Operating Engineers Local 501 (California Milk Producers)

National Labor Relations Board - Board Decisions

Mar 9, 1992

306 N.L.R.B. 659 (N.L.R.B. 1992)

659
306 NLRB No. 124
OPERATING ENGINEERS LOCAL 501 (CALIFORNIA MILK PRODUCERS)
1 We agree with the judge’s finding that the Respondent unlaw-
fully sought employee Lignowski’s discharge for nonpayment of a
reinstatement fee that included back dues covering a period when
Lignowski did not work under a union-security clause requiring pay-
ment of dues as a condition of employment. Teamsters Local 439
(Shippers Imperial), 281 NLRB 255, 258 (1986).
2 Interest is to be computed in accordance with New Horizons for
the Retarded, 283 NLRB 1173 (1987).
Operating Engineers, Local Union 501, Inter-
national Union of Operating Engineers, AFL–
CIO (California Milk Producers) and Vince
Lignowski. Case 21–CB–10538
March 9, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On September 27, 1991, Administrative Law Judge
Earldean V.S. Robbins issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions,1 to modify the remedy,2 and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Operating Engineers, Local
Union 501, International Union of Operating Engi-
neers, AFL–CIO, Los Angeles, California, its officers,
agents, and representatives, shall take the action set
forth in the Order.
Glen C. Shults, Esq., for the General Counsel.
Abe F. Levy, Esq. (Levy, Goldman and Levy), of Los Ange-
les, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
EARLDEAN V.S. ROBBINS, Administrative Law Judge. This
case was heard before me in Los Angeles, California, on
March 13, 1990. The charge was filed by Vince Lignowski,
an individual (Lignowski), and served on Operating Engi-
neers, Local Union 50l, International Union of Operating En-
gineers, AFL–CIO (Respondent) on May 19, 1989. The com-
plaint, which issued on September 29, 1989, alleges that in
breach of its fiduciary duty to Lignowski Respondent re-
quested that California Milk Producers terminate Lignowski
at a time when Respondent had failed to give accurate and
reasonable notice to Lignowski of his indebtedness and de-
linquency in reinitiation fees payment and without affording
him adequate opportunity to make payment of the delin-
quencies.
On the entire record, including my observation of the de-
meanor of the witnesses, and after due consideration of the
posthearing briefs filed by the parties, I make the following
FINDINGS OF FACT
I. JURISDICTION
At all times material, California Milk Producers (CMP)
has been engaged in the business of milk marketing with a
facility in Artesia, California. CMP annually, in the normal
course and conduct of its business operations, purchases and
receives materials valued in excess of $50,000 directly from
suppliers located outside the State of California.
The complaint alleges, Respondent admits, and I find that
the employer is, and has been at all times material, an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that
at all times material Respondent has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The facts are largely undisputed. CMP and Respondent
were signatory to a collective-bargaining agreement effective
from June 1, 1986, through May 31, 1989, which contained
a union-security provision that required bargaining unit em-
ployees, on the 31st day following the commencement of
their employment, to become and thereafter remain members
in good standing of the Union. Although the agreement does
not contain a dues-checkoff provision, CMP has followed a
practice of deducting union dues and fees from the pay of
any unit employee who signed a letter requesting that this be
done.
Lignowski joined Respondent on July 26, 1983, at which
time he paid the required initiation fee, and thereafter, unsuc-
cessfully attempted to secure work through Respondent’s hir-
ing hall. In March 1984 he obtained a job in a unit which
was not represented by Respondent. Although he never ob-
tained a withdrawal card from Respondent, he failed to pay
the union dues required to maintain his status as a member
in good standing of Respondent.
On April 26, 1988, Lignowski was hired by CMP as a
maintenance engineer in the bargaining unit covered by
CMP’s agreement with Respondent. On that same date he
signed a letter requesting CMP to deduct any amount owed
to Respondent automatically from his payroll check begin-
ning with his third paycheck. Thereafter, CMP deducted, and
forwarded to Respondent, $36.50 from Lignowski’s paycheck
for the pay periods ending 5/28/88 and 6/25/88 and $37 from
each paycheck for the pay periods ending 7/23/88, 8/20/88,
9/17/88, 10/15/88, 11/16/88, 12/27/88, 1/21/89, and 2/18/89.
