Forsyth Hardwood Co.

National Labor Relations Board - Board Decisions

Aug 3, 1979

243 N.L.R.B. 1039 (N.L.R.B. 1979)

FORSYTH HARDWOOD COMPANY
Forsyth Hardwood Company and Bruce Kochan
Construction and Building Material Teamsters Local
No. 291, Affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America and Bruce Kochan. Cases 32-
CA- 1105 and 32-CB-260
August 3, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENEII.O
AND TRUESDAIE
On February 28, 1979, Administrative Law Judge
Joan Wieder issued the attached Decision in this pro-
ceeding. Thereafter, Forsyth Hardwood Company
(hereinafter the Employer) filed exceptions and a
brief. Construction and Building Materials Teamsters
Local No. 291, affiliated with the International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (hereinafter the Union), and the
General Counsel filed cross-exceptions and briefs.
The Union then filed an answering brief with accom-
panying affidavit.'
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, cross-ex-
ceptions, and briefs and has decided to affirm the rul-
ings, findings,2 and conclusions of the Administrative
Law Judge, as modified herein.
The Administrative Law Judge found that the
Union violated Section 8(b)( I )(A) of the Act by treat-
ing Bruce Kochan's proposed grievance regarding his
discharge in an arbitrary and perfunctory fashion de-
spite the fact that the grievance was clearly not frivo-
lous. In further support of this violation. the Adminis-
trative Law Judge reasoned that the Union had
'On May 24. 1979. the Employer filed a motion to strike the Union's
answering brine and affidavit asserting that there is no provision in the
Board's Rules and Regulations for the introduction of new evidence in this
manner. Inasmuch as the affidavit accompanying the Union's answering
brief is not in accord with Secs. 102.30 and 102.38 of the Board's Rules and
Regulations, Senes 8, as amended, and no motion has been made to reopen
the record, the affidavit is hereby rejected, and the alleged facts contained
therein will not be considered a part of the record. The motion to strike the
Union's answering brief is hereby denied
2 The Union has excepted to certain credibility findings made b the Ad-
ministrative Law Judge. It is the Board's established polic) not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dnr Wall Products, Inc., 91 NLRB 544
(1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing her findings.
earlier breached its fiduciars, duty by improperly and
unlawfully requesting Kochan's discharge under the
union-security agreement. The Union excepted inter
alia, to the finding of a violation of Section 8(b ( 1 )(A).
We find merit to this exception.
On June 6, 1978, Kochan went to the union office
and requested that [Union representative Crowson file
a grievance against the Employer to protest Kochan's
discharge. Crowson explained to Kochan that be-
cause Kochan's dues were in arrears, the Union had
requested the discharge under the terms of the con-
tract, and that the Union considered the discharge
valid. Crowson refused to accept or process a griev-
ance. Crowson was well aware of the facts surround-
ing Kochan's discharge. having investigated
Kochan's dues delinquency and having initiated the
discharge. We do agree with the Administrative Law
Judge's finding that Crowson acted in violation of
Section 8(h)(2} of the Act in requesting the discharge.
for the reasons set forth in the Administrative l.aw
Judge's Decision. However. Croason's handling of
the proposed grievance was not arbitrarv or pertunc-
tory. He analy zed the facts already well known to
him and concluded that under the terms of the con-
tract Kochan's grievance was without merit. 'here is
no evidence oft' hostility or disparate treatment. Under
the circumstances herein. Crowson's actions cannot
be said to have been unlaL\tul.' We find no i olation
oft Section 8(b)( I )( A ).
Having found that Respondent Emplover and Re-
spondent Union have violated Section 8(a)(33 and (1)
and Section 8(b)(2), respectivel. we shall order Re-
spondent Employer to oer Kochan immediate and
full reinstatement as described bh the Administrative
Law Judge in her [)ecision: we shall order Respon-
dent Employer and Respondent Union, jointl 3 and
severally, to make Kochan whole for anN loss of pas
incurred from June 5, 1978, through August 19') 1978:
and we shall order Respondent Emploser to make
Kochan whole fr loss of earnings from August 20.
1978, until Kochan is offered reinstatement.' oss of'
The fact that (rowson had attempted to hase Kochan reinstated the das
belore does not have an) bearing on i('rososn's go..-faith atialssis t
Kochan's grievance under the terms of the contract (rovson's conclusion
that the contract sanctioned Kochan's discharge and ('rowon's efforts :o
return Kochan to he job are not Inconslstent Furthermore. we do nt re-
gard as determinalive. when considering the 8lhb hI A) allegaton. the t1it
that the request for Kochan', discharge was ill iolatin It' Sc b(h)2)
Member Truesdale. in finding no violation of Sec (hH I hA. Iadhercs to
the position set forth in IT7 Arctic Scrlicci. Inc. 238 NLRB I h1. n I
(1978), and Vewport 'Neis Shipbuhling and Dn nDo (r A pnpm 236 NlRB
1470. fn. 9 (1
97
8)
5 We find ineffectlie the Union's June 5. 1978. notification to the Em-
ployer of ts withdrawal ofi objections t Khan's emplo) ment al nisimuh as
the nion failed to ntil Kchan f its act ln 7'eumr 1, i at I i.n Vi
122, Internalional Brot,rhrho,d ,! Tlirn1er. ('huiufllu' lr [il archuitmen and
Helpers ,/ Amertica (uuust 4 Busch & ( t fia, . lt' ,. 203 NI RB 10i41
1053 (1973.
