Ralphs Grocery Co.

National Labor Relations Board - Board Decisions

Feb 7, 1980

247 N.L.R.B. 934 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chauffeurs, Salesdrivers & Helpers Union, Local 572,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America
(Ralphs Grocery Company) and Kathlyn L. Roy.
Case 21-CB-6763
February 7, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On September 28, 1979, Administrative Law Judge
David G. Heilbrun issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in support of the Administrative Law
Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
The Administrative Law Judge concluded that
Respondent did not violate Section 8(b)(1)(A) and (2)
of the Act when it sought and caused Ralphs Grocery
Company (herein called the Employer) to discharge
the Charging Party, employee Kathlyn L. Roy. We
disagree.
Kathlyn Roy was employed continuously in the
Employer's data processing department from Septem-
ber 1977 through January 9, 1979,2 and maintained
her financial membership with Respondent from the
time of her initial employment on a direct-pay
(noncheckoff) basis. The Employer and Respondent
were parties to a collective-bargaining agreement
during this period which contained a valid union-
security provision. Article nll of this agreement provid-
ed that new employees "become and thereafter remain
members in good standing in the Union" after a 31-
day grace period. It also contained the following
language in subparagraph B:
The employer shall discharge an employee at the
expiration of seven (7) calendar days following
receipt of written notice from the Union that the
' The Oeneral Counsel has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us that
the resolutions are incorrect. Standard Dry Wall Products Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
247 NLRB No. 108
employee has failed to complete or maintain
membership in good standing in the Union,
unless the employee has corrected the deficiency
and the Employer is so notified within the seven
(7) days.
The Union routinely sends new employees a mem-
bership packet, including a sheet that sets the deadline
for receipt of monthly dues as noon of the month's last
business day. The document also sets out a $1 late
charge per month for delinquent payments, and the
rule that a 3-month delinquency results in suspension
from the Union and removal from the job. Suspension
can be cured only by payment of the "current
reinitiation fee," according to the document. No dollar
amount for the reinitiation fee is given. Roy acknowl-
edged that she received an explanatory sheet when she
was hired, although she denied reading anything
concerning a reinitiation fee.
During November 1978, Roy wrote a check for $31,
covering her October dues of $15 (then delinquent),
the $1 late charge for the delinquent October dues,
and $15 dues for November. She planned to mail the
check to the union offices, which was her usual
method of paying dues. She forgot to mail the
payment and did not discover her oversight until
December 31, 1978, when she found the check. She
then wrote a new check for $50 for her October,
November, and December dues' and the $1 late charge
for both October and November, put it in an envelope
addressed to the union offices, and dropped it in a
mailbox near her home.
On January 3, Douglas Rosenow, the Employer's
director of labor relations, received a letter from Neal
Shores, Respondent's business agent assigned to han-
dle matters related to clerical employees. The letter,
dated January 2, requested the termination of five
employees, including Roy, pursuant to the union-
security clause of the collective-bargaining agreement.
On the day he received the letter, Rosenow called
Shores to discuss the matter. Shores initially demand-
ed immediate termination, but Rosenow pointed out
the notice provision in article Ill (B), and the two
agreed that the January 2 letter would constitute the
7-day notice required by the contract. Rosenow
transmitted Shores' letter to the Employer's clerk,
Kye Estrella, who prepared a standard notification
letter to Roy. The letter was dated January 4, was
from the Employer's personnel department, and in-
formed Roy only that maintenance of union member-
ship was a condition of employment, that the Union
' All dates herein are in 1979, unless otherwise indicated.
Union dues were raised from $15 to $16 per month, effective in late fall of
1978. Roy testified she heard this by "word of mouth" and the $50
represented 3 months' dues at $16 per month plus $2 late charges.
934
LOCAL 572, TEAMSTERS
had notified the Employer that she had not met her
membership obligations, and that the Employer had
an obligation to terminate her unless her manager
received written proof of good standing by January 9.
The letter requested that she contact the Union
immediately to satisfy all membership requirements.
Believing that a dues receipt for the amount she
mailed on December 31, 1978, was in the mail to her,
Roy did nothing further at that time. On January 8,
her supervisor reminded her that January 9 was the
deadline for her to submit written proof of her good
standing and avoid termination. Roy claimed she still
felt assured that her December 31 payment would take
care of the matter.
