Local 545, Operating Engineers

1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act, as amended. WE WILL offer reinstatement , within 5 days of application therefor , to their former or substantially equivalent positions , without prejudice to their senior- ity or other rights and privileges , to all employees who were on strike on and after May 24, 1965, and had not been replaced as of that date, and WE WILL pay each of them for any loss suffered by him because of our discrimina- tion against him. WE WILL pay to each striker the full amount of vacation pay which accrued to him as of June 30, 1965. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization. FRICK COMPANY, Employer. Dated- ------------------ By------------------------------------------- (Representative ) ( Title) NOTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon appli- cation in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. - This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1000 Liberty Avenue, 1536 Federal Building, Pittsburgh , Pennsylvania 15222, Telephone 644-2977. - Local 545, International Union of Operating Engineers, AFL- CIO (Joseph Saraceno & Sons, Inc.) and William M. Ahles, Sr. Case 3-CB-907. November 16, 1966 DECISION AND ORDER On July 13, 1966, Trial Examiner David S. Davidson issued his Decision in the above-entitled proceedings, finding that Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief. The General Counsel filed exceptions and a memorandum in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and JenkincJ. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, brief, memorandum, and the 161 NLRB No. 100. LOCAL 545, OPERATING ENGINEERS 1115 entire record in this case, and hereby adopts the findings," conclusions, and recommendations of the Trial Examiner, as herein modified. [The Board adopted the Trial Examiner's Recommended Order.] IThe Trial Examiner based his finding of a violation of Section 8(b) (2) and (1) (A) of the Act on Respondent 's failure to give Ahles clear notice as to what was required of him to retain his employment. Although the Trial Examiner found that Respondent had demanded payment of either back dues and a reinstatement fee or a referral fee as a con- dition of Ahles' continued employment , he did not predicate any violation upon such find- ing It is well settled that a demand for back dues and a reinstatement fee, based on a period when there was no statutory obligation to maintain membership as a condition of employment, Is violative of the Act. See Spector Freight System , Inc., et al., 123 NLRB 43, enfd 273 F.2d 272 ( CA. 8), cert. denied 362 U . S. 962. Respondent also had no right under its bargaining agreement or otherwise in the present circumstances to demand a referral fee as a condition of employment Accordingly, we hold that the making of such demands constituted additional violations of Section 8(b) (2) and (1) (A) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On the bases of a charge filed on February 3, 1966, by William M. Ahles, Sr., the General Counsel issued a complaint against Respondent Local 545, International Union of Operating Engineers , AFL-CIO, alleging that Respondent had attempted to cause and did cause Joseph Saraceno & Sons , Inc., to discharge discriminatorily the Charging Party thereby violating Section 8(b)(1)(A) and (2) of the Act. Respondent denies the commission of any unfair labor practices. This proceeding was heard before Trial Examiner David S. Davidson in Utica, New York, on May 26, 1966 . At the close of the hearing , the General Counsel pre- sented oral argument in support of the complaint . The parties were given leave to file briefs, and briefs were filed by the General Counsel and Respondent. Upon the entire record in this case , including my observation of the witnesses and their demeanor while testifying , I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE EMPLOYER Joseph Saraceno & Sons, Inc., referred to herein as the Employer, is engaged as a contractor in the business of general excavation and dirt removal in the vicinity of Utica, New York. During a 12-month period ending March 31, 1966, the Employer, in the course and conduct of its business operations , performed con- struction services within the State of New York, valued in excess of $100,000, pur- suant to a contract sublet by Warren Brothers Roads Company, an enterprise main- taining a place of business in Syracuse , New York. During the same 12-month period, Warren Brothers Roads Company was engaged in the general contracting business throughout the United States, and directly performed services outside the State of New York valued in excess of $25 million. I find that the Joseph Saraceno & Sons, Inc., is an employer engaged in commerce and in operations affecting com- merce within the meaning of the Act and that assertion of jurisdiction is warranted.' II. THE LABOR ORGANIZATION INVOLVED Respondent Local 545, International Union of Operating Engineers, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The, facts William M. Ahles, Sr., the Charging Party, became a member of Respondent in June 1957 and remained a member in good standing until the latter part of 1963. 