I B I Security, Inc.

National Labor Relations Board - Board Decisions

Jan 23, 1989

292 N.L.R.B. 648 (N.L.R.B. 1989)

648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I B I Security , Inc and John Umstead , and Allied
International Union , Party to the Contract
I B I Security, Inc and John Umstead
Allied International Union and John Umstead Cases
29-CA-12681, 29-CA-12998, and 29-CB-6489
January 23, 1989
DECISION AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On December 30, 1987, Administrative Law
Judge Arthur A Herman issued the attached deci
sion The General Counsel filed exceptions and a
supporting brief
The National Labor Relations has delegated its
authority in this proceeding to three-member panel
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, i and
conclusions as modified and to adopt the recom-
mended Order
We agree with the judge's finding that although
the Union caused John Umstead's discharge from
I B I Security, Inc (IBI) in May 1986, it did so be
cause of Umstead's failure to pay his union initi-
ation fee, and therefore it did not violate Section
8(b)(1)(A) and (2) of the Act
John Umstead was employed by IBI in Septem
ber 1984 According to evidence credited by the
judge, the help-wanted ad that Umstead responded
to when hired by IBI contained the phrase `Union
Shop In light of Umstead's previous union mem
bership the judge concluded that Umstead under
stood what a union shop was Furthermore, it is
undisputed that Umstead was aware that there was
a union at IBI In fact, Umstead testified that
during the course of his employment, he asked a
couple of employees about joining the Union, but
was unable to ascertain how he could join the
Union
IBI's payroll supervisor, David Grossman, testi
feed that after Umstead had been employed at IBI
for about 30 days, Grossman asked him about sign-
ing a union application for membership and a dues
checkoff card Umstead informed Grossman that
he had previously been a shop steward and that he
wanted to check out this Union before joining
Grossman testified that he spoke to Umstead on
' The General Counsel has excepted to some of the judge s credibility
findings The Board s established policy is not to overrule an administra
tive law judge s credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir
1951) We have carefully examined the record and find no basis for re
verumg the findings
three or four occasions about joining the Union,
but Umstead kept saying that he would get back to
Grossman Grossman testified that he told Umstead
that it was necessary for him to join the Union and
when questioned as to what he meant by that,
Grossman stated, both the company and the
Union are in agreement that to join is necessary "
In the spring of 1986, Robert Wolff, the Union's
business representative, met with Umstead and in
formed him that IBI had a union shop and that ev
erybody was supposed to be a member of the
Union Wolff requested that Umstead sign the
dues checkoff provision, or at least fill out the
membership application and send that in to the
Union According to Umstead, Wolff told him that
the initiation fee would be $60 Wolff further told
Umstead that he "was going to send a letter to the
company in reference to finding out why [Umstead
was] still here and not a member of our union "
Although the judge did not pinpoint when Um-
stead and Wolff met, the record supports a finding
that they talked in April 1986 Both Wolff and
Harry Hendrickson, a coworker of Umstead's who
was present at the meeting, testified that the meet-
ing took place in April 1986 2 Furthermore, Mar
garet Vanson, a union employee, testified that
around the end of April, Wolff told her that he had
talked with Umstead and learned that Umstead was
not a union member According to Vanson, Wolff
asked her to inquire into the matter, which she did
by contacting IBI at the beginning of May
It is apparent from the above that by the end of
April Umstead and Wolff had met and discussed
Umstead's status During their meeting, Wolff in
formed Umstead of the need for him to join the
Union, his obligation to pay an initiation fee, the
amount of that fee, and the consequences of Um
stead's failure to do so 3 When Umstead failed to
act within the next month, the Union proceeded to
seek his discharge
2 Although Umstead testified that the conversation took place in May
the judge neither credited nor discredited his testimony Wolff testified
that there were two meetings between Umstead and himself however he
placed both meetings in April
S Our dissenting colleague asserts that Wolff's statement that he would
have to send IBI a letter to find out why Umstead was still there when
he was not a member of the Union was too ambiguous to sufficiently ap
prise Umstead of the consequences that could flow from his failure to
join the Union We disagree As the judge found Umstead had been a
union member before he knew what a union shop was he had discussed
the Union with various fellow employees and he had been specifically
told by Grossman that it was necessary to join the Union In light of Um
stead s familiarity with the Union we think Umstead clearly understood
Wolff's statement to mean that the Union would seek Umstead s dis
charge if he did not join the Union Although Wolff chose a rather collo
quial expression in informing Umstead of the consequences of failing to
join the Union we find that that expression did fully apprise Umstead of
the ramifications of his failure to fulfill his union obligations
292 NLRB No 64
I B I SECURITY
It is settled law that prior to seeking the dis-
charge of an employee for failure to pay dues or
fees, a union must inform the employee of the
amount owed, the method used to compute that
amount, when such payments are to be made, and
the fact that discharge will result from failure to
pay See Philadelphia Sheraton Corp, 136 NLRB
888 (1962), enfd sub nom NLRB v Hotel Employ-
ees Local 568, 320 F 2d 254 (3d Cir 1963) Al-
though the record does not establish that Wolff in-
formed Umstead of a specific time period within
which the initiation fee had to be paid, we find that
this does not preclude us from finding that the
Union fulfilled its fiduciary obligation The record
shows that after Wolff informed Umstead of the
need to pay the initiation fee, the amount of that
fee, and that discharge would result from failure to
pay, the Union gave Umstead ample time to tender
payment Umstead, however, never made any at-
tempt to comply until after he was discharged
Under these circumstances, we find that the Union
did not breach its fiduciary responsibilities, but,
rather, adequately notified Umstead of his obliga
tions
Moreover, even if the Union did not fully
comply with its fiduciary obligation, the Board
never intended these requirements ` to be so rigidly
applied as to permit a recalcitrant employee to
profit from his own dereliction in complying with
his obligations as a union member" Teamsters Local
630 (Ralph's Grocery), 209 NLRB 117, 124 (1974)
Rather, these requirements were established to
