Intl. Union of Operating Engineers, Loc. 139

INTL. UNION OF OPERATING ENGINEERS, LOC. 139 International Union of Operating Engineers, Local No. 139 (Camosy Construction Co., Inc.) and Charles H. Schlitz. Case 30-CB-154 June 24, 1968 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On February 7, 1968, Trial Examiner Arthur M. Goldberg issued his Decision in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the at- tached Trial Examiner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Ex- aminer's Decision and a supporting brief. The Respondent filed cross-exceptions to the Decision and an answering brief. 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 and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Deci- sion, the exceptions, cross-exceptions, and briefs, and the entire record in the case and finds merit in certain of the General Counsel's exceptions. Ac- cordingly, the Board adopts the Trial Examiner's findings, conclusions, and recommendations only to the extent that they are consistent with the follow- ing. The Trial Examiner found, inter alia, that a $286 levy which the Respondent Union sought to impose upon Charles H. Schlitz as a condition of employ- ment under a lawful union-security agreement was valid under the Act. We do not agree. The Respondent, Local 139 of the International Union of Operating Engineers, consists of three component parts, Local 139, known as the Mother Local, and the B and C branches. The initiation fee is $286 for Mother Local members and $118 for B branch members. The initiation fee for C branch is not relevant to the instant proceeding. Charles Schlitz, the Charging Party, had been a member of the Union's B branch from 1952 until 1961. During this period and until he began work- ing for Camosy Construction in May 1967, Schlitz ' In its demand for the lesser amount , the Union made the mistake, under its own rules , of adding the $20 International fee We view this additional amount as erroneously requested by the business agent involved , and we do 173 was employed by a company that did not have a contract with the Union. In 1961 Schlitz ceased paying dues. About 6 months after he discontinued his dues payments, Schlitz received a notice of suspension from the Union. The constitution of the International of which Respondent Union is a local provides that a member who is suspended for nonpayment of dues must pay all back dues owed and a $20 fee to the International in order to regain good standing in the Union. However, in 1965, the Respondent Union passed a resolution allowing suspended members the option of paying $286 (an amount equal to the Mother Local's initiation fee) in lieu of the sum of back dues owed plus the $20 fee. In May 1967, Schlitz began working as a crane operator for Camosy Construction, a company which has a union-security agreement with the Respondent Union. The events immediately preceding and following Schlitz' employment with Camosy are more fully set forth in the attached Trial Examiner's Decision. For purposes of resolv- ing the issue herein, the following factual summary will suffice. Sometime in April Schlitz had contacted the Union and inquired as to what action would be necessary in order to regain good standing therein. He was erroneously informed that he had to pay $118 (an amount equal to the B branch initiation fee). Thereupon, Schlitz sent the Union a check for $118 and began working for Camosy. Subsequently it was discovered that an error had been committed. Schlitz was informed that he owed $674, an amount including all past unpaid dues and the $20 International fee. However, he was told that under the 1965 policy he had the option of paying a lesser amount characterized as the "reduced structure." Schlitz refused to pay either amount.' Thereafter, the Union informed Camosy Construction of Schlitz' indebtedness to it. Sub- sequently, a union business agent visited the jobsite on which Schlitz was working and threatened to have him removed and picket the job if Schlitz did not straighten out his affairs with the Union within 2 days. The conversation was overheard by Camosy's job superintendent who reported it to the operations manager. The superintendent was con- cerned about the possibility that the job would be picketed and closed down. As a result, the next day, a Friday, Schlitz was told not to return to work on Monday unless he had settled his problems with the Union. Schlitz was not able to resolve his difficulties and, consequently, was out of work for a week. During that period of time he filed the instant charges. When Camosy Construction was advised by Schlitz not believe that the Union would have ultimately pressed for its inclusion. Therefore, we will not predicate the finding of a violation on the demand for the $20 fee. 172 NLRB No. 12 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that resolution of the problem would not be im- mediate, Schlitz was asked to and did return to work. It is well settled that a union 's demand for pay- ment of back dues which arose during a period when there was no obligation to maintain member- ship cannot lawfully be imposed as a condition of employment, even under a valid union-security agreement.2 The Union characterizes the $286 levy sought herein as a "reinstatement fee." We do not agree. Rather, we view the Union's policy as creating an upper limit on the amount of indebtedness for back dues which it will seek to collect from a suspended member. It is only when the sum of the suspended member's dues indebtedness and the $20 Interna- tional fee exceeds $286 that that amount is im- posed. The Respondent Union sought to condition Schlitz' employment upon the payment of its $286 levy,3 and, in fact, caused Schlitz to lose 1 week of employment. The self-termed "reinstatement fee" imposed by the Respondent Union was, in actuality, a camouflaged attempt to collect back dues which arose during a period when Schlitz was under no obligation to maintain membership in the Union. Accordingly, we find that the conduct of the Respondent, in seeking to impose its $286 levy as a condition of Schlitz' employment and in causing him to lose 1 week's work, violated Section 8(b)(I)(A) and (2) of the Act.4 THE REMEDY Having found that the Respondent Union has en- gaged in unfair labor practices in violation of Sec- tion 