Local 1908, United Transport Union

National Labor Relations Board - Board Decisions

Oct 20, 1972

199 N.L.R.B. 872 (N.L.R.B. 1972)

872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 1908, United Transport Union (Cottrell Bus
Service Inc.) and Margaret L. Easton . Case 3-CB-
1805
October 20, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On June 16, 1972, Administrative Law Judge I
John F. Funke issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order for the reasons set
forth below.
We accept the Administrative Law Judge's con-
clusion that Respondent violated Section 8(b)(2) and
(1)(A), as alleged, because we find that the facts, as set
forth in the Decision, establish that the Respondent
actually came into possession of Margaret Easton's
check for January dues. The check was unquestiona-
bly delivered by Hens to Velardo and was among the
papers Velardo gave the union treasurer. Although
Easton used an unusual method of delivering the dues
check, her method did result in actual receipt by the
Union and operated to satisfy Easton's obligations
under the applicable union-security contract to make
a valid tender of her January dues. Having received
a valid tender of the dues, the Union acted unlawfully
in securing Easton's discharge for failure to pay the
dues .2 The Union's action in this regard is not excused
by the fact that, through its agent's carelessness or
error, it was unaware that the check was in its posses-
sion., Furthermore, we note that the union treasurer
did not, in Easton 's case , notify her by mail as a
delinquent member, although he testified that this was
his normal practice where an employee was on sick
leave, as was Easton. Accordingly, we conclude, as
did the Administrative Law Judge, that Respondent
secured the discharge of Easton for reasons other than
her failure to tender periodic dues and initiation fees
and thereby violated Section 8(b)(1)(A) and (2) of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent Local 1908, United Transport
Union, its officers, agents, and representatives, shall
take the action set forth in the said recommended
Order.
i The title "Trial Examiner" was changed to "Administrative Law Judge"
effective August 19, 1972.
2Philadelphia Sheraton Corporation, 136 NLRB 888, enfd sub nom
N.L R B v. Hotel, Motel and Club Employees ' Union, Local 568, AFL-CIO,
320 F.2d 254 (C A 3)
J Great Atlantic & Pacific Tea Company(Pittsburgh Bakery),l 10 NLRB 918.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: This case was brought
before the National Labor Relations Board upon:
1. A charge, filed January 20, 1972, by Margaret L.
Easton, herein Easton , against Local 1908, United Trans-
port Union, herein the Union, alleging the Union violated
Section 8(b)(1)(A) and (2) of the Act.
2. A complaint issued by the General Counsel alleging
the Union violated Section 8(b)(1)(A) and (2) of the Act,
dated February 14, 1972.
3. An answer of Respondent, dated March 1, 1972,
denying the commission of any unfair labor practices.
4. A hearing held by me at Buffalo, New York, on May
11, 1972.
5. A brief received from the General Counsel on June
5, 1972.
Upon the entire record in this case and from my obser-
vation of the witnesses while testifying, I make the follow-
ing:
FINDINGS
I THE BUSINESS OF COTTRELL BUS SERVICE INC.
Cottrell Bus Service Inc., herein Cottrell, is a New
York corporation having its principal place of business
at Cheektowaga , New York, where it provides school
and charter bus services . Its annual gross revenues exceed
$500,000 and its annual purchases of goods and material
from other enterprises in the State of New York which are
received from places outside the State of New York exceed
$50,000.
Cottrell is engaged in commerce within the meaning of
the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union, at all times material herein, operated un-
der a collective-bargaining contract with Cottrell covering
199 NLRB No. 126
LOCAL 1908, UNITED TRANSPORT UNION
its drivers and shop and maintenance employees and is a
labor organization within the meaning of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Issue
The complaint alleges that the Union caused Cottrell
to discharge Easton because of Easton's lack of membership
in the Union and for reasons other than her failure to tender
periodic dues and initiation fees required as a condition of
membership therein thereby violating Section 8 (b)(1)(A)
and (2) of the Act.
B. The Facts
1. The case of the missing check
Easton was employed by Cottrell as a schoolbus driver
from June 1970 until January 1972 when she was discharged
for failure to pay her union dues. The contract between the
Union and Cottrell provided:'
ARTICLE IV
Union Shop and Check Off
7. Any employee who, on the effective date of this
agreement is not a member of the U.T.U., and any
employee thereafter hired must as a condition of em-
ployment, ninety (90) calendar days after date of hire,
acquire and maintain membership in the U.T.U. to the
extent of tendering the initiation fee and dues required
of all U.R.U. members. In the event of rehire within
one year the employees original service will count
toward his ninety (90) calendar day period.
8. The U.T.U. agrees'that membership in it shall
be available to all employees in the bargaining unit on
the same terms and conditions applicable to other
members.
9. For all employees who are members of the U.T.
U. on the effective date of this agreement and for all
employees who thereafter become members of the U.T.