On May 12, 1988, Respondent sent Lignowski a letter, the
body of which reads:
660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All dates hereinafter will be in 1989 unless otherwise indicated.
Our records show that you have been a member of
our organization but you were suspended from member-
ship on December 1, 1983.
Suspended members are required to pay a reinstate-
ment fee of $155.00 plus all back dues accuring [sic]
up to a maximum payment of $550.00. Your actual
indetedness [sic] would exceed the $550.00 so you
would be required only to pay that maximum amount.
Under the provisions of our International Constitu-
tion, in cases where the cost of reinstatement exceeds
the amount of the current initiation fee, the Local
Union may accept such individuals as new members.
The current initiation fee is $300.00 plus the current
months’ dues. In your case, this would be a total of
$336.50 including dues for the month of May 1988.
If you wish to re-enter the Local Union as a new
member, please complete and return the enclosed Ap-
plication for Membership.
Please call our Dues Office or your Business Rep-
resentative, Brian Reive, if you have any questions con-
cerning this matter.
Shortly after Lignowski commenced working for CMP he
visited Respondent’s office to make arrangements for rein-
statement into membership. It is unclear whether this visit
was shortly before or shortly after he received the May 12
letter. In any event, Lorraine Metcalf, Respondent’s dues de-
partment clerk, explained to him the two options for regain-
ing status as a member in good standing which were re-
flected in the May 12 letter. Lignowski chose the more ex-
pensive option of reinstatement believing that by doing so he
would retain some sort of seniority for the out-of-work list
which would not be available to him if he chose the option
of joining as a new member. Thereafter, by checks dated
June 15 and July 21, 1988, Lignowski made payments to the
Union in the amount of $300 toward his reinstatement fee.
Lignowski heard nothing further from the Union until No-
vember 1988 nor was he given any deadline for completing
payment of the reinstatement fee.
On November 30 Respondent sent Lignowski a letter the
body of which reads:
As of this date, you have not completed payment of
your reinstatement indebtedness. Following is a break-
down of your account:
Reinstatement—Maximum Charge $550.00
April 1988 dues 11.00
May & June dues @ $36.50 per month 73.00
July through November dues at $37.60 188.00
lll
$822.00
LESS PAYMENTS THRU 10/20/88 -521.00
lll
BAL. DUE THROUGH NOVEMBER 1988 $301.00
We cannot report you to our International Union until
full payment is made. We, therefore, request that you
complete the balance of your indebtedness by no later
than December 22, 1988.
If you have any questions concerning this matter, please
contact our Dues Department.
Thereafter, according to Lignowski, he telephoned Metcalf
and protested that his dues had been paid. After a slight
delay, Metcalf returned to the telephone and informed
Lignowski that according to her records the November 30
letter was an accurate indication of his indebtedness.
Lignowski asked to speak to a business agent and left his
telephone number when he was told that no business agent
was in the office.
It is undisputed that Lignowski still owed a portion of the
required reinstatement fee. Nevertheless, he neither paid the
balance of the reinstatement fee nor did he attempt to make
any arrangements to do so. On February 7 or 8 he received
another letter from Respondent dated February 6, 1989,1 the
body of which reads:
You still have not completed your indebtedness to rein-
state your membership.
On November 6, 1988 we advised you of this fact,
copy of letter enclosed, and the amount of your indebt-
edness through the month of November 1988. Since
that date, we have received a total of $74.00 and, of
course, your December 1988, January and February
1989 dues have become due and payable.
You now owe the following:
LESS PAYMENTS:
12/1/88 $37.00
12/29/88 37.00 -$74.00 $227.00
PLUS DUES:
Dec. 1988 $37.60
Jan. 1989 37.60
Feb. 1989 37.60 $112.80
TOTAL AMOUNT DUE THROUGH FEBRUARY 1989 $339.80
You are requested to pay the full amount of $339.80
to complete your reinstatement and dues through Feb-
ruary 1989 by no later than the close of business at
5:00 P.M. on Tuesday, February 21, 1989, or it will be
necessary to notify your Employer that you are not in
good standing and request that you be removed from
the job.