The Administrative Law Judge credited the testi-
mony of two of Respondent's employees, Conkling
and Wadley, that Roy went to the union offices before
her termination to discuss her delinquency. Wadley
testified that she had received Roy's $50 check on
January 6, determined that her 3-month delinquency
meant suspension, and mailed the check back to Roy,
after making a photocopy for Respondent's files. On
or about January 9, Roy appeared at the union office
and asked the amount of her obligation. According to
Conkling and Wadley, she was told she owed a total of
$239 ($175 reinitiation fee plus 4 months' dues
including January dues at $16 per month or $64). Roy
protested the reinitiation fee, claiming that it was not
fair, and angrily left.4
On January 9, a labor relations consultant, Calvin
Bussi, called Rosenow to say that the Union was
seriously pressing Roy's discharge, and that the
Employer might face economic action, if not legal
liability, should it fail to act. Upon this warning,
Rosenow called Roy's supervisor, Meadows, and
ordered her to discharge Roy immediately. Meadows
called Roy at home that evening and informed her of
her termination.
On January 10, Roy went to the union offices to
remedy the situation. She had been forced to borrow
money from the credit union for part of her obligation,
and she tendered $239 to Conkling. Conkling apolo-
getically informed Roy that she had neglected to
assess the $1 late charge for her October, November,
and December dues, and that the total was actually
$242. Roy, who was quite upset, pleaded that she did
not have $3 left, and another employee of Respondent
loaned her $3 in cash.' Roy was then given a
temporary receipt and clearance.
Roy then went to Rosenow and asked to have her
job restored. Resenow, in light of the warning he had
' Roy testified that she did not learn the amount of her obligation until after
her termination and that the conversation that Wadley and Conkling testified
to occurred on January 10. The Administrative Law Judge discredited Roy's
testimony as to this matter.
' In fact, the $242 amount was also incorrect, as Roy's January dues were
not owed until the last business day in January. She subsequently stopped
received from Bussi the day before, told her he was
"powerless" to do this. Roy immediately returned to
the union offices and spoke to Shores, who sympath-
ized with her, but offered no help. On January 11,
pursuant to another urgent phone call from Bussi and
the Union's authorization to rehire, Roy was offered
reinstatement, which she accepted. She returned to
work on January 12.
The General Counsel alleged that Respondent's
conduct in seeking and securing Roy's discharge
violated Section 8(b)(1)(A) and (2) of the Act, because
Respondent failed to give Roy sufficient notice of her
membership obligations. The Administrative Law
Judge found that Roy was effectively informed of her
obligation before her discharge by Wadley and Con-
kling at the union hall. He found that the Respondent
"fulfilled a reasonably couched effort" to notify Roy
of her imminent loss of employment by operation of
the collective-bargaining agreement. Because of this
reasonably couched effort, he found no violation of the
Act. We disagree.
We find merit in the General Counsel's contention
that a "reasonably couched effort" to notify Roy of
her membership obligations is not sufficient under
Section 8(b)(l)(A) and (2) to satisfy the Union's
fiduciary duty to her. In N.L.R.B. v. Hotel, Motel &
Club Employees' Union, Local 568, AFL-CIO (Phila-
delphia Sheraton Corp.),6 the Third Circuit held that
the "minimum" requirement of this duty is to "inform
the employee of his obligations in order that the
employee may take whatever action is necessary to
protect his job tenure." In Teamsters Local Union No.
122 (August A. Busch & Co. of Mass., Inc.),' the Board
specifically defined the union's duty as including "a
statement of the precise amount and months for which
dues were owed, as well as an explanation of the
methods used in computing the amount," plus "an
adequate opportunity to make payment." In Chauf-
feurs, Teamsters and Helpers Local Union 150 et al.
(Delta Lines) we stressed that inquiries made by an
individual as to his or her obligations do not relieve a
union of its affirmative duty under the Act specifically
to inform an individual of his obligations and afford
him a reasonable opportunity to satisfy them before
seeking his discharge under a union-security clause.
Without disturbing the Administrative Law Judge's
credibility resolutions, we find that Respondent did
not meet its affirmative obligation under the Act to so
inform Roy. At the time that Respondent requested
her discharge, it had not contacted her to give her any
of the elements of information we have found neces-
payment on her personal check which was in partial payment of her obigation
and wrote another check on January 29.
