Operating Engineers Local 39

National Labor Relations Board - Board Decisions

Jan 31, 2006

346 N.L.R.B. 336 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 34
336
Stationary Engineers, Local 39, International Union
of Operating Engineers, AFL–CIO and Rebecca
Wood. Case 32–CA–20575–1
January 31, 2006
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
The issue presented in this proceeding is whether the
Respondent, Stationary Engineers, Local 39, Interna-
tional Union of Operating Engineers, AFL–CIO (the Un-
ion), violated Section 8(a)(1) and (2) of the National La-
bor Relations Act (the Act) by requiring its clerical em-
ployees to become and remain members of the Union as
a condition of employment. We find, contrary to the
judge and the dissent, that the Union violated the Act by
imposing the membership requirement on its clerical
employees. Our reasoning is set out below.1
In Retail Store Employees Local 428, 163 NLRB 431,
432–433 (1967), the Board clarified the circumstances in
which a union may require its employees to become and
remain members of the union as a condition of employ-
ment. The Board observed that:
A union-employer, just as any other employer, may
impose on its employees requirements reasonably re-
lated to the proper performance of their jobs. . . . It is

1 On June 16, 2004, Administrative Law Judge James M. Kennedy
issued the attached decision. The General Counsel filed exceptions and
a supporting brief, and the Union filed an answering brief. The Union
filed limited exceptions and a supporting brief, and the General Coun-
sel filed an answering brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the
exceptions and briefs and has decided to adopt the judge’s rulings,
findings, and conclusions as modified below and to adopt the recom-
mended Order as modified and set forth in full below.
No exceptions were filed to the judge’s dismissal of the complaint
allegation that the Union violated Sec. 8(a)(1) of the Act by telling its
clerical employees they had to be members of the Union to be eligible
for its benefit plan. Additionally, on September 29, 2005, the Union
notified the Board that it wished to withdraw its exceptions to the
judge’s finding that it violated Sec. 8(a)(4) and (1) of the Act by sus-
pending and discharging employee Rebecca Wood because it believed
she was allied with a former employee of the Union who had filed
unfair labor practice charges against the Union. We grant the Union’s
request, and, in the absence of exceptions, we adopt the judge’s finding.
Further, on November 7, 2005, the General Counsel filed a motion to
partially withdraw exceptions. Specifically, the General Counsel re-
quested to withdraw his exceptions to the judge’s finding that it was
unnecessary to pass on the General Counsel’s alternative theory that
Wood’s suspension and discharge independently violated Sec. 8(a)(1)
of the Act. We grant the General Counsel’s motion, and, in the absence
of exceptions, adopt the judge’s finding that it is unnecessary to pass on
the independent 8(a)(1) theory.
clearly proper for [a union] to be concerned about not
hiring employees who do not adequately understand or
agree with [its] general goals as well as its specific
methods of operation and ways of achieving its goals to
the extent such understanding is necessary for the per-
formance of their duties. [Emphasis added.]
The Board explained that union membership could, for
example, be required of the union’s field representatives
at issue in Retail Store Employees because these employ-
ees, “in conducting the [union’s] business, might be
asked to explain how the [union] functions as a collec-
tive-bargaining representative, or why it is desirable for
workers to organize.” Id. at 433. Accordingly, a union
may impose membership on its employees who are “re-
sponsible for explaining to others the benefits and intri-
cacies of union membership.” NLRB v. Michigan Con-
ference of Teamsters Welfare Fund, 13 F.3d 911, 917
(6th Cir. 1993).2
Our colleague says that a union can require its em-
ployees to be members of the union if membership is
reasonably related to their performance of job duties.
That formulation of the test concentrates exclusively on
one sentence of the test, and not on the complete recita-
tion of the test. As set forth above, the test explains that
membership can be required of employees if an under-
standing of the union’s goals is “necessary for the per-
formance of their duties.”
In addition, the test should be strictly applied. In es-
sence, the issue is whether employees can be required to
surrender their Section 7 right to refrain from member-
ship in order to obtain or retain their jobs.
For the reasons set forth below, we conclude that un-
ion membership is not necessary for the performance of
the clerical functions here. Further, even if the test is
simply the “reasonably related” formulation espoused by
our colleague, we conclude that the requirement of union
membership is not reasonably related to performance of
the clerical functions here.
We have carefully reviewed the evidence of the job
duties of the clerical employees, and the record clearly
shows that they have no responsibility for explaining to
members or others the benefits of membership or how
the union functions. The judge summarized the clericals’
“typical” job duties as follows:

2 A second requirement for imposing union membership is that the
union must affirmatively notify its employees of their right to engage in
concerted protected activities unaffected by the membership require-
ment. Retail Store Employees, supra at 433. The General Counsel does
not allege that the Union failed to satisfy this obligation.
OPERATING ENGINEERS LOCAL 39 337
• check dues payments from public agencies;
• maintain contract files for public and private
sector employers and type summaries,
amendments, and letters of adoption and for-
ward them to the Union’s San Francisco of-
fice;
• track contract openings and cost-of-living ad-
justments to advise business agents of these;
• take responsibility for computer back-up
disks, office supply receiving tasks, mailings,
and member research;
• type correspondence for the professional em-
ployees;
• post dues payments from employers via
checkoff and from (a very few) individuals;
and
• update members’ records.
This recitation illustrates that the vast majority of the cleri-
cals’ job tasks present no responsibility—or even opportu-
nity—to explain unionization to members or other individu-
als.
Indeed, the record shows only two isolated and routine
tasks performed by the clericals that even bring them into
contact with members: responding to members’ tele-
phonic inquiries regarding dues arrearage and acting as
receptionist. The former simply involves accessing the
Union’s database to answer members’ inquiries concern-
ing the amount of back dues owed. The latter involves
greeting a telephone caller or visitor and directing them
to their requested office at the Union. There is no evi-
dence that, in performing these duties, the clerical em-
ployees have ever been called upon to explain how the
union functions or the desirability of unionization. This
limited and rote contact by the clericals with members
falls well short of that required by Retail Store Employ-
ees, and illustrates that they bear little, if any, resem-
blance to union field representatives, of whom member-
ship may appropriately be required.
Our dissenting colleague’s reliance on the clericals’
dues arrearage function is unavailing. The dissent’s
analysis of the central role of union policy in the cleri-
cals’ interactions with members regarding their dues ar-
rearages is based on pure speculation. There is no evi-
dence in the record that clericals lobby members to main-
tain their level of membership, negotiate payment of ar-
rearages, or engage in any of the other duties described
by the dissent. Our dissenting colleague herself notes
that it is only “likely” that the clericals perform these
functions, revealing that the record does not contain such
evidence. Indeed, the record shows only that the cleri-
cals perform the perfunctory task of accessing the data-
base and reporting to members the extent of their arrear-
ages. Such perfunctory duties, even if performed daily,
do not constitute the kind of policy-oriented duties re-
quired by the case law to justify a membership require-
ment.
We are mindful of our duty to evaluate each case in
this “critical area of labor relations” on the facts pre-
sented, and of the Board’s directive that there is no “per
se rule.” Retail Store Employees, 163 NLRB at 433.
Having done so, we find that the Union has failed to
show that membership in the Union is either “necessary”
for, or even “reasonably related” to, the clericals’ proper
performance of their job duties. Retail Store Employees,
163 NLRB at 432–433.3 It is indeed difficult to perceive
any meaningful relationship between the Union’s mem-
bership requirement and the clericals’ proper perform-
ance of their secretarial job tasks.4
Accordingly, we find that the Respondent violated
Section 8(a)(1) and (2) of the Act by requiring its clerical
employees to become and remain members of the Union
as a condition of employment.
ORDER5
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Stationary Engineers, Local 39, Interna-

