McDonnell Douglas Corp.

CONDUCTRON CORPORATION 419 Conductron Corporation , a subsidiary of McDonnell Douglas Corporation and Paul V. Hinkle, Aerospace District Lodge No . 837, International As- sociation of Machinists and Aerospace Workers, AFL-CIO (Conductron Corporation , a subsidiary of McDonnell Douglas Corporation ) and Paul V. Hinkle. Cases 14-CA-5090 and 14-CB-1920' June 16, 1970 DECISION AND ORDER BY MEMBERS MCCULLOCH, BROWN , AND JENKINS aminer 's credibility resolutions are not contrary to the clear preponderance of all the relevant evidence and , accordingly , find no basis for distrubing them Standard Drv Wall Products , Inc , 91 NLRB 544, enfd 188 F 2d 362 (CA 3) 2 Modify paragraph 2(a) of the Recommended Order directed against Respondent Conductron Corporation to read as follows Offer Paul V Hinkle immediate and full reinstatement to his former job or , if that job no longer exists , to a substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges and invoke such powers or rights as it may have , arising out of its rela- tionship with McDonnell Douglas Corporation , to insure its coopera- 'ion in effectuating the terms of this Recommended Order Modify the last indented paragraph of Appendix A to read as follows WE WILL offer to Paul V Hinkle immediate and full reinstatement to his former job or , if that job no longer exists , to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed , and make him whole for loss of pay he may have suffered as a result of the discrimination against him On March 4, 1970, Trial Examiner David S. Davidson issued his Decision in the above-entitled consolidated proceeding, finding that the Respond- ents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirm- ative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, both Respondents filed timely exceptions and briefs in support thereof, to the Trial Examiner's Decision. 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 powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made 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 and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommenda- tions. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that Respondent Conductron Corporation, St. Charles, Missouri, its officers , agents, succes- sors, and assigns, and Respondent Aerospace Dis- trict Lodge No. 837, International Association of Machinists and Aerospace Workers, AFL-CIO, Hazelwood , Missouri , its officers, agents, and representatives , shall take the action set forth in the Trial Examiner 's Recommended Order.2 ' The findings and conclusions of the Trial Examiner are based in part upon his credibility determinations to which Respondents have objected After a careful review of the record herein, we conclude that the Trial Ex- 183 NLRB No. 54 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE DAVID S. DAVIDSON, Trial Examiner: The charge in Case 14-CA-5090 was filed by Paul V. Hinkle, an individual, on May 1, 1969, against Conductron Corporation, hereinafter referred to as Conduc- tron.' The charge in Case 14-CB-1920 was filed by Hinkle on October 8, 1969, against Aerospace Dis- trict Lodge No. 837, International Association of Machinists and Aerospace Workers, AFL-CIO, hereinafter referred to as the Union. On October 17, 1969, the Regional Director is- sued an order consolidating the two cases and a consolidated complaint, alleging that Conductron and the Union maintained in effect a collective-bar- gaining agreement pursuant to which the Union caused Conductron to discharge Hinkle without in- forming him of his dues obligations and without af- fording him a reasonable opportunity to satisfy them. The complaint also alleges that despite a protest by Hinkle that he had not been informed of his obligations and had not been afforded a reasonable opportunity to satisfy them, Conductron discharged Hinkle pursuant to the Union's request without investigating and ascertaining the circum- stances underlying the Union's request. The com- plaint alleges that the Union accordingly violated Section 8(b)(2) and (1)(A) of the Act and that Conductron violated Section 8(a)(3) and (1) of the Act. On October 22, 1969, and October 31, 1969, the Union and Conductron filed their respective an- swers denying the commission of any unfair labor practices. In its answer Conductron also denied that it was the Employer of Hinkle. On November 5, 1969, the Regional Director is- sued an amendment to the complaint changing the description of Conductron in the opening para graph to read "Conductron Corporation, a subsidi- ary of McDonnell Douglas Corporation, herein ' The charge as filed named as the employer "Conductron-Missouri, a Division of McDonnell Douglas Corporation " The complaint names the Employer as set forth-in-the case caption above 427-258 O-LT - 74 - 28 420 DECISIONS OF NATIONAL sometimes jointly called Respondent Employer." The complaint was further amended to add para- graphs relating to the business operations of Mc- Donnell Douglas Corporation and to allege that Conductron and McDonnell are affiliated busi- nesses with common offices, owners , directors, and operators who formulate and administer a common labor policy for the aforementioned companies af- fecting the employees of said companies. Thereafter, Conductron amended its answer to deny that McDonnell and Conductron were joint employers , that Conductron was the Employer of Hinkle , jointly or otherwise , and that McDonnell and Conductron were affiliated in the manner al- leged in the complaint. - On December 9, 1969, a hearing was held before me at St. Louis, Missouri . At the close of the hear- ing, oral argument was waived . The parties were given leave to file briefs which have been received from the General Counsel and Conductron. 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 Conductron is and has been at all times material a Missouri corporation with its principal office and place of business located at St. Charles, Missouri, where it is engaged in the manufacture, sale, and distribution of flight simulation equipment and re- lated products. McDonnell Douglas Corporation, hereinafter referred to as McDonnell, is and has been at all times material a Maryland corporation with its principal office and place of business located at St. Louis, Missouri, where it is and has been engaged in research, development, and manu- facture of aeronautics, astronautics, automation, electronics, and allied equipment. During the calen- dar year 1968, a representative period, Conductron sold and shipped products valued in excess of $50,000 from its St. Charles plant directly to points outside the State of Missouri. While no similar commerce facts were pleaded or adduced as to Mc- Donnell, McDonnell is an employer over whom the Board has asserted jurisdiction in the past,' and no one disputes the assertion of jurisdiction. I find that Conductron and McDonnell are employers engaged in commerce within the meaning of the Act and that assertion of jurisdiction herein is warranted. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. 2 International Association of Machinists and Aerospace Workers, District No 9 (McDonnell Douglas Corporation), 171 NLRB No 35 ' Conductron reimbursed McDonnell for wages paid the employees as- signed to Conductron plus overhead and profit factors LABOR RELATIONS BOARD III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. The relationship between Conductron and McDonnell At all times material herein, Conductron em- ployed a number of persons in a variety of capaci- ties other than production and maintenance, and McDonnell furnished from 600 to 800 of its em- ployees on what was described as a "lease" or "rental" basis to perform all production and main- tenance functions for Conductron. These em- ployees remained on McDonnell's payroll' and a part of the overall bargaining unit of more than 10,000 McDonnell employees covered by a con- tract between McDonnell and the Union. Conduc- tron is not a party to the contract. In performance of their duties for Conductron, these employees were supervised by Conductron supervisors, who assigned them work, directed their work, and made recommendations based on the quality of their work. Rules for employees were established by McDonnell but enforced by Conduc- tron supervisors, who imposed discipline in the first instance. Grievances of the employees assigned to Conductron were raised at the first step with Con- ductron supervisors. Thereafter, in the remaining steps of the procedure, grievances were discussed with representatives of McDonnell. Only one witness, Warren Flynn, labor relations manager for McDonnell, was questioned as to the corporate relationship between McDonnell and Conductron. He testified that McDonnell bought its interest in Conductron 4 or 5 years earlier, after Conductron had been in existence for several years, and at the times here material McDonnell owned a controlling interest in Conductron. Flynn did not know whether McDonnell and Conductron had any common officers or directors. McDonnell is one of Conductron's larger customers, but the percentage of Conductron's work done for McDonnell was not known to Flynn. 