243 NLRB No. 150
1039
DECISIONS OEF NATIONAL I.ABOR RELATIONS BOARD
earnings shall be computed in the manner set forth in
F W. Woolfworth Comparnly, 90 N.RB 289 (1950).
with interest to be accorded in the manner set forth in
Florilda Steel (orporation, 231 NL RB 651 (1977 ).6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that:
A. Respondent Forsyth Hardwood Company,
Hayward, California, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Encouraging membership in Construction and
Building Material Teamsters Local No. 291, affiliated
with the International Brotherhood of Teamsters.
('hauffeurs. Warehousemen and Helpers of America.
or in any other labor organization of its employees,
by discriminating in regard to their hire or tenure of
employment or any term or condition of employment,
except to the extent permitted by the proviso to Sec-
tion 8(a)(3) of the amended Act.
(h) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, as
amended, except to the extent that such rights may be
affected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of' the Act:
(a) Offer to Bruce Kochan immediate and full rein-
statement to his former job or, if that no longer exists,
to a substantially equivalent one, without prejudice to
his seniority or other rights and privileges previously
enjoyed; make him whole, with interest, for any loss
of earnings he may have suffered by reason of the
discrimination against him during the period from
August 20, 1978, to the date of its offer of reinstate-
ment, in the manner set forth above in the Board's
Decision; and, together with the above-named
Union, jointly and severally reimburse him with in-
terest for any loss of earnings suffered during the pe-
riod from June 5 to August 19, 1978.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other data necessary to analyze the amount of back-
pay due and the right of reinstatement under the
terms of this Order.
See, generally. Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
(c) Post at its Hayward, California, facility copies
of the attached notice marked "Appendix A. "' Copies
of Appendix A, on forms provided by the Regional
Director for Region 32. after being duly signed by the
Respondent Employer's representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent mploer to in-
sure that said notices are not altered. deficed, or cov-
ered by any other material.
(d) Notify the Regional I)irector for Region 32. in
writing, within 20 days from the date of this Order.
what steps it has taken to comply herewith.
B. Respondent Construction and Building Mate-
rial Teamsters ocal No. 291, affiliated with the In-
ternational Brotherhood of Teamsters, Chauflfeurs,
Warehousemen and Helpers of' America. its officers,
agents, and representatives, shall:
1. ('ease and desist from:
(a) Giving effect to, implementing, or in any man-
ner enforcing a practice which fiils to accord reason-
able notice to members of their dues delinquency,
said reasonable oral or written notice to include a
statement of the precise amount of dues owed. the
month for which said dues are owed, or an explana-
tion of' the method used in computing the amount of'
the dues owed, and which, additionally. accords
members an adequate opportunity to pay the amount
specified as owing.
(hb) Causing or attempting to cause Forsyth Hard-
wood Company, or any other employer. to discharge
or discriminate against employees with respect to
their tenure of employment or terms and conditions
of employment or to apply the union-security provi-
sions of any collective-bargaining agreement to which
Respondent is signatory to employees who have not
been accorded reasonable notice of their dues delin-
quency, or in an arbitrary or capricious manner in-
consistent with the fiduciary responsibility owed
members.
(c) In any like or related manner restraining or co-
ercing employees in the exercise of their rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Jointly and severally with Forsyth Hardwood
Company make whole with interest Bruce Kochan
for any loss of earnings he may have suffered because
In the event that this Order is enforced by a Judgment oI a United States
(Court of Appeals, the words in the notice reading "Posted by Order oI 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 BHoard."
1040
FORSYTH HARDWOOD COMPANY
of the discrimination against him during the period
from June 5 to August 19, 1978.
(b) Post in its office and meeting halls copies of the
attached notice marked "Appendix B." 8 Copies of
Appendix B. on forms provided by the Regional Di-
rector for Region 32, after being duly signed by Re-
spondent Union's official representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to members are customarily posted. Reasonable steps
shall be taken by Respondent Union and its agents to
insure that said notices are not altered, defaced, or
covered by any other material.
(c) Forward to the said Regional Director signed
copies of Appendix B for posting by Respondent Em-
ployer, the Respondent Employer willing, at its Hay-
ward facility for 60 consecutive days in places where
notices to employees are customarily posted.
(d) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS FURTHER ORDERED) that the complaint allega-
tions not specifically found herein be, and they
hereby are, dismissed.
s See fn 7. upra
APPENDIX A
NOTICE To EMPLOYEES
PoSTED BY ORDER OF THE
NATIONAL LABOR REI.ArIONs BOARD
An Agency of the United States Government
WE WILL NOi encourage your membership in
Construction and Building Material Teamsters
Local No. 291, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. or in any
other labor organization, by discriminating in re-
gard to your hire or tenure of employment or
any term or condition of employment, except to
the extent permitted by the proviso to Section
8(a)(3) of the National Labor Relations Act.
WE WIt.L NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of rights guaranteed in Section 7
of the Act, except to the extent that such rights
may be affected by an agreement requiring mem-
bership in a labor organization as a condition of
employment, as authorized by Section 8(a)(3) of
the Act.
WE wn 11. offer to Bruce Kochan, if we have
not already done so, immediate and fll rein-
statement to his former job or, if such job no
longer exists, to a substantiall\ equivalent job.
without prejudice to his seniority or other rights
and privileges previously enjoyed. and WI Will.
make him whole, with interest, for any loss of
earnings he may have suffered by reason of the
discrimination against him, during the period
from August 20. 1978. to the date we offer him
reinstatement. and, together with the above-
named Union, will jointly and severall\ reim-
burse him with interest for any loss of earnings
suffered during the period from June 5 to August
19, 1978.
