Helmsley-Spear, Inc.

National Labor Relations Board - Board Decisions

Apr 20, 1985

275 N.L.R.B. 262 (N.L.R.B. 1985)

262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Helmsley-Spear , Inc. and Saeed 1. , Mohamed
Local 32B-32J, Service Employees International
Union , AFL-CIO and Saeed ' J. Mohamed.
Cases 2-CA-18796 and 2-CB-9291
20 April 1985 -
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 13 August 1984 Administrative Law Judge
Howard Edelman issued the attached supplemental
decision. The General Counsel and the Charging
Party filed exceptions and a supporting brief, and.
Respondent Union filed cross-exceptions and a sup-
porting brief.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings , findings, and
conclusions only to the 'extent consistent with this
Decision and Order.
In his original decision in this proceeding also at-
tached, issued on 11 February 1983, the judge dis-
missed the complaint which alleges that Respond-
ent Union violated Section 8(b)(1)(A) and (2) of'
the Act by requesting the discharge of Saeed J.
Mohamed for failure to pay dues, and that Re-
spondent Company violated Section 8(a)(3) by
complying with the request. The judge found that
the Union informed Mohamed of his dues arrear-
age by letter, which - was received by Mohamed:
The judge credited 'the testimony of Union Chair-
person Lannon, who testified that Mohamed -told
him he never bothered to read union mail, and con-
cluded that the Union satisfied its obligations to
inform Mohamed of his dues arrearage before initi- -
ating- adverse action against him. The judge also
found that Respondent Company had no basis for
suspecting that the Union's discharge request was
for any reason other than Mohamed's dues arrear-
age and he dismissed the complaint allegations
against the Company.
On 30 January 1984 the Board remanded the
cases 'to the judge to reopen the record in order to
clarify which' of two letters contained in the
record, each of which apparently was addressed to
Mohamed buf stating different amounts' of dues ar-
rearage , was received by him. The order requested
the judge to prepare and issue a supplemental deci-
sion containing findings of fact, conclusions of law,
and a recommended Order.
In his supplemental decision, the judge adhered
to his original findings, concluding that the ambi-
guity created- by the two letters sent to Mohamed
was due at least in part to Mohamed's use of two
names, and that Mohamed in any event was a re-
275 NLRB No. 43
calcitrant employee who sought "to profit from his
own-dereliction in complying with his obligation as
a union member," by willfully and deliberately at-
tempting to avoid his obligation when he refused
to read union mail.
For the reasons stated below, we reverse the
judge and find that Respondent Union violated
Section 8(b)(1)(A) and (2) of the Act by requesting
and causing Mohamed's termination from employ-
ment.-'
The judge found that Respondent Union sent
two letters dated 1 April 1982 to Mohamed, one to
Jama Mohamed,- the other to Saeed J. Mohamed, at
the same address. One set forth a dues-delinquency
period of January 1981 'to March 1982. The other
set forth the period January to March 1982,= the
actual period of delinquency. Both letters made •ref-
erence to a reinstatement fee, but not the amount.
We have consistently held that labor organiza-
tions seeking to enforce valid union-security provi-
sions have a strict fiduciary duty to advise employ-
ees of their contractual obligations to maintain
membership in good standing before initiating any
adverse action against them. Hotel Employees Local _
568 (Philadelphia Sheraton Corp.), 320 F.2d 254 (3d
Cir. 1963), enfg. 136 NLRB 888 (1962); Boilermak-
ers Local 732 (Triple A South), 239 NLRB 504
(1978); Conductron Corp., 183 NLRB 419, 426
(1970); Iron Workers Local 378 (Judson Steel Corp.),
192 NLRB 1069 (1971), and cases cited therein.
"Among other things, this duty includes the obli-
gations to apprise a dues-delinquent employee of
the amount of dues arrearage, the time period in
question, _and the precise amount of any reinstate-
ment fee 'that may be required. Hotel Employees
Local 568 (Philadelphia Sheraton Corp.), supra; Boil-
ermakers Local 732 (Triple A South), supra; Team-
sters Local 122: (August A. Busch & Co.),- 203 NLRB
_1041 (1973); Conductron Corp., supra.
Here, Respondent Union sent conflicting notices
of dues arrearage to Mohamed, in violation of its
fiduciary obligations described above. We. reject
the judge's conclusion that the Union's responsibil-
ity for the ambiguity was relieved by Mohamed's
use of'two different names, or that Mohamed had a
burden to clarify the confusion by' contacting the
Union.-The record reveals that both letters sent to
Mohamed contained the same social security
number and address, making it obvious that Jama
Mohamed and Saeed J. Mohamed were the same
individual. Union witness Jackson attributed the
ambiguity to her supposition that a discrepancy ex-
We adopt the judge's findings and conclusions that Respondent Com-
pany did not violate Sec 8(a)(3) and (I) of the Act for the reasons given
in the attached decisions
HELMSLEY-SPEAR, INC
isted between the Union 's computer files and
manual recordkeeping procedures.
We agree with the judge that the Union 's failure
to specify the amount of reinstatement fee required
of Mohamed independently rendered the notices in-
adequate . Philadelphia Sheraton Corp., supra. In
combination with the ambiguity created by the two
different notices, we conclude that the Union failed
in its obligation to adequately notify Mohamed of
his obligations to perfect membership before initiat-
ing action against him.
We reject the judge 's conclusion that Mohamed
was a "free rider," an employee who willfully
seeks to avoid the financial obligations of a union-
security clause . See, e .g., R. H. Macy & Co., 266
NLRB 858 (1983 ). Mohamed followed . a pattern of
sporadic dues payment , becoming delinquent and
then paying in a lump sum not only the arrears, but
also in advance . He did not evade his financial obli-
gations to the Union . That he may not have read
union mail does not alter the situation . Negligence
and inattention to union concerns are not the
equivalent of the willful attempt to evade lawful fi-
nancial obligations at which the "free rider" excep-
tion is aimed.