2. The employment of Hinkle Paul Hinkle, the Charging Party, was hired by McDonnell on or about November 15, 1967, and was assigned to work for Conductron. He con- tinued to work there until October 4, 1968, when he was laid off. Under the terms of the agreement between the Union and McDonnell then in effect Hinkle was required to join the Union after his hire.4 The agreement provided in this respect: ' The contract in effect at the time of his hire expired in January or February 1969, and was replaced by a new contract The union-security provisions were unchanged in the new agreement CONDUCTRON CORPORATION 421 ARTICLE XVIII- UNION SECURITY Section 1 As a condition of employment all employes [sic] subject to the provisions of this Contract shall become and remain members of the Union in good standing. Good standing shall consist only of the payment of dues. The Company shall be required to terminate an employe for non-membership in the Union only if the Union certifies that membership in the Union was denied or terminated solely by reason of the employe's failure to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retain- ing membership in the Union. Section 2 New employes shall, before the expiration of their probationary period (forty (40) working days for all employees except Learner-Helpers who are on probation for sixty-five (65) work- ing days) make application for membership. The agreement also provided for checkoff of union dues upon written request, and that checkoff authorizations shall continue in effect for the dura- tion of the agreement or until a written withdrawal of the authorization is received. At the time of hire, McDonnell gives each new employee a copy of the collective-bargaining agree- ment. Employing personnel tell new employees they are required to join the Union and remain members after completing their probationary period and give them a printed or mimeographed form provided by the Union relating to membership Dbligations. Insofar as applicable herein, the form states.5 Union Membership .... NOTICE FROM District No. 9, I.A. of M. & A. W. Greetings: In accordance with Article XVIII, Sections 1 & 2 of your Union contract you will receive notification from the Company at the end of your probationary period regarding Union membership. If, however, you fall into catego- ries (1) or (2) or (3) listed below, you must take the necessary action to receive the indicated benefits. Please also follow the instructions set forth in categories (4) and (5). (4). UNEMPLOYMENT STAMPS-Any members who, through no fault of their own, are unemployed for a major portion of the month due to layoff, sickness or disability will receive an unemployment stamp for that month at the cost of 50 cents per month, providing they apply to the Union Office within a 3 month period after unemployment.6 At the time of Hinkle's hire, the usual procedures were followed by McDonnell. Following his hire, Hinkle did not join the Union immediately, but waited until he received a notice from McDonnell. The notice, dated January 24, 1968, was on a mimeographed form, and was addressed to his su- pervisor, and indicated that it was from "Labor Relations." It stated:' 1. We have been notified by the Union that subject employee has not complied with Arti- cle XVIII of the Articles of Agreement which requires that, as a condition of employment, all employees subject to the provisions of the Contract shall become and remain members of the Union in good standing. 2. The Union has requested that subject em- ployee be terminated and not permitted to work after 1/26/68. 3. Please arrange for subject employee's ter- mination in accordance with the above. Should subject employee for any reason feel that the Union's request is in error, please have him contact the Union directly at PE 1-0644, im- mediately, so that the matter can be cleared up. Upon its receipt, Hinkle went directly to the union hall and joined the Union.' He was not discharged. At the time Hinkle joined the Union, Hinkle also signed a checkoff authorization, and thereafter Hinkle's dues were withheld from his pay until he was laid off. A new member of the Union is usually given a copy of the International union constitution at the time he joins. Although Hinkle denied that he received one at that time, I find that he had received one prior to his layoff.' 'The form given Hinkle at the time of his hire was supplied by District 9, IAM, which then represented McDonnell employees Later Lodge 837 replaced District 9 as the representative and a new form under its letter- head was used Its contents were somewhat changed , but there is no show- ing that Hinkle was ever given a copy of the new form - "Other categories mentioned are not material herein On the form put out by Lodge 837 to replace the quoted form, the last sentence of the in- troductory paragraph was omitted and the paragraph equivalent to (4) above was unchanged except that the 3-month period was reduced to a 30- day period ' All but the date was printed on the forms " Hinkle 's receipt for his initiation fee was dated January 29, 1968 Hin- kle testified that his delinquency was attributable to confusion on his part as to when his probationary period ended Hinkle testified that he first received a copy of the constitution when they were distributed to employees at work on April 25, 1969, the last day he worked However, the testimony of McClintock and Flynn is convincing that no such distribution occurred , and I do not credit Hinkle in this regard As the constitution which he had was amended and replaced by a later edi- tion around the time of his recall , I conclude that Hinkle had been given a copy of the constitution at some earlier date 422 DECISIONS OF NATIONAL 3. Hinkle 's layoff and failure to maintain his union membership As set forth, Hinkle was laid off on October 4, 1968.10 A letter listing laid-off employees, including Hinkle, was routinely sent to the Union at the time. On October 8, 1968, Hinkle visited the union hall, and spoke to Jacquelyn Forkan, an employee of the Union, asking if he could obtain a withdrawal card from the Union. She replied that he could not because he was unemployed and that he would have to obtain an unemployment stamp. Hinkle agreed, paid 50 cents, and obtained an unemploy- ment stamp for October. According to Hinkle, Mrs. Forkan said nothing further about Hinkle's obligation to obtain unem- ployment stamps thereafter and he did not know that he was required to ask for any more. Mrs. For- kan testified that she had a general recollection of having seen Hinkle before, but could not recall her conversation with him in October. However, she testified that her records indicated that she had received Hinkle's payment for the unemployment stamp, and that her normal procedure was to tell laid-off employees that they have to pay 50 cents for an unemployment stamp, which is due between the 18th and 22d of each month and which they should either bring or mail to the union office. She testified that she also tells them that they are car- ried for 90 days without any payment, but they are dropped at the end of that period if they have not paid." Shortly after his layoff, Hinkle went to California. He did not notify the Union of his change of ad- dress, although he testified that he received a copy of a union newspaper while there. He paid no further unemployment dues. The constitution of the International Association of Machinists and Aerospace Workers provides that delinquency for 3 months in the payment of dues or special levies shall automatically cancel member- ship. It provides also in article G for the issuance of inemployment stamps, upon a charge of 50 cents per month, "for the purpose of aiding members to maintain their good standing." The conditions of issue set forth in article G are:" Sec. 3 Members who, without fault on their part, are unemployed for the major portion of any month, and therefrom suffer a total or pro- portionate loss of earnings, due to separation from employment, layoff or furlough, sickness or disability, are entitled to unemployment stamps for that month and are thereby excused from the payment of regular dues, upon com- 10 At the time of his layoff, Hinkle's supervisor gave him