ensure that "a reasonable employee will not fail to
meet his obligation through ignorance or inadvert
ence, but will do so only as a matter of conscious
choice "4 Thus, the Board will excuse a union's
failure to fully comply with the notice require-
ments when it is shown that the employee involved
has `wilfully and deliberately sought to evade his
union security obligations 5
As the judge found, Umstead was well aware of
his union dues obligation from early on in his em
ployment at IBI Umstead, however, resisted join
ing the Union and procrastinated until the Union
had no alternative but to seek his dismissal In
these circumstances, we find that Umstead con-
sciously chose not to fulfill his union security obli-
gations until it was too late Thus, even if the
Union had not fully complied with the notice re
quirements set forth in Philadelphia Sheraton, supra,
we would find no violation because Umstead will-
fully evaded his union responsibilities
4 Valley Cabinet & Mfg 253 NLRB 98 108 (1980)
5 Teamsters Local 630 supra at 125 See also Big Rivers Electric Corp
260 NLRB 329 (1982)
649
Therefore, we find that the Union legitimately
requested Umstead's discharge and consequently
did not violate Section 8(b)(1)(A) and (2) as alleged
in the complaint
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and the complaint is dismissed
MEMBER CRACRAFT, dissenting in part
Contrary to my colleagues and the judge, I find
that the Respondent, Allied International Union,
violated Section 8(b)(1)(A) and (2) of the Act by
causing the first discharge of employee Umstead
for failing to pay dues as required under its union
security agreement with I B I Security, Inc 1
The Board has long held that a union seeking to
enforce a union-security provision against an em
ployee has a fiduciary obligation to deal fairly with
that employee 2 Thus the Board requires a union to
inform the employee of the nature and extent of his
membership obligations, including any dues paying
requirements, and to notify the employee that
unless those obligations are satisfied by a certain
date, it would request his discharge 3 In the ab-
sence of such a showing by the Union, "the mdi
vidual's rights must be held paramount and protect
ed "4 I believe, under the facts of this case, that the
General Counsel has established that Umstead did
not receive sufficient notice of his obligations
under the union security clause or of the ramifica-
tions of failing to fulfill those obligations
Union Business Representative Wolff's testimony
reveals that in April 1986, some 17 months after
Umstead was hired by I B I Secunty,5 Wolff met
and talked with Umstead for the first time since
Umstead had been employed at I B I and identified
himself as being from the Union Umstead then
questioned Wolff about the Union and the contract
Wolff asked Umstead if he had an "ID" card and
whether he was a member of the Union Umstead
replied no to both questions On learning that Um-
' However I agree with my colleagues that I B I Security did not vio
late Sec 8(a)(3) and (1) by discharging Umstead pursuant to the Union s
request as it had no reasonable basis for believing that the Union s request
was unlawful See R H Macy & Co 266 NLRB 858 (1983) Valley Cabi
net & Mfg 253 NLRB 98 (1980 ) I also agree with their finding that Um
stead s second discharge in April 1987 for insubordination was not unlaw
ful
2 Iron Workers Local 378 (Judson Steel) 192 NLRB 1069 1074 (1971)
Teamsters Local 270 (Bulk Transport) 186 NLRB 299 301 (1970) Phila
delphia Sheraton Corp 136 NLRB 888 (1962) enfd sub nom NLRB v
Hotel Employees Local 568 320 F 2d 254 258 (3d Cir 1963)
a Distillery Workers Local 38 (Schenley Distillers) 242 NLRB 370
(1979) Teamsters Local 270 186 NLRB at 301
4 Iron Workers Local 378 192 NLRB at 1075
5 Wolff first met Umstead in March 1986 but did not speak with him at
that time
650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
stead had been working at I B I Security for
almost 2 years, Wolff commented, "Where have
you been?" He then handed Umstead a two part
membership application,6 and stated that he would
appreciate Umstead signing the card, that the
Union would mail him all the required literature,
but that he had to be a member of the Union
When Umstead expressed an interest in learning
more about the Union, Wolff provided Umstead
with a copy of the "highlights" of the contract that
outlined only the benefits received by employees
under the contract, but made no mention of their
membership and dues obligations 7
In a second April meeting, Wolff reminded Um-
stead that he had not yet joined the Union, ex
plained the benefits available to employees under
the contract, and, as noted , handed him part I of
the membership card, instructing him to fill it out
and mail it to the Union Wolff then told Umstead
that Wolff "was going to send a letter to the com
pany in reference to finding out why [Umstead
was] still here and not a member of our union "
Wolff testified that he also told Umstead that em
ployees had 30 days in which to join the Union,
followed by a probationary period According to
Umstead, he was told by Wolff, and later by Peggy
Vanson, a union secretary, that the initiation fee
was $60 8 There is no evidence to suggest that Um
stead was informed that under the contract he
could be fired if he did not join the Union
Wolff's testimony, as noted, indicates only that
he told Umstead that he was going to send a letter
to Umstead's employer to find out why he "was
still here and not a member of our union " This
remark is too ambiguous to sufficiently apprise
Umstead of the consequences that could flow from
his failure to pay dues or an initiation fee by a
specified date Similarly, Vanson's testimony, even
if Vanson were considered to be an agent of the
Union, contains nothing that can be construed as
6 One part of the membership application (part I) simply stated that the
signer was applying for membership and authorized the Union to repre
sent the signer for collective bargaining purposes It provided space for
the signer s name address and other relevant data The second part of
the application (part II ) described the signer s membership obligation in
cluding a statement that the initiation fee for new members was $65 plus
1 months fee of $10 in advance for an initial total of $75 It is unclear
from the record whether Umstead took the card handed to him at that
time by Wolff However at a subsequent meeting in April Wolff gave
Umstead only part I of the membership card that the latter accepted
7 Umstead had previously received the same highlights of the con
tract in March 1986 from acting shop steward Hendrickson There is ro
record evidence to indicate that Hendrickson informed Umstead of his
dues obligation under the contract when he gave Umstead the high
lights of the agreement
9 Umstead s conversation with Vanson occurred in early May In that
conversation Vanson told Umstead that when someone is hired by I B I
Security he or she has to join the Union after completing 30 days of em
ployment She then told Umstead to deal only with her that she would