Based on the foregoing , we find that Respondent
Union violated Section 8(b)(1)(A) and (2) of the
Act when it requested Mohamed 's discharge for his
failure to pay dues, and caused the Employer to
terminate him.
CONCLUSIONS OF LAW
1: Respondent Company is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Respondent Union is a labor organization
within the meaning of Section, 2(5) of the Act.
3. By causing Respondent Company to discharge
Saeed J. Mohamed for reasons other than his fail-
ure to tender dues, Respondent Union violated
,Section 8(b)(1)(A) and (2) of the Act.
4. Respondent Company has not violated the Act
as to Saeed J. Mohamed in any of the respects al-
leged in the complaint.
REMEDY
Having found that Respondent Union violated
Section 8(b)(1)(A) and (2) of the Act, we shall
order it to cease and desist from engaging in such
activity and to take certain affirmative action to ef-
fectuate the policies of the Act.
Having found that Respondent Union caused
Helmsley-Spear, Inc. to unlawfully discharge Saeed
J. Mohamed, we shall order that Respondent
Union notify Helmsley-Spear, Inc., in writing, with
a copy to Mohamed, that it has no objection to the
263
reinstatement of Mohamed, and that it requests
Mohamed be 'reinstated. The Respondent Union
shall be ordered to make Mohamed whole for any
loss of wages and benefits he may have suffered as
a result of the Respondent Union's action until Mo-
hamed has been reinstated by Helmsley-Spear, Inc.,
to his former or substantially equivalent job, or he
obtains substantially equivalent employment else-
where, less his net interim earnings.2 The amount
of backpay shall be computed in the manner set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as provided for in Florida Steel Corp.,
231 NLRB 651 (1977).
ORDER
The National Labor Relations Board orders that
the Respondent Union, Local 32B-32J, Service
Employees -International Union, AFL-CIO, its offi-
cers, agents, and representatives, shall
1. Cease and desist from
(a) Causing or attempting to cause Helmsley-
Spear, Inc. to discriminate against any of its em-
ployees in violation of Section 8(a)(3) of the Act.
(b) In any like or related manner restraining or
coercing employees in the exercise of rights guar-
anteed by Section 7 of the Act, except to the
extent that such rights may be affected by an
agreement requiring membership in a labor organi-
zation as a condition of employment, as authorized
by Section 8(a)(3) of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Make whole Saeed J. Mohamed for any loss
of wages or other rights and benefits he may have
suffered as the result of its discrimination against
him, in the manner set forth in the section entitled
"The Remedy."
(b) Notify Helmsley-Spear, Inc. in writing, with
a copy to Saeed J. Mohamed, that it has no objec-
tion to the employment of Saeed J. Mohamed, and
that it requests that Mohamed be reinstated.
(c) Expunge from its records any reference to
the unlawful discharge of.Saeed J. Mohamed and
notify him in writing that this has been done and
that evidence of his unlawful discharge shall not be
used as a basis for future action against him.
(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."3
2 See Sheet Metal Workers Local 355 (Zinsco Electrical Products), 254
NLRB'773 (1981)
2 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of this notice, on forms provided by the Re-
gional Director for Region 2, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt. Once posted, these notices shall remain
posted for 60 consecutive days. Reasonable steps
shall be taken by the Respondent Union to ensure
that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Deliver to the Regional Director for Region
2 signed copies of the notice in sufficient numbers
to be posted by Helmsley-Spear, Inc., in all places
where notices to employees are customarily posted,
if it is willing. Ask the Employer to remove any
reference to Mohamed's unlawful discharge from
the Employer's files and notify Mohamed that it
has asked'the Employer to do this.
(f) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found-
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT cause or attempt to cause Helms-
ley-Spear, Inc. to discriminate against Saeed J. Mo-
hamed or any other employee in 'violation of Sec-
tion 8(a)(3) of the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them by Section 7
of the Act, except to the extent that those rights
may be abrogated 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 WILL make whole Saeed J. Mohamed for
any loss of wages or other rights and benefits' he
may have suffered by reason of our discrimination
practiced against him, with interest, until he has
been reinstated by Helmsley-Spear, Inc., or obtains
substantially equivalent employment elsewhere.
WE WILL notify Helmsley-Spear, Inc. in writing,
with a copy to Saeed J. Mohamed, that we have
no objection to the reinstatement of Saeed J. Mo-
hamed and we will request that he be reinstated.
WE WILL expunge from our files any reference
to the discharge of Saeed J. Mohamed and notify
him in writing that this' has been done and that evi-
dence of this unlawful discharge will not be used as
a basis for future action against him and WE WILL
ask the Employer to remove any reference to Mo-
hamed's unlawful discharge from its files.and will
notify Mohamed that we have asked the Employer
to do this.
LOCAL 32B-32J, SERVICE EMPLOY-
EES INTERNATIONAL UNION, AFL-
CIO
DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This
case was tried before me in New York, New York, on
December 16, 1982.
On May 12, 1982 , Saeed J . Mohamed , an individual
(Mohamed), filed unfair labor, practice charges against
Helmsley-Spear, Inc. (Case 2-CA-18796) and Local
32B-32J, Service Employees International ,Union," AFL-
CIO (Case 2-CB-9291) (Respondents, the Employer, and
the Union, respectively). Following an investigation of
said charges, the Regional Director for Region 2 on June
21, 1982, issued a consolidated complaint against the
Union and the Employer alleging that the Union iiiilaw-
fully caused the Employer to discharge its employee Mo-
hamed in violation of Section 8(a)(3) of the Act,- thereby
violating Section 8(b)(1)(A) and (2) of the Act and that
by discharging Mohamed pursuant to the Union 's unlaw-
ful demand, the Employer thereby violated Section
8(a)(1) and (3) of the Act.