8(b)(1)(A) and (2) of the Act, we shall order Respondent Union to cease and desist therefrom and take certain affirmative action which is neces- sary to remedy and remove the effects of the viola- tion and to effectuate the policies of the Act. We have found that Respondent unlawfully sought to affect the employment status of Charles H. Schlitz and did, in fact, illegally cause him to lose I week's employment. Therefore , we shall order that the Respondent Union notify the Employer that it has no objection to the continued employment of Schlitz 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 normally would have earned during the period in which the Respondent caused him to be unemployed less net earnings during said period, together with interest thereon at the rate of 6 percent per annum.5 In view of the foregoing findings, we make the following conclusions of law. CONCLUSIONS OF LAW 1. Camosy Construction Co., Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. By attempting to cause and causing Camosy Construction Co., Inc., to discriminate against Charles H. Schlitz , in violation of Section 8(a)(3) of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(b)(1)(A) and (2) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respon- dent, International Union of Operating Engineers, Local No. 139, its officers, agents, and representa- tives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Camosy Con- struction to discriminate against Charles H. Schlitz 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 Camosy Construction 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 in accordance with Section 8(a)(3) of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act: (a) Notify Camosy Construction, in writing, that it has no objection to the continued employment of Charles H. Schlitz and furnish Charles H. Schlitz a copy of such notification. (b) Make whole Charles H. Schlitz 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." (c) Post at its offices at Kenosha and Milwaukee, Wisconsin , copies of the attached notice marked "Appendix."6 Copies of said notice , on forms pro- ' Local 545, International Union of Operating Engineers, AFL-CIO (Joseph Sarceno & Sons, Inc), 161 NLRB 11 14, Spector Freight Systeun, hic, 123 NLRB 43, enfd 273 F 2d 272 (C A 8), cert denied 362 U.S 962; Local 159, International Union, UAW (Bendi.s Aviation Corporation), 99 NLRB 1419; Ferro Stamping and Manufacturing Co , 93 NLRB 1459. ' The Union also sought $56 in advance dues from Schlitz. As we agree with the Trial Examiner's conclusion that this aspect of the case was not fully litigated, we do not find it necessary to speculate as to whether that demand, when made a condition of employment , would violate the Act. ' In making the foregoing findings we deem it unnecessary to pass upon the Trial Examiner's analysis of the line of reinstatement fee cases cited in his decision ' Isis Plumbing & Heating Co., 13 8 NLRB 716. ° In the 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, En- forcing an Order." INTL. UNION OF OPERATING ENGINEERS , LOC. 139 175 vided by the Regional Director for Region 30, after being duly signed by Respondent 's representative, shall be posted by Respondent 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 its members are customarily posted . Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (d) Deliver to the Regional Director for Region 30 signed copies of the said notice in sufficient number to be posted by Camosy Construction Co., Inc., the Employer being willing. (e) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith. APPENDIX NOTICE TO ALL MEMBERS OF INTERNATIONAL UNION OF OPERATING ENGINEERS , LOCAL No. 139 Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended , we hereby notify you that: WE WILL NOT cause or attempt to cause Camosy Construction Co., Inc., to discriminate against Charles H. Schlitz 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 Camosy Con- struction Co., Inc., in the exercise of their rights guaranteed in Section 7 of the Act, ex- cept 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 in accordance with Section 8(a)(3) of the Act, as modified by the Labor -Manage- ment Reporting and Disclosure Act of 1959. WE WILL notify Camosy Construction Co., Inc., in writing that we have no objection to the continued employment of Charles H. Schlitz, and we shall furnish the said employee with a copy of such notification. WE WILL make whole Charles H. Schlitz for any loss of pay he may have suffered by reason of the discrimination against him. INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL No. 139 (Labor Organization) 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. If members have any question concerning this notice or compliance with its provisions , they may communicate directly with the Board's Regional Office, Second Floor , Commerce Building, 744 North Fourth Street, Milwaukee , Wisconsin 53203 , Telephone 272-3861. TRIAL EXAMINER'S DECISION ARTHUR M. GOLDBERG , Trial Examiner: Upon a charge filed on August 1, 1967,' by Charles H. Schlitz, an individual , the complaint herein issued on October 5 alleging that International Union of Operating Engineers , Local No . 139 (herein called the Union or the Respondent), in violation of Sec- tion 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended (herein called the Act), threatened to cause Schlitz to be discharged for his failure to pay a reinstatement fee to the Union which it was not entitled to insist upon as a condi- tion of continued employment , and had attempted to cause his discharge for that proscribed reason. The Union denied all of the material allegations of the complaint. All parties participated at the hearing in Milwau- kee, Wisconsin , on November 15 and 16 , and were afforded full opportunity to be heard , to introduce evidence, to examine and cross-examine witnesses, to present oral argument , and to file briefs . Oral ar- gument was waived and briefs were filed by General Counsel and the Respondent. Upon the entire record in the case, my reading of the briefs, and from my observation of the wit- nesses and their demeanor , I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER The complaint alleged, the parties stipulated, and I find that Camosy Construction Co., Inc . (herein called Camosy), a Wisconsin corporation, is en- gaged in the construction industry with its main of- fice in Kenosha, Wisconsin . During the calendar year preceding issuance of the complaint herein, Camosy performed construction services outside the State of Wisconsin valued in excess of $50,000 and during the same period purchased and received goods and materials in excess of $50,000 from points outside the State of Wisconsin. At all times material herein , Camosy is and has been an employer engaged in commerce within the meaning of Section 2(6) and ( 7) of the Act and meets the Board's standards for asserting jurisdic- tion. Dated By ( Representative ) (Title) ' Unless otherwise noted, all dates herein were in 1967. 