take care of everything and that she would send him a membership card
to sign in case he did not have one
notification to Umstead that he risked discharge
unless he joined the Union and forwarded the re
quired fees and dues Finally, as noted, Umstead
was never given a copy of the Union's contract
with I B I Security, which might have placed him
on notice of the existence of the union security
provision Instead, he received from Wolff only a
summary of the benefits available to employees
under the contract
Because of the above testimony and as it is clear
that Umstead was not given a particular date in
which to satisfy his membership obligations, I find
that the Respondent Union breached its fiduciary
obligation to Umstead by requesting his discharge
without first adequately notifying him of, and
giving him an opportunity to comply with, his
union-security obligations The fact that Umstead
may have known that other employees of I B I Se
curity were members of the Union, or that he pre
sumably had some knowledge of union membership
from some previous employment, or that he had
been advised by I B I Security that he had to join
the Union did not relieve the Respondent Union of
its duty to fully advise Umstead of his membership
obligations and the ramifications of the failure to
abide by these obligations 9 For this reason I find,
contrary to my colleagues and the judge, that the
Respondent Union violated Section 8(b)(1)(A) and
(2) of the Act when it requested Umstead's dis-
charge 10 In all other respects, I agree with my
colleagues' findings
9 Iron Workers Local 378 192 NLRB at 1074 1075
1s I agree with my col'eagues that the Board never intended a union s
fiduciary obligation to be so rigidly construed as to permit a recalcitrant
employee to profit from his own dereliction in complying with his obli
gations as a union member Teamsters Local 630 (Ralph s Grocery) 209
NLRB 117 124 (1974) However I disagree with my colleagues conclu
sion that Umstead willfully evaded his union responsibilities thus excus
mg any infirmities in the Respondents notice to him I do not find that
Umstead s actions rise to the level of recalcitrance or willful evasion
which the Board has previously found excuses a union s fiduciary duty
In Ralph s Grocery no violation of the Act was found when the union
requested the discharge of employee Kelley even though it did not di
rectly inform him of his obligations The Board relied on the fact that
Kelley a longstanding member of a sister local knew that he was re
quired to deposit the sister local s withdrawal card with the union on at
taming employment with the employer Kelley also received a copy of
the contract knew of its union security provision sought benefits under
the contract while claiming that the contract was not binding on him
and demonstrated knowledge of his union security obligations by assert
ing that his union dues should have been checked off from his wages
Further Kelley was afforded an opportunity to meet his dues delinquen
cy in installment payments after the union requested his discharge He de
clined this offer In Big Rivers Electric Corp 260 NLRB 329 (1982) the
Board found that any infirmities in a written notice sent to employee
Melton were excused by her recalcitrance in light of the judge s finding
that the employee was repeatedly warned orally about the consequences
of failing to meet her obligations
Beatrice Kornbluh Esq for the General Counsel
John C Mallon Esq for I B I Security, Inc
I B I SECURITY
Gerald V Dandeneau Esq, for Allied International
Union
DECISION
STATEMENT OF THE CASE
ARTHUR A HERMAN, Administrative Law Judge On
15 October 1986, John Umstead, filed charges against
IBI Security Inc (the Employer or IBI) in Case 29-
CA-12681, and against Allied International Union (the
Union) in Case 29-CB-6489 Based on those charges, a
consolidated complaint issued on 28 November 1986 al
leging (1) an unlawful discharge of Umstead by the Em
ployer caused by the Union s unlawful request that the
Employer discharge him, (2) an unlawful refusal by the
Union to provide Umstead with a copy of the collective
bargaining agreement in effect between the Employer
and the Union, and (3) the failure of the Union to repre
sent Umstead regarding his discharge and claim for back
pay After reinstatement, and specifically on 20 April
1987, Umstead filed a charge in Case 29-CA-12998 al
leging a further unlawful discharge by the Employer be
cause he engaged in protected concerted activity and be
cause he filed charges under the Act On 25 June 1987,
an order further consolidating cases consolidated com
plaint, and notice of hearing issued reiterating the allega
tions listed above, with the additional allegation that the
Employer discharged Umstead on 13 April 1987 because
he filed charges in Cases 29-CA-12681 and 29-CB-6489
The General Counsel contends that the Employer violat
ed Section 8(a)(1) (2) (3), and (4) of the Act, and that
the Union violated Section 8(b)(1)(A) and (2) of the Act
In their separate duly filed answers, the Employer and
the Union deny the commission of any unfair labor prac
tices
This case was tried before me in Brooklyn New York,
on 11 August 1987 and in New York, New York on 12-
13 August 1987 At the trial all parties were given a full
opportunity to participate, and subsequently all parties
filed briefs On the entire record in the case and from
my observation of the witnesses and their demeanor
while testifying under oath and after careful consider
ation of the briefs I make the following
FINDINGS OF FACT
I JURISDICTION OF THE RESPONDENT EMPLOYER
I B I Security, Inc a New York corporation is en
gaged in providing armored courier and related services
for various banking financial, and commercial institu
tions During the past year, the Employer performed
services valued in excess of $50 000 for various enter
prises located in New York and Connecticut each of
which enterprises is directly engaged in interstate com
merce and meets a Board standard for the assertion of ju
risdiction Based on those facts which the Employer
does not deny I find that the Employer has been at all
times material, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act
II LABOR ORGANIZATION
651
The consolidated complaint alleges , neither the Em
ployer nor the Union denies and I find that Allied Inter
national Union is, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A The 27 May 1986 Termination
The record shows that I B I Security and Allied Inter
national Union have maintained a collective bargaining
relationship for many years with the Union representing
all of IBI s employees, and Armored Carrier Division
Captains and Couriers and Transfer agents and assistant
transfer agents i John Umstead was hired by IBI on 22
September 1984 and worked as a driver and helper2 in
IBI s armored carrier division The pickup man obtains
his own gun permit from the civil authorities and then is
issued a handgun by the Employer In addition, each ar
mored truck is equipped with a 12 gauge shotgun The