a set of mimeo- graphed sheets entitled "Instructions to Laid Off CBU [Collective Bargaining Unit] employees ," setting forth the rights and benefits avail- able to laid-off employees It contained no reference to union obligations "Mis Forkan testitieo furtner that she usually also tells laid -off em- ployees that if they are recalled to work, they do not serve another proba- tionary period , but must come back into the Union immediately and pay a $35 reinstatement fee if they have not kept their memberships up How- LABOR RELATIONS BOARD plying with the following conditions relating thereto: They shall register their names and addresses in the out-of-work book or communicate with the F.S., S.T., or business representative of the L.L. stating they are unemployed, or sick or disabled, any time within a 3-month period. The matter of reporting is entirely the mem- ber's responsibility. Their monthly dues and assessments must be paid within the 3 month's limit. They -shall make application for the unem- ployment stamps before the expiration of 3 months from the month for which their last dues were paid. The F.S. or S.T. shall place the unemploy- ment stamp in the square of the month next following that of the month in which the last dues stamp was placed. Members who have received unemployment stamps shall, immediately upon securing em- ployment, report to the F.S., S.T., or business representative. Some reference to these obligations appeared in the dues book issued to Hinkle which had various statements printed on the blank pages where stamps were to be affixed. These included: "A good member pays dues promptly .... Lapsed member- ship cancels accumulated benefits ... Don't lose your benefits because you are out of work, Get Unemployment Stamps." In January 1969 Hinkle became 3 months delinquent in the payment of unemployment dues and was dropped from the Union's membership rolls. Although the Union usually sends a letter to delinquent employees notifying them at the time they are dropped, no letter was sent to Hinkle. Ac- cording to Union Secretary-Treasurer McClintock, at the time Hinkle was dropped the Union was on strike, office operations were reduced to a minimum, and no letters were sent to any em- ployees who became delinquent and were dropped during that period. 4. Hinkle's recall from layoff Hinkle was recalled from layott ana returned to work on April 8, 1969. He was again assigned to work at Conductron. Upon returning to work, Hin- kle did not go to the union office to inquire as to his obligation to the Union. However, he testified that after his return to work he spoke to a shop steward on two occasions and asked him what he should do about the Union. According to Hinkle ever, on cross-examination, when asked to restate what she tells laid-off employees , Mrs Forkan did not mention the obligation of a laid-off em- ployee upon being recalled Secretary -Treasurer McClintock also omitted this from his recital of the instructions given the Union 's employees as to what to tell laid-off employees seeking unemployment stamps 1L The abnreviatiuns in the passage set forth stand for Financial Secreta- ry, Secretary-Treasurer, and Local Lodge CONDUCTRON CORPORATION 423 the steward said he would contact the business agent but a few days later said he had been unable to do so as yet, and Hinkle heard nothing further from him. Hinkle conceded that he was aware that he was required to pay dues, but testified that he assumed that the checkoff system was still in effect. After his recall he received two pay checks from which no dues were deducted, but he assumed they would be deducted from the first paycheck of the next 'month in accordance with previous practice. No union representative contacted Hinkle after his recall, and he heard nothing from the Union. According to McClintock, when employees are recalled from layoff, their checkoff authorizations are not automatically reinstated, but they are required to execute new authorizations. McClin- tock testified that ordinarily when the Union receives notice of the recall of a laid-off employee, it attempts to contact him through a business agent to get him back in good standing. However, no agent was instructed to contact Hinkle. McClintock assigned two reasons for the failure to do so. One was that the Union did not receive notice of Hin- kle's recall until April 20, a few days before the time of the month when it customarily sends letters to McDonnell requesting the discharge of delinquent employees. The other was that the busi- ness agents were tied up in the confusion of the strike aftermath and were not notified. 5. Hinkle's discharge On April 22, 1969, the Union sent McDonnell's labor relations manager a letter, stating: The following listed employees have failed to pay their period [sic] dues within the ninety (90) day period, are therefore, no longer mem- bers in good standing in accordance with Arti- cle XVIII of Articles of Agreement between In- ternational Association of Machinists, District No. 837 and the McDonnell Douglas Corpora- tion. There followed a list of 38 names and clock num- bers, including Hinkle's name. The letter con- cluded: The undersigned wishes the Company to un- derstand that if the above listed employees fail to become members of District No. 837 on or before April 25, 1969, they are to be denied employment on the next working day which would be April 28, 1969. The letter was received by McDonnell on April 23, 1969. Following_itc receipt, the labor relations department checked to determine whether any of the employees listed either had left their jobs or had been promoted to jobs out of the bargaining unit. A number of the employees on the list fell in these categories. The Union was notified by telephone that these employees were not subject to discharge. As for the remainder, the identity of their superv:-irs was determined, and each super- visor was called by telephone and instructed not to let the named employees under his supervision work on April 28, unless previously notified by the labor relations department that the employee was paid up.13 Hinkle's foreman at Conductron was given such notice, either directly or through Mc- Donnell's labor relations representative at the Con- ductron plant.'' The record does not indicate when this instruction was transmitted, but Hinkle was given no notice of it by McDonnell or Conductron until April 28.'1 On April 28, when Hinkle arrived at work, Con- ductron Supervisors Michaels and Meyerson ap- proached him and told him that they had a letter from the Union asking for his termination. Hinkle asked if he could call the union hall, and Michaels gave him permission to do so. Hinkle asked Michaels to come with him and witness or wait while he called. They went to a pay station where they were joined by Conductron's production manager, Shaw. Hinkle telephoned McClintock, leaving the door of the telephone booth open. He told McClintock he was being terminated because of the Union's letter and asked why the Union requested his discharge. McClintock explained that he was delinquent because he failed to obtain unemployment stamps while he was on layoff. 16 Hinkle asked if it would be all right for him to come in the next day and pay whatever was necessary to reinstate himself. McClintock told Hinkle that the Union could accept his payment if he was still em- ployed. Hinkle then asked Michaels to take the phone and speak to McClintock, so that McClin- tock could tell Michaels that it would be all right if Hinkle came in to reinstate himself on the following day. Michaels started to take the phone, but Shaw stopped him, stating that a verbal agreement was unacceptable and any agreement had to be in writ- ing. Hinkle asked Michaels and Shaw if he could leave the plant to go to the union hall to straighten the matter out, but they refused him permission." Immediately after terminating his conversation with McClintock, Hinkle told Michaels and Shaw that this was the first he knew of his obligation to pay unemployment dues. He did not recall their response, but immediately thereafter, Hinkle was terminated."' " Flynn also testified that an employee would be permitted to work if he showed his supervisor a membership book showing that he was paid up " According to Flynn the practice followed in April was the same as that followed whenever similar letters were received from the Union " Flynn testified it takes a day or two to locate the employees and to determine if they are still in the unit, leaving time only to telephone the de- partments and instruct them to discharge the delinquent employees " According to Hinkle this was the first he knew that he was supposed to pay for unemployment