Briefs were filed by counsel' for the Union, the Em-
ployer, and the General Counsel. On consideration of the
entire record, the briefs, and my observation of the de-
meanor of the witnesses , I make the following
FINDINGS OF FACT
1. JURISDICTION
The Employer is a domestic corporation with an office
and place of business at 60 East 42nd Street, New York,
New York, where it is engaged in the ownership and op-
eration of various commercial and apartment buildings-
throughout the city and State of New York. In the
course and conduct of its operation, the Employer annu-
ally derives gross revenues in excess of $500,000 and pur-
chases and receives at its New York facilities goods,
products, and materials valued in excess of $50,000 di-
rectly from firms located outside the State of New York.
I find that the Employer is an employer engaged in
commerce within the meaning of the Act. -
II. LABOR ORGANIZATION
The Employer and the Union admit, and I find that
the Union is and has been at all times material a labor
organization within the meaning of the Act.
HELMSLEY-SPEAR, INC 265
III. COLLECTIVE-BARGAINING RELATIONSHIP
BETWEEN THE UNION AND THE EMPLOYER
For many years the Union has had a series of collec-
tive-bargaining agreements with the Realty Advisory
Board on Labor Relations, Incorporated, an employer as-
sociation (RAB), of which the Employer is an has at all
times material been a member. The collective-bargaining
agreements cover a unit of service employees employed
at each building which is "committed to this agreement."
The present agreement is effective from April 21, 1981,
through April 20, 1984. -
The present collective-bargaining agreement contains a
union-security clause which requires employees to
become and remain members of the Union as a' condition
of employment pursuant to Section 8(a)(3) of the Act.'
IV. THE DISCHARGE OF MOHAMED
Mohamed commenced working for the Employer as a
service employee at a building located at 7 Park Avenue,
Manhattan, New York, about December 1978. After 30
days, pursuant to the then existing union-security provi-
sions in the collective-bargaining agreement, he became a
member of the Union.2
As of December 1981, Mohamed was a member in
good standing of the Union. However, Mohamed, admit-
tedly failed to pay his union dues required by the
Union's collective-bargaining agreement as a condition of
employment for January, February, and March 1982.
Mildred Jackson, secretary to Union Secretary-Treas-
urer Joseph J. Baumann, credibly testified without con-
tradiction that the Union keeps computerized records of
members' dues payments. These records provide a com-
puterized list of those members whose dues are 3 months
in arrears and on the first day of the fourth month a
letter is automatically and routinely sent out by regular
mail to the member, notifying him of his dues arrearage,
and also informing him that if payment is not made the
Union will order his discharge. A copy of each letter
sent to a member is retained in the Union's files. The
Union has 63,000 members and according to Jackson, the
Union routinely sends out 500 of these dues arrearage
letters each month. Jackson produced from the Union's
files a copy of a letter addressed to Mohamed at 1265
Walton Avenue, Bronx, New-York, his residence at the
time, dated April 1, 1982, which set forth as follows:
Our records show that you are delinquent in your
dues for the period January 1982 thru March 1982
Please be advised that this is in violation of Local
'32B-32J's Constitution and By-Laws which pro-
vides:
The regular monthly dues shall be $10.00
' The union-security clause was introduced as an exhibit in the record
herein It is not set forth in this decision since it is conceded by all parties
to be and is a valid union-security clause within the proviso to Sec
8(a)(3) of the Act
2 Mohamed testified he became a member of the Union in 1976, 2
years prior to his employment by the Employer, however, union records
establish his membership commenced in 1978
All dues and other financial obligations are due and
payable oii.or before the last day of the current
month and if not so paid shall become and be con-
sidered delinquent. . . . Members who fall' in ar-
rears three months in dues or other financial obliga-
tions are automatically suspended as members of the
Local.
Therefore; you are hereby advised that you .have
been suspended as a member of Local 32B-32J and
that in the event of your failure to reinstate yourself
in good standing in the Union within 15 days from
the date of this letter, the Union will, in accordance
with. the terms of the collective bargaining agree-
ment with -your employer, demand your. discharge
from your employment. Reinstatement requires the
payment of a reinstatement fee, all dues in arrears
and the current month's dues.
In order to make payment, please appear at the
Dues Department of Local 32B-32J, 1 East 35th
Street, New York, N Y.
Jackson further testified that this letter addressed to Mo-
hamed was not returned to the Union by the post office.
Jackson also testified that such letters are prepared and
mailed by regular mail, the letters deposited in the mail
by a clerical under her supervision and that she has no
actual knowledge that the letter to Mohamed was in fact
actually deposited in the mailbox, other than-her knowl-
edge of the Union's usual and routine office procedures
described above.
Mohamed denied the receipt of such letter.
On April 21, not having received from Mohamed pay-
ment of his dues arrearage, the Union sent the following
letter to the Employer:
Please be advised that the, above mentioned employ-
ee (Saeed Mohamed) is no longer a member of
Local 32B-32J in good standing due to the non-
payment of dues and reinstatement fee.
Therefore, in accordance with our agreement, we
are requesting that he (she) be terminated immedi-
ately and replaced by another person whose em-
ployment' will be in compliance with the agreement
between the parties.
Leon Poll, employer vice president,3 testified that
shortly after he received the Union's April 21 letter, but
prior to May 6, he sent a copy of the letter and issued
instructions to "Danny," the building superintendent, to
notify Mohamed that he was discharged.
Mohamed testified he first became aware of his dues
arrearage on May 6 when he reported to work after
being absent for several, workdays prior thereto and was
informed by his shop steward Norbet that because of his
failure to pay union dues in 1982 he was fired. Mohamed
thereafter confirmed his discharge in a subsequent con-
versation with Building Superintendent "Danny" several
minutes later.
3 It was stipulated Poll was a supervisor and agent within the meaning
of Sec 2(11) of the Act
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mohamed' testified he had simply forgotten to pay his
'union dues.
