Radio-Electronics Officers Union

National Labor Relations Board - Board Decisions

Jan 21, 1992

306 N.L.R.B. 43 (N.L.R.B. 1992)

43
306 NLRB No. 6
RADIO-ELECTRONICS OFFICERS UNION
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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 reversing the findings.
2 We affirm the judge’s finding that the Respondent unlawfully re-
fused to allow Harry Dunleavy to register for referral because he had
not paid a fine for violation of hiring hall rules. We agree with the
judge, for the reasons stated in his decision, that the Respondent
failed to show that it would have refused to allow Dunleavy to reg-
ister even if he had paid the fine. In this regard, we note that, con-
trary to the Respondent’s contention that Dunleavy was not eligible
for referral because he had not taken mandatory vacation time, the
Respondent’s attorney, in a letter to the Board’s Regional Director’s
office, admitted that ‘‘the Hiring Hall is unaware of whether Mr.
Dunleavy has taken the mandatory vacation time.’’
3 The General Counsel has excepted to the judge’s failure to re-
quire, in addition to the usual notice posting, that the Respondent
mail copies of the notice to all members and users of its hiring hall
in order to apprise them of their rights under the Act. Because the
evidence shows that the Respondent’s hiring hall refers applicants
for employment on a nationwide basis, we agree with the General
Counsel that the imposition of a mailing requirement is appropriate
here. We shall modify the judge’s recommended Order accordingly. 4 All dates are in 1988 unless otherwise noted.
Radio-Electronics Officers Union and Michael F.
Harris and Harry Dunleavy and Sea Land
Service, Inc., Party in Interest. Cases 15–CB–
3458, 15–CB–3469–3, and 15–CB–3488–2
January 21, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On April 25, 1990, Administrative Law Judge Wil-
liam N. Cates issued the attached decision. The Gen-
eral Counsel and the Respondent filed exceptions and
supporting briefs, and the General Counsel filed an an-
swering 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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 as modified below and to adopt the rec-
ommended Order as modified.3
The judge found, inter alia, that the Respondent
Union violated Section 8(b)(1)(A) and (2) of the Act
in the operation of its exclusive hiring hall by remov-
ing Michael F. Harris from its referral registers for
nonpayment of dues and by the operation of its rule
requiring the timely payment of dues for continued
registration on its referral lists. For the reasons that
follow, we agree with the judge that the Respondent
violated Section 8(b)(1)(A) by operating its hiring hall
in this manner.
The Respondent is a national labor organization rep-
resenting members and others employed as radio offi-
cers, radio electronics officers, and master radio elec-
tronics officers on vessels of the United States Mer-
chant Marine Fleet, as well as other oceangoing freight
transportation vessels. Pursuant to its collective-bar-
gaining agreements with various employers and em-
ployer associations, the Respondent operates a hiring
hall that serves as the exclusive source of referrals of
radio officers to the various employers. The Respond-
ent prepares both a national shipping list and the on-
hand list under its shipping rules for job registrants.
The national shipping list, which the Respondent nor-
mally prepares on or about the first of each month, es-
tablishes a ranking of eligible users of the hiring hall
for referrals. An applicant for employment must reg-
ister on the national shipping list in order to be eligible
for referral. The applicant then makes a separate writ-
ten request for placement on any of the Respondent’s
three different on-hands lists, which are prepared
weekly and which establish the order of referral for
jobs on vessels based in the Atlantic, Gulf, and Pacific
waters.
Harris was a long-time union member who from
time to time had utilized the Respondent’s hiring hall.
By letter dated March 15, 1988,4 Harris requested that
the Respondent place him on the Atlantic coast on-
hand list and the Respondent did so. It is undisputed
that Harris did not pay his second quarter dues, which
were payable on or before April 1. By computer-gen-
erated action on April 1, the Respondent then auto-
matically removed Harris from its national shipping
list and sent Harris a form letter notifying him of this
action. Thus, Harris no longer was eligible for referral
from the Respondent’s hiring hall.
Thereafter, on August 11, the Respondent’s mem-
bership through a referendum conducted by the Amer-
ican Arbitration Association voted to raise the quar-
terly dues from $75 to $100 and to amend the bylaws
as set forth below. Based on this vote, the Respondent
has maintained in effect and enforced the following
bylaws since at least November 1:
Dues are required to be received by the Union at
least fifteen days prior to the end of each calendar
quarter and timely receipt of payment of dues (or
fees as the case may be shall be required in order
to permit registration or continuation of registra-
tion on appropriate shipping lists.
The Respondent’s president, Thomas Harper, testified
that under the new amendments the Respondent sends
a mailing between 15 days before the beginning of
each new calendar quarter and the actual start of the
quarter informing applicants who are delinquent in
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 See Breininger v. Sheet Metal Workers Local 6, 493 U.S. 67
(1989).
6 See Miranda Fuel Co., 140 NLRB 181, 184 (1962). 7 Operating Engineers Local 18, 204 NLRB 681 (1973).
their dues or fees that the Respondent will delete their
names from its referral lists unless they pay the
amounts owed.
The judge found that the Respondent violated Sec-
tion 8(b)(1)(A) and (2) of the Act by removing Harris
from the national shipping list for nonpayment of dues
without first providing him with notice of his delin-
quency and affording him a reasonable opportunity
thereafter to meet his obligation prior to being dropped
from the shipping list. In reaching this conclusion, the
judge stressed that before removing a dues-delinquent
applicant from its referral register, a union has a fidu-
ciary duty arising from its union-security clause to no-
tify the individual of his delinquency and give him a
reasonable opportunity to satisfy his dues obligations.
The judge found that the Respondent failed to afford
Harris these procedural protections and that, therefore,
Harris’ removal from its out-of-work list violated the
Act.
The Respondent points out in its exceptions that the
record is devoid of evidence that any collective-bar-
gaining agreement to which it is a party has a union-
security clause. In these circumstances, the Respondent
argues that its legitimate requirement that all reg-
istrants pay a uniform quarterly fee in advance was
nondiscriminatory and did not coerce employees in the
exercise of their Section 7 rights. The Respondent
therefore urges the Board to find that its hiring hall op-
erations did not violate the Act.
In considering this issue, we initially note that, as
the Respondent has asserted, the General Counsel has
failed to present evidence that any collective-bar-
gaining agreement providing for the operation of the
Respondent’s hiring hall contains a union-security
clause. Nevertheless, we emphasize that the Respond-
ent has not contested the judge’s finding that its hiring
hall is the exclusive source of referrals for the employ-
ers and employer associations who are signatory to the
applicable collective-bargaining agreements. It is well
established that, as the operator of an exclusive hiring
hall, the Respondent owes a duty of fair representation
to applicants using that hall.5 As part of its duty of fair
representation, the Respondent has an obligation to op-
erate the exclusive hiring hall in a manner that is not
‘‘arbitrary or unfair.’’6 The Board has reasoned that
whenever a union prevents an employee from being
hired, it demonstrates its power and influence over his
livelihood so dramatically as to compel an inference
that the effect of the union’s action is to encourage
union membership on the part of all employees who
have perceived the display of power. A union may
overcome that inference, however, either by acting pur-
suant to a valid union-security clause or by showing
that its action was necessary to the performance of its
representative function.7 The Respondent has failed to
overcome that inference. There is no evidence of a
union-security clause here, and the Respondent has not
shown that removing Harris from the national shipping
list in the manner it did was necessary to the effective
performance of its representative function.