stamps each month while he was on layoff " Labor Relations Manager Flynn testified employees were allowed to leave to pay dues if they were about to lose their jobs because of delinquen- cy and it was necessary for them to do so to reach the union hall before it closed Although not entirely clear, I construe his testimony to mean that employees were allowed to leave the plant to pay dues if they requested permission to do so before the deadline set in the Union's letter for their discharge " Except for the conversation with McClintock, to which McClintock also testified, only Hinkle testified to these events 424 DECISIONS OF NATIONAL 6. Hinkle's attempts to secure reinstatement On the day after his discharge Hinkle went to the McDonnell labor relations department and was told to speak to a Mr. Firks, one of Flynn's assistants, whom he located by phone at the Conductron plant. Hinkle told him he had been terminated because of the Union's letter. Firks said there was nothing he could do, but suggested that Hinkle talk to union officials. Firks said that if there had been an error on the part of the Union he could possibly get his job back. Hinkle went to the union hall and asked McClin- tock how he could reinstate himself with the Com- pany and the Union. McClintock told him he had been dropped from membership for failure to pay unemployment dues for 3 months, and that he would have to pay a $35 reinstatement fee to regain good standing with the Union. Hinkle said he was willing to pay the fee but believed he should first determine whether he would be reinstated on his job if he paid. McClintock agreed, and Hinkle asked McClintock to incuire as to the possibility of his reinstatement. McClintock telephoned Flynn, out of Hinkle's presence, and asked Flynn to rein- state Hinkle. Flynn reminded McClintock that it was Respondent's policy not to reinstate or rehire employees after they had been discharged.19 McClintock sought to persuade Flynn to make an exception, but Flynn declined. McClintock then in- formed Hinkle that he had called Flynn and that Flynn would not reinstate Hinkle. At McClintock's suggestion, Hinkle next spoke with Union Business Representative Ashcraft. Hin- kle explained to Ashcraft that he had been ter- minated because of the Union's letter. He told Ash- craft that the form notice from the Union given em- ployees at the time of their hire did not state when he should pay dues or what amount he should pay during the period of his layoff.20 Hinkle asserted that his obligations while on layoff were not clear from the union notice. Hinkle also told Ashcraft he had received no notice of his delinquency. Ashcraft read the notice, and according to Hinkle, he said the Union must have made a mistake.21 Ashcraft also told him that he did not receive a notice of his delinquency while he was on layoff because the Union did not have his current address.22 While Hinkle was in Ashcraft's office, Ashcraft called Firks, an assistant to Flynn.23 According to Hinkle, Ashcraft told Firks that Hinkle had been " Flynn testified that it is McDonnell's policy to rescind a discharge requested by the Union for nonpayment of dues only if the Union notified McDonnell that the dues had been paid before the deadline for discharge or that the request for discharge was the result of a clerical error by the Union Flynn testified that it is also its policy not to rehire employees im- mediately after discharge at the Union's request, because it does not want to be a collection agent for the Union, explaining that McDonnell did not want employees to put off paying their dues until after discharge thus requiring McDonnell to go to the expense of processing unnecessary discharges and hires and shifting personnel around pursuant to seniority p. c•.,^wn:. of the contract - we •ime of this conversation another employee was present in Ash- LABOR RELATIONS BOARD terminated pursuant to the Union's letter and that "obviously the Union had made an error" in its form notice to employees of their obligations in that it was not completely clear as to when or how often they should pay dues or what was required to, maintain good standing in the Union. He asked Firks to reinstate Hinkle, but Firks refused. Ashcraft then called Flynn. According to Hinkle, Ashcraft repeated to Flynn what he had told Firks, telling him that "the union was in error on the letter that they had given us as an instruction sheet as to when we should pay, not giving a specific time." Ashcraft testified that to the best of his knowledge, he did not tell Flynn the Union had made an error or mistake with respect to Hinkle. However when asked if he was certain that he made no statement to Flynn that there was error com- mitted by the Union, Ashcraft replied, "I'm not positive, no, sir. I don't think that there was. I don't think that I had made any kind of a statement what- ever along that line. It's been a long time ago, and I'm not positive of every word that was said, but I don't think so." According to Flynn, when Ashcraft asked him to reinstate Hinkle, he reminded Ash- craft of McDonnell's consistent policy of refusing to reinstate employees after discharge at the Union's request, and asked Ashcraft why he was even raising the matter. Flynn testified that Ash- craft replied that Hinkle said he had not received some of the notices and was confused. Flynn testified that he did not ask if Hinkle received the notice or ask what the confusion was but replied that employees always have interesting stories when caught for nonpayment of dues, and that he would not go along with them and was not going to on this occasion. Flynn denied that Ashcraft said that the Union had been in error in any way. Both Ashcraft and Flynn testified that Ashcraft "rattled the tin cup" for a while in Hinkle's behalf before giving up. After talking to Flynn, Ashcraft went to the of- fice of Union President Brock and asked him to in- tervene to see if there was anything he could do to get Hinkle's job back. Brock then called Flynn. Flynn told Brock that he would only take action if there had been a gross error in the union office, such as a clerical error resulting in putting a name on the list by mistake or a failure to notify McDon- nell that an employee paid his dues before his discharge. Flynn also said that in that event, he wanted written notice of the error. Brock said he craft's office to make a complaint similar to Hinkle's That employee, who was not identified by name, had a copy of the form notice with him =' Ashcraft did not mention any discussion of the union notice in his testimony He initially denied that he told Hinkle that the Union had made a mistake, but then testified that he perhaps told Hinkle that his failure to receive a notice was a mistake because the Union normally notified em- ployees that they were delinquent : According to Ashcraft, McClintock told him the Union had sent Hin- kle a notice which was returned for lack of a current address McClintock, however, made no such claim in his testimony Hinkle so testified Ashcraft did not mention his conversation with Firks in his testimony but did not deny that it occurred CONDUCTRON CORPORATION 425 would check to see if this was the case. Brock in- formed Ashcraft of the conversation, and Ashcraft told Hinkle that Brock had called and the answer was still negative. Flynn testified that he insists on a written state- ment of error from the Union so that he can establish that company policy has not been changed :end that the Company has merely corrected an er- ror. Flynn also testified that he did not ask any of those who called him if the Union had given notice t:1 Hinkle because he assumed that it always did. Hinkle was never reinstated. However, if he had been, he would have been laid off again because of low seniority on June 13, 1969. B. Concluding Findings 1. The alleged violation of Section 8(b)(1)(A) and 8(b)(2) The General Counsel contends that the Union violated Section 8(b)(2) and (1)(A) by failing to fulfill its fiduciary duty to inform Hinkle clearly of his union-security obligations under the contract before demanding his discharge.24 In Hotel, Motel and Club Employees' Union, Local 568 [Philadelphia Sheraton Corp.] v. N.L.R.B.,25 the court of appeals held as to a union seeking to en- force a union-security agreement: The comprehensive authority vested in the union, as the exclusive agent of the employees, leads inevitably to employee dependence on the labor organization. There necessarily arises out of this dependence a fiduciary duty that the union deal fairly with employees. [Cita- tions omitted.] At the minimum, this duty requires that the union inform the employee of his obligations in order that the