driver of the armored vehicle drives to the various stops
on the route, and the pickup man picks up the customers
deposits for delivery to a bank or retains it in the vehi
cle's safe until the vehicle comes back to IBI s terminal,
for safekeeping During May 1986, Umstead worked as a
pickup man on IBI s trucks
Umstead testified that from the time he was hired in
1984 through April 1986, there was no union shop stew
and on IBI s premises and that he was never asked by
anyone to join the Union 3 However when shown his
own affidavit4 on cross examination Umstead admitted
that in 1985 he knew there was a union at IBI and he
asked Dennis Davis how to go about joining the Union
He also asked an employee, Said how he could get in
touch with the Union Although Davis told Umstead
that he was a union member and paying dues neither
Davis nor Said could tell him how to join the Union He
also admitted that at some time either in March or April
1986 he approached a coworker whom he knew as
Harry,5 and asked him about the Union Harry gave him
a copy of a letter dated 11 March 1986 addressed to the
Union and signed Members and Employees of IBI in
which the members petition the Union to call a meeting
for the purpose of electing a shop steward noting that
there has not been a shop steward for at least 3 months
And Harry said to Umstead Well we re getting some
thing started
Umstead further testified that on a day sometime be
tween 9 and 13 May 1986, he was introduced to Robert
Wolff6 by Hendrickson who told him that Wolff is the
i G C Exh 8 This 3 year collective bargaining agreement was in
effect from 2 February 1984 to 1 February 1987 and contains a valid
union security clause
2 Also referred to as a pickup man
a On cross examination Umstead admitted that the Employers help
wanted ad that he responded to in 1984 contained a phrase Union
Shop but that he did not know what the phrase meant
* Party to the Contract Exh 1
5 I presume this to be Harry Hendrickson
e Wolff testified at the hearing and identified himself as Robert Ray
mond Wolff secretary treasurer and business representative for Allied
International Union
652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
man from the Union Umstead says he replied It s
about time, but told Wolff he could not stand around to
talk because he had to go out on his route He said he
would see Wolff later
According to Umstead the next time he saw Wolff
was 15 May 1986 Wolff, dressed in a New York City
Sanitation Department uniform was standing outside
IBI s locker room entrance talking to some employees,
when Umstead approached him Wolff asked Umstead if
he was a member of the Union Umstead said No
Wolff asked him how long he had been working for IBI
and Umstead told him Then, Umstead asked Wolff if he
was from the Union, and Wolff told him he was an exec
utive member Wolff than asked Umstead to sign a union
membership card 7 Umstead asked Wolff, What did the
Union offer? Wolff replied, I cannot tell you until you
sign this card I cannot talk to you until you sign this
card Umstead then asked to see the union contract but
Wolff refused because Umstead did not sign the card In
response to a question by the General Counsel Umstead
could not recall whether Wolff gave him a deadline for
submitting the signed authorization card And when
asked by the General Counsel if Wolff told him what the
initiation fee would be, Umstead at first could not recall,
but when the General Counsel refreshed his recollection
Umstead said that Wolff told him it was $60
Hendrickson testified that he was present at this con
versation and confirms Umstead s testimony, but he con
tends that the conversation took place some time in
April, not May
Wolff testified that after he received Hendrickson s
letter to the Union in March 1986 he came to IBI s
premises in March and asked Hendrickson to be the tern
porary shop steward Wolff gave Hendrickson some
membership cards for those employees who had not
signed up with the Union some copies of the Union s
medical plan, and some copies of the highlights of the
existing contract between IBI and the Union a Wolff
says he first met Umstead at the end of March 1986, but
did not have a conversation with him On 11 April 1986
Wolff met again with Umstead and asked him to sign a
membership card Umstead inquired about the Union,
and Wolff claims he tried to explain to Umstead that IBI
had a contract with the Union he gave Umstead a copy
of the highlights and then told him he had to join the
Union According to Wolff, the two men met again later
in April and Wolff reminded Umstead that he still had
not signed up with the Union Umstead kept hedging and
inquiring about the Union At this point Wolff tore the
card in half and handed G C Exh 2(b) (the membership
portion) to Umstead he told Umstead to fill it out and
mail it to the Union Wolff told Umstead that if he failed
7 G C Exh 2(b) Wolff had torn off the other half of the card which
pertained to authorization to deduct dues for the Union See G C Exh
2A
8 See G C Exh 7 Hendrickson testified that in April 1986 he gave
Umstead a copy of the highlights to read After reading the highlights
Umstead returned it to Hendrickson Hendrickson places this incident in
April because he states that it took place about I month before a new
shop steward Livingston Lovely was elected by the membership on 15
May 1986
to do so, the Union would have to send a letter to IBI
advising IBI of Umstead s union status
As of 15 May 1986 Umstead did not sign a union
membership card, and so the Union sent IBI a letter,
dated 15 May 1986 advising IBI that Umstead although
employed for over a year had not yet joined the Union 9
It asked IBI to check into this matter reminding IBI of
the existing union security clause in the contract 10
The next day 16 May 1986 while Umstead was out
on his route he received a message to call IBI s payroll
supervisor David Grossman At his next stop Umstead
called Grossman and according to Umstead Grossman
asked him, What are you doing giving the Union a hard
time9' Umstead denied it and told Grossman that he in
tended to call the union office Umstead testified that
Grossman had never previously given him a union apple
cation card nor had Grossman ever talked to him about
joining the Union
Grossman testified that as part of his duties, he proc
esses union checkoff of dues by notifying new employees
that after 30 days of employment they are required to
join the Union Grossman stated that he first approached
Umstead in 1984 after Umstead worked for IBI more
than 30 days and asked him about siging a union applica
tion for membership and a dues checkoff card Umstead
told Grossman that he had been a shop steward at a pre
vious job and that he wanted to check out this union
Grossman said he spoke to Umstead on three or four oc
casions after that but Umstead kept putting him off Fi
nally in April 1986 after the Union had contacted IBI
about Umstead s union status Grossman called Umstead
again , and again Umstead said he would get back to
Grossman
Umstead testified that on 20 May 1986, he called the
