Triple A South

DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Brotherhood of Boilermakers, Iron Ship- builders, Blacksmiths, Forgers & Helpers, Local Lodge No. 732, AFL-CIO (Triple A Machine Shop, Inc., d/b/a Triple A South) and William E. White, Oscar Lee Dunn, Raymond Talley, Roy Lee Fillin- game, and Byron Dale Gizoni. Cases 21-CB-6176, 21-CB-6326, 21-CB-6359, 21-CB-6366, and 21- CB-6370 November 28, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On August 22, 1978, Administrative Law Judge James T. Baker issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel each filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and attached Decision in light of the exceptions and briefs and has decided to affirm the rulings,' findings,2 and conclu- sions of the Administrative Law Judge, and to adopt his recommended Order, as modified herein.3 Respondent and the Employer are parties to a col- lective-bargaining agreement which requires all em- ployees to become members of Respondent. Since the contract does not provide for checkoff, Respon- dent requires all members to tender their monthly dues directly.4 It considers members who have failed to tender dues for 2 or more months to be delin- quent. Each month it posts at or near the timeclocks a notice listing such persons. The notices specify the We deem it unnecessary to pass on Respondent's contention that the Administrative Law Judge erred in denying Respondent's request that other alleged discriminatees be excluded from the hearing room when an alleged discriminatee or other witness testified. Assuming, arguendo, that the denial was inconsistent with our current policy regarding the exclusion of potential witnesses, no prejudice to Respondent is evident. See Unga Painting Corpo- ration. 237 NLRB 1306 (1978). 2 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 3In accordance with the General Counsel's exceptions, we shall modify the Order to r-quire that Respondent refund reinstatement fees paid by its members Fillingame and Gizoni. See Teamsters, Local Union No. 122 (Au- gust A. Busch & Co. of Mass., Inc.), 203 NLRB 1041 (1973). 4 The Administrative Law Judge concluded that each of the five Charging Parties had actual notice of their obligations to pay monthly dues, both during periods of employment and during periods of layoff, because they had been provided, upon their initiation into membership, with packets of information which contained letters outlining these responsibilities. amounts owed and the periods for which they are owed and grant the delinquents 10 days within which to pay the arrearages before the Union seeks their termination. The Administrative Law Judge found that Re- spondent breached its fiduciary duty of fairness with respect to employees White, Fillingame, and Gizoni by seeking their termination without providing them with adequate prior notice of their delinquency and by failing to accord them reasonable opportunities to pay their arrearages. In so finding, the Administra- tive Law Judge rejected Respondent's contention that its notice postings constituted adequate notice to these members, since Respondent was aware that White was on military leave and that Fillingame and Gizoni were on l yoff during the period of the post- ing. With respect to members Dunn and Talley, how- ever, the Administrative Law Judge found that the notice posting constituted sufficient notice because both Dunn and Talley were employed at the plant during the period of the posting and because they admitted they were generally aware of their dues obligations and of the Union's practice of posting monthly a list of delinquent employees. Nevertheless, the Administrative Law Judge concluded that Re- spondent breached its fiduciary duty of fairness by failing to accord Dunn and Talley reasonable oppor- tunities to pay their arrearages before seeking their termination. Although we agree with the Administrative Law Judge that Respondent breached its fiduciary duty of fairness with respect to all five of the Charging Par- ties, we disagree with his finding that Respondent's posting of a list of delinquent members at or near the timeclocks constituted, in and of itself, adequate no- tice to Dunn and Talley. The Board has consistently held that a union's fiduciary obligation to its mem- bers entails taking "the necessary steps to make cer- tain that a reasonable employee will not fail to meet his membership obligations through ignorance or in- advertence but will do so only as a matter of con- scious choice." Conduction Corp., 183 NLRB 419, 426 (1970). In holding a labor organization to this stan- dard we have required that it give the delinquent em- ployee actual as opposed to constructive notice of his dues delinquency 5 and that it provide him with a reasonable opportunity to meet his obligations. 6 5See District 9, International Association of Machinists and Aerospace Workers, AFL-CIO (Borg-Warner Corp), 237 NLRB 1278 (1978). The Ad- ministrative Law Judge's reliance on Granite City Steel Company. 169 NLRB 1009 (1968), in support of his conclusion that the mere posting of a notice is sufficient is plainly misplaced. In Granite City, the Board adopted a trial examiner's finding that a union failed to provide adequate notice to an employee where the employee credibly denied receiving a notice al- though the union maintained it had attached the notice to the employee's timecard. 6 See August A. Busch & Co., supra. 504 BOILERMAKERS, LOCAL LODGE 732 In the instant case, however, the only effort by Re- spondent to notify Dunn, Talley, and the other Charging Parties was by posting a notice at or near the timeclocks. Apparently, Respondent was content to leave it to happenstance or to the factory "grape vine" to ensure that Dunn, Talley, and the others 7 received actual notice of their dues delinquency and their possible loss of employment. Under these cir- cumstances, and in view of Dunn's and Talley's credited denials that they had seen the posted notice, we find Respondent breached its fiduciary duty not only by its treatment of Dunn and Talley after July 7, as found by the Administrative Law Judge, but also by the inadequacy of its initial notice proce- dure.8 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge, as modified below, and hereby orders that the Respondent, Inter- national Brotherhood of Boilermakers, Iron Ship- builders, Blacksmith Forgers & Helpers, Local Lodge NO. 732, AFL-CIO, National City, California, its of- ficers, agents, and representatives, shall take the ac- tion set forth in the said recommended Order, as so modified: 1. Insert the following for paragraph 2(b) and re- letter the subsequent paragraphs accordingly: "(b) Refund the reinstatement fees paid by Roy Lee Fillingame and Byron Dale Gizoni." 2. Substitute the attached notice for that of the Administrative Law Judge. 7As found by the Administrative Law Judge the remaining Charging Parties were in no position to observe the posted notice inasmuch as they were either on layoff status or on temporary military leave aIn passing, we note that a union could demonstrate that it has met its fiduciary duty to employees in several ways. Thus, for example. the union could present credible evidence of personal notice to the employee or offer documentary proof such as a return receipt from a registered letter or certi- fied mail. APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT fail to give reasonable advance notice to our members that they are about to become delinquent in their dues, and our notice to such members shall contain the following: (I) the amount of dues owed, (2) the months for which dues are owed or the method of calculat- ing the pending dues delinquency, and (3) the last day upon which the specified amounts can be paid to the Union. WE WILL NOT fail to carry out our fiduciary responsibility to our members by failing to give them reasonable notice of their dues delinquen- cy which would authorize us to require the Com- pany to terminate them under the union-security provision of our collective-bargaining agreement with the Company. WE WILL NOT fail in our fiduciary responsibil- ity to our members by implementing the union- security provision of our contract with the Com- pany in an a:bitrary and capricious way so as to lead to the termination of our members or their loss of employment, seniority, or other rights and privileges. WE WILL NOT cause or attempt to cause Triple A Machine Shop, Inc., d/b/a Triple A. South, or any other employer, to discriminate against Oscar Dunn, Roy Fillingame, Bryon Gizoni, Raymond Talley, and William White, or any other employee, in violation of Section 8(a)(3) of the Act. WE WILL NOT in any other manner restrain or coerce employees in the exercise of rights guar- anteed in Section 7 of the Act, except to the extent that such rights may be affected by our lawful application and implementation of an agreement requiring membership in a labor or- ganization as a condition of employment. WE WILL NOT notify Triple A Machine Shop, Inc., d/b/a Triple A South, in writing, that we withdraw all our objections to the Company em- ploying Oscar Dunn, Roy Fillingame, Bryon Gi- zoni, Raymond Talley, and William White, and in the letter we shall request their full reinstate- ment and the restoration of their full seniority rights and privileges as though their employment or recall rights had never been interrupted. WE WILL make Oscar Dunn, Roy Fillingame. Byron Gizoni, Raymond Talley, and William White whole for any loss of pay suffered by them because of the discrimination against them, plus interest. WE WILL refund to employees Roy Fillingame and Byron Gizoni the reinstatement fees paid to us by them. INTERNATIONAL BROTHERHOOD OF BOILER- MAKERS, IRON SHIPBUILDERS, BLACKSMITHS, FORGERS & HELPERS, LO(CAL LODGE No. 732, AFL-CIO 505 