320 F.2d 254, 258 (3d Cir. 1963), enfg. 136 NLRB 888 (1962).
'203 NLRB 1041, 1042 (1973), enfd. 502 F.2d 1160 (lst Cir. 1974).
'242 NLRB No. 66, sl. op., p. 5 (1979).
935
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sary to constitute sufficient notice. Had Respondent
had its way initially, Roy would have been terminated
on January 3, with no prior warning at all. As it was,
the only notice she received was the memorandum
from the Employer, which failed to inform her of the
total amount due, the months for which dues were
owed, or the method used in computing the amount.
With regard to the conversation at the union hall
before Roy's discharge, upon which the Administra-
tive Law Judge relied, we find that it did not satisfy
Respondent's obligation to give Roy sufficient notice.
Although Roy did receive the information on the
method by which her financial obligation was comput-
ed, i.e., the months for which dues were owed and the
amount of the reinitiation fee, she was not even given
the correct amount of her obligation, nor was she
given a reasonable opportunity to satisfy that obliga-
tion. After she was incorrectly informed of the amount
she owed, she had only 24 hours to satisfy the
obligation before she was terminated.
We note that Roy took a rather casual approach
toward remedying her delinquency, particularly in
light of the letter from the Employer informing her of
her imminent discharge. However, Roy believed that
she had paid her dues, and she took further affirmative
action to check with the Union before her discharge,
thus negating any allegations of bad faith.9 Further-
more, the burden was not on Roy to seek Respondent
out and discover what she needed to do to get back
into its good graces; it was Respondent's affirmative
duty to provide her with adequate prior notice of her
delinquency and accord her a reasonable opportunity
to pay her arrearages. Respondent clearly failed to
meet its obligation.
In light of these findings, a violation has been
established in this proceeding. Consequently, in agree-
ment with the General Counsel, we find that Respon-
dent violated Section 8(b)(l)(A) and (2) of the Act in
seeking and causing Roy's discharge.
THE REMEDY
Having found that by the aforementioned conduct
Respondent has violated Section 8(b)(1)(A) and (2) of
the Act, we shall order it to cease and desist therefrom
and to take certain affirmative actions in order to
effectuate the policies of the Act.
'Id.
'' See, generally, Isis Plumbing Heating Co.. 138 NLRB 716 (1962).
Although we find a violation of Sec. 8(b(1Xa) and (2), we shall not, as
counsel for the General Counsel requests, order Respondent to refund Roy's
reinitiation fee. Counsel for the General Counsel argues that a refund must be
ordered to preserve the status quo ante, citing International Brotherhood of
Boilermakers. Iron Shipbuilders, Blacksmiths. Forgers d Helpers. Local Lodge
No. 732, AFL-CIO (Triple A Machine Shop. d/b/a Triple A South), 239
NLRB 504 (1978), and Teamsters Local Union No. 122 (August A. Busch d
Co. of Mass.. Inc.). supra. In each of these cases the finding of a violation due
We shall order Respondent to make Roy whole for
any loss of pay suffered by reason of the discrimina-
tion against her, by payment to her a sum of money
equal to the amount she would normally have earned
as wages from the date of her discharge to the date of
her reinstatement. The loss of earnings shall be
computed in the manner prescribed in F W. Wool-
worth Company, 90 NLRB 289 (1950), with interest as
prescribed in Florida Steel Corporation, 231 NLRB
651 (1977).' °
Conclusions of Law
1. Ralphs Grocery Company, the Employer herein,
is now, and has been at all times material herein, an
employer engaged in commerce and in operations
affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. Chauffeurs, Salesdrivers & Helpers Union, Local
572, International Brotherhood of Teamsters, Chauf-
feurs, Warehoursemen & Helpers of America, is, and
at all times material herein has been, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By attempting to cause and causing Ralphs
Grocery Company to discharge Kathlyn L. Roy for
failure to tender periodic dues without adequately
advising her of her obligations, Respondent has
engaged in unfair labor practices within the meaning
of Section 8(b)(2) of the Act.
4. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Chauffeurs, Salesdrivers & Helpers Union, Local 572,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, Compton,
California, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause Ralphs Grocery
Company to discharge or to otherwise discriminate
against Kathlyn L. Roy, or any other employee, for
failure to tender periodic dues without adequately
to lack of notice was coupled with evidence of inconsistent enforcement of the
deliquency rules, rendering the assessment of the reinitiation fee invalid. In
Triple A South. the Administrative Law Judge found that the insufficient
notice was part of an "invidious scheme to collect reinstatement fees." In
August A. Busch, there was an additional finding that the fees had not been
imposed uniformly. Here, there is no evidence of inconsistent enforcement
and no allegation that Roy did not actually owe the fee under Respondent's
bylaws. We shall, therefore, award her only the loss of earnings she incurred
as a result of the Respondent's request that she be discharged.
936
LOCAL 572, TEAMSTERS
advising her of her obligations, in violation of Section
8(a)(3) of the Act.
(b) In any like or related manner restraining or
coercing employees in the exercise of rights guaran-
teed them in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section
8(a)(3) of the Act.
2. Take the following affirmative action, which the
Board finds will effectuate the policies of the Act:
(a) Make Kathlyn L. Roy whole for any loss of pay
she may have suffered as a result of the discrimination
against her in the manner set forth in the section above
entitled "The Remedy."
(b) Post at its business office copies of the attached
notice marked "Appendix."" Copies of said notice, on
forms provided by the Regional Director for Region
21, after being duly signed by the Respondent's
representative, shall be posted by the Respondent
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 Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Forward a sufficient number of signed copies of
the notice to the Regional Director for Region 21 for
posting by the Employer at its place of business in
Compton, California, in places where notices to
employees are customarily posted, if the Employer is
willing to do so.
(d) Notify the Regional Director for Region 21, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply herewith.
" In the event that 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."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT cause or attempt to cause
Ralphs Grocery Company to discharge or to
otherwise discriminate against Kathlyn L. Roy,
or any other employee, for failure to tender
As requested by the General Counsel in an unopposed motion, the
transcript is hereby corrected.
The Employer operates a chain of retail grocery markets from a main
office located at Compton, California. annually deriving gross revenues in
excess of $500.000 while purchasing and receiving goods and products valued
periodic dues without adequately advising her of
her obligations, in violation of Section 8(a)(3) of
the National Labor Relations Act, as amended.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of the
rights guaranteed them in Section 7 of the Act,
except to the extent that such rights may be
affected by an agreement requiring membership
in a labor organization as a condition of employ-
ment.
WE WILL make Kathlyn L. Roy whole for any
loss of pay suffered because of the discrimination
against her, with interest.
CHAUFFEURS, SALESDRIVERS & HELPERS
UNION, LOCAL 572, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN & HELPERS OF
AMERICA
DECISION
STATEMENT OF THE CASE
DAVID G. HEILBRUN, Administrative Law Judge: This
case was heard before me at Los Angeles, California, on
June 12, 1979, based on a complaint alleging that Chauf-
feurs, Salesdrivers & Helpers Union, Local 572, Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehouse &
Helpers of America (herein called the Union or Respon-
dent), violated Section 8(b)(1)(A) and (2) of the Act by
attempting to cause and causing (collaterally in breach of a
fiduciary duty) Ralphs Grocery Company (herein called the
Employer) to terminate the employment of Kathlyn L. Roy
for failure to make timely payment of periodic dues owed the
Union as a condition of employment pursuant to terms of a
collective-bargaining agreement in effect between the Em-
ployer and the Union.
Upon the entire record,' my observation of witnesses, and
consideration of post-hearing briefs, I make the following:
FINDINGS OF FACT AND RESULTANT CONCLUSION OF
LAW
Kathlyn Roy was employed continuously in the Employ-
er's data processing department from September 1977
through Tuesday, January 9, 1979. Her supervisor at this
latter date was Barbara Meadows, and she had maintained
financial membership in the Union over this entire times-
pan.2 A labor contract termed the "Food Industry Office"
agreement, and effective from September 6, 1976, to Septem-
ber 2, 1979, had covered her employment. Article iii, "Union
Security," had validly provided that new employees "be-
come and thereafter remain members in good standing in the
in excess of $50.000 directly from suppliers outside of California. I find from
these admitted facts that it is an employer within the meaning of Sec 2(6) and
(7) of the Act and that otherwise Respondent is a labor organization within
the meaning of Sec. 2(5).
937
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union" after a 31-day grace period. It also contained the
following language as subparagraph B:
The employer shall discharge an employee at the
expiration of seven (7) calendar days following receipt
of written notice from the Union that the employee has
failed to complete or maintain membership in good
standing in the Union, unless the employee has correct-
ed the deficiency and the Employer is so notified with
the seven (7) days.
