Teamsters Local Union 150

National Labor Relations Board - Board Decisions

May 23, 1979

242 N.L.R.B. 454 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chauffeurs, Teamsters and Helpers Local Union 150,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America and William A. Lowd and Delta Lines,
Party in Interest. Case 32-CB-38 (Formerly 20-
CB-4482)
May 23, 1979
DECISION AND ORDER
BY MEMBERS PENELLO, MURPHY, AND TRUESDALE
On April 26, 1978, Administrative Law Judge Jer-
rold H. Shapiro issued the attached Decision in this
proceeding. Thereafter, the General Counsel and
Charging Party filed exceptions and supporting briefs,
and Respondent filed a brief in opposition to the ex-
ceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached 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 found that Respon-
dent Union did not violate Section 8(b)(l)(A) and
Section 8(b)(2) of the Act when it sought and caused
Delta Lines to discharge the Charging Party, em-
ployee William A. Lowd. We disagree with that con-
clusion for reasons explained below.
In 1976, Lowd was employed as a casual long-line
truckdriver in the Sacramento, California, area. Al-
though Respondent had jurisdiction over this type of
work in the Sacramento area, Lowd at the time was a
member of a sister Teamsters local having jurisdiction
in the Los Angeles area. In October 1976, Lowd con-
tacted Respondent about transferring his membership
to Respondent. He filled out a membership applica-
tion and requested a transfer from the Los Angeles
local to Respondent. Shortly thereafter, however, he
concluded that there was probably insufficient work
for him in Sacramento and asked the Los Angeles
local to cancel the transfer request.
Also in October 1976, Lowd commenced working
for Delta Lines (herein called Delta or the Employer)
in Sacramento as a casual long-line driver working on
an intermittent basis. He continued to work for the
Employer until his discharge on August 8, 1977.
Respondent and the Employer were parties to a
collective-bargaining agreement which contained a
union-security clause. Lowd, who did not accumulate
30 days of driving for the Employer until May 1977,
attempted at various times in his tenure with Delta to
find out whether the union-security clause applied to
casual drivers.' Thus, on several occasions Lowd in-
quired of Respondent's steward for the Employer's
employees as to his responsibilities. The steward told
Lowd that he did not know, but he advised Lowd to
continue working. Lowd also requested a copy of the
collective-bargaining agreement from the steward but
was told they were out of print. Lowd also contacted
a third Teamsters local (Local 208), inquiring about
transferring membership. Local 208 responded that a
transfer was impossible because "in order to transfer
into Local 208 one must have a letter of hire." Since
casuals are not given letters of hire, and since he had
been told that they were necessary to acquire mem-
bership, Lowd concluded that union membership
pursuant to the union-security clause was not re-
quired of a casual employee like himself. Lowd also
spoke with other truckdrivers, two former business
agents of Teamsters locals, and a supervisor em-
ployed by another trucking company about his obli-
gations. These conversations contributed to his con-
clusion that as a casual driver he did not have to join
Respondent. In June or July 1977, he again sought to
determine his obligations as a casual driver when he
attempted to contact Respondent's business agent.
The business agent was not in, and Lowd left his
name and phone number. He also mentioned to the
secretary who answered the call that he was a mem-
ber of Local 224 (the Los Angeles local). In response
to the call, the business agent's superior tried to reach
Lowd twice that day but was unsuccessful.
On August 8, 1977, Lowd was terminated by the
Employer pursuant to a termination notice sent to it
by Respondent on August 4. The termination notice
was for his failure to pay dues and join Respondent.2
The Employer explained to Lowd that the termina-
tion was pursuant to Respondent's direction. Lowd
did not contact Respondent after receiving the notice
because he thought that as a casual driver he did not
have any dues obligation to Respondent.
The General Counsel alleged that Respondent's
conduct in securing Lowd's discharge violated Sec-
tion 8(b)(1)(A) and Section 8(b)(2) of the Act because
Respondent did not afford Lowd a reasonable oppor-
tunity to comply with the contractual union-security
provisions, and did not inform Lowd of the amount
he owed, the method used to compute the amount,
I As found by the Administrative Law Judge. the parties agreed that Lowd
was, in fact, obligated to comply with the union-security clause after 30 days
of employment.
2 Lowd received a copy of the termination notice on Friday. August 5,
1977. It indicated that Lowd should be terminated on August 7 unless he
completed his union obligations prior to that date.