FORSYTH HARI)O()O) C()MPXNY
APPENDIX
No-rtic To MtlB:RS
POSTEI) BY ORDER O() 1t11
NATIONAIl LABOR RE.AII()NS BOARD
An Agency of the United States Government
We WILL NOt give effect to. implement, or in
any manner enforce a practice which fails to ac-
cord reasonable notice to members of their dues
delinquency, said reasonable oral or written no-
tice to include a statement of the precise amount
of dues owed, the month for which dues are
owed, or an explanation of the method used in
computing the amount of the dues owed, and
which accords members an adequate opportuni-
ty to pay the amount specified as owing.
WE WII.L NO] cause or attempt to cause For-
syth Hardwood Company. or any other em-
ployer. to discriminate against Bruce Kochan or
any other employee in violation of Section
8(a)(3) of the National Labor Relations Act.
WE wIII. NOI in any like or related manner
restrain or coerce employees of Forsyth Hard-
wood Company in the exercise of their rights
guaranteed in Section 7 of the Act, except to the
extent that such rights may be affected b an
agreement requiring membership in a labor or-
ganization as a condition of employment. a au-
thorized by Section 8(a)(3) of the Act.
WE WILI., jointly and severally with the above-
named Employer, make whole. with interest.
Bruce Kochan for any loss of earnings he may
have suffered because of the discrimination
against him during the period from June 5
through August 19. 1978.
CONSTRU('CTIN AND BI)lDIN(; MAIl RIAI
TEAMSTERS LO( AI. No. 291, Att IIIAlt-I)
Wii Til INFI.RNAIf)NAI BROiI RIl()Ol))
OF TEAMSTERS, CAtl-tit R, ARI lIOS)tIS--
MEN AND) Hi.-PI'RS OF AMERI(l'A
1(041
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STAIEMENI O()F itlE CASE
JOAN WIEDER, Administrative Law Judge: This case was
heard in Oakland, California, on November 8, 1978.' The
charge in Case 32 CA 1105 was filed on July 25 by Bruce
Kochan. A complaint was issued on August 31, alleging
that Forsyth Hardwood Company, herein called Forsyth or
the Company. violated Section 8(a)(3) and (I1) of the Act.
The charges in Case 32 CB-260 were filed on June 13 and
amended on July 25 by the same Charging Party. A com-
plaint was issued on July 31, alleging that Construction and
Building Material Teamsters Local No. 291. affiliated with
the International Brotherhood of Teamsters, Chauffeurs.
Warehousemen and Helpers of America, herein called the
Union. violated Section 8(b)(1)(A) and (2) of the Act. An
order consolidating both cases was issued on August 31.
Issues
The primary issues are:
I. Whether the Union violated Section 8(b)( I )(A) and (2)
of the Act by breaching its fiduciary duty to the Charging
Party, Bruce Kochan (Kochan), by attempting to cause and
causing the Company to terminate Kochan's employment
without adequate warning regarding the ramifications of
uncontroverted dues arrearages.
2. Whether the Company violated Section 8(a)(3) and (I)
of the Act by acceding to the Union's request to discharge
Kochan.
3. Whether the Union violated Section 8(b)( 1I)(A) of the
Acy by refusing to represent Kochan in his efforts to pursue
a grievance regarding his discharge.
All parties were given full opportunity to participate, to
produce relevant evidence, to examine and cross-examine
witnesses, to present oral argument. and to file briefs. The
parties waived oral argument. Timely filed briefs have been
carefully considered.
Upon the entire record of this case, and from my obser-
vation of the witnesses and their demeanor. I make the fol-
lowing:
FINDINGS OF FACT
I. THE BUSINESS OF ITHE (COMPANY
The Company, a California corporation with an office
and principal place of business in Hayward, California, is
engaged in the nonretail sale of lumber and related prod-
ucts. During the last 12 months goods or services valued in
excess of $50,000 were purchased and received from suppli-
ers located in States other than California. It is admitted
and I find that the Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
The Union admits, and I find, that at all times material
herein it has been a labor organization within the meaning
of Section 2(5) of the Act.
III. HE AILEGED UNFAIR LABOR PRA( IICES
A. Sequence of Events
The Company is engaged in the nonretail sale of lumber
and related products and has about six nonsupervisory em-
ployees. Kochan was employed by Forsyth in September
1976, primarily as a helper with undescribed plastic materi-
als, and. occasionally, he drove a truck. At some unspeci-
fied time Kochan became a full-time truckdriver. In 1976.
Forsyth was located in San Francisco. California, and
Kochan joined the Union. Local No. 85. receiving a copy of
the local's bylaws and the collective-bargaining agreement.
Kochan, in undisputed testimony, stated he never read the
documents. Kochan paid his dues on a current basis while a
member of Local No. 85.
In September 1977, the Company relocated the business
to Hayward. California. When the Company relocated,
Kochan and the other employees moved their employment
to the Hayward location. The Company recognized the Re-
spondent Union, Local No. 291, and the employees were
informed that they were required to transfer their union
membership. The Company's recognition of Local No. 291
is not alleged to have altered the terms of the collective-
bargaining agreement or the members' dues obligation.
The Union and the Company were parties to a collective-
bargaining agreement which contained a union-security
clause requiring "membership in good standing." Respon-
dent Union's constitution' further requires members to pay
dues on a current basis to remain "members in good stand-
ing." A member who is 3 months in arrears in dues pay-
ments faces automatic suspension at the end of the third
month. Once a member is suspended from Respondent
Union, article 2, the union-security agreement. is enforced.
As here pertinent, article 2 provides:
Only "members in good standing" in the local Union
shall be retained in employment. For the purposes of
this Article. "members in good standing" is defined to
mean employee members in the Local Union who ten-
der the periodic dues and initiation fees uniformly re-
quired as a condition of acquiring or retaining mem-
bership.