Thus, we find that the Respondent had a duty to no-
tify members and other applicants for employment of
any dues or fees they owe and to give them a reason-
able opportunity to remit payment before removing
their names from its referral registers. We further con-
clude that in this case the Respondent acted arbitrarily
and unfairly by removing Harris from the national
shipping list for nonpayment of dues and by the oper-
ation of its rule described above requiring the timely
payment of dues for continued registration on the var-
ious shipping lists the Respondent maintains. Although
the Respondent argues that it gave Harris notice of his
dues obligation by setting forth the requirement in its
bylaws and by occasionally mentioning it in monthly
newsletters distributed to the membership, such general
notification of the dues requirement is insufficient, in
our view, to justify the Respondent’s removal of Har-
ris’ name from the referral list. We find, rather, that
in light of its obligation to operate the hiring hall fairly
and impartially the Respondent was obligated to give
Harris specific notice of his particular financial defi-
ciency before taking action that would be detrimental
to Harris’ employment opportunities. Further, regard-
ing the application of the Respondent’s November
1988 rules revision, we stress that the Respondent’s
own witness, President Harper, testified that under the
new amendments the Respondent sends a mailing at
some point between 15 days before the beginning of
each new calendar quarter and the actual start of the
quarter informing applicants of any dues or fees delin-
quency. Based on Harper’s testimony, we agree with
the judge that the Respondent has not afforded appli-
cants who are in arrears on dues or fees a reasonable
time to make these payments.
Thus, for these reasons, we adopt the judge’s find-
ings that the Respondent violated Section 8(b)(1)(A) of
the Act by removing Harris from its referral registers
and by the operation of the November 1988 rule re-
quiring the timely payment of dues for continued reg-
istration.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Radio-
Electronics Officers Union (Radio Officers Union),
Panama City, Florida, its officers, agents, and rep-
45RADIO-ELECTRONICS OFFICERS UNION
1 I have considered all record evidence and positions taken by the
parties in argument at trial or in their posttrial briefs whether alluded
to in this decision or not.
resentatives, shall take the action set forth in the Order
as modified.
Insert the following as paragraph 2(d) and reletter
the subsequent paragraph accordingly.
‘‘(d) Mail a copy of the notice to all members and
users of the Respondent’s hiring hall. The Respondent
shall mail the notices to the last known address of each
member and applicant for employment at its hiring
hall.’’
Joseph B. Morton III, Esq., for the General Counsel.
Ernest Allen Cohen, Esq. (Marchi, Jaffe, Steinberg, Crystal,
Katz & Burke), of Tucson, Arizona, for the Respondent.
DECISION
STATEMENT OF THE CASE
WILLIAM N. CATES, Administrative Law Judge. These
cases were tried before me in Panama City, Florida, on No-
vember 8 and 9, 1989, based on various unfair labor practice
charges filed by Michael F. Harris (Harris) and Harry
Dunleavy (Dunleavy) against the Radio Officers Union,
Radio Electronics-Officers Union (the Union). An order con-
solidating cases, consolidated complaint and notice of hear-
ing (complaint) was issued by the Regional Director for Re-
gion 15 of the National Labor Relations Board (Board) on
January 31, 1989. The charge in Case 15–CB–3487 (for-
merly Case 22–CB–5892–5) filed by Harris on June 8, 1988,
related in general terms to a hiring hall classification
grandfathering provision. That charge was settled by agree-
ment of the parties at the conclusion of the hearing on No-
vember 9, 1989. That case was severed from the remaining
cases and remanded to the Regional Director for Region 15
of the Board for compliance. The charge in Case 15–CB–
3488–1 (formerly Case 22–CB–5895–1) filed by Harris on
June 6, 1988, involved allegations that 35 unidentified indi-
viduals were dropped from the Union’s shipping lists without
adequate notice of dues delinquencies. That charge was with-
drawn by counsel for the General Counsel in his posttrial
brief. Accordingly, no consideration will be given to the alle-
gations of that case. The charge in Case 15–CB–3488–2 (for-
merly Case 22–CB–5895–2) filed by Harris on June 6, 1988,
alleges the Union violated Section 8(b)(1)(A) and (2) of the
Act, by removing Harris from its national shipping list for
nonpayment of dues without first providing him with notice
of his delinquency and without affording him a reasonable
opportunity to meet his obligations in that respect. The
charge in Case 15–CB–3469–3 filed by Harris on December
6, 1988, alleges that the Union by maintaining bylaws which
require the timely receipt of dues payments in order for radio
officers to register or to continue registration on its shipping
lists without advance notice to delinquent members that they
are in fact delinquent violates Section 8(b)(1)(A) and (2) of
the Act. The charge in Case 15–CB–3458 (formerly Case
22–CB–6000) filed by Dunleavy on November 14, 1988, al-
leges the Union violated Section 8(b)(1)(A) and (2) of the
Act by refusing to register Dunleavy for referral from its ex-
clusive hiring hall because he failed to pay a fine and/or for
reasons other than his failure to tender periodic dues and ini-
tial fees uniformly required as a condition of acquiring or re-
taining membership in the Union.
The parties were afforded full opportunity to examine and
cross-examine witnesses, to argue orally, and to submit
briefs. Briefs which have been carefully considered were
submitted by counsel for the General Counsel and counsel
for the Union.
On the entire record,1 including my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
I. THE COMPANY’S BUSINESS AND THE UNION’S LABOR
ORGANIZATION STATUS
At all times material Sea Land Service, Inc., a corporation
with and an office and place of business in Edison, New Jer-
sey, has been engaged in the interstate and international
transportation of freight. During the 12 months preceding the
issuance of complaint, Sea Land Service, Inc. derived gross
revenues in excess of $50,000 for the transportation of
freight between the States of the United States and between
the United States and foreign countries. The complaint al-
leges, the Union admits, and I find Sea Land Service, Inc.
is, and at all times material has been, an employer engaged
in operations affecting commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
The complaint alleges, it is admitted, and I find the Union
is, and all times material has been, a labor organization with-
in the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union is a national labor organization representing
members and others employed as radio officers, radio elec-
tronics officers, and master radio electronics officers on ves-
sels of the United States Merchant Marine Fleet as well as
other oceangoing freight transporting vessels. The Union and
various employer-associations and employers, including Sea
Land Service, Inc., are parties to collective-bargaining agree-
ments requiring that the Union be the sole and exclusive
source of referrals of radio officers to employment with the
various employers. The Union operates its hiring hall under
both general and national shipping rules, which rules are
made part of the collective-bargaining agreements between
the Union and various employer-associations as well as other
employers. Additionally, such shipping rules are incorporated
into the bylaws of the Union. The shipping rules utilized by
the Union establishes, among other things, a system for the
distribution of job assignments to users of its hiring hall. The
Union’s shipping rules provide for two shipping lists. The
two lists are the national shipping list and the on-hand list.