Immediately following the notification of his dis-
charge, described above, Mohamed went to the Union's
office and met with Union Delegate William Lannon 4
who was present with four other agents including Rudy
Cuomo. Mohamed stated that he had been fired. Cuomo
asked him why. Mohamed replied he was told because
he had not paid his dues. Lannon asked him if he had
received a letter from the Union notifying him of his
dues delinquency., According to Lannon's testimony,
Mohamed replied he did not bother to read union mail.
Lannon then explained the Union's procedure whereby
members whose dues are- in arrears for more than 3
months are sent a letter advising them' that if payment is
not made to the Union within 15 days a letter will be
sent to his employer demanding his discharge for non-
payment of dues.
Mohamed testified he told Lannon in response to his
question that he did not get any letter-from the.Union or
any other form of notice concerning his dues arrearage
He denied stating he did not bother to read union mail.5
- Mohamed then told Lannon he would pay the dues
and Lannon, told- him to go back to the Employer and
see if they would take him back. • He said -he would call
the Employer and see if he could get him reinstated but
that Mohamed would have to pay his dues arrearage.
Mohamed then left. -
'After Mohamed left Lannon called Vice President
Leon Poll and asked Poll if the Employer would take
Mohamed back. Poll said • he would not, stating that he
had received various complaints about Mohamed and
was glad to be rid of him.
That same morning, May 6, immediately following his
.meeting with Lannon, Mohamed met with Poll at the
Employer's office. 'Mohamed asked Poll why he had
been fired and Poll showed him the Union's April 21
`letter ordering his discharge and told him the Union had
ordered his discharge because he failed to pay his dues
and pursuant to the collective-bargaining agreement with
the Union he,had no-chance but to comply.
Poll testified the Union's April 21 letter was the sole
reason for his decision to discharge Mohamed 6 -•
On May 7- and 8 Mohamed went to the Union's office
-and attempted to remit his back dues to the cashier on
duty. She refused to accept payment on both occasions
and Mohamed left.
On June 16 the Union sent Poll a letter and a copy to
Mohamed. The letter set forth as follows: `
Gentlemen: - -
On April '1, 1982, a letter was sent by Local 32B-
32J to the above member, formerly employed at the
above building, advising him that he was delinquent
" It was stipulated that Lannon was an agent of the Union
5 For reasons set forth below I credit Lannon's testimony I do not
credit Mohamed's denial
6 1 do not find Lannon's testimony that Poll refused to reinstate Mo-
hamed on May 6 because he had received complaints about him incon-
sistent with Poll's testimony that the sole reason for his decision to dis-
charge Mohamed was the Union's April 21 letter
in dues payments for the period January 1981
through March 1982.
Since Mr. Mohamed did not report to the union to
place himself in good standing, a letter was , sent- to
Jour office on April 21, 1982 requesting removal of
this member. Mr. Mohamed was subsequently dis-
charged on or about the same date for non-payment
of dues.
This member has advised the union that he did not
receive the notice of delinquency sent to his home
on April 1, 1982. Please be advised that Local 32B-
32J has no objections to the reinstatement of this
member to his former position provided that in the
future he comply with the provisions of the Union
shop provision of the collective bargaining agree-
ment.
Please advise our office as to what action will be
taken- by Helmsley-Spear regarding the above
matter. -
Thank you for your cooperation in this matter.
Mohamed left his Walton Avenue residence about
May 8. From May 8 to the date of this hearing he has
lived with friends in various locations in New York City,
Washington, D.C., and Montreal, Canada. Sometime
near the end of June, Mohamed -returned to his old
apartment at Walton Avenue and a friend gave him-a
copy of the Union's June 16 letter to -Poll described
above. After reading the letter Mohamed met with Poll
at Poll's office- and asked him if he could get his. job
back. Poll told him he did not interpret the Union's June
'16 letter' to-be a complete rescission of their prior April
21 letter ordering his discharge and he wanted to. consult
with others before agreeing to reemploy Mohamed.
Thereafter Poll contacted his attorney and discussed
the matter. As a result of this discussion Poll sent Mo-
hamed a letter dated June 28 addressed to his Walton
Avenue adress which set forth:
Dear Mr. Mohamed:
Upon receipt of this letter you are directed to call
the Superintendent of 7 Park Avenue at 683-0320.
It should be understood that you' will be rehired
subject to final determination after the Hearing of
the National Labor Relations Board.
Based on your previous employment schedule, you
are directed to report to work on Thursday, July. 1,
1982 starting with the shift on which you operated
previously.
The letter which was sent by regular and certified mail
was returned, with the post office notation "Unclaimed."
There is no evidence that the Union ordered Mo-
hamed's discharge for any, reason other than his failure
to pay his union dues. Similarly; there is no evidence
that the Employer discharged Mohamed for any reason
other than the Union's demand set forth in the April 21
letter.
HELMSLEY-SPEAR, INC 267
V. CREDIBILITY ISSUE
There is an issue of fact presented as to whether the
Union provided written notice to Mohamed concerning
his dues arrearage Mohamed testified that he told
Lannon on May 6, the day of his discharge, that he-
never received any notice, written or otherwise, from
the Union prior to his discharge advising him of his dues
arrearage. Lannon testified that when Mohamed was
asked if he had received a letter from the Union notify-
ing him of his dues arrearage, he replied 'that he never
bothered to read union mail. I credit the testimony of
Lannon . Lannon impressed me as a truthful witness. His
answers were forthright and detailed both on direct and
cross-examination . Moreover , his testimony was at least-
in part corroborated by documentary evidence. In this
regard he testified that after Mohamed, left-he called Poll
and tried to obtain his reinstatement . Such testimony is
corroborated by the Union's subsequent May 16 letter.