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If. THE LABOR ORGANIZATION INVOLVED International Union of Operating Engineers, Local No . 139, is and has been at all times material herein a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Union's Operations The Union, a local of the International Union of Operating Engineers, exists and operates pursuant to the International's constitution. The Union con- sists of three component parts, Local No. 139, known as the Mother Local, and the B and C branches . The Mother Local is composed of jour- neymen operating engineers who have been mem- bers for 5 years or more and are able to operate five machines within the jurisdiction of the Union. The initiation fee for Mother Local members is $286. B branch is composed of operating engineers who cannot operate the required five machines and have not satisfied the time requirement for jour- neyman status. The initiation fee for B branch members is $118.1 While the Mother Local and B branch have different initiation fees, members of both branches pay the same $8-per-month dues, enjoy the same contract terms, and are dispatched to available work from the same referral list in the hiring hall . It is only while traveling interstate that the difference between membership in the Mother Local and B branch has meaning. While in the ju- risdiction of another local, a member of the Mother Local is permitted to operate equipment while a B branch member must work as an oiler. The jurisdiction of the Union includes the entire State of Wisconsin. Its main office is in Milwaukee. In addition three area offices are maintained and agents are stationed throughout the State . The day- to-day affairs of the Union are in the hands of its business manager, Joseph Goetz. The financial af- fairs of the Union are administered by its financial secretary, Richard Good. s C branch is composed of workers in the gravel pits who pay an initia- tion fee of $70 and monthly dues of $6. C branch is not involved in the in- stant proceeding. Testimony of Richard Good. Section (d): PENALTIES FOR MEMBERS IN ARREARS TO LOCAL UNION Art. XXIII. Subdiv 7. Section (d). Members in arrears in tendering payment of current dues may be removed from employment where valid collective bargaining agreements or applicable law permits. Members six ( 6) months in arrears in payment of dues or assess- ments may, upon report thereof by the Financial Secretary at a regular The Union's collective-bargaining agreements, including its contract with Camosy, provide for union security pursuant to the terms of Section 8(f) of the Act. The contract clause reads: UNION SECURITY PART A PROVISIONS IN PART "A" APPLY TO ALL JOB CLASSIFICATIONS IN ALL INDUS- TRIES LISTED. The Employer agrees to require , during the life of this agreement, membership in the Union, as a condition of continued employ- ment of all employees covered by this agree- ment, after eight ( 8) days following the effec- tive date of this agreement, or after eight (8) days following the commencement of such em- ployment, whichever is later; provided, how- ever, that such membership in the Union is available to such employees on the same terms and conditions generally applicable to other members and that such membership is not de- nied or terminated for reasons other than a failure by the affected employee to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retain- ing membership. On "the premise that once a member , always a member of the operating engineers "3 the constitu- tion of the International Union requires that a member who has been suspended for nonpayment of duesa to regain good standing must pay in all dues, assessments , and fines then in arrears as well as a reinstatement assessment and 3 months' dues in advance.5 It was Good's testimony, which I credit, that because the Union has a large rural membership which works only from time to time, there were large numbers of suspended members who were faced with the necessity of paying large sums of money to come back into good standing with the Union. As a result many requests were meeting of a Local Union, be expelled by a majority vote of the mem- bers present " Section (h) REINSTATEMENT OF SUSPENDED MEMBERS Art. XXIII. Subdiv 7. Section ( h). A member who has been suspended under the provisions of this subdivision may be restored to membership in good standing and to his membership number only by making application on the form furnished by the General Secretary-Treasurer, together with the payment of all dues , assessments and fines then in arrears, the rein- statement assessment and in addition an amount equal to three months' dues. When all the foregoing requirements have been fulfilled by the applicant , notice thereof shall be given by the Financial Secre- tary to the General Secretary -Treasurer on the next monthly report, accomplanied by all documents , reinstatement assessment and other charges due thereon. INTL. UNION OF OPERATING ENGINEERS , LOC. 139 lodged with the Union 's executive board to make exceptions on a case-by-case basis from these requirements. To attain a degree of uniformity the Union in 1965 adopted a policy different from that of the International for reinstating suspended mem- bers. Under this policy any suspended member whose dues indebtedness exceeds the Mother Lo- cal's initiation fee (which then, as now, was $286) is required to pay an amount equal to the Mother Local's initiation fee to be restored to good stand- ing. In the event that the suspended member's ar- rears is less than that initiation fee such a member may satisfy his obligation by paying the