The national shipping list establishes a ranking of eligible
users of the hiring hall for referrals. Anyone wishing to use
the hiring hall must submit a written request to be placed on
the national shipping list. The national shipping list is nor-
mally prepared on or about the first of each month and the
listings are based on information received in the form of
written requests that are received prior to close of business
on the first day of each month. After requesting to be placed
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Prior to August 1988 the on-hand lists were prepared on a bi-
monthly basis.
3 Harris was not present at any time during the hearing.
4 Harris’ written request reads as follows: ‘‘Available on-hand At-
lantic permanent assignment Sea Land Econo Ship, 22 March 88—
4 April 88. No collect calls accepted.’’
5 As is noted elsewhere in this decision no user of the hiring hall
can be placed on an on-hand list for any location without first being
on the Union’s national shipping list.
on the national shipping list a user of the hiring hall must
submit a separate written request for placement on the
Union’s Atlantic, Gulf, or Pacific on-hand lists. The on-hand
lists are prepared on the first day of each week and the list-
ings are based on the rankings set forth in the most recent
national shipping list. The on-hand lists for the specific areas
are the lists that are actually used to dispatch users of the
hiring hall to available assignments. Simply stated a user of
the hiring hall must be on the national shipping list in order
to thereafter be listed on the weekly on-hand lists from
which all referrals are made.2
In order to better understand the facts set forth and to un-
derstand the legal conclusions drawn therefrom it is helpful
to note the following portions of the Union’s shipping rules:
ARTICLE NINETEEN—NATIONAL SHIPPING LIST
RULES
SECTION 1. A member must be in good standing to
be placed on the National Shipping List, and must re-
main so to continue his employment. Non-members
must pay the current quarterly service fee to be placed
on the National Shipping List and must continue to pay
the quarterly service fee during the period of their em-
ployment.
SECTION 2. Registration for placement on the Na-
tional Shipping List shall be made in writing or in per-
son at any port office. Numbers in the appropriate
group for which a Radio Officer is eligible shall be as-
signed as of the date such registration is received.
SECTION 3. The National Shipping List will be up-
dated monthly on the first business day of each month.
SECTION 4. Radio Officers may request placement
on the National Shipping List in writing when off a
vessel for vacation or any other reason. Upon assign-
ment for more than fourteen (14) days the Radio Offi-
cer’s name shall be removed from the list.
SECTION 5. Should an error occur on the National
Shipping List, the error will be corrected immediately
when discovered.
ARTICLE TWENTY—SHIPPING RULES
SECTION 1. In order to provide the maximum
amount of work for the largest number of Radio Offi-
cers and to equalize employment opportunities:
a. Each Radio Officer shall take all vacation accrued
when requesting a relief, or when leaving a temporary
assignment.
b. A Radio Officer is required to take a mandatory
vacation upon accrual of ninety (90) days vacation ben-
efits, except as set forth in paragraph (d) of this Sec-
tion. This rule will apply at the end of the voyage
and/or port period.
c. Upon recommendation of the District Administra-
tive Council and with the approval of the District Exec-
utive Council, the ninety (90) days rule may be modi-
fied to meet existing circumstances.
d. A Radio Officer attached to a vessel on extended
voyages which may exceed six (6) months or attached
to a vessel on an overseas shuttle route may remain em-
ployed on the vessel for six (6) months before request-
ing a vacation in accordance with Section 1.a. above.
B. Removal of Harris from the National Shipping List
for Nonpayment of Dues
As noted earlier it is alleged in Case 15–CB–3488–2 that
the Union violated Section 8(b)(1)(A) and (2) of the Act,
when on April 1, 1988, it dropped Harris from its national
shipping list for nonpayment of dues without adequate notice
of his dues delinquency. The operative facts, some of which
are set forth earlier in this decision, related to Harris are not
in dispute.3 As of April 1, 1988, Harris had been a long-time
member of the Union and had from time to time utilized the
Union’s hiring hall. In a letter dated March 15, 1988, and re-
ceived by the Union on March 19, 1988, Harris requested
that he be placed on the Atlantic Coast on-hand list.4 Harris
was placed on the next Atlantic Coast on-hand list, however,
he did not thereafter request to be on any future on-hand
lists.5 Harris did not pay his second quarter dues which were
payable on or before April 1, 1988. On April 1, Harris was,
by computer generated action, automatically removed from
the Union’s national shipping list. A form letter was sent to
Harris on April 1 that informed him:
Date [April 1, 1988]
Dear Brother: [Harris]
You are being dropped from the National Shipping List
because you are in arrears in dues for the following
quarter/quarters: [Second Quarter 1988]
Please remit [$75] to be in good standing with the
Radio-Electronics Officers Union.
Please reregister after dues are paid.
Union President Thomas C. Harper (Harper) testified Harris
was not given any individualized advance notice prior to his
being dropped from the national shipping list on April 1,
1988, for nonpayment of dues. Harris, as well as all union
members, were mailed union newsletters generally on a
monthly basis. In its February, April, and December 1987
Newsletters, the Union advised its members they had to be
in good standing with the Union to be on its national ship-
ping list as well as any on-hand lists. For example, the April
1987 newsletter contained a portion captioned ‘‘Dues Prob-
lems’’ which read as follows:
NINE MEMBERS WERE DROPPED FROM THE
APRIL NATIONAL SHIPPING LIST FOR NON-PAY-
MENT OF DUES. MEMBERS ARE REQUIRED TO
BE IN GOOD STANDING TO GET ON THE LIST.
AND THEY ARE REQUIRED TO BE IN GOOD
STANDING TO STAY ON THE LIST. THE COM-
PUTER IS MERCILESS, AND EVEN IF YOU ARE
NUMBER 1 WHEN YOU GET BEHIND IN PAY-
MENT OF DUES, YOU WILL BE DROPPED FROM
47RADIO-ELECTRONICS OFFICERS UNION
6 Counsel for the General Counsel does not challenge the union-
security or the hiring hall provisions in the instant case.
THE LIST IMMEDIATELY. THE BEST WAY TO
AVOID THIS IS TO PAY BY THE YEAR. 4/4/87
President Harper testified he was not aware of any notice of
any kind being sent to Harris between December 1987 and
April 1, 1988, regarding delinquent dues.