Mohamed , on the other hand , did not impress me as a
truthful witness. He frequently was unable to recall the
details of his conversations with Lannon and Poll and
details as to other areas of his testimony , and as a result
his testimony was often vague and at times incompreheii-
sible. Additionally , on questions put to him on cross-ex-
amination by both counsel for the Union and the Em-
ployer, he was at times evasive and at other times quite
argumentative. Additionally, he testified on direct exami-
nation that he always paid his dues in January of each
year for the entire coming year. Such testimony was
contradicted by the Union's records which established a
pattern of late and irregular payments for the entire
period of his union membership. He also testified he first
became a member of the Union in 1976, 2 years prior to
his employment by the Employer. Such testimony was
also contradicted by union records which established he
first became a member of the Union in 1978 after his em-
ployment by the Employer.
VI. ANALYSIS AND CONCLUSIONS
A. The Alleged Violation of Section 8(b)(1)(A) and (2)
of the Act
The Responsibility of the Union -
The first issue that.must be, decided is whether the
contents of the Union's April 1 letter to Mohamed noti-
fying . him of his dues arrearage satisfied the Board's re-
quirements.
There is no dispute as to the existence of a valid
union-security provision or that - Mohamed's union dues
were 3 months in arrears as of April 1.
The Board, with court approval, has held that a union
seeking to enforce its union-security ' provisions against an
employee has a fiduciary duty to deal fairly with.the em-
ployee affected.- At a minimum, this duty requires the
union to inform the employee of his obligations in order
that the employee . may take whatever action is necessary
to protect his job tenure. A union's fiduciary- duty to
advise employees of their union -security obligations re-
quires, some positive action on the part of the union,
without regard to an employer 's- concurrent obligation to
provide such notice , or any information the employee
may have been provided through fellow employees. An
employee is not presumed to be on notice as -to the
extent of his obligations to the union . Hotel " Employee"s
Local 568. (Philadelphia Sheraton Corp.), 136 NLRB 888
(1962), enfd. 320 F.2d 254 (3d Cir. 1963); Boilermakers
Local 732 (Triple A South), 239 NLRB 504 (4978);.Con-
ductron Corp., 183 NLRB 419, 426 (1970). In holding a
labor organization to such fiduciary standard , the Board
has''required that it give the delinquent employee actual,
as opposed to constructive , notice 'of his dues-delinquen-
cy and the obligations to pay such dues as a condition of
employment (such notice can be oral or in writing); the
amount of the arrearage and the time period covered;
and that it provide such member with 'a reasonable op-.
portunity to meet his obligations . Boilermakers Local 732,
supra ; Teamsters Local 122 (Busch & Co.), 203 NLRB
1041 (1973). - . •
It is clear that .the Union 's April 1 letter to Mohamed
fully met these requirements . The notice was actual,' in
writing , and fully set forth the amount of the arrearage,
the, time period involved , and, his obligation, to remit
such dues as a condition of continued employment: The
notice also gave Mohamed 15 days to pay such arrear-
age. -Since Mohamed was working , as opposed to being
ill or on vacation, and his job location was in close prox-
imity to the Union. 1 conclude that the.15-day period to
pay his dues arrearage provided by the,*Union was with-
out question, a reasonable period. of time. Accordingly, I
conclude that the contents of the Union 's notice to Mo-
hamed concerning his dues delinquency fully satisfied the
Board 's requirements. •
The next issue presented is whether the Union actually
gave such notice (the April 1 letter) to Mohamed. Mo-
hamed testified that he never received such notice in the
mail. Union employee Jackson testified that through the
use of a computerized system such dues arrearage letters
are routinely sent out to, members in arrears by - regular
mail on the first day of the fourth month of such arrear-
age and that a copy of such letter is' retained in the
Union's files. The Union's files establish a copy of such
letter addressed to Mohamed at his Walton Avenue ad
dress. Further , Jackson testified that she did not see, and
the union files did not contain the letter to Mohamed re-
turned by the post office. Significantly, during the May 6
meeting at the Union's office when Lannon questioned
Mohamed as to whether he had received the April 1
letter sent to him by the Union, he replied that he'never
read union mail.
Although the Union was unableto produce the cleri-
cal employee who actually mailed-such letters, I do not
believe such witness would have been able to testify, in
view of the average of 500 similar letters mailed at the
same time each month , that she specifically recalled de-
positing a letter addressed to Mohamed in the mail on
April 1, 1982. Such testimony would be most improbable
to say the least . Under all the circumstances recited
above, I conclude that a presumption can be fairly made
that the April -1 letter to Mohamed was mailed by the
Union , in the ordinary course of business , and received
by Mohamed. Roberts Electric Co, 227 NLRB 1312, 1319
(1977); Thiele Tanning Co., 128 NLRB 19 fn. 3 (1960). ,
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
- .I believe the instant case is distinguishable from the
Board 's holding in Machinists (Borg-Warner Corp.), 237
NLRB 1278 ( 1978), where - the Board in a split 2 to 1 de-
cision , reversing the administrative law judge held that a
union seeking to enforce a union -security clause has the
`absolute duty to see that the affected employee is. "in
fact informed" of his financial obligations and that it is
not sufficient for the - union simply to attempt to notify
the employee of- such obligations However , in Borg
Warner; supra , unlike the instant case , there was no find-
ing that - the employee received the union 's letter -
inform-ing him of his dues obligations . Indeed , the- affected em-
ployee denied without contradiction that he received such
letter although the union representatives testified that the
letter was mailed . to him . As I read Borg Warner , the re-
quirement that the employee be "in fact informed " is sat-
isfied where the affected employee receives proper writ-
ten notification of his dues obligations whether he choos-
es to-read such letter or not . I do not - believe the Board
intended to impose . upon the union the additional re-
quirement to-ensure that the employee open the envelope
and read the contents of the letter.