1 Siemens Mailing Service, 122 NLRB 81 1116 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD At that time he went into business for himself and stopped paying dues to Respond- ent. During June 1965 Ahies visited David Cunningham, representative for Respondent's District 2, ' at Cunningham's office in Utica, New York, to inquire about returning to work as a heavy equipment operator. During this visit they dis- cussed Ahies' status with the Union, and Cunningham ascertained from Respond- ent's Syracuse office the amount of back dues and the reinstatement fee which Ahles owed. Cunningham told Ahies the amount, and subsequently Respondent's Syracuse office sent Ahies a letter, setting forth the same information. Ahies told Cunning- ham that he did not have the money to pay this amount .2 During the month of June, Cosmo Saraceno, president of the Employer, tele- phoned Cunningham, to seek referral of equipment operators for hire by the Employer. Cunningham informed Saraceno that he had no operators in Utica or Syracuse to,refer and suggested that Saraceno get along as best he could until Cun- ningham had men available to refer. Sometime thereafter Saraceno offered Ahies a job running a pan, a kind of _earthmoving equipment, and Ahies took the job.3 At the time Ahles informed Saraceno that, he had been a member, of Respondent but had let his membership lapse and lacked the money to restore himself to good standing. Saraceno told Ahies that if it required money to do so, Saraceno would advance it from his business and deduct it from Ahles' pay.4 Saraceno also told Ahles he would try to straighten the matter out with Cunningham. Subsequently Saraceno spoke to Cunningham about Ahles' status on one occasion. Cunningham told Saraceno that there was quite an involvement, and they agreed to get together to try to straighten ,it out at a later date. Thereafter Saraceno sought on several occa- sions to discuss Ahles' membership status with Cunningham but because of their conflicting commitments to their affairs, the discussion never took place .5 During the summer months, the Employer had several work contracts, including contracts to be performed at Bridgeport, Seneca Falls, and Camden, New York. Ahles was assigned to work first at Bridgeport. When his work on that job was com- pleted toward the end of June, Ahies and other equipment operators ''at the Bridge- port job were moved to the Seneca Falls job. In mid-August, Ahies and other oper- ators were moved from Seneca Falls to the Camden job. Shortly after Ahles started-to work at Bridgeport, he was approached by Joseph Callichia,6 another employee on the job whose status as a representative of Respond- ent is disputed and is discussed below. Callichia asked Ahles if he had a union book. Ahles replied that he had dropped his book a long time ago and that Cosmo Saraceno was going to send a check to the Respondent to get him reinstated and take care of everything. Thereafter Callichia and Ahies moved together from the Bridgeport job to Seneca Falls and then to Camden. During the next 2 months, Callichia and Ahles had an indeterminate -number of conversations about Ahles' status? During June, after Ahies started to work for 'the Employer he received the letter sent him ' by' Respondent as a result of his earlier inquiry to -Cunningham concern- These findings are based on the undisputed portions of the testimony of Ahies and Cunningham . I find it unnecessary to resolve conflicts in their testimony as to this con- versation in order to determine the issue here presented. 3 Ahles had not previously worked for the Employer. * Ahies testified that this conversation occurred at the time he was hired . Saraceno testi- fied that his offer to advance the money for Ahles came about a week after Ahies was hired. This discrepancy is not material and need not be resolved. 5 At some point Saraceno learned the amount of Ahles' indebtedness to Respondent and had a check drawn payable to Respondent for that amount . However, before sending the check to Respondent he was advised that it would be unlawful for him to do so, and he decided not to - send it. 'There is no evidence that Ahies was made aware of this determination. 6 Callichia was also referred to by the men on the job as "Joe Click " and is frequently referred to in the record by that name. '+Ahies testified that he asked Callichia on a number of occasions about his book and that on one occasion Callichia informed him that he understood that Saraceno's check had been received by,the Union. Callichia testified that he asked Ahles a number of times when Saraceno was going to send the check in, and Ahles on one occasion told him that LOCAL 545, OPERATING ENGINEERS 1117 ing his status, setting forth the amount of his reinstatement fee and back dues for the period of his delinquency. Sometime thereafter Ahles brought the letter to the job with him and gave it to Callichia to deliver to Saraceno in Utica because Cal- lichia lived there. On one occasion, after Ahles and Callichia started to work at Camden, Callichia asked Saraceno about Ahies' union status, and Saraceno replied that he would talk to Cunningham about it. On another occasion, at Camden, Cun- ningham visited the job and asked Ahies when he was going to get "squared away" with Respondent. Ahles told Cunningham that Saraceno was supposed to take care of it. Cunningham said nothing in response. On August 18, 1965, at Camden, Ahies ran over a grader while driving his equip- ment out of the motor pool at the jobsite. As a consequence, Stock, the Employer's superintendent at Camden, summarily discharged Ahles.a Thereafter, Saraceno sug- gested to Stock that Ahies should be given another chance because he was a good operator and Saraceno needed him. Stock agreed, and Saraceno rehired Ahles a few days after he had been discharged. On the evening of September 7, 1965, Callichia telephoned Cunningham and asked whether Ahles had gotten himself square with Respondent. Callichia told Cunningham "if he didn't, that the boys are going to refuse to work with him tomor- row ...." 