. . .Non-members of the Local Union hired by the
Employer must complete membership on or immedi-
ately following the thirty-first day of employment. and
the Local Union agrees to accept said non-members
into membership on the same terms and conditions
generally applicable to other members. Upon written
notice from the Local Union of failure on the part of
any individual to complete membership in the Local
Union. as above required. or of failure to continue
payment of dues to the Local Union, the Employer
shall, within seven (7) days of such notice, discharge
'All dales are in 1978, unless otherwise indicated.
II. THI- LABOR ORGANIZATION
1042
2 Art X. sec 5(c)
FORSYTH HARDWOOD COMPANY
said employee unless notified in writing by the Local
Union within the seven (7) day period that the said
employee has complied with this Article.
Each member that transferred to ocal No. 291. including
Kochan, received a copy of' the local's bylaws the collec-
tive-bargaining agreement, and the Union's constitution, as
well as other documents not pertinent to this proceeding
It is not disputed that Kochan was slow in filing the transfer
application. John P. Crowson (Crowson), the president and
business agent of Local No. 291, informed Kochan that he
was required to file a completed transfer application; and if
he did not file "in due time, he (Kochan) could be removed
from the job." Kochan did not deny the conversation.
However, there was no clear showing that the conversation
explained that the nonpayment of dues is a cause for dis-
charge.
Kochan became several months delinquent in his dues
shortly after he transferred to Local No. 291. When
Kochan paid the dues for December, January, and Fehru-
ary, he received an acknowledgment from l.ocal No. 291
which also contained the following statement-"lf you hap-
pen to be behind three months, the first day of the fourth
month you will be suspended for nonpayment of dues"
Again, Respondents failed to show that Kochan was in-
formed that suspension from the Ulnion for nonpayment of
dues is a ground for discharge.
B. Kochan's Discharge
On or about May 24 or 25, Crowson was informed by
one of the Respondent Union's office workers that Kochan
was behind in his dues and bordering on suspension. On
May 26, Crowson visited the Company's premises to dis-
cuss with Kochan his delinquent dues. Kochan was off the
premises making a delivery. Crowson put a note, dated Fri-
day, May 26, 1978, on Kochan's timeclock. The note
stated: "Bruce, you are behind in your union dues-you
last paid Feb. You owe $92.00 to pay thru June '78 [sic]."
The parties agree that Kochan had, in fact, not paid for the
months of March, April, and May, and the automatic sus-
pension provision would be in effect June 1. May 26 was a
Friday. Kochan stated that he stuck the note in his pocket
and forgot about it until the first of June, when he paid his
bills. Though Kochan claimed he mailed in the dues on
June 1, the envelope is postmarked June 2, and Kochan's
testimony is not credited in this regard. The payment was
received June 5.
On June 1, a Thursday, Respondent Union had not re-
ceived the delinquent dues, so certified letters were sent to
both the Company and Kochan. The letter to the Company
stated that Kochan had been suspended for nonpayment of
dues and requested he be discharged pursuant to article 2 of
the collective-bargaining agreement. The Company re-
ceived the letter on Friday, June 2. The letter to Kochan
stated that he was suspended from the Union for nonpay-
ment of dues. Kochan received the letter on Saturday, June
3, the day after he mailed a $100 check in full payment of
the delinquency. The letter to Kochan did not mention that
as a consequence of suspension his discharge had been re-
quested. All the letter stated was: "If you believe a mistake
has been made, please contact this office immediately."
When the C(orpanN receied the lUn'ion' letter requesting
dismissal, the manager, Dennis . elseth contacted [)ick
McBreen the secretar-treasurer ot' the l.umber and Mill
Employers' Association.' for advice.
Hfelseth had never prc,tiously received a similtar request.
McBreen advised Hlelseth to terminate the emplo,ee as
soon as possible and "to make no mention to the emplo ee
that he was beinit terminated on a hasis other than the
nonpayment of dues and the request frontm the Inion to
dismiss."
Helseth than contacted ('rowson,. wlho aid. "YOU have
article 2 of the contract and it states in the letter. ou are to
terminate the employee either today, tonorro, . or the next
day, but you have 7 days to terminate the employee."
Kochan, on lMonday, June 5. the first workda aitter re-
ceipt of the suspension letter, telephoned the (onpan, it
approximately 7:30) a.m.. and informed an uidcn detitied in-
dividual that "he had important business to take care of
and would he late." Kochan imnmediatel proceeded to the
union office, arriving at approximately 8 a.m. Kochan
waited to see Mr. C(rowson and when theN met. Kochan
asked if he would still he suspended fromn the It'nllon if he
paid his hack dues. Crowson replied that if' Kochan paid his
back dues plus an initiation fee. he would he a member in
good standing. Kochan then asked if the C(oMnpan; had
been informed of his suspension. Crowson replied es. and
stated that the Union had requested the Emploer to ternmi-
nate him. Crowson also informed Kochan that he ,aould
have to go to Forsyth to try to get his joh back. Kochan
then left Crowson and paid his hack dues and the initiation
fee.
Kochan then left the Union's office and went to the Re-
spondent Company. arriving at about 9:30 a.m. Helseth
saw Kochan at that time, and asked to meet with him in his
office. Kochan was informed that pursuant to the Respon-
dent Union's letter. Kochan was terminated, effective 8
a.m. that morning. Kochan replied that he had been rein-
stated and was a member in good standing. Helseth re-
sponded that Kochan was already terminated. and that the
Company wanted to try someone else.
