond-
ent's fiduciary duty, and violates Section 8(b)(1)(A) of
the Act. I so find.
The foregoing analysis assumes, arguendo, that Clubb
is credited. However, I specifically do not credit either
Clubb, Cognetti, or Mahone, and find that the sequence
of events and concurrent conversations occurred substan-
tially as described by Ortiz. Ortiz, who appeared to have
a vivid recollection of the events herein, favorably im-
pressed me as a credible individual, and his testimony,
which was totally consistent and plausible on its face,
was corroborated in many significant respects by the tes-
timony of McDuffie and Valentine, whom I also credit.
The testimony of the three union representatives, on the
other hand, is inconsistent, implausible, and incomplete.
Moreover, according to the credible testimony of Valen-
tine, Clubb told him on July 19, 1979, that, based on the
misunderstanding of the local union representatives, the
employees would be given an opportunity to rescind the
cards they had signed. Such testimony supports the ac-
count rendered by Ortiz that, in fact, Clubb did give him
such an opportunity to rescind his checkoff card, which
opportunity Ortiz accepted without hesitation.
I therefore find that the Union, after having permitted
Ortiz to rescind the membership dues-checkoff card
which he had signed as a result of misrepresentations
made to him by union representatives, nevertheless sub-
mitted the card to the Employer thereby causing the
Employer to deduct such dues even though not author-
ized by Ortiz. Such conduct evidences a blatant disre-
gard of Respondent's fiduciary duty to Ortiz, and clearly
constitutes a violation of Section 8(b)(l)(A) of the Act as
alleged. I so find.
CONCI.USIONS OF LAW
1. General Electric Company is an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Respondent is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By refusing to permit employee David Ortiz to re-
scind his membership dues-checkoff card, or by submit-
ting the membership dues-checkoff card to the Employer
subsequent to the time Ortiz had effectively rescinded
such card, Respondent has violated Section 8(b)(l)(A) of
the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(b)(1)(A) of the
Act by refusing to permit David Ortiz to rescind his
membership dues-checkoff card, or by submitting the
card to the Employer subsequent to the time the card
had been effectively rescinded, I shall recommend that
Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of
the Act.
I shall recommend that Respondent notify the Em-
ployer, in writing, to cease giving effect to the checkoff
authorization of David Ortiz, and that Respondent reim-
burse David Ortiz for all dues or other fees deducted
under such authorization since July 17, 1979, with inter-
est thereon. Moreover, as Respondent's conduct evi-
dences a willfull disregard of its fiduciary duty to em-
ployees, Respondent shall be required to reimburse
David Ortiz for his loss of wages and other expenses in-
curred as a result of having to secure his rights through
recourse to the Board's processes, with interest thereon.
ORDER'
The Respondent, International Union of Electrical,
Radio and Machine Workers, Local Union No. 1507,
AFL-CIO, its officers, agents, and representatives, shall:
1. Cease and desist from:
(a) Refusing to permit employees to rescind their
membership dues-checkoff card when presented with
evidence or having knowledge that employees mistaken-
ly signed such cards.
(b) Submitting membership dues-checkoff cards to the
Employer after such cards have been effectively rescind-
ed.
(c) In any other manner restraining or coercing em-
ployees in the exercise of their rights guaranteed by Sec-
tion 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Notify the Employer, in writing, to cease giving
effect to the membership dues-checkoff card of David
Ortiz, and reimburse Ortiz for all dues or other fees de-
ducted under such authorization since July 17, 1979,
with interest thereon.
(b) Reimburse David Ortiz for his loss of wages and
other expenses incurred as a result of having to secure
his rights through recourse to the Board's processes,
with interest thereon.
(c) Post in conspicuous places at its business offices,
meeting halls, and all other places where notices to mem-
bers are customarily posted, including the Union's office
at the Employer's premises, copies of the attached notice
marked "Appendix." 2 Copies of said notice, on forms
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 find-
ings, 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.
2 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
Continued
476
ELECTRICAL WORKERS LOCAL 1507
provided by the Regional Director for Region 32, after
being duly signed by Respondent's authorized repre-
sentative, shall be posted by it immediately upon receipt
thereof, and be maintained by Respondent for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to members are customarily
posted. Reasonable steps shall be taken by Respondent to
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Deliver to the Regional Director for Region 32
signed copies of the attached notice marked "Appendix"
in sufficient numbers to be posted by the Employer in
places where its notices to employees are customarily
posted, should it be willing.
(e) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
477