9 Cunningham replied that Respondent had received nothing from Ahles. Cunningham made no response to Callichia's statement that the men would not work with Ahles the next day. The next morning when the operators arrived on the job before starting work, they asked Callichia if Ahles was caught up with the Union. Callichia replied that as far as he knew Ahies had not paid up his dues nor had he paid a referral fee. The other operators then said that they would not work if Ahles did.19 Callichia told the other men to wait while he spoke to Ahles to see if he could straighten the matter out. Callichia asked Ahles if he had paid $27.50 as a "dobie" or referral fee. Ahles replied that he had not, and Callichia asked him if he had $27.50. Ahies said he did not have it. During this conversation Ahles asserted that Saraceno's check had been sent to Respondent, and Callichia replied that he had checked with Cunningham, and the check was not in. Callichia told Ahles that the men would not work with him until he paid up." Ahles reported to Superintendent Stock that the men would not work with him. Stock went to Callichia, who told Stock that the men would not work because Ahies did not have a union book. Stock told Callichia that he would call Cunningham and asked the men to start work in the meantime. They worked for about an hour until interrupted by rain. In the meantime Stock called Cunningham. Stock asked Cun- ningham if he knew that the men would not work with Ahles, and Cunningham replied that Callichia had told him this the previous night. Cunningham told Stock that Ahles was not square with Respondent, that Cunningham had other operators the check had already been sent. Callichia testified further that Ahles also kept asking him if Saraceno had sent the check in and that Callichia replied that he did not know. During Callichia's initial conversation with Ahies , according to Aides, Callichia told him that his lack of a book was all right because there were two other men without books on the job. Callichia did not specifically deny this comment. However , there is no evidence that there were in fact any nonunion men or delinquent members on the job. 8 Stock had not been superintendent at the Bridgeport or Seneca Falls jobs. 6 Callichia, a witness for Respondent, so testified. Cunningham, who pleaded general inability to recall conversations without notes , testified that Callichia said that the men were upset because they were paying dues and Ahies was not and that was the gist of the conversation "more or less." Clearly Callichia's candid testimony is to be credited rather than Cunningham's vague responses. 10 Fedele Mazza, one of the operators on the job , testified that the decision to refuse to work with Aides was made by the men that morning on the spur of the moment . His testi- mony is in conflict with that of Callichia and implausible in the context of the circum- stances otherwise established . I do not credit Mazza where his testimony is in conflict with that of Callichla. 11 My findings as to this conversation are based on a composite of the testimony of Ahies and Callichia between whom there was no material conflict with respect to this conversation. 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD free, that he would send them right to the job, and that it was not the first time he had trouble with Ahles.12 Following this conversation , when rain interrupted the work, Callichia told Stock and Ahles that the men would no longer work with Ahles. Stock then telephoned Saraceno and told him that the men would not work with Ahles on the job. Sara- ceno instructed Stock to let Ahles go. With one minor exception , Ahles was not employed by the Employer thereafter. At all times material, the Employer was a signatory at the collective-bargaining agreement effective from October 1, 1964, to September 30, 1967, between the New York Chapter of the Associated General Contractors of America and several locals of the International Union of Operating Engineers, including Respondent. That agreement provides insofar as material as follows: ARTICLE III-UNION SECURITY 1. It is agreed that on the eighth day following the beginning of employ- ment of a workman or the effective date of this agreement , whichever is later, membership in the Union shall be a condition of employment. The hiring of new. workmen and the discharging of employees upon the request of the Union shall be in accord with the Labor Management Relations Act of 1947, as amended. 