Shortly after 10 a.m. the same day. Helseth received a
call from Crowson' wherein Crowson informed the Com-
pany that Kochan was again a member in good standing
and requested that he be considered for reinstatement. Hel-
seth said no, they would like to try another employee. Hel-
seth requested between 9:30 and 9:45 a.m. that the prospec-
tive employee be contacted to ascertain his availabilit, for
employment, about the same time. or just after his conver-
sation with the Charging Party. The prospective emploxee.
who had previously worked for Respondent Company. was
actually contacted at about 4 p.m. and started work the
following day, June 6.
The bargaining agent for the multiemployer lumber industrs association
to which the Company belongs
4 There was some dispute regarding the approximate times of the events of
June 5. I credit the testimony of Kxohan since it is most closl alihgned with
the testimony of Helseth
5 Crowson. on June 5. mailed the C(ompan? a letter stating that Kochan
was a member in good standing of the Union The letter and telephone call
did not clearly and unequivocally request reinstatement
1041
I0I)('ISI()NS ()F NA'II()ONA I.ABOR REIA'IONS BOARI)
On June 6. Kochan went to the union office and re-
quested that Crowson file a grievance against the Company
regarding his discharge. ('rowson informed Kochan that
the Union had requested the discharge pursuant to the con-
tract, and that it was the opinion of the Union that the
request was valid. Crowson also opined that he thought the
discharge was valid. Based on these reasons, the Union was
not going to accept or process the grievance.? Kochan lost
his temper and cursed at ('rowson, who suggested that the
Charging Party go to the hiring hall to procure employ-
ment. Kochan has not utilized the hiring hall to gain em-
ployment since his termination on June 5.
On July 2, Kochan received multiple injuries in a motor-
cycle accident, and had not been released by his physician
to return to work as of the date of the hearing herein, No-
vember 8. On August 14, the Union sent a letter to the
Company demanding, for the first time, that the Company
reinstate Kochan to his former position with all seniority
rights and privileges as though there had never been an
interruption in his employment. Also, on August 14, the
Union sent a letter to Kochan, enclosing a copy of the June
5 letter to the Company. The June 5 letter, as pertinent.
reads: "Please be advised that Bruce J. Kochan . . . on this
day, made the reinitiation fee to the Local Union under ...
the contract. He is again in compliance with article 2." The
August 14 letter to Kochan reads:
Enclosed please find a copy' of a letter dated June 5,
1978 that was sent to Forsyth Lumber reaffirming the
position of Local 291 has no objection to your employ-
ment. Whether or not you are employed by Forsyth
Hardwood Company is up to the Company. If you
desire to work for Forsyth Hardwood, I suggest you
contact Mr. Helseth.
Please inform Local 291 of any problems you have
regarding your employment.
Also, please note that under Local 291's collective
bargaining agreement with Forsyth Hardwood, you
are required to maintain membership in Local 291 in
good standing as a condition of employment. If you
have any questions about your membership obliga-
tions regarding membership and dues, please contact
me.
C. Conclusions
I. The alleged violation of Section 8(b)( )(A) and (2), in
requesting discharge of Kochan
A union seeking to enforce a union-security provision
against an employee has a fiduciary duty to deal fairly with
the affected employee. Jo-Jo Management Corp., d/bla Glo-
ria's Manor Homefor Adults, 225 NLRB 133 (1976). There
is no question that the Union informed Kochan that he was
delinquent in his dues payments. Respondent Union argues
that by so informing Kochan of his dues delinquency and
the amount of the arrearage, it met its statutory obligation,
despite its admitted failure to inform Kochan that failure to
' The events of June 6 were recited in a stipulation entered into by counsel
for the General Counsel and counsel for Respondent Union. The stipulation
is not binding upon Respondent Company.
remit the dues would result in suspension which could or
would lead the Union to request his discharge. Ihe llnion
argues, and Kochan admits, that he knew the failure to pa?
dues could result in suspension from the Union. Respon-
dent Union further avers that Kochan had received copies
of the contract setting forth the union-security provision.
and knew that there was a possibility that his discharge was
requested, for he asked ('rowson on June 5 whether a letter
requesting his discharge had been sent to Forsyth. The
Union also argues that Kochan's testimony should not be
credited;7 his deleterious behavior exhibited by his being
the last employee to transfer into the I;nion and his t wo
dues delinquencies demonstrates that Kochan had an "I
don't care" attitude. even though he knew of his obliga-
tions.
There is no question that Kochan knew his dues obliga-
tion, and further, he knew he could be suspended foir non-
payment of dues. However, an employee's recognized affir-
mative obligation to pay dues in a manner which avoids a
delinquency, which might threaten or impair his union
standing and job tenure, does not abrogate the union's fidu-
ciary obligation to adhere to the notice procedures and pro-
cesses in a manner that minimizes the likelihood of default
with a consequential loss of' membership and job status'
through honest error, miscalculation, oversight, or chance
circumstances. Conductron Corporation a substdiai of Mc-
Donald Douglas Corporation, 183 NlRB 419 (1970): Gen-
eral Truck Drivers, Chaufleurs, Warehousemnen and Helpers
Local 270 a International Brotherhood of Team.slerv.
C(hau/feurs, Warehousemen & Helpers o' Amerwa, Ind. (Bulk
Transport, Inc.), 186 NLRB 299 (1970); and Philadelphia
Sheraton Corporation Hotel, Motel and Cluh Emplovees'
Union, Local 568, AFL CIO, 136 NLRB 888 (1962).
