Local No. 749 Intl. Brthd. of Boilermakers

502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 749, International Brotherhood of Boilermakers, Iron. Ship' -Builders, Blacksmiths, Forgers & Helpers, AFL-CIO (California- Blowpipe & Steel Co., Inc.)1 and Sequoia Employ- ers Council Local Union No. 749, ' International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers & Helpers, AFL-CIO (California Blowpipe & Steel Co., Inc.) and Douglas C. Martin. Cases 20-CB-2041 and 20-CB-2253 August 4, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS On January 28, 1971, Trial Examiner James R. Hemingway issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of Section 8(b)(5), (2), and (1)(A) of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Decision and a supporting brief,2 the Charging Parties and Interve- nors filed an answering brief, and the General Counsel filed limited exceptions and a brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. 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 this proceeding, and hereby adopts the findings, conclusions and recommenda- tions of the Trial Examiner with the modifications set forth below. As alleged in the complaint, we find that the Respondent violated Section 8(b)(5), (2), and (1)(A) of the Act in charging employee Louis Daniels an excessive reinstatement fee and requesting the Com- pany to discharge Daniels for failure to pay said excessive fee. We need not pass upon the Trial 1 California Blowpipe & Steel Co., Inc ., was permitted to intervene as a Party to the Contract. 2 The Respondent excepts, inter aha, to the Trial Examiner's denial to grant Respondent's motion to strike paragraph IX(b) of the complaint. We find the Respondent's motion to be without went and it is hereby denied. Atlas Boot Mfg. Co., 116 NLRB 565; H. N. Thayer Co., 99 NLRB 112; 192 NLRB No. 58 Examiner's alternative finding in, this connection (TXD, section V, C, 1, 2nd para. and 2, ist par^a). The General Counsel takes limited-exception `to apparent dicta by the Trial Examiner wherein he states: When Martin asked, "Why so much?" Runyan replied, again according to Martin; that' it was because everyone else had'signed' up. The figure of $300 and Runyan's reply strike me as unusual and difficult to understand. Runyan was not called as a"' witness to correct the testimony, but if Runyan made some such statement, Yam inclined to believe that he was either not fully, or not accurately, quoted.3 We find no basis in the record upon which the Trial Examiner could base such a supposition since the testimony was totally undenied and uncontradicted; accordingly, we disavow the Trial Examiner's dicta. We amend the Trial Examiner's Conclusions of Law as follows: By substituting for his Conclusion 4 the following: 4. By attempting to cause the Employer to terminate the employment of Louis Daniels for failure to pay a reinstatement fee which was excessive under all the circumstances, Respondent engaged in unfair labor practices within the meaning of Section 8(b)(5), (2), and (1)(A) of the Act. By changing Trial Examiner's Conclusion of Law 4 to 5 and modifying it to read as follows: 5. By attempting to cause the Employer to terminate the employment of Douglas C. Martin, Jeffrey Roberts, and Michael Roberts for reasons other than nonpayment of initiation fees or dues uniformly required as a condition of continued employment under its lawful union shop agree- ment, Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act .4 Renumber Trial Examiner's Conclusion of Law 5 as 6. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner, and hereby orders that the Respondent, Local Union No. 749, Interna- tional Brotherhood of Boilermakers, Iron Ship Build- ers, Blacksmiths, Forgers & Helpers, AFL-CIO, Kohler Co., 220 F.2D 3 (C.A. 7). 3 Trial Examiner's Decision, sec. V, B, 3d para. 4 There is no direct evidence in the record that Respondent requested the Employer to discharge Jeffrey Roberts but there is conclusive evidence that Respondent threatened that it would seek his discharge. LOCAL NO. 749 INTL. BRTHD. OF BOILERMAKERS 503 Escalon, California, its officers, agents, and represent- atives, shall take the action' set forth in the Trial Examine>'s recommended' Order. TRIAL EXAMINER'S DECISION I. STATEMENT OF TIIE CASE JAMES R. HEMINGWAY, Trial Examiner: The charge in Case 20-CB-2041 filed on June-16, 1969, by August Sommerfeld of -the- Sequoia Employer Council, alleges a violation of Section 8(b)(2)-and(5) of the National' Labor Relations Act, as amended, 29 U.S.C. Sec. 151, et seq., herein called' the Act. the-charge in Case 20-.CB=2253, filed on May 25,- 1976; by Douglas C. Martin, an individual, alleges a violation of Section 8(b)(1)(A) and (2) of the Act. The cases were consolidated by order of the - Regional Director and a,' consolidated . complaint, and notice of hearing was issued-on August 26, 1970. An amendment to the complaint was issued and served on the parties on September 25, =1970. Respondent, on October 8, 1970, filed an answer to the complaint as amended in which it denied the alleged unfair labor practices. Pursuant to notice, a hearing was held before 'me at Stockton, California,, on November 5 and 6, 1970, and at San Francisco, California, on November 20, 1970. At the opening of the hearing, the Employer, California Blowpipe &, Steel Co., Inc., moved to intervene because-the issues concerned the terms of its agreement with the Respondent and decision herein could affect those provisions. The motion was granted. The