In view of my conclusion that - the ' contents of the
Union's April 1 letter to Mohamed satisfied the Board
requirements , and in view of my conclusion - that. such
letter was mailed by the Union , and received by Mo-
hamed, whether he read it , or not ; I further conclude that
the-Union satisfied its fiduciary obligation of notification
of such dues arrearage and that its enforcement as to
Mohamed of the union security provisions contained an
its collective -bargaining agreement with the Employer
was lawful. ;
I do hot find the Union 's refusal to accept a tender of
dues made , by, Mohamed on May 7 to be relevant to my
decision in this case . In the - landmark case , General
Motors Corp., 134 NLRB 1107 (1961 ), the Board reversed
its doctrine set forth in Aluminum Workers Union Local
135. (Metal Ware Corp.), 112 NLRB 619 (1955), that "a
full and . unqualified tender made anytime prior to the
actual discharge . . . is a proper tender and a subsequent
discharge . based upon the request is unlawful." Even
under the Aluminum Workers rationale , the tender make
by Mohamed was irrelevant as to establishing a violation
against the Union since such tender was made after the
discharge . It is noted in this connection that there is no
evidence that the Union requested Mohamed 's discharge
-for any, reason other than . his failure to meet his dues ob-
ligation. -
B. The Alleged, Violation of Section 8(a)(1) and.(3) of
the Act
The Responsibility of the Employer -
In view of my conclusion that the Union 's demand
that the ' Employer discharge Mohamed pursuant to the
union-security provisions of their collective -bargaining
agreement - was lawful , the Employer's discharge of Mo-
hamed pursuant to such demand was similarly lawful. I
therefore conclude - that the. discharge of Mohamed by
the Employer was not a violation of Section 8(a)(1) and
Assuming, arguendo , that the Union's demand did not
meet the .-Board's requirements set forth and discussed
above, the issue would be presented as to what the Em-
ployer 's legal obligations would be under such circum-
stances. The.,Board has held that while a labor organiza-
tion may not lawfully cause a discharge pursuant-to a
union-security clause for reasons other than a loss or
denial of membership caused by a failure to tenderrperi-
odic dues , an employer may lawfully respond to a re-
quest for discharge unless it has reasonable grounds to
believe , prior to such discharge , that membership was not
available to the employee on the same terms applicable
to other members or that membership was denied or ter-
minated for reasons other than failure to,make a tender
of the required dues or fees . Only when an employer has
such reasonable grounds prior tb discharge, does a duty
arise on the employer to investigate . Allied Maintenance
Co., 196 NLRB 566 (1972); Conductron Corp., supra, see
also cases'cited therein at 427 fn. 34. In the instant case
there is no- evidence that at any time prior to the dis=
charge of Mohamed the Employer had any reasonable
grounds to believe the Union's demand was not lawfully
motivated by the employee's failure to meet his union-se-
curity obligations under the parties collective-bargaining
agreement or that the Union failed to properly notify
Mohamed of said dues ' delinquency . In this connection,
the evidence established that immediately after Poll re-
ceived the Union 's April 21 letter demanding Mohamed's
discharge for failure to comply with the union-security
provisions of the parties' collective --bargaining agree-
ment , he sent a copy of this letter to the building super-
intendent at the building where Mohamed was employed
with instructions to notify Mohamed that he was dis-
charged It was at this point in time that the . discharge
was affected . Nor is there any evidence that following
the discharge , the Employer had any reasonable grounds
to believe- such discharge was motivated for reasons
other than Mohamed's failure to meet his union -security
obligations or that he , had not received proper notice
from the Union is to his dues obligations . However, such
knowledge , if acquired by the Employer , after the dis-
charge, would not be relevant, and would not place upon
the Employer an obligation to rehire Mohamed. Big
Rivers - Electric Corp., 260 NLRB 329 (1982); General
Motors Corp., supra.
Accordingly, I conclude that the" Employer did not
violate Section 8(a)(1). and (3) of the Act when it dis-
charged Mohamed .7
CONCI:USION§ OF LAW
In view of my analysis and conclusions set forth and
described above, I conclude that the Union, by demand-
ing the Employer discharge its employee Mohamed be-,
cause of his failure to comply with the union security-
provisions contained in the parties ' collective -bargaining
agreement and the Employer by discharging Mohamed
pursuant to the Union ' s- demand did not violate Section
' In view of this conclusion I find it unnecessary to decide whether the
Employer made a valid offer of reinstatement by his letter dated June 28
HELMSLEY-SPEAR, INC
8(b)(1)(A) and (2) and Section 8(a)(1) and (3) of the Act
as alleged respectively.
[Recommended Order omitted from publication.]
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
HOWARD EDELMAN, Administrative Law Judge. This
case was tried before me on June 11, 1984.
On February 8, 1983, I issued the initial decision in the
above case, recommending that the complaint against
both the Union and Employer be dismissed in its entire-
ty. Thereafter, the General Counsel filed timely- excep-
tions.
On April 27, 1984, the Board remanded the case .to me
for the purpose of clarifying which of two letters was
sent by the Union to Mohamed notifying him of his dues
deliquency.i The remand directed me to issue "a Supple-,
mental Decision, containing findings of fact, conclusions
of law, and a recommended Order in light of such find-
ings and conclusions."2
FINDINGS OF FACT
Mildred Jackson, secretary to the Union's secretary-
treasurer Joseph J. Baumann, testified that an examina-
tion of the Union's records indicated that - two- letters,
dated April 1, 1982, were mailed by regular mail'to Mo-
hamed at his 1265 Walton Avenue, Bronx, New York
residence. Both letters were' the same standard form
letter used by the Union to notify members of dues delin-
quency. One letter was addressed to Jama Mohamed
(Mohamed's middle name which he apparently used as a
first name) and the other was -addressed to Saeed Mo-
hamed. The letter addressed to Jama Mohamed set forth
the period of dues delinquency as January 1981 through
March 1982. The letter addressed to Saeed Mohamed set
forth the period of dues delinquency as January through-
March 1982..There' is no dispute that the actual period of
delinquency is January through March '1982.