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DECISION STATEMENT OF THE CASE JAMES T. BARKER. Administrative Law Judge: This case was heard before me at San Diego, California, on May 16, 17, and 18, 1978, pursuant to an order consolidating cases, consolidated amended complaint, and amended notice of hearing, issued by the Regional Director of the National Labor Relations Board for Region 21 on February 23, 1978. The consolidated complaint was timely issued in relation to the separate charges filed by the Charging Parties herein, and alleges violations of Section 8(bX2) and (bX)()(A) of the National Labor Relations Act, as amended, hereinafter called the Act. I The parties were afforded full opportunity to exam- ine and cross-examine witnesses, introduce relevant evidence, present oral argument, and to file briefs with me. The parties waived oral argument and timely filed briefs.2 Upon the entire record in this proceeding, my observa- tion of the witnesses, and the briefs filed by the parties, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY During the calendar year 1977, Triple A Machine Shop, Inc., d/b/a Triple A South, hereinafter called the Compa- ny, purchased and received goods valued in excess of $50,000 from suppliers located outside the State of Califor- nia.3 Specifically, on April 29, the Company, through its purchasing agent, Ted W. Harley, issued a purchase order to Delaval Turbine, Inc., for goods and products valued at approximately $140,000, and said products were received at the Company's premises in San Diego, California, in five separate shipments on five separate dates in August and September. The Company, through Harley, placed the April 29 order with Delaval's sales representative located in Downey, California, and the goods and products pur- chased from Delaval were shipped from Farmington, Con- neticut, to San Diego, California. Following receipt thereof, and upon specific approval of Harley, documents were forwarded to the Company's offices in San Francisco, California, where the subject invoices were paid by checks IOn August 23. 1977, the Regional Director issued a complaint and no- tice of hearing in Case 21-CB-6176 based upon a charge which had been filed in said case on July 15, 1977. That proceeding was consolidated pur- suant to the February 23, 1978 order of the Regional Director. 2 On motion of counsel for the General Counsel. an attachment to Re- spondent's brief designated by Respondent as Exh. 1, is hereby rejected as irrelevant to the issues in this proceeding. Moreover. no showing was made justifying a failure on Respondent's part to proffer the material incorporat- ed in the proposed Exh. I during the course of the hearing herein. Further, in his brief, counsel for Respondent raises contentions made during the course of the hearing to the effect that the complaint herein must be dismissed on jurisdictional and constitutional grounds. These conten- tions were raised by Respondent during the course of the hearing before me and were rejected as lacking legal merit. A determination of jurisdiction is made, infra, and in all other respects, I adhere to my rulings made during the course of the hearing. Unless otherwise specified, all dates refer to the year 1977. issued during the calendar year 1977 and made payable to Delaval at its Pittsburgh, Pennsylvania, address. Delaval's account at the Mellon Bank in Pittsburgh, Pennsylvania, was credited in the amounts of the separate checks in Octo- ber and December, respectively.4 Upon the basis of the foregoing, I find that the opera- tions of the Company during the calendar year 1977 were sufficient to justify the assertion of jurisdiction over the Company under the Board's discretionary jurisdictional standards, and I accordingly find that the Company is, and at all times material herein has been, an employer engaged in commerce and in an operation affecting commerce with- in the meaning of Section 2(2), (6), and (7) of the Act. Siemons Mailing Service, 122 NLRB 81 (1958). 11. THE LABOR ORGANIZATION INVOLVED Respondent, International Brotherhood of Boilermak- ers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, Lo- cal Lodge No. 732, AFL-CIO, concedes, and I find, that at all times material herein it has been a labor organization within the meaning of Section 2(5) of the Act. IIl. THE ALLEGED UNFAIR LABOR PRACTICES A. The Issues The principal issues in this proceeding are whether Re- spondent, (1) failed to give reasonable notice to the five alleged discriminatees of delinquencies in periodic dues re- quired by Respondent as a condition of retaining member- ship in Respondent; (2) failed to specify the amounts of the arrearages in periodic dues assertedly owed by the five al- leged discriminatees, and each of them, for the periods of time to which said amounts related; (3) failed to specify to the alleged discriminatees the method used by it in com- puting the arrearages; (4) failed to afford the five alleged discriminatees, and each of the, adequate opportunity to make payment of the arrearages; and (5) in breach of its fiduciary duty to the five alleged discriminatees, and each of them, attempted to cause, and did cause, the Company to terminate their employment for failure to pay periodic dues. Respondent denies the commission of any unfair labor practices and affirmatively contends that each of the al- leged discriminatees received actual notice by reason of the contents of the greeting letter, the constitution, and collec- tive-bargaining agreements routinely dispatched by Re- spondent to new members, including the alleged discrimi- natees; and that Gizoni and Fillingame were personally notified of their dues delinquency by letters dispatched to them. Moreover, Respondent contends that reasonable no- tice was accorded each of the alleged discriminatees by virtue of (1) notices posted at the timeclocks and time 4 The foregoing is based upon the credited testimony of Ted W. Harley and documentary evidence of record. Harley's testimony, considered in light of his responsibilities and functions as purchasing agent of the Compa- ny, and in further light of the documentary evidence of record, and the internal shipping and cost accounting procedures maintained by the Com- pany, support the findings above made with respect to the amount of the purchases, the interstate nature of the shipments, and the consummation of the purchase during the calendar year 1977. BOILERMAKERS, LOCAL LODGE 732 shack used by all unit employees, including the alleged dis- criminatees; (2) pronouncements made by officials of the Union during the course of union meetings concerning the necessity of dues payments and the effects of dues delin- quency upon continued employment; and (3) reminders issued unit employees by departmental supervisors, fore- men, and leadmen. For these reasons, and because the rec- ord establishes a legitimate basis grounded in actual dues delinquency for Respondent's termination demands, there exists, contends Respondent, no evidentiary or record basis to support a finding of a breach of fiduciary duty on the part of Respondent. B. Pertinent Facts 1. Background facts The alleged discriminatees were initially employed by the Company as follows: Byron Gizoni Raymond Talley Roy Fillingame Oscar Dunn William White January 1976 June 1976 January 1977 January 1977 January 1977 On July 7, Dunn, Talley, and White were terminated for nonpayment of union dues, and December 16, the Compa- ny dispatched separate letters to Fillingame and Gizoni, who were then on layoff status due to a lack of work, ad- vising each of them that because they had "lapsed" in their dues and were "no longer in good standing with the Union" they were not eligible for recall and their names had been removed from the seniority list and all seniority and recall rights had been terminated. 5 On February 3, 1976, the bylaws of the Union went into effect. Section V of the bylaws provides for monthly dues of $9.25 and a reinstatement fee for mechanics of $125.6 The bylaws also provide that an installment arrangement for paying reinstatement fees "may be worked out" be- tween the individual member involved and the secretary- treasurer of the Union. Section V(D) also provides as fol- lows: A week before the end of each month, a list shall be posted at the timeclocks listing the members who shall fall in arrears on their dues by the end of that same month. In effect at the time the bylaws were adopted by the Union was article XXIX of the constitution of the Interna- tional, which provided as follows: SUSPENSION AND REINSTATEMENT Suspension for Non-Payments Section 1. Whenever any member allows his month- ly dues, assessments, or fines to become two (2) calen- The credited testimony of Gizoni, Talley. Fillingame, Dunn. and White. and documentary evidence of record, estabhlishes the foregoing 6 At times pertinent, the monthly dues were set at $8.75. dar months in arrears, he shall be automatically sus- pended from all rights, privileges, and benefits of the International Brotherhood. No monthly dues shall be accepted until all financial obligations owed to the Brotherhood or any subordinate body, such as field dues, District Lodge dues, fines, or assessments have been paid. This clause was incorporated as article XXX of the re- vised constitution adopted on August 12, 1977. Since March 14, 1977, Respondent and the Company have been parties to a collective-bargaining agreement con- taining a union-security clause requiring all employees to become and remain members of Respondent in good standing. Article 7 further provides, inter alia. 7.2 The Company will immediately remove any em- ployee from employment who fails to place him/her- self and keep him/herself in compliance with the above upon official written notice from the Union of such failure. Each of the Charging Parties became members of Re- spondent, and