If you have any questions regarding this subject matter,
you should contact your Business Representative, Brian
Reive.
After receiving this letter Lignowski again spoke with
Metcalf by telephone. He protested that the amount owed as
set forth in the February 6 letter was incorrect. Metcalf said
it was correct according to her records and told him he
would have to speak to a business representative. According
to Lignowski, he left his phone number for a business rep-
resentative to get in touch with him, but he never heard from
anyone. According to him, he also went to the union offices,
661OPERATING ENGINEERS LOCAL 501 (CALIFORNIA MILK PRODUCERS)
told Metcalf he needed more time since he was in bank-
ruptcy and asked to speak to a business agent or the business
manager.
On February 27, Respondent sent a letter to CMP request-
ing Lignowski’s termination. The body of that letter reads:
Mr. Vince Lignowski has failed to tender the peri-
odic dues and fees uniformly required as a condition of
maintaining membership in good standing in Local 501.
We have previously notified him of his delinquency
including a detailed account of his indebtedness. He has
requested to pay his indebtedness by February 21,
1989, and he has failed to meet that deadline.
We are hereby requesting that you terminate Mr.
Lignowski on Tuesday, March 7, 1989, for his failure
to comply with the provisions of the Collective Bar-
gaining Agreement by maintaining membership in good
standing in our organization.
Should Mr. Lignowski pay his total indebtedness
prior to the close of business at 5:00 P.M., Monday,
March 6, 1989, you will be so notified.
If you have any questions concerning this matter,
please contact the undersigned.
At some point prior to March 6 Lignowski spoke with
Metcalf and told her he would like to speak to a business
agent to try to get an extension until he received his pay-
check; that he would receive his paycheck on March 7 and
wanted to extend the deadline until March 10 to give him
enough time to cash the check and pay his indebtedness.
Metcalf said that she could not grant an extension. According
to Lignowski, between November 10 and March 6 he called
the Union approximately 10 times and left messages request-
ing a business agent to return his call. During that period he
had an answering machine at his residence which was in
good working order. Nevertheless, he never received a tele-
phone call from a business agent and the only message on
his answering machine from a business agent was after his
termination. That message stated that Brian Reive had no
power to extend the time for the payment of his indebted-
ness.
On March 9 or 10, Lignowski went to Respondent’s office
and again spoke to Metcalf. He told her he wanted to pay
the reinstatement fee. Metcalf asked if he was sure he want-
ed to pay this since he had been terminated. Lignowski said
yes, he wanted to pay it. He did pay the balance of his in-
debtedness. He also asked Metcalf to seek his reinstatement
to his job with CMP. Metcalf said she did not have the
power to do that.
By letter dated March 7 CMP notified Lignowski that he
was terminated. The body of that letter reads:
In accordance with instructions issued by Inter-
national Union of Operating Engineers, Local 501, you
are hereby terminated.
We made an effort to contact you by phone without
success.
Please return all uniforms in your custody and pick
up your final check at the office.
On March 9, Metcalf advised CMP by telephone that
Lignowski had paid his indebtedness. Fred Erdtsieck, con-
troller and employee relations director for CMP, testified that
at some point after Lignowski’s termination Respondent’s
business manager telephoned him and requested that
Lignowski be rehired. Erdtsieck said, ‘‘No.’’ According to
Erdtsieck, the reason he said no was that Lignowski had
been issued two letters of warning and Erdtsieck had already
spoken to the plant manager and Lignowski’s supervisor and,
based on his record, they did not want to rehire him.
IV. CONCLUSIONS
It is well established that a union has a fiduciary duty to
deal fairly with the employees in seeking to enforce a union-
security provision which requires that it notify employees of
their contractual obligation to maintain membership in good
standing before it commences any adverse action against
them. NLRB v. Hotel & Restaurant Employees Local 568
(Philadelphia Sheraton), 320 F.2d 254, 258 (1963), enfd. 136
NLRB 888 (1962). This duty includes, at the very least, an
obligation to give ‘‘reasonable notice of the delinquency, in-
cluding a statement of the precise amount and months for
which dues were owed, as well as an explanation of the
method used in computing such amount.’’ Teamsters Local
122 (August A. Busch & Co.), 203 NLRB 1041, 1041–1042
(1973). See also Operating Engineers Local 545 (Joseph
Saraceno & Sons), 161 NLRB 1114, 1119–1121 (1966); and
Teamsters Local 291, 236 NLRB 1100, 1105–1106 (1978).
