Yellow Freight System of Indiana

National Labor Relations Board - Board Decisions

Mar 24, 1999

327 N.L.R.B. 996 (N.L.R.B. 1999)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 996
Yellow Freight System of Indiana and Alfred Pohl.

Highway Drivers, Dockmen, Spotters, Rampmen,
Meat, Packing House and Allied Products Driv-
ers and Helpers, Office Workers and Miscella-
neous Employees Local Union No. 710, Affili-
ated with the International Brotherhood of
Teamsters, AFL–CIO (Yellow Freight System of
Indiana) and Alfred Pohl. Cases 13–CA–31228
and 13–CB–13874
March 24, 1999
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On June 7, 1994, Administrative Law Judge Elbert D.
Gadsden issued the attached decision. The Respondent
Union and the General Counsel filed exceptions and sup-
porting briefs, the General Counsel filed an answering
brief, and the Union filed a reply brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2 as
modified below and to adopt the recommended Order as
modified and set forth in full below.

1 The Union has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law
judge’s credibility resolutions unless the clear preponderance of all the
relevant evidence convinces us that they are incorrect. 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.
We correct certain misstatements of fact made by the judge. Con-
trary to the judge, Union Steward DeCola denied, at least in substance,
having made certain statements to Charging Party Pohl. Thus, DeCola
denied telling Pohl that if Pohl did not sign the application for union
membership, DeCola would fill out his paperwork and state that Pohl
refused to join the Union. DeCola also denied telling Pohl that if Pohl
did not call him by 9 a.m. the next morning, DeCola would report to the
Union that Pohl refused to join. However, DeCola did not deny having
told Pohl that if Pohl didn’t call him by 9 a.m., then he should see if he
could find another job paying $15 an hour. Further, it was the Em-
ployer’s supervisor, Gorecki, rather than its terminal manager, Strode,
who told Pohl he had to sign a dues-checkoff authorization. None of
these errors affect our decision, especially because the judge discredited
DeCola concerning other matters, in part on the basis of his demeanor.
In agreeing with the judge that the Union unlawfully failed to give
Pohl a reasonable time within which to satisfy his legal obligations
under the union-security clause, we do not rely on Stanford Employees,
Local 680 (Leland Stanford Junior University), 232 NLRB 326 (1977),
which we find inapposite to this case.
2 In affirming the judge’s conclusion that the Union unlawfully at-
tempted to cause the Employer to discharge or not call for work Charg-
ing Party Pohl, we find no merit in the Union’s argument that the com-
plaint did not allege an attempt to cause the Employer not to call Pohl
for work. For an on-call replacement employee like Pohl, there is no
practical difference in this context between discharge and failure to call
for work. We also find no merit in the Union’s contention that it could
not have acted unlawfully in attempting to cause Pohl’s discharge be-
cause he was attempting to avoid entirely his union-security obliga-
tions. The record does not support that contention; indeed, DeCola
admitted that Pohl did not object to paying union dues. Finally, we find
no merit to the Union’s argument that, because the complaint alleged
only that it failed to give Pohl a copy of the collective-bargaining
agreement “about September 23, 1992,” the judge improperly found
that it failed to give him a copy of the contract at any time thereafter.
The judge credited Pohl’s testimony that DeCola refused to give him a
copy of the contract until he signed an application for union member-
ship, which he did not do until October 27. Moreover, the Union does
not assert that it ever actually gave Pohl a copy of the agreement.
1. We agree with the judge that the Union violated its
duty of fair representation, in violation of Section
8(b)(1)(A) of the Act, by failing to inform Charging
Party Alfred Pohl and other employees represented by
the Union under a collective-bargaining agreement con-
taining a union-security clause of their rights under
NLRB v. General Motors Corp., 373 U.S. 734 (1963),
and of the rights of nonmember objectors under Commu-
nications Workers v. Beck, 487 U.S. 735 (1988). We
affirm the judge’s finding, however, pursuant to the
analysis in California Saw & Knife Works, 320 NLRB
224 (1995), enfd. sub nom. Machinists v. NLRB, 133
F.3d 1012 (7th Cir. 1998), cert. denied sub nom. Strang
v. NLRB, 525 U.S. 813 (1998), and Paperworkers Local
1033 (Weyerhaeuser Paper Co.), 320 NLRB 349 (1995),
revd. on other grounds sub nom. Buzenius v. NLRB, 124
F.3d 788 (6th Cir. 1997), vacated 525 U.S. 979 (1998).3
Thus, contrary to the judge, we do not find this violation
on the basis of any ambiguity in the union-security
clause, but on the Union’s failure to notify employees of
the statutory limits on their obligations under the clause.4
We shall modify the relevant portions of the judge’s rec-
ommended Order and notice to be consistent with the

3 In California Saw, the Board held that a union that represents em-
ployees subject to a union-security provision must notify them, when or
before it seeks to obligate them to pay dues and fees, that they have the
right to be or remain nonmembers and that nonmembers have the right
(1) to object to paying for union activities that are not germane to the
union’s duties as bargaining agent and to obtain a reduction in dues and
fees for such activities; (2) to be given sufficient information to enable
them to decide intelligently whether to object; and (3) to be informed of
any internal union procedures for filing objections. If an employee
objects, he must be told of the percentage of the reduction, the basis for
the calculation, and the right to challenge those figures. 320 NLRB at
233 and 235 fn. 57. To the extent the judge’s discussion is inconsistent
with California Saw and Weyerhaeuser, we disavow it. We also note
that, contrary to the judge’s suggestion, the Supreme Court in Beck did
not state the type of notice unions must provide employees concerning
their obligations under union-security arrangements.
4 We also do not rely on the judge’s statement that the failure to no-
tify Pohl “probably led him to reasonably believe that full membership
was required.”
The complaint alleges that the Union failed to notify employees gen-
erally of their General Motors rights, but that it only failed to provide
notice of Beck rights to Pohl. As noted, the judge found that the Union
failed to inform other unit employees, as well as Pohl, of their Beck and
General Motors rights. The Union has not excepted to that factual
finding. In this regard, we note that DeCola admitted that he had not
informed Pohl or other employees of those rights and that he did not
think the Union had so informed them. (This testimony was received
over union counsel’s relevance objection; however, union counsel did
not otherwise explain the basis for her objection, and the Union does
not argue in its exceptions that the judge’s ruling was erroneous.)
327 NLRB No. 175
YELLOW FREIGHT SYSTEM OF INDIANA 997
analysis in California Saw, Weyerhaeuser, and subse-
quent decisions.
2. The judge found that the Respondent Employer vio-
lated Section 8(a)(1) and (2) of the Act by entering into
and maintaining a collective-bargaining agreement that
contained a union-security clause requiring employees to
be “members in good standing” in the Union, without
notifying employees of their Beck and General Motors
rights. Both the General Counsel and the Union have
excepted to those findings, and we find merit to their
exceptions. As both parties point out, the amended com-
plaint did not allege such violations or, indeed, any
8(a)(2) violation. The General Counsel did not argue
that either violation should be found. Moreover, as the
Board has found, since employers have no duty of fair
representation, they have no affirmative responsibility to
inform employees of their Beck and General Motors
rights.5 In these circumstances, we find that the judge
improperly found these violations, and we shall modify
the Order and notice accordingly.
The judge also found that, by advising the Charging
Party that joining the Union was a requirement for con-
tinued employment, the Employer violated both Section
8(a)(1) and (2). As we have noted, the complaint did not
allege any 8(a)(2) violation, and the General Counsel did
not argue to the judge that one should be found. How-
ever, no party has explicitly excepted to the judge’s find-
ing of this 8(a)(2) violation, and it is not clear from the
General Counsel’s brief whether he intended to contest
this aspect of the judge’s decision. In any event, we find
it unnecessary to decide whether the Employer’s state-
ment violated Section 8(a)(2) as well as Section 8(a)(1),
because such a finding would not materially affect the
Order. Accordingly, we shall delete references to the
8(a)(2) violation from the Order and notice.6
3. We shall order the Respondents to notify in writing
those employees whom they initially sought to obligate
to pay dues or fees under the union-security clause on or
after March 30, 1992, of their right to elect nonmember
status and to make Beck objections with respect to one or
more of the accounting periods covered by the com-
plaint. With respect to any such employees who, with
reasonable promptness after receiving their notices, elect
nonmember status and file Beck objections with respect
to any of those periods, we shall order that the Union, in
the compliance stage of the proceeding, process their
objections, nunc pro tunc, as it would otherwise have
done, in accordance with the principles of California
Saw. The Union shall then be required to reimburse
these objecting nonmember employees for the reduction
in their dues and fees, if any, for nonrepresentational
activities that occurred during the accounting period or