242 NLRB No. 66
454
TEAMSTERS, LOCAL UNION 150
the manner in which he could satisfy his obligation
before it sought his discharge.3
Despite finding, in agreement with the General
Counsel, that Respondent had never informed Lowd
of his contractual obligations and had never given
him a reasonable opportunity to comply with them,
the Administrative Law Judge recommended dis-
missal of the complaint. He reasoned that Lowd's
failure to comply with the union-security clause was
not based on any of Respondent's proven omissions
of duty toward Lowd. Rather, the Administrative
Law Judge concluded that Lowd's discharge was the
result of Lowd's mistaken belief that the union-secu-
rity clause did not apply to those, like himself, who
were long-line drivers employed as casuals. The Ad-
ministrative Law Judge concluded that, whatever
Lowd's reason, he had no intention of complying with
the union-security clause, regardless of the adequacy
of Respondent's notice. Accordingly, the Administra-
tive Law Judge found no violation in Lowd's dis-
charge. We disagree.
As noted above, the Board has long held that a
union must afford employees a reasonable opportuni-
ty to comply with lawful contractual union-security
provisions and must also inform the delinquent em-
ployee of the amount owed, the method used to com-
pute the amount owed, and the manner in which the
obligation may be satisfied before it may seek such
employee's discharge for failure to comply with the
union-security provisions. An exception to this re-
quirement arises where the employee has displayed
bad faith, such as by willfully and deliberately evad-
ing his or her financial obligations.'
The instant facts clearly reveal that Respondent
failed to meet its obligations to Lowd. They further
reveal that no bad faith was shown to have existed on
Lowd's part. In this regard, we note, in particular,
that Lowd, on a number of occasions, asked Respon-
dent's designated steward of his obligations and the
steward told him he did not know what Lowd's obli-
gations were. Further, Lowd undertook other inquir-
ies (detailed above) which also proved fruitless. We
stress that these inquiries undertaken by Lowd did
not relieve Respondent of its affirmative duty under
the Act specifically to inform Lowd of his obligations
and afford him a reasonable opportunity to satisfy
them. They simply show Lowd's lack of bad faith in
failing to pay his obligations.
' The Board has long held that these obligations must be satisifed before a
discharge may be sought for failing to comply with the contractual union-
security provisions of a collective-bargaining agreement. See Teamsters Local
Union No. 122, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (August A. Busch & Co of Mass., Inc. , 203
NLRB 1041 (1973).
4 See, e.g., Produce, Refrigerated & Processed Foods & Industrial Workers
Local No. 630, IBT(Ralph's Grocery Company), 209 NLRB 117 (1974).
In light of these above findings, a violation has
been established in this proceeding. We disagree with
the Administrative Law Judge's implicit legal conclu-
sion that even in the absence of bad faith on Lowd's
part the General Counsel had to establish a casual
connection between Respondent's admitted failings
and Lowd's failure to pay his financial obligations.
While such casual connection may, in fact, have ex-
isted here, it is unnecessary to establish this connec-
tion in the face of Respondent's failure to give Lowd
proper notice. Such failure where had faith has not
been shown establishes the violation. The Adminis-
trative Law Judge's conclusions to the contrary run
counter to Board precedent.5 Consequently, in agree-
ment with the General Counsel and Charging Party,
we find that Respondent violated Section 8(b)(1)(A)
and Section 8(b)(2) of the Act in seeking and causing
Lowd's discharge.6
THE REMEDY
Having found that by the aforementioned conduct
Respondent Union has violated Section 8(b)(2) and
(I)(A) of the Act, we shall order it to cease and desist
from engaging in such conduct in the future and, af-
firmatively, to take such action as will dissipate the
effects of its unfair labor practices.
We shall order Respondent Union to notifv Delta
Lines, in writing, with a copy to William A. Lowd,
that it withdraws its objections to Delta Lines' em-
ployment of Lowd and requests it to offer him rein-
statement and the restoration of his seniority as it
existed on August 8, 1977, the date of his discharge.
We shall order Respondent to make Lowd whole
for any loss of pay suffered by reason of the discrimi-
nation against him, by payment to him of a sum of
money equal to the amount he would normally have
earned as wages from the date of his discharge to the
I We note that there is no factual basis for the Administrative l.aw Judge's
conclusion, joined in by our dissenting colleague. that regardless of the ade-
quacy of Respondent's notice Lowd was intent on not complying with the
union-security clause Proper notification may well have dispelled L.owd's
erroneous views of his obligations. The key here is that such notice was not
given, and we will not presume what would have happened in its absence
Our dissenting colleague further indicates that the blame of Lowd's firing
rests in his own failure to seek out Respondent more avidly to determine his
obligations. This theory neatly shifts the burden of notification from union to
employee and, as such, is a curious legal proposition, at odds with Board
precedent and without any legal validity. See the cases cited at sec. III.B,
par. 1, of the Administrative Law Judge's Decision.