It is undisputed that Harris did not pay his union member-
ship dues for the second quarter of 1988. Nor is it disputed
that he was automatically removed from the Union’s national
shipping list on April 1, 1988, because he had not timely
paid his dues. Against that backdrop counsel for the General
Counsel urges that a union has a duty to deal fairly with its
members before it enforces the terms of any union-security
provisions6 against them. The Union does not take issue with
the above stated principle but simply urges it dealt fairly
with Harris and other like situated users of its hiring hall.
Counsel for the General Counsel asserts the Union failed to
meet its minimum fair duty obligation of (1) notifying Harris
of his dues delinquency, (2) advising him of the amount
owed and the method and manner that amount was arrived
at, and (3) providing him a reasonable opportunity to comply
with the obligations imposed by the union-security clause be-
fore dropping him from its national shipping list. The Union
urges it gave Harris and others adequate advance notice (1)
by its published shipping rules and bylaws namely article
XIX, section 1, that reads in pertinent part ‘‘A member must
be in good standing to be placed on the National Shipping
List, and must remain so to continue his employment,’’ (2)
by its monthly newsletters that contained portions of its ship-
ping rules and indicated such would be strictly enforced, (3)
by its strict computerized enforcement of its shipping rules
which strict enforcement had been made known to its mem-
bership, and (4) by informing those dropped by specialized
letter that they had been in fact dropped from its national
shipping list.
It is helpful to note certain principles the Board and courts
have established with respect to issues similar to the ones
under consideration. It is well settled that a union may law-
fully seek the discharge of an employee where dues are in
arrears if it has a valid union-security clause in its collective-
bargaining agreement with the employer. Iron Workers Local
118, 257 NLRB 564, 566 (1981), enfd. 720 F.2d 1031 (9th
Cir. 1983). Mayfair Coat & Suit Co., 140 NLRB 1333
(1963). The Board noted that ‘‘a valid union-security clause
can be enforced at the hiring hall level by refusal to refer
an employee whose dues are in arrears.’’ Id. at 566. The
court in NLRB v. Hotel Employees Local 568, 320 F.2d 254
(3d Cir. 1963), noted the existence of a contractual union-
security clause inevitable leads to employee dependence on
a labor organization. The court further noted:
There necessarily arises out of this dependence a fi-
duciary duty that the union deal fairly with employees.
See N.L.R.B v. International Woodworkers of America,
264 F.2d 649 (9th Cir. 1959), cert. den. 361 U.S. 816,
80 S.Ct. 56, 4 L.Ed.2d 63 (1959); International Union
of Electrical, Radio & Machine Wkrs. v. N.L.R.B., 113
U.S. App. D.C. 342, 307 F.2d 679 (1962) cert. den. 371
U.S. 936, 83 S.Ct. 307, 9 L.Ed.2d 270 (1962). At the
minimum, this duty requires that the union inform the
employee of his obligations in order that the employee
may take whatever action is necessary to protect his job
tenure.
The Board in Carpenters Local 563, 272 NLRB 1249 fn. 1
(1984), held that by failing to allow two individuals a rea-
sonable opportunity to satisfy their delinquent dues obliga-
tions before denying them referrals the union violated Sec-
tion 8(b)(1)(A) and (2) of the Act. With respect to the Car-
penters case, counsel for the General Counsel contends that
before the Union here could have escaped violating the Act
it would have had to have given Harris individualized notice
of his dues delinquency, advised him of the amount owed,
informed him of the method used in computing the amount,
and have given him a reasonable opportunity to comply
therewith before removing him from its national shipping list
and its on-hand lists. Counsel for the Union urges the Car-
penters case does not establish a per se rule that a union
must always give delinquent members an opportunity to pay
back dues before they can lawfully be removed from hiring
hall lists. In any event, the Union urges the instant case is
factually distinguishable from the Carpenters case and notes
that case was limited to its particular circumstances.
Applying the above principles, I am persuaded a union
may not lawfully remove users of its hiring hall from its ex-
clusive referral lists without first (1) advising the users they
are in arrears on their dues, (2) advising the users of the
amounts owed and how the amounts were arrived at, and (3)
give the users a reasonable time to take corrective actions to
remain on the exclusive referral lists. Anything less than the
above will not relieve a union of its fiduciary obligations.
See, e.g., Communications Workers Local 9509 (Pacific
Bell), 295 NLRB 196 (1989). In the instant case the Union
clearly failed to demonstrate it afforded Harris the benefit of
the above outlined minimum standards. I reject the Union’s
contention that the generalized notice it provided in its
monthly newsletters taken in conjunction with its assertion
its shipping rules were well known was sufficient to satisfy
it fiduciary duty to members and others utilizing its hiring
hall. The Union’s contention that the Carpenters case is fac-
tually distinguishable from the instant one misses the point
on the general principle established by that case. The Union
correctly points out that the union in the Carpenters case did
not have a uniform and invariable practice of denying refer-
rals for nonpayment of dues, whereas it did. However, the
fact the Union in the instant case, through its computerized
action, has been ‘‘merciless’’ in removing anyone from its
national shipping list that was in arrears on dues does not
meet the issue of affording the users of its hiring hall serv-
ices an opportunity to clear up any delinquencies before
being removed from its lists. The simple fact that the Union
treated everyone the same with respect to removing them
from its national shipping list for any delinquencies does not
insulate it from the fiduciary duty it owes the users of its ex-
clusive hiring hall services. I likewise reject the Union’s
other ‘‘distinguishing element’’ in that it contends its role as
a maritime union makes it ‘‘unique’’ and as such it would
be ‘‘unworkable and inequitable’’ to apply the Carpenters
standard to the maritime industry. The Union argues that in
the construction industry, which was involved in the Car-
penters case, it was and is easy to have a delinquent member
removed from a nearby job after being referred and then
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 It is inconsequential at this stage of the proceeding that Harris
may well have rejected various job offers from the Union or that he
had indicated he would not accept collect telephone calls from the
Union related to any matters including job referrals. Such may be-
come pertinent at the compliance stage of this matter.
being apprised of dues arrearages whereas it would not be
so simple where the delinquent dues member is on the high
seas. The Union asserts that the problems it, as well as the
employer’s, would face in removing delinquent members
from jobs at sea, are almost insurmountable in that all sea-
going vessels must have a licensed radio officer on board.
The Union argues that if a radio operator is removed at sea
the vessel may not continue to operate legally until a replace-
ment is found and such could result in severe hardships such
as cargo spoilage or late delivery penalties for the shipper.
The fact a maritime union may have a difficult time policing
dues payments or that employers involved therewith may po-
tentially incur increased monetary risks does not relieve a
union of the fiduciary duty it owes to those utilizing its ex-
clusive hiring hall arrangements.