Respondent dispatched to each of them re- ceipts showing full payments of initial fees in accordance with the following schedule: Gizoni Talley Fillingame Dunn White April 23, 1976 November 10, 1976 March 15, 1977 April 7, 1977 April 7, 1977 Under prevailing practice, Respondent delivered to each new member a packet of material containing a copy of the International constitution, the bylaws of the Union, the collective-bargaining agreement between the Union and the Company, a folder containing an official receipt for initiation fees, an identification card, and a letter of greet- ing from Respondent over the signature of its secretary- treasurer and business manager. In pertinent part, the let- ter read as follows: Here is a little information that will help you in the future, and perhaps save you some money. Your initi- ation receipt is dated - which means that your are paid through- . You will have to pay $8.75 for and ever), month thereafter. As Secretary- Treasurer of the Lodge, I am responsible for the fi- nances of our Local and if a member becomes delin- quent in his dues, I will have no choice but to request the Company to pull his card, with the result that until he pays a reinstatement fee ($125.00 for a Journey- man, $100.00 for a Helper), he does not work, and then it is up to the Company if they want him back. If a member fails to pay his or her dues within 60 days they are delinquent, so keep a check on your status with the Lodge. The Lodge does not send out notices to watch the time for your own good. If you are hurt on the job, or are sick and are going to be off the job for awhile, make sure you contact me so that your status with the Lodge is okay. If you are on layoff, the fee is $1.50 per month. If you are off sick or disabled, the fee is $.75 per month, but if you are off 507 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the job for any length of time and fail to contact me you may become delinquent. It is your responsibility. Each of the Charging Patties received the packet contain- ing the above-described documents, and each was aware of the amount of the monthly dues and the fact that dues were payable monthly.7 Neither Dunn, Tally, nor White paid monthly dues for May and June.8 Dues delinquency notices to members listing the names of members whose monthly dues are 2 months in arrears, and vulnerable to termination under the collective-bargain- ing agreement, are posted monthly on the premises of the Company, including places at or near the time shack used by employees for the purpose of daily clock-in and -out. These monthly postings frequently become the topic of conversation among employees affected, and it is not un- common on a random basis for one employee to notify another of the inclusion of his name on a newly posted dues delinquency list. Some employees whose names are posted on such a list have contacted John Fletcher, Re- spondent's chief shop steward, and made dues remittents directly to him for transmission to the Union. Moreover, some supervisors, foremen, and leadmen advise employees under their direction that they owe dues, or that they are becoming delinquent in their dues, or that they owe 2 months' dues. Moreover, at union meetings on a recurring basis, William Lajeunesse, Respondent's business manager and secretary-treasurer, and Fletcher remind members present at the meeting to keep their dues current, not to become delinquent in their dues, to maintain a current mailing address with the Union, and to avoid a dues delin- quency which would lead to termination.9 2. The alleged unlawful conduct a. The July 1 dues delinquency list On June 22, Kathy Kleamovich, a secretary working un- der the direction of Respondent's business manager, pre- pared a dues delinquency list for July I. The list contained the names of active members who had not paid dues for May and June. The list was transmitted to John Fletcher, who posted a copy of the list at or near the timeclock at the Company's premises. This list was posted on June 22 and remained posted until July 7 or thereafter. The delinquency list as posted contained the names of 79 employees listed in three columns and was dated June 22. Above the list of names and under the heading, Dues Delinquency List as of The testimony of the five alleged discriminatees. and reasonable infer- ences to be drawn therefrom, support the foregoing findings. Because the record evidence is sufficient to warrant a finding that under its practice. Respondent routinely includes in the packet forwarded to new members a copy of the greeting letter, I find. contrary to the testimony of Fillingame. that he, like the other alleged discriminatees. received a copy of the greeting letter. I find that Fillingame's recollection in this regard is inaccurate. William White conceded this. The testimony .of Talley and Dunn to the contrary is not credited, 9The testimony of John Fletcher, Henry Jalbert. and Victor Anderson has been considered in connection with the foregoing findings. I have also evaluated the testimony of Simon Abdulla, Fred Godwin. and the five Charging Parties with respect to these findings July 1, 1977, the following textual material appeared: The below listed members owe dues for May and June 1977 in the amount of $17.50, and payment must be received in the Local Lodge 732 office by 5 p.m. Thursday, June 30, 1977 or Local Lodge 732 will re- quest the Company remove you from the payroll as of 8 a.m. Friday, July 1, 1977 as per article 7, paragraph 7.2 of the Agreement in force at this time. This written notice was signed by Lajeunesse. Chief Stew- ard Flethcher gave copies of the list which he had posted to other shop stewards. No steward spoke to Dunn, Talley, or White concerning their dues status, nor was a copy of the list shown to them by the steward. On June 29 Lajeunesse dispatched a letter to the Compa- ny which read as follows: Please be informed that due to the upcoming holiday weekend, Local Lodge 732 is postponing the imple- mentation of Article 7, paragraph 7.2 of the Agree- ment in force between Local Lodge 732 and Triple "A" South until Wednesday, July 6, 1977. Attached please find an up-to-date list of members about to become delinquent in their dues. Local Lodge 732 will contact Triple "A" South before 8:30 A. M. Wednesday, July 6, 1977 as to procedure in relation to the Contract. Attached was a two-column list of names which included Dunn, Talley, and White. Upon receipt of the attached list, Fred Godwin, personnel manager of the Company, noti- fied the applicable department heads that the names of certain of their employees had appeared on the dues delin- quency list. No department head or supervisor spoke to Dunn, Talley, or White concerning the list or the status of their dues.' ° Thereafter, on July 6, by letter, Lajeunesse postponed action implementing paragraph 7.2 of the collective-bar- gaining agreement for 24 hours and set 8:30 a.m. on Thurs- day, July 7, as the time when he would contact the Compa- ny concerning this matter. The following day, Godwin called Respondent by telephone and confirmed the fact that the employees listed on the notice which had been attached to the Union's June 29 letter were still considered by the Union to be delinquent in their dues. Immediately thereafter, he notified the individual department heads that the employees on the list were to be terminated at the end of the day shift. Godwin did not take a special, personal initiative in contacting any of the employees." b. The "notification" From June 18 until July 5 when White returned to the premises of the Company to report for work, White was on I' Ihere is no material issue of fatc underlying these findings which are full, sustained by the credited testimony of John Fletcher. Kathy Kleamo- vich, Oscar Dunn. Raymond I'alles. and Fred Godwin. The testimony of Victor Anderson has also been considered in light of the testimony of the ('harging Parties, which negatives the implication that they were counseled by, supervisors andor stewards concerning their delinquency in dues. I The foregoing is based upon the credited testimony of Fred Godwin and documentary evidence of record. 508 BOILERMAKERS, LOCAL LODGE 732 military leave. On July 6 he observed for the first time his name listed among those employees whose dues had be- come delinquent as of July I. This notice, containing two columns of names, was the list which had been attached to the June 29 communication from Lajeunesse to the Com- pany, and when White observed it, the list was posted in the machine shop near the tool pickup site. Neither Dunn nor Talley observed any July I dues delinquency list con- taining their names. Immediately after finishing his shift in the afternoon of July 6, White purchased a money order in the amount of $17.50 and dispatched it to the Union. The money order, dated July 6, came to the attention of Kathy Kleamovich on July I 112 c. The July suspensions (I) Talley reacts Soon after 10 a.m. on July 7, Godwin spoke with Talley and informed Talley that he was being terminated."3 Talley and Godwin conversed concerning the role of the Union in the termination, and Talley asked what he should do about his impending severance. Godwin told Talley to contact the Union. Talley immediately placed a telephone call to the Union's office and spoke with Kathy Kleamovich. He asked to speak with Lajeunesse but was informed he was not in. Kleamovich asked if she could be of assistance to Talley, and Talley answered in the affirmative, telling her that he had been told that he was being terminated at the end of the day because he was behind in his dues. Talley informed Kleamovich that he did not have sufficient money to make a dues payment that day, but that he 2 The credited testimony of William White, Oscar Dunn, Ras mond I al- ley, and Kathy Kleamovich establishes the foregoing