I In agreement with the Administrative Law Judge, however. as discussed
in fn. 4 of his Decision, we do not find that Respondent has iolated the Act
by notifying Lowd he was obliged to become a full member of Respondent:
or by not giving Lowd the 90-day grace period to fulfill his obligations which
extended to individuals who were already members of Respondent. In so
finding. however, we rely only on the fact that these issues were not suffi-
ciently litigated at the hearing. We do not rely on the last sentence f the
Administrative Law Judge's footnote in so deciding.
455
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date set forth hereafter, less his net earnings during
this period. The loss of earnings shall be computed in
the manner prescribed in F. W. Woolworth Company,
90 NLRB 289(1950), with interest as described in
Florida Steel Corporation, 231 NLRB 651 (1977).7
Respondent's backpay liability shall terminate 5 days
after it notifies Delta Lines that it has no objection to
Lowd's reinstatement, as provided above.
CONCLUSIONS OF LAW
1. Delta Lines, 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, Teamsters and Helpers Local Union
150, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is, and at all times material herein has
been, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By attempting to cause and causing Delta Lines
to discharge William A. Lowd for failure to tender
periodic dues without adequately advising him of his
obligations, Respondent Union has engaged in, and
continues to engage in, unfair labor practices within
the meaning of Section 8(b)(2) and (I)(A) 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 Rela-
tions Board hereby orders that the Respondent,
Chauffeurs, Teamsters and Helpers Local Union 150,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, its officers, agents, and representatives,
shall:
1. Cease and desist from:
(a) Causing or attempting to cause Delta Lines to
discharge or to otherwise discriminate against Wil-
liam A. Lowd or any other employees for failure to
tender periodic dues without adequately advising
them of their obligations, in violation of Section
8(a)(3) of the Act.
(b) In any like or related manner restraining or co-
ercing employees in the exercise of the rights guaran-
'See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
teed them in Section 7 of the Act, except to the extent
that such rights may be affected by an agreement re-
quiring membership in a labor organization as a con-
dition 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 William A. Lowd whole for any loss of
pay he may have suffered as a result of the discrimi-
nation against him in the manner set forth in the sec-
tion above entitled "The Remedy."
(b) Notify William A. Lowd and Delta Lines, in
writing, that it withdraws its objections to Lowd's em-
ployment and requests the Employer to offer Lowd
reinstatement and the restoration of his full seniority
and other rights and privileges as they existed on Au-
gust 8, 1977, the date of Lowd's discharge.
(c) Post at its business office copies of the attached
notice marked "Appendix." 8 Copies of said notice, on
forms provided by the Regional Director for Region
32, after being duly signed by the Union's representa-
tive, shall be posted by the Union immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding all places where notices to members are cus-
tomarily posted. Reasonable steps shall be taken by
Respondent Union to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Forward a sufficient number of signed copies of
the Appendix to the Regional Director for Region 32
for posting by the Employer at its place of business in
Sacramento, California, in places where notices to
employees are customarily posted, if the Employer is
willing to do so.
(e) Notify the Regional Director for Region 32, in
writing, within 20 days from the date of this Order,
what steps have been taken to comply herewith.
MEMBER MURPHY, dissenting:
Contrary to my colleagues, I agree with the Ad-
ministrative Law Judge that Respondent did not un-
lawfully cause Charging Party Lowd's discharge. As
the Administrative Law Judge found, after Lowd be-
gan working for Delta Lines (the Employer herein) as
a casual long-line driver he asked Respondent's stew-
ard at Delta on several occasions if he was obliged to
join or pay dues to Respondent, and the steward re-
plied that he did not know. The Administrative Law
Judge further found that Lowd once called Respon-
dent's business agent, the person responsible for po-
licing the collective-bargaining agreement at Delta,
I 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."
456
TEAMSTERS, LOCAL UNION 150
who was unavailable but who attempted unsuccess-
fully to return Lowd's call. Otherwise, Lowd, who
was a member of another Teamsters local and
generally familiar with employee obligations under
union-security clauses, made no attempt to contact
any agent or representative of Respondent regarding
his responsibility to pay dues. He concluded on the
basis of conversations with other individuals that be-
cause he was a casual worker the union-security
clause in the collective-bargaining agreement between
Respondent and Delta did not apply to him.
On August 4, 1977, Respondent mailed copies of a
letter requiring Lowd's discharge to both Lowd and
Delta; Lowd received his copy of the letter on August
5. On August 7, in compliance with the letter, Delta
terminated him. It is undisputed that Respondent did
not, prior to demanding Lowd's discharge, notify him
of his obligations under the union-security clause,
and that in fact pursuant to that clause Lowd was
obligated to pay dues to Respondent. On these facts,
my colleagues find that Respondent breached its duty
to inform Lowd of his financial obligations prior to
demanding his discharge and thereby violated Section
8(b)(2) and (I)(A) of the Act. In reaching this conclu-
sion, however, the majority ignores the reality of the
situation.'