In summary, I find as alleged in the complaint that the
Union violated Section 8(b)(1) (A) and (2) of the Act, when
on April 1, 1988, it removed Harris’ name from its national
shipping list because he failed to remain current in his dues
without first informing him of such failure and without af-
fording him a reasonable opportunity thereafter to meet his
dues obligations.7
C. The Rule Requiring the Timely Payment of Dues to
be or Continue Registration on Shipping Lists
As earlier noted it is alleged in Case 15–CB–3469–3 that
the Union violated Section 8(b)(1)(A) and (2) of the Act by,
since on or about November 30, 1988, maintaining in effect
and enforcing the following bylaws:
Dues are required to be received by the Union at
least fifteen days prior to the end of the each calendar
quarter and timely receipt of payment of dues (or fees
as the case may be) shall be required in order to permit
registration or continuation of registration on appro-
priate shipping lists.
It is undisputed that the Union changed its bylaws with re-
spect to the payment of and amount of dues by a referendum
of its membership conducted by the American Arbitration
Association (AAA), the results of which were certified by
the AAA on August 11, 1988. The union membership not
only adopted the above set forth amendment to its bylaws
but in addition raised its quarterly dues from $75 to $100.
Thereafter, employers that were parties to collective-bar-
gaining agreements with the Union consented to the above-
amendment changes which changes were incorporated into
the applicable collective-bargaining agreements. The exact
effective date for the amendments is not clear; however, it
appears the amendments were effective by at least November
1, 1988.
Union President Harper testified that under the new
amendments a mailing is sent between 15 days prior to the
beginning of each new quarter and the actual start of the new
quarter that advises those using the hiring hall that they are
delinquent in their dues and further advises that the dues are
required in order to permit or continue registration on its
shipping lists. President Harper testified he ‘‘believed’’ the
same form type letter previously utilized before the new
amendment is still utilized to inform members of their delin-
quencies. The language of the prior letter is set forth else-
where in this decision and will not be repeated here.
Counsel for the General Counsel urges that although the
Union may lawfully remove members and others from its
shipping lists for being delinquent in dues or fees payments
it must not breach its fiduciary duty to those being removed
from or denied registration on its shipping lists. Counsel for
the General Counsel also urges that to meet its duty to deal
fairly with users of its hiring hall services the Union must
at a minimum provide users with notification of (1) the pre-
cise amount owed in dues or fees, (2) the method utilized
in arriving at the amounts owed, and (3) provide users a rea-
sonable opportunity to make such payments. Counsel for the
General Counsel urges that under the new amendment the
Union demands timely payment of dues or fees and removes
individuals from its lists at the same time it notifies them
they are delinquent in their dues or fees payments. Counsel
for the General Counsel urges that in so doing the Union
violates the fiduciary duty it owes its members and users and
as such violates the Act.
Counsel for the Union argues that its newly amended dues
and fees procedures meets all fiduciary obligations it owes
its members and users of its services and further urges that
counsel for the General Counsel has failed to present any
evidence to show its present system is anything but fair and
reasonable. The Union asserts it provides 15 days’ advance
notice before it actually removes anyone from its shipping
lists for dues arrearages, thus it argues those impacted have
a reasonable opportunity to establish or reestablish good
standing with the Union and to be restored to its shipping
lists.
Under its newly amended dues and fees requirements and
notification procedures the Union meets for the greater part
at least two of the three requirements it must in order to ful-
fill its fiduciary obligations owed to the users of its exclusive
referral system. First members are advised they are in arrears
on dues and the amount owed ($100) was arrived at by ref-
erendum of the union membership. Hence, notification is
given and the method of arriving at the amount owed has
been established. However, I find the Union has failed, in the
scant record evidence on this point, to demonstrate that those
in arrears on dues or fees were actually afforded a reasonable
time to take the necessary steps to remain on the shipping
lists. The Union argues letters of notification have been and
are sent to those in arrearage on dues or fees beginning 15
days before each new quarter starts. However, the record
does not conclusively support that argument. Union President
Harper testified notices went out 15 days prior to each quar-
ter break as called for in the newly amended bylaws. How-
ever, a reading of the changed bylaws only reflects dues or
fees are to be received 15 days prior to the end of each cal-
endar quarter not that notification will automatically be sent
to those delinquent in dues or fees payments on that precise
date. When questioned further on this matter, President Harp-
er testified in reference to a specific example that mailings
were made between 15 days before the end of a quarter and
the actual beginning of a new quarter. I am persuaded that
15 days’ advance notice is reasonable. See, e.g., United
Metaltronics Local 955, 254 NLRB 601 (1981). However,
49RADIO-ELECTRONICS OFFICERS UNION
8 The propriety of the internal union charges that resulted in the
discipline noted are not before me.
9 Although the evidence is not conclusive nor is it essential to de-
cide the issue, it appears the ARA is a rival of the Union.
10 The Union’s telephone logs reflect Dunleavy called the union
hall at 10:30 and 10:45 a.m., and that he spoke on both occasions
with Sheryl Bell. Bell noted on the logs that Dunleavy was ‘‘very
demanding’’ in seeking information.
11 The Union’s telephone logs reflect Sheryl Bell spoke with
Dunleavy at 10:50 a.m. on November 3, 1988, and that the subject
matter of their conversation was the ‘‘shipping list.’’
12 In the attorney’s letter to Harper, the attorney outlined the ques-
tion Harper had sought advice on as follows: ‘‘You have asked for
my opinion with regard to whether or not Mr. Dunleavy should be
placed upon the National Shipping List for November 1988.’’
13 Harper explained in his letter why Dunleavy had not been
placed on the October national shipping list. However, it is unneces-
sary to consider that portion of his letter in that Dunleavy specifi-
cally requested that he be placed on the November list. It appears
Harper understood that to be the case in that he sought legal advice
only with respect to Dunleavy’s placement on the Union’s Novem-
ber national shipping list.
14 The Union’s telephone logs reflect Dunleavy called the union
hall at 9 a.m. Holleyfield reflected on the log that Dunleavy ‘‘want-
ed to know why TCH [Harper] has not called back.’’
15 On cross-examination by the Union’s attorney, Dunleavy testi-
fied Holleyfield told him the November list had already been pre-
pared as of the time they spoke and he was not included on it.
16 Holleyfield was not called as witness nor was her absence ex-
plained in any manner; thus, what Dunleavy attributed to her was
not directly contradicted.
the Union failed to conclusively demonstrate that members
and users of its hiring hall services were actually afforded 15
days’ advance notice to correct their delinquencies. Accord-
ingly, and in light of the above, I find the Union violated
Section 8(b)(1)(A) and (2) of the Act as alleged in the com-
plaint by failing to demonstrate it allowed delinquent dues
payers or users of its hiring hall services a reasonable time
to correct dues or fees deficiencies before removing such
users from its shipping lists.
D. The Alleged Failure to Allow Dunleavy to
Register for Referral
As noted earlier it is alleged in Case 15–CB–3458 that the
Union on or about October 1, 1988, refused in violation of
Section 8(b)(1)(A) and (2) of the Act to allow employee
Dunleavy to register for referral from its exclusive hiring hall
because he failed to pay a fine and for reasons other than
his failure to tender periodic dues and initiation fees uni-
formly required as a condition of acquiring or retaining
membership in the Union.