In crediting the iesti- mony of Dunn and Talley to the effect that they did not observe any July I delinquency list containing their names, I have considered not only their affirmative testimony to this effect, but the testimony of record suggesting that the posted monthly lists were not given uniform deference and scrutiny by all employees and members. In crediting White's testimony that he had purchased and dispatched a money order to the Union on July 6. I have rejected the inference of Kleamovich's testimony to the effect that because it was not received in the Union's office until July I I. White's July 6 money order had been held by White for a period of time following its purchase Initially, I conclude from my observation of White as he appeared before me as a witness and testified concerning the dispatch of the July 6 money order, that he was testifying honestly, and I credit him. Moreover. I discern no reason why White would expend the money for the purchase of a money order to meet his dues obligation and then delay in dispatching it to serve its intended purpose. Moreover, Kleamovich was not questioned by Respon- dent's counsel as to the procedures followed in the office for recording dues payments received through the mail, and Kleamovich was not otherwise specific in delineating the basis of her recollection as to the date of receipt of White's money order. I find no basis for rejecting Kleamovich's testi- mony insofar as it stands for her present recollection of the date on which she first observed the money order which White had dispatched, but I other- wise find White's affirmative testimony more reliable in establishing the date of dispatch. The testimony of White to the effect that he was told by Ray Robles prior to going on military leave that he could defer payment of his dues until he returned is not credited. White's testimony on cross-examination with re- spect to this conversation, considered together with the content of his pretn- al affidavit, requires this credibility resolution and convinces me that White was inaccurate in his recollection and sought to rationalize this aspect of his testimony. 13 It appears this was a chance meeting, and Godwin did not Initiate it. would be in the following day to pay his dues as soon as he secured his paycheck. Kleamovich answered that that would be too late.'4 Talley knew when he spoke to Kleam- ovich that he had not paid his dues for May and June and that this would result in a delinquency and render him vulnerable to termination." (2) The terminations accomplished Subsequently, at approximately I p.m., Ed Nichols, a supervisor, assembled a group of employees comprised of Dunn, Talley, White, and two other employees, and in- formed them that the)' were being terminated at 4 p.m. at the conclusion of the workday because they had become delinquent in their dues. ,3) White responds Immediately thereafter White spoke with John Fletcher, Jan Helsel. and Ray Robles, union stewards. He informed Fletcher that he had been given a termination notice. White told Fletcher that he had been on military leave and had been unable to transmit his dues. Prior to going on leave, White had notified Ray Robles that he had been called to military duty and would be on leave. Fletcher placed the phone call and reported back, telling White that nothing could be done. Thereupon, White went to Nichols and requested that his termination be made effective at 2 p.m. White's request was granted. Upon leaving the premises at 2 p.m., White went to the union hall and spoke with Kathy Kleamovich. White stat- ed that he had been terminated and was upset about it. He requested to see Lajeunesse, who was not in. White waited for a period of time, but Lajeunesse did not return and eventually White left the offices.' Later in the afternoon, however, White spoke with La- jeunesse by the telephone. He informed Lajeunesse that he had dispatched a $17.50 money order to the Union in pay- 14The foregoing is based upon the credited testimony of Raymond Ial- le). Although Fred G;odwin did not testify concerning any consersatlon with Talley. I find no significant basis for disbelieving ralley's testimony concerning the information imparted to him by Godwin. The testimony of Kathy Kleamovich is in no manner inconsistent with that of 'alley. and she did not specifically dens speaking with lalley on July 7. I I do not credit Talley's testimony to the effect that he believed when he spoke with Kleamovich that his May dues had been remitted by a money order obtained by his girlfriend. Tallev's testimony in this regard was not convincing. In any event, there Is insufficient basis for challenging the accu- racy of the testimony of Kathy Kleamovich concerning the actual dues status of Talley in May and June. as reflected by Respondent's records. On the basis of testimony elicited from Talley on cross-examination, I find that he was aware in May and June that failure to pay dues for 2 successive months would result In delinquency. In reaching credibility resolutions adverse to Tally with respect to this aspect of his testimony. I have considered the conflicting testimony of Tal- ley and Kleamovich with respect to a conversation between them which transpired several months after Talley's terrmnation. While there is basis In logic and plausibility for doubting the accuracy of Kleamovich's recollec- tion to the effect that during this conversation, Talley conceded that his earlier termination had been his own fault, and he was pursuing the instant charge in order to obtain money to purchase a home. Talley's own testi- mony concerning the content of his post-termination conversation with Kleamosich did disclose a tendency on Ta!!ey's part to rationalize and prof- fer explanations which materially militated against his credibility ie The testimony of William White establilhes the foregoing 509 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment of his dues and further stated that he had been termi- nated. As a result of the discussion, Lajeunesse told White that if he could persuade the Company to rehire him, he, Lajeunesse, would accept White's $17.50 dues payments. Thereupotn, White called Godwin and spoke to him con- cerning the matter. He made an appointment for the fol- lowing day for the purpose of a meeting between Godwin, Lajeunesse, and White. White called Lajeunesse and in- formed him of the meeting arrangements. White went to the company premises at the appointed time on July 8, but Lajeunesse was not there. Attempts were made to contact Lajeunesse, but he could not be reached. As a result, God- win and White went to Respondent's premises and spoke with Ramsey, president of the Union, and explained the circumstances surrounding White's termination.17 Ramsey gave his verbal approval to White's return to work. Thereafter, Godwin spoke to a departmental assistant supervisor in an effort to determine whether White's ser- vices could be used during the weekend. White was in- formed there was no need for his services over the week- end, and Godwin instructed White to report the following Monday morning at 7:30 a.m. White did so but was told by the assistant personnel manager, Elton Phillips, that the Union had called on Friday evening and had stated that under no circumstances was White to return to work. White was refused employment. After the passage of several days, White again talked to Lajeunesse by telephone and was told by Lajeunesse that there was nothing he could do to resolve the matter involv- ing White's suspension from the Union and his termina- tion. A week or two later, White again spoke with John Fletcher who informed White that if he remitted a rein- statement fee of $125 to the Union, the money would be held and White could then seek reemployment from the Company. Fletcher asserted that he would have a civil suit if the Company refused to reemploy him. White stated that he would not make such a remittance.' (4) The response of Dunn Soon after learning from Ed Nichols that he was being terminated for nonpayment of union dues, Dunn, together with White, as found, met with Chief Steward Fletcher and stewards Jan Helsel and Ray Robles. Dunn informed the union representatives that he was only I month behind in his dues and had earlier requested Helsel to provide him with an envelope in which to dispatch his dues payment. 17 The record does not disclose precisely what Ramsey was told by way of explanation. The foregoing is based upon the credited and undisputed testimony of William White. Neither William Lajeunesse or Union President Ramsey were called to testify. Fred Godwin was not interrogated concerning his role in White's effort to obtain reinstatement in the Union and reemployment. I specifically credit White's testimony that when he first spoke with La- jeunesse in the late afternoon of July 7, Lajeunesse told him, in effect. that he, Lajeunesse, would interpose no objection if White could persuade the Company to rehire him. I infer that this avowal on the part of Lajeunesse was made in light of the equities implicit in White's case, since he had been on leave of absence for the greater portion of the notice posting period, and White's assertion that he had already mailed his dues payment. That Lajeu- nesse took a different tact with Dunn later does not militate against this finding. Robles and Fletcher stated that they could do nothing for Dunn, and Robles inquired if Dunn could pay a $125 rein- statement fee. Dunn replied in the affirmative, and Robles advised him to get in touch with Lajeunesse. Then, on July 8, Dunn spoke with Lajeunesse. Dunn had attempted to contact Lajeunesse the previous day but was unable to reach him. When he spoke with Lajeunesse, Dunn informed Lajeunesse that he had been terminated. Lajeunesse asked if he had a $125 reinstatement fee, and Dunn said that he did. Lajeunesse stated that if Dunn would transmit the payment to the Union, he would be reinstated in the Union and give him a letter to take to his foreman. Dunn contacted Ed Nichols, his foreman, in an effort to learn when he could return to work. Nichols stat- ed that Dunn would have to speak to the departmental superintendent who was then on vacation and would be returning in a few days. In due course, Dunn spoke with the superintendent and informed him of his conversation with Lajeunesse. The superintendent, Bill Borinski, stated that, pursuant to the Union's instructions, Dunn could not be rehired for 60 days. Borinski refused to rehire Dunn before the expiration of the 60-day period. After several efforts to contact Lajeunesse by telephone, Dunn reached Lajeunesse the following day and told Lajeunesse what Bo- rinski had stated. Lajeunesse responded, "Well, okay; keep in touch." 