The Respondent Union must meet the "minimum" obli-
gation by giving reasonable notice of the delinquency. The
notice must include a statement of the precise amount and
the months for which dues are owed as well as an explana-
tion of the method used in computing such amount. 'Team-
sters Local 122,. 203 NLRB 1041, 1042. The Respondent
Union gave Kochan notice of the amount owed, but failed
to state with accuracy the months for which dues were
owed. The note left for Kochan stated he owed $92 in dues
and payment of the stated amount would make him current
through June. The months for which dues were owed were
not clearly stated, nor was the due date for payment. The
Union also failed to inform Kochan of the potential penal-
ties if he failed to make payment. The Union failed to meet
its fiduciary obligation to the Charging Party by failing to
take the steps necessary to insure that a reasonable em-
ployee will not fail to meet his membership obligations
through ignorance or inadvertence, but that such failure
will occur only through conscious choice. International
Brotherhood of Boilermakers Iron Shiphbuilders, Blacksmiths,
Kochan's credibility is not dispositive of the issue.
" Respondent Union argues that in October 1977. the Charging Part) was
informed that union membership was required for retention of employment.
Constructive notice the preceding year, unrelated to dues delinquency, is
inadequate. for it failed to inform Kochan in June of his obligations to avoid
termination in a clear and current manner as part of the Union's obligation
to deal fairly with the employees it represents. See Conducttron Corporalion.
supra at 425.
1044
FORSYTH HARDWOOD COMPANY
Forgers d Helpers, Local Lodge, No. 72, AFL (IO, Triple
A. Machine Shop. I/nc. d/h/a Triple A South. 239 NLRB
504 (1978). In these circumstances, I find that the Union
violated Section 8(b)(2) and (I)(A) of the Act in causing
Kochan's discharge.
The question of whether the Charging Party was pro-
vided with a reasonable opportunity to meet his obligations
was never specifically argued by the counsel for General
Counsel, and Respondent Union infers in the brief that the
question is not an issue. The question of' breach of' fiduciary
duty was fully and fairly litigated and the events as so re-
lated are pertinent to the issue of the Union's obligations
including the Union's affording the Charging Party a rea-
sonable opportunity to meet his obligations. Free-Flow
Packing Corporation v. N.L.R.B., 566 F.2d 1124 (9th Cir.
1978): N.L.R.B. v. J. Byran Klaue d/h/a Elercro Mart, 523
F.2d 410 (9th Cir. 1975); REA Trucking Companr Inc. v.
N.L.R.B., 439 F.2d 1065 (9th Cir. 1971). Under the circum-
stances of this case, it is not necessary to pass on the issue,
but to insure a clear finding, it is concluded that the
Union's failure to give notice of the due date for the pay-
ment of the delinquency; the confusing nature of the notice
caused by the inclusion of the month of June: the fact that
Crowson knew the Charging Party was off the premises
when he left the note on Friday, May 26; the fact that May
29 was a holiday, leaving only 2 workdays to pay the ar-
rearage. a fact not included in the note: did not provide
Kochan with a reasonable opportunity to meet his obliga-
tions. Teamsters Local Union No. 122, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America (August A. Busch & Co. of Mass., Inc.), 203
NLRB 1041 (1973).
2. The alleged violation of Section 8(a)(3) and (1) of the
Act
Section 8(a)(3) of the Act, which is a close parallel to
Section 8(b)(), provides that it is an unfair labor practice
for an employer to discriminate in regard to hire or tenure
of employment to encourage or discourage union member-
ship, provided that nothing in the Act should preclude an
employer from entering into a union-security agreement
which satisfies prescribed conditions, and as pertinent
herein:
Provided further, that no employer shall justify any
discrimination against an employee for nonmember-
ship in a labor organization. (A) if he has reasonable
grounds for believing that such membership was not
available to the employee on the same terms and con-
ditions generally applicable to other members, or (B) if
he has reasonable grounds for believing that member-
ship was denied or terminated for reasons other than
the failure of an employee to tender periodic dues and
the initiation fees uniformly required as a condition of
acquiring or retaining membership; .... "9
'The parallel provision of Sec. 8(b)42) provides that it is an unfair labor
practice for a labor organization to cause or attempt to cause an employer to
discrinminate against an employee in violation of Sec. 8(a)(3) or:
To discriminate against an employee with respect to whom membership
in such organization has been denied or terminated on some ground
There is no question that the Charging Party was delin-
quent in the payment of his union dues. Notwithstanding
this delinquency, I have found that the Respondent Union
violated Section 8(h)(2) and (I)(A) by causing Kochan's
discharge. for the Union breached its fiduciary duty by fil-
ing to inform the Charging Party fully of his membership
obligations. the period by which payment must be made.
and the consequences of such failure, to insure that a rea-
sonable employee would not fail to meet his membership
obligation through ignorance or inadvertence, but would do
so only as a matter of conscious choice.
Respondent Employer is held to a lower standard under
the proviso to Section 8(a)(3). Conductron Corporatiion, .u-
pra, 427. The employer, when placed on notice that mem-
bership was denied or terminated for reasons other than
failure to make a tender of required dues, does have a duty
to investigate the circumstances of the discharge. ranite
CitY Steel Company, 169 NLRB 1009 (1968): Asvociated
Tralsport, Inc., 169 NLRB 1143 (1968); International Union
of Electrical. Radio and Machine Workers. A Fl. CIO. Frigi-
daire ocal 801 (General Motors Corporation). 129 NLRB
1379 (1961), enfd. 307 F.2d 679 (D.C. Cir. 1962) cert. de-
nied 371 U.S. 936: Conductron Corporation, supra, 427.
Respondent Employer argues that it had no knowledge
or belief the Union's discharge demand was unlawful, that
due to the novelty of the demand Helseth checked with
both the secretary-treasurer of the multiemplover associ-
ation and the Union, and was advised to discharge Kochan.