3 The applicable standard is not clearly set forth in Retail Store Em-
ployees. On the one hand, the Board’s decision states that a union-
employer “may impose on its employees requirements reasonably
related to the proper performance of their jobs.” 163 NLRB at 432. On
the other hand, the Board’s Order states that membership may not be
required “unless such membership is necessary to the performance of
the employee’s duties.” We agree that, in general, an employer can
impose requirements that are reasonably related to job performance.
However, where, as here, the requirement is that a Sec. 7 right be
waived (i.e., the right to be a nonmember), we believe that the stricter
test of “necessity” may well be warranted. In addition, the requirement
that an employee be a member of the Union would at least be an im-
pediment to an employee’s representation by another union. In any
event, we find it unnecessary to pass on which standard is appropriate
because we find that the Union failed to satisfy either standard.
4 The dissent’s reliance on the clericals’ filing and checking of the
Union’s contracts is unwarranted as it involves no contact with mem-
bers and is rote in nature.
5 We have modified the judge’s recommended Order in accordance
with Ferguson Electric Co., 335 NLRB 142 (2001), to reflect the viola-
tions found, and to correct inadvertent errors. Par. 2(d) of the Order
herein requires the Union to reimburse certain present and former cleri-
cal employees for all dues, assessments, and initiation fees paid to the
Union. This requirement applies to clericals whose employment began
on or after November 18, 2002, because, as the parties stipulated and
the judge found, on that day Union Business Manager Jerry Kalmar
distributed to the clericals the Union’s new personnel policy containing
the membership requirement and told the clericals that they had to be
members of the Union as a condition of their employment. We have
also substituted a new notice to comport with these modifications.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD338
tional Union of Operating Engineers, AFL–CIO, Sacra-
mento, California, its officers, agents, and representa-
tives, shall
1. Cease and desist from
(a) Suspending, discharging, or otherwise disciplining
employees who it believes have allied themselves with
other individuals who have filed unfair labor practice
charges against it with the Board.
(b) Requiring its clerical employees employed at its of-
fice in Sacramento, California, as a condition of em-
ployment, to become and remain members of Stationary
Engineers, Local 39, International Union of Operating
Engineers, AFL–CIO (the Union or Respondent), unless
such membership is necessary or reasonably related to
the performance of the employee’s duties.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Rebecca Wood full reinstatement to her former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to her seniority or any other
rights or privileges previously enjoyed.
(b) Make Rebecca Wood whole for any loss of earn-
ings and other benefits suffered as a result of the dis-
crimination against her, with interest, in the manner set
forth in the remedy section of the judge’s decision.
(c) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful suspension
and discharge of Rebecca Wood, and within 3 days
thereafter notify her in writing that this has been done
and that the suspension or discharge will not be used
against her in any way.
(d) Reimburse all present and former clerical employ-
ees of the Union employed at its Sacramento, California
office, who were not members of the Union in its capac-
ity as a labor organization at the time they were hired by
the Union in its capacity as an employer, and whose em-
ployment began on or after November 18, 2002, for all
dues, assessments, and initiation fees paid to the Union
in its capacity as a labor organization, with interest as
prescribed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel re-
cords and reports, and all other records, including an
electronic copy of such records if stored in electronic
form, necessary to analyze the amount of backpay due
under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its office in Sacramento, California, copies of the at-
tached notice marked “Appendix.”6 Copies of the notice,
on forms provided by the Regional Director for Region
32, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent and
maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, it shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since November 18, 2002.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations not found.
MEMBER LIEBMAN, dissenting in part.
Surely, the gateway to an organization is its clerical
employees who have daily interactions with the public.
That is especially true for a small organization, like a
local labor union, whose clerical employees assist mem-
bers who call in, or drop by, with concerns about their
membership status or contract coverage. The question
presented here is whether the Union may require its
clerical employees to be members of the Union. In Re-
tail Store Employees Local 428, 163 NLRB 431 (1967),
the Board recognized that a union may do so, when the
membership requirement is reasonably related to em-
ployees’ job duties. Here, the majority has concluded
that the Union cannot impose a membership requirement,
finding, remarkably, that membership by these clerical
employees is not even reasonably related to the proper
performance of their jobs. The majority’s view interprets
Retail Store Employees far too narrowly, undervaluing

6 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
OPERATING ENGINEERS LOCAL 39 339
the clerical employees’ duties as they relate to serving
the membership of the Union.1
I.
In Retail Store Employees, the Board explained that “a
union-employer’s requirement that its employee[s] be-
long to it . . . need not, in and of itself, violate the Act.”
163 NLRB at 433. A union may require its employees to
become members if it: (1) shows that membership is
“reasonably related to the proper performance of their
jobs”; and (2) notifies the employees of their right to
engage in concerted activities unaffected by the member-
ship requirement and that they are free to select another
union to bargain on their behalf. 163 NLRB at 432–433.
Only the first prong of the test is at issue here.
While the majority hedges the question, I read Retail
Store Employees to establish the “reasonably related”
standard as the appropriate test for determining the law-
fulness of such union-membership requirements. Al-
though the decision also contains the phrase “necessary
to the performance,” the Board framed its entire analysis
with the opening declaration that “[a] union-employer,
just as any other employer, may impose on its employees
requirements reasonably related to the proper perform-
ance of their jobs.” 163 NLRB at 432. Further, as more
fully discussed below, the “reasonably related” standard
better accommodates a union’s vital interest in maintain-
ing a knowledgeable work force that understands, and
can effectively communicate, its goals and objectives.
Last, I find it significant, as well, that the “reasonably
related” standard has been applied by one of the few
courts to address this issue. See NLRB v. Michigan Con-
ference of Teamsters Welfare Fund, 13 F.3d 911, 917
(6th Cir. 1993) (quoting Retail Store Employees, supra at
432)).
Under Retail Store Employees, the “reasonably re-
lated” standard is not insurmountable. As the Board
stated, “[w]e deem it not unreasonable” for a union-
employer “normally to require its employees” to fulfill
obligations of regular union membership. 163 NLRB at
433 (emphasis added). The Board emphasized that a
union may legitimately have “concern for [its] employ-
ees’ understanding of its operation” in order to achieve
its institutional goals on behalf of its members:

1 I join the majority in granting the Union’s and the General Coun-
sel’s respective motions to withdraw exceptions. Accordingly, I agree
with the majority to adopt, in the absence of exceptions, the judge’s
finding that the Union violated Sec. 8(a)(4) and (1) of the Act by sus-
pending and discharging Rebecca Wood, as well as the judge’s further
finding that it is unnecessary to pass on the General Counsel’s alterna-
tive theory that Wood’s suspension and discharge independently vio-
lated Sec. 8(a)(1).
[F]or example, a field representative, in conducting the
[union’s] business, might be asked to explain how the
[union] functions as a collective-bargaining representa-
tive, or why it is desirable for workers to organize. It is
clearly proper for [a union] to be concerned about not
hiring employees who do not adequately understand or
agree with [its] general goals as well as its specific
methods of operation and ways of achieving its goals to
the extent such understanding is necessary for the per-
formance of their duties. [Id. at 432–433.]
Retail Store Employees should be considered in a
broader context. As the Board has discussed, “[t]he [un-
ion’s] product is its ability to represent employees and,
further, its customers are its members.” Communications
Workers Local 6360, 268 NLRB 812, 819 (1984). And
“unions’ institutional interest in loyalty of its employees
is ‘well grounded in federal labor policy.”’ Operating
Engineers Local 370, 341 NLRB 822, 824 (1994).
With these principles in mind, the judge properly
found that the Union demonstrated that its membership
requirement is reasonably related to the clerical employ-
ees’ proper performance of their jobs.
II.
The following description of the clerical employees’
job duties is based not on “speculation,” as the majority
claims, but on the evidence in the record and on reason-
able inferences drawn from proven facts. See Hunter
Douglas, Inc. v. NLRB, 804 F.2d 808, 813 (3d Cir. 1986)
(well established that the Board has the “authority to
draw ‘legitimate inferences from proven facts’”) (quoting
Hedstrom Co. v. NLRB, 629 F.2d 305, 316 (3d Cir.
1980)).
The job duties of the Union’s clerical employees are
principally to deal with membership and collective-
bargaining issues.2 With respect to membership issues,
the clericals interact daily with members inquiring about
dues arrearages.3 The record shows that most inquiries
are from employees whose membership has been placed
in suspended status because they owe dues. Each inter-
action therefore may be a critical moment for the Union,
as a clerical employee may be faced with a member
questioning not only the amount of the dues arrearage,
but also the need for the dues payment in the first place.
Needless to say, dues payments are vital to a labor or-
ganization’s ability to sustain its collective-bargaining

2 The judge found that the clerical employees also type correspon-
dence, assemble mailings, post dues payments, and have “secondary
responsibility” for computer backup disks and office supply receiving
tasks.
3 The clericals access a computerized database, which monitors the
records of each member.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD340
related activities, as acknowledged by the Act’s express
provision for union-security agreements.4 It is entirely
reasonable for the Union to conclude that a clerical em-
ployee who is also a dues-paying member will be better
able to explain to other members the importance of
timely dues payments to the accomplishment of the Un-
ion’s mission.
The Union’s membership requirement is further justi-
fied by the likelihood that a member may question a
clerical employee about changing his membership status
to reduce his future dues. Unions legitimately prefer that
employees maintain full membership and dues obliga-
tions.5 But a union cannot compel membership.6 Rather,
it must rely on its ability to persuade employees that
membership is advantageous. Since its clerical employ-
ees are likely to have that conversation with members,
the Union has a strong institutional interest in ensuring
that they appreciate and endorse the Union’s views on
membership and dues. Requiring the clericals to be un-
ion members themselves is a reasonable means of
achieving that objective.
The majority errs by undervaluing the clericals’ daily
interaction with members on dues-related matters, and by
measuring the clericals’ job functions against the func-
tions performed by union field representatives. While
Retail Store Employees describes certain job duties of the
field representative position as an “example,” it did not
set the responsibilities of the field representatives as a
base line standard that must be met to justify a union
membership requirement. The effect of today’s decision
is, however, precisely that.
The majority further errs by ignoring the significance
of the clericals’ duties relevant to collective bargaining
and contract administration issues. They are responsible
for assisting the Union’s business agents by: (1) monitor-

4 Sec. 8(a)(3) of the Act; see also NLRB v. General Motors Corp.,
373 U.S. 734, 740–741 (1963) (Congress recognized that in the absence
of a union-security provision many employees sharing the benefits of
what unions accomplish through collective bargaining will refuse to
pay their share of the cost); Oil Workers v. Mobil Oil Corp., 426 U.S.
407, 416 (1976) (same).
5 Full membership strengthens unions by, among other things, mini-
mizing the well-recognized problem of “free riders”—those who enjoy
the benefits of union representation without contributing to them. See
California Saw & Knife Works, 320 NLRB 224, 225 (1995), enfd. sub
nom. Machinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998), cert. denied
sub nom. Strang v. NLRB, 525 U.S. 813 (1998).
6 An employee may simply pay dues without becoming or maintain-
ing union membership. See NLRB v. General Motors Corp., supra, 373
U.S. at 742. In addition, once an employee declines or resigns union
membership, he then may choose not to pay for union expenses unre-
lated to its role as collective bargaining representative. See Communi-
cations Workers v. Beck, 487 U.S. 735 (1988). Further, in so-called
“right-to-work” States, a nonmember may avoid paying dues alto-
gether. See Sec. 14(b) of the Act.
ing and timely advising them of contract openings and
cost-of-living adjustments; (2) maintaining contract files
for the Union’s many organized employers; and (3) typ-
ing summaries, amendments, and letters of adoption for
the contracts and forwarding them to the Union’s main
office. Their proper performance of these often time-
sensitive duties is critical to the Union’s ability to vindi-
cate employees’ contractual and statutory rights, central
goals of any labor union.7 The Union legitimately may
wish to ensure that the clerical employees understand this
connection, and the membership requirement reasonably
relates to that objective. It also may foster the bond of
“loyalty” between the clericals and the Union as they act
together on behalf of members on important collective-
bargaining issues.
In sum, the judge’s key finding—that “the clericals
who perform duties dealing with membership issues and
collective bargaining are performing the type of work
which permits [the Union] to require them to be mem-
bers and thus sisters or brothers to the members it repre-
sents”—is consistent with record evidence and the prin-
ciples of Retail Store Employees.
APPENDIX
NOTICE TO EMPLOYEES
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 vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT suspend, discharge, or otherwise disci-
pline employees who we believe have allied themselves
with other individuals who have filed unfair labor prac-
tice charges against us with the National Labor Relations
Board.
WE WILL NOT require our clerical employees employed
at our office in Sacramento, California, as a condition of