As discussed above, Lowd was a member of a sister
local of Respondent and well aware of the fact that
Respondent and Delta were parties to a collective-
bargaining agreement which included a valid union-
security clause. Thus, Lowd can hardly be viewed as
ingenuous regarding his union responsibilities. And,
although Lowd asked a steward about the applicabil-
ity of the union-security clause to him, when the stew-
ard was unable to answer his question Lowd made
only one attempt to contact another agent of Respon-
dent. Thereafter, Lowd directed his inquiries about
his status to other individuals who could not speak on
behalf of Respondent, and Lowd formed his own con-
clusion about his obligations without bothering to
verify the accuracy of that conclusion. In these cir-
cumstances, it is naive for the majority to insist that a
union provide an employee with notice of his obliga-
tions when it is quite clear that in any event the em-
ployee has no intention of meeting them. In light of
the foregoing, I cannot agree with the majority that
Respondent unlawfully obtained Lowd's discharge,
and, therefore, I dissent.' I would dismiss the com-
plaint against the Union in its entirety.
I The majority's attempted disavowal in fn. 5 of the undisputed facts here
must fail for the same reason that the Administrative Law Judge found the
discharge to be lawful.
I0 See my dissent in District 9, International Association of Machinists and
Aerospace Workers, AFL-CIO (Marvel-Schebzer, Division of Borg-Warner
Corp.), 237 NLRB 1278 (1978).
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 Delta
Lines to discharge or to otherwise discriminate
against William A. Lowd or any other employee
for failure to tender periodic dues without ade-
quately advising them of their obligations, in vio-
lation of Section 8(a)(3) of the Act.
WE WILL NOT in any like or related manner
restrain or coerce employees in the exercise of
the rights guaranteed in Section 7 of the Act.
except to the extent that such rights may be af-
fected by an agreement requiring membership in
a labor organization as a condition of employ-
ment.
WE WILL notify William A. Lowd and Delta
Lines, in writing, that we withdraw our objec-
tions to Lowd's employment and request Lowd's
reinstatement and the restoration of his full se-
niority and other rights and privileges as they
existed on August 8, 1977, the date of his dis-
charge.
WE WILL make William A. Lowd whole for
any loss of pay suffered because of the discrimi-
nation against him, with interest.
CHAUFFEURS, TEAMSTERS AND HELPERS Lo-
CAL UNION 150, AFFILIATED WITH THE IN-
TERNATIONAL BROTHERHOOD OF TEAM-
STERS, CHAUTFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: The
hearing in this case, held February 28, 1978. is based upon
an unfair labor practice charge filed August 11. 1977, as
amended October 12, 1977, by William A. Lowd against
Chauffeurs, Teamsters and Helpers Local Union 150, affili-
ated with the International Brotherhood of Teamsters.
Chauffeurs, Warehousemen and Helpers of America. herein
called Respondent, and an amended complaint issued Octo-
ber 27, 1977, by the General Counsel of the National Labor
Relations Board, herein called the Board, alleging that Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(bX)(1A) and (2) of the National La-
bor Relations Act, as amended, herein called the Act, by
seeking to cause and by causing Lowd's employer to dis-
charge him for his failure to comply with the terms of a
contractual union-security clause even though Respondent
failed to notify Lowd "of his obligations regarding the
amount, time or manner of making payments under said
457
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clause and without offering him a reasonable opportunity
to comply." Respondent filed a timely answer denying the
commission of the alleged unfair labor practices.
Upon the entire record, from my observation of the de-
meanor of the witnesses, and having considered the post-
hearing briefs, I make the following:
FINDINGS OF FA( I
I. THE BUSINESS OF THE EMPLOYER INVOI.VED
Delta Lines, herein called the Employer, is a California
corporation with a facility located in Sacramento, Califor-
nia, where it provides trucking services to other employers.
During the calendar year in which the alleged unfair labor
practices occurred the Employer purchased goods valued
over $50,000 directly from suppliers located outside the
State of California. Respondent admits, and I find, that the
Employer is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. I further find
that it will effectuate the purposes of the Act to assert juris-
diction herein.
II. IHE LABOR ORGANIZATION INVOI.VII
The complaint alleges, Respondent admits, and I find
that Respondent is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR .ABO()R PRA( II(CES
A. The Facts
The Charging Party, William Lowd, has been a member
of various local unions affiliated with the Teamsters Inter-
national Union since 1958. In 1976, during the material
period of time, Lowd was a member of Local 224 whose
jurisdiction encompasses Los Angeles, California, and vi-
cinity.