union office spoke to Peggy (Margaret Vanson) told
her that he spoke to Wolff on 15 May that Wolff re
fused to tell Umstead the union benefits, and that he was
calling her to get that information According to Um
stead, Peggy asked him when he started to work for IBI
and then she enumerated the union benefits She then
told Umstead to fill out the card he had and send it to
her When Umstead told her he only had half of the
card she offered to send him the whole card and she
told him that he had 30 days to make up his mind about
joining the Union Umstead told Peggy that he heard
that a Mr Lovely had been elected shop steward and he
assured her that he would get a complete card from
Lovely and he would sign it and return it to her in time
Peggy testified that around the end of April, Wolff
told her that he had been to IBI and found out that Um
stead a long time employee had not joined the Union
and he asked her to check it out She verified the fact by
her remittance sheets and called IBI in the beginning of
May to check on it Peggy then got a call from Umstead
just a couple of days later, who told her he did not join
the Union because he did not like unions and unions
8 Party to the Contract Exh 4
1' In response to my question to Wolff whether the Union at any time
in March April or May 1986 sent Umstead a letter advising him of the
necessity of his becoming a member of the Union Wolff responded nega
tively
I B I SECURITY
could not do anything for him Peggy listed many of the
benefits the Union offered and as a result, Umstead told
her he would sign up
According to Umstead, he did obtain a complete card
from Lovely he filled it out and together with a $60
check he sent it to the Union on Tuesday 27 May
1986 11 Umstead stated that on his way to work that
Tuesday morning, he dropped the letter into a mailbox in
front of a post office Umstead claims that he sent the
letter to the Union by regular first class mail
On cross examination counsel for the Union intro
duced into evidence the envelope that accompanied the
letter 12 Umstead acknowledged that both the named ad
dressee (Allied International Union, 275 Warnon Ave
Roslyn Hts , NY 11577) and the return address (J R
Umstead, 592 Bainbridgest Brooklyn N Y 11233) were
written by Umstead The face of the envelope bears a
printed 22 cents U S stamp and affixed to the envelope
is a $2 95 US postage meter stamp dated May 27 86,
out of a Brooklyn New York, US P S In addition
there are two Special Delivery prints stamped on the
envelope and a stamped face of a clock showing the en
velope having been received in Roslyn Heights at 6 30
am on May 28 1986 By way of explanation Umstead
testified that there have been times I ve gone to the
post office and gotten special delivery letters and did not
send them that particular day 13
Thomas A Clare IBI s chairman of the board and
chief executive officer testified that in or about May
1986, he received a call from either Edward Benvenuto
the Unions president or a Mr Bachman 14 informing
IBI that Umstead had not joined the Union and that
pursuant to the contract Umstead had to join or be let
go Clare states that he passed the information on to the
administrator of the Long Island City office Andy
loannu telling him that Umstead had to either sign the
application to join or else he had to be terminated
When Umstead arnved at work that Tuesday, 27 May
1986, he was terminated
On 2 June 1986 the Union sent Umstead a letter, en
closing his check and application for membership, in
forming him that they could not process his application
because it had arrived after he was terminated by IBI 15
On 3 June 1986 Umstead filed an unfair labor practice
charge with Region 29 in Case 29-CA-12452 On or
about 6 June 1986, Umstead received a call from Lovely
telling him to come back to work the next day When
Umstead returned the next day, he met with Clare and
Clare gave the order to go back to work Because of the
necessary paperwork, which delayed his returning to the
i i Monday 26 May 1986 was Memorial Day and Umstead did not
work that day
12 Party to the Contract Exh 3
13 In light of the fact that this envelope bore a postage meter stamp
dated May 27 86 I do not credit Umstead s explanation nor do I
credit his statement that he sent the letter regular first class mail and de
posited it in a mailbox I find that Umstead went to work that Tuesday
morning found out that he had been terminated and then decided to
send his union application in he then went to the post office and mailed
the letter by special delivery
14 I presume that Bachman is a union officer although the record does
not say he is
15 G C Exh 6A
653
job, Umstead did not actually start work until either 10
or 11 June 1986 And when he returned, his route had
been changed 16 On 9 June 1986 Umstead withdrew his
charge in Case 29-CA-12452
B The 13 April 1987 Discharge
Shortly after Umstead returned to work in June 1986,
Lovely the shop steward gave him a union application
for membership card and attached a dues deduction au
thorization card Umstead signed both cards and re
turned them to Lovely At the same time Umstead made
several attempts to get paid for the 2 weeks that he was
out of work, but IBI refused to pay him 17 He spoke to
Lovely on several occasions, but to no avail Finally he
contacted the Union directly He spoke to Peggy on the
phone but that did not help and he wrote a letter to
Benvenuto on 4 September 1986 requesting to be repre
sented in this matter, but nothing was done on his behalf
And so, on 15 October 1986 Umstead filed the initial
two charges in this proceeding, which resulted in the is
suance of a consolidated complaint on 28 November
1986 The hearing date as stated in the complaint was 4
March 1987 On 10 February 1987 counsel for the
Union requested an adjournment and the hearing was
adjourned to 3 June 1987
On Saturday, 11 April 1987 Umstead was sent out on
a route as the pickup man on the armored truck Mike
Riccione was the driver One of the stops that day was
at Dan s Supreme #32 a supermarket The armored
truck #357 pulled up in front of the store and Umstead
went into the store 18 While he and the store manager
were conversing, one of the store s stockboys reported to
them that there was a strange vehicle in the back of the
parking lot and that a person appeared to be taking pic
tures of the armored truck Umstead states that he was
reminded of a prior incident that occurred in September
1986 at the Motor Vehicle Bureau (lust 5 minutes away
from Dan s) when he had to shoot his way out of a rob
bery attempt And so he picked up the money bags at
Dan s had his gun out of the holster, and deposited the
money in the armored truck Umstead told Riccione
what the stockboy had said he put his gun back in the
holster and proceeded to walk to the suspicious vehicle
telling Riccione to keep his eyes on him 19 Riccione con
I6 This is alleged by the General Counsel to be a violation The facts
are that when Umstead was terminated in May he had to return his
handgun When he was rehired in June it took until July to get him his