Dunleavy has worked as a radio officer engaged in ship-
to-shore communications since at least 1977. Dunleavy has
been a longtime member of the Union. Internal union
charges were lodged against Dunleavy on or about July 15,
1987, as a result of his having accepted a temporary job as-
signment without clearance from the Union on a seagoing
vessel not covered by a collective-bargaining agreement with
the Union. On or about July 17, 1987, the Union found
Dunleavy guilty of the internal union charges lodged against
him and as a result thereof he was fined $1000, suspended
from membership in the Union for 1 year, and suspended
from using the hiring hall for 1 year.8 In July 1988,
Dunleavy completed serving his suspension from member-
ship in the Union and from use of the hiring hall but he has
never at any time paid the $1000 fine levied against him. It
is undisputed that Dunleavy did not attempt to utilize the hir-
ing hall during the year of his suspension; however, he did
attempt in January 1988 to pay quarterly union dues which
were rejected by the Union and returned to Dunleavy. During
his suspension from membership in the Union, Dunleavy ac-
cepted a seagoing assignment through the American Radio
Association (ARA)9 aboard the merchant vessel Margaret
Lykes which assignment lasted for approximately May 23
until October 18, 1988.
In a letter dated October 25, 1988, Dunleavy advised the
Union of the employment dates he had been assigned aboard
the Margaret Lykes and requested that he be placed ‘‘on the
November, 1988 National Shipping List.’’ Thereafter, on Oc-
tober 29, 1988, Dunleavy sent a mailgram to the Union in
which he requested placement on the Atlantic on-hand list.
Dunleavy testified without contradiction he telephoned the
union hall on November 2, 1988, and spoke with a secretary
(Sheryl Bell) about his placement on the national shipping
list. Dunleavy testified the secretary refused to give him any
information about the list and in fact hung up the telephone
on him. Dunleavy testified that after a few minutes he again
on November 2, 1988, called the union hall and spoke with
the same secretary who again refused to provide him any in-
formation on the national shipping list, but did state a union
official would call him back.10 Dunleavy testified no one
called him back, so on November 3, 1988, he called the
union hall again. Dunleavy again asked if he was on the na-
tional shipping list and what his position on that list was.
Dunleavy testified without contradiction he was told he was
not on the national shipping list and that he would be given
the reasons why.11 Dunleavy was not allowed to speak with
any union official; however, on that date (November 3, 1988)
Union President Harper wrote Dunleavy a three-page letter in
which he acknowledged Dunleavy’s written communications
with the Union on October 25 and 29, 1988, and his two
telephone calls to the union hall on November 2, 1988. In
his letter, Harper informed Dunleavy he had sought legal ad-
vice on Dunleavy’s registration request.12 Harper set forth
portions of his attorney’s letter of advice in his letter to
Dunleavy and informed Dunleavy he was ineligible to be
placed on the national shipping list for three reasons. The
three reasons set forth in Harper’s letter were (1) Dunleavy
had not paid the $1000 fine imposed on him by the Union,
(2) Dunleavy appeared to be in violation of the ‘‘shipping
rules taken as a whole’’ related to dual registration by being
on a shipping list outside the Union without permission, and
(3) Dunleavy had not completed taking some outstanding ac-
crued mandatory vacation time.13 On November 4, 1988,
Dunleavy again telephoned the union hall and on this occa-
sion spoke with Danielle Holleyfield.14 According to
Dunleavy’s credited testimony Holleyfield, told him ‘‘there
were jobs available’’ and only ‘‘about 10 people’’ on the na-
tional shipping list. Dunleavy asked if he was on the national
shipping list15 and Holleyfield told him he was not.
Dunleavy testified Holleyfield did not give him any reason
for his not being included on the Union’s November national
shipping list.16
Dunleavy testified he felt any further attempts to be re-
ferred for work assignments through the Union’s hiring hall
50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 The assignment lasted until on or about December 8, 1988. 18 Thomas died shortly before the hearing.
would be futile. Dunleavy testified: ‘‘After I perused Mr.
Harper’s letter of November 3, [1988] then I attempted to get
work through the American Radio Association.’’ Dunleavy
testified he was notified by the ARA on either November 5
or 6, 1988, that he was being given an assignment on the
merchant vessel OMI Hudson. Dunleavy said that he was
‘‘sure’’ he was not notified of the assignment on November
4, 1988. Dunleavy testified he flew to Portugual on Novem-
ber 6 and boarded the OMI Hudson at Setubal, Portugual, on
November 7, 1988.17
I find Dunleavy’s testimony that he was not notified of his
ARA assignment on November 4 to be suspect and unreli-
able. I also do not rely on his testimony that he perused
Harper’s November 3 letter telling him why he could not be
on the Union’s national shipping list before he sought an as-
signment through the ARA. I am not convinced that absent
special mailing service, not shown to have been utilized here,
that a letter would be delivered in 1 day by the United States
Postal Service from Panama City, Florida, to Augusta, New
Jersey. I reach the conclusions immediately set forth above
because, among other things, the ARA routinely issues as-
signment slips to users of its services and the slip for
Dunleavy reflects he was assigned to the OMI Hudson at
9:50 a.m. on November 4, 1988. Additionally, Union Presi-
dent Harper testified the Union was routinely notified of the
ARA assignment to Dunleavy by the ARA on November 4,
1988. I am, however, persuaded Dunleavy made his tele-
phone call to the union hall on November 4, 1988, and spoke
with Holleyfield before he received his ARA assignment or
before the Union had been notified of that assignment to
Dunleavy. I am convinced that if Holleyfield had known of
the ARA assignment she would have mentioned that fact to
Dunleavy when she spoke to him or Harper would have
joined that telephone conversation and told Dunleavy he
knew Dunleavy had been given an assignment from the
ARA. I do not find the minor time differences between the
Union’s telephone log of Dunleavy’s call and the time re-
flected on the ARA assignment sheet to warrant a different
credibility conclusion.
President Harper testified the November national shipping
list was prepared at the close of business on November 7,
1988, and not on November 1, because that date fell on a
Tuesday and the Union was still utilizing the previous
weeks’ national shipping list. He also stated another reason
it was not prepared before November 7, 1988, was the Union
had a real question concerning Dunleavy’s eligibility to be
on its November national shipping list. Harper stated that
even if the national shipping list had been prepared on No-
vember 1 no use could have been made of it prior to 5 p.m.,
on November 7. Harper testified he and Chief Dispatcher
Debbie Thomas had ‘‘extensive discussions’’ about whether
to include Dunleavy on the November national shipping list,
but that he definitely did not make a decision on November
1 because he had until November 7 to do so. He however
acknowledged that he and Thomas did, in fact, make a deci-
sion about Dunleavy’s status on November 4, 1988, when
the Union learned Dunleavy had accepted an assignment on
the OMI Hudson from the ARA. Harper testified:
[Thomas]18 reported to me that all our discussions were
of no account because Mr. Dunleavy had been assigned
to a ship and was not, under any circumstances, eligible
to be on the [November] National Shipping List.