In 1976, on a date not disclosed in the record, Lowd
began working as a casual long-line truckdriver for System
99 Truck Lines which is located in Sacramento, Califirnia.
The Union is the Teamsters local which has jurisdiction
over this type of work in the Sacramento area. Based upon
his prior experience as a member of the Teamsters, Lowd
knew that it was customary for a member of a local union
affiliated with the Teamsters International Union to trans-
fer his membership into the local Union in whose jurisdic-
tion he was working. Thus, on October 1, 1976, while work-
ing for System 99 Truck Lines, Lowd visited Respondent's
office and filled out a membership application and re-
quested that his membership be transferred from Local 224.
An office clerical employed by Respondent explained the
transfer procedure to Lowd and advised him of the amount
of monthly dues and assessments he was obligated to pay as
a member of Respondent. He was also notified that beflre
his transfer could be effective Respondent would have to
check with Local 224 to determine whether he owed Local
224 any moneys, and if so, Respondent would collect the
money from Lowd and transmit it to Local 224. Later in
October Lowd phoned Local 224 and instructed it to cancel
his request to transfer into Respondent, explaining to Local
224 that his work with System 99 Truck Lines was slowing
down, and there did not appear to be sufficient work for
him to remain in Sacramento so he would probably return
to work in the Local 224 jurisdiction, Los Angeles. It is
undisputed that at all times material herein Lowd was a
member of Local 224 and not a member of Respondent.'
Lowd did not return to Los Angeles; he remained in Sac-
ramento, and in late October 1976 he commenced working
for the Employer as a casual long-line driver. Until his ter-
mination on August 8, 1977, Lowd worked for the Em-
ployer intermittently as follows: October 1976-4 days, No-
vember- 3 days, December-3 days, January 1977-- I day,
February-2 days, March-9 days, April 7 days, May-
11 days, June-10 days, July--17 days, and August 3
days.
Respondent and the Union were parties to a collective-
bargaining agreement and the National Master Freight
Agreement, which covers the terms and conditions of em-
ployment of all the Employer's long-line drivers, including
its casuals. However, the casuals acquire no seniority, and
after the completion of each job assignment they are issued
slips terminating their employment. They are covered by
the collective-bargaining agreement's union-security clause,
article III, section I(b), which, in pertinent part, reads:
All present employees who are not members of the
local union and all employees who are hired hereafter
shall become and remain members in good standing of
the local Union as a condition of employment on and
after the 31st day following the effective date of this
subsection or the date of this Agreement, whichever is
the later. An employee who has failed to acquire or
thereafter maintain, membership in the Union as
herein provided shall be terminated seventy-two (72)
hours after his employer has received written notice
from an authorized representative of the local Union,
certifying that membership has been. and is continuing
to be, offered to such employee on the basis as all other
members and, further, that the employee has had no-
tice and opportunity to make all dues or initiation fee
payments.
The parties to this proceeding agree that Lowd, as a casual
employee, was legally as well as contractually obligated to
comply with the terms of the aforesaid union-security
clause after having worked 30 days for the Employer. See
State Packing Company. 137 NLRB 1420 (1962).
When Lowd started working for the Employer he knew
that the Employer was a party to a collective-bargaining
contract with Respndent and knew that the long-line driv-
ers were required to join Respondent as a condition of con-
tinued employment. Lowd testified that he concluded in
early 1977 that the union-security clause did not apply to
casual workers like himself' but only to the regular employ-
ees who acquire seniority. The circumstances which re-
It appears, however. that in November 1976 Lowd requested a with-
draval card from Local 224. the record is silent as t, whether he was ever
issued a withdrawal.
2 .owd's testimony that he did not reach this conclusion until early 1977 is
suspect. inasmuch as he admitted during cross-examination that the reason
(during his entire period of employment with the mployer, from October
1976 until August 1977), that he did not seek a transfer from Local 224 into
Respondent as because of his conviction that the contractual union-secu-
rity clause did not apply to casuals.
458
TEAMSTERS. LOCAL UNION 150
suited in his conclusion, Lowd testified, were as follows. In
January 1977 Lowd phoned the System 99 dispatcher to
find out whether there was any casual work available. The
dispatcher advised him, in substance, that Respondent had
previously caused System 99 to stop employing him be-
cause he had not "straightened himself out with the [Re-
spondent}," and that on account of this System 99 could not
employ him. Unhappy about being told that he was being
denied employment because he had not transferred his
union membership from Local 224 to Respondent, Lowd
began making inquiries about whether he was obligated, as
a casual worker, to join and pay dues to Respondent. His
conversations with several persons including truckdrivers.
two former business agents of local Teamsters unions, and a
supervisor employed by a trucking company convinced him
that under the collective-bargaining agreement which gov-
erned his employment that only regular workers who ac-
quired seniority had to join Respondent and pay dues. This
belief was bolstered, he testified, when in early May 1977
Lowd wrote to Teamsters Local 208 asking whether he
could transfer his membership into this local from Local
224, and he was advised that such a transfer was impossible
because "in order to transfer into Local 208 one must have
a letter of hire." Since employers do not issue casuals letters
of hire, and since, as stated in Local 208's response, it is
necessary to have a letter of hire in order to acquire mem-
bership, Lowd reasoned that a casual was not obligated to
acquire union membership pursuant to the terms of a con-
tractual union-security clause.