It is argued that for bookkeeping reasons, it was determined
to terminate Kochan at 8 a.m.. June 5. 1978. and that the
termination papers were prepared at that time. Kochan did
not appear at work until approximately 9:30 a.m., when
Helseth asked the Charging Party into his office to inform
him that he had been discharged. Consequently, the Com-
pany asserts it did not learn that Kochan was reinstated as
a union member until after he was terminated and arrange-
ments to replace him were made. The Company further
argues that the discharge was made in compliance with the
contract.
I find Respondent Employer's contentions to be without
merit. During the discharge interview, I 1/2 hours after the
termination papers were prepared and prior to the drawing
of the final paycheck, the Company was furnished with rea-
sonable grounds to believe the discharge was not protected
by the 8(aX3) proviso when Kochan protested his termina-
tion, asserting that he was again a member in good standing
with the Union. The replacement was not actually con-
tacted until after 4 p.m. on the afternoon of June 5, well
after the discharge. The Company had ample time to tele-
phone the Union to verify the claim, but chose instead to
effectuate the discharge. I conclude that Kochan's protest.
made at the time of the discharge interview, was sufficient
to furnish the Company reasonable ground to believe that
Kochan's discharge was not protected by the proviso to
Section 8(a)(3). Conductron Corporation. supra. The Em-
ployer had ample time to prevent that effectuation of the
discharge.
other than his failure to tender periodic dues and the ntrlation fees
uniformly required as a condition of acquiring or retaining membership
1045
DEC(ISIONS OF NATIONAI. LABOR RELATIONS BOARD
Moreover, shortly after Kochan was terminated, and on
the same day, i-elseth received a phone call from a union
official, Crowson, indicating that the Union had no obJec-
tion to Kochan's reinstatement. This telephone call should
have increased the Company's suspicions that the requested
discharge was improper. Furthermore, the Company, when
contacted by the Union, had ready opportunity to verity
the employee's claim, and in fact, Crowson did verify
Kochan's reinstatement as a member in good standing.
Kochan's statement and the Union's telephone call, though
both occurred after the termination papers were drawn up,
supplied the Company with reasonable basis to believe that
the discharge was not protected by Section 8(a)(3), and the
Employer again had ample time to reinstate Kochan prior
to the hiring of a replacement. Accordingly, I conclude that
Helseth could not justify the continuation of the discrimina-
tion against Kochan and that, under the above described
circumstances, the Company was obligated to investigate
the situation Kochan and Crowson disclosed. The Com-
pany did neither and, therefore, lost the protection of the
proviso to Section 8(a)(3). Accordingly, by completing the
discharge process after Kochan had given Helseth reason-
able grounds to believe the union request was not proper,
without investigating Kochan's claim, the Respondent Em-
ployer violated Section 8(a)3) and (I) of the Act. H. C.
Macaulay Foundry Company, 223 NLRB 815, 818 819
(1976).
3. The alleged violation of Section 8(b)(IXA) for failure
to process a grievance
The Respondent Union and General Counsel are in gen-
eral agreement regarding the applicable legal principles.
The Union has a duty of fair representation, without dis-
crimination, of all employees in the bargaining unit, irre-
spective of union membership or the existence of a union-
security contract. Peerless Tool and Engineering Co., Ill
NLRB 853, 858 (1955). The Wallace Corporation v.
N.L.R.B., 323 U.S. 248 (1944). The Union's duty requires
that it act fairly, impartially, and in good faith, insuring
that the employees are free from unfair, invidious treat-
ment, hostility, discrimination, arbitrariness or capricious-
ness. Under this standard, a union is not required to pursue
every grievance, but a union may not ignore or process a
grievance in a perfunctory manner. Vaca et al. v. Sipes, 386
U.S. 171 (1967).
Respondent Union argues that the General Counsel
failed to support the allegation that the refusal to process
the grievance was for arbitrary, irrelevant, invidious, or un-
fair reasons. The Union claims that the failure was predi-
cated upon a good-faith belief that the request to discharge
was valid and the decision was made without hostility or
discrimination. Furthermore, it is agreed that the refusal
was not arbitrary or perfunctory.
The terms used to describe the Union's duty are not pre-
cisely outlined by precedent, and have been a long-standing
subject of scholarly debate. However, pertinent to the in-
stant case, the duty of fair representation is more than the
absence of good faith or presence of hostile motivation.
General Truck Drivers, Warehousemen, Helpers and Auto-
motive Employees, Local 315, International Brotherhood of
Teamstner.s, (hauJfeurs, Warehousemen and Helpers of ,4 ner-
iea (Rhodes & Jamieson Ltd., 217 NLRB 616, 617 (1975).
The duty is "in a sense fiduciary in nature." Miranda uel
Company', Inc. 140 NLRB 181, 189 (1962). See also Fred
Thompson v. Brotherhood of/' Slcping Car Porters, 316 F.2d
191 (4th Cir. 1963): Nilo A. Bazarte v. United 7Tranporta-
lion Union, 429 F.2d 868, 871 (3d C'ir. 1970).