7 This point is well illustrated by Boghosian Raisin Packing Co., 342
NLRB 383 (2004). The majority there concluded that 42 strikers lost
their “employee” status, and thus were lawfully denied reinstatement,
when, due to a clerical error, the union failed to comply with the notice
requirements of Sec. 8(d) of the Act.
OPERATING ENGINEERS LOCAL 39 341
employment, to become and remain members of Station-
ary Engineers, Local 39, International Union of Operat-
ing Engineers, AFL–CIO, unless such membership is
necessary or reasonably related to the performance of the
employee’s duties.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
set forth above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Rebecca Wood full reinstatement to her
former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Rebecca Wood whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against her, less any net interim earnings,
plus interest.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files any reference to our unlaw-
ful suspension and discharge of Rebecca Wood, and WE
WILL, within 3 days thereafter, notify her in writing that
this has been done and that the suspension or discharge
will not be used against her in any way.
WE WILL reimburse all our present and former clerical
employees employed at our Sacramento, California of-
fice, whose employment began on or after November 18,
2002, and who were not at the time they commenced
their employment members of the Union, for all dues,
assessments, and initiation fees paid to the Union in our
capacity as a labor organization, plus interest.
STATIONARY ENGINEERS, LOCAL 39, INTER-
NATIONAL UNION OF OPERATING ENGINEERS,
AFL–CIO
Gary M. Connaughton, Esq., for the General Counsel.
Matthew J. Gaugher and William A. Sokol, Esqs. (Weinberg,
Roger & Rosenfeld), of Oakland, California, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
JAMES M. KENNEDY, Administrative Law Judge. This case
was tried in Sacramento, California, on February 12, 2004,
upon a complaint issued on October 22, 2003, by the Regional
Director for Region 32. The complaint, amended at the hear-
ing, is based on an unfair labor practice charge filed by Re-
becca Wood, an individual (Wood), on May 16, 2003, and
amended on October 21, 2003. It alleges that Stationary Engi-
neers Local 39, International Union of Operating Engineers,
AFL–CIO (Respondent) has violated Section 8(a)(1), (2), and
(4) of the National Labor Relations Act (the Act). In its final
form, the complaint makes two discrete allegations.
First, that Respondent has unlawfully under Section 8(a)(1)
and (2) required its employees to become members, promulgat-
ing a personnel rule to that effect, using the justification that
membership was required so that its clerical employees could
have access to membership records both in order to perform
their jobs and to be eligible to participate in its fringe benefit
plans.
Second, the complaint asserts that Respondent discharged its
employee, Wood, because she assisted a former employee who
had filed unfair labor practice charges with the Board. Assert-
edly, that violates Section 8(a)(4). Alternatively, Respondent
believed she was acting in cahoots with the former employee in
support of the latter’s civil suit against Respondent and the
discharge violated Section 8(a)(1).
Respondent denies the allegations. First it contends that
there is nothing unlawful about a union-employer requiring
union membership of its clerical staff, particularly in circum-
stances where membership is reasonably related to the per-
formance of their jobs. Second, it asserts that Wood did not
engage in activity protected by Section 7 of the Act, whether
under Section 8(a)(4) or independently under Section 8(a)(1).
Both parties have filed briefs which have been carefully con-
sidered. Based on the record as adduced during the hearing, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent admits that it is a labor organization organized
as an unincorporated association, headquartered in San Fran-
cisco, California, and having several suboffices, including one
in Sacramento. It represents employees in collective bargaining
with their employers and further admits that it annually collects
and receives dues and initiation fees in excess of $500,000, of
which more than $50,000 was remitted to its parent, the Inter-
national Union of Operating Engineers, AFL–CIO, located in
Washington, D.C. Accordingly, I find that it is an employer
engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts Regarding the Membership Issue
This case has arisen against a background of two settled un-
fair labor practice charges concerning Respondent’s practice of
requiring its own employees to be its members as a condition of
employment as set forth in a collective-bargaining contract
Respondent supposedly had with itself. A complaint, dated
June 28, 2002, was issued on the first, filed by Juleen Stenzel
on April 19, 2002. The second was filed on August 9, 2002, by
Lisa Van Wormer. Both cases were consolidated for settlement
and the Regional Director approved an informal settlement
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD342
agreement on November 22, 2002. Van Wormer filed her
charge in the wake of being discharged for misconduct.1
In the settlement agreement Respondent agreed to remedy
several of its personnel practices. Without attempting to quote
its terms verbatim, Respondent agreed to modify its require-
ment that its employees also be its members so long as it gave
them assurances the membership requirement was being im-
posed only as a necessary component of their job; that Respon-
dent did not propose to represent them for collective-bar-
gaining/grievance processing purposes; that the employees had
the right to join any other union and if a majority chose repre-
sentation by another union; if so, it would recognize and bar-
gain with that union.
In addition, Respondent agreed to cease making certain
threats said to have violated Section 8(a)(1), would rescind the
“in-house” collective-bargaining contract it had with itself and
would reimburse both professional and office employees for
any dues they had paid under that “contract” (which, due to a
statutory limitations period, only extended back to October 24,
2001).
The “contract” was immediately replaced by a near-identical
personnel policy manual which continued the requirement that
this Union’s employees become members (by their 31st day of
employment).
On November 18, 2002, 4 days before the Regional Direc-
tor’s approval, Jerry Kalmar, Respondent’s business manager
held a meeting at the Sacramento office during which he read
the settlement’s notice to employees to the assembled clerical
staff. There is testimony about this meeting which will be dis-
cussed in more detail below. The parties have stipulated2 that
Kalmar distributed the new personnel policy manual (GC Exh.
3) at that meeting and told the clericals that they must continue
to be members as a condition of their employment. Section 1
of that manual is the requirement that employees join the Un-
ion; section 2 is a nondiscrimination clause which assures em-
ployees that there will be no discrimination based on, inter alia,
union activities.
While neither Respondent nor the General Counsel chose to
go into great detail regarding the duties performed by the Un-
ion’s office workers, there is really little that isn’t evident from
a simple perusal of the record. These clericals have access to
the Union’s computer system which maintains the records of
each member or former member. Employees who have access
to the computer system are required to sign a document known
as the “Security of Computer Records, Files and Information”
policy. They post dues payments whether coming from indi-
viduals (very few for this union) or employers per a checkoff
arrangement. Some clericals type correspondence for the pro-
fessional employees. They keep members’ records up to date