19 Dunn had not paid his dues for May or June, nor had he dispatched a payment for July dues prior to his termination on July 7. He had spoken to Jan Helsel on June 5 and had requested Helsel to provide him with an envelope in which to dispatch his July dues. No envelope was provided. 20 d. The December suspensions (I) The December I list On December 1 Kleamovich prepared a list of members who had not paid their dues for October and November. Byron Gizoni and Roy Fillingame were included in the list. Both Gizeni and Fillingame were on layoff status due to 19 The foregoing is based upon the creidted and undisputed testimony of Oscar Dunn. Neither William Lajeunesse nor Bill Borinski were called as witnesses to testify concerning their role in this incident. 20 The foregoing is based upon a composite of the credited testimony of Oscar Dunn and Kathy Kleamovich. I have also considered the testimony of John Fletcher and William White insofar as their testimony has a bearing upon conversations involving Dunn in the period of time immediately after Dunn was informed of his impending termination. I do not creidt the testimony of Dunn to the effect that he mailed his dues payment for May and owed dues only for June and July. The records of Respondent, as described and characterized by Kleamovich show no credit for a May payment, and Dunn was unable to produce a money order re- ceipt in support of his testimony that he dispatched a money order in early May in payment of his May dues. There is no record evidence to establish irregularities on the part of Respondent in properly crediting the payments, and there is no basis for concluding that Kleamovich's characterization of the dues status of Dunn was erroneous. Moreover, I do not credit Dunn's testimony to the effect that he was told by Jan Helsel that he could abstain from paying dues for a period of 90 days without becoming delinquent. Helsel denied this statement attributed to him by Dunn and credibly testi- fied that he routinely informed employees that the dues delinquency period spanned 60 days. I am convinced that in attributing this statement to Helsel. Dunn was endeavoring to rationalize his failure to timely pay dues for May. June. and July. and this factor casts additional doubt upon Dunn's credibili- ty. 510 BOILERMAKERS, LOCAL LODGE 732 lack of work, and Respondent had knowledge of their lay- off status. On December 13 a letter was dispatched to the Company by Respondent advising the Company as fol- lows: Please be informed that after due notification, the be- low listed members of Local Lodge 732 and employees of Triple "A" South have refused to pay, have lapsed in their dues, and are not eligible for recall. Gizoni and Fillingame, together with 31 other employees, were listed as falling into the specified category, Neither Gizoni nor Fillingame had made dues remittances for Oc- tober or November. (2) The terminations Pursuant to normal procedure, upon receipt of the De- cember 13 correspondence, Godwin took the latter to Oui- da Gizoni, a personnel clerk in the employ of the Company and mother of Bryon Gizoni, and instructed her to dis- patch letters to the employees listed in the December 13 communication advising the employees that they were not eligible for recall. Upon observing her son's name on the list, Ouida Gizoni requested John Fletcher's permission to write a check in an amount sufficient to cover the lapsed dues and Fletcher stated she could do so and told her to write the check in the amount of $17.50. Fletcher accepted the check and took it to the office of Respondent and sub- mitted it. Lajeunesse stated that he could not accept the check and told Fletcher to return it. Fletcher did so. Thereafter, on December 16, the Company dispatched letters to each of the 33 employees listed in the December 13 communication from the Union. The letter advised the employees that they were no longer eligible for recall be- cause the Company had been notified by the Union that the employee to whom the letter was addressed had lapsed in his dues and was no longer in good standing with the Union. The letter contained a further paragraph as fol- lows: We regret that as of 14 December, 1977 your name has been removed from the seniority list and all se- niority and recall rights terminated. Absent a loss of status with the Union, Gizoni would have been recalled on January 5, 1978, and Fillingame dur- ing the first week of January 1978. Neither was recalled in the order of their previously held seniority positions. Neither Gizoni nor Filling game offered to pay the rein- statement fee of $125 in December, but each was reinstated in the Union in January and thereafter paid reinstatement fees.21 Neither Gizoni nor Fillingame received any dues delin- quency notification from Respondent either before or fol- lowing receipt of the December 16 letter from the Compa- ny, although Kathy Kleamovich testified, in effect, that on December I she had dispatched letters to all members in 21 The foregoing is based upon the credited testimony of Bryon Gizoni. Roy Fillingame, Fred Godwin. and Ouida Gizoni. I credit the testimony of Kathy Kleamovich onl) to the extent that it is consistent with the foregoing findings. layoff status as employees of the Company advising them that they were delinquent in their October and November dues and that if dues payments were not received in the amount of $17.50 within 10 days from the date of the letter, suspension from membership and termination from em- ployment would result. Both Gizoni and Fillingame credi- bly testified that they received no communication of the type described by Kleamovich although they were receiv- ing mail at the time in question at addresses reflected in the records of Respondent. Kleamovich testified that she dis- patched the letters by regular mail, she retained no file copies of the letters, and none of the letters were returned as undeliverable. 2 Conclusions The threshold question in this proceeding is whether Re- spondent dealt fairly with the Charging Parties herein, and each of them, in enforcing the union-security provision of the collective-bargaining agreement. A resolution of this question involved an analysis of whether Respondent ac- corded reasonable notice to each of the Charging Parties of a type and character which would apprise them of their dues obligation, including the amount of their arrearages, the period of time covered by the arrearages, or the method used in computing the arrearages; and which would pro- vide also an adequate opportunity to make payment of the alleged arrearages. I find that Respondent failed to accord reasonable notice to White, Gizoni, and Fillingame, but did so with respect to Dunn and Talley. Beyond this foun- dational issue, however, there remains the question of whether Respondent gave fair and evenhanded enforce- ment to its dues payment requirements, as those require- ments were implemented and applied to the Charging Par- ties. I find that it did not and that Respondent must be held to have violated Section 8(b)(1)(A) and (b)(2) of the Act by virtue of its conduct toward each of the Charging Parties separately. The principles controlling the initial issue herein are well and cogently summarized by Adminstrative Law Judge Jennie M. Serrica in her Decision in Jo-Jo Management Corp. d/b/'a Gloria's Manor Home for Adults, 225 NLRB 1133, 1143 (1976), affirmed by the Board. In her Decision, Administrative Law Judge Serrica stated: With respect to the alleged violations of Section 8(b)(l)(A) and 8(bX2), the Board and courts have held that a union seeking to enforce a union-security provi- sion against an employee has a fiduciary duty to deal fairly with the employee affected. At an minimum this duty requires that the union inform the employee of his obligations in order that the employee may take 22 I find on the basis of the testimony of Gizoni and Fillingame that they did not receive the letters described by Kleamovich. I conclude that from their testimony and the credited testimony of Joseph Edgel. an employee and member similarly situated to Gizonl and Fillingame. that no letters of the type described by Kleamosich were, in fact, dispatched to all members of the Union in layoff status who had failed to remit dues payments for October and November. Edgel credibly testified he received no letter from the Union, even though he. like Gizoni and Fillingame. was in layoff status in December and received a December 16 notification from the Company terminating his seniority and recall rights for loss of good standing with the Union 511 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whatever action is necessary to protect his job tenure. Further, where the protection of an individual employee's right to continued employment is to be balanced against the statutorily restricted rights of the union to enforce a union-security agreement requiring membership as a condition of employment, a union must show that it