The Union must also inform the employees when payments
are to be made and that discharge will result from the failure
to pay the amount owed. A showing of a causal connection
between the failure to give notice and the employees’ non-
payment is not required. Teamsters Local 150 (Delta Lines),
242 NLRB 454 (1979); Distillery Workers Local 38 (Schen-
ley Distillers), 242 NLRB 370 (1979), enfd. 642 F.2d 185
(6th Cir. 1981). Communications Workers Local 9509 (Pa-
cific Bell), 295 NLRB 196 (1989).
Here Lignowski has assumed the obligation to pay a rein-
statement fee of $550, even though the initiation fees uni-
formly required of new employees of California Milk Pro-
ducers is only $300. It is undisputed that Lignowski paid
$300 in addition to the $369 deducted from his paycheck for
union dues. Hence, a critical question is whether the Union
can lawfully cause his discharge for failure to pay a volun-
tarily assumed obligation in excess of the initiation fee uni-
formly required of other new hires.
Respondent would answer in the affirmative. Thus, Re-
spondent argues, once Lignowski made the choice to pay a
reinstatement fee, Respondent had no authority to switch his
payments on such fee to payments on an initiation fee. I find
this argument unpersuasive. Despite any agreement between
Lignowski and Respondent, the law is clear. Payment of
back dues for a period when there was no contractual obliga-
tion to maintain union membership cannot be lawfully im-
posed as a condition of employment. Here not only does the
$550 reinstatement fee exceed the amount of the uniformly
required initiation fee, $395 of the reinstatement fee is spe-
cifically characterized as back dues for periods during which
there was no contractual obligation that Lignowski maintain
union membership. To demand his discharge for failure to
pay such fees is clearly unlawful. Further, even assuming,
arguendo, that Respondent could not apply the reinstatement
payments to an initiation fee, Respondent’s duty to treat em-
ployees fairly imposed an obligation to notify Lignowski
specifically that absent a full payment of the voluntarily as-
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 See Sheetmetal Workers Local 355 (Zinsco Electrical), 254
NLRB 773 (1977).
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
4 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
sumed reinstatement fee, he was obligated, under the con-
tract, to pay the $300 initiation fee and that, on his request,
his reinstatement fee payments could be applied toward such
initiation fee. This Respondent failed to do. Respondent also
unlawfully set forth as a condition of employment the pay-
ment of dues during the 30-day grace period following the
commencement of Lignowski’s employment. Actually,
Lignowski was not in arrears as to his financial obligations
to Respondent under the union-security clause. He was obli-
gated to pay a $300 initiation fee, $36.50 dues for the month
of June and $37.60 a month for July through February, plus
an undisclosed amount in dues for May 26 through 31. The
total owed was $637.30, plus a prorated amount for the 6
days in May. He actually paid $669. Thus, he had paid an
amount equal to the required initiation fee, dues for June
through February, plus an additional $32 which should be
more than adequate to cover his dues obligations for the 6
days in May.
Accordingly, I find that by attempting to cause, and caus-
ing California Milk Producers to discharge Vince Lignowski,
Respondent has violated Section 8(b)(l)(A) and (2) of the
Act.
CONCLUSIONS OF LAW
1. Respondent is, and has been at all times material, a
labor organization within the meaning of Section 2(5) of the
Act.