Harper said he ‘‘felt a great sense of relief’’ when he
learned Dunleavy had accepted an assignment from the
ARA, thus resolving the question of whether he would be
listed on the Union’s November national shipping list. He
said it was the ‘‘invariable’’ practice of the Union not to in-
clude an individual on its national shipping list once such an
individual had accepted an assignment of 14 days or more
on a nonexempted ship such as the OMI Hudson. Harper tes-
tified the only reason Dunleavy was not included on the
Union’s November national shipping list was that he had ac-
cepted an assignment on a seagoing vessel and as such was
not eligible to be included on the list. Harper testified that
even if the list had been prepared on November 1, and even
if Dunleavy had been included thereon, he would have been
dropped from the list on November 4, 1988, because he had
taken an assignment on the OMI Hudson.
The Union through its counsel submitted a letter of posi-
tion to Region 15 of the Board on December 20, 1988, re-
garding the Dunleavy case. In his letter counsel informed the
Board’s representative in pertinent part as follows:
1. Mr. Dunleavy has not been restored to the ship-
ping lists because he is ineligible as a result of the fact
that he has failed to pay a fine of $1,000 which was
duly levied upon him for violation of Hiring Hall rules
more than one year ago.
. . . .
5. All members and non-members are required to
pay all fines relating to violation of shipping rules in
order to be placed on the shipping lists.
6. In the event that Mr. Dunleavy were to pay his
$1,000 fine, he would thereby become eligible for list-
ing on the shipping lists of the ROU provided that he
comply with other applicable requirements which apply
to all members and non-members.
7. Among other requirements is a limitation as to the
total number of days which may be shipped in any
year. Thus, for example, there is a mandatory limitation
of 250 days. This limitation is established in order to
achieve equal distribution of work. Since Mr. Dunleavy
has been sailing during the period of suspension, the
Hiring Hall is unaware of whether Mr. Dunleavy has
taken the mandatory vacation time. It is appropriate,
however, for the Hiring Hall to examine this question
while it is clear that Mr. Dunleavy is ineligible because
he has failed to pay his fine.
8. In addition, it is clear that Mr. Dunleavy would
be violating the shipping rules if he were to once again
ride the shipping list at the same time that he was
riding the ARA shipping list and at the same time that
he was seeking non-union assignments.
It should be made clear, however, that none of these
questions are appropriate to consider until Mr.
Dunleavy has paid his fine for prior violation of the
shipping rules.
. . . .
51RADIO-ELECTRONICS OFFICERS UNION
cc: Thomas C. Harper, President, Radio-Electronics Of-
ficers Union:
Union President Harper testified his attorney’s letter of po-
sition to the Board’s representative outlined ‘‘nice reasons’’
for Dunleavy not being on the Union’s November national
shipping list, but the reasons listed by his attorney were not
in fact those relied on the Union in excluding Dunleavy from
its November national shipping list. Harper testified the con-
versation he had with his attorney and the information he
provided to his attorney about Dunleavy’s status all predated
November 3, 1988. Harper, however, acknowledged he re-
ceived a copy of his attorney’s letter that was sent to the
Board’s representative.
First, I am persuaded the Union, and more specifically
Harper, had decided by at least November 1, 1988, to ex-
clude Dunleavy from its November national shipping list. I
do not credit Harper’s testimony to the contrary. First, the
Union’s shipping rules reflect ‘‘The National Shipping List
will be updated monthly on the first business day of each
month.’’ The first business day of November was November
1, which fell on a Tuesday. The fact that the list was to be
updated on the first business day of the month, however,
does not mean the list was effective on that date. Secondly,
Harper in his November 3 letter to Dunleavy informed
Dunleavy that Harper had sought legal advice and that
Dunleavy was ineligible to be on the November national
shipping list because he had, among other things, not paid
a $1000 fine levied against him by the Union. Thirdly, Union
Spokesperson Holleyfield told Dunleavy on November 4 he
was not on the Union’s November national shipping list. Ac-
cordingly, I conclude the list was, as required by the ship-
ping rules, prepared on November 1 and that Dunleavy was
not included on it. I also do not credit Harper’s testimony
that his attorneys’ letter of position to the Board’s representa-
tive on December 20, 1988, only provided the Board’s rep-
resentative with ‘‘nice but unrelied upon reasons’’ for ex-
cluding Dunleavy from the November national shipping list.
In that regard, I note Harper ‘‘felt a great sense of relief’’
when Dunleavy took the ARA assignment that he asserts pre-
vented Dunleavy from being on the November national ship-
ping list. I find totally unbelievable Harper’s testimony that
he simply failed, prior to December 20, 1988, to advise his
attorney of that fact—a fact he perceived to be controlling
with respect to Dunleavy’s eligibility to be on the list. I also
note that although Harper contends his attorney’s letter was
inaccurate he never attempted to correct any inaccuracies
even though he admittedly received a copy of the letter at
the time it was served on the Board’s representative by his
attorney.
I am persuaded counsel for the General Counsel estab-
lished a prima facie showing sufficient to support an infer-
ence that protected conduct was a motivating factor in the
Union’s decision to exclude Dunleavy from its November
1988 national shipping list. Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455
U.S. 989 (1982). See NLRB v. Transportation Management
Corp., 462 U.S. 393, 399–403 (1983). First, Dunleavy was
told as early as November 3 he was not on the Union’s na-
tional shipping list. Secondly, he was told by Union Spokes-
person Holleyfield on November 4, 1988, specifically that he
was not on the November national shipping list. Thirdly,
Union President Harper in a November 3, 1988 letter to
Dunleavy spelled out to him that one of the reasons he was
not eligible to be on the Union’s November national shipping
list was that he had not paid a $1000 fine the Union had lev-
ied against him. These factors establish counsel for the Gen-
eral Counsel’s prima facie case. I find the Union has failed
to demonstrate it would have excluded Dunleavy from its
November national shipping list in the absence of his owing
a fine to the Union or that he otherwise would have been
excluded from its lists for legitimate reasons related to rules
of the hiring hall. The Union’s contention that Dunleavy ac-
cepted an ARA assignment and thus excluded himself from
being eligible to be on its November national shipping list
is without merit. As testified to by Dunleavy, he would not
have been in the position of seeking work assignments out-
side the Union’s hiring hall if he had not been told prior to
doing so that he was not on the Union’s November national
shipping list. The Union’s further arguments that it had other
lawful reasons based on its shipping rules to exclude
Dunleavy from its November national shipping list are also
without merit. The Union asserts Dunleavy was in violation
of its rule regarding radio officers taking mandatory vacation
time and its rule regarding being advised concerning non-
union job assignments. The Union’s argument on these
points is defeated by its own handiwork. Union counsel in
his letter of position to the Board on December 20, 1988,
stated, ‘‘Mr. Dunleavy has not been restored to the shipping
list because he is ineligible as a result of the fact he has
failed to pay a fine of $1,000.’’ Union counsel then ad-
dressed certain rule infractions attributed to Dunleavy by the
Union but added in his letter of position, ‘‘It should be made
clear, however, that none of these questions are appropriate
to consider until Mr. Dunleavy has paid his fine for prior
violation of the shipping rules.’’ I find, in light of all the
above, the Union has failed to meet its burden and further
find the sole reason Dunleavy was excluded from the
Union’s November national shipping list was his failure to
pay the $1000 fine in question. It is an unfair labor practice
for a union operating an exclusive hiring hall with a union-
security clause to refuse to refer or register for referral a
member or user of its services for reasons other than a fail-
ure to tender periodic dues and initiation fees uniformly re-
quired as a condition of acquiring or retaining membership.