actual dues owed plus the International 's reinstatement fee of $20. In either event, the Union forwards to the In- ternational a sum of money equaling the Interna- tional per capita tax times the months the reac- tivated member was in suspension . As well, from the $286 fee the Union pays to the International its $20 reinstatement fee. Should the Mother Local's initiation fee be raised the reinstatement fee under this policy would automatically rise with it. B. Charles Schlitz Schlitz, the Charging Party, had been a member of the Union 's B branch from 1952 until 1961. Since 1952 Schlitz has been a member of the Laborer's Union. From 1952 until he went to work for Camosy in May 1967, Schlitz worked for Peter Ploskee Construction Company . Ploskee did not have a contract with the Union. In 1961 Schlitz stopped paying dues to the Union as he never saw its business agent and there was an insufficient amount of work within the Union's ju- risdiction being performed by Ploskee . After he ceased paying dues Schlitz received a notice of suspension in the mail from the Union. Thereafter, Schlitz called the Union 's business agent, but the business agent never returned Schlitz' call. From that time until January 1967 Schlitz had no contact with the Union . At the time he stopped paying dues, Schlitz did not request a withdrawal card from the Union which he could have done under its constitution. C. Early Contracts Between Schlitz and the Union In January , while Schlitz was cleaning snow from the parking lot of the Kenosha hospital , he was ap- proached by Henry Brazil, union business agent for that area, who asked if Schlitz had a union card. Schlitz replied that he was not then a member but that he had formerly belonged to the Union. When Schlitz remarked that he was planning to secure employment as an operating engineer in the spring, Brazil said that Schlitz should check with him when ready to come back into the trade. In the middle of April Schlitz was contacted by Henry Knop , operations manager of Camosy. Knop said that he had heard Ploskee was slow and asked if Schlitz would be interested in working for 177 Camosy as a crane operator. Schlitz told Knop he would be interested in the job. After a further con- versation some time later between Schlitz and Knop, Schlitz went to work for Camosy the second week in May. In April Schlitz had telephoned Brazil to ask what would be required of him to get back into the Union . Schlitz testified that Brazil replied that the Union required $118 (the B branch initiation fee). It was Brazil 's testimony that Schlitz came to the Union's office and that they had had a general discussion in which they had talked of Schlitz' failure to secure a withdrawal card from the Union. Brazil stated that at that time he had given Schlitz a breakdown of the total amount owed pursuant to the International 's requirements and Schlitz had been told of the Union's reinstatement fee of $286. Brazil further testified that Schlitz had complained of the amount required and had asserted the right to come in as a new member for $118 initiation fee. The business agent stated that he had informed Schlitz that as a suspended member he could not join the Union under the conditions available to a new member. Though not material to a resolution of the issues herein, I credit Schlitz' version of this conversation. Though Schlitz' claimed inabilty to understand what the Union required of him seems strained in view of the number of times various union officials explained its reinstatement policy to him, in general Schlitz appeared to be a truthful person. Additionally where it matters, such as his testimony concerning his confrontation with Busi- ness Agent Koch (see section III, E ), Schlitz' accu- racy was corroborated by disinterested witnesses. Brazil did not present so favorable a picture. On May 1, after being advised by Knop that he was to work for Camosy, Schlitz took a check for $118 to the union office. In Brazil's absence Schlitz left the check with the Laborers' business agent who shared office space with Brazil. D. The Union Seeks Payment From Schlitz Early in July Brazil learned that Schlitz was working for Camosy as a crane operator . Brazil called Remo Camosy, president of Camosy Con- struction Company and advised him of Schlitz' debt to the Union. Thereafter, Knop, Camosy's opera- tions manager, spoke to Schlitz on the job, telling him that the Union had contacted Mr. Camosy and suggested that the Company might advance the money to the Union for Schlitz. Schlitz replied that he would rather adjust his problem with the Union directly and said that he would contact the Union himself. Thereafter on July 3 Schlitz visited Brazil at the Union's office, pointed out that time had passed since he had given the Union his check for $118 (the B branch initiation fee), and asked why he had not received a union card. Brazil then gave to Schlitz a written breakdown on his indebtedness to the Union. These figures indicated that Schlitz 354-126 O-LT - 73 - pt. 1 - 13 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD owed $674, including the International's $20 rein- statement fee, when his delinquency was computed pursuant to the International Union requirement that all past indebtedness be paid. Pursuant to the Union's 1965 policy governing reinstatement (what Brazil characterized as the "reduced structure") the business agent submitted to Schlitz the follow- ing figures and comments: $286 Reduction 20 Reinstatement 6 56 July 67 through December 67 362 Total -118 pd. (May 1, 1967) 244 Balance When Schlitz asked for a further explanation of these figures Brazil said that the matter should be taken up with Goetz, the Union's business manager who would be in Kenosha at a union meeting on July 17. At this time Brazil gave Schlitz a copy of the cur- rent collectiveebargaining agreement containing the union-security provision. On July 17 Schlitz attended the union meeting in Kenosha. After the meeting Schlitz approached Goetz, showed the business manager Brazil's com- putation of the money required to restore the Charging Party to union membership, and asked for an explanation and a bill. Following some discus- sion during which Goetz learned that Schlitz had retained his membership in the laborers union, the business manager suggested that