employee may take whatever action is necessary to protect his jou tenure. [Citation omitted.] The union may not evade this duty, as the Local did here, and then demand the dismissal of the employee when he becomes delinquent in the payment of his dues. In that case and most of those following its prin- ciple, including those cited by the General Counsel in his brief, unions sought the discharge of newly hired employees without previously advising them of their obligations to the union.26 However, in N.L.R.B. v. International Union of Electrical, Radio and Machine Workers, AFL-CIO [General Motors Corporation], 307 F.2d 679 (C.A.D.C.), cert. de- 2' The complaint raises no issue as to the validity of the union-security clause in the agreement or as to its application to require maintenance of his membership during the period of his layoff 320 F 2d 254, 258 (C A_ 3), en_fg_136 NLRB 888 Local545, Operating Engineers (Joseph Saraceno & Sons), 161 NLRB 1114, Local No 113, Hod Carriers (James Lutherbach Construction Co ), 167 NLRB 39, Granite City Steel Company, 169 NLRB 1009, Local 98D, nied 371 U.S. 936, the court enforced a Board order27 applying this principle where the employee had been employed for a considerable period of time, had been a member of the union pursuant to a union-security provision, had permitted his mem- bership to lapse during a contract hiatus, and had made a tender improper in form and amount which the union rejected without explanation after a new union-security agreement was executed. Although the facts in that case differ from those present here, it stands for the proposition that despite prior mem- bership in a union, an employee is not presumed to be on notice as to the extent of his obligations to the union during successive contract terms. Moreover, it follows from the rationale of the Hotel Employees case, that the obligation of a union with respect to the employees it represents is a continu- ing obligation, and that in each case in which a union seeks the discharge of an employee for failure to comply with a union-security agreement, all of the circumstances must be examined to deter- mine whether the union has adequately informed the employee of his obligations relative to its request for discharge In this case, when Hinkle was first hired, he was given adequate notice of his obligations as a new employee. Thus, Hinkle was given specific notice that he was required to join the Union, and when he failed to do so within the proper time, he was given an opportunity to join before being discharged. It is less clear how explicitly Hinkle was informed of his obligations to the Union while on layoff. Although I have found that Hinkle was given a copy of the union constitution at some time before his layoff; the provisions of the constitution (article G, sections 1-4) are less than clear as to whether a sin- gle unemployment stamp suffices for the entire period of unemployment or monthly stamps are required. Neither the form notice given Hinkle at the time of his hire nor the printed statements in Hinkle's dues book resolve that ambiguity. Although Mrs. Forkan testified that she explains to laid-off employees that they must pay unemploy- ment dues each month until recalled, she had no specific recollection of her conversation with Hin- kle, and Hinkle denied that she explained his con- tinuing obligation to him. In view of the fact that Hinkle came to the office at a busy time, that Mrs. Forkan has other duties which may interrupt her at times while receiving dues from employees, and in he absence of any reason to discredit Hinkle, I ,. onclude that Hinkle's obligation to continue pay- International Union of Operating Engineers, AFL-CIO (Construction Field Surveys), 156 NLRB 545, Teamsters Local Union No 122 (August A Busch & Co ), 173 NLRB 1283, Associated Transport, Inc , 156 NLRB 335, 169 NLRB-1 143, enfd 401 F 2d 509 (C A 2) In the latter case the dischargee had been employed for same time but had never been apprised of his duty to join the union pursuant to a collective-bargaining agreement 27 129 NLRB 1379, 130 NLkB 1286 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing unemployment dues during the period of his layoff was not explained to him in October.28 But even, assuming that Hinkle had adequate notice at the time of his layoff of what was required to retain membership during the period of his layoff, I find that the Union had a further obliga- tion, which it failed to meet, to inform him that his job was in jeopardy after his reemployment and be- fore his discharge. Although Hinkle was aware that he was required to be a member of the Union after recall, the contract was not explicit in spelling out that he was required to continue his membership during the period of his layoff as a condition of em- ployment. It may well be that a more diligent em- ployee would not have waited after reinstatement but would have gone to the union hall to determine what obligation, if any, he had, and that for the Union's internal purposes, the Union had fulfilled its organizational responsibilities. But here we are not simply weighing Hinkle's membership rights against the Union's organizational right to demand some initiative on the part of its members. Here we must weigh the Union's right to require member- ship to the extent of paying dues and initiation fees as a condition of employment against the em- ployees' right to keep his job. Under the principle of the Hotel Employees case, the extremity of the penalty against the employee for nonpayment of dues requires that it should not be sanctioned un- less as a practical matter the Union has taken the necessary steps to make certain that a reasonable employee will not fail to meet his membership obligation through ignorance or inadvertence but will do so only as a matter of conscious choice. Here Hinkle was sent no notice during the period of his layoff to inform him of his delinquency.29 After Hinkle was recalled to work, despite the Union's normal practice, he received no notice from the Union, either in writing or through per- sonal contact, explaining what he must do to restore himself to good standing in order to retain his employment. The Union's explanations for these omissions may be reasonable in terms of its internal operating problems due to the strike, and there is nothing to indicate that there was the slightest animus against Hinkle, but that fact remains that whatever the reason Hinkle was never told what he was required to do to avoid discharge until after he was discharged. Z" 1 have also rejected Mrs Forkan's testimony that she customarily ex- plained to laid-off employees their obligation upon recall, which she did not repeat on cross-examination and was not corroborated by McClintock Although the Union also pointed to an issue of a union newspaper as notice of these obligations, that issue dated March 15, 1968, described a situation dissimilar to Hinkle's in which a member had been required to pay a rein- statement fee as a consequence of failing to pay an increased amount of dues and to notify the Union of a change of address It did not spell out the obligation of a laid-off employee to pay unemployment dues or the nature of his obligation after recall 1H Although Ashcraft quoted McClintock as saying that he had sent a notice to Hinkle which was returned to the Union for lack of a proper ad- dress, McClintock conceded that no notice had been sent One cannot speculate over whether it would have been forwarded to Hinkle if sent This is not a case in which a union member, ac- customed to paying dues, simply permitted his dues to lapse during his employment. Hinkle was laid off for some 6 months. fhe contract under which he was discharged was not explicit in setting forth the obligations of a recalled employee. Hinkle was not totally passive, but inquired of a union steward about his obligation. He received no effective reply. When Hinkle was initially employed, he was given a clear notice of his failure to join the Union in time to avoid discharge, and was permitted to become a member of the Union and retain his employment even after the date on which his discharge was requested had passed. Hinkle had signed a checkoff card which he had never revoked.30 To be sure Hin- kle might well have taken further initiative to con- tact the Union upon reemployment to assure com- pliance with the agreement, but so also the Union might have taken steps, which it did in the usual case, to make certain that Hinkle knew of his obligations. As between the two, I conclude that the burden was on the Union to do so before seek- ing his discharge. Having -failed to give Hinkle notice of his obligations, I find that the Union vio- lated Section 8(b)(2) and 8(b)( I )(A) of the Act in causing Hinkle's discharge. 