handgun And so from June to July he worked as a driver rather than a
pickup man Drivers were paid $2 05 per hour pickup men got $2 85 per
hour After obtaining the handgun Umstead continued his duties as a
driver but on Saturdays he would substitute as a pickup man or when
his regular pickup man was out As it turned out his weekly paycheck
was greater as a driver but that was because his new route had more
stops
17 Umstead had alternating conversations about the backpay through
September 1986 with Michael Goun IBI s assistant vice president of its
armored carrier division and John Mallon IBI s counsel but both made
it clear to him that they would not pay wages for work not performed
19 Umstead stated that because they had arrived early for the pickup
Riccione first drove the truck to the rear of the parking lot where they
both had lunch and Umstead did some paperwork in the truck Riccione
then drove the truck to the door of the supermarket
19 According to Umstead the armored truck was equipped with large
outside mirrors that have the ability to pull objects closer to the viewer
Continued
654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
firmed that he could see the right side of the suspicious
vehicle As Umstead got fairly close to the vehicle, he
recognized the individual as Martin Gladstone, IBI s se
curity officer According to Umstead he walked over to
the vehicle and said Oh, it s you, what are you doing
here? Gladstone responded, You don't have enough
work to keep you busy9' Umstead then saw the camera,
which to him looked like a machinegun , and he said,
Oh, so it's you and not the insurance company that s
taking pictures' 20 Umstead continued
Well, what are you taking my picture for?
What-what-what did I do? You know, this is-
this-this is very dangerous, you-you know, doing
this You could cause somebody to get hurt or you
could get hurt yourself This make no sense
And I did make the statement that I'm a black
man and you re a black man , what are you-what
are you taking my pictures for?
Q Yes
A And he just laughed They sit there and
laughed, with a smile that he had on his face too
Q Yes
A And I say Okay, I don t want you doing this
no more Don't follow me around no more today
because it's very dangerous, somebody could get
hurt
I left, walked back to the truck
Umstead stated that he then told Riccione to wait while
he phoned the police department to get them to stop
Gladstone from following him around But there was no
public phone in the supermarket and so Umstead walked
all around the area looking for a phone but to no
avail 21 He came back to the armored truck and noticed
that Gladstone had driven up to about 15 feet from the
truck, and Umstead said , Mr Gladstone look, don t do
this Its dangerous don't follow me around no more I
don t want it 22 Umstead and Riccione then left the
scene for the next stop Gladstone followed for a short
distance and then left
Riccione testified that when they arrived at Dan s #32
he drove the armored truck right up to the door of the
supermarket 23 Because it was too early for the pickup,
they stayed in the truck and Umstead did some paper
work Then Umstead made the pickup and returned to
the truck with the money telling Riccione that there
was somebody in the back of the parking lot that was
following them and he was going to check it out Ac
cording to Riccione Umstead walked towards a green
Also a viewer seated in the truck could see right out the back of the
vehicle because it had an open bay
20 The evidence established that IBI held several meetings with its em
ployees devoted to stressing security precautions while on the job and
telling the employees that they will be watched with pictures taken to
show mistakes that employees are prone to make
21 When asked on cross examination why he did not ask the store man
ager to use his office phone Umstead had no response
22 Umstead claims he tried calling the office on the truck radio to tell
them to get Gladstone off of my back but he is sure that the radio was
not working
23 His affidavit states that they first parked in the loading area and
then pulled up near the store door after Umstead completed his paper
work See R Exh l1
station wagon , parked about 100-150 feet away On
cross examination, Riccione admitted that when he saw
the station wagon he assumed it was Gladstone although
he could not see Gladstone seated in the car On that as
sumption, Riccione saw no reason to call his office or
the police because there was no emergency Riccione,
however, continued to watch Umstead Riccione saw
Umstead lean into the car on the passenger side and talk
to Gladstone According to Riccione, he could not hear
what they were saying, but he could see that Umstead s
gun was in its holster After about 5 minutes Umstead re
turned to the armored truck and told Riccione he was
going to make a phone call Before Umstead returned,
Gladstone drove up within 10-15 feet of the armored
truck, and when Umstead returned and was inside the
truck with the door open, Riccione heard Umstead say
to Gladstone
Stop following this vehicle otherwise I in calling
the office, I in not working anymore You have no
reason to follow this vehicle, no reason to try to
find any fault with me or anything like that, and
stop following this vehicle otherwise I in not going
to work for the rest of the day
According to Riccione, Umstead then closed the door,
and they drove off
Gladstone s version of the incident is quite different 24
He arrived at the parking lot before the armored truck
He then saw the truck drive in and park in the middle of
the lot He videotaped the truck and noted that the
driver and the courier remained in the truck for 1 hour
The truck then moved up to the entrance of the store
and Gladstone changed his position so that he was about
75 yards from the truck and could get a good view of it
Gladstone saw a person get out of the truck and walk in
his direction Gladstone testified
He came over to me and he walked to the side of
the car took out his gun and said you black moth
erfucker you re the one taking all the pictures and
giving them We are all black alike and you re
spying on us I am going to blow your motherfuck
ing brains out, and I dare you to use that camera on
my activities
Your Honor the man was agitated and shaking I
was sitting like this and the aim was at my head I
didn t wink an eyelash because by even moving he
might squeeze the trigger so I remained quiet until
he holstered his gun and walked away Then I came
out of the car and I videotaped him again going
into the truck
He went in the truck and then entered the store
A I drove up to the armored truck and parked
alongside, since I know [sic] observed and I was ac
cused and now I am going to see what this guy is
really up to because he knows I work for the com
pany he knows what I am doing so why he was in
24SeeGC Exh 10
IBI SECURITY 655
that condition, so now I want to see what he was
up to, and I parked and waited until he come from
the store
Q All right now, how long was he in the store?