Schlitz secure em- ployment within the jurisdiction of that union. When Schlitz demanded a bill for the reinstate- ment fee, Richard Good, the union financial secre- tary, entered the conversation to explain that the Union did not bill any of its members for moneys they owed. In addition to Goetz and Good, Business Agents Brazil and William Koch, Jr., were present during this conversation. At times the discussion was a heated one. E. The Events of July 26 and Following On July 26 while Schlitz was working as a crane operator for Camosy on the site of a new school in Cudahy, Wisconsin , William Koch , Jr., the Union's business agent , came on to the jobsite , approached the crane , and asked Schlitz if he had a union card. During the conversation which ensued , Andrew Schnetter, Camosy's job superintendent, a foreman and two carpenters, Wochowiak and Drascic, were in a position to hear all or parts of the discussion. Schlitz testified that he told Koch he was not then a member of the Union but that he had paid his in- itiation fee to Brazil and had not received his union book. Koch said that Schlitz had no business on the machine and that he did not want Schlitz "fouling up" in Koch's territory. Schlitz explained that he had told Brazil where he was working and what he was doing. At this point the business agent told Schlitz that the Union would tell him and he would not tell the Union. Koch then told Schlitz that he had 2 days to straighten out his affairs with the Union or the business agent would kick Schlitz off the machine and close down the job. Wochowiak and Drascic, while not claiming to have heard the entire conversation, substantially corroborated Schlitz, including his testimony that Koch had threatened to shut the job down. Schnetter, Camosy's business superintendent, re- called Koch giving Schlitz a 2-day ultimatum but testified that he could not recall the business agent threatening to close the job down. However, after Koch left the jobsite, Schnetter called Knop, his su- perior, and advised him that there was a union problem brewing and that the job might be picketed. Koch also testified that he had told Schlitz he would kick Schlitz off the crane if he had not straightened out his financial difficulties with the Union in 2 days. In view of the substantial cor- roboration supplied by the two carpenters and Schnetter's subsequent conversation with Knop, I credit Schlitz' testimony concerning Koch's threat to close down the job if Schlitz had not obtained good standing in the Union within the 2-day time limit. As noted, following the Schlitz-Koch conversa- tion, Schnetter called Knop, Camosy's operations manager. Schnetter advised Knop that there was a possibility of trouble with the Union because of Schlitz' dues problem. Knop testified that Schnetter was concerned that, as a result of the Union-Schlitz problem, Camosy's ability to proceed with the job might be hurt by picketing.? On the day following Koch's visit to the jobsite, Schlitz took his tools to Camosy's trailer on the jobsite where he had a conversation with Schnetter. Schnetter told Schlitz he had spoken to Union Busi- ness Manager Goetz and had been informed of the amount of money the Union was claiming from Schlitz. Schnetter advised Schlitz to straighten out his debt with the Union over the weekend so that he could return to work on Monday. Schlitz testified that he was told not to come back to work Brazil was in error in adding a separate figure of $20 for the Interna- tional's reinstatement fee Under the Union's reinstatement policy that fee was sent to the International from the $286 reinstatement charge. Brazil was also in error in his computation of the amount for dues in advance. The figure of $56 provided for dues for 7 months rather than the 6 months which Brazil was demanding. ' Schnetter denied that he had heard anything mentioned about picket- ing or shutting down the job However , it was Schnetter's testimony that he told Schlitz to straighten out his difficulties with the Union as "1 don't want no union problems." I credit Knop's testimony and conclude that Schnetter was concerned that, because Schlitz was not in good standing , the Union would picket and close down the Cudahy School job for which he was responsible INTL. UNION OF OPERATING ENGINEERS, LOC. the following Monday unless he had straightened out his problem with the Union because Camosy could not afford to have the job closed down. I credit Schlitz. The following Monday Schlitz again called Brazil and asked for a bill or receipt for the money, threatening to go to the National Labor Relations Board if the Union did not permit him to work on the Camosy job. Brazil suggested that Schlitz get a job as a laborer.8 During the week following Koch 's visit to the jobsite, Schlitz did not work for Camosy. In that time he filed unfair labor practice charges against the Union and had several conversations with Knop. In the last conversation, at the end of the week, Knop told Schlitz to report for work because the Company could not wait the month it would take the Board to process the charge Schlitz had filed. Knop testified that he told Schlitz to come back to work as a laborer. When Schlitz returned to work he was paid operating engineer 's wages but the crane was used only sparingly, Knop testified, because the Company, feeling they were in viola- tion of the agreement with the Union by not having a union operator on the job, feared there would be repercussions from the Union if the crane were operated on a full schedule. F. Contentions and Conclusions In his brief General Counsel urges a finding of violation on three counts . First, that the reinstate- ment fee of $286 could not lawfully be required; second, that the Union was not privileged under the law to require of Schlitz, as a condition of acquiring membership pursuant to a union-security agree- ment, payment of dues in advance or of the Inter- national's reinstatement fee of $20, which General Counsel characterizes as an assessment ; and, third, that the Union did not deal fairly with Schlitz when it required him to pay a reinstatement fee after it had acquiesced in his suspended status for 7 years. A finding that the reinstatement fee could not lawfully be required is urged on two theories . First, General Counsel argues that what the Union calls