2 The alleged violation of Section 8(a)(3) and (1) of the Act a. The responsibility of Conductron The alleged employer violations raise two prin- cipal issues. The first is whether Conductron was the employer of Hinkle and accountable for his discharge. The second is whether the discharge vio- lated Section 8(a)(3) and (1). The evidence con- cerning the relationship between McDonnell and Conductron is set forth in section A, 1, above, and need not be repeated. Conductron contends that it was not the employer of Hinkle, while the General Counsel contends that Conductron and McDonnell were joint employers of Hinkle and that Conduc- tron may be held responsible for the discharge of Hinkle.31 Conductron relies upon the Board's decision in Roane-Anderson Company, 95 NLRB 1501, 1503, in support of its contention. There the Board stated: '" The agreement in evidence provides that a checkoff authorization shall be valid only for the duration of the agreement and that agreed-upon checkoff forms will be used A copy of the form signed by Hinkle was not placed in evidence It is thus not known whether the authorization expired by its terms with the previous contract or contained terms providing for au- tomatic renewal in the event of contract renewal " The General Counsel does not contend that McDonnell is a party to this proceeding or that an order may be directed against McDonnell if a violation is found Although the Board has held that it is appropriate for the General Counsel to secure an amended charge to add a party when it ap- pears that the original charge may be insufficient , that was not done in this case See Petersen Construction Corp , 128 NLRB 969, vacated in part for other reasons, 134 NLRB 1768, 1770 CONDUCTRON CORPORATION 427 The decisive elements in establishing an em- ployer-employee relationship are complete control over the hire, discharge, discipline, and promotion of employees, rates of pay, supervi- sion, and determination of policy matters. In that case although the entity contesting its status as employer paid the employees in question, carried them on its payroll, and was identified as their employer on their passes and driver's licenses, the Board found that it was not their employer, as complete control over the enu- merated matters resided in the Atomic Energy Commission. Here control over the employees per- forming Conductron's production and maintenance functions was divided. They were hired and discharged by McDonnell and their terms and con- ditions of employment were determined by McDon- nell's contract with the Union. Their grievances after the first step were processed by McDonnell's labor relations department, but they were super- vised by Conductron supervisors, who initiated disciplinary action against them, made recommen- dations based on the quality of their work, and han- dled their grievances at the first level. Thus while Conductron delegated to McDonnell responsibility for furnishing its workers and establishing many of the terms a'nd conditions of their employment, it retained control over the performance of their work anc'their conduct on the job. McDonnell was not an independent contractor retained to perform Conductron's production and maintenance work as it saw fit. Rather McDonnell was a source of em- ployees for Conductron with whom Conductron shared the normal functions of an employer. Moreover, while the record fails to establish that McDonnell and Conductron were a single in- tegrated employing entity, the record does establish that Conductron is a subsidiary of McDonnell and that McDonnell is a substantial customer of Con- ductron. In these circumstances I conclude that McDonnell and Conductron were joint employers of the employees who performed Conductron's production and maintenance work and that Con- ductron is responsible for the conduct of McDon- nell with respect to these employees as well as its own.32 b. The alleged violation Section 8(a)(3) of the Act, which is closely parallel to Section 8(b)(2), provides that it is an unfair labor practice for an employer to dis criminate in regard to hire or tenure of employment to encourage or discourage union membership, pro- vided that nothing in the Act shall preclude an em- ployer from entering into a union-security agree- ment satisfying prescribed conditions, and Provided further, That no employer shall justify any discrimination against an employee for nonmembership in a labor organization (A) if he has reasonable grounds for believing that such membership was not available to the em- ployee on the same terms and conditions generally applicable to other members, or (B) if he has reasonable grounds for believing that membership was denied or terminated for reasons other than the failure of the employee to tender the periodic dues and the initiation fees uniformly required as a condition of acquiring or retaining membership, ....33 Thus, under the scheme of the Act it is dis- crimination for an employer to discharge an em- ployee for nonmembership in a labor organization, but the discrimination is excused if the conditions of the proviso to Section 8(a)(3) are satisfied. The burden placed upon an employer to excuse such discrimination is less than that upon a labor or- ganization. Although an employer may inform an employee of his union obligations prior to discharge, the duty to do so rests with the labor or- ganization and not the employer. Similarly, while the labor organization may not lawfully cause a discharge pursuant to a union-security clause for reasons other than a loss or denial of membership caused by a failure to tender periodic dues and in- itiation fees, an employer may lawfully respond to a request for a discharge unless it has reasonable grounds to believe that membership was not availa- ble to the employee on the same terms applicable to other members or that membership was denied or terminated for reasons other than failure to make a tender of the required fees. Only when an employer has such reasonable grounds does a duty arise to investigate the circumstances of the discharge.34 In most of the cases coming before the Board and courts in which the employer's duty to investigate has been considered, the question has been whether the employer had reasonable grounds to believe that a tender had been made and not whether failure to make a tender was due to a union's failure to inform an employee of his obliga- " Hoskins Ready-Mix Concrete, Inc , 161 NLRB 1492 See also Man- power, Inc of Shelby County, 164 NLRB 287, The Greyhound Corporation, 153 NLRB 1488, enfd 368 F 2d 778 (C A 5) " The parallel provision of Section 8(b)(2) provides that it is an unfair labor practice for a labor organization to cause or attempt to cause an em- ployer to discriminate against an employee in violation of Section 8(a)(3) or to discriminate against an employee with respect to whom member- ship in such organization has been denied or terminated on some ground other than his failure to tender the periodic dues and the initia- tion fees uniformly required as a condition of acquiring or retaining membership, " Granite Cite Steel Company, 169 NLRB 1009, Associated Transport, Inc, 169 NLRB 1143, Stoats Dairy Transport, Inc, 162 NLRB 995, Zoe Chemical Co , Inc, 160 NLRB 1001, enforcement denied 406 F 2d 574 (C A 2), Air Flo" Sheet Metal, Inc , 160 NLRB 1653, enfd 396 F 2d 506 (C A 7), Leece-Neville Company, 140 NLRB 56, enfd as modified 330 F 2d 242 (C A 6), cert denied 379 U S 819, Philadelphia Sheraton Cor- poration, 136 NLRB 888, 892-893, May Department Stores, Inc, 133 NLRB 1096, International Union of Electrical, Radio and Machine Workers, AFL-CIO (General Motors Corporation), 129 NLRB 1379, enfd 307 F 2d 679 (C A D C ), cert denied 371 U S 936 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion.35 Nonetheless, if a union's failure to-fulfill its. statutory obligation removes discrimination trom the protection of the proviso to Section 8(b)(2), then it follows that the discrimination is removed from the parallel protection of the second proviso to Section 8(a)(3) when the employer has reasona- ble grounds to believe that the union has failed to fulfill its fiduciary obligation.36 Accordingly, it is necessary to determine whether Conductron and/or McDonnell had reasonable grounds to believe that Hinkle was not notified of his membership obliga- tions. Here at the time the request to discharge was made, neither McDonnell nor Conductron had any reason to believe that the Union's request was based on any reason other than dues delinquency. Although McDonnell or Conductron might have given Hinkle advance notice of his impending