2. In hiring new employees , the Employer shall give the Local Union equal opportunity with all other sources to refer suitable applicants. ARTICLE IV-ARBITRATION During the term of this Agreement, neither party shall order or permit any lockout, strike or other work stoppage or slowdown . Further, the union will not aid, support or permit unauthorized strikes, slowdowns or work stoppages by its members. * * * * * * * ARTICLE XIV-STEWARD 1. The Union shall appoint the steward and they shall notify the employer of their selection. The steward shall not be laid off or discharged without the consent of the union. He shall be given sufficient time to perform the duties assigned to him by the Union. At no time between the date of Ahles' hire and his layoff did Ahles make a ten- der.of any payment to Respondent or did anyone else do so in his behalf . Insofar as the record indicates, however, Respondent - notified Ahles only of the back dues and reinstatement fee owed as a result of his having permitted his good standing to lapse in 1963 . There is no evidence that he was notified prior to his discharge of the requirements of article III, section 1 of the agreement or the extent of his obli- gation pursuant thereto. 12 My, findings as to this conversation are based on the testimony of Stock. Cunningham testified that Stock asked him what was going on , and Cunningham replied that he did not know. 'According to Cunningham , Stock then said the men would not work , Cunningham asked why , and Stock replied that Callichia had said that the men would not work with Aides. Cunningham testified that he then said, "Well, Joe called the last night and he wanted to know if Ahles had mailed a check in or anything to get straightened out with the Union and I said no, he hadn 't, not to my office, that I would check in Syracuse the first thing in the morning and see if any check had arrived there." Cunningham denied that he directed , authorized , encouraged , or otherwise was responsible for the stoppage. On cross-examination , Cunningham conceded that he might have told Stock that Ables was not squared away with Respondent and that he had other men at the ball , and finally stated that he was not sure what he told Stock because he fins so many conversations every day and did not remember the conversation with Stock too well. Stock' s version of this conversation , unlike Cunningham's, is consistent with Callichia 's credited testimony that ' he had told Cunningham the night before that the men would not'work with Aides While Stock's testimony otherwise is in conflict with that of other witnesses with respect to some details , he appeared to have no reason to shade his testimony to aid Ahles. On the other hand,' even though Cunningham had a clear interest 'in theoutcome of this proceed- ing, he could not deny Stock 's version of the critical telephone conversation with certainty. Accordingly, I have credited Stock. LOCAL 545, OPERATING ENGINEERS 1119 B. Concluding findings 1. Respondent's responsibility for the threat to stop work and the stoppage on September 8 The General Counsel alleged in the complaint that Callichia was a steward for Respondent on the Camden job and an agent of Respondent. Cunningham and Respondent's business representative, Jess Webb, both testified that Callichia was not a steward and that no steward had been appointed by Respondent at the Bridge- port, Seneca Falls, or Camden jobs of the Employer.13 Saraceno testified that he had never been notified by Cunningham that Callichia was a steward. According to Saraceno, employee Fedele Mazza and Callichia, at the outset of work at Camden Saraceno called the operators together and told then that rather than have all the men deal directly with him or Stock when they had complaints, they should con- sider Callichia as their spokesman and channel any complaints through him. Accord- ing to Saraceno this was mutually agreed between him and the men on the job. The evidence shows that Callichia acted as spokesman for the men whenever they had complaints and checked the union books of other employees on the job. Although Superintendent Stock usually called Cunningham directly when he needed operators referred from the union hall, on two occasions Stock told Callichia he needed men, and men were referred by Respondent.14 Cunningham was aware that Callichia discussed some of the complaints of the men on the job with the Employer as they arose, and if there was trouble on the job or if Callichia discovered a man on the job without a union book, he usually called Cunningham. Despite the uncontradicted testimony as to the manner of Callichia's designation as, spokesman for the employees on the Camden job, the circumstantial evidence tends to support the conclusion that Callichia to the knowledge of Cunningham had for all practical purposes assumed the role of steward on the job .15 However, Cunningham's conversations with Callichia on September 7 and with Stock on September 8 make it necessary to decide whether Callichia was an agent of Respond- ent whose conduct when acting as spokesman for the men on the job was gen- erally attributable to Respondent. When Callichia called Cunningham on the night of September 7, he told Cunningham in no uncertain terms that the men would not work if Ahles was not square with Respondent. Cunningham confirmed that Ahles had not paid his obligation and made no response