In the instant proceeding, the request to file a grievance
was not analyzed. The denial to process the grievance was
based on the prior determination that the Union's request
for Kochan's discharge was meritorious. The day beftore it
refused to file the grievance, the Union stated it had no
objection to Kochan's reinstatement, but the record is de-
void of any evidence indicating that this stated lack of ob-
jection was predicated upon a review or analysis of either
the Union's or the Company's actions. Though it did not
request reinstatement,' the ramifications of Kochan's re-
turn to membership "in good standing" were not consid-
ered. That Kochan informed the Respondent Company
that he was reinstated as a union member and protested his
termination was also not considered by the Union. That the
Union accepted the tendered delinquent dues constituted
waiver of the right to continue asserting the grounds of dues
delinquency as the basis for the discharge. Colgate-Palmol-
ive Company and International Longshoremen s and Ware-
housemen Union, Local 6, 138 NLRB 1037 (1962). Yet when
the matter of filing a grievance was raised by Kochan, the
Union reasserted the delinquent dues as the basis for dis-
charge. Crowson, despite his involvement in the discharge
and the fact that he felt Kochan was recalcitrant in meeting
his obligations to the Union, failed to consult any other
union official regarding the merits of the proffered griev-
ance. Hence, I conclude that the Union failed to investigate
the grievance in more than a perfunctory fashion, thereby
failing to comply with its duty of fair representation. E. L.
Mustee & Sons, Inc., 215 NRB 203 (1974); American
Postal Workers Union Local 4193 AFL-CIO (United States
Postal Service), 226 NLRB 1000 (1976).
Based on the conclusion that the Union treated the pro-
posed grievance in a perfunctory and hence arbitrary fash-
ion, cojoined with the fact that the grievance was clearly
not frivolous, as well as considering the prior finding of
breach of fiduciary duty relating to the request for dis-
charge under the union-security agreement, it is concluded
that Respondent Union violated Section 8(b)(1)(A) of the
Act."
CONCLUSIONS OF LAW'
1. The Respondent Employer is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
'The failure to specifically request reinstatement until August 14 pre-
cludes a finding that the Union's efforts during the pendency of the proposed
grievance constituted a legitimate alternative to processing this grievance.
The statement that the Union has no objection to a member's reinstatement
is not an affirmative, bonafide request for reinstatement. The withdrawal of
objections does not clearly seek affirmative action.
1 Since the remedy shall provide all the appropriate relief for a violation
of Sec. 8(b)2), it is unnecessary to determine if the failure to process the
grievance violated that section of the Act.
1046
FORSY'IH HtARDWOOD COMPANY
2. The Respondent Union is a labor organization w ithin
the meaning of Section 2(5) of the Act.
3. By failing in its fiduciary relationship to Bruce
Kochan in not according him reasonable notice of his dues
delinquency, including a statement of the precise amount of
the dues owed, the months for which the dues were owed.
or a reasonable explanation of the method used in comput-
ing the amount of dues, and to provide him also with a
reasonable opportunity to pay the amount of dues owed,
Respondent Union restrained and coerced a member in the
exercise of the rights guaranteed in Section 7 of the Act,
and thereby engaged in an unfair labor practice within the
meaning of Section 8(b)( )(A) of the Act.
4. By causing and attempting to cause Respondent Em-
ployer to discharge Bruce Kochan. Respondent Union en-
gaged in conduct in violation of Section 8(b)(2) of the Act.
5. By discharging Bruce Kochan and thereafter refusing
to reinstate him without investigating and ascertaining the
circumstances underlying the Union's request to discharge
in the face of reasonable cause to believe such investigation
was warranted, Respondent Employer has engaged in and
is engaging in conduct in violation of Section 8(a)(3) and ( I )
of the Act.
6. By failing to represent Bruce Kochan in a fair and
impartial manner, Respondent Ulnion has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(b)( )(A) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE RMl)DY
Having found that Respondent Employer and Respon-
dent Union have engaged in and are engaging in unfair
labor practices within the meaning of the Act. I shall rec-
ommend that they cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of
the Act.
As I have found that Respondent Employer unlawfully
discharged Bruce Kochan I shall recommend that Respon-
dent Emploer be ordered to offer Kochan immediate and
full reinstatement to his former position or. i that is not
available, to a substantiallN equivalent one. swithout preju-
dice to his seniority or other rights and privileges, if it has
not alread, done so. Such an offer of reinstatement shall
toll Respondent Employer's backpa 5 liability.
Normall. as a condition for tolling Respondent nion's
backpay liabhilit. I would recommend that Respondent
Union be required to notitfy Kochan and Respondent Em-
ploser that it no longer objects to Kochan's emnplovment.
However, it is settled that "where .. .prior to a Board
finding that a union has violated Section 8(b)(2) the union
voluntarily notifies both the employer and the employee
that it has no objection to the reemployment of the em-
plovee. the Boaid has held that such notification constitutes
compliance with the usual Section 8(h)(2) order and effec-
tively terminates the unions backpay liability" 5 days after
such notification. I e.stwood Plumbers. 131 N IRB 562. 562
563 (1961). Here. Respondent Union. through Business
Agent ('rowson. on August 14 notified both Kochan and
Respondent Employer that it requested reinstatement of
Kochan. Under these circumstances, I find that Respondent
Union's hackpay liahilit terminated August 19. 1978. Ac-
cordingly. I shall recommend that Respondent Union and
Respondent Employer jointly and severally make whole
Kochan for any loss of earnings incurred from June 5
through August 19. 1978. but that Respondent Employer
shall be solely liable for any loss of earnings which Kochan
may have incurred thereafter. The loss of earnings shall be
computed in the manner prescribed in F 4. W 'ool/worth
Compain. 90 NLRB 289 (1950). and with interest on the
backpay due in accordance with the Board policy set out in
Isis Plumbirg & Heating (Co.. 138 NLRB 716 1962).
[Recommended Order omitted from publication.]
'2 Counsel for General Counel. in a supplemental brief. seeks a remedial
interest rate ot 9 percent per annum. The setting of interest rates is a polic
matter solel within the discretion of the Board. AccordingiS the request is
denied
1047