1 Van Wormer was discharged for engaging in conduct deemed to be
both dishonest and a breach of trust. It is not necessary to repeat the
specifics here. They are listed in R. Exh. 2.
2 The parties’ stipulation, GC Exh. 2, in two places contains an inad-
vertent error, mistakenly reciting the date as November 18, 2003; there
is no dispute that the meeting occurred, as Kalmar testified, on Novem-
ber 18, 2002. Wood even signed a slip that day acknowledging receipt
of the manual.
and perform a wide variety of miscellaneous functions. Natu-
rally some perform as receptionists and the receptionist is the
first employee to greet a member or visitor whether in person or
on the telephone. They are expected to have knowledge regard-
ing the Union’s procedures and policies or know to whom an
inquiry should be routed. Apparently, every office worker
commonly performs the receptionist task, even if only momen-
tarily, whenever the assigned receptionist is temporarily di-
verted or unavailable. Indeed, as will be seen, Wood was sub-
stituting when the incident for which she was discharged oc-
curred.
Wood’s duties, as set forth in her job description, are proba-
bly typical. She checked dues payments from the public agen-
cies, she updated members’ status, such as addresses and other
changes, she maintained contract files for both the public and
private sector employers and typed summaries, amendments
and letters of adoption and forwarded them to the San Fran-
cisco office. She also tracked contract openings and cost of
living adjustments and advised the agents as these came up on
the calendar so the agents could follow up. In addition, she had
secondary responsibility for the computer backup disks and did
the office supply receiving tasks. She was also called upon to
do mailings, member research, and other miscellaneous chores.
Undoubtedly the staff, to some extent, collectively shared each
other’s primary duties.
It is fair to say that most of the records kept in the office,
whether relating to collective bargaining or to union members
is regarded as private and for the eyes of union officials only. I
do not use the term “confidential” because that word carries
with it some legal implications which are best avoided here as
potentially confusing. Nevertheless, it is clear that whatever
business is performed in that office is not public information
and the Union wanted to keep its business information to itself
and persons it trusts, i.e., its members. For that reason it has
insisted that its employees also be its members.
B. Facts Relating to Rebecca Wood’s Discharge
Rebecca Wood was hired in March 1998 as a clerical and has
worked for Respondent continuously since that time in various
clerical capacities. When she was hired, her immediate super-
visor was Linda Middleton; later it was Perry Bonilla. Begin-
ning in 2000, she became a secretary to some of the business
representatives. Her last supervisor was Joan Bryant who ex-
panded Wood’s duties in 2002. That year, after Van Wormer’s
discharge, Bryant assigned Wood some of Van Wormer’s du-
ties, including public sector employer dues deposits (from pay-
roll checkoff) and began training to do the same thing with
private sector employers. On a daily basis Wood responded to
member inquiries regarding dues arrearage questions, even
though most of those came from private sector members. If
their dues were not current, such members were supposed to be
carried as suspended until the proper payment was made.
Wood routinely provided this information to the member or
his/her spouse whenever the proper social security number was
OPERATING ENGINEERS LOCAL 39 343
provided.3 The inquiries also came from retirees who were
checking on membership connected insurance matters. She, in
the Sacramento office, could answer most of those questions,
but sometimes needed to refer the caller to the Union’s main
office in San Francisco. To obtain the required information she
used the office computer located on her desk, accessing the
information by using the member’s social security number,
which the Union uses as a presumably-secure identification
number. (Social security numbers themselves are supposed to
be kept confidential.) The screen that shows the dues record
also shows whether the member is in good standing or sus-
pended (“active,” “inactive,” “withdrawal card,” “issue with-
drawal card” or “suspended”).
As with any employee who has access to the computer sys-
tem, Wood has signed (in 2001) the security policy document.
The document stated that since the computer files were being
placed on the Union’s Sacramento server, those using it needed
to be aware of the security concerns. The policy document says
that information is “not to be released to unauthorized persons.”
It goes to say that if any question comes up about how the in-
formation is to be used, the employee should consult with one
of two named managers, one of whom was business manager
Kalmar. It went on to say that a breach of the policy would be
considered an act of major misconduct (unauthorized removal
of . . . records or information; divulging confidential informa-
tion) and would be grounds for immediate discharge.
On May 5, 2003, Wood was serving as a receptionist be-
cause the regular receptionist was sick that day. That morning
she fielded a call from Van Wormer. She testified that Van
Wormer simply asked for the amount of dues she had paid in
August, September, and October 2001. Following procedure,
Wood asked Van Wormer for her social security number and
after Van Wormer provided it, called up the information on her
computer screen. She noted that the screen showed Van
Wormer to be on “suspended” status.
That status was of no concern to Wood, since she regularly
gave dues information to suspended members. Indeed, al-
though Wood was acquainted with Van Wormer due to their
having worked together, they were not close friends. There-
fore, she treated Wood’s inquiry in the same fashion she treated
all inquiries. She provided the requested information to Van
Wormer.
Because she had gotten a call from a former coworker, she
thought other coworkers would be interested. On the following
day, she mentioned the call to Middleton, now the regular re-
ceptionist. Middleton later mentioned it to Bryant late one
afternoon. Bryant initially thought nothing of it.
However, on May 12, 2003, Van Wormer caused a small
claims lawsuit to be served upon Respondent, claiming back
dues for a time period earlier than the time frame covered by
the NLRB settlement. Receipt of that suit triggered the events
leading to Respondent discharging Wood. Almost immediately
upon service of the lawsuit, Bryant called Wood to her office
and asked her to confirm that she had spoken to Van Wormer