5 Rochester Mfg. Co., 323 NLRB 260, 262 (1997).
6 We adopt the judge’s finding that the Employer’s statement vio-
lated Sec. 8(a)(1). See Rochester Mfg. Co., 323 NLRB at 262 fn. 8.
periods covered by the complaint in which they have
objected.7
4. We find it necessary to modify the Order and no-
tices in a number of other respects. First, we agree with
the General Counsel that the judge incorrectly found that
Terminal Manager Strode threatened Pohl with discharge
if he did not become a member of the Union in good
standing. We also agree with the General Counsel that
the judge improperly ordered the Union to refrain from
threatening employees with termination because they fail
to become union members in good standing. The record
establishes that Strode and Union Steward DeCola
threatened Pohl with discharge if he did not join the Un-
ion, not if he did not become a member in good standing.
We correct the judge’s finding concerning Strode’s
threat, and we shall modify the Order and notices accord-
ingly.
We also agree with the General Counsel that paragraph
1(c) of the Order against the Union is confusing as it
relates to dues checkoff. The judge ordered the Union to
cease and desist from requiring dues checkoff as a condi-
tion of employment without explaining the limits of em-
ployees’ union-security obligations. As the General
Counsel notes, dues checkoff is a voluntary matter and
may not be required of employees regardless of whether
the union-security clause has been explained.8 We shall
make the appropriate clarifications in the Orders and
notices.9
The General Counsel further contends that the judge
erred in ordering the Union to post notices concerning
employees’ General Motors and Beck rights and to make
copies available to the Employer for posting. The Gen-
eral Counsel argues that the Employer has no duty to
notify employees of those rights, and therefore that it
should not have to post the Union’s notice. We need not
address the General Counsel’s argument about the Em-
ployer’s obligations, however, because we find it unnec-
essary to require the Union to notify employees of their
General Motors and Beck rights by means of posted no-
7 We shall confine the reimbursement remedy to employees who
were initially subjected to union security on or after March 30, 1992,
the beginning of the 6-month period preceding the filing and service of
the charges. On the other hand, we shall order the Union to give no-
tices to all bargaining unit employees irrespective of when they were
initially subjected to union security. This remedial action is designed to
ensure that all unit employees will have knowledge of their rights, for
future exercise if they wish. The class to which notice is required is
broader than the class for which make-whole relief is provided, consis-
tent with the distinction made in Board practice between the obligation
of a labor law violator to make whole victims of proven unfair labor
practices and the violator’s obligation to notify employees of the rights
that were violated. See Assn. for Retarded Citizens (Opportunities
Unlimited of Niagara), 327 NLRB No. 88, slip op. at 4 fn. 14 (1999).
Interest on reimbursements shall be calculated in the manner prescribed
in New Horizons for the Retarded, 283 NLRB 1173 (1987).
8 See, e.g., Electrical Workers Local 601 (Westinghouse Electric
Corp.), 180 NLRB 1062 (1970).
9 Par. 1(a) of the judge’s Order against the Employer appears to con-
tain the same infirmity. We shall correct it as well.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 998
tices. Accordingly, we shall delete this provision of the
Order. We shall, however, order the Union to make
available to the Employer, for posting if the Employer
wishes, copies of the notice we do require the Union to
post pursuant to our Order.
Finally, we shall add provisions corresponding to vio-
lations found by the judge but omitted from the Order
and notice, delete unnecessary and/or redundant provi-
sions from those documents, and modify their provisions
to be consistent with Indian Hills Care Center, 321
NLRB 144 (1996), and Excel Container, Inc., 325 NLRB
17 (1997).
ORDER
The National Labor Relations Board orders that
A. The Respondent, Yellow Freight System of Indi-
ana, West Chicago, Illinois, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Advising employees that they must join the Union
and authorize dues checkoff as a condition for continued
employment, and threatening them with discharge if they
do not join the Union.
(b) Complying with the Union’s request to discharge
or not call employees for work because they failed to join
the Union.
(c) In any like or related manner interfering with, re-
straining, 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
effectuate the policies of the Act.
(a) Jointly and severally, with the Respondent Union,
make Alfred Pohl whole for any loss of earnings and
benefits he sustained as a result of the Respondent’s dis-
charging him or failing to call him for work at the Un-
ion’s request between October 2 and 27, 1992, with in-
terest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
(b) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful discharge or
failure to call for work and within 3 days thereafter no-
tify Pohl in writing that this has been done and that it will
not use the action against him in any way.
(c) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(d) Within 14 days after service by the Region, post at
its facility at West Chicago, Illinois, copies of the at-
tached notice marked “Appendix A.’’10 Copies of the

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
notice, on forms provided by the Regional Director for
Region 13, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since September 23, 1992.
(e) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
B. The Respondent, Highway Drivers, Dockmen,
Spotters, Rampmen, Meat, Packing House and Allied
Products Drivers and Helpers, Office Workers and Mis-
cellaneous Employees Local Union No. 710, affiliated
with the International Brotherhood of Teamsters, AFL–
CIO, its officers, agents, and representatives shall
1. Cease and desist from
(a) Failing to notify unit employees, when it first seeks
to obligate them to pay fees and dues under a union-
security clause, of their right under NLRB v. General
Motors Corp., 373 U.S. 734 (1963), to be and remain
nonmembers of the Union and of the rights of nonmem-
bers under Communications Workers v. Beck, 487 U.S.
735 (1988), to object to paying for union activities not
germane to the Respondent’s duties as bargaining agent
and to obtain a reduction in dues and fees for such activi-
ties.
(b) Advising employees that they must join the Union
as a condition of employment or threatening them with
termination of their employment if they do not join the
Union.
(c) Requiring employees to authorize dues checkoff as
a condition of employment.
(d) Failing to allow employees a reasonable time
within which to comply with their union-security obliga-
tions.
(e) Failing to comply with employees’ requests for a
copy of the collective-bargaining agreement with the
Employer.
(f) Attempting to cause or causing the Employer to
discriminate against employees in regard to hire, tenure,
or terms or conditions of employment because they fail
to join the Union.

ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
YELLOW FREIGHT SYSTEM OF INDIANA 999
(g) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Notify all bargaining unit employees in writing of
their rights under NLRB v. General Motors Corp. to be
and remain nonmembers of the Union and of the rights of
nonmembers under Communications Workers v. Beck to
object to paying for union activities not germane to the
Union’s duties as bargaining agent and to obtain a reduc-
tion in dues and fees for such activities. In addition, the
notice must include sufficient information to enable the
employees to intelligently decide whether to object, as
well as a description of any internal union procedures for
filing objections.
(b) Notify in writing those employees whom the Re-
spondent initially sought to obligate to pay dues or fees
under the union–security clause on or after March 30,
1992, of their right to elect nonmember status and to
make Beck objections with respect to one or more of the
accounting periods covered by the complaint.
(c) With respect to any employees who, with reason-
able promptness after receiving the notices prescribed in
paragraph 2(b), elect nonmember status and file Beck
objections, process their objections in the manner set
forth in part 3 of this decision.
(d) Reimburse, with interest, any nonmember bargain-
ing unit employees who file Beck objections with the
Respondent for any dues and fees exacted from them for
nonrepresentational activities, in the manner set forth in
part 3.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents, for examination and
copying, all records necessary to verify the amounts of
back dues and fees to be paid to bargaining unit employ-
ees covered by paragraph 2(d).
(f) Jointly and severally, with the Respondent Em-
ployer, make Alfred Pohl whole for any loss of earnings
and benefits he sustained as a result of the Employer’s
discharging or failing to call him for work at the Union’s
request between October 2 and 27, 1992, with interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).
(g) Within 14 days from the date of this Order, remove
from its files, and ask the Employer to remove from the
Employer’s files, any reference to the unlawful discharge
or failure to call for work and within 3 days thereafter
notify Pohl in writing that this has been done and that it
will not use the action against him in any way.
(h) Give Pohl a copy of the collective-bargaining
agreement.
(i) Allow unit employees a reasonable period of time
to comply with their union-security obligations.
(j) Within 14 days after service by the Region, post at
its facility at 4217 South Halstead Street, Chicago, Illi-
nois, and all union meeting places and hiring halls, cop-
ies of the attached notice marked “Appendix B.’’11 Cop-
ies of the notice, on forms provided by the Regional Di-
rector for Region 13, after being signed by the Respon-
dent’s authorized representative, shall be posted by the
Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all
places where notices to employees and members are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. The Respon-
dent Union will also make additional signed copies of the
notice available for the Respondent Employer to post, if
it wishes, with its own notice to ensure that employees
are sufficiently apprised of their rights.
(k) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT advise employees that they must join
the Union and authorize dues checkoff as conditions for
continued employment, and WE WILL NOT threaten
them with discharge if they do not join the Union.
WE WILL NOT comply with the Union’s request to
discharge or not call employees for work because they
failed to join the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.

11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1000
WE WILL, jointly and severally with the Respondent
Union, make Alfred Pohl whole with interest for any loss
of earnings and benefits he sustained as a result of our
discharging or failing to call him for work at the Union’s
request between October 2 and 27, 1992.
WE WILL, within 14 days of the Board’s Order, re-
move from our files any reference to the unlawful dis-
charge or failure to call for work, and WE WILL, within
3 days thereafter, notify Pohl in writing that we have
done so and that we will not use the action against him in
any way.
YELLOW FREIGHT SYSTEM OF INDIANA
APPENDIX B
NOTICE TO EMPLOYEES AND 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.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT fail to notify bargaining unit employ-
ees, when we first seek to obligate them to pay dues and
fees under a union-security clause, of their rights under
NLRB v. General Motors Corp., 373 U.S. 734 (1963), to
be and remain nonmembers of the Union and of the
rights of nonmembers under Communications Workers v.
Beck, 487 U.S. 735 (1988), to object to paying for union
activities not germane to our duties as bargaining agent
and to obtain a reduction in dues and fees for such activi-
ties.
WE WILL NOT advise employees that they must join
the Union as a condition of employment or threaten them
with termination of their employment if they do not join
the Union.
WE WILL NOT require employees to authorize dues
checkoff as a condition of employment.
WE WILL NOT fail to allow employees a reasonable
time within which to comply with their union-security
obligations.
WE WILL NOT fail to comply with employees’ re-
quests for a copy of the collective-bargaining agreement
with the Employer.
WE WILL NOT attempt to cause, or cause the Em-
ployer to discriminate against employees in regard to
hire, tenure, or terms or conditions of employment be-
cause they fail to join the Union.
WE WILL NOT in any like or related manner restrain
or coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL notify all bargaining unit employees in writ-
ing of their right under NLRB v. General Motors Corp.,
373 U.S. 734 (1963), to be and remain nonmembers of
the Union and of the rights of nonmembers under Com-
munications Workers v. Beck, 487 U.S. 735 (1988), to
object to paying for union activities not germane to our
duties as bargaining agent and to obtain a reduction in
dues and fees for such activities. In addition, the notice
will include sufficient information to enable the employ-
ees to intelligently decide whether to object, as well as a
description of any internal union procedures for filing
objections.
WE WILL notify in writing those employees whom we
initially sought to obligate to pay dues or fees under the
union-security clause on or after March 30, 1992, of their
right to elect nonmember status and to make Beck objec-
tions with respect to one or more of the accounting peri-
ods covered by the complaint.
WE WILL process the Beck objections of any employ-
ees whom we initially sought to obligate to pay dues or
fees under the union-security clause on or after March
30, 1992, who elect nonmember status and file objections
with reasonable promptness after receiving notice of their
right to so object.
WE WILL reimburse, with interest, any nonmember
bargaining unit employees who file Beck objections with
us for any dues and fees exacted from them for nonrepre-
sentational activities, for each accounting period since
March 30, 1992.
WE WILL, jointly and severally with the Respondent
Employer, make Alfred Pohl whole with interest for any
loss of earnings and benefits he sustained as a result of
the Employer’s discharging or failing to call him for
work at our request between October 2 and 27, 1992.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files, and ask the Employer to
remove from the Employer’s files, any reference to the
unlawful discharge or failure to call for work and WE
WILL, within 3 days thereafter, notify Pohl in writing
that this has been done and that we will not use the action
against him in any way.
WE WILL give Pohl a copy of the collective-
bargaining agreement.
WE WILL allow unit employees a reasonable period of
time to comply with their union-security obligations.