a reinstatement fee is in truth back dues which ac- crued during a period when Schlitz was not obligated by the terms of a union-security agree- ment to maintain membership in the labor or- ganization . This argument is supported by the line of cases following Colonie Fibre Company, Inc., 69 NLRB 589, enfd. 163 F.2d 65 (C.A. 2). It is then argued that the Union could not lawfully demand payment of the fee on the theory that it is required of Schlitz because he failed to pay dues which ac- " Brazil 's testimony concerning this conversation was substantially akin to that of Schlitz other than as to his suggestion that Schlitz work as a laborer rather than as an engineer. ""Under the second proviso to § 8(a)(3), the burdens of membership upon which employment may be conditioned are expressly limited to the payment of initiation fees and monthly dues. It is permissible to condition 139 179 crued in the prehire period. Thus, General Counsel argues, citing Spector Freight System, Inc., 123 NLRB 43, enfd. 273 F.2d 272 (C.A. 8), cert. de- nied 362 U.S. 962, the fee is based on the failure to pay dues when there was no obligation to do so. Finally, the fee is bad, General Counsel argues, because it is computed upon the amount of dues claimed. That the fee is so computed can be shown, it is argued , by the fact that a suspended member who owes less than the $286 reinstatement fee can regain his good standing in the Union by payment of the smaller figure. The Union defends its demand for the reinstate- ment fee by analogizing that fee, required of suspended members, to the iniation fee to be paid by new applicants, a right claimed under the Board's decision in Food Machinery and Chemical Corporation, 99 NLRB 1430. The fact that the Union has looked to a period prior to Schlitz' em- ployment under its union-security agreement with Camosy to determine his lack of good standing with the resulting obligation to pay the reinstatement rather than the initiation fee does not per se make the demand illegal. Simmons Company, 150 NLRB 709, 712. The Union rebuts the argument that the $286 reinstatement fee is actually a fee computed on dues owed by citing to Simmons, where the suspended member was offered by the union in that case a number of methods to reacquire good stand- ing among which was payment of all back dues ow- ing, including those which accrued prior to execu- tion of a union-security agreement. In Simmons, the Union notes, the Board did not find that the alter- native method of reestablishing membership in the labor organization by means of paying a reinstate- ment fee had been tainted by the Union's sug- gestion that the suspended member could also reat- tain good standing by paying the entire dues debt. Threshold to any finding of violation herein is the facual question as to whether the Union sought by threat or act to interdict Schlitz' job status with Camosy. Absent threat to Schlitz that his job would be endangered or action taken to cause his job tenure to be affected, there can be no violation of Section 8(b)(1)(A) or (2) regardless of the legal status of the reinstatement fee. N.L.R.B. v. Allis- Chalmers Manufacturing Company, 388 U.S. 175, 184. However, the fact that Schlitz had voluntarily acquired real membership in the Union9 at a time when his Employer was not party to a union-securi- ty agreement with the Union does not assist the Union here if an attempt was made to reach the employment relationship . N.L.R.B. v. Allis-Chal- mers Manufacturing Company, supra. I find that on July 26, William Koch, union business agent, both employment upon membership, but membership , insofar as it has sig- nificance to employment rights, may in turn be conditioned only upon pay- ment of fees and dues. 'Membership' as a condition of employment is whit- tled down to its financial core " N L R B. v General Motors Corp , 373 U.S 734,742. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD threatened Schlitz that he would be removed from the job if he did not pay the moneys demanded of him by the Union and, at the same time, made a constructive demand upon Camosy that Schlitz be taken off the crane. See Southeastern Plate Glass Company, 129 NLRB 412. I credit the testimony that Koch told Schlitz he had no right to be on the crane unless he had a union card, and that the busi- ness agent gave Schlitz 2 days to straighten out his debt to the Union or he would be-pulled off the equipment and Camosy's construction job closed down. In finding that the Union caused Camosy to discharge Schlitz I note the testimony that Brazil had informed Remo Camosy, company president, of Schlitz' debt to the Union and Knop's sub- sequent conversation with Schlitz in which the Company's operations manager told Schlitz of that call to Camosy. Moreover, I credit Knop's testimony that , after Koch 's visit to the jobsite on July 26, Schnetter called Knop to alert him that the Union might close down the job if Schlitz continued on the job without having returned to good stand- ing in the Union. Thus, absent a right under the second proviso to Section 8(a)(3) to so reach the employment relationship, the Union violated Sec- tion 8(b)(1)(A) and (2) of the Act.10 I turn first to General Counsel's assertion that the Union was not privileged to demand dues in ad- vance from Schlitz. The statute provides that the dues payable under a union-security agreement must be "uniformly required as a condition of acquiring or retaining membership." It was Brazil's intention to require that Schlitz pay to the Union dues for 6 months." When the Union, in 1965, adopted its own policy for reinstatement of suspended members upon payment of the Mother Local's initiation fee, there was no reference in the resolution to an additional requirement that pay- ment of dues in advance be tendered with the rein- statement fee. However, when Goetz, the Union's business manager, notified the Union 's representa- tives in the field that the new reinstatement policy was in effect, he added, "the $286 plus a year dues in advance will tend to alert the member to his obligations." Finally, Richard Good, the Union's financial secretary, testified that the Union en- courages a returning member "to pay five or six months dues." Good defined encouragement in this case as "mandatory basically." Assuming that for the purpose