discharge, it had no statutory duty to do so, and there is no indication that either withheld notice for any improper reason. The first inkling that the Union's request was improper came when Hinkle informed his Conductron supervisors he had not previously known of his obligation to pay unem- ployment dues. The Conductron supervisors took no action in response. If they had communicated this information to the labor relations department, a telephone call to the Union might well have verified Hinkle's claim, and in the light of Hinkle's recent return from layoff, it might well have been concluded that Hinkle should be given time to pay his dues. To be sure, if the Union failed to verify the claim, the Employer's duty might have been satisfied '31 but Conductron's supervisors made no effort to communicate Hinkle's claim, and proceeded to effectuate the discharge. I conclude that Hinkle's protest, coupled with his claim that the Union would accept his dues if tendered then, was sufficient to furnish reasonable grounds to be- lieve that Hinkle's discharge was not protected by the proviso to Section 8(a)(3). Moreover that was not the end of the matter. On the following day, Flynn received three separate telephone calls from union officials seeking Hin- kle's reinstatement. If the mere fact that three offi- cials called to plead for Hinkle did not put Flynn on notice, the content of Ashcraft's call should have, for, as Flynn conceded, Ashcraft told him that Hin- kle had not received some of the notices and was confused. Whether or not Ashcraft specifically con- fessed an error or mistake, as Hinkle testified, Ash- craft and Flynn both summarized a portion of Ash- craft's remarks as "rattling the tin cup," and I find " In Associated Transport, Inc , 169 NLRB 1143, the Board held that the employer had no reasonable ground to believe that the union had failed to perform its fiduciary obligation The Board thus was not required to decide what the consequences would have been if the employer had reasonable grounds to believe that the union had failed to perform its fiduciary obliga- tion " In such circumstances, it may be said that the employee has in a literal that in the course of Ashcraft's plea he did refer to the lack of clarity in the Union's form notice given to new employees as well as Hinkle's failure to receive specific notice of his delinquency and obligation.38 Flynn concededly did not inquire as to the details of Hinkle's lack of notice, but instead took the position that he would reinstate Hinkle only if the Union had made a mistake placing Hin- kle's name on the list or had failed to notify Respondent of receipt of his dues before Hinkle's discharge. With the inquiry thus narrowed, the Union conceded that neither of the specified errors had occurred. In his response to the calls of the union officials and particularly Ashcraft's, Flynn took an unduly narrow view of the circumstances which might render Hinkle's discharge improper. For the lack of notice to Hinkle of his obligations rendered the Union's request unlawful, and when Ashcraft raised the lack of notice to Hinkle and Hinkle's confusion, Flynn was placed on notice that the request for his discharge was probably defective. At this point, Flynn was no longer being asked to reinstate Hinkle based simply on Hinkle's unsupported claim, but the claim was supported by a union business representative. At the very least, Ashcraft's call furnished reasonable grounds to believe that the Union's request for Hinkle's discharge had been for reasons other than the failure of Hinkle to tender the periodic dues and initiation fees within the meaning of the proviso to Section 8(a)(3). It is true that Flynn's conversation with Ashcraft did not occur until after Hinkle had been discharged and in connection with a request for Hinkle's reinstatement. But when Flynn received the telephone calls from the union officials on the following day, he was in effect asked to reconsider the discharge in the light of newly discovered evidence not previously brought to his attention. That evidence supplied reasonable basis to believe that Hinkle's discharge could not be based upon his failure to tender dues and an initiation fee and that his Employer could no longer justify the discrimina- tion against him. These conversations occurred only a day after Hinkle's discharge. There is no showing that Hinkle's job was unavailable or that his Employer was no longer in a position to rein- state him. Indeed, Flynn indicated that if the Union confessed to error of a different sort, reinstatement would be considered. Accordingly, I conclude that Flynn could no longer justify continuation of the discrimination against Hinkle under the proviso to Section 8(a)(3) and that he was obligated either to sense failed to tender his dues and initiation fee However , in the absence of notice of his obligation , his duty to tender does not arse and in that sense he cannot have "failed " t^ make a tender 17 See Plidadelp/na Sheraton Corporation, supra '" Moreover , it is undenied that Ashcraft called attention to the in- adequacy of the Union's form notice in his conversation with Firks CONDUCTRON investigate further the circumstances which Ash- craft disclosed or to reinstate Hinkle . 39 As Flynn did neither, the protection of the proviso to Section 8(a)(3) was lost. Accordingly , as I have found that Conductron was responsible for the discharge of Hinkle , I conclude that Conductron violated Sec- tion 8(a)(3) and ( 1) of the Act by discharging and refusing to reinstate Hinkle. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in sec- tion III, above, occurring in connection with the operations of Conductron Corporation and Mc- Donnell Douglas Corporation described in section I, above, have a close, intimate, 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 Respondents violated Section 8(a)(3) and (1) and 8(b)(2) and (1)(A) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As I have found that Respondent Union caused McDonnell and Respondent Conductron to discharge Paul V. Hinkle for reasons other than failure to pay periodic dues and initiation fees within the meaning of the proviso to Section 8(b)(2) and 8(a)(3) of the Act, I shall recommend that Respondent Union be ordered to notify Mc- Donnell and Conductron, in writing, with copies to Hinkle, that it has no objection to his immediate and full reinstatement to his former or a substan- tially equivalent position without prejudice to his seniority or other rights and privileges. I shall also recommend that Respondent Conductron be or- dered to otfer Hinkle immediate and full reinstate- ment to his former or a substantially equivalent position without prejudice to his seniority or other rights and privileges and, to the extent necessary, to invoke such powers and privileges as it may have by virtue of its relationship with McDonnell to insure the cooperation of McDonnell in effectuating the terms of the order.40 I shall further recommend that Respondent Union and Respondent Conductron be ordered jointly and severally to make Hinkle whole for any loss of earnings he may have suffered as a result of the discrimination against him by payment to him " While it is true that Flynn asked Brock to write a letter if the Union claimed that an error was made, he was specific in detailing the kind of error he would consider, and the defect in the request for Hinkle's discharge was not of the kind that Flynn specified Accordingly, the Union's failure to send a letter did not relieve Flynn of the duty to reinstate Hinkle or investigate further the circumstances of the discharge '" Peterson Construction Carp, etc , 128 NLRB 969, vacated in part for CORPORATION 429 of the amount he normally would have earned from the date of his discharge to the dates set forth hereafter, less net earnings, to which shall be added interest at the rate of 6 percent per annum, in ac- cordance with the formula set forth in F. W. Wool- worth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. In the case of the Union, its backpay liability shall terminate 5 days after it notifies the Employers and Hinkle that it has no objection to his reinstatement, as provided above. In the case of Conductron, its backpay lia- bility shall terminate on the date that Hinkle is of- fered reinstatement. Upon the basis of the above findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Conductron Corporation and McDonnell Douglas Corporation are employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Aerospace District Lodge No. 837, Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By causing Conductron and McDonnell to discharge Paul Hinkle without first informing him of his