A Fifteen minutes, twenty minutes
Q Then what happened9
A When he came back he opened the door, his
partner opened the door and he went on the run
ning board of the engine and he gave the guy the
money and he stood up and said, I warned you you
black motherfucker, if you follow me from this
spot, you are a dead black motherfucker Every
body gathered around, so I said to him you are
going to lose your gun my friend He jumped in the
truck and he drove on
Gladstone testified that when Umstead was standing on
the running board, he was between Gladstone and Ric
crone, who was seated behind the wheel When asked by
counsel what he observed Riccione doing, Gladstone re
plied
He was inside there and he said to me, Gladstone,
you are going to get it, and he had a shotgun, a
palm shotgun, and he clicked it like this, but I knew
it was empty, he was only jesting because of this
guy's behavior 25
According to Gladstone, he then followed the ar
mored truck out of the parking lot for a few blocks, and
advised the central office on the radio what happened
He also called Gene Reed the assistant vice president
related the incident to him and told him that he was
going to notify the police Reed advised against it and
told Gladstone that management would handle it On
Monday 13 April 1987 Gladstone handed in his report
of the incident and later that morning Umstead was dis
charged
Umstead filed a grievance with the Union, and about a
week after the discharge, there was a meeting attended
by Umstead, Lovely Goun, and Elvin Boston a business
representative for the Union IBI stuck by its decision
and Boston told Goun that the Union would submit the
matter to arbitration On 20 April 1987 Umstead filed an
unfair labor practice charge in Case 29-CA-12998, and
on 25 June 1987 the Region issued an order further con
sohdatmg cases adding additional allegations of viola
tions of Section 8(a)(3) and (4) of the Act
At the instant hearing, counsel for IBI moved to defer
the second discharge because of the pendency of the ar
bitration The General Counsel opposed the motion to
defer Inasmuch as it is alleged that the second discharge
occurred as a result of Umstead availing himself of the
Board processes i e , an 8(a)(4) violation it is incumbent
on the Board to retain jurisdiction, and thus IBI s motion
is denied
25 Riccione denies doing anything with the shotgun
C Analysis and Conclusions
1 Umstead's first discharge-May 1986
The General Counsel contends that Umstead s initial
discharge in May 1986 was caused by the Union for rea
sons other than Umstead s failure to pay dues as required
by the union security clause in the contract The General
Counsel maintains that the Union's insistence that Um
stead sign a membership application card constituted a
violation of the Act And the General Counsel cites Her
shey Foods Corp, 207 NLRB 897 (1973), for its prece
dent In Hershey, however, the union was found to have
caused the discharge of an employee who had resigned
his union membership but continued to tender to the
Union an amount equal to the dues In the instant case,
Umstead never made a tender offer of any kind Al
though it is true that the Act does not compel full union
membership in a `union shop, there is nevertheless a re
quirement that the employee pay dues or its equivalent
to retain his employment As the Supreme Court charac
terized the requirement, membership as a condition of
employment is whittled down to its financial core "
NLRB v General Motors Corp, 373 U S 734, 742 (1963)
The record evidence in this case reveals that since
September 1984 until his discharge in May 1986 Umstead
had been employed by IBI From the time he was hired
to 15 May 1986, Umstead was made aware of the fact,
on at least six or seven different occasions, that IBI s em
ployees were covered by a collective bargaining agree
ment containing, inter alia a union security clause requir
ing that, as a condition of employment all unit employ
ees had to become members of the Union within 30 days
of employment These occasions can be pinpointed as
follows (1) Umstead was aware that the help wanted ad
that he responded to when hired contained the phrase
Union Shop' ,26 (2) Umstead s affidavit refers to four
separate occasions in 1985 when he had conversations
with other employees namely, Davis, Said Rimalwee,
and Riccione, who told him that they were paying union
dues 27 (3) Umstead testified about his conversation with
Hendrickson in March or April 1986 in which Hen
drickson gave Umstead a copy of a letter addressed to
the Union (4) Grossman IBI s payroll supervisor credi
bly testified that he spoke to Umstead on several occa
sions since 1984 urging him to sign up with the Union
and (5) Hendrickson testified that in April 1986 he gave
Umstead a copy of the highlights of the union contract
Despite all this Umstead continued to resist Even as
he relates his conversation with Wolff on 15 May 1986
he admits that Wolff told him the initiation fee was $60
And again in his conversation with Peggy on 20 May
1986, he states that Peggy enumerated the union benefits
to him and told him to submit his membership applica
26 I do not credit Umstead when he said that he did not know what
the phrase meant The record establishes in fact that Umstead had an
extensive scholastic background and previously worked for a firm that
was forced out of business because of adverse union activity at a suppli
er s plant In addition Umstead attempted to show throughout his testi
mony that he was the one who was interested in finding out about a
union at the shop
27 See Party to the Contract Exh I
656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion card to the union office However Umstead contin
ued to procrastinate Finally the Union had no alterna
tive but to advise IBI that one of their employees Urn
stead, had been employed for over a year and had not
yet joined the Union As Clare testified, IBI verified the
information and pursuant to the Union s request, termi
nated Umstead on 27 May 1986
The Board has long held that a union has an absolute
fiduciary duty to inform unit employees of their obliga
tions under a valid union security agreement, including
the correct particulars of any obligations due and owing
and the consequences of noncompliance, and to afford a