Mohamed denied the receipt of both letters. In view of
my prior determination that Mohamed was not a credible
witness, and in view of Mohamed's admission to union
delegate William Lannon that he did- not read union
mail, I conclude he received both letters, but threw them
out without ever bothering to read then.
ANALYSIS AND CONCLUSIONS
At the conclusion of the hearing herein, I informed all
parties that one of the issues that would be reconsidered
was the language of the Union's letters to Mohamed in-
forming him of his dues delinquency, and particularly the
letter's reference to a "reinstatement fee."
Counsel for the Union contends that the legality of the
Union's letter itself cannot be litigated at this- hearing.
i U Exh I was a letter to, Jama Mohamed dated April .1, which
showed a dues delinquency period of January 1981 through March 1982
The duplicate of the Union's exhibits contains an unmarked letter to
Saeed J Mohamed dated April 1 which showed a dues delinquency
period of January through March 1982
2 On February 13, 1984, the Union filed with the Board a motion for
reconsideration of its decision to remand the case to the administrative
law judge On April 27, 1984, the Board denied the Union's motion
269
The contention is based on three arguments. The first is
that the issue was never raised by the General Counsel in
the initial proceeding. I're1ect_this argument. Paragraph
13 of the underlying complaint sets forth as follows:
Respondent Union engaged, in the conduct de-
scribed above in paragraph 11 notwithstanding Re-
spondent Union's failure to fulfill its fiduciary duty
to adequately notify Mohamed of his dues delin-
quency, of the amount of dues owed and the
method of computation, of the exact deadline for_
compliance by him with his obligation to pay dues
and initiation fees to Respondent Union, and of the
consequences for his failure to comply with the
union-security provision described above in para-
graph 10(b).
This complaint allegation squarely placed in issue the,
language of the union letters to Mohamed advising him
of his delinquency. Moreover, the General Counsel
argued in some detail in her initial brief that the language
of the letter was ambiguous and therefore inadequate.
Although she did not direct her initial argument to any
ambiguity concerning the "reinstatement fee," the legali-
ty of the contents of the Union's dues delinquency letter
were clearly alleged in the complaint and argued in her
brief.
Counsel for Respondent also contends that he was not
given the opportunity in the instant proceeding to intro-
duce evidence relating to ambiguities in the letter. Inas-
much as the issue was clearly raised by the complaint in
the initial proceeding, counsel for Respondent had the
opportunity to present during that proceeding evidence
relating to the legality of the Union's notice to Mo-
hamed, and did so by introducing the -letter itself and ar-
guing in his brief why the letter was adequate notice and
not ambiguous. Moreover, counsel for the Union did not
submit any offer of proof as to evidence he would have
or could have submitted in connection with this-issue. It
would appear to me based on the discussion below that
the only relevant evidence on this issue would be the
letter itself and that has been placed in evidence by
counsel for the Union. Clearly,' any independent knowl-
edge acquired by Mohamed by any outside means con-
cerning his dues obligations or reinstatement fee require-
ments would not excuse the Union in accordance with its
fiduciary obligation to provide Mohamed with adequate
notice as to his dues delinquency, including any reinstate-
ment fee that may be required. It is thus obvious that
whether the Union fulfilled this obligation is determined
by an examination of the notice itself. Hotel Employees
Local 568 (Philadelphia Sheraton Corp.), 136 NLRB 888
(1962), enfd. 320 F.2d 254 (3d Cir. 1963); Boilermakers
Local 732 (Triple A South), 239 NLRB 504 (1978); Con-
ductron Corp., 183•NLRB•419, 426•(1970); Iron Workers
Local 378 (Judson Steel Corp.), 192 NLRB 1069 ('1977),
and cases cited therein. Accordingly, I reject counsel for
the Union's contention. -
Counsel for the Union also contends that the scope of
the remand is limited to resolving the issue of which
letter was sent to Mohamed. However, as I read the
remand, while it may have been limited to taking evi-
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dence relating to which -letter was received by Mo-
hamed, the remand provides that I issue "a Supplemental
Decision containing findings of fact, conclusions of law,
and a recommended Order in light of such findings and
conclusions." Inasmuch as I have to consider any ambi-
guity raised by mailing to Mohamed two letters'with dif-
ferent dues delinquency periods, the legality of the
Union's dues"delinquency notice is placed in- issue. Ac-
cordingly, -I conclude that the scope of the remand is
broad -enough to embrace a consideration of the entire
letter reflecting any ambiguity relevant to the issue of
adequate union notice to Mohamed concerning his dues
delinquency. I therefore reject counsel's contention.
It is admitted by the Union that two letters were sent
to Mohamed setting forth different periods of dues delin-
quency. It is well settled law that a labor organization
has a fiduciary responsibility to apprise delinquent em-
ployees of their financial responsibility including the
amount of dues ,arrearage and the time period covered
by such arrearage. Hotel Employees Local 568 (Philadel-'
phia Sheraton Corp.), supra, Boilermakers, Local 732
(Triple A South), - supra; Teamsters Local 122 (Busch &
Co.), 203 NLRB 1041 (1973), Conductron Corp.,-'supra.