dues obligations pursuant to a union-security agreement and affording him a reasonable opportu- nity to satisfy them, Respondent Union has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Sections 8(b)(2) and (1)(A) and 2(6) and (7) of the Act. 4. By discharging Paul Hinkle and thereafter refusing to reinstate him without investigating and ascertaining the circumstances underlying the Union's request for his discharge in the face of reasonable cause to believe that Hinkle had not received notice of his dues obligations and had not been afforded a reasonable opportunity to satisfy them, Respondent Conductron has engaged in and 's engaging in unfair labor practices affecting com- ,nerce within the meaning of Sections 8(a)(3) and (I) and 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact, con- clusions of law, and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that: other reasons, 134 NLRB 1768, 1770 The record indicates that sometime after the discharge of Hinkle, Conductron began to employ production and maintenance employees directly, but it does not indicate whether Hinkle would have thereafter been considered an employee of McDonnell or Con- ductron In the compliance stages of this proceeding it can be determined what position Hinkle would have held after the change in Conductron's method of operation 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Despondent Conductron Corporation, and its officers, agents, successors, and assigns , shall: 1. Cease and desist from: ,a) Encouraging membership in Aerospace Dis- trict Lodge No. 837, International Association of Machinists and Aerospace Workers, AFL-CIO, or in any other labor organization of its employees, by discharging, or in any other manner discriminating against any employee in regard to hire or tenure of employment or any term or condition of employ- ment, except as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Re- porting and Disclosure Act of 1959. (b) In any like or related manner interfering with, restraining , or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be af- fected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in 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) Offer Paul V. Hinkle immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniori- ty or other rights and privileges and invoke such powers or rights as it may have, arising out of its relationship with McDonnell Douglas Corporation, to insure its cooperation in effectuating the terms of this Recommended Order. (b) Jointly and severally with Respondent Aerospace District Lodge No. 837, International Association of Machinists and Aerospace Workers, AFL-CIO, make Paul V. Hinkle whole for any loss of earnings suffered as a result of the discrimination against him in the manner set forth in the section of the Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ments records, timecards, personnel records and re- ports, and all other records relevant and necessary to a determination of compliance with paragraph, (a) and (b) above. (d) 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 accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (e) Post at its St. Charles place of business, co- pies of the attached notice marked " Appendix A."41 Copies of said notice , on forms provided by the Regional Director for Region 14, after being duly signed by Respondent Conductron 's represen- tative , shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, in- cluding all places where notices to employees are customarily posted . Reasonable steps shall be taken by the Respondent Conductron to insure that said notices are not altered , defaced , or covered by any other material. (f) Notify the Regional Director for Region 14, in writing, within 20 days from the receipt of this Decision , what steps have been taken to comply herewith.42 B. Respondent Aerospace District Lodge No. 837, International Association of Machinists and Aerospace Workers, A1L-CIO, and its officers, representatives , and agents , shall: 1. Cease and desist from: (a) Causing or attempting to cause Conductron Corporation or McDonnell Douglas Corporation to discriminate against any of their employees in viola- tion of Section 8(a)(3) of the Act. (b) In any like or related manner restraining or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights are affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor- Management Reporting and Disclosure Act of 195 Q. 2. Take the toliowing atfirmative action which is necessary to effectuate the policies of the Act: (a) Jointly and severally with Respondent Con- ductron Corporation make Paul V. Hinkle whole for any loss of earnings 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." (b) Notify Conductron Corporation and Mc- Donnell Douglas Corporation, in writing , that it withdraws its objection to Hinkle's employment and requests them to offer him reinstatement, and furnish Hinkle with copies of such notification. (c) 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 accordance with the Selective Ser- vice Act and the Universal Military Training and " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 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 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board - 41 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " CONDUCTRON Service Act, as amended, after discharge from the Armed Forces. (d) Post at its offices copies of the attached notice marked "Appendix B."43 Copies of said notice, on forms provided by the Regional Director for Region 14, after being duly signed by an authorized representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to members are customarily posted. Reasonable steps shall be taken by the Respondent Union to in- sure that said notices are not altered, defaced, or covered by any other material. (f) Deliver to the Regional Director for Region 14, signed copies of said notice in sufficient number to be posted by Conductron Corporation and Mc- Donnell Douglas Corporation, the Employers willing, in all places where notices to employees are customarily posted. (g) Notify the Regional Director for Region 14, in writing , within 20 days from the receipt of this Decision, what steps have been taken to comply herewith .41 "See fn 41 44 See fn 42 APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT encourage membership in Aerospace District Lodge No. 837 , Interna- tional Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization by discharging or in any other manner discriminating against any em- ployee in regard to hire or tenure of employ- ment or any term or condition of employment except as authorized by Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our em- ployees in the exercise of 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 , as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer Paul V . Hinkle immediate and full reinstatement to his former or a sub- stantially equivalent position without prejudice CORPORATION 431 to his seniority or other rights and privileges and WE WILL make him whole for any loss of earnings suffered by reason of the discrimina- tion against him. CONDUCTRON CORPORATION (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 1040 Boatmen's Bank Building, 314 North Broadway, St. Louis, Missouri 63102, Telephone 314-622-4167. APPENDIX B NOTICE TO MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause or attempt to cause Conductron Corporation or McDonnell Douglas Corporation to discriminate against Paul V. Hinkle or any other employee in viola- tion of Section 8(a)(3) of the Act as modified by the Labor-Management Reporting and Dis- closure Act of 1959. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be af- fected by an agreement requiring membership in a labor organization as a condition of em- ployment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Manage- ment Reporting and Disclosure Act of 1959. WE WILL notify Conductron Corporation and McDonnell Douglas Corporation, in writ- ing, that we withdraw our objections to the em- ployment of Paul V. Hinkle and request his reinstatement to his former or a substantially equivalent position and WE WILL furnish him with copies of such notification. WE WILL make Paul V. Hinkle whole for any loss of earnings suffered because of the dis- crimination against him. 432 Dated By DECISIONS OF NATIONAL LABOR RELATIONS BOARD AEROSPACE DISTRICT LODGE No. 837, INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO (Labor Organization) (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced , or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 1040 Boatmen 's Bank Building, 314 North Broadway , St. Louis, Missouri 63102, Telephone 314-622-4167.