to Callichia's announce- ment of the intention of the men to refuse to work any longer with Ahles. The next morning Cunningham told Stock in response to Stock's inquiry that Callichia had threatened the stoppage the night before , and Cunningham did not disavow the stoppage or its purpose, but instead said he would send other operators to the job. In the light of these facts and Respondent's duty not to permit strikes or work stoppages under its contract with the Employer, I conclude that Cunningham acquiesced in and ratified the stoppage with full knowledge of its purpose . Brewton Fashions, Inc., A Division of Judy Bond,' 145 NLRB 99, 103, enfd. 361 F.2d 8 (C.A. 5); Combustion Engineering, Inc., 130 NLRB 184, 200, enfd. 321 F.2d 807 (C.A. 8). Accordingly, I conclude Respondent is responsible for the conduct of Callichia and the other operators on the job in threatening and engaging in a work stoppage to cause Ahles' removal from the Camden job. 2. The discharge of Ahles It is clear from the events of September 7 and 8 that Ahles' discharge was caused by the refusal of the other operators on the Camden job to work with Ahles and that the refusal was motivated by Ahles' failure to get "square" with Respond- ent or pay a referral fee for the period of time that he worked for the Employer. Absent a lawful union-security agreement, a discharge in these circumstances would clearly be unlawful. It is a matter of affirmative defense to establish that such a clause existed and that the discharge was justified by its terms. The burden of proving this defense lies with Respondent.16 13 They also testified that there were other jobs on which Respondent did not appoint stewards. 14 Stock's credited testimony to this effect was specific and uncontradicted. 15 See International Brotherhood of Teamsters, Local 182 ( Lane Construction Co ), 111 NLRB 952. 28 Operative Plasterers' etc. Local No. 2 (Jones & Jones, Ino.), 149 NLRB 1264, 1281-82. 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The union-security clause in Respondent's agreement with the Employer was lawful.17 However, I conclude that Respondent has not established that Ahles' dis- charge was justified by the contract. Before September 8, the only sum which Ahles was ever told was necessary for him to pay to get "square" with Respondent consisted of a reinstatement fee and back dues for the period of approximately 2 years that he had failed to pay dues. Respondent was not entitled to insist upon payment of that amount as a condition of Ahles' employment.18 While Ahles was given the alternative on September 8 of payment of a referral fee, Respondent also had no right under its agreement or otherwise to require payment of a referral fee as a condition of Ahles' continued employment. Thus, unlike Simmons Com- pany, 150 NLRB 709, 712, in this case Ahles was not given a choice between pay- ing what the Union's constitution required for good standing and what the contract required as a condition of employment. Neither amount requested of Ahles could have lawfully been required as a condition of employment. Respondent contends that its demand of Ahles' discharge was justified because Ahles had no intention to pay anything to Respondent, regardless of what Respondent demanded.19 However, the evidence shows that Ahles, who initiated discussion of his reinstatement with Cunningham even before becoming reemployed within Respondent's jurisdiction, desired to restore himself to good standing but was hampered by the magnitude of his accumulated delinquency. After his employment by the Employer, insofar as the record indicates, Ahles believed that Saraceno would pay his obligation to Respondent and deduct it from his pay. As Callichia conceded, although Callichia at times asked about the pay- ment prior to Ahles' discharge, Ahles also inquired of Callichia whether Saraceno's check had been received by the Respondent. Although Ahles might have done more to insure his reinstatement to good standing, in these circumstances, particu- larly in the absence of notice to Ahles of his contractual obligation as next dis- cussed, I cannot conclude that Ahles was determined to ride free whatever the consequences. Respondent contends further that its defense is established by the clear evidence that during the entire period of Ahles' employment by the Employer, Ahles made no tender of any kind to Respondent29 I agree with Respondent that Ahles made no tender to Respondent, but I do not agree that this fact is determinative. The union-security provision in the contract gave Respondent the right to require that Ahles become a member of Respondent to the extent of tendering an initia- tion fee and dues. But before Respondent could enforce that right by demanding Ahles' discharge, Respondent had a duty to notify Ahles what his obligations under the contract were 21 In this case before Ahles was employed by the Employer, Ahles ascertained what was necessary for him to regain good standing in Respondent, and Respondent by letter confirmed that obligation. Ahles as a member who permitted his member- ship to lapse may well be charged with knowledge of the extent of his member- ship obligation under Respondent's constitution. However, there is no evidence 17 Sections 8(a) (3) and (f) of the Act. 1s Spector Freight System, Inc., 123 NLRB 43, enfd. 273 F.2d 272 (C.A. 8), cert denied 362 U.S. 962; Yellow Cab Co., 148 NLRB 620; Teamsters Local Union No. 174 (Con- solidated Fruit & Produce Company), 149 NLRB 1570. 