The Union routinely sends new hires a membership
packet, including one sheet that explains the deadline for
monthly dues as noon of the month's last business day. The
document also recites that absent timely payment of such
dues a $1 late charge must accompany any deliquent amount
for a given month, while delinquency reaching 3 months'
duration resluts in suspension from the Union removal from
the job, and curing only by payment of a "reinitiation" fee.
The entire dues collection system for the Union's approxi-
mately 8,600 members, of whom about 2,000 are on a direct-
pay (noncheckoff) basis, is handled by computer. Roy
acknowledged receiving an explanatory sheet of this general
character when hired, although she denied that she read
anything in it concerning a reinitiation fee. Additionally, she
aci.quired word-of-mouth knowledge that a $1 late dues
payment charge existed. She also randomly learned by
December 31, 1978, that a monthly dues increase from $15
to $16 had been effective late that year.'
Roy testified that during November, a point in time when
her dues were paid only through September, she prepared a
$31 check for then deliquent October and then due Novem-
ber dues, intending to mail this to union offices in Carson,
California, as was her custom. The envelope containing this
check was then inadvertently overlooked for over a month.
Roy further testified that she discovered the oversight on
December 31, voided the $31 check, wrote a new check for
$50, placed it in a stamped, blue envelope addressed plainly
to the Union, and mailed it on that date from a mailbox near
her home. Her next involvement, as is material here, was on
Thursday, January 4. On this date the following notification
was placed on her desk at work:
DATE: January 4, 1979
TO: Kathy Roy
FROM: Personnel Department
SUBJECT: UNION AFFILIATION AND MAINTENANCE OF
MEMBERSHIP
Affiliation with and maintenance of membership in
your Union is a condition of employment provided in
the agreement between the Ralphs Grocery Company
and your Union.
All dates hereinafter falling in July-December are 1978, and those falling
in January-June are 1979, unless in either case expressly shown otherwise.
At this point Conkling ruefully explained to Roy that an additional $3
must be paid in overlooked late charges, an amount advanced in cash by
Union Secretary-Treasurer Jack Cox after Roy's plea that she simply did not
have this much money left.
Rosenow had originally received Roy's name on January 3 as one of five
persons within this contractual unit who were to be "knocked offT at union
behest, absent dues rehabilitation per art. III, B. This had occurred upon
delivery of a letter to that effect from Business Representative Neal Shores as
he and Rosenow met on other matters. Rosenow routinely routed the matter
Your Union has notified us that you have not met this
obligation. Therefore, we wish to remind you of this
requirement and request that you contact your Union
immediately to satisfy all membership requirements.
Please submit written proof to your Manager of good
standing on Tuesday, January 9, 1979.
Your Manager has an obligation to terminate you for
failure to comply.
Thank you.
SC:KE
cc: Location Manager-Barbara Meadows Union Lo-
cal-(572) Member's File
Believing that a dues receipt for her delinquency was
crossing in the mail, Roy did nothing further at the time. On
January 8, Meadows spoke with her, reminding her that the
deadline for avoiding a termination from employment,
rooted in the contract's article ill, would be reached the
following day. Roy still felt assured that her described
submission of December 31 sufficed on the matter. She
worked without incident through the following day, al-
though coincidentally appearing at union offices (for only
the second time over the course of her employment) late that
afternoon in connection with voting on a new union steward
for her unit. She returned home around 7 p.m. and was
telephoned by Meadows, who announced her discharge from
employment for failure to maintain good standing with the
Union.