3 The procedure Wood followed here was consistent with the in-
structions she had been given when first trained by coworker Middleton
acting under Bryant’s instructions.
on the telephone. Wood replied that she had; when Bryant
asked if Wood had provided dues information to Van Wormer,
readily responded that she had.
Wood testified that Bryant then asked if she “realize[d] that
Van Wormer is in litigation with Local 39.” Wood responded
that she was not. Indeed, when Wood responded to Van
Wormer’s inquiry, Van Wormer was not in litigation with Re-
spondent. The NLRB matter had been resolved; the posting
period was over and no direct challenge to Respondent’s com-
pliance therewith was pending, even if the case had not yet
been formally closed. Nevertheless, Wood testified Bryant
then asked Wood if she remembered the [settlement] notice the
Union had to post. Wood replied that the posting had occurred
6 months earlier.
Wood testified Bryant then asserted that Wood had given
Van Wormer confidential information. Wood replied that she
had only done what she normally did on a daily basis and had
provided the information without any malicious intent.
Wood said Bryant continued, asking if Wood recalled being
told during the staff meeting of August 8, 2002, concerning
Van Wormer’s discharge and job reassignments, that Bryant
had told the staff they were to direct any calls Van Wormer
made to the office to either Bryant or another member of the
managerial staff. Wood said she did not. Certainly, as the
General Counsel observes, Bryant issued no written instruc-
tions to that effect. Bryant testified, that she did give such a
directive. Even so, it appears that it was never reiterated during
the following 9 months.
Bryant was not directly asked about this conversation, but
did testify that Van Wormer’s newly filed small claims suit and
the NLRB charges/settlement had nothing to do with the deci-
sion to discharge Wood.
On May 14, Bryant summoned Wood to a meeting in the of-
fice of one of the Sacramento managers, Perry Bonilla, the
director of public employees division. Bonilla told her that
Bryant had advised him what had happened, that he was very
disappointed in her and that she was being placed on paid ad-
ministrative leave while the Union investigated the matter fur-
ther. On May 16, having been called to the office, Bryant ter-
minated Wood for violating the major misconduct rule, giving
her a discharge memo describing the transgression. (GC Exh.
10.)
The memo stated:
On or about May 5, 2003, you gave confidential dues records
to Lisa Van Wormer who is not a member of Local 39. Dis-
trict Representative Joan Bryant questioned you about this
matter [and] you admitted speaking to Lisa Van Wormer and
. . . giving her three (3) months of dues records.
. . . .
It should also be noted that you were specifically warned and
directed not to speak to Lisa Van Wormer during work time
and to direct all of her phone calls and inquiries to a manage-
ment representative.
. . . .
In addition, you were aware that Lisa Van Wormer had filed
past litigation against Local 39. You were made aware of this
fact on several occasions. The fact that you gave confidential
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD344
information to an individual, who is not a member of the Un-
ion, and who has in the past and has currently filed litigation
against the Union is unacceptable, inappropriate, and terribly
disappointing.
The memo concluded by observing that Wood had suffered
four earlier disciplines: December 29, 2000 (letter of repri-
mand); May 9, 2001 (counseling memo); April 9, 2001 (3-day
suspension); July 3, 2001 (15-day suspension).
III. ANALYSIS AND CONCLUSIONS
A. The Union Membership Requirement
The briefs of both parties on the union membership issue
have been very helpful. The conflicting analyses bring a close
focus upon the issue. The General Counsel asserts that a labor
union may not require its employees to be members, citing
language found in Retail Store Employees Local 428, 163
NLRB 431 (1967), unless that membership is reasonably re-
lated to the employee’s duties. It also cites NLRB v. Michigan
Conf. of Teamsters Welfare Fund, 13 F.3d 911 (6th Cir. 1993),
enfg. 306 NLRB 243 (1992), primarily for contrast purposes.
Respondent cites the same cases, together with some Retail
Store Employees progeny to highlight that its requirement of
union membership is not only job related, it is critical to its
mission, for its employees need to understand the Union’s
goals, since its employee members were expected to attend
membership meetings and stay abreast of what it was seeking
to accomplish, so they would better communicate with the
membership and understand and explain the underlying reason-
ing behind its policies.
Specifically, the Board said in Retail Store Employees, at
432–433:
A union-employer, just as any other employer, may impose
on its employees requirements reasonably related to the
proper performance of their jobs. Here, for example, a field
representative, in conducting the Respondent’s business,
might be asked to explain how the Respondent functions as a
collective-bargaining representative, or why it is desirable for
workers to organize. It is clearly proper for the Respondent to
be concerned about not hiring employees who do not ade-
quately understand or agree with the Respondent’s general
goals as well as its specific methods of operation and ways of
achieving its goals to the extent such understanding is neces-
sary for the performance of their duties.6 We deem it not un-
reasonable, therefore, for a union-employer normally to re-
quire its employees to attend its meetings and fulfill certain
other obligations of regular union membership.7 Indeed, in
this sense and because of the undesirability of a per se rule in
this critical area of labor relations, we believe that a union-
employer’s requirement that its employee belong to it, pay
dues, fees, and assessments to it, and attend its meetings need
not, in and of itself, violate the Act.
. . . .
As indicated above, we recognize that in certain circum-
stances a union, when acting as an employer, may impose
upon its own employees obligations similar to those required
of its members.9 The business needs of a union must, how-
ever, be accommodated to the freedom of its employees to
exercise their rights under the Act, for it is now well settled
that “when a labor union takes on the role of an employer, the
Act applies to its operations just as it would to any other em-
ployer.”10
_________________
6 Cf. Blue Flash Express, Inc., 109 NLRB 591; American
Book-Stratford Press, Inc., 80 NLRB 914, 915. See also Whitin
Machine Works, 100 NLRB 279, 291.
7 The courts have recognized that an employer’s imposition of
certain requirements on its employees sometimes must be viewed
as separate and apart from the proscriptions in the Act. As was
aptly stated by the Supreme Court in N.L.R.B. v. Local Union No.
1229, International Brotherhood of Electrical Workers (Jefferson
Standard Broadcasting Company), 346 U.S. 464, 472–473:
There is no more elemental cause for discharge of an em-
ployee than disloyalty to his employer. It is equally elemental that
the Taft-Hartley Act seeks to strengthen, rather than to weaken,
that cooperation, continuity of service and cordial contractual re-
lation between employer and employee that is born of loyalty to
their common enterprise.
Congress, while safeguarding, in § 7, the right of employees
to engage in “concerted activities for the purpose of collective
bargaining or other mutual aid or protection,” did not weaken the
underlying contractual bonds and loyalties of employer and em-
ployee.
See, also, N.L.R.B. v. International Ladies’ Garment Work-
ers’ Union, AFL—CIO (Slate Belt Apparel Contractors’ Assn.),
274 F.2d 376 (C.A. 3).
. . . .
9 With respect to attendance at union meetings, we note that
the Trial Examiner limited his unfair labor practice findings to the
office clerical employees, recognizing that in order for the Re-
spondent to function properly it might be necessary for the Re-
spondent to require its field representatives to attend such meet-
ings.
10 Office Employees International Union, Local 11 v.
N.L.R.B., 353 U.S. 313. See also Oregon Teamsters’ Security
Plan Office, 119 NLRB 207; Seafarers International Union of
North America, Great Lakes District, 138 NLRB 1142.
Respondent observes that the employees, and Wood in par-
ticular, have access to private information about its members,
but also participate in the collective-bargaining/contract ad-
ministration processes. Wood even served as the secretary to at
least one business agent and had the responsibility to track
contracts coming up for renewal and to type contract proposals
as well as final agreements. Respondent argues that it is essen-
tial that such a person be closely attuned to the needs of the
Union. That bond, it argues, can only be acquired through
holding the same membership as its represented members.
In fact, the General Counsel does not directly meet that ar-
gument. He appears to concede these facts, but argues that
there is still an insufficient nexus to the employees’ actual du-
ties, arguing that the record is inadequate on the point. I dis-
agree. I find that not only does Wood’s testimony support Re-
spondent, so does the job description and the fact that employ-
ees are required to be able to perform an absent colleague’s
duties. There is a great deal of crossover among the clericals.
Since the focus of the evidence is primarily upon Wood, and
the requirement that she be a member, it would be inappropriate
to over-generalize about all types of workers the Union may
OPERATING ENGINEERS LOCAL 39 345
employ and whether they all can be required to join. I simply
observe that Wood and the clericals who perform duties dealing
with membership issues and collective bargaining are perform-
ing the type of work which permits Respondent to require them
to be members and thus sisters or brothers to the members it
represents.
This in no way prohibits the clerical staff from utilizing Sec-
tion 7 for the purpose of mutual aid and protection, including
the election procedures under Section 9 or the enforcement of
rights under Section 8(a). Respondent, in posting the remedial
notice in the Stenzel/Van Wormer settlement, clearly stated it
would not represent its own employees in collective bargaining
and its employees were free to seek representation by another
union and if that union obtained majority status, Respondent
would bargain with it. Moreover, even if it had not been com-
pelled to make those statements as part of the settlement
agreement, its failure to do so, in an atmosphere free of unfair
labor practices, is not an independent violation of the Act, but is
instead a remedial matter. See Teamsters Local 688 (Corrine
C. Freant), 215 NLRB 852 (1974), where the Board said:
The administrative law judge found, and we agree, that Re-
spondent Union violated Section 8(a)(1), (2), and (3) by nego-
tiating and entering into a collective-bargaining agreement
with itself and by requiring its employees to join Respondent.
The Administrative Law Judge also properly found that Re-
spondent did not commit additional 8(a)(1) and (2) violations
by failing, prior to the commencement of negotiations, to ad-
vise its employees of their rights under Section 7 of the Act.
However, we believe that it will effectuate the purposes of the
Act to expand the administrative law judge’s remedy for Re-
spondent’s unlawful conduct by now requiring it to advise the
employees of their Section 7 rights.
In connection with the discussion about membership being a
legitimate requirement of employment by a labor union, I can-
not find that Business Manager Kalmar on November 18, 2002,
told employees that they had to be members of the Union in
order to be eligible for Respondent’s benefit plans. However,
consistent with the prerequisite that the clericals become union
members, he did tell them that they had to be members to have
access to union membership information. Undoubtedly this
was due to his perception, if not the clericals’, that their jobs
were closely connected to the overarching task of representing
persons employed in the building engineering industry and
membership of the Union’s own employees was deemed to be
vital to that task.
In that circumstance it is really not necessary to deal with
clerical membership insofar as union benefit plans are con-
cerned. I do observe that these employees were covered by the
benefit plans regardless of their membership. But since mem-
bership was required for employment, there would be no point
in telling employees that membership was also required in or-
der to participate in the fringe plans. That would have been
entirely unnecessary, since if they were employed, a fortiori,
they would already be members and as employees, eligible for
the plans. Furthermore, the General Counsel did not offer any
language utilized by the plans in question which would lead me
to a different conclusion. If the plans required membership, the
General Counsel’s theory becomes plausible. If not, it is less
so. Here, the absence of any evidence from the plans requiring
membership renders the allegation less likely. All this together
requires the conclusion that the General Counsel has not proven
that Kalmar told the employees on November 18, 2002, that
membership was an eligibility requirement of the fringe benefit
plans.
B. Wood’s Discharge
The General Counsel condemns Respondent’s discharge of
Wood (and her preliminary suspension) on two separate
grounds. It principally asserts that the discharge was a viola-
tion of Section 8(a)(4) based on statements made by Bryant and
because of language in the discharge memo. It also asserts it
independently violated Section 8(a)(1) because Wood appeared
to have been assisting Van Wormer in the vindication of a per-
ceived employee right. These will be dealt with separately.
The Supreme Court has held that Section 8(a)(4) is to be
given a broad interpretation, despite its narrow language.4 This
is because that section is designed to provide and protect em-
ployee access to the Board. NLRB v. Scrivener, 405 U.S. 117
(1972); General Services, Inc., 229 NLRB 940, 943 (1977). As
a result, the statute protects not only employees who file
charges or cooperate with the Board, but those who are closely
connected to those employees as well. An employer’s trans-
ferred illegal purpose will protect a dischargee if that transfer is
linked to an employee or institution that actually invoked the
Board’s processes. Norris Concrete Materials, 282 NLRB 289,
291–292 (1986) (violation of Sec. 8(a)(4) where employer dis-
charged father as reprisal for son’s having file unfair labor
practice charge); Yukon Mfg. Co., 310 NLRB 324
(1993) (violation of Sec. 8(a)(4) where employer laid off fellow
employees in response to individual employee filing charges).
The transferred purpose theory is frequently seen in 8(a)(3)
cases. See, for example, Harbor Cruises, 319 NLRB 822, 841–
842 (1995) (discharge of son for pretextuous reason violated
Sec. 8(a)(3) because real object was reprisal for mother’s union
activity). The concept has even protected business contracts.
See Operating Engineers Local 400, 265 NLRB 1316 (1982)
(union employer violated Sec. 8(a)(1) when it canceled wife’s
janitorial contract because her husband engaged in union orga-
nizing activity, since the retaliation had an inhibitory effect on
the exercise Sec. 7 rights by statutory employees.)
With that concept in mind, I look to the evidence. First is
Wood’s unchallenged testimony that on May 12, Bryant, after
confirming that Wood had given Van Wormer the dues infor-
mation, asked Wood if she “realize[d] that Van Wormer is in
litigation with Local 39” (as of the date of the telephone call,
May 5). The only “litigation” that Van Wormer had directed
toward Respondent was her unfair labor practice charge (settled
6 months earlier). This was followed by the discharge memo in
which Bryant stated, inter alia: “[Y]ou were aware that Lisa
Van Wormer had filed past litigation against Local 39 . . . .The