Although there is a clear ambiguity resulting from con=
flicting dues arrearage and time periods of such arrear-
age, such ambiguity is at least in part the apparent result
of Mohamed's use of two different names. Under these
circumstances, I conclude that Mohamed 'would have
been under'a burden to contact the Union to clear up the
ambiguity which resulted at least in part from his use of
different names. -
Had I concluded that the Union's notice to Mohamed'
was inadequate as a-result of the ambiguity caused by the
two' letters, I nevertheless would have concluded that
Mohamed was a "free rider" and thus any defect in the
Union's notice would be excused.3
The Union's letters require that Mohamed pay in'addi-
tion to his dues arrearage a "reinstatement fee." Howev-
er, the letter does riot set forth the amount of such "rein-
statement fee." A reinstatement fee is as much a financial
obligation to a union member as union dues. As. set forth'
above, a union,has a fiduciary responsibility to apprise
delinquent employees: of their financial obligations in-
cluding the exact amount due and owing. Philadelphia
Sheraton Corp.; supra; In discussing the union's duty to
advise employees of their membership obligation the
Board in Philadelphia Sheraton, supra 136 NLRB at 896
fn. 19 cited Aluminum Workers Local 135 (Metal Ware
Corp.), 112 NLRB 619 (1955), enfd. 230 F.2d 515 (7th
Cir. 1956), as follows: -
the union requested the discharge of an em-
ployee for, inter alia, failing to pay a reinstatement
fee of "not less than $15." The Board held that as
the "employee had . . no knowledge of a specific
reinstatement. fee then owing, she was not legally
obligated to pay a fee, the amount of which had
neither been determined nor brought to her atten-
tion." In enforcing the Board's Order, the court
:'stated •at 520: "Furthermore .: . she still could not
3 A discussion of Mohamed's status as a "free rider" is set forth below
determine, until a demand was made, how much she
owed by way of a reinstatement fee under a provi-
sion which stated merely that such a - fee be "not
less than $15."4
It is clear that the requirement in the Union's letters to
Mohamed that he pay a "reinstatement fee" as a condi-
tion of reinstatement as a member in good standing in
the Union does not inform him of the amount of such
fee. I therefore conclude that the Union's letter failed to
adequately inform Mohamed of his total financial obliga-
tion as required.
Counsel for the Union contends there is nothing in the
record to establish that Mohamed was unaware of what
the reinstatement fee was ,I reject this contention. The
Philadelphia Sheraton and Judson Steel Corp. line of cases
cited herein established that the union has the fiduciary
obligation of taking some positive action to notify the
employee of his financial obligation, notwithstanding his
independent knowledge thereof. To hold otherwise
would place a burden on the employee to establish that
he has no independent knowledge of his financial obliga-
tion as a condition precedent to the Union's obligation to
furnish any notice. Accordingly, I reject- counsel for the
Union's contention.
The Board in Teamsters Local 630- (Ralph's Grocery),
209 NLRB 117, 124 (1974), that:
It must be assumed . .. that the policy of the
Board was never intended to be so rigidly applied
as to permit a recalcitrant employee to profit from
his own dereliction in. complying with his obliga-
tions as a union member. . . .
A recalcitrant employee or "free rider" is defined by the
Board as an employee who is aware of his financial obli-
gation to pay union dues under the union-security provi-
sions of the union 's collective -bargaining agreement, but
willfully and deliberately seeks .to avoid such obligations.
Ralph 's Grocery , supra ; R. H. Macy & Co., 266 NLRB
858 (1983).
A case in point is Big Rivers Electric Corp., 260 NLRB
329 (1982). -There, the employee was 8 months behind in
her dues payments . In fact , as a new member she had not
made a single dues payment to the union though she was
fully aware of the union-security clause in the contract
and had been advised orally of her obligation . After per-
sistent noncompliance , the union , sent a notice letter
which the employee claimed she never received as it was
sent' to a, former address The employee's grandmother
still resided at that address and she acknowledged receipt
of the letter . The employee was informed by her grand-
mother that she had received mail from the union but
never made any effort to request that the letter be for-
warded to her, even - though, by her own testimony, it
appeared that she, at the least, had suspicions as to what
the letter contained . Given all the above, the Board des-
" The Aluminum Workers case was overruled by the Board in General
Motors Corp, 134 NLRB 1107 (1961) -However, General Motors dealt
with a different issue, the tender of union dues Further, the Board in
Philadelphia Sheraton was obviously aware of General Motors when it
cited Aluminum Workers
HELMSLEY -SPEAR , INC 271
ignated her a recalcitrant employee, excused any defect
in the union 's notice, and dismissed the complaint.
• In the instant case, Mohamed was fully aware of his
membership obligation He had been a member of the
Union since 197.8 and was aware that dues were payable
each month . By deliberately refusing to open and read
any union mail whatsoever , while fully cognizant of his
obligations and delinquency, he expressed a conscious
and willful desire to evade such membership responsibil-
ities. Mohamed therefore typifies the "free rider ," an em-
ployee who , "while content to receive the benefits of
union representation ; is unwilling to bear his fair share of
the cost thereof." Seafarers Great Lakes District (Tomlin-
son Fleet Corp.), 149 NLRB 1114 , 1119 (1964).,
Mohamed 's conduct can be contrasted to that of the
employee in R. H. Macy, supra . There, though the em-
ployee was 15 months behind in his dues payments, the
Board found no willful and deliberate attempt on his part
to avoid his obligations . Instead , the Board found that his
failure to make timely payments was due to "inattention
and neglect." Mohamed 's conscious decision not to open
or read any union mail is willful and inconsistent with
mere inattention or neglect, particularly where coupled
with his knowledge of his union-security obligations.
Given Mohamed 's practice of not opening union mail,
there is no way the Union could have provided him with
any written notice that he would have read. As the
saying goes, "You can lead a horse to water , but you
can't make him drink it." It is thus evident that had the
Union sent Mohamed a single adequate and unambiguous
-notice of his dues arrearage and reinstatement fee he
would have failed to read it . I therefore concluded that
Mohamed was a "free rider" and that the Union is ex-
cused in its failure to provide proper notice to Mohamed,
as described above.
CONCLUSIONS OF LAW
In view of my analysis and conclusions set forth and
described above, I conclude that the Union, by demand-
ing the Employer discharge its employee Mohamed be-
cause of his failure to comply with the union -security
provisions contained in the parties' collective -bargaining
agreement did not violate Section 8 (b)(1)(A) and (2) of
the Act as alleged.
[Recommended Order omitted from publication.]