Unpublished Disposition, 902 F.2d 41 (9th Cir. 1987)

MEMORANDUM^* 

John M. Cacas worked as a grocery clerk in Albertson's in Santa Ana, California. When he failed to pay Union dues, the Union asked that he be terminated, in accordance with the terms of the collective bargaining agreement. Albertson's complied, and Cacas filed a complaint against the Union alleging unfair labor practices. The National Labor Relations Board ("NLRB" or "Board") adopted the recommended order of administrative law judge ("ALJ") Jerrold H. Shapiro finding the Union liable for breaching provisions of the National Labor Relations Act. The Union petitions for review of that order and the NLRB cross-applies for enforcement of its order. We reject the Union's petition and grant the Board's cross-application for enforcement of its order.

FACTUAL AND PROCEDURAL BACKGROUND

On or about June 3, 1986, John M. Cacas began working for Albertson's as a grocery clerk in its store number 1650 in Santa Ana, California.¹  United Food and Commercial Workers, Local 324 ("Union") represents clerks employed at store 1650 for collective bargaining purposes. Pursuant to the collective bargaining agreement between Albertson's and the Union, clerk employees of the former must join Local 324 and satisfy the financial obligations attendent to membership.² 

The process of becoming a member begins when the employer sends the Union a "notice of new hire" which lists certain objective data including the employee's social security number and, in most cases, his home address. The Union then mails the employee an "Introductory Letter" detailing his obligations. If he does not fulfill these (financial) obligations in a timely manner, he then receives a "Delinquency Notice". Failure to respond to this notice by forwarding the fees outstanding results in the issuance of a "Termination Notice" requiring the employer to fire the employee at the end of the work week in which the notice is received.

The letter and notices are sent to the employee at the address provided in the notice of new hire. If the employer has failed to specify a home address, the documents are sent to the employee at his place of work. The employer is likewise furnished with a copy of each of the three notices.³ 

While Cacas began working for the Santa Ana Albertson's in June 1986, the Union did not receive a notice of new hire until November 10, 1986. The notice, moreover, did not contain his home address and listed an incorrect social security number. Approximately two weeks later, the Union mailed Cacas' Introductory Letter to him at store 1650, along with a courtesy copy for the store. He subsequently failed to pay the Union the fees ($296) owed, and a Delinquency Notice was issued on December 31, 1986.

While Cacas' receipt of the letter and notice is a focal point of the instant dispute, there is no question that in the first week of January, Louis Cruz, the Union's business representative, told Cacas that he was required to join the Union as a condition of employment and instructed him to get in touch with the Union by phone. Cacas claims that when he did so on two different occassions, the Union personnel with whom he spoke were unable to help him but assured him that the appropriate information about joining Local 324 would be sent to him shortly.⁴ 

On January 22 or 23, Cruz again spoke to Cacas, this time in the presence of store director James Seidenglanz. At the hearing before the ALJ, each recalled the conversation somewhat differently⁵  but all agreed that: (1) Cruz questioned Cacas as to whether he had joined the Union; (2) Cacas answered in the negative; and (3) Cacas indicated that he was unaware that he needed to join the Union by 4:00 PM that day. In addition, both Cacas and Seidenglanz recalled Cruz asking Seidenglanz if he had seen or received any notices concerning Cacas. Both reported that Seidenglanz indicated that he had not.

Cacas was unable to go to the Union office until 6:00 PM that day and found that it was closed. On either January 26 or 27 (Monday or Tuesday), Cruz phoned Seidenglanz and requested that Cacas be terminated by the end of the week. Seidenglanz agreed. On Thursday, January 29, Cacas returned to the Union office to pay his dues and was informed by Cruz that he was too late in that his Termination Notice had already been sent.

Approximately one month later, on March 2, a meeting was held at the Union offices in which Cacas, Cruz, Cruz' boss, and night crew employee Gordie Owens were present. Cacas protested his termination, claiming that he had never received the requisite notices. Owens stated, to this end, that he had seen an envelope addressed to Cacas left on the window sill of the store's office. Store bookkeeper Jo Wilson, who was contacted by phone, also remembered seeing such an envelope there. At the conclusion of the meeting, Cruz informed Cacas that he intended to persuade Albertson's to reinstate Cacas, even if it meant going to arbitration.