2. California Milk Producers is, and has been at all times
material, an employer engaged in commerce and in a busi-
ness affecting commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
3. Respondent violated Section 8(b)(1)(A) and (2) of the
Act by causing California Milk Producers to discharge Vince
Lignowski.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A) and (2)
of the Act, it is recommended that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent unlawfully caused Cali-
fornia Milk Producers to discharge Vince Lignowski, it is
recommended that Respondent notify California Milk Pro-
ducers, in writing, with a copy to Lignowski, that it has no
objection to the reinstatement of Lignowski, and that it re-
quests Lignowski be reinstated. It is further recommended
that Respondent make Lignowski whole for any losses he
may have suffered by reason of the discrimination against
him by payment to him of a sum of money equal to that
which he would normally have earned from the date of his
termination until he has been reinstated by California Milk
Producers to his former or substantially equivalent job or he
obtains substantially equivalent employment elsewhere, less
his net interim earnings.2 The amount of backpay shall be
computed in the manner set forth in F. W. Woolworth Co.,
90 NLRB 289 (1950), with interest as provided in Florida
Steel Corp., 231 NLRB 651 (1977).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
The Respondent, Operating Engineers, Local Union 501,
International Union of Operating Engineers, AFL–CIO, Los
Angeles, California, its officers, agents, and representatives,
shall
1. Cease and desist from
(a) Causing or attempting to cause California Milk Pro-
ducers to discriminate against any of its employees in viola-
tion of Section 8(a)(3) of the Act.
(b) Enforcing the union-security clause of its collective-
bargaining agreement with California Milk Producers in a
manner so as to condition employment on the payment of
dues and/or fees which may not lawfully be required as a
condition of employment and/or without giving adequate
prior notice to the employee whose discharge is sought.
(c) In any like or related manner restraining or coercing
employees in the exercise of rights guaranteed them by Sec-
tion 7 of the Act, except to the extent that such rights may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make Vince Lignowski whole for any loss of pay he
may have suffered as a result of the discrimination against
him in the manner set forth in the remedy section.
(b) Notify California Milk Producers, in writing, with a
copy to Vince Lignowski, that it has no objection to the rein-
statement of Vince Lignowski and request that he be rein-
stated.
(c) Remove from its records any reference to unlawful ar-
rearages in payments of dues and fees and to the unlawful
discharge of Vince Lignowski and notify him in writing that
this has been done and that evidence of such alleged arrear-
age in dues and fees and of his unlawful discharge shall not
be used as a basis of future action against him.
(d) Post at its union hall copies of the attached notice
marked ‘‘Appendix.’’4 Copies of the notice, on forms pro-
vided by the Regional Director for Region 21, after being
signed by the Respondent’s authorized representative, shall
be posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to members are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that the notice is not altered, defaced, or covered
by any other material.
(e) Deliver to the Regional Director for Region 21 signed
copies of the notice in sufficient numbers to be posted by
California Milk Producers, in all places where notices to em-
663OPERATING ENGINEERS LOCAL 501 (CALIFORNIA MILK PRODUCERS)
ployees are customarily posted, if it is willing. Ask the Em-
ployer to remove any reference to Vince Lignowski’s unlaw-
ful discharge from the Employer’s files and notify Lignowski
that it has asked the Employer to do this.
(f) Notify the Regional Director in writing within 2l days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT cause or attempt to cause California Milk
Producers to discriminate against any of its employees in
violation of Section 8(a)(3) of the Act.
WE WILL NOT enforce the union-security clause of our col-
lective-bargaining agreement with California Milk Producers
in a manner so as to condition employment on the payment
of dues and/or fees which may not lawfully be required as
a condition of employment and/or without giving adequate
prior notice to an employee whose discharge is sought.
WE WILL NOT in any like or related manner restrain or co-
erce in the exercise of the rights guaranteed them by Section
7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized in
Section 8(a)(3) of the Act.
WE WILL make Vince Lignowski whole for any loss of
pay he may have suffered as a result of our discrimination
against him, with interest, until he has been reinstated by
California Milk Producers, or obtains substantially equivalent
employment elsewhere.
WE WILL notify California Milk Producers, in writing,
with a copy to Vince Lignowski, that we have no objection
to the reinstatement of Vince Lignowski and WE WILL re-
quest that he be reinstated.
WE WILL remove from our records any reference to al-
leged arrearages in payments of dues and fees by Vince
Lignowski and to his unlawful discharge, and notify him, in
writing, that this has been done and that evidence of such
alleged arrearage in dues and fees and of his unlawful dis-
charge shall not be used as a basis for future action against
him.
OPERATING ENGINEERS LOCAL UNION 501,
INTERNATIONAL UNION OF OPERATING ENGI-
NEERS, AFL–CIO