U. during the term of this agreement, the Company will
check off advance monthly dues and assessments as
designated by the Treasurer of Local 1123, on the basis
of and for the term individually signed voluntary check
off authorization cards heretofore and hereafter sub-
mitted to the Company. Check-off authorization re-
mains in full force and effect until revoked in writing.
The Company shall remit to the Treasurer of local
1123, on or before the 25th of the same month, any and
all moneys so deducted, plus the names of the employ-
ees from whom no deductions were made, plus the
Company's contribution if any. In the event there are
any changes to be made in deductions, the Treasurer
of the Local will so advise the Company in writing
before the 10th of the month. Deductions will be made
from earnings accumulated for the payroll period pay-
able on the third Thursday of each month.
' Resp. Exh 1.
873
Easton had her dues deducted by Cottrell pursuant to
this contract until she went on sick leave on November 1,
1971. Since she received no pay while on sick leave she paid
her December dues (due before December 25) on Novem-
ber 15. She paid them to Edward Dobiesz, secretary- treas-
urer of the Union, with a check for $6.49 and, because she
did not know the dues had been raised, she gave him $2 in
cash. There is no dispute that the dues for December were
paid. Although Easton testified that she had no conversa-
tion with Dobiesz at this time, Dobiesz testified that he told
her that since she was on sick leave he offered her an E-49
form by which on sick leave. Dobiesz stated she told him it
was too much trouble to fill out the form.
On December 18 Easton made out another check for
her dues and gave it to Joseph Hens, another driver and a
neighbor, for delivery to Dobiesz.2 Hens testified that he
received the check from Easton made out to United Trans-
port Union in the amount of $8.49, took it to the plant, and
that since Dobiesz had not yet arrived gave it to Frank
Velardo, the dispatcher, with instructions to give it to Do-
biesz. Later that day Velardo told him he had given the
check to Dobiesz.
Velardo testified that he received a piece of paper,
folded, from Hens on a date he fixed as shortly before
Christmas and was told to give it to Dobiesz. Velardo had
mail addressed to Dobiesz so he attached the folded paper
to the mail for Dobiesz with a clip and gave it to Dobiesz
when he came in . Dobiesz put the mail in his pocket.
Dobiesz testified that it was his duty as secretary-treas-
urer to check the payment of union dues. If a member is late
in payment he notifies the member by mail and also the
company. If a member is not on sick leave exemption Do-
biesz notifies the company and requests termination. When
Dobiesz did not receive Easton's dues for December he
called Easton "a couple of times" and received no answer.
He then notified the company that her time was expiring
and that if she did not pay he would expel her pursuant to
the contract.
On January 14 Easton reported for work and was told
by her boss, Ventile, that she could not work because of
nonpayment of union dues and could not return until the
matter was straightened, out. Later in January she went to
the union hall and talked to George Switzer , the union
president. She also showed him a statement in writing from
Hens setting forth the circumstances under which he deliv-
ered the check.3 Switzer referred her to Dobiesz who told
her he tore up the check and threw it away. (Her testimony
is not clear on this point since it does not establish that
Dobiesz was referring to her check or to all the mail he
received from Velardo on the day in question.) Easton then
asked if she could write a new check and Dobiesz said she
could not. He did tell her she could attend the union meet-
ing (these conversations took place before the meeting) and
take it up but that he did not think it would do any good.
Easton did not attend the union meeting.
Dobiesz testified that Easton reported to the union hall
on Saturday, January 18, when she approached him and he
told her he had not yet received her check. Easton offered
2 Easton testified that she was sick and did not want to go to the plant to
make personal delivery of the check.
3 G.C. Exh. 4
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him the Hens letter but he told her he did not have time to
read it and asked her to stick around and he would appeal
her case to the membership . Easton refused and walked
away.
Easton's own bank accounts reveal that the check was
never cashed.
At the time of the hearing Easton had been reemployed
by Cottrell but as a new employee.
C. Conclusions
A literal construction of the statute would relieve the
Union of liability since Easton was discharged by it solely
for her failure to pay her periodic dues. There is no evidence
that the Union had any other motive or that it had any
grounds for hostility toward Easton. But, as the Supreme
Court has stated, the statute may not be read-literally. A
union may not deal at arms' length with its members but
owes them fiduciary obligations, including those of equita-
ble dealing and fair representation .4 Union-security clauses
and checkoff provisions are powerful instruments for con-
trol over the right of employment and should not be exer-
cised ruthlessly. It is true Easton did not employ extreme
diligence when she delivered her check to Hens for further
delivery to the union agent but it is also true that Dobiesz
may have been careless with the papers delivered to him. In
any event Dobiesz was aware that Easton was on sick leave
status the preceding month and it is reasonable to impose
upon him the obligation to inquire further into her failure
to pay her dues after two telephone calls were unanswered.