On March 10, another meeting took place in part to discuss the issue of Cacas' rehire. At this meeting, Cruz explained to Simonson, Albertson's district manager, that it was plain that Cacas had not received the notices as store manager Seidenglanz had admitted as much. Simonson indicated that he would consider rehiring Cacas and would notify the Union in a few days. Shortly thereafter, Cacas was informed that he would not be rehired and that the Union would not pursue the matter further. On March 17, he filed the instant case against the Union alleging unfair labor practices.

In a lengthy oral opinion, Judge Shapiro found that the Union had violated sections 8(b) (2) and (1) (A) of the National Labor Relations Act, 29 U.S.C. § 158(b) (2) & (1) (A), by causing Cacas' discharge for failing to satisfy his union security obligations. The Union then filed exceptions to the decision. They were rejected by the NLRB which adopted the decision and recommended order of the ALJ. The instant appeal and cross-appeal followed.

DISCUSSION

A decision of the NLRB must be upheld if its findings of fact are supported by substantial evidence and if it has correctly applied the law. NLRB v. Howard Elec. Co., 873 F.2d 1287, 1290 (9th Cir. 1989). The court of appeals must, however, overturn agency action which is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law." 5 U.S.C. § 706(2) (A) (1988); Simpson v. Hegstrom, 873 F.2d 1294, 1297 (9th Cir. 1989).

A labor organization seeking to enforce a union security provision against an employee has a fiduciary duty to deal fairly with that employee. Sheet Metal Workers Local 355 v. NLRB, 716 F.2d 1249, 1254 (9th Cir. 1983). To this end, the union must give the employee reasonable notice of his dues-related obligations and an opportunity to make good his delinquency. Teamsters, Local 122, 203 NLRB 1041 (1973), enforced without op., 502 F.2d 1160 (1st Cir. 1974). The union must also specify when such payments are to be made and give clear notice that discharge will result from a failure to pay. Western Publishing Co., 263 NLRB 1110 (1982). Only actual notice, not constructive notice, will satisfy the union's fiduciary duty. Teamsters Local 162 v. NLRB, 568 F.2d 665, 668-69 (9th Cir. 1978).

In this case, the Union does not dispute that it would have violated its fiduciary duty to Cacas if he did not, in fact, receive the relevant notices. It argues instead that the Board's conclusion that the notices were not received is not supported by the record.

The determination of this issue turns on the credibility of witnesses who testified at the hearing before the ALJ. In this regard, Judge Shapiro consistently credited the testimony of Cacas over that of Union witnesses on the basis of Cacas' demeanor and/or "straightforward and sincere" delivery. When testifying that he had never seen the notices, Cacas "impressed [the ALJ] as a sincere and conscientious witness."

By contrast, the ALJ was not impressed by the testimonial demeanor of the Union witnesses. For example, he discredited on this basis the testimony of Union employee Madelyn Pool who stated that she was absolutely positive that she had clipped both the Introductory Letter and the Delinquency Notice to Cacas' paycheck(s). There were also circumstances casting doubt on the reliability of Pool's testimony. For instance, Pool testified that on or about April 1, 1987, she and Seidenglanz found Cacas' Introductory Letter dated November 26, 1987, which was supposedly clipped to his paycheck, in the night crew chief's basket. As the ALJ noted, this is most unusual since Cacas had been replaced as night crew chief on November 23, three days before the letter was written. If it had been placed there, moreover, one would expect that his replacement would have removed it prior to April of the following year. It is not inherently obvious, moreover, why Pool or Seidenglanz would be looking in the basket and they gave conflicting explanations for the occurrence. Finally, as Pool works at the store only one day a week, the day she manages the payroll, it is "a remarkable coincidence" that she would be involved with Seidenglanz in finding the letter.