In approximately February 1977 Lowd spoke to Bill Bel-
ger, the employee designated by Respondent to serve as
Respondent's steward for the Employer's employees.' Lowd
asked whether, as a casual worker, he was obliged to pay
dues to Respondent or join Respondent. Lowd explained
that it was his understanding that Respondent had caused
System 99 to terminate him for failing to do this, but he had
since learned Respondent did not have this right because
casual workers were not obliged to join Respondent or pay
dues. Belger stated that he was unable to answer lIowd's
question. explaining to Lowd that he did not have a com-
plete understanding of the applicable collective-bargaining
agreement. He advised Lowd to continue to work for the
Employer. During this conversation Lowd asked for a copy
of the collective-bargaining contract. Belger told him that
he did not have one, that they were out of print. Thereafter
Lowd spoke to Belger about this same topic on several
other occasions. Each time Belger indicated that he did not
know whether union membership or the paynent of dues
was compulsory for a casual worker like Lowd.
In June or July 1977 Lowd phoned Respondent's office
and asked to speak to Howard Rush. the business agent
responsible for policing the terms of Respondent's collec-
tive-bargaining contract which covered the Employer's op-
eration. Lowd testified that it was his intention to ask Rush
whether, as a casual employee, he was obliged to join Re-
spondent. Rush was not available, however, so l.owd left
his name, phone number, and the fact that he was a mem-
I Lowd did not remember when he first spoke to Belger. He testified that
the initial conversation occurred 3 or 4 months after he had started working
for the Employer in October 1976.
ber of Local 224 with the secretary who had taken the call,
and without explanation asked that Rush return his call.
This message was received by Rush's boss. Jack Kalehuloa.
Respondent's secretary-treasurer, who phoned Lowd twice
that day but was unable to reach him.
On August 8, 1977. the Employer terminated Lowd un-
der the following circumstances. On August 4, Respondent
mailed copies of a termination notice to Lowd and to the
Employer. Lowd's copy was addressed to Lowd in care of
the Employer. On August 5, at noontime, Lowd received
the envelope containing his copy of the termination notice
from the Employer's dispatcher. The notice captioned
"Termination Notice" was addressed to the Employer and
was signed by Respondent's secretary-treasurer. It reads as
follows:
Gentlemen:
According to the Union agreement in effect between
the Company and the Union, any' employee covered
by said agreement cannot be retained in employment
unless he is a member in good standing. The person
named below was dropped from the Union Roster
on . This letter will serve as official notice to termi-
nate W.A. Lowd no sooner than August 7, 1977 and
not later than August 7, 1977. This Union reserves the
right to rescind this notice of termination prior to the
effective dates if the employee completes his Union ob-
ligations.
After reading the notice Lowd asked to speak to the Em-
ployer's Terminal Manager Jarad McArthur and was in-
formed that he was not there. Lowd did not go to Respon-
dent's office. He testified that the reason he did not go to
Respondent's office upon receipt of the notice, either for an
explanation or to have the notice rescinded, was that so far
as he was concerned he felt that he had no obligation to
join and pay dues to Respondent inasmuch as he was only
employed as a casual employee.
On Monday. August 8. 1977, Lowd spoke to Terminal
Manager McArthur and asked what the termination notice
meant. McArthur stated that it meant the Employer could
not employ him any longer since Respondent had directed
it not to do so.
Finally, in reciting the facts pertinent to a disposition of
this case. I note that it is undisputed that at no time prior to
Lowd's receipt of the termination notice did any represent-
ative of Respondent notify him that pursuant to the con-
tract between Respondent and the Employer that he was
obliged to transfer his membership from Local 224 to Re-
spondent or pay dues to Respondent as a condition of con-
tinued employment.
B. Ul timate Findings and Di.cus.sion
A labor organization seeking to enforce a union-security
provision against an employee has a "fiduciary" duty to
"deal fairly" with the employee atfected. "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." .I. .R. v.
Hotel, uotel and Club Etnplo ee.s' Union,. Local 568, FL
(10 (Philadelphia Sheraton (orporation), 320 F.2d 254, 258
459
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3rd Cir. 1963), enfg. 136 NLRB 888 (1962). Accord: H.C.