4 Sec. 8(a)(4) in its entirety states: “It shall be an unfair labor prac-
tice for an employer—to discharge or otherwise discriminate against an
employee because he has filed charges or given testimony under this
Act.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD346
fact that you gave confidential information to an individual,
who is not a member of the Union, and who has in the past and
has currently filed litigation against the Union is unacceptable,
inappropriate, and terribly disappointing.” (Emphasis added.)
Thus, in two separate communications, Bryant referenced the
fact that Wood’s conduct was connected to Van Wormer’s
filing an unfair labor practice charge. And, it is worth noting,
that Van Wormer’s charge, albeit joined with Stenzel’s, trig-
gered a severe change in the manner in which Respondent was
required to deal with its employees. More important than being
required to return a manageable amount of dues, Respondent
could no longer shield itself from scrutiny via the collective
bargaining contract it had had with itself. That deprived it of a
comfort system that had been in place for many years. Now it
had become exposed to the same sort of outside matters all
nonunion employers face.
These circumstances qualify as a prima facie case under Sec-
tion 8(a)(4), for the statements are an admission that it per-
ceived Wood as connected to Van Wormer’s NLRB litigation
against it. Why Respondent arrived at that perception is not
clear; plainly it did so, but its logic eludes me.5 It then used
that conclusion as a reason to discharge Wood. Nevertheless,
since Wood’s Van Wormer connection constituted a significant
share of Respondent’s decision, the elements of the prima facie
case have been established.
Indeed, its defense really does not address the prima facie
case very well. Its response takes two tacks. First, it asserts
that Wood failed to follow (even defied) an outstanding instruc-
tion not to speak to Van Wormer on the office telephone and to
direct all of Van Wormer’s calls to one of the managers. Sec-
ond, it argues that Wood improperly provided “confidential”
information to Van Wormer, her own dues records.
The truly curious thing about Respondent’s defense is that it
never understood that Wood really had no connection to Van
Wormer at all. She was the unlucky recipient of Van Wormer’s
phone call that day. It is true that Wood is on good terms with
Van Wormer. That can probably be said of any of the clericals
who, like Wood, were unaware of the reasons for Van
Wormer’s discharge. Indeed, Respondent did not provide to
the remaining clericals any reason for Van Wormer’s discharge.
Wood recalls that Bryant, during the announcement, did refer to
something “legal” pertaining to the discharge, but further clari-
fication never transpired. Wood was not aware of any ongoing
dispute between Respondent’s management and Van Wormer,
although she surmised that they were not on good terms. She
did recall that Bryant told her when Van Wormer was fired,
that staff members were not to call Van Wormer during work
time (to commiserate) and that she did so after work that night.
She later called Van Wormer from the office during the
Christmas season, some 5-1/2 months after her discharge to