had dealt fairly with the employee and given him clear notice of what is required of him. Absent such a demonstration, the individual's right must be held paramount and protected. Under well- established decisional principles, a union's fiduciary duty to advise employees regarding their contractually specified obligation requires positive action, without regard to an employer's concurrent obligation to pro- vide such notice, or any information the employee may have been provided through fellow employees. An employee is not presumed to be on notice as to the extent of his obligations to the union. For all essential purposes, the cases cited by Administra- tive Law Judge Serrica in support of her analysis comprise a comprehensible body of applicable precedent. Included therein are the decisions of the Board in Hotel, Motel & Club Employee's Union, Local 568, AFL-CIO (Philadelphia Sheraton Corporation), 136 NLRB 888 (1962), enfd. 320 F.2d 254 (3d Cir. 1963), and Rocket and Guided Missile Lodge 946, International Association of Machinists and Aero- space Workers, AFL-CIO (Aerojet-General Corporation), 186 NLRB 561 (1970), relied on by the General Counsel in support of his theory of the complaint. It is within the guidelines of the principles and decisional precedent delin- eated in the Gloria's Manor Home case that a proper resolu- tion of the instant matter rests. As a predicate to the decision herein, it is essential to find, as I do, that each of the Charging Parties subsequent to being accepted into membership in the Union, was ap- prised in writing of his obligation to pay monthly dues as a condition to retaining membership in the Union and con- tinuing his employment in the bargaining unit. This was accomplished through the content of the documents com- prising the information packet distributed to and received by each of them from the Union soon after their initiation into membership. The principal source of information to the new initiates was the letter of welcome, which was couched in simple terms susceptible of easy comprehension by the recipients.23 Each of the Charging Parties was, I find, aware of the obligation to pay monthly dues to the Union in the amount of $8.75. Beyond this, the Union fol- lowed the practice of posting dues delinquency notices monthly in the plant in prominent positions likely to com- mand the attention and interest of employee/members. Each of the Charging Parties, save Dunn, conceded that they had been aware prior to their separation from employ- ment of the Union's practice of posting these monthly no- tices. I find, in point of fact, that Dunn was also aware of the practice for he had been in the employ of the Company '3 The more technical language of the Union's constitution. bylaws, and the collective-bargaining agreement itself, may have been informative, but the Charging Parties are laymen and not lawyers or labor relations special- ists, and they could not reasonably be charged with a comprehension and mastery of the intricacies of those separate documents. for 6 months prior to his separation, and had been accept- ed into membership in the Union some 90 days prior to his termination. I doubt that he was so indifferent to events within the plant, and so uninformed concerning union mat- ters that he ignored the postings and the conversation and reaction that those postings evoked. I do not credit his testimony that he had not been aware of the posting pro- cess. Thus, I find upon the record as a whole, that at relevant times, each of the Charging Parties knew the amount of monthly dues and harbored no uncertainty as to the conse- quence in terms of job tenure and union membership of a 2-month delinquency dues payments. Written information made available to them by Respondent, combined with the posted notices, plant scuttlebutt, and the jobsite grapevine was fully sufficient, I find, to school the Charging Parties in the realities of their dues obligation generally, and the adverse effect upon their job tenure of a dues delinquency. As I comprehend the theory of the compalint, and the contentions raised by the General Counsel in support thereof, it is asseted that, in the circumstances of this case, an obligation rested with Respondent to take the addition- al step beyond the general one above described of notify- ing each of the Charging Parties, in specific terms, of the fact of their dues delinquency, the amount of their arrear- age, and the period of time to which the arrearage related or the method of calculating it, and to accord each of the Charging Parties reasonable opportunity to pay the arrear- age and avoid termination. I find that this was a require- ment and that it was breached with respect to White, Gizo- ni, and Fillingame, but that it was adequately met with respect to Dunn and Talley. Initially, it is reasonable to infer that, while a member/ employee has an affirmative obligation to be attentive to his own dues status, and to exercise a degree of prudence and individual responsibility in avoiding a delinquency which might impair his standing with the union, and threaten his job tenure under a union-security arrange- ment, a labor organization in fulfilling its fiduciary respon- sibility to its members, nonetheless, must of necessity, be held accountable for adhering to notice procedures and processes which in the context of impending dues delin- quency minimize the likelihood of a default in dues pay- ments on the part of one of its members, with a consequen- tial loss of membership and job status through honest error, miscalculation, oversight, or chance circumstances. Conducton Corporation, a subsidiary of McDonnell Douglas Corporation, 183 NLRB 419 425-426 (1970); General Truck Drivers, Chauffeurs, Warehousemen and Helpers Local 270, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Inc. (Bulk Transport, Inc.), 186 NLRB 299, 301 (1970); Hotel, Motel & Club Em- ployees' Union, Local 568, AFL-CIO (Philadelphia Sheraton Corporation), supra. Thus, a labor organization may reason- ably be required to accord members on the verge of delin- quency specific advance notice of a type which defines the amount of their arrearage and the period of time covered by the arrearage, and to give this notice in a written or oral form likely to come to the attention of the member/em- ployee. Teamsters Local Union No. 122, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers 512 BOILERMAKERS, LOCAL LODGE 732 of America (August A. Busch & Co. of Mass., Inc.), 203 NLRB 1041 (1973); see also Local 545, International Union of Operating Engineers, AFL-CIO (Joseph Saraceno & Sons, Inc.), 161 NLRB 1114, 1121 (1966), and cases cited therein at fn. 23; Hotel, Motel and Club Employees' Union, Local 568 AFL-CIO [Philadelphia Sheraton Corp.] v. N.L.R.B., 320 F.2d 254, 258 (3d Cir. 1963), enfg. 136 NLRB 888 (1962). The elements of form, content, timeliness, and no- toriety or "delivery" come into play and are essential ingre- dients of a proper notice, whether transmitted in writing or conveyed orally directly to a member by a steward, officer, or other authorized agent of the union. Nothing in this obligation requires the union to assume the role of a bill collector, to make house calls, or to maintain a constant hotline contact with each individual member. Nonetheless, the nature of the fiduciary relationship is such, and the obligation of the union to act in the paramount best inter- est of its members so fundamental, that an obligation of attentive vigilance would seem to rest with a union requir- ing it to take into account unusual facts and circumstances known to it or fairly chargeable to union knowledge which relate to the duty status of the member, or group of mem- bers, and which would have the foreseeable effect of sub- stantially diminishing, if not extinguishing, the likely re- ceipt of notice under acceptable procedures normally followed by the union for advising or warning members of a pending delinquency. See N.L R.B. v. International Union of Electrical, Radio and Machine Workers, A FL-CIO, Frigi- daire Local 801 [General Motors Corporation], 307 F.2d 679, 683-684 (D.C. Cir. 1962), enfg. 129 NLRB 1379 (1961), 130 NLRB 1286. In a corollary manner, the fiduci- ary responsibility of the union to its members is such, it would seem, as to require reasonable flexibility and even- handed forebearance when a member in the category just described fails in a timely fashion to remit delinquent dues and protect his employment status, but acts promptly after receiving specific notification to remit delinquent dues. See International Union of Electrical, Radio and Machine Work- ers, AFL-CIO (General Motors Corporation), supra, N.L.R.B. v. International Woodworkers of America, Local Union No. 13-433, AFL-CIO [Ralph L. Smith Lumber Co.], 264 F.2d 649, 657 (9th Cir. 1959). By contrast, no obliga- tion of special vigilance or forebearance attaches to mem- bers not of this described category, but this latter postulate assumes that there exists a defined policy and predictable practice on the part of the union which has been uniformly applied to the membership inter se and to the members within the same bargaining unit. If the notice procedures are adequate to meet the test applied by the Board in Ho- tel, Motel & Club Employees' Union, Local 568, AFL-CIO (Philadelphia Sheraton Corporation), supra; and Teamsters Local Union No. 122, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America (August A. Busch & Co. of Mass., Inc.), supra, but the en- forcement procedures are lacking in defined, predictable standards because they are governed by the whims and caprices of the officials charged with responsibility for im- plementing the established policies and procedures, the union, nonetheless, is open to a charge of invidious con- duct. See, e.g., Teamsters Local Union No. 122, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (August A. Busch & Co. of Mass., Inc.), supra, Kling v. N.L.R.B., 570 F.2d 350 (9th Cir. 1978). The facts of each case must, of course, govern the application of these general principles to a specific amalgum of fact. Applying these guidelines to the instant case, I find that the notice accorded Dunn and Talley was sufficient and reasonable when measured against applicable precedent. The notice was timely filed in relation to the July I delin- quency date pertinent in the case of Dunn and Talley, and it purported to allow a period of 8 days prior to the delin- quency date in which to make remittance of May and June dues. The notice was posted in places reasonably proxi- mate to the workplace of Dunn and Talley, and in promi- nent places within the plant, in accordance with the past practice with which both Dunn and Talley were conver- sant. The pertinent notices contained an unambiguous spec- ification of the months for which dues were owed and de- fined the total amount of dues for which a delinquency existed as $17.50. The notice mandated payment on or be- fore the close of business on June 30, and, in direct terms, described the consequences of nonpayment as removal "from the payroll." Interpreting this notice, as I must, in light of the background knowledge possessed by Dunn and Talley concerning the dues obligation generally, I find the content of the notice fully adequate and fair, and sufficient to remove any cloud over its reasonableness. No special circumstances attached to the duty status of either Dunn or Talley as would have foreseeably aborted the notifying ef- fects of the posted notices when applied to either Dunn or Talley. Both were employed in the plant throughout the period of the posting and neither responded in a timely fashion to the mandate of the notice. Respondent correctly contends that personal service of notice of dues delinquen- cy upon members was not essential in the circumstances pertaining. Cf. Granite City Steel Company, 169 NLRB 1009, 1011 (1968). That neither employee/member ob- served the notice was due, I find to no fatal deficiency in Respondent's posting procedures, or in the content of the notice itself, but was due rather to the individual indiffer- ence of Dunn. and Talley. If the matter had rested there, and if Respondent had acted toward Dunn and Talley in a manner consistent with an established, fair dues collection procedure, the propriety of Respondent's actions in enforcing the terms of the con- tract so as to accomplish the termination of both Talley and Dunn from their positions of employment with the Company for reason of dues delinquency would have with- stood legal scrutiny. However, as the record evidence fully demonstrates, it was precisely at this point in time when the whims and caprices of Respondent's officials, particu- larly Lajeunesse, intervened rendering Respondent's subse- quent actions toward Dunn and Talley unlawful. The sum total of record evidence reveals that, in prac- tice, Respondent imposed no fixed cutoff date from month-to-month for accepting payment of dues from members seeking to avoid delinquency. Rather, the proof adduced before me suggests that the practice was a flexible one fully in Lajeunesse's control. Undisputed testimony of Chief Steward Fletcher and Steward Helsel reflects this. Moreover, the record evidence establishes that in July, La- jeunesse unilaterally deferred by I day, until July 7, the 513 DECISIONS OF NATIONAL LABOR RELATIONS BOARD deadline for implementing the contract provisions gov- erning terminations of employees delinquent in their May and June dues; and in December the deadline date for implementing the contract was fixed as the 13th day of the month. This evidence, which stands unrefuted in the rec- ord, requires a finding that, insofar as payment of delin- quent dues was concerned, time was not of the essence and, in the critical area of enforcement of article 7.2 of the bargaining agreement, the esoteric reactions of Lajeunesse prevailed. As modus opprandi of this type receives no stat- utory insulation and is not within the area of legitimate intraunion policy which has traditionally been shielded from the dictates of the Board or the courts. See, e.g., N.L.R.B. v. International Woodworkers of America, Local Union No. 13-433, A FL-CIO, supra. Considering this factor in conjunction with the further evidence adduced by the General Counsel revealing, (I) the out-of-hand refusal of Respondent, through its agents, to counsel on July 6 and 7 with Talley and Dunn, re- spectively, concerning their dues status despite the initia- tives of each to do so; (2) a refusal on the part of Respon- dent to grant Talley a I-day further period of grace for submitting his dues payment; and, (3) the subsequent inter- position of Respondent, once the mandate governing Dunn's termination had been implemented by the Compa- ny, to preclude Dunn's rehire for a period of 60 days, it must be held that the General Counsel established a prima facie showing of a failure on Respondent's part to fulfill its fiduciary responsibility to Dunn and Talley and an in- volvement of Respondent as an affirmative force in their loss of employment status. Clearly, it was essential for Respondent to have adduced evidence to counter the adverse thrust of the General Counsel's proof. No such evidence was forthcoming, and Respondent, for practical purposes, rested its case upon a thesis of adequate notice and evenhanded treatment of all delinquent members, presumably in deference to the legal imperative of equal treatment to all members similarly sit- uated. But, contrary to the Respondent, the record does not support the notion of equal treatment. Rather, there is present a sufficient showing of conduct on the part of Re- spondent's agents toward Dunn and Talley to find, that, with respect to the, Respondent demonstrated a capricous disregard for their interest in maintaining the continutiy of their employment and an arbitrary abandonment of the fiduciary responsibility owed them to deal fairly with them, and all other employees in the bargaining unit, in all mat- ters affecting their job interest and rights as union mem- bers. It is necessary, in my view of the record, to relate this finding to the inferences made more graphic by the unlaw- ful treatment accorded White, Gizoni, and Fillingame, dis- cussed below, and to indulge the inference urged by the General Counsel to the effect that Respondent elevated its manifest interest in collecting reinstatement fees over the proper pursuit and fulfillment of its fiduciary responsibility to its members, and the unit employees which it repre- sented. In sum, I find that Respondent failed in its fiduciary responsibility to unit employees and members Dunn and Talley, and thereby violated Section 8(b)(1)(A) of the Act, and engaged in conduct violative of Section 8(b)(2) by causing, or attempting to cause, the termination of Dunn and Talley, in the circumstances discussed. Moreover, I conclude and find that Respondent violated the same provisions of the Act with respect to White, Gizo- ni, and Fillingame. In this regard, the facts, as I view them, establish, virtually by definition, that Respondent failed to give reasonable notice and adequate opportunity to White, Gizoni, and Fillingame to settle their dues obligation. Re- spondent was officially charged with knowlege of White's approved absence from duty on military leave during the period of June 18 through July 5. White not only mailed full payment of his delinquent dues at first opportunity on July 6, after he first observed a posted notice advising him of his dues delinquency and pending termination, but he immediately undertook, through representatives of Re- spondent to seek equitable treatment at the hands of its agents. He based his request for equitable consideration on his mailed remittance and his absence from the plant on leave during the virtual entirety of the posting period. Clearly, White's case raised, or should have raised, in the councils of Respondent's hierarchy, significant equitable considerations requiring careful deliberation and sympa- thetic response on the part of officials charged with con- ducting the business of Respondent in those aspects deal- ing with its fiduciary responsibilities to members. No such deliberation or consideration was forthcoming, and White's termination and loss of membership standing in the Union resulted. Respondent acted with full knowledge of the facts which clearly removed White's case from the realm of the routine and which differentiated White in a positive manner from any supposed free rider component of the membership. Respondent must be held to have acted unfairly with respect to White in a manner inconsistent with the spirit of the Act. The evasive, divergent, essentially idiopathic conduct of Lajeunesse and Union President Ramsey, augmented by that of Fletcher, chief steward, was antithetic to a rudimentary fulfillment of the fiduciary obli- gation owed White, as a member. In a similar manner, Respondent breached its fiduciary responsibility to Gizoni and Fillingame by failing to give any specific notice to them of their dues delinquency cov- ering the period of October and November. Cf. Local 4012, Communications Workers of America, AFL-CIO (Michigan Bell Telephone Co.), 184 NLRB 166 (1970); FMC Corpora- tion, 207 NLRB 639 (1973). It must be inferred that the reasonable notice requirement established by the Board en- compasses the mandate that a labor organization give full, fair, and timely specific notice to members, like Gizoni and Fillingame, who were in lay-off status and therefore isolat- ed from frequent or periodic contact with stewards and officials of the Union, and outside of the reach also of the normal notice posting procedure. The proof of record, as I have