reasonable opportunity to comply before invoking a re
quest for discharge for noncompliance Philadelphia Sher
aton Corp 136 NLRB 888 (1962), enfd sub nom NLRB
v Hotel Employees Local 586, 320 F 2d 254 (3d Cir
1963) It is my belief that the Union fulfilled all its obli
gations to Umstead told him what the payment was, and
afforded him ample time to comply I can only conclude
that Umstead sought to avoid his legitimate dues obliga
tions
Under all the circumstances, I find that although the
Union caused Umstead's discharge, it did so because of
Umstead's failure to pay dues, and therefore it did not
violate Section 8(b)(1)(A) and (2) of the Act as alleged in
the complaint As stated in footnote 14 supra Umstead s
tender of dues after his discharge was untimely and
therefore unacceptable And since IBI had no reasonable
cause to believe that the Union s request for Umstead s
discharge was invalid, I find that IBI did not violate Sec
tion 8(a)(3) and (1) of the Act
2 Umstead s second discharge-April 1987
As the record states Umstead was rehired by IBI 2
weeks after his first discharge He attempted to recover
the lost wages for the 2 weeks he was out of work, but
IBI refused to pay him and there is no evidence to show
that the Union aided him in his quest 28 This action or
inaction by the Employer and Union however prompt
ed Umstead to file the October 1986 charges with the
Board which resulted in the issuance of a consolidated
complaint in November 1986
The General Counsel contends that the second dis
charge of Umstead in April 1987 occurred because Um
stead filed the October 1986 charges and because the
Board issued the November 1986 complaint In addition,
the General Counsel contends that the Employer dis
criminated against Umstead when it rehired him by fail
ing to reinstate Umstead to his former position 29
As for Umstead s discharge in April 1987 I analyze
the situation based on the Board s decision in Wright
Line 30 In that case the Board stated that when an em
28 Inasmuch as I have determined that the action taken by the Union
in seeking Umstead s discharge was lawful then I must conclude that
Umstead was not entitled to the 2 weeks backpay and therefore the
Union s failure to represent him was not a violation of the Act
28 Based on my discussion of the facts surrounding the reinstatement in
fn 16 supra I conclude that IBI did not act in a discriminatory manner
Its placement of Umstead was not motivated by his union activity or be
cause he availed himself of the Board s processes
30 251 NLRB 1083 (1980) enfd 662 F 2d 899 (1st Cir 1981) cert
denied 455 U S 989 (1982)
ployee is discharged for both legitimate and illegitimate
reasons, the General Counsel must make a prima facie
showing that the employees protected activity was the
motivating factor in the employers decision to dis
charge The burden then shifts to the employer to show
that the same action (discharge) would have taken place
even in the absence of the protected activity
In advancing her theory of animus on the part of IBI
toward Umstead because he filed charges, the General
Counsel sets forth the assumption that Umstead s insist
ence on the 2 weeks backpay became quite annoying to
IBI so much so that even when Umstead performed the
courageous act of foiling the armed robbers in Septem
ber 1986 he was not properly commended by IBI 31
Thus the entire extent of the General Counsels argu
ment is surmise and innuendo There is no evidence that
IBI threatened or harassed Umstead because he sought
the 2 weeks backpay Nor is it likely that an employer,
who is involved in handling millions of dollars daily and
who employs hundreds of men, would become so ob
sessed with the miniscule claim of one man sufficient to
cause his discharge
Rather, the events of 13 April 1987 are crucial IBI
contends that Umstead engaged in an unprovoked assault
on Gladstone by pulling out a loaded gun, sticking it in
his face, and threatening to blow his head off Although
Umstead denies that he pulled out his gun, and Riccione
states that he did not see a drawn gun both admit that
Umstead did leave his vehicle and did approach Glad
stone s vehicle In making my assessment on credibility I
am greatly persuaded by the fact that Gladstone testified
with conviction in his tone and a ring of truthfulness in
his remarks Umstead, on the other hand appeared eva
sive in his responses and downright unbelievable when
he tried to explain the special delivery letter that he
sent the Union in 1986 On the whole, his testimony
lacked trustworthiness There is no question but that
Gladstone was present at Dan s Supermarket #32 per
forming his duties on behalf of IBI He was not there to
harass Umstead In fact, by Umstead s own admission
Gladstone s vehicle was quite a distance away Rather
Umstead sought out Gladstone and caused the confronta
tion Under the circumstances I credit Gladstone s ver
sion of what transpired and find that Umstead s actions
were sufficiently reprehensible to warrant his discharge
And I find that IBI would have acted in the same
manner even in the absence of Umstead s protected ac
tivity Accordingly , I shall dismiss the allegation regard
mg the second discharge
Under all the circumstances in this case I shall dismiss
the consolidated complaint in its entirety
CONCLUSIONS OF LAW
1 I B I Security Inc, is an employer within the
meaning of Section 2(2) of the Act and is engaged in
commerce as defined in Section 2(6) and (7) of the Act
2 Allied International Union is a labor organization
within the meaning of Section 2(5) of the Act
0' The evidence shows however that a commendation was placed in
Umstead s personnel file
I B I SECURITY
3 Respondent IBI did not violate the Act in any re
spect alleged in the consolidated complaint against it
4 Respondent Union did not violate the Act in any re
spect alleged in the consolidated complaint against it
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed32
ORDER
657
It is ordered that the consolidated complaint is dis
missed in its entirety
Order shall as provided in Sec 102 48 of the Rules be adopted by the
32 If no exceptions are filed as provided by Sec 102 46 of the Board s Board and all objections to them shall be deemed waived for all pur
Rules and Regulations the findings conclusions and recommended poses