HIGHWAY DRIVERS, DOCKMEN,
SPOTTERS, RAMPMEN, MEAT, PACKING
HOUSE AND ALLIED PRODUCTS
DRIVERS AND HELPERS, OFFICE
WORKERS AND MISCELLANEOUS
YELLOW FREIGHT SYSTEM OF INDIANA 1001
EMPLOYEES LOCAL UNION NO. 710,
AFFILIATED WITH THE INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, AFL–
CIO

Paul Hitternan, Esq. for the General Counsel.
David B. Mandelbaum, Esq., of Overland Park, Kansas, for
Respondent Employer.
Marvin Gittler, Esq., and Susan Brannigan, Esq. (Asher, Git-
tler, Greenfield, Cohen & D’Alba, Ltd.), of Chicago, Illi-
nois, for Respondent Union.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. A
charge was filed in Case 13–CA–31228 on September 25,
1992, and amended November 24, 1992, against Yellow
Freight System of Indiana (Respondent Employer), and a
charge was filed in Case 13–CB–13874 on September 25, 1992,
and amended November 24, 1992, against Highway Drivers,
Dockmen, Spotters, Rampmen, Meat, Packing House and Al-
lied Products Drivers and Helpers, Office Workers and Miscel-
laneous Employees Local Union No. 710, affiliated with the
International Brotherhood of Teamsters, AFL–CIO (Yellow
Freight System of Indiana) (Respondent Union), by Alfred Pohl
(Pohl or the Charging Party).
A complaint was issued on behalf of the General Counsel by
the Regional Director of Region 13 on November 30, 1992, and
an amended consolidated complaint issued on July 1, 1993,
against the Respondent Employer and Respondent Union.
The amended consolidated complaint alleged that on or
about September 23, 1992, Respondent Employer (Yellow
Freight) threatened employees with loss of employment be-
cause they refused to become members of the Union, thereby
rendering unlawful assistance and support to the Union, and
encouraging employees to become members of the Union, in
violation of Section 8(a)(1) and (2), respectively, of the Act;
that on or about the same date, Respondent Employer threat-
ened employees with loss of employment because they refused
to become members of the Union, in violation of Section
8(a)(1) of the Act, that Respondent Union requested Respon-
dent Employer to discharge an employee because he was not a
member of the Union, thereby attempting to cause and causing
an employer to discriminate against its employees, in violation
of Section 8(a)(3) of the Act; that pursuant to Respondent Un-
ion’s request, Respondent Employer discharged the employee,
thereby discriminating against employees and encouraging
them to become members of the Union, in violation of Section
8(a)(1) and (3) of the Act; that by the above-described conduct,
Respondent Employer has encouraged its employees to join the
Union; and that on or about September 23, 1992, Respondent
Union (DeCola) threatened Respondent Employer’s employees
it would seek their discharge because they refused to become
members of the Union, thereby restraining and coercing them
in the exercise of rights guaranteed them by Section 7 of the
Act, in violation of Section 8(b)(1)(A).
The amended consolidated complaint further alleged that at
all times Respondent Union has failed to provide information to
Respondent Employer’s employees about membership fees;
that on or about September 23, 1992, Respondent Union failed
to provide Respondent Employer’s employee with a copy of the
collective-bargaining agreement; that Respondent Union failed
to allow Respondent’s employee a reasonable period of time in
which to join the Union; and that by engaging in the above-
described conduct, Respondent Union has failed to fairly repre-
sent employees; that its conduct was unreasonable, unfair, arbi-
trary, irrelevant, and invidious, in breach of its fiduciary duty to
employees it represents, in violation of Section 8(b)(1)(A); and
that by reporting an employee’s reluctance or failure to join the
Union to Employer, the Union thereby attempted to cause or
did cause Respondent Employer to discriminate against its
employee, in violation of Section 8(a)(3) and Section 8(b)(2) of
the Act.
Respondent Employer filed answers to the consolidated
complaint and the amended consolidated complaint on Decem-
ber 9, 1991, and July 16, 1993, respectively, denying that it has
violated the Act as set forth in the amended consolidated com-
plaint.
Respondent Union filed an answer to the consolidated com-
plaint on December 11, 1992, and an amended answer to the
amended consolidated complaint on July 23, 1993, denying that
it has violated the Act as set forth in the amended consolidated
complaint, and it affirmatively asserted that the amended con-
solidated complaint failed to state a claim upon which relief
may be granted, and requested that it be dismissed.
The hearing in the above matter was held before me on July
19, 1993, in Chicago, Illinois. Briefs have been received from
counsel for the General Counsel, counsel for the Respondent
Employer (Yellow Freight), and counsel for Respondent Union
(Highway Drivers), respectively, which have been carefully
considered along with the entire record.
On the entire record in this case, including my observation of
the demeanor of the witnesses and my consideration of the
briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, Respondent Employer, a corporation
with an office and place of business in West Chicago, Illinois
(the facility), has been engaged in the interstate transportation
of freight.
During the past calendar year ending December 31, 1992,
Respondent employer, in the course and conduct of its business
operations, performed services valued in excess of $50,000 in
points outside the State of Illinois.
The amended consolidated complaint alleges, Respondent
Employer’s answer admits, and I find that Respondent Em-
ployer is now, and has been at all times material, an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent Union’s answer admits,
and I find that the Union (Highway Drivers) is now and has
been at all times material a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
Respondent Union is the exclusive collective-bargaining rep-
resentative of the following appropriate bargaining unit em-
ployees of Respondent Employer (Yellow Freight):

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1002
Spotters (Hostlers), Fuelmen, Working Foremen, Dock, Trac-
tor Drivers, Checkers, Stackers, Truckers, Wheelers and Of-
fice and Miscellaneous Truck Terminal Employees.

At all material times the following individuals held the posi-
tions set forth opposite their respective names and have been
supervisors of the Employer within the meaning of Section
2(11) of the Act, and agents of the Employer within the mean-
ing of Section 2(13) of the Act.

Dennis Strode Terminal Manager
Mike Gorecki Supervisor

At all material times the following individuals held the posi-
tions set forth opposite their respective names and have been
agents of the Union within the meaning of Section 2(13) of the
Act.

Chuck DeCola Steward
Pat Flynn Business Representative
1. Correction of the transcript
Respondent Union’s motion to correct the transcript as speci-
fied there, was not opposed by Respondent Employer or coun-
sel for the General Counsel, and the corrections appearing cor-
rect, the motion is granted.
The transcript is further corrected on my motion, to delete all
references to me as Hearing Officer Gadsden and substitute
therefor, Administrative Law Judge Gadsden or Judge Gads-
den.
2. Agents of the Union
Although the Union denies Steward DeCola and Business
Agent Flynn are agents of the Union, it nevertheless admits that
DeCola is a union steward and Flynn a business representative
of the Union.
The Board has held that a steward, like Union Steward De-
Cola, who exercises authorities and performs such duties as
those described below, is an agent of the Union. Carpenters
Local 608 (Various Employers), 304 NLRB 660, 663 (1991);
also (a secretary at a hiring hall who placed names on referral
lists is an agent with authority to receive and furnish informa-
tion on the hiring hall). Hotel & Restaurant Employees Local
50 (Dick’s Restaurant), 287 NLRB 1180, 1181, 1185 (1988);
and a secretary who received dues payments, stamped union
dues books, issued receipts and work slips was an agent of the
Union. General Teamsters Local 959 (Frontier Transporta-
tion), 248 NLRB 743, 745–746 (1980).
The essentially uncontroverted evidence of record shows that
the collective-bargaining agreement between Employer and the
Union described the duties of DeCola as a steward with author-
ity to investigate current grievances, collect employees’ dues,
transmit communications from the Union which are authorized,
authority to leave his work terminal and visit the West Chicago
terminal to process grievances, to talk to employees about join-
ing the Union and signing applications to do so, as well as tell-
ing them about union dues and fees obligations. DeCola also
served on the Union’s negotiating committee in negotiating the
current collective-bargaining agreement between the parties,
and he has access to monthly reports from the Employer on
new or extra employees’ work records, to enable him to deter-
mine who and how many of such employees worked in compli-
ance with the Union’s security clause of the contract.
I therefore find that by appointing DeCola union steward and
allowing him to visit the Employer’s West Chicago terminal
during his work hours to talk to employees about the Union and
distribute and collect applications for membership and solicit
dues checkoffs, Respondent Union not only authorized such
authority, but it also clothed DeCola with apparent authority to
make statements to employees concerning rights and obliga-
tions of members under the union-security clause of the con-
tract, as DeCola in fact did. Plasterers Local 90 (Southern Illi-
nois Builders), 236 NLRB 329, 331 (1978).
I therefore conclude and find on the foregoing credited evi-
dence that DeCola is an agent of Respondent Union within the
meaning of the Act, and that his statements to Pohl about join-
ing the Union are imputed to Respondent Union. Carpenters
Local 296 (Acrom Construction), 305 NLRB 822 fn. 1 (1991);
Carpenters Local 608, supra at 663; Hotel & Restaurant Em-
ployees, supra at 1185.
Likewise, Business Representative Flynn is assigned to the
Company (Yellow Freight) where he negotiates contracts on
behalf of the Union, receives monthly reports from Employer
of new and extra employees’ work records, and instructs stew-
ards on their duties. Although Flynn denied his duties included
reminding the Employer when new employees are obligated to
join the Union, on further examination he admitted he called
Employer (Yellow Freight) and told them Pohl had become
obligated to join the Union.
Based on evidence of all of Flynn’s duties and his contradic-
tory admission that such was not his duty, I discredit Flynn’s
denial that it was a part of his duties to inform the Company
when new employees became obligated to join the Union, and I
find that Flynn was performing his authorized duty when he
called and informed Employer that Pohl had become obligated
to join the Union under the union-security clause.
Consequently, I further conclude and find that by assigning
Flynn to represent employees at the Company, by using him as
a medium of communication between the Union and Pohl (em-
ployee) concerning the latter’s obligation to join the Union, by
allowing Flynn to negotiate contracts on behalf of the Union
with Employer, and if it is found below that Flynn actually
requested the Company not to employ Pohl because he would
not join the Union, I also find that Flynn acted within the scope
of his actual and apparent authority, and that he is in fact an
agent of the Union within the meaning of the Act Plasterers
Local 90, supra at 331.
B. Efforts of the Respondents to Persuade Pohl to Join the Un-
ion
The collective-bargaining agreement between Employer
(Yellow Freight) and the Union contains the following classifi-
cations or types of employees:

1. Regular full-time employees
2. Replacement casual employees—persons called in
to work in place of regular full-time employees who are
absent for one reason or another.
3. Supplemental casual employees—persons who work
over and above the regular bid complement of workers on
a given shift.

The most recent collective-bargaining agreement between
the Employer and the Union is effective by its terms from April
1, 1991, through March 31, 1994, and as pertinent herein, con-
tains the following union-security clause:

All present employees who are members of the Local Union
on the effective date of this subsection or on the date of exe-
YELLOW FREIGHT SYSTEM OF INDIANA 1003
cution of this Agreement, which ever is the later, shall remain
members of the Local union in good standing as a condition
of employment. 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 beginning of their employment or on
and after the 31st day following the effective date of this sub-
section or the date of this Agreement, which ever is the later.
[Emphasis added.]
1. The General Counsel’s argument
The General Counsel argues that the union-security clause in
the instant case is very much like the union-security clause in
Electronic Workers IUE Local 444 (Paramax Systems), 311
NLRB 1031 (1993), cited by him, which provides in part as
pertinent as follows:

[t]hat new employees in the bargaining unit shall become and
remain members in good standing of the Local Union as a
condition of employment on or after the 31st day following
the beginning of their employment.

The General Counsel further argues that Respondents here,
violated the Act as alleged, because they maintained the above
clause in their collective-bargaining agreement without addi-
tionally informing the employees of their General Motors
rights. NLRB v. General Motors Corp., 373 U.S. 734 (1963).
Hence, ultimate questions presented for determination here
are whether Respondent Union and Respondent Employer in-
terfered with, restrained, and coerced replacement-casual em-
ployee Pohl, in several respects, in the exercise of his protected
Section 7 rights, in violation of Section 8(b)(1)(A) and Section
8(a)(1) of the Act, respectively; and whether Respondent Union
caused or attempted to cause Respondent Employer to dis-
criminate against Pohl, in violation of Section 8(a)(3) and Sec-
tion 8(b)(2) of the Act.
A determination of these issues is dependent upon a determi-
nation of several subordinate factual issues concerning conver-
sations Charging Party Pohl held with union representatives
and with members of management, respectively, as well as an
analysis of the controlling law as follows.
Section 7 of the Act gives employees the right to join labor
organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities
for purposes of collective-bargaining or other mutual aid or
protection, and they “shall also have the right to refrain from
any or all such activities.’’
Section 8(a)(1) makes it an unfair labor practice for an em-
ployer “to interfere with, restrain, or coerce employees in the
exercise of their Section 7 rights, and Section 8(a)(2) forbids an
employer . . . to contribute financial or other support to any
labor organization.’’
Section 8(a)(3) forbids an employer to discriminate in regard
to hire or tenure of employment or on any term or condition of
employment, or to encourage or discourage membership in any
labor organization. . . . Except that Section 8(a)(3) also pro-
vides that:

[N]othing in this Act . . . or in any other statute of the United
States . . . shall preclude an employer from making an agree-
ment with a labor organization (not established, maintained or
assisted by any action defined in Section 8(a) of this Act . . .
as an unfair labor practice) to require as a condition of em-
ployment membership therein on or after the 30th day follow-
ing the beginning of such employment or the effective date of
such agreement, whichever is the later, (i) if such labor or-
ganization is the representative of the employees as provided
in section 9(a) . . . in the appropriate collective-bargaining unit
covered by such agreement when made;

Finally, Section 8(a)(3) further provides that:

[N]o employer shall justify any discrimination against any
employee for membership in a labor organization (A) if he
has reasonable grounds for believing that such membership
was not available to the employee on the same grounds and
conditions generally applicable to other members, or (B) if he
has reasonable grounds for believing that membership was
denied or terminated for reasons other than the failure of the
employee to tender the periodic dues and the initiation fees
uniformly required as a condition of retaining membership;

Section 8(b)(1)(A) of the Act, makes it an unfair labor prac-
tice for a labor organization or its agents “to restrain or coerce. .
. . employees in the exercise of’’ their Section 7 rights, pro-
vided, however, that “this paragraph shall not impair the right
of a labor organization to prescribe its own rules with respect to
the acquisition or retention of membership therein.”. . . . And,
Section 8(b)(2) forbids a labor organization or its agents “to
cause or attempt to cause an employer to discriminate against
an employee in violation of” Section 8(a)(3),

. . . . or to discriminate against an employee with respect to
whom membership in such organization has been denied or
terminated on some ground other than his failure to tender the
periodic dues and the initiation fees uniformly required as a
condition of acquiring or retaining membership.

Thus, the General Counsel maintains that Respondent Union
herei coerced and restrained Alfred Pohl in the exercise of his
Section 7 rights, in violation of Section 8(b)(1)(A) of the Act,
(1) by threatening to discharge him if he did not join the Union;
(2) by refusing to provide Pohl with a copy of its collective-
bargaining agreement with the Company; (3) by refusing to
allow Pohl a reasonable amount of time to comply with his
union-security obligations; (4) that both Respondents failed to
inform employees of their rights and obligations under the un-
ion-security clause of their contract; (5) that the Union caused
of attempted to cause the discharge of employees because they
failed to join the Union; and (6) that Employer complied with
the Union’s request by discharging employees, in violation of
the Act.
In support of his argument, the General Counsel cites NLRB
v. General Motors Corp. supra, where the issues before the
court were whether an employer commits an unfair labor prac-
tice when it refuses to bargain with a certified union over the
union’s proposal for adoption of an agency shop, and, whether
the agency shop is an unfair labor practice under Section
8(a)(3) of the Act, or is exempted from the prohibitions of that
section by the proviso to it. In explaining the pertinent lan-
guage of that section, the Court stated at 740–741:

These additions were intended to accomplish twin purposes.
On the one hand, the most serious abuses of compulsory un-
ionism were eliminated by abolishing the closed shop. On the
other hand, Congress recognized that in the absence of a un-
ion-security provision “many employees sharing the benefits
of what unions are able to accomplish by collective-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1004
bargaining will refuse to pay their share of the cost.” . . . Con-
sequently, under the new law “employers will still be permit-
ted to enter into agreements requiring all the employees in a
given bargaining unit to become members 30 days after being
hired,” but “expulsion from a union cannot be a ground for
compulsory discharge if the worker is not delinquent in pay-
ing his initiation fees or dues.”

In further explanation, the Court stated at 742 that:

Under the second proviso to § 8(a)(3), the burdens of mem-
bership under which employment may be conditioned are ex-
pressly limited to the payment of initiation fees and monthly
dues. It is permissible to condition employment upon mem-
bership, but membership, insofar as it has significance to em-
ployment rights, may in turn be conditioned only upon pay-
ment of fees and dues. “Membership’’ as a condition of em-
ployment is whittled down to its financial core. [Emphasis
added.]

Additionally, as the Court stated in Pattern Makers League
v. NLRB, 473 U.S. 95, 106 fn. 16 (1985):

[T]he only aspect of union membership that can be required
pursuant to a union shop agreement is the payment of dues.
See Radio Officers v. NLRB, 347 U.S. 17, 41 (1954) (union
security agreements cannot be used for “any purpose other
than to compel payment of union dues and fees”). “Member-
ship’ as a condition of employment is whittled down to its fi-
nancial core.’’ NLRB v. General Motors Corp., 373 U.S. 734,
742 (1963).

Also, in Pattern Makers at 106:

Full union membership thus no longer can be a requirement
of employment. . . . We think it noteworthy that § 8(a)(3) pro-
tects the employment rights of the dissatisfied member, as
well as the worker who never assumed full union member-
ship.