determined it, establishes a failure on Respondent's part to follow procedures calculated to maximize the likeli- hood of timely receipt by Gizoni and Fillingame of the required type of fully explicated notice as would have ap- prised them of the nature and extent of the dues obligation and would have permitted them to take actions necessary to protect their job and seniority rights. Convincing is Gen- eral Counsel's contention that Respondent's failure to in- sure delivery of proper notice to Gizoni and Fillingame 514 BOILERMAKERS, LOCAL LODGE 732 was so imbued with indifference as to raise the inference that Respondent acted as it did, not in protection of an avowedly evenhanded dues enforcement policy, but in futherance, rather, of an invidious scheme to collect rein- statement fees. This conclusion is fully reinforced by Re- spondent's conduct in refusing to accept the proffered re- mittance, made on behalf of Gizoni by his mother, who was in the employ of the Company and who received early notice of Respondent's intention to invoke article 7.2 of the collective-bargaining agreement against Gizoni. Consider- ing the affirmative duty residing with Respondent to in- form employees and members of their dues obligation in specific terms, in context of the obligation possessed by individual members, including those in layoff status, to act responsibly in paying dues in amounts uniformly required as a condition of membership, the balance here must clear- ly be struck in favor of members Gizoni and Fillingame. I find that, by virtue of its conduct towards White, Fil- lingame, and Gizoni, Respondent violated Section 8(bXIXA) of the Act, independently, and in violation of Section 8(bX2) of the Act caused and attempted to cause the Company to terminate White and cancel the recall rights of Fillingame and Gizoni, within the meaning of Sec- tion 8(a)(3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, as set forth in section III, above, occurring in connection with the operation of the Company, described in section 1, above, have a close, inti- mate, and substantial relationship to 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. V. THE REMEDY Having found that Respondent has committed certain unfair labor practices within the meaning of Section 8(bXIXA) and Section 8(bX2) of the Act, it will be recom- mended that Respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act and to dissipate the effects of the unfair labor practices. Having found that Respondent unlawfully caused the Company to terminate the employment of Oscar Dunn, Roy Fillingame, Byron Gizoni, Raymond Talley, and Wil- liam White, within the meaning of Section 8(aX3) and (1) of the Act, I shall recommend that Respondent notify the Company, in writing, with copies to each discriminatee, that it recinds any and all demands made upon the Com- pany that the individuals aforesaid be terminated, and ad- vise the Company, in writing, with copies to each discrimi- natee, that it has no objection to the employment of any or all of the individuals aforesaid in their former or substan- tially equivalent positions of employment in accordance with the seniority position and with all other rights and privileges to which each would have been entitled but for the unlawful conduct of Respondent. I shall further recom- mend that Respondent make whole Oscar Dunn, Roy Fil- lingame, Byron Gizoni, Raymond Talley, and William White, and each of them, for any loss of earnings they may have suffered as a result of their unlawful terminations. with interest thereon. Backpay, in each case, shall be com- puted in the manner prescribed in F. W. Woolworth Com- panv, 90 NLRB 289 (1950), together with interest thereon in accordance with the policy of the Board, set forth in Florida Steel Corporation, 231 NLRB 651 (1977).24 Backpay liabilities shall terminate 5 days after Respondent notifies the Company and the Charging Parties that it has no ob- jection to the full reinstatement or recall of the Charging Parties. Because the violations of the Act herein found to have been perpetrated by Respondent go to the heart of the Act, a broad cease and desist order shall be recommended. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the fol- lowing: CONCLUSIONS OF LAW I. Triple A Machine Shop, Inc., d/b/a Triple A South, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, Local Lodge No. 732, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By failing in its fiduciary relationship to Roy Fillin- game, Bryon Gizoni, and William White, in not according them reasonable notice of their dues delinquency, includ- ing a statement of the precise amount of dues owed, the months for which the dues were owed or a reasonable ex- planation of the method used in computing the amount of dues, and to provide them also with a reasonable opportu- nity to pay the amount of dues owed, Respondent re- strained and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby engaged in unfair labor practices within the meaning of Section 8(bX(1)(A) of the Act. 4. By failing in its fiduciary relationship to Oscar Dunn and Raymond Talley by imposing arbitrary and caprious impediments to the efforts of Dunn and Talley to satisfy their dues obligation, and thus to assure their continued employment in their then present position of employment, and by interposing an objection to Dunn's return to his former position of employment until the expiration of a 60-day period, Respondent engaged in conduct in violation of Section 8(b)(IXA) of the Act. 5. By causing, and attempting to cause the Company to discharge Oscar Dunn, Roy Fillingame, Byron Gizoni, Raymond Talley, and William White, and by additionally interposing an objection to the return of William Dunn to his former position of employment until the expiration of a 60-day period, Respondent engaged in conduct in violation of Section 8(bX2) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 2 See, generall. ISLs Plumbing & Heating Co. 138 NL RB 716 (1962). 515 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER 25 The Respondent, International Brotherhood of Boiler- makers, Iron Shipbuilders, Blacksmiths, Forgers, & Helpers, Local Lodge No. 732, AFL-CIO, its officers, agents, and representatives, shall: i. Cease and desist from: (a) Giving effect to, implementing, or in any manner enforcing a practice which fails to accord reasonable notice to members of their dues delinquency, said resonable oral or written notice to include a statement of the precise amount of dues owed, the month for which said dues are owed, or an explanation of the method used in computing the amount of dues owed, and which, additionally, accords members an adequate opportunity to pay the amount spec- ified as owing. (b) Failing in its fiduciary relationship and responsibilty to members by imposing arbitrary and caprious impedi- ments to the good-faith efforts of members to satisfy their dues obligation. (c) Causing or attempting to cause Triple A Machine Shop, Inc., d/b/a Triple A South, or any other employer, to discharge or discriminate against employees with respect to their tenure of employment or terms and conditions of employment or to apply the union-security provisions of any collective-bargaining agreement to which Respondent is signatory to employees who have not been accorded rea- sonable notice of their dues delinquency, or in an arbitrary or caprious manner inconsistent with the fiduciary respon- sibility owed members. (d) In any other manner restraining or coercing employ- ees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: 25 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. (a) Make whole Oscar Dunn, Roy Fillingame, Byron Gizoni, Ray Talley, and William White for any loss of earnings they may have suffered because of their unlawful loss of status in their former positions of employment by paying to each the sum of money computed in the manner specified in the section of this Decision entitled "The Rem- edy." Backpay liabilities shall terminate 5 days after Re- spondent notifies the Company and the Charging Parties that it has no objection to the full reinstatement or recall of the Charging Parties. (b) Notify Triple A Machine Shop, Inc. d/b/a Triple A South, in writing, with copies to Oscar Dunn, Roy Fillin- game, Byron Gizoni, Raymond Talley, and William White, that it rescinds any request or demand which resulted in the termination of Oscar Dunn, Raymond Talley, and Wil- liam White on July 7 and which resulted in the cancellation of recall eligibility for Roy Fillingame and Byron Gizoni on December 16. Said written notification, with copies to each of the discriminatees aforesaid, shall also advise the Company that Respondent has no objection to the employ- ment of any and all of the discriminatees in their former or substantially equivalent positions of employment with full seniority and other rights and privileges restored as though their employment rights had nver been interrupted. (c) Post at its office and meeting halls, and all other places where notices to members are customarily posted, copies of the attached notice marked "Appendix." 6 Cop- ies of said notice, on forms provided by the Regional Di- rector for Region 21, after being duly signed by Respon- dent's representatives, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to members are customarily post- ed. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Mail signed copies of the notice to the Regional Di- rector for Region 21 for posting by Triple A Machine Shop, Inc., d/b/a Triple A. South, if willing, at all places where notices to its employees are customarily posted. (e) Notify the Regional Director for Region 21, in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. 26 In the event that this Order is enforced by a judgment of the 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." 516