of dues requirements, as in the case of different fees charged for initiation or reinstate- ment, suspended members as a group are a "reasonable classification 1112 which may be sub- jected to a dues structure other than that charged some other classifications of members, I do not find that the requirement of advance payment of dues in this case satisfies the requirements of the Act. It cannot be said on the basis of the evidence adduced in this proceeding that the advance dues payment demanded of Schlitz represented "periodic dues ... uniformly required" of all suspended members seeking reinstatement in the Union. Accordingly, on the merits I would find that the Union violated Section 8(b)(1)(A) of the Act by threatening to af- fect Schlitz' employment status if he did not pay dues in advance, and violated Section 8(b)(2) when it caused Camosy to sever the employment relationship, if only for 1 week, because he hid not resolved his financial problem with the Union, in- cluding this dues demand. However, in the circumstances of this case, I be- lieve that a finding of violation based on the de- mand for advance payment of dues would deny to Respondent its right to procedural due process. It does not appear that this issue (or Brazil's demand for separate payment of the International's $20 reinstatement fee) was clearly defined or that the Union was advised that General Counsel would press for a finding of violation on any matter other than the demand for the Union's reinstatement fee itself. See N.L.R.B. v. Bradley Washfountain Co., 192 F.2d 144, 149 (C.A. 7). The complaint allega- tions were limited to the "reinstatement fee."13 As evidenced by his offer into evidence of Brazil's detailed breakdown of Schlitz' alleged indebtedness to the Union, General Counsel, before the hearing opened, was aware of the demand for advance pay- ment of dues and for separate payment of the Inter- national's fee. Yet General Counsel did not amend the complaint to give Respondent notice that the dues and International fee were in issue. As evidence came in during the hearing which would support a finding of violation based on the dues and International fee issues , General Counsel did not 10 General Counsel urges that Brazil's insistence on July 3 that Schlitz pay the reinstatement fee, coupled with the furnishing to Schlitz at that time of a copy of the collective-bargaining agreement containing the union- security provision , was a demand for the moneys Brazil detailed to Schlitz that day and a violation of Section 8(b)(I)(A). Citing Nanini's, Inc , 102 NLRB 406 Assuming the Union had no right to assert the claim, I would find that Brazil 's conduct violated the Act as did that of Koch . However, by presenting the contract to Schliu and fully advising him of the Union's de- mand, Brazil met for Respondent its duty to deal fairly with Schlitz by giv- ing him clear notice of what was required of him to retain his employment. Local 545, International Union of Operating Engineers, AFL-CIO (Joseph Sarceno & Sons, Inc.), 161 NLRB 1114. In his brief General Counsel ap- pears to have abandoned the allegation that Goetz threatened Schlitz on July 17. In any event the evidence does not support that allegation of the complaint and I shall recommend that it be dismissed 11 In fact the amount demanded , $56, represents dues for 7 months for a B branch member Despite this error in arithmetic the legal result is the same. 11 Food Machinery and Ch enucal Corporation, 99 NLRB 1430, 1431 13 In pertinent part the complaint reads 5. On or about the dates in- dicated ... the Respondent restrained and coerced the Charging Party by threatening to cause (his ] Employer to discharge him for his nonpayment of a reinstatement fee which the Respondent was not entitled to insist upon as a condition of continued employment 6 On or about July 27, 1967, Respondent attempted to cause and caused Camosy to discharge the Charging Party because he refused to pay the reinstatement fee alleged above. INTL. UNION OF OPERATING ENGINEERS, LOC. 139 181 seek to amend the complaint then or to otherwise alert Respondent to this theory of violation. In the face of General Counsel 's failure to alert the Respondent to its peril it is not surprising that the Union felt free to have Good, in direct examina- tion, testify to the Union 's policy of demanding dues in advance from suspended members and to introduce Goetz' memorandum in which the requirement of a year's dues in advance is men- tioned. It is only on the basis of this evidence presented by Respondent that the. lack of uniformi- ty in the advance dues requirement can be established . This evidence was not essential to Respondent's defense and came in only as part of the res gestae of the putative violation arising from the required reinstatement fee. The fact that the Union failed to treat the dues and International reinstatement fee issues in its otherwise com- prehensive brief is further evidence that to the time the Union received General Counsel's brief herein it was not on notice that these matters were in is- sue. J.C. Penney Co. v. N.L.R.B., 384 F.2d 479, 483 (C.A. 10). On this state of the record I cannot find that this " material issue ... has been fairly tried by the parties [and] should be decided ... regardless of whether it has been specifically pleaded ." Amer- ican Boiler Manufacturers Association v. N.L.R.B., 366 F.2d 815 , 821 (C.A. 8). Accordingly, I will not recommend an order based on the Union 's demand for advance payment of dues and of the Interna- tional's reinstatement fee. Local 542, IUOE, AFL-CIO ( Elmhurst Contracting Co., Inc.), 141 NLRB 53, 55, enfd . as modified 329 F.2d 512 (C.A. 3 ).14 Finally , I am not satisfied that the cases support General Counsel 's allegation that the Union's im- position of its reinstatement fee was violative of the Act. The fee demanded bears no relationship to the actual dues indebtedness of the suspended member. Regardless of the amount of dues owed the fee is the same. The fact that in some instances the mem- ber's indebtedness is less than the $286 reinstate- ment fee and he may be restored to good standing upon payment of the smaller amount does not of it- self relate the fixed reinstatement fee to the back dues owed. As in Simmons Company, 150 NLRB 709, where the union offered to the