Having to delineate the precise limits Section 8(a)(3) places
on the negotiation and enforcement of union-security agree-
ments, the Court decided in NLRB v. General Motors Corp.,
supra, that employers and unions may enter into union-security
agreements requiring union membership as a condition of con-
tinued employment so long as the membership requirement did
not exceed the financial core—payment of initiation fees and
dues, but whether the financial core includes the obligation to
support activities beyond those germane to collective-
bargaining, contract administration and grievance adjustment,
the Court thought not.
Thus, in reviewing the “historical origin’’ of Section 8(a)(3)
and previous related decisions, the Court noted that in its earlier
decision Machinists v. Street, 367 U.S. 740 (1961), it held that
Section 2, Eleventh, of the Railway Labor Act (RLA) does not
permit a union, over objections of nonmembers to expend com-
pelled agency fees on political causes. It stated that the latter
holding was far more than instructive there, and it believed that
the same was controlling for Section 8(a)(3) and Section 2,
Eleventh, of RLA; that in all material respects, the two sections
were identical; and that the Court thought Congress intended
the same language to have the same meaning in both statutes.
As the Supreme Court held in NLRB v. General Motors
Corp., supra, that while union-security clauses in a contract
requiring employees to become union members as a condition
of employment are valid, the “membership” that may be re-
quired has been whittled down to its financial core. In Ellis v.
Railroad Clerks, 466 U.S. 435, 448 (1984), the Court defined
“whittled down to its financial core,” as meaning authorizing
the exaction of only those fees necessary to perform the duties
of an “exclusive representative of employees in dealing with
the employer on labor-management issues.” Consistent with
the above holding is the often cited and quoted language in
NLRB v. Hotel Employees Local 568, 320 F.2d 254, 258 (3d
Cir. 1963), that:

The comprehensive authority vested in the union, as
the exclusive agent of the employees, leads inevitably to
employee dependence on the labor organization. There
necessarily arises out of this dependence a fiduciary duty
that the union deal fairly with employees. . . . At the
minimum, this duty requires that the union inform the em-
ployee of his obligations in order that the employee may
take whatever action is necessary to protect his job tenure.
[Citations omitted.]

Thus, a union’s threat of loss of employment or other retalia-
tory consequences because an employee refuses to join the
union may tend to impinge upon employees’ Section 7 rights,
in violation of Section 8(b)(1)(A) of the Act. Seaprufe, Inc., 82
NLRB 829 (1949), enfd. 186 F.2d 671 (10th Cir. 1951). And in
Mode O’Day Co., 280 NLRB 253, 255 (1986), modified 290
NLRB 1234 (1990), the Court stated:

The inclusion of a check-off authorization among the forms
furnished employees during the hiring process may justify a
finding that the employees were led to believe that the execu-
tion of such authorization was a condition of employment.

2. Pohl’s conversations with Union Steward DeCola
Charging Party Alfred Pohl commenced working for Yellow
Freight’s West Chicago terminal August 7, 1992, as a replace-
ment employee filling in for regular employees who are absent
due to illness, holidays or vacation. He receives work assign-
ments by telephone call a day before, or hours before the be-
ginning of the work shift. He may accept or decline the offered
work assignment. As a replacement employee, he is paid $2.40
per hour less than the normal wage rate, plus contributions to a
pension on a daily basis, paid by the Company. However, he
receives no health and welfare benefits.
Union Steward Chuck DeCola employed 24 years as a spot-
ter, works at another Chicago facility of Yellow Freight, but as
steward, visits the West Chicago facility and talks to new em-
ployees about joining the Union.
At 1:30 a.m. on September 23, 1992, Union Steward DeCola
visited the West Chicago facility, approached Charging Party
Alfred Pohl in the breakroom, and introduced himself to Pohl.
Yellow Freight’s inbound supervisor, Michael Gorecki, ac-
knowledged he knew DeCola was present to talk to Pohl about
joining the Union.
Pohl testified DeCola told him to stay on the clock and talk
to him. He said he looked at Supervisor Gorecki, who after a
brief delay in responding, told him to stay on the clock and talk
with DeCola. According to Pohl, DeCola told him about his
history and function in the Union, and that he was there to ex-
plain the benefits of the Union, that he was covered by the col-
lective-bargaining agreement which provided for contributions
to his pension fund, full health benefits once he became a full-
time employee, and he could not be unjustly dismissed when he
became a member of the Union.
YELLOW FREIGHT SYSTEM OF INDIANA 1005
Pohl further testified DeCola showed him the union-security
clause, article 23 of the collective-bargaining agreement, and
told him he had to join the Union after his 31st day on the job,
and that he had to join the Union by signing the membership
application that he had with him, and pay the initiation fee of
$50 and dues which were two times his hourly rate of pay per
month (approximately $28 per month).
Although Union Steward Chuck DeCola testified he went
over the union contract with Pohl and read the contract to him
in its entirety during their first conversation on September 23,
1992, Pohl denied DeCola went over or read the entire contract
to him. On the contrary he testified DeCola showed him a few
sentences in the contract, including the union-security clause,
article 23. When he asked DeCola for a copy of the contract to
study, DeCola did not give him his copy of the contract nor did
he furnish Pohl with a copy of the contract at any time subse-
quent thereto. Although Pohl testified DeCola told him he
could not give his a copy of the contract until he signed the
application for membership in the Union, DeCola denied he
conditioned giving Pohl a copy of the contract upon Pohl sign-
ing the application.
Notwithstanding the conflict in testimonial versions of Pohl
and DeCola, I was nevertheless persuaded, not only by the
demeanor of both witnesses, but also by the illogical and im-
practical assertion of DeCola, that he read and discussed the
entire contract with Pohl during their conversation on Septem-
ber 23. First, it would be a boring and burdensome task to read
or to listen to the reading of the entire contract in one conversa-
tion. Secondly, since DeCola failed to give Pohl a copy of the
contract at the time he requested one, or at any time subsequent
thereto, it is believable that DeCola was not anxious or particu-
larly interested in giving Pohl a copy of the contract for study,
and therefore conditioned giving Pohl a copy upon the latter
signing the application for membership in the Union, as Pohl
testified DeCola said. For these reasons, I credit Pohl’s account
of the conversation and discredit DeCola’s denial.
When Pohl asked DeCola for a copy of the contract a second
time during the same work shift so that he could study it, Pohl
said DeCola said “If you don’t sign, this is your last working
day here.” DeCola admits Pohl again asked him for a copy of
the contract but denied he made the response Pohl attributed to
him. DeCola does not deny he told Pohl if he did not sign the
application he would turn in his paperwork to the Union at 9
a.m. and inform the Union that Pohl refused to join the Union;
and that the Union would contact Terminal Manager Dennis
Strode and tell him the Company could not use him under the
terms of the contract. DeCola also does not deny that Pohl
asked him could he contact him by phone before 9 a.m.; and
that DeCola gave Pohl his telephone number and told him, “If
you decide to call me back before 9 a.m., maybe we can work
something out, otherwise, I’ll have my papers turned into the
Union.” However, DeCola denied he added, “And if you don’t
call me by 9:00, then see if you can find another job that pays
$15 an hour,” as Pohl testified DeCola said.
Again, I was persuaded by the demeanor as well as the par-
tially admitted pattern of DeCola’s efforts to persuade Pohl to
sign the application for union membership, that Pohl was tell-
ing the whole truth and DeCola was being selective in his tes-
timony, except when it was not to his advantage or in his best
interest. I was further persuaded by the fact that DeCola never
did furnish Pohl with a copy of the contract. Consequently, I
credit Pohl’s account that DeCola told him, if he did not sign
the application for membership that day (September 23), that
would be his (Pohl) last day working for Yellow Freight; that if
Pohl did not call him by 9 a.m., DeCola would turn in his pa-
perwork to the Union and it would inform the Employer he
refused to join the Union and the Company could not use Pohl;
and that if Pohl did not call him by 9 a.m. Pohl should see if he
could find another job that paid $15 an hour.
After Pohl did not turn in his application for union member-
ship on September 23, he did not receive a call to work until he
told the Company and the Union he would join the Union. Pohl
then signed another membership application in late October and
turned it into Yellow Freight and the Union.
Pohl has worked for Yellow Freight since October 27, 1992,
but no one has told him what “membership in good standing’’
means or what “nonrepresentational activities’’ means. Nor
has anyone from the Union told him he could object to paying
for nonrepresentational activities. Pohl denied he asked Strode
whether joining the Union was a good deal. Although DeCola
had told him on September 23, that night was going to be his
last night working there, it was not. He worked several nights
thereafter. DeCola testified he read the provisions of the col-
lective-bargaining agreement to Pohl and told him he was obli-
gated to join the Union on the 31st day of his employment. He
acknowledged Pohl wanted to know what involvement with the
Union would mean under the contract, of which he did not have
a copy. Pohl said he read the union application and authoriza-
tion card (Exh. 5) and scratched out what he had written, except
the Company’s name, but said he did not read the second appli-
cation (Exh. 6), although he signed it.
Pohl manifested reluctance to join the Union and he re-
quested DeCola to give him a copy of the collective-bargaining
agreement for him to study. DeCola told him he did not have
an extra copy and he did not give Pohl a copy of the agreement.
When Pohl requested a copy of the agreement from DeCola a
second time during the conversation, DeCola told him he would
give him a copy of the agreement when he (Pohl) signed the
application for membership. More significantly, the record
does not show that DeCola ever gave Pohl a copy of the con-
tract.
3. Pohl’s conversations with management
DeCola acknowledged he did not inform Pohl he could sat-
isfy his union obligations by paying dues and fees for nonrepre-
sentational purposes; or that the Union would tell him the per-
centage of funds spent on nonrepresentational activities and
only charge him for representational activities, or that upon his
objection, the Union would give him data on the breakdown of
its expenditures. At the end of his conversations with DeCola,
Pohl called Supervisor Gorecki and asked him if he had heard
his conversation with DeCola. Gorecki said “just bits”, “that he
(Pohl) had to sign the dues-checkoff list.” Pohl testified he
asked Supervisor Gorecki if he had to join the Union—did he
know anything about the Union. Gorecki told him he should
talk with Employer’s terminal manager, Dennis Strode.
Pohl said he called Manager Strode and told him he had a
question but before he could ask his question Strode said, “Its
unfortunate that it has to be like this but the Union wants you to
join. . . . You have been working here over 30 days, you have to
join the Union.” Strode also told him he should talk to DeCola
about it, “because right now, the Company is in no position to
hire him. . . . I can’t make up your mind for you and I can’t
make you join the Union. But if you want to continue working
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1006
here, you’ll have to join the Union.” Strode admitted he told
Pohl he had a choice, not to work for the Company and he
would not have to join the Union.1
Although Pohl engaged in conversations with the Em-
ployer’s supervisor, Gorecki, and its manager, Strode, as to
whether Pohl had to join the Union, the evidence is unequivo-
cally clear that neither Union Steward DeCola, Union Secretary
Flynn, Employer Supervisor Gorecki, Manager Strode, nor any
other members of the Union or management ever told Pohl
anymore about his union obligations, other than DeCola having
told him to pay $50 initiation fees and monthly dues of ap-
proximately $28 per month. Hence, a subordinate question
presented for determination is whether DeCola’s explanation to
Pohl about initiation fees and dues was sufficient in law to sat-
isfy the Union’s duty to deal fairly with employees it repre-
sents.
4. Relevant law
In this regard, the Board has clearly stated that the phrase
“members in good standing” in a union-security clause can
mean full membership and all attendant obligations, e.g., as-
sessments, as well as limited membership requiring only the
payment of initiation fees and dues, and that the phrase “mem-
bers in good standing’’ alone, is ambiguous, although lawful.
Electronic Workers IUE (Paramax Systems), supra at 1037;
Electrical Workers IBEW Local 2088 (Lockheed Space Opera-
tions), 302 NLRB 322, 329 fn. 27 (1991). However, the Board
continued, “because of this ambiguity, the Union by virtue of
its exclusive representative status is obligated to inform em-
ployees of their actual obligations.’’
Also, as the Board held in Miranda Fuel Co., 140 NLRB
181, (1962), and the Court followed in NLRB v. Teamsters
Local 282 (Transit Mix Concrete), 740 F.2d 141 (5th Cir.
1966), that the duty of fair representation by the exclusive bar-
gaining representative is clear and fiduciary in nature as de-
scribed below in Miranda:

The privilege of acting as an exclusive bargaining representa-
tive derives from Section 9 of the Act, and a union which
would occupy this statutory status must assume “the respon-
sibility to act as a genuine representative of all the employees
in the bargaining unit.
. . . .
[S]ection 7 . . . gives employees the right to be free from un-
fair or irrelevant or invidious treatment by their exclusive bar-
gaining agent in matters affecting their employment. “This
right of employees is a statutory limitation on statutory bar-
gaining representatives, and we conclude that Section
8(b)(1)(A) of the Act accordingly prohibits labor organiza-
tions, when acting in a statutory representative capacity,
from taking action against any employee upon considerations
or classifications which are irrelevant, invidious, or unfair.”
[Id. at 185.]

1 I credit Pohl’s account of his September 23 conversations with Super-
visor Gorecki and Manager Strode, because, they are not only essen-
tially uncontroverted but partially corroborated by Gorecki and Storde,
respectively. Also, because Pohl’s version of the conversations is
consistent with all the credited evidence and the subsequent conduct of
both Respondents, infra, and because I was persuaded by the demeanor
of the three witnesses (Pohl, Gorecki, and Strode) that Pohl and Gor-
ecki were telling the whole truth, and Storde was telling only a part of
the truth, therefore, I credit Pohl and Gorecki’s account and discredit
Strode’s denials.

The above-described union duty extends to all unit employ-
ees, to contract negotiations, contract administration, union
operation of hiring hall, and specifically, where an exclusive
representative breaches its duty when it affirmatively misleads
unit employees about their obligations under the contract.
Armco, Inc. v. NLRB, 832 F.2d 357, 364 (6th Cir. 1987).
The Board has held that a union’s fiduciary duties extend to
the enforcement of union-security clauses; and that when a
union requires new employees “to perfect membership under a
union-security agreement, it has the duty to notify the employ-
ees . . . as to what their membership obligations are.’’ NLRB v.
Hotel & Restaurant Employees Local 568, 320 F.2d 254 (3d
Cir. 1963).
Additionally, because the comprehensive authority of the
bargaining representative inevitably leads to employee depend-
ence on the labor organization, the courts and the Board require
exclusive bargaining representatives to notify employees they
represent of matters affecting their employment. Teamsters
Local 896 (Anheuser-Busch), 280 NLRB 565, 575 (1986); and
as the court stated in Electrical Workers IUE Local 801 v.
NLRB, 307 F.2d 679, 683 (D.C. Cir. 1962):

[T]he union which can require [the employee’s] membership
or command his discharge is therefore charged with an obli-
gation of fair dealing which includes the duty to inform the
employee of his rights and obligations so that the employee
may take all necessary steps to protect his job.