10 See Great Lakes District, Seafarers International Union of North America, AFL-CIO ( Tomlinson Fleet Corporation ), 149 NLRB 1114. 20 Whether Ahles' date of hire for purpose of computing the grace period provided by the union-security clause in the agreement be considered the date of his original hire in June or the date of his rehire in August, it is clear that more than 8 days had elasped since Ahles' employment. Thus, there is no question that the grace period provided in the contract had run, and if Ahles had an obligation to make a tender, absent other considera- tions, efforts to enforce it would not have been premature. 21 Associated Transport, Inc., 156 NLRB 335. See also Philadelphia Sheraton Corpora- tion, 136 NLRB 888, 896, enfd. 320 F.2d 254 (C.A. 3) ; Local 98D, International Union of Operating Engineers, AFL-CIO (Construction Field Surveys, Inc.), 156 NLRB 545. I cannot agree with Respondent's contention that the principles established in these cases are inapplicable because no tender or effort to make a tender was made by Ahles. There was no tender attempted in Associated Transport, Inc., supra, and indeed until an em- ployee is notified that he has a contractual obligation to make a tender, there is no reason why he should attempt to make one to avoid loss of his job. LOCAL 545, OPERATING ENGINEERS 1121 that Ahles ever was notified that the contract between Respondent and the Employer required Ahles to pay an initiation fee and dues within 8 days after employment as a condition of employment or that the payment of such amounts, as distinguished from the reinstatement fee and dues required to restore him to good standing, would suffice to preserve his employment. Thus, although Ahles knew and was chargeable with knowledge of his membership obligations as an internal union affair, Ahles did not know nor should he have known the extent of his obligation as a condition of his employment. Had notice of that obligation been given Ahles, he might well have treated the matter with a sense of urgency rather than permitting it to pend while waiting for Saraceno to advance payment of his full membership obligation for him. Had he been notified that an initiation fee and current dues were required to preserve his employment, he might well have arranged to pay that obligation immediately. Having never notified Ahles of the existence and extent of his obligation under the collective-bargaining agreement, Respondent could not lawfully seek his discharge for failure to satisfy it 22 As the decisions of the Board and the courts make clear, where the protec- tion of an individual employee's right to continued employment is to be balanced against the statutorily restricted right of a union to enforce a union-security agree- ment requiring membership as a condiditon of employment, a union must show that it has dealt fairly with the employee and given him clear notice of what is required of him. Absent such a demonstration the individual's rights must be held paramount and protected.23 Such a demonstration is absent in this case. Accord- ingly, I find that Respondent violated Section 8(b)(2) and (1)(A) by causing the Employer to discharge Ahles. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Employer's operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(b)(2) and (1)(A) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action, which action is necessary to remedy and remove the effects of the violation and to effectuate the policies of the Act. As I have found that Respondent unlawfully caused the Employer to dis- charge William M. Ahles, Sr., I shall recommend that Respondent notify the Employer that it has no objection to his reinstatement and that Respondent make him whole for any loss of pay he may have suffered by payment to him of a sum of money equal to what he would have normally earned from the date of his dis- charge until the date of Respondent's notice to the Employer, less net earnings during said period, to be computed on a quarterly basis in accordance with the 22 As I observed at the close of the hearing, the record before me does not disclose any basis to compare the sum which Ahles had been told was necessary to put him in good standing with the sum necessary to put him in compliance with the agreement. However, I am satisfied that this omission does not detract from the indicated result In the first place, as already stated, there is no evidence that Ahles was ever informed that payment of dues and an initiation fee was a condition of employment. Therefore, even if an initiation fee and dues since his employment amounted to as much as a reinstatement fee and back dues, Ahles had no reason to believe that nonpayment or delay in payment would cost him his job, and the amount requested of Ahles' is immaterial. Second, as set forth above the burden is on Respondent to show that Ahles' discharge resulted from a lawful application of its union-security clause Thus, even if it were material that the two amounts were equivalent, it was Respondent's burden to establish the fact. 23 See footnote 21, supra. See also