This entire mishap could easily have been resolved when
Easton attended the union meeting in January and offered
to give Dobiesz another check and was refused although she
was offered the chance to appeal to the membership. It is
hardly arguable that there is blame to be attached to both
the individuals involved but in such a situation I am not
going to hold an employee or member to the same standards
of accountability as I would a union officer. It must be
remembered that the Union had lost only 1 month's dues
and received an offer of reimbursement for that loss while
it, on the other hand, was inflicting upon Easton the loss of
employment. Under those circumstances I find the Union
in violation of Section 8(b)(1)(A) and (2).
Upon the foregoing findings and upon the entire record
in this case, I make the following:
CONCLUSIONS OF LAW
1. By causing Cottrell to discharge Margaret L. Easton
for reasons other than her failure to tender periodic dues
and initiation fees, the Respondent Union violated Section
8(b)(2) and (1) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent Union engaged in
4Aerojet-General Corporation, 186 NLRB No 77
a certain unfair labor practice it will be recommended that
it cease and desist from the same and take affirmative action
recommended.
It is recommended that Respondent Union notify Cot-
trell, in writing, with a copy to Margaret L. Easton, that it
withdraws any objection to the employment of Margaret L.
Easton without prejudice to her seniority and other rights
and privileges which she enjoyed on November 1, 1971, and
requests that such rights and privileges, including her rate
of pay, be restored as of that date.
Respondent Union shall make Margaret L. Easton
whole for any loss of pay suffered from January 14, 1972,
until 5 days after notice to Cottrell shall have been given as
above provided. Loss of earnings shall be computed on
quarter basis with interest at 6 percent per annum. F. W.
Woolworth Company, 90 NLRB 289; Isis Plumbing & Heat-
ing Co., 138 NLRB 716.5
Upon the foregoing findings and conclusions and pur-
suant to Section 10(c) of the Act, I recommend issuance of
the following:
ORDER6
Respondent 1908, United Transport Union, its offi-
cers, agents, representatives, and assigns, shall:
1. Cease and desist from causing or attempting to cause
Cottrell Bus Service Inc. to discriminate against any of its
employees in violation of Section 8(a)(3) of the Act.
2. Take the following affirmative action:
(a) Make Margaret L. Easton whole for any loss of pay
she may have suffered from January 14, 1972, in the manner
set forth in the section entitled "The Remedy."
(b) Notify Margaret L. Easton and Cottrell Bus Service
Inc., in writing, that it withdraws any objection to the em-
ployment of Margaret L. Easton without prejudice to her
former seniority and other rights and privileges and that it
requests that such rights and privileges, including her rate
of pay, be restored as of November 1, 1971.
(c) Post at its business office copies of the attached
notice marked "Appendix.-7 Copies of said notice, on forms
to be provided by the Regional Director for Region 3, shall,
after being duly signed by Respondent's representatives, be
posted by it immediately upon receipt thereof, and be main-
tained by it for a period of at least 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that such
notices are not altered, defaced, or covered by any other
material.
5 Said loss of earnings shall include all loss of pay, less interim earnings
incurred by Easton from January 14 until her reemployment by Cottrell ano
also any loss suffered thereafter by reason of reduction in her rate of pay
from that of November 1, 1971, to her rate of pay after reemployment
6 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, recommendations, and recommended Order herein shall, as
provided in Sec. 102 48 of the Rules and Regulations , be adopted by the
Board and become its findings , conclusions , and Order, and all objections
thereto shall be deemed waived for all purposes.
7 In the event that the Board 's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board
LOCAL 1908, UNITED TRANSPORT UNION 875
(d) Forward copies of said notice to the Regional Di-
rector for Region 3 for posting by Cottrell Bus Service Inc.,
at its place of business at Cheektowaga, New York, where
notices to employees are customarily posted, if said Compa-
ny is willing to do so.
(e) Notify the Regional Director for Region 3, in writ-
ing, within 20 days from the receipt of this Decision, what
steps it has taken to comply herewith.'
8 In the event that this recommended Order is adopted by the Board, after
exceptions have been filed , this provision shall be modified to read "Notify
the Regional Director for Region 3, in writing, within 20 days from the date
of this Order, what steps Respondent has taken to comply herewith "
WE WILL notify Margaret L. Easton and Cottrell
Bus Service Inc. that we have no objection to the em-
ployment of Margaret L. Easton and we request that
she be given all her former rights and privileges, includ-
ing seniority and rate of pay, as they existed on Novem-
ber 1, 1971.
WE WILL make Margaret L. Easton whole for any
loss of pay, including any reduction in her rate of pay,
she may have suffered because we discriminated
against her.
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause Cottrell Bus
Service Inc. to discriminate against Margaret L. Easton
or any other employee in violation of Section 8(a)(3) of
the Act.
Dated By
LOCAL 1908, UNITED TRANSPORT
UNION
(Labor Organization)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, Ninth Floor, Federal Building, 111
West Huron Street, Buffalo, New York 14202, Telephone
212-264-3311.
r