MacCaulay Foundry Co. v. N.L.R.B., 533 F.2d 1198, 1201
(9th Cir. 1977), enfg. 223 NLRB 815. In applying this prin-
ciple, the Board has held that a union which seeks an em-
ployee's discharge for noncompliance of a union-security
clause must afford the employee a reasonable opportunity
to satisfy his financial obligation, inform him of the precise
amount of his obligation, specify the months for which the
obligation is owed, and explain the method used in comput-
ing the amount owed. Teamster Local Union 122, etc. (Au-
gust A. Busch & Co. of Mass., Inc.), 203 NLRB 1041, 1042
(1973); Granite City Steel Company, 169 NLRB 1009, fn. I,
1011 (1968).
Counsels for the General Counsel and the Charging
Party take the position that in causing Lowd's discharge
Respondent violated Section 8(b)(2) and (1)(A) of the Act
because it failed to deal fairly with him in that it did not
afford him a reasonable opportunity to comply with the
contractual union-security provision and failed to inform
him of the precise amount of his obligation, the months for
which the obligation was owed, the method used in com-
puting the amount owed, and the manner in which he could
satisfy his obligation.' Respondent argues that under the
circumstances of this case its August 4 termination notice to
Lowd constitutes proper notice; and even assuming that it
should have acted more diligently, Respondent argues that
its request which caused Lowd's discharge was not unlawful
because the record establishes that even upon receipt of a
proper notification Lowd would not have complied with the
terms of the contractual union-security clause and would
have been discharged in any event. I am of the view that
the complaint must be dismissed inasmuch as the record
establishes that it was not Lowd's lack of knowledge of the
terms of the union-security clause or that he risked termina-
tion if he failed to comply with this clause which brought
about Lowd's termination; rather, the record establishes
that Lowd's discharge resulted from his belief that the
terms of the union-security clause did not apply to him.
The union-security clause included in the applicable col-
lective-bargaining contract covered Lowd, who was em-
' I reject General Counsel's and Charging Party's further contentions that
Respondent failed to fulfill its duty of fair representation, as well as indepen-
dently violated the Act, by notifying Lowd that he was obliged to become a
full member of Respondent and by discriminating against him by allowing
employees who were already members of Respondent a grace period of 90
days to meet their union-security obligation, whereas employees like Lowd
who are applying for membership are not given the same grace period. Nei-
ther contention was advanced as a theory of the complaint nor sufficiently
litigated. It is not surprsing that these contentions were not litigated by
Respondent inasmuch as the complaint in this case, which specifically sets
out the theory of the violation, significantly does not include these additional
contentions. Thus the complaint alleges that Respondent sought and secured
Lowd's discharge, and that this conduct violated the Act because it was done
"without first notifying William Lowd of his obligations regarding the
amount, time or manner of making payments under [the union-security
clause} and without offering him a reasonable opportunity to comply there-
with." In any event, assuming the aforesaid additional contentions advanced
by the General Counsel and Charging Party are within the ambit of the
complaint and have been established in the record, I would still find no
violation herein because, as found infra, the record reveals that in refusing to
comply with Respondent's termination notice Lowd was not influenced by
the notices terminology or by the fact that it afforded him only a short period
of time to comply; rather, given any amount of time and regardless of the
terms of the notice, Lowd had made up his mind not to comply with the
terms of the union-security clause and would not have complied.
ployed by the Employer as a long-line driver on a casual
basis. From the time that Lowd began working for the Em-
ployer, he knew that Respondent and the Employer were
parties to a contract which included a clause requiring long-
line drivers to join Respondent as a condition of continued
employment. Based upon his 18 years as a member of the
Teamsters, Lowd knew how to go about transferring his
membership from Local 224 into Respondent, and based
upon his abortive effort to transfer into Respondent he
knew where Respondent's office was located and the cur-
rent transfer procedure. The reason that Lowd did not
transfer from Local 224 was because he believed, mis-
takenly, that the union-security clause in Respondent's con-
tract with the Employer did not apply to long-line drivers
employed as casuals. He testified that he became absolutely
convinced of this as early as May 1977: and he further
testified that on August 7, upon receipt of the termination
notice, he did not go to Respondent's office or otherwise
contact Respondent and take steps to have it rescind the
termination notice because, in his opinion, he was not
obliged to comply with the union-security clause.