suspended member the options, among others, of paying either the reinstatement fee or the actual dues indebted- ness, the Union here "sought to impose no obliga- tion ... which was not required of any other former member, deliquent member, or nonmember, whichever [ he] deemed more advantageous." Sim- mons, supra at page 712. The additional fact that from the reinstatement fee the Union transmits to the International per capita taxes for all the months of the member's suspension does not transform the fee to back dues. The per capita tax is not dues uniformly required of the member but rather is a tax levied by the International on the local union and not a sum directly charged to the member. Ranes v. Office Employees, Local No.28, 317 F.2d 915, 917-918 (C.A. 7); King v. Randazzo, 234 F.Supp. 388, 394 (E.D.N.Y.), affd. as modified 346 F.2d 307 (C.A. 2); United Brotherhood of Carpen- ters and Joiners of America v. Brown, 343 F.2d 872, 886 (C.A. 10); Brotherhood of Painters v. Brother- hood of Painters, Local Union 127, 264 F.Supp. 301, 306-307 (N.D.Calif.). But see Local No.2, In- ternational Brotherhood of Telephone Workers v. In- ternational Brotherhood of Telephone Workers, 362 F.2d 891, 894-895 (C.A. 1), cert. denied 385 U.S. 947. Therefore, not even as to that part of the rein- statement fee which goes for per capita tax can it be said that the fee is masked back dues. General Counsel looks to Spector Freight System, Inc., 123 NLRB 43, to support his contention that the Union could not lawfully demand payment of the reinstatement fee. It is his claim that the requirement that the fee be paid was based upon Schlitz' failure to pay dues before he was hired by Camosy. In Spector the Board first found that the "insistence upon [the employee 's] discharge was predicated upon his nonpayment of ... prehire dues and that the Company was fully apprised that the discharge was demanded for this reason." Spec- tor at 44. The Board then went on to say that it would find the discharge violative of the Act even if it resulted from the employee's failure to pay the reinstatement fee. Noting that the fee resulted from computation of back dues for a period during which the employee was under no statutory obliga- tion to pay dues to the Union to keep his job, the Board, citing Local 140, Bedding, Curtain & Drapery Workers Union (The Englander Company, Inc.), 109 NLRB 326, held there was no "signifi- cant difference between a union demanding the discharge of an employee who lost membership in good standing for failing to pay dues which accrued during a period when there was no statutory obliga- tion to maintain such membership as a condition of employment, and demanding the discharge of a em- ployee who lost good standing only because the union took into account dues which accrued during a period when the employee could not lawfully be required to pay them to retain his employment." Spector at 44-45. Later cases indicate that General Counsel is rely- ing upon dictum rather than the rule of the case when he relies on this second holding in Spector. This interpretation gains support from the Board's language in affirming the Trial Examiner in Local " In any event it does not appear that Schlitz' failure to accede to the Union's demands was based on resistance to the inclusion therein of ad- vance dues or the International's fee. Rather, he could not understand the bans for the reinstatement fee of $286 and was adamant in his insistance upon a detailed receipt for the money. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 545, International Union of Operating Engineers, AFL-CIO (Joseph Sarceno & Sons, Inc.), 161 NLRB 1114. There the Board stated: Although the Trial Examiner found that Respondent had demanded payment of either back dues and a reinstatement fee or a referral fee as a condition of [the Charging Party's] continued employment, he did not predicate any violation upon such finding . It is well set- tled that a demand for back dues and a rein- statement fee, based on a period when there was no statutory obligation to maintain mem- bership as a condition of employment, is viola- tive of the Act. See Spector Freight System, Inc. [citation omitted]. [Emphasis supplied.] In applying Spector to the facts in Joseph Sarceno, the Board has clearly coupled the reinstatement fee with the back dues. While the referral fee as a con- dition of employment is stated in the disjunctive, the back dues and reinstatement fee are twice linked . This further suggests that the Board 's first finding in Spector, based on the demand for prehire dues, was the ratio decidendi. It would thus appear that a demand for a reinstatement fee will run afoul of the law only when coupled with a demand for back dues. In its most recent pronouncement in this area, in International Brotherhood of Boilermakers , Iron Ship Builders, Blacksmiths, Forgers and Helpers, Local Lodge No.338, AFL-CIO ( Eidal International Divi- sions Southwest Factories, Inc.), 166 NLRB 874, the Board said: This [Eidal] is not a case ... where a union member had allowed his membership to lapse during a period of unemployment and had then been required to pay a reinstatement fee as a condition of resuming union membership. Ac- cordingly , this case is governed by Spector Freight System, Inc. [citation omitted], whose continued validity was recognized in Simmons Company [citation omitted] upon which the dissent relies. In so stating the Board clearly indicates that had Eidal International been a case "where a union member has allowed his membership to lapse dur- ing a period of unemployment and had then been required to pay a reinstatement fee as a condition of resuming union membership " Spector would not have governed . The instant proceeding is just such a case . Ergo, Spector is inapplicable to the case at bar. Accordingly , I find that the Union 's demand here for the reinstatement fee, uncoupled to back dues, was permissible under the Board's holding in Food Machinery and Chemical Company, supra, and that the Union 's efforts to compel payment of that fee did not violate the Act. CONCLUSIONS OF LAW 1. Camosy Construction Co., Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not committed unfair labor practices as alleged in the complaint. RECOMMENDED ORDER It is recommended that the complaint herein be dismissed.