The rationale for requiring the union to provide this information
is that it, as the exclusive representative, must ensure that unit
employees do not fail to meet their obligations through “igno-
rance or inadvertence, but will do so only as a result of con-
science choice.’’ Conductron Corp., 183 NLRB 419, 426
(1970).
Also where a union fails to inform employees of contract in-
terpretations or terms affecting their terms and conditions of
employment, the exclusive bargaining representative has
breached its duty of fair representation to employees. Team-
sters Local 896 (Anheuser-Busch), supra at 575.
In the instant case the evidence demonstrates that both Re-
spondent Union and Respondent Employer failed to fully in-
form employee Pohl how the ambiguous phrase “members in
good standing”, can be interpreted as possibly meaning pay-
ment of only initiation fees and dues for representational pur-
poses, as well as payment of initiation fees, dues, and assess-
ments for nonrepresentational purposes. By failing to clearly
inform Pohl that he had the option of limited membership, by
paying only the initiation fees and dues if he did not desire full
membership, including nonrepresentational activities, Respon-
dent Union breached its fiduciary duty of fair representation to
employee Pohl. Moreover, since Pohl could be discharged by
Respondent Employer for failing to comply with the ambiguous
union clause “members in good standing”, Respondent Union
failed to fully explain the ambiguous phrase affecting Pohl’s
job security. Paramax Systems, supra.
Even though the Union informed Pohl that his initiation fee
was $50 and dues approximately $28 a month, Pohl had no way
of knowing that satisfying that obligation was limited without
being informed of what constitutes full membership. Pohl
might have, and probably did believe, paying the initiation fee
and the dues constituted full membership. This confusion
could have been avoided if Respondents had explained the
difference between limited and full membership to Pohl, and
YELLOW FREIGHT SYSTEM OF INDIANA 1007
informed him of his option to take advantage of either. If a
union were not obligated to make this distinction clear to em-
ployees, many employees would believe they were required,
and were in fact acquiring full membership when they had no
intention or desire to have full membership. The evidence does
not show that Pohl at any time expressed objections to paying
union fees and dues, or to join the Union. At most, he was
reluctant to join the Union without explaining any reasons for
his overt reservations.
Although both DeCola of the Union as well as Strode of the
Employer, informed Pohl he could lose his job if he did not
sign the application (join the Union) and authorize dues check-
off, their failure to explain the meaning of the ambiguous lan-
guage “members in good standing” chilled Pohl’s exercise of
his Section 7 rights, and probably led him to reasonably believe
that full membership was required. Teamsters Local 896 (An-
heuser-Busch), supra. By failing to properly inform Pohl of his
General Motors rights, I find that Respondent Union breached
its fiduciary duty of fair dealing with Pohl, by not so informing
him, in violation of Section 8(b)(1)(a) of the Act. Paramax,
supra.
In fact Union Secretary Flynn acknowledged he has never
instructed his steward (DeCola) to inform unit employees that if
they object to joining the Union, the Union could only charge
them for limited representational membership. The record is
replete with uncontroverted credited evidence that Pohl was
reluctant to join the Union, and his reluctance made all the
more plain, the need and reason for Respondent to explain the
difference between limited and full membership. Conse-
quently, even though Pohl made no verbal objection he never-
theless rejected membership and his rejection could have been
against full membership, especially since he requested a copy
of the contract for study.
The Board has specifically held that a union breaches its fi-
duciary duty of fair representation by failing to provide unit
employees with requested contracts or fringe benefits. Law
Enforcement & Security Officers Local 40B (South Jersey De-
tective Agency), 260 NLRB 419 (1982). Since the evidence in
the instant case indisputably shows that on two occasions Pohl
requested Steward DeCola to give him a copy of the collective-
bargaining agreement to study and DeCola failed to give him a
copy on either occasion, or at any time subsequent thereto,
Respondent Union breached is fiduciary duty of representation
to employees in violation of Section 8(b)(1)(A) of the Act.
Vanguard Tours 300 NLRB 250, 265 (1990); Law Enforcement
& Security Officers Local 40B, supra at 420.
I therefore find upon the foregoing evidence and cited legal
authority, that by failing to provide Pohl with a copy of the
contract while insisting he sign the application that day (Sep-
tember 23), Union Representative DeCola also failed to allow
Pohl a reasonable time within which to satisfy his union-
security obligations, and thereby, coerced and restrained Pohl
in the exercise of his Section 7 rights, in violation of Section
8(b(1)(A) of the Act. Carpenters Local 296 (Acrom Constuc-
tion), 305 NLRB at 827; Electrical Workers IBEW Local 3
(General Electric), 299 NLRB 995 (1990); United Stanford
Employees, Local 680 (Leland Stanford Junior University), 232
NLRB 326 1977).
5. Findings
I therefore conclude and find upon the foregoing credited
evidence and above-cited legal authority, that:
(1) (DeCola) by telling employee Pohl he would give him a
copy of the collective-bargaining agreement when Pohl signed
the application for membership in the union and dues checkoff,
and thereafter refusing Pohl’s request for a copy of the collec-
tive-bargaining agreement to study, Respondent Union refused
to provide Pohl with a copy of its collective-bargaining agree-
ment with the Company. Vanguard Tours, Inc., supra; Law
Enforcement & Security Officers, supra.
(2) DeCola, by telling Pohl if he did not sign the application
for membership in the Union, “this is your last day working
here,’’ the Union threatened Pohl with discharge if he did not
join the Union. Paperworkers Local 710 (Stone Container),
308 NLRB 95, 98–99 (1992); Yellow Freight System, 307
NLRB 1024, 1028–1029 (1992).
(3) DeCola, by telling Pohl if he did not sign the application
for membership in the Union and dues checkoff, he would turn
in his paperwork to the Union at 9 a.m. and inform the Union
that he refused to join the Union and the Union would inform
the Company that it could not employ him under the terms of
the union-security clause of the contract, the Union again
threatened Pohl with discharge if he did not join the Union.
Paperworkers Local 710 (Stone Container), supra; Yellow
Freight System, supra.
(4) DeCola, by telling Pohl if he did not call him by 9 a.m.
(September 23) Pohl should see if can find another job that
pays $15 an hour, the Union again threatened Pohl with dis-
charge if he did not join the Union by 9 a.m. Paperworkers
Local 710 (Stone Container), supra; Yellow Freight System,
supra.
(5) DeCola, by demanding that Pohl sign up for membership
in the Union and dues checkoff during the work shift or the
next morning September 23, the Union refused to allow Pohl a
reasonable amount of time to comply with his union-security
obligations. Operating Engineers Local 150 (Willbros Energy),
307 NLRB 272, 275–276 (1992); Carpenters Local 296 (Ac-
rom Constr.), 305 NLRB at 827.
(6) DeCola, by not informing Pohl of his obligations under a
union-security clause that such a clause requiring “membership
in good standing,’’ only requires the payment of uniform dues
and fees, Respondent Union breached its duty to fairly repre-
sent employees. NLRB v. General Motors Corp., 373 U.S. 734
(1963); and by failing to explain to Pohl the meaning of the
ambiguous phrase “members in good standing” the difference
between limited and full membership, the Union breached its
fiduciary duty to deal fairly with Pohl. Paramax Systems, supra.
(7) Strode, by threatening to discharge Pohl if he did not be-
come a “member in good standing” of the Union, without ex-
plaining the meaning of the phrase “members in good stand-
ing’’ in the contract between the Company and the Union, Re-
spondent Employer coerced and restrained its employees in the
exercise of their Section 7 rights, in violation of Section 8(a)(1)
of the Act. Yellow Freight Systems, supra; Montgomery Eleva-
tor Co., 278 NLRB 871 (1986).
(8) By maintaining and enforcing the unexplained union-
security clause in its contract with the Union, Respondent Em-
ployer rendered assistance and support to the Union, in viola-
tion of Section 8(a)(1) and (2) of the Act.
(9) That all of the above conduct (threatening ultimatums) to
which the Union or the Employer subjected Pohl, constituted
coercive and restraining conduct upon the exercise of employ-
ees’ Section 7 rights, in violation of either Section 8(b)(1)(A) or
8(a)(1) of the Act, respectively.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1008
C. Did the Union Request the Discharge of Pohl Because He
Failed to Join the Union and Did Employer Comply with the
Union’s Request
The Board has held that a union violates Section 8(b)(2) of
the Act when it causes or attempts to cause the discharge of an
employee because the employee is not a member of the Union.
Electrical Workers IBEW Local 3 (General Electric), supra.
Although a union may attempt to cause the discharge of an
employee who fails to satisfy his union-security obligations, if
the union has not carried out its fiduciary duties of properly
informing employees of their union-security obligations prior to
requesting their dismissal, the Union violates Section 8(b)(2) of
the Act. Carpenters Local 296 (Acrom Construction), supra at
829–830; Operating Engineers Local 542C (Ransome Lift), 303
NLRB 1101, 1103–1106 (1991); Electrical Workers IBEW
Local 3 (General Electric), supra at 1002.
Correspondingly, if an employer complies with a union’s re-
quest to discharge an employee when it has reason to believe
that the request is unlawful, the employer discriminates against
the employee, in violation of Section 8(a)(3) of the Act. Yellow
Freight Systems, supra at 1029; Montgomery Elevator Co.,
supra at 876.
Almost immediately after talking to Strode on September 23,
Pohl called DeCola and told him he had decided to join the
Union and DeCola asked him what made him change his mind.
He said he told DeCola he had spoken to Strode and the latter
told him he had to join the Union if he (Pohl) wanted to con-
tinue working there. DeCola told him he left membership ap-
plications for him and the other casual employees with Strode.
DeCola also told Pohl to be sure to sign them before he
punched in for work that day, and he hoped things worked out
for him—he hoped Pohl made the right decision. Thereupon,
Pohl called Strode and asked for the applications and Strode
told him to come into the terminal at 5:30 and the applications
would be by the timecards. When Pohl reported to work he
completed the applications, signed them September 23, and left
them on the dock supervisor’s desk in the office of dispatcher
Larry Poole.
Pohl thereafter went into the breakroom and talked with fel-
low dockmen before the work shift started. They were joking
about him (Pohl) joining the Union and when he left he went
into the office of the supervisor of the dock dispatcher, re-
trieved his applications and put them in his vehicle where he
left them. Thus, Pohl did not join the Union September 23,
1992, and Yellow Freight did not call him for work between
October 2 and 26, 1992.
Manager Strode admitted that after Pohl did not join the Un-
ion on and shortly after September 23, 1992, the Company did
not call him for work between October 2 and 26, 1992. Ac-
cording to the calendar, September 23, 1992, the date on which
Pohl first submitted an application for membership and re-
trieved it, was a Wednesday, and Pohl acknowledged he
worked after September 23. The workweek of September 23
ended on Friday, September 25, and the next workweek started
on September 28 and ended October 2, 1992. Consequently,
Pohl’s last day of work must have been Thursday, October 1,
1992, since he was not called to work Friday, October 2, or
thereafter, until October 27, 1992, when he signed and submit-
ted the application for union membership and dues checkoff.
Manager Strode testified he did not put the procedure for
termination of Pohl in process and he did not decide not to call
Pohl for work. However, he admitted as a result of conversa-
tions Pohl had with Union Representatives DeCola and Flynn,
regarding Pohl not being a member of the Union, the Company
was asked not to use him, but he (Strode) does not recall
whether he elected not to use Pohl for work. Manager Strode’s
testimony in this regard is partially confirmed by Union Agent
Flynn, who testified the Union receives a monthly report from
the Company of which and how many replacement and sup-
plemental employees the Company used; and that on about
September 23, 1992, Flynn called Strode and told him DeCola
had informed him there was a violation of the contract involv-
ing Pohl. Strode told Flynn yes, he had a similar conversation
with DeCola. Although Flynn later tried to deny he had in-
formed Strode that Pohl had failed to join the Union and was in
violation of the union-security clause, I was persuaded by his
demeanor as well as the overwhelming evidence discussed
below, that he was not telling the truth. Flynn’s denial in this
regard is discredited.
Although Union Steward DeCola denied he ever told Super-
visor Gorecki not to fire or work Pohl, and Manager Strode said
he could not recall whether he elected not to use Pohl for work,
as the union had requested, the blatant fact is that Pohl was not
called for work between October 2 and 26, 1992. Neither Re-
spondent (the Company nor the Union) offered any evidence or
explanation why Pohl was not called for work for so many days
in October, which fact is at variance with his previous work
frequency record in August and early September.
Presumably, the Respondents are implying that the Com-
pany’s failure to call Pohl for work for 19 or 20 days in Octo-
ber, was due to a coincidence of a lack of work. However,
under the circumstances here, a coincidence of the unexplained
interruption in work of Pohl for such a period of time, defies
common experience and logic. Moreover, it is particularly
noted that Manager Strode did not deny that the Company
complied with the Union’s request to use (work) Pohl. He
merely said he could not recall electing not to call Pohl for
work. However, I am not persuaded by Strode’s claimed lack
of recall. The fact that Manager Strode, Supervisor Gorecki,
and Union Steward DeCola all tried to persuade Pohl to join the
Union, and when Pohl failed to join, the Union reported his
failure to join the Union to the Company—apprising the Com-
pany Pohl had become obligated to join the Union—informing
the Company that Pohl’s failure and refusal to join the Union
was in violation of the union-security clause in the contract—
suggesting or actually requesting the Company not to use him
(call him for work)—and the obvious fact that as soon as Pohl
notified the Union and the Company he would join the Union,
and he in fact signed and submitted the application and dues
checkoff October 27, the Company immediately called Pohl for
work on the same day, October 27, 1992. I therefore discredit
the implied coincidence why Pohl was not called for work for
19 or 20 days.
Based on the foregoing credited evidence, I conclude and
find that by not calling Pohl for work between October 2 and
26, 1992, Respondent Employer complied with the Union’s
request not to call Pohl for work; that Respondent Employer
had not only reason to believe, but actual knowledge that the
reason the Union requested Employer not to call Pohl for work
was because Pohl had failed to join the Union September 23
and before October 2, 1992, and the Union and the Company
considered his failure to be in violation of the union-security
clause of the contract; and that by not calling Pohl for work
during that period of time, Respondent Employer complied
YELLOW FREIGHT SYSTEM OF INDIANA 1009
with the Union’s request not to use (work) Pohl; and that by not
calling and working him, it discriminated against its employees,
in violation of Section 8(a)(3) of the Act. Yellow Freight Sys-
tems, supra; Montgomery Elevator Co., supra.
Since Respondent Union, as herein before found, failed to
discharge its fiduciary duties of informing unit employees
(Pohl) of their union-security obligations under the ambiguous
phrase (members in good standing) of the union-security clause
of the contract, and thereafter requested Respondent Employer
not to call Pohl for work because he was in violation of the
union-security clause of the contract by not joining the Union
on September 23; that Respondent Employer complied with the
Union’s request not to use (call Pohl for work) between Octo-
ber 2 and 27, 1992; that by attempting to cause and actually
causing Respondent Employer not to use (call Pohl for work)
between October 2 and 27, 1992, Respondent Union caused
Respondent Employer to discharge or not call Pohl for work
between October 2 and 26, 1992 because Pohl failed to join the
Union, thereby restraining and coercing Pohl’s exercise of his
Section 7 rights, in violation of Section 8(b)(2) of the Act. Elec-
trical Workers IBEW Local 3 (General Electric), supra. Car-
penters Local 296 (Acrom Construction), supra; Operating
Engineers Local 542 (Ransome Lift), supra.
Paragraph ix(b) of the consolidated complaint alleges that
the Respondent Union failed to inform Pohl of his right to ob-
ject to nonrepresentational activities and to provide information
to Pohl stating the percentage of funds spent by the Union in
the last accounting year for nonrepresentational activities.
In support of these allegations counsel for the General Coun-
sel argues and cites Communications Workers of America v.
Beck, 487 U.S. 735 (1988), where the Court for the first time
was confronted with having to delineate the precise limits
8(a)(3) places on the negotiation and enforcement of union-
security agreements. Having decided in NLRB v. General Mo-
tors, supra, that employers and unions may enter into union-
security agreements requiring union membership as a condition
of continued employment, so long as the membership require-
ment does not exceed the financial core—payment of initiation
fees and dues, but whether the financial core includes the obli-
gation to support activities beyond those germane to collective
bargaining, contract administration, and grievance adjustment.
The Court went on to say that while a union may not force ob-
jecting nonmembers to pay for nonrepresentational activities,
unions are obligated to inform nonmembers and new employ-
ees of the percentage of funds spent for nonrepresentational
activities; that nonmembers and new employees may object to
paying for such activities; and that on their objection, they will
only be charged for representational activities and provided
with a breakdown of how expenditures by the union were
made. Communications Workers v. Beck, supra. Failure of the
union to so inform nonmembers and new employees, as Re-
spondent Union here did, also constituted, and I find here, also
violated Section 8(b)(1)(A) of the Act.