To recapitulate, the record establishes that Lowd, who
was covered by the applicable collective-bargaining con-
tract including the union-security clause, was intent on ig-
noring the requirements of this clause and was intent on
working as a "free rider." It was not a lack of knowledge
about the union-security clause or a lack of knowledge
about his obligations under the clause which resulted in
Lowd's discharge. Nor did his discharge result from Re-
spondent's neglect in affording him a reasonable opportuni-
ty to comply with the clause. Lowd knew long-line drivers
had to comply with the union-security clause or face dis-
charge, but when he was faced with the choice of comply-
ing or being discharged he took the position that as a casual
long-line driver he was privileged to work for Respondent
as a "free rider." In the light of all of these circumstances I
shall recommend that the complaint in this case be dis-
missed. Cf. John J. Roche & Co., Inc., 231 NLRB 1082
(1977); Produce, Refrigerated & Processed Foods & Indus-
trial Workers Local 630, etc. (Ralph's Grocery Company),
209 NLRB 117 (1974); Great Lakes District, Seafarers' In-
ternational Union of North America, AFL-CIO (Tomlinson
Fleet Corporation), 149 NLRB 1114 (1964). For as the
Board, in John J. Roche & Co., Inc., supra, recently stated
(231 NLRB 1083):
If it is true that the fiduciary responsibilities imposed
upon unions by our Act were designed to insure
against unions employing their powers to request dis-
charges in a discriminatory fashion, it is equally true
that these responsibilities were never intended to set as
a shield for those who seek to avoid their legitimate
dues obligations.
The General Counsel and Charging Party urge that
Lowd cannot appropriately be described as an employee
looking for a "free ride" inasmuch as his refusal to comply
with the applicable union-security clause was based upon
an honest and understandable mistake. They urge that
Lowd's resolve not to comply with the union-security clause
should not excuse Respondent's failure to deal fairly with
him inasmuch as Lowd was acting in good faith. I recognize
that each Board decision which has dealt with the discharge
460
TEAMSTERS, LOCAL UNION 150
of an employee for noncompliance with a union-security
clause in which the Board, despite evidence of union con-
duct proscribed by the Act, has dismissed the complaint on
the basis that the discharged employee was intent upon
being a "free rider," has involved employees who appear to
have been acting in bad faith so as to avoid the expense of
joining the union. See Local 630 (Ralph's Grocery Com-
pany), supra, John J. Roche & Co., Inc., supra; Great Lakes
District, Seafarers' International Union of North America,
AFL-CIO (Tomlinson Fleet Corp.), supra. Nevertheless, I do
not believe this circumstance was essential to the outcome
of these cases. No persuasive reason has been advanced to
distinguish between different classes of "free riders" who
chose not to comply with a union-security clause.5 I am
persuaded that the essential question to be answered in
cases of this sort is whether, as in the instant case, Respon-
dent has proven that Lowd, for whatever his reason, had no
intent of complying with the union-security clause regard-
less of the adequacy of Respondent's notice. Of course, in-
sofar as Lowd's belief that the union-security clause did not
apply to his situation was caused by Respondent's conduct,
then equitable considerations would estop Respondent
from raising this as a defense. The only evidence from
which an inference can be drawn attributing Lowd's belief
to Respondent's conduct is the failure of Respondent for
several months to notify Lowd that he was obligated to
comply with the union-security clause, and the failure of
Respondent's steward, Belger, to notify Lowd that he was
'The employees who decide not to comply with a union-security clause as
a matter of conscience; the employees who decide not to comply with a
union-security clause based upon a good-faith belief that the clause does not
apply to them; and the employees who decide not to comply with a union-
security clause out of a desire to line their own pockets with the money they
will save by not meeting their obligations.
covered by the union-security clause. There is no evidence,
however, that Lowd's misunderstanding was based even in
part upon these factors. Quite the opposite, Lowd's testi-
mony indicates that he did not rely on either one of these
factors in concluding that the union-security clause did not
apply to him. In any event, laxity by a labor organization in
enforcing a union security clause does not estop it from
enforcing the clause. Zoe Chemical Co., Inc., 160 NLRB
1001. 1013 (1966). This is particularly true where, as in the
instant case, Lowd was employed as a casual employee on
an intermittent basis, thereby making it more difficult than
usual to determine at which point of time he was obligated
to comply with the contract's union-security clause. See
State Packing Company, 137 NLRB 1420. In connection
with the several conversations between Belger and Lowd,
there is unsufficient evidence that Belger, expressly or by
implication, advised Lowd that he was not obligated to
comply with the union-security clause. Belger said nothing
which reasonably should have led Lowd to ignore Respon-
dent's subsequent notice of termination which clearly stated
that he was covered by the contract's union-security clause.
Quite the opposite, Belger at all times advised Lowd that he
did not know whether casuals were covered by the union-
security clause.
In summation, the record establishes that Lowd, through
no fault of Respondent, believed that the contract's union-
security clause did not apply to him because he was a ca-
sual worker, and that because of this belief, and for no
other reason, Lowd ignored Respondent's notification that
the clause applied to him, and that he would be discharged
absent his compliance.
Based upon the foregoing, I shall recommend that the
complaint in this case be dismissed in its entirety.
[Recommended Order for dismissal omitted from publi-
cation.]
461