Roy testified that early the following morning she went to
the Union's office and engaged clerk-receptionist Dorothea
Conkling in conversation. Roy stated that Conkling checked
into her dues status and produced the $50 check and blue
envelope which by then had been postmarked "p.m." of
January 4. With this, Conckling handed back the papers,
explaining that the $50 payment was untimely to avoid
suspended membership status for which a reinitiation fee
must therefore be paid. Conkling calculated the amount
owed as $239 ($175 reinitiation fee, plus 4 months' dues,
including January, at $16, equaling $64). An admittedly
upset Roy departed to seek a quick credit union loan needed
to meet this total. She returned with partial proceeds later in
the morning and, upon adding payment by her personal
check, secured a temporary receipt and clearance.' Roy then
immediately sought restored employment from Douglas
Rosenow, the Employer's director of labor relations, who
advised her that he was "powerless" to do this.' Roy
immediately returned to the union offices and assertedly
spoke with Shores. He vaguely sympathized with her, finally
offering her a refund of the amount just paid. She declined
to personnel clerk Kye Estrella. the person actually preparing the notice
which appeared on Roy's desk the following day. At the outset Rosenow saw
nothing unusual in this situation. However, an uncommon urgency arose on
January 9. when Food Employers Council Consultant Calvin Bussi (an
association servicer of the Employer's personnel and labor relations matters)
telephoned Rosenow to say that the Union was seriously pressing its
contractual entitlement with respect to Roy and that the Employer might face
economic action, if not legal liability, should it fail to act. Upon this, Rosenow
immediately contacted Meadows, commanding her to effect the prompt
discharge of Roy. This directive had in turn led to Meadows' telephoning of
Roy at her home that evening as described.
938
LOCAL 572, TEAMSTERS
this, and next day the Employer unexpectedly offered her
reinstatement, which was accepted.'
The Union's version of matters is rooted in the testimony
of secretary-computer operator Carolyn Wadley that on or
about January 6 she had received the $50 payment, brought
up a computer readout of Roy's dues status, determined
from this that suspended status was extant by reason of 3-
month delinquency, and returned the check and envelope to
Roy by mail after photocopying both documents as a matter
of office routine.' Conkling testified that on or about January
9 Roy appeared to discuss her situation and vehemently
argued the unfairness of requiring a reinitiation payment.
Wadley warily joined this conversation, explaining to the
now distraught Roy how the $50 amount was handled and
that its lateness left no alternative but to reinitiate. Wadley
then summoned Lou Davis, the Union's business representa-
tive and recording secretary, who was at the moment the
only authoritative official around. Upon orienting himself
with the circumstances, he advised that Roy pay immediate-
ly and in full to preserve her job and then appeal the matter
for redress to the Union's executive board. According to
union witnesses Wadley, Conkling, and Davis, Roy returned
the next day and grudgingly paid a $242 total (including the
belatedly assessed $3 amount advanced in cash by Cox),
although fretting at the time that she could not even be sure
this made sense to do, because she might not have a job to
which the dues would relate."
The General Counsel has cast this case as one exclusively
turning on whether Roy had reasonable notice of her
membership obligations under the contract. This theory
embraces the notion of a union's "fiduciary duty" to "deal
fairly" with an affected employee in order that the person
"may take whatever action is necessary to protect his job
tenure." N.L.R.B. v. Hotel, Motel and Club Employees'
Union, Local 568, AFL-CIO (Philadelphia Sheraton Corp.),
320 F.2d 254, 258 (3d Cir. 1963), enfg. 136 NLRB 888
(1962). Accord: H.C. Macaulay Foundry Co. v. N.L.R.B..
553 F.2d 1198, 1201 (9th Cir. 1977), enfg. 223 NLRB 815
1976. Resolution in terms of this theory requires a threshold
finding of fact as to whether Roy did or did not engage in
direct personal conversation by January 9 with office
functionaries of the Union relative to her dues delinquency.9
I discredit Roy's version of having remained blithely
ignorant, assuming that events would extricate her from a
self-induced jeopardy. On demeanor grounds she was unper-
' Rosenow explained the Employer's precipitate change in position as based
on another urgent call from Bussi, who urged this course in terms of his
(Bussi's) understanding that the Union had committed a "big mistake."
Wadley also described having "typed a note telling her ... that she had
gone suspended" as a cover to such material. In its brief, the General Counsel
contends that an adverse inference should be drawn by reason of failure to
produce a copy of this note, when Wadley has testified that she "regularly
keeps copies of all communications sent out" (G.C. br., p. 8). I decline to
draw the requested inference, particularly because the quoted passage grossly
distorts actual testimony. During cross-examination, and in a context of
"routine delinquent notices," Wadley affirmed that the Union does "keep
records of things [we] send out." This casual exchange cannot be taken to
mean that Wadley would be expected to copy her note, which was mere
courtesy to Roy and was without significance compared with the check and
envelope.