N.L.R.B. v. International Union of Electrical, Radio and Machine Workers, AFL-CIO, 307 F.2d 679, 683 (C.A.D.C.), cert. denied 371 U.S. 936; N.L.R.B. v. Aluminum Workers International Union, Local No. 135, 230 F 2d 515, 520 (C.A. 7) ; N.L.R.B. v. International Woodworkers of America, 264 F.2d 649, 657-658 (C.A. 9), cert. denied 361 U.S. 816 264-188-67-vol. 161-72 1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD formula established in F. W. Woolworth Company, 90 NLRB 289, together with interest thereon at the rate of 6 percent per annum 24 CONCLUSIONS OF LAW 1. Respondent Local 545, International Union of Operating Engineers, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. Joseph Saraceno & Sons, Inc., is an employer engaged in commerce or opera- tions affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. 3. By causing Joseph Saraceno & Sons, Inc., to discriminate against William M. Ahles, Sr., in violation of Section 8((a) (3) of the Act, the Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the mean- ing of Sections 8(b)(2) and (1)(A) and 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and pursuant to Section 10(c) of the Act, I hereby recommend that the Respondent, Local 545, International Union of Operating Engineers, AFL-CIO, its officers, agents, and representatives, shall: 1. Cease and desist from: - (a) Causing or attempting to cause Joseph Saraceno & Sons, Inc., to discriminate against William M. Ahles, Sr., or any other of its employees, in violation of Section 8(a)(3) of the Act. (b) In any like or related manner restraining or coercing employees of Joseph Saraceno & Sons, Inc., in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment in accordance with Section 8(a)(3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action, which is necessary to effectuate the policies of the Act. (a) Notify Joseph Saraceno & Sons, Inc., in writing that it has no objection to the reinstatement of William M. Ahles, Sr., and furnish the said employee with a copy of such notification. (b) Notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accord- ance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (c) Make whole William M. Ahles, Sr., for any loss of pay which he may have suffered as a result of the discrimination against him in the manner set forth in the section of the Decision above entitled "The Remedy." (d) Post at its offices at Utica and Syracuse, New York, and at all other places where it customarily posts notices to its members copies of the attached notice marked "Appendix A." 25 Copies of said notice, to be furnished by the Regional Director for Region 3, after being signed by a representative of the Respondent, shall be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where the Respondent customarily posts notices to its members. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Deliver to the Regional Director for Region 3, signed copies of the said notice in sufficient number to be posted by Joseph Saraceno & Sons, Inc., the Employer being willing. 24 Local 98D, International Union of Operating Engineers , AFL-CIO ( Construction Field Surveys, Inc.), 156 NLRB 545; Isis Plumbing & Heating Co, 138 NLRB 716, set aside on other grounds , 322 F.2d 913 (C.A. 9). 25 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Oider of a Trial Examiner" In the, notice. In the further event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for,the, words, "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order." DANLY MACHINE SPECIALTIES, INC. 1123 (f) Notify the said Regional Director, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith 26 26 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director, in writing, within 10 days from the date of this Decision, what steps the Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL MEMBERS OF LOCAL 545 INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT cause or attempt to cause Joseph Saraceno & Sons, Inc., to discriminate against William M. Ahles, Sr., or any other of its employees in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees of Joseph Saraceno & Sons, Inc., in the exercise of their rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment in accordance with Section 8(a)(3) of the Act, as modified by the Labor Management Reporting and Disclosure Act of 1959. WE WILL notify Joseph Saraceno & Sons, Inc., in writing, that we have no objection to the reinstatement of William M. Ahles, Sr., and we shall furnish the said employee with a copy of such notification. WE WILL make whole William M. Ahles, Sr., for any loss of pay he may have suffered by reason of the discrimination against him. LOCAL 545, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If members have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, Fourth Floor, The 120 Building, 120 Delaware Avenue, Buffalo, New York 14202, Tele- phone 842-3112. Danly Machine Specialties, Inc., Employer-Petitioner, and Inter- national Union of District 50, United Mine Workers of America, Petitioner, and Local 134, International Brotherhood of Electri- cal Workers, AFL-CIO. Cases 13-RC-10875 and 13-RM-839. November 16, 1966 DECISION AND DIRECTION OF ELECTION Upon separate petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, a consolidated hearing 161 NLRB No. 84.