Inasmuch as fines levied against members are not periodic
dues, such fines may not be enforced by a union through a
threat of a loss of employment or the actual denial of em-
ployment. I conclude and find the actions of the Union
against Dunleavy violated Section 8(b)(1)(A) and (2) of the
Act.
I shall leave to the compliance stage of this proceeding the
Union’s contention that Dunleavy worked the entire time
covered by its November 1988 national shipping list and
could not have lost employment opportunities attributable to
it after the November 1988 national shipping list expired.
CONCLUSIONS OF LAW
1. Sea Land Service, Inc. is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Radio-Electronics Officers Union (Radio Officers
Union) is a labor organization within the meaning of Section
2(5) of the Act.
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621. Interest on amounts accrued prior
to January 1, 1987 (the effective date of the 1986 amendment to 26
U.S.C. § 6621), shall be computed in accordance with Florida Steel
Corp., 231 NLRB 651 (1977).
20 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
21 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
3. By on or about April 1, 1988, removing Michael F.
Harris from its referral lists because he failed to remain cur-
rent in his dues without first informing him of his failure and
the specifics related thereto and without affording him a rea-
sonable opportunity to meet his obligations, the Union vio-
lated Section 8(b)(1)(A) and (2) of the Act.
4. By since on or about November 30, 1988, failing to
demonstrate it allows delinquent dues payers a reasonable
time to correct their deficiencies before removing them from
its referral lists to the Union violated Section 8(b)(1)(A) and
(2) of the Act.
5. By since on or about November 1, 1988, refusing to
allow Harry Dunleavy to register for referral from its exclu-
sive hiring hall because of his failure to pay a fine levied
against him by the Union it has engaged in a discriminatorily
hiring hall practice in violation of Section 8(b)(1)(A) and (2)
of the Act.
REMEDY
Having found that the Union has 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 ef-
fectuate the policies of the Act.
Having found that the Union unlawfully refused to allow
Dunleavy to register for referral, I shall recommend it be or-
dered to list Dunleavy on its next national shipping list and,
on request from him, list him on any appropriate on-hand list
that he requests to be listed on. I further recommend that the
Union be ordered to make Dunleavy whole for any loss of
wages and benefits he may have suffered as a result of the
Union’s refusing to allow him to register on its national ship-
ping list on and after November 1, 1988. Inasmuch as I have
found the Union unlawfully removed Michael F. Harris’
name from its referral list, I shall recommend that he be list-
ed on the Union’s next national shipping list and that he be
listed on any on-hand list that he specifically requests to be
listed on. I also recommend that the Union be ordered to
make Harris whole for any loss of wages and benefits he
may have suffered as a result of his having been unlawfully
removed from the Union’s referral list on or about April 1,
1988. Any backpay found to be due shall be computed in ac-
cordance with the formula set forth in F. W. Woolworth Co.,
90 NLRB 289 (1950); and shall include interest in the man-
ner prescribed in New Horizons for the Retarded, 283 NLRB
1083 (1987).19 Inasmuch as I have concluded that a reason-
able time for dues payers to correct any deficiencies that
might result in them being removed from the Union’s referral
list is 15 days, I shall not recommend that the Union rescind
its bylaws in that regard but rather order that it not remove
any delinquent dues payers from its referral lists without
demonstrating such persons have been allowed a reasonable
time (at least 15 days) to correct any deficiencies before re-
moving them. Finally, it is recommended that the Union be
ordered to post a notice to members attached as ‘‘Appendix’’
for a period of 60 days in order that members and users of
its hiring hall may be apprised of their rights under the Act
and the Union’s obligation to remedy its unfair labor prac-
tices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended20
ORDER
The Union, Radio-Electronics Officers Union (Radio Offi-
cers Union), Panama City, Florida, its officers, agents, and
representatives, shall
1. Cease and desist from
(a) Removing Michael F. Harris’ name from its referral
lists for failure to remain current in his dues without first in-
forming him of his failure and the specifics related thereto,
and without affording him a reasonable opportunity to meet
his obligations with respect thereto.
(b) Refusing to allow Harry Dunleavy to register for refer-
ral or referring him for work assignments in his rightful
order of priority for reasons unconnected to his failure to ten-
der and pay periodic dues, registration fees, and initiation
fees, uniformly required as a condition acquiring or maintain-
ing membership in the Union or as a condition required for
using the Union’s exclusive hiring hall system.
(c) Removing delinquent dues payers from its referral lists
without first affording such delinquent persons a reasonable
time to correct their deficiencies.
(d) In any like or related manner restraining or coercing
employees in the exercise of the rights guaranteed them by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Notify Harry Dunleavy and Michael F. Harris that it
has no objection to listing them for referral on its exclusive
hiring hall lists in their rightful order of priority.
(b) Make Harry Dunleavy and Michael F. Harris whole for
any loss of earnings they may have suffered because of the
discrimination against them in accordance with the section of
this decision.
(c) Post at its offices, meeting halls, and hiring halls cop-
ies of the attached notice marked ‘‘Appendix.’’21 Copies of
said notice, on forms provided by the Regional Director for
Region 15, after being signed by the Union’s authorized rep-
resentative, shall be posted by it immediately upon receipt
thereof and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to members are customarily posted. Reasonable steps
shall be taken by the Union to ensure that the notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Union has taken
to comply.
53RADIO-ELECTRONICS OFFICERS UNION
APPENDIX
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT refuse to register for referral Harry
Dunleavy and Michael F. Harris in their rightful order of pri-
ority on our exclusive hiring hall lists for discriminatorily
reasons.
WE WILL NOT remove delinquent dues payers from our ex-
clusive hiring hall lists until they have been afforded a rea-
sonable time (at least 15 days) to correct their deficiencies.
WE WILL NOT in any like or related manner restrain or co-
erce employees, members, or users of our exclusive hiring
hall in the exercise of their rights guaranteed by Section 7
of the Act.
WE WILL make Harry Dunleavy and Michael F. Harris
whole for any pay or benefits they may have suffered as a
result of our discrimination against them.
RADIO-ELECTRONICS OFFICERS UNION