' The Union did authorize the reinstatement of Roy through contacts with
the Employer and for reasons that were not developed on the record. The
General Counsel did not press such elaboration, and counsel for the Union
disclaimed that any "mistake" existed with respect to this matter. The
tangible upshot, for which the General Counsel seeks a full remedy. was loss
suasive, and I accept contrary testimony not because of mere
numbers, but because it is inherently more probable. Roy's
return visit is clearly recalled by the seemingly plausible
Wadley and only slightly less so by Conkling. Further
corroboration is present from Davis, and its raggedness in
content is expectable in terms of the wide scope of his
membership servicing. In a manner distinguishable from
Teamsters Local No. 122 (August A. Busch & Co. of Mass,
Inc.), 203 NLRB 1041, 1042 (1973), enfd. 502 F.2d 1160
(Ist Cir. 1974), and International Brotherhood of Boilermak-
ers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers. Local
Lodge No. 732, AFL-CIO (Triple A Machine Shop, d/b/a
Triple A South), 239 NLRB 504 (1978), both cited by the
General Counsel, Respondent here fulfilled a reasonably
couched effort at notification to Roy of her imminent loss of
employment by operation of an enforceable contract. She
ignored this at her peril, even after followup contact by
supervision and notwithstanding her actual presence at union
offices on the final afternoon of the grace period, when she
chose not even to deign simple inquiry of Shores as to what
consequences there were of that which had been so plainly
described to her. Cf. Forsyth Hardwood Company, 243
NLRB 1039 (1979). Thus I am satisfied that Roy did in fact
inquire of available union personnel on or before January 9
and for reasons no more valid than personal pique chose to
disregard, and later conveniently forget, the entire episode."'
The tone of all that Roy described left little doubt of her
disdain for unionism. Aside from the January-February
1978 dynamics that have been noted, she was later delin-
quent for August and by November had fallen 2 months in
arrears. Her own oversight extended this for another month,
and I find her critical testimony to be unreliably evasive and
based in an opportunistic attempt to profit from inexplicable
confusion following a valid removal from employment at the
Union's behest. The authorities relied on by the General
Counsel are unusual or aggravated cases, wholly dissimilar
from this highly structured situation involving a large
membership and dues payment policies promulgated and
implemented in good faith to assure the Union's legitimate
entitlement to revenue. As miscellaneous concluding obser-
vations I note that actual notice of Roy's financial obliga-
tions was present here, a key element influencing the Board's
decision in Chauffeurs, Teamsters and Helpers Local Union
150, Teamsters. 242 NLRB 454 (1979); that a remark
attributed to Shores on January 8 about how he "would
of 2 days' employment by Roy and her payment of the extraordinary 175
reinitiation fee. For purposes of decision on the merits. it suffices to examine
probative facts only through the events of January 10.
' The General Counsel concedes that computation of the January 9 deadline
under the contract's 7-day language was a proper interpretation between the
Employer and Union.
"' Respondent points to the curious fact that Roy's mailing envelope was
postmarked January 4. although she insists it was deposted in a postal
receptacle on December 31 Absent any evidence of postal practices in this
vicinity. I do not rely on the inviting significance of this span of time.
observing only that a strong suggestion is present from common knowledge of
mail-handling practices that Roy did not deposit the item until the new year
had arrived. See Forsyth Hardwood. supru. Evel assuming deposit on
December 31, this does not answer the known requirement of the last business
day being the deadline for timely payment of dues. as set forth in material
originally persued by Roy when first hired. Awareness of this due date is
established by her admission, supported also by computerized record of dues
payment showing that a early as February 7. 1978. she included the SI fine
aniount when becoming current after the January 1978 dues period passed
into deliquency
939
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
return" Roy's tender is explainable in terms of the size of & Processed Foods & Industrial Workers Local No. 630.
this labor organization and the reasonable likelihood he International Brotherhood of Teamsters, Chauffeurs, Ware-
would not know of such a routine office function already housemen & Helpers of America (Ralph's Grocery Company),
performed by Wadley; and that the implication of Rose- 209 NLRB 117 (1974).
now's testimony, that dealings here were unusually persis- Accordingly, I render a conclusion of law that Respon-
tent, and practically without precedent, must be discounted dent has not violated Section 8(b)(1)(A) or (2) as alleged.
in view of the fact that, institutionally at least, this enterprise [Recommended Order for dismissal omitted from publica-
is no stranger to such controversy. See Produce, Refrigerated tion.]