In addition, Seidenglanz himself testified both that he opened a substantial share of the dues notices addressed to the store and that he had not seen any notices for Cacas. Union representative Cruz also appears to have believed that Cacas had not seen the notices or else he (Cruz) would not have been willing to go to bat for Cacas with Albertson's.

In light of the foregoing, the credibility determinations of the ALJ should not be disturbed. The court of appeals may overrule such findings only where "a clear preponderance of all the relevant evidence convinces us they are incorrect." NLRB v. Ayer Lar Sanitarium, 436 F.2d 45, 49 (9th Cir. 1970). The examiner is entitled, moreover, to make credibility determinations "solely on the basis of his evaluation of the witnesses' demeanors." Id. In the instant case, Judge Shapiro expressly considered the demeanor of the various witnesses and discussed at length the consistency and plausibility of their testimony. The Union's protestations notwithstanding, the facts of this case do not demonstrate a clear preponderance in their favor.

The Union relies, in this regard, on "the inherent [un]likelihood that long-standing business systems which functioned properly throughout the period in which the dispute arose suddenly and inexplicably broke down with regard to Cacas alone." The record reveals, however, that this would not be the only example of systemic irregularity. Consider the following: (1) the failure to notify Cacas that his Union mail might be left on the window sill of the store's office; (2) the alleged placement of Cacas' Introductory Letter in the night crew chief's basket and the failure of any Albertson personnel to see that it eventually make its way to Cacas; (3) Albertson's 5-month delay in providing the Union with a notice of new hire with respect to Cacas; (4) the listing of an incorrect social security number with respect to Cacas by Albertson's. Thus, the Union's reliance on the integrity of its procedures is misplaced.

As mentioned above, the Union filed a number of exceptions to the ALJ's recommended order. The Board rejected them summarily, noting that " [t]he Respondent ha [d] excepted to some of the judge's credibility findings" and that there is "no basis for reversing the findings." The Board then adopted the ALJ's order.

The Union argues that the Board's failure to discuss the objections more thoroughly constitutes an abuse of discretion. However, no authority is cited for this proposition. The Union refers to language in NLRB v. Pacific Southwest Airlines, 550 F.2d 1148, 1152 (9th Cir. 1977), stating that orders and findings of fact cannot be "perfunctory" or "boiler-plate", but that is not true of the order which the Board adopted. On the contrary, as discussed above, Judge Shapiro's findings were quite specific and detailed.

If the Board's decision were to suggest that it failed to consider the exceptions lodged by the Union, the latter's position would be strengthened. This, however, is not the case.⁶ 

Finally, the Union argues that even if it is held to have committed an unfair labor practice, it is "wholly inequitable" to force it to bear the entire remedial burden. Since the ALJ's order discredits the testimony of Albertson employees Seidenglanz and Pool, one of two conclusions must follow, according to the Union: either Albertson's "bungled" its handling of the notices or the store maliciously interfered with the transmission of the notices. In either case, Local 324 argues that it should not be held exclusively responsible.

It is axiomatic that since Albertson's is not a party to this suit, the court cannot order that it be held liable. It is likewise clear that the Board may, in its discretion, impose a make-whole remedial order on the Union. See, e.g., Sheet Metal Workers' Int'l Ass'n v. NLRB, 716 F.2d 1249, 1258 (9th Cir. 1983) (citing Radio Officer's Union v. NLRB, 347 U.S. 17, 54-55 (1954)). The question is whether Albertson's is sufficiently responsible for Cacas' failure to receive the notices that the Union's liability should be reduced in the interest of equity.

We think not. There was no finding in the record that Albertson's was partially liable in any way, and we are not persuaded that equitable considerations compel us to draw such an inference at this juncture.

CONCLUSION

Because there is substantial evidence to support the decision and order of the NLRB and equitable considerations do not suggest a contrary result, we reject the Union's petition for review and grant the NLRB's cross-application for enforcement of its order.

PETITION FOR REVIEW IS DENIED; CROSS-APPLICATION FOR ENFORCEMENT OF ORDER IS GRANTED.