1. Respondent Union’s motion

During the hearing, and in her posthearing brief to the coun-
sel for Respondent Union requested the administrative law
judge to take administrative notice of the Board’s rulemaking
proceedings currently in progress, and defer issuing findings of
fact and conclusions of law on issues arising out of the decision
in Beck, supra, until the Board’s rulemaking proceedings are
concluded.

2. Ruling

I have considered the above motion and decided, that in view
of the indefinite time when and how the rulemaking proceed-
ings will conclude, and the Board’s more recent decision in
Paramax, supra, which more precisely addresses the issues in
the instant case, it would serve neither prophetic justice nor
prudent considerations of the expense of the delay to defer
issuing findings and conclusions in this matter. For these rea-
sons, Respondent’s motion to defer is denied. Even if it is ul-
timately determined by rulemaking that Respondents did not
violate the Act pursuant to Beck, supra, Respondents are never-
theless in violation of the Act under the other cited legal author-
ity.
3. Counsel for Respondent Union argues

Although the Board stated in Paramax, supra, that it was not
addressing any of the “issues and obligations arising under
Beck,’’ it is noted that the Board did not state that it was not
addressing any of the issues which arose under General Mo-
tors, on which the General Counsel also relies. Moreover, the
Board’s statement with respect to Beck is understood because
the Court’s decision in Beck was based primarily on a construc-
tion of the Railway Labor Act, Section 2, Eleventh, Section
8(a)(3) of the Act and Court decisions in Machinists v. Street,
367 U.S. 740 (1961), and Ellis v. Railway Clerks, 466 U.S. 435
(1984). On the contrary, the Board’s decision in Paramax, is
based primarily on the fiduciary duty of the bargaining repre-
sentative to fairly represent employees in the bargaining unit,
and other current Court and Board decisions. Neither the Board
nor the Courts have modified or reversed the rulings in General
Motors or Paramax.
Counsel for Respondent Union also contends that the Gen-
eral Counsel misread the following decisions. However, I am
not persuaded that Airline Pilots v. O’Neill, 499 U.S. 65 (1991);
Teachers v. Hudson, 475 U.S. 292 (1986), and other cases cited
by counsel for the Union, have applicability or affects the deci-
sions on the issues in General Motors, Beck, or Paramax, here.
Respondent Union notes that since Pohl admitted he read and
voluntarily signed the union and dues-authorization checkoff
card on September 23, as follows:

Although I am aware that I am not required to sign any dues
check-off assignment, or any membership application card, or
other union form, nevertheless, I desire voluntarily to sign this
form and hereby apply for membership in Local 710.

However, while Respondent Union’s statement is partially
correct, it does not continue to add that Pohl thereafter retrieved
the signed card application and scratched out his signature, the
date, and most everything else, clearly demonstrating he
changed his mind and voided the application card. More sig-
nificantly however, the evidence does not establish that prior to
Pohl completing the application card (G.C. Exh. 5), that either
Respondent Union or Respondent Employer herein ever ex-
plained to Pohl his General Motors, Beck, or Paramax union-
security obligations. Consequently, even if application card
had not been voided by Pohl, it would not be of any evidentiary
significance in disposing of the issues in the instant case.
Although Pohl signed the application for membership and
dues checkoff on October 27, 1992, the record evidence does
not establish that dues were actually withheld by Respondent
Employer and/or turned over to Respondent Union.
In concluding, I am further of the opinion that even if Re-
spondent Union is not in violation of the Act under Beck, supra,
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1010
it is clearly in violation of the Act as shown under General
Motors, supra, as well as Paramax supra, and other decisions
discussed herein.
Thus, I find and conclude upon the foregoing credited evi-
dence and cited legal authority, that by entering into and main-
taining a collective-bargaining agreement requiring unit em-
ployees to become and remain “members in good standing’’ in
the Union, and by failing to advise Pohl and other nonmember
unit employees concerning their limited and full membership
rights, as explained in General Motors, supra, Beck, supra, and
Paramax, supra, Respondent Union and Respondent Employer
violated the Act in several respects as herein found.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent Employer and Respondent Un-
ion set forth in section III, above, occurring in close connection
with its operations as described in section I, above, have a
close, intimate, and substantial effect on trade, traffic, and
commerce among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free flow
of commerce.
THE REMEDY
Having found that Respondent Employer has engaged in un-
fair labor practices within the meaning of Section 8(a)(1)(2)
and (3) of the Act, and that Respondent Union has engaged in
unfair labor practices within the meaning of Section 8(b)(1)(A)
and Section 8(b)(2) of the Act, I shall order that the Respon-
dents cease and desist from engaging in such unlawful conduct,
and that they take certain affirmative action to effectuate the
policies of the Act.
Because of the character of the unfair labor practices here
found, the recommended Order will provide that Respondents
cease and desist from engaging in any like or related manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
NLRB v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941).
RESPONDENT EMPLOYER
CONCLUSIONS OF LAW
1. Yellow Freight System of America, the Respondent Em-
ployer, is and has been at all times material, an employer en-
gaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. By entering into and maintaining a collective-bargaining
agreement, requiring its unit employees to become “members in
good standing” in the Union; by advising unit employees that
membership in the Union is a requirement for continued em-
ployment; by advising its union employees they must complete
and sign union-checkoff authorization forms, and make pay-
ment of initiation fees and dues that are required for continued
employment; and that by threatening employees with discharge
because they failed to join the Union, all, without explaining to
them the difference between limited and full union membership
in accordance with General Motors, supra, Beck, supra, and
Paramax, supra, Respondent Employer has interfered with,
coerced, and restrained its employees in the exercise of their
Section 7 rights, in violation of Section 8(a)(1) of the Act; and
that by complying with the Union’s request to discharge Pohl
because he failed to join the Union, Respondent Employer has
discriminated in regard to the hire, tenure, or terms and condi-
tions of employment of its employees, thereby discouraging
membership in a labor organization, in violation of Section
8(a)(1) and (3) of the Act; that by advising its employees that
membership in the Union is a requirement for continued em-
ployment, Respondent Employer has rendered unlawful assis-
tance and support to the Union in violation of Section 8(a)(1)
and (2) of the Act; that by threatening employees with dis-
charge because they failed to join the Union, Respondent Em-
ployer has coerced and restrained employees in the exercise of
their Section 7 rights in violation of Section 8(a)(1) of the Act;
and that by complying with Respondent Union’s request to
discharge or not work employee Pohl, Respondent Employer
has discriminated in regards to hire, tenure, or terms and condi-
tions of employment of its employees in violation of Section
8(a)(3) of the Act.
RESPONDENT UNION
CONCLUSIONS OF LAW
1. Highway Drivers, Dockmen, Spotters, Rampmen, Meat
Packing House, and Allied Products Drivers and Helpers, Of-
fice Workers and Miscellaneous Employees Local Union No.
710, affiliated with the International Brotherhood of Teamsters,
AFL–CIO, the Respondent Union, is, and has been at all times
material, a labor organization within the meaning of Section
2(5) of the Act.
2. The above-named Respondent Union is and has been the
exclusive collective-bargaining representative of Respondent
Employer’s employees in the following appropriate unit:

Spotters (Hostlers), Fuelmen, Working Foremen, Dock, Trac-
tor Drivers, Checkers, Stackers, Truckers, Wheelers and Of-
fice and Miscellaneous Truck Terminal Employees.

3. By entering into and maintaining a union-security clause
in its collective-bargaining agreement with Respondent Em-
ployer, requiring unit employees to become and remain “mem-
bers in good standing” in the Union, by advising unit employ-
ees that membership in the Union is required for continued
employment, but failing to advise Pohl and other nonmember
unit employees of their union-security obligations as explained
in General Motors, supra, Beck, supra, and Paramax, supra; by
threatening employees (Pohl) with termination of employment
because of their failure to become members of the Union in
good standing; by requiring dues checkoff and the payment of
initiation fees and dues without providing Pohl (employees)
with notice concerning his limited and full membership rights
explained in General Motors, supra, Beck, supra, and Paramax,
supra; by failing to explain to employees the difference be-
tween limited and full membership and their union-security
obligations in accordance with law, Respondent Union has
failed to fairly represent Employer’s unit employee Pohl; by
refusing and failing to comply with Pohl’s repeated request for
a copy of the collective-bargaining agreement with Employer;
and by not allowing Pohl a reasonable period of time within
which to comply with his union-security obligations, Respon-
dent Union has restrained and coerced unit employees in the
exercise of their Section 7 rights in violation of Section
8(b)(1)(A) of the Act.
4. By requesting Respondent Employer to discharge or not
call employees to work, thereby, causing Respondent Employer
to discriminate against its employees in regard to hire, tenure,
terms, or conditions of employment of Employer’s employees,
Respondent Union violated Section 8(b)(2) of the Act.
[Recommended Order omitted from publication.]