5 It is probably accurate to say that Respondent’s antipathy toward
Van Wormer is based on two things. The first is its conclusion that Van
Wormer was dishonest and a source of possible corruption. The second
is Van Wormer’s ability, despite her revealed dishonesty, to prevail
before the Board with her unfair labor practice charge. With those two
items as a predicate, it looks as if Van Wormer had had the last word
and Respondent resented it.
thank Van Wormer for some flowers she had sent the clericals.
Even then, she never spoke to Van Wormer, only leaving a
message on an answer machine.6
Because Respondent never understood that Wood was not
connected in any way to Van Wormer, the connection it sees is
based upon a mistake. It incorrectly believed Wood was pro-
viding assistance to Van Wormer because the two were confed-
erates of some sort. From a legal viewpoint that mistake
amounts to Respondent’s admission that its principal motive
was to punish Wood for cooperating with Van Wormer. Re-
spondent’s aversion toward Van Wormer was so great it did not
want to deal with Van Wormer in any way or even deal with
her indirectly through a surrogate. It saw Van Wormer as an
enemy or turncoat, one to be shunned, and anyone cooperating
with her was instantly deemed a coconspirator. This attitude
contaminated its thought process when it drew a connection
between Van Wormer and Wood.
Such poisoned thinking led Respondent to discharge Wood.
Even so, that motive does not provide Respondent any refuge
from Section 8(a)(4), for its admissions still stand. In fact, it
has offered reasons for the discharge which do not even begin
to withstand scrutiny and seem to be make-weight, if not pre-
textuous.
Its first reason, the claim that Wood didn’t follow Bryant’s
outstanding instruction to route all of Van Wormer’s calls to
higher management is not persuasive. First, there is only Bry-
ant’s testimony that such an instruction was given; she has not
been corroborated. If such a directive was given, it was never
reduced to writing and could not possibly have been seen by the
clerical staff as anything but a momentary instruction destined
to become stale as soon as Van Wormer’s discharge faded from
memory. Second, on its face the announcement could not rea-
sonably be seen to apply to routine membership matters, such
as providing dues records to a member. The clerical staff pro-
vided dues information so frequently to any member who
asked, the procedure had long since acquired a momentum of
its own. If Bryant intended her instruction to apply to dues
information, the directive was too unclear and too mild to have
stopped this habitual and routine clerical procedure. In fact,
Bryant didn’t even become alarmed about it until she realized
Van Wormer had used the information to support her small
claims suit.7
The second reason, connected to the first, is Respondent’s
contention that confidential information cannot be provided to a
nonmember such as Van Wormer and that in doing so Wood
breached the misconduct rules. This reason is misleading.
There is no evidence that Wood or any clerical knew that Van
Wormer was no longer a member. There is no evidence on this
record that she had been expelled or had somehow lost her

6 Respondent learned of this brief call after it had suspended Wood.
7 Counsel for Respondent’s argument that Wood’s providing the
dues information undermined the discovery procedures of the state
courts and therefore qualified as misconduct borders on the silly. It,
too, relies upon the mistaken belief that Wood was in cahoots with Van
Wormer. In any event, Wood had no reason to know a state court
proceeding was Van Wormer’s objective. Besides, there is no discov-
ery in California small claims court.
OPERATING ENGINEERS LOCAL 39 347
membership. Moreover, the computer screen showed only that
Van Wormer was a “suspended” member. Suspended members
are considered members for dues purposes, since it is usually a
suspended member who is inquiring about dues information.
The appellation “suspended” offered no signal that Wood was
breaching a rule barring her from providing information about a
member’s own dues. In addition, the fact that Van Wormer no
longer worked for Respondent is not determinative of whether
she had lost her membership. For all anyone might know, Van
Wormer may have found a job in one of the industries the In-
ternational Union of Operating Engineers services. A sus-
pended member might well want to know what her dues status
was as she came into such a field. Beyond that, I am of the
view that the Labor-Management Reporting and Disclosure Act
of 1959 (the LMRDA), sometimes known as the Landrum-
Griffin Act, requires a labor union to provide such information
to a member, whether active, suspended or expelled. (See 29
U.S.C. § 411(a)(5).) A member’s own dues information is not
confidential to that member—it is proprietary to him or her.
Respondent’s contention on the issue is without merit and de-
serving of no weight. It is an obvious red herring.
In some respects, giving these defenses the credence of dis-
cussion is unproductive. Respondent’s admissions are control-
ling, since Respondent itself has given primacy to Wood’s per-
ceived alliance with Van Wormer. Its own words undermine
the other reasons. Van Wormer had filed NLRB charges and
Respondent used that fact as a warrant to discharge Wood.
Claims of rule violations simply do not change that fact, par-
ticularly since they are unpersuasive. Accordingly, I find, in
agreement with the General Counsel, that Respondent violated
Section 8(a)(4) of the Act when it discharged Wood.
For that reason it is really unnecessary to probe the General
Counsel’s alternative theory, that under Section 8(a)(1) Wood
was perceived as offering Van Wormer Section 7 “mutual aid
and protection”8 in prosecuting her small claims lawsuit to
recover wrongfully collected dues. I will make no findings on
the point, but do observe that Van Wormer’s suit itself had no
purpose other than to vindicate her personal claim. It was not
aimed at the mutual benefit of anyone else. Usually Section 7
protects employees who seek to vindicate employee rights in
forums outside the workplace, such as a State legislature or a
court of law. Eastex, Inc. v. NLRB, 437 U.S. 556 (1978); Altex
Ready Mixed Concrete, 223 NLRB 696 (1976), enfd. 542 F.2d
295 (5th Cir. 1976). However, where the lawsuit is designed
only for an individual plaintiff, Section 7 will not protect the
individual. Briley Marine, 269 NLRB 697 (1984) (Employee’s
Jones Act suit was not protected because he had “acted alone
and solely on his own behalf.”).

8 Sec. 7 reads, in pertinent part: “Employees shall have the right to
self-organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection.”
One may then properly query whether Wood providing fac-
tual data to Van Wormer in support of her personal suit consti-
tuted a concerted act of mutual aid and protection as contem-
plated by Section 7. I believe a credible argument can be con-
structed here to the effect that it did not, since Van Wormer was
no longer a statutory employee, having been fired for good
cause.9 Wood’s conduct, therefore, would not be qua employee
and mutual aid and protection of employees would not be im-
plicated. Cf., AFSCME, 262 NLRB 946 (1982), where a full
Board unanimously held that an employee who testified in state
court on behalf of his supervisor to vindicate the supervisor’s
rights under a strike settlement agreement was not engaging in
Section 7 activity, since supervisors are not 2(3) employees.
However, it is unnecessary to provide an answer as it relates to
Wood and I decline to do so. In any event, the remedy would
essentially be the same as the remedy being ordered under Sec-
tion 8(a)(4).
IV. THE REMEDY
Having found Respondent to have engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act. Additionally, it will be ordered to take
certain affirmative action including offering Rebecca Wood
immediate reinstatement and to make her whole for any loss of
earnings and other benefits she may have suffered, computed
on a quarterly basis from the date of her discharge to the date of
a proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). Furthermore, Respondent shall be re-
quired to expunge from Wood’s personnel file any reference to
her illegal discharge. Sterling Sugars, 261 NLRB 472 (1982).
Finally, it shall be directed to post a notice to employees advis-
ing them of their rights and describing the steps it will take to
remedy the unfair labor practice which has been found.
Based on these findings of fact, legal analysis, and the record
as a whole, I make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce and in
an industry affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. On May 14 and 16, 2003, Respondent violated Section
8(a)(4) and (1) of the Act when it first suspended and then dis-
charged its employee Rebecca Wood because she was believed
to have been allied with a former employee who had filed un-
fair labor practice charges with the Board.

9 Sec. 2(3) of the Act defines who are employees. It includes indi-
viduals who have lost their jobs due to a labor dispute or because of an
unfair labor practice. It does not include former employees who are
filing personal lawsuits against their former employer and who have
lost their jobs for other reasons.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD348
3. The General Counsel has failed to prove any other allega-
tion of the complaint.
[Recommended Order omitted from publication.]