General Counsel moved to amend the amended complaint in respect to the expiration date of the contract involved, byconforming,the description of the appropriate, unit to that, stated in the contract, and by deleting the names of certain employees allegedly affected by the alleged unfair labor practices and to add additional ones. if. ISSUES business in-Escalon, California,- where it is-engaged in the fabrication and erection of steel products. During the year preceding the issuance of the complaint, the Employer sold and provided goods and services valued in excess of $50,000 directly, to customers located outside the State of California. During the same period of time, the Employer purchased and received atits-facility in Escalon, California, goods and products valued in excess of $50,000 directly from suppliers located outside the State of California. I find that the Employer is engaged in, commerce within the meaning of the Act and that it will effectuate the policies of the Act to assert jurisdiction. IV. RESPONDENT LABOR ORGANIZATION AND ITS AGREEMENT The, Respondent, a labor organization within the meaning of 'the Act, has a collective-bargaining agreement with the Employer, for the term from May 16, 1969,1 to May 20, 1971, which agreement contains a provision requiring all 'employees who are present members of Respondent to maintain their membership in good standing; all other employees are required, after the 30th day following `the beginning of their employment or the effective date , of the agreement, whichever is later, to become and remain members of Respondent as a condition of continued employment. There follows it clause reading: (D) In the application of Paragraphs (B) and (C) above, when the Employer is notified by the Union in writing that an employee is delinquent in the payment of Union dues, or, within the time required by the Union, hasfailed to make proper application and pay^the initiation fee required, the Employer shall immediately terminate such employee. Such employee shall not be reemployed by the Employer during the life of this agreement, until notified by the Union that the employee is a member in good standing in the Union, or such employee presents a work clearance from the Union to the Employer. [Emphasis supplied.] 1. Whether or not Respondent required, pursuant to a union-shop -contract, that certain dues-delinquent employ- ees pay reinstatement I fees which were excessive under all the circumstances. 2. Whether or not Respondent attempted to cause the Employer to terminate the employment of an employee for nonpayment of an excessive reinstatement fee. 3. Whether or not' Respondent attempted to cause the Employer to `terminate the employment of-three employees for' reasons ' other than the failure of such employees to tender initiation fees and periodic dues. III. THE BUSINESS OF THE EMPLOYER California Blowpipe & Steel Co., Inc., herein called the Employer, is a California corporation with a place of t This is the effective date shown at the top of the agreement in evidence. The agreement in° evidence is not signed or dated , although a letter of understanding attached to the agreement is dated March' 24, 1970. But this-, letter is signed by Respondent's representatives only. In an affidavit made on, an undisclosed date in 1970 by Ralph Runyan, secretary-treasurer of the Respondent, in connection with a suit between Runyan and the Employer in the United States District Court for the V. THE UNFAIR LABOR PRACTICES A. The Issue of an Excessive Reinstatement Fee The complaint alleges that "from or about December 16, 1968, and continuing thereafter, Respondent has required dues-delinquent employees ... in the unit. '.. covered by the collective bargaining agreements.... to pay,, as a condition of employment in said unit, fees which have been excessive under all the circumstances . . ." and this is alleged to be a violation of Section 8(b)(5) of the Act. 1. Constitution and bylaws; practice thereunder The constitution of Respondent's parent organization which was in effect between 1965 and August 1969, which Eastern District of California, Runyan avers that the collective-bargaining agreement was entered into on March 24, 1970, effective May 20, 1969," for a term running to May 20, 1971. If this is not an error, the agreement is made retroactive in effect from March 1970 back to May 1969. The effect of such retroactive agreement upon the legality of the union shop provision was not mentioned in the complaint, was not raised at the hearing, and was not discussed in the briefs of the parties. I therefore ignore it. 504 DECISIONS OF NATIONAL LABOR .RELATIONS BOARD period embraces the time of certain events, herein related, provides: ARTICLE XXVIII INITIATION FEES AND DUES Initiation Fees Section 1. The' initiation fee shall be determined "by the Local Lodge but shall be not less than Fifteen Dollars ($15)' and in no event shallibe more'than Four Hundred Dollars ($400).2 Arrangements for payment of initiation fees by 'installments may' be made in accordance with approved Local Lodge By-Laws or an applicable collective bargaining agreement. Any fees paid to apply on initiation fees shall be forfeited in the event payment for such initiation is not completed. The International President shall have the authority to- grant a special dispensation reducing initiation and reinstatement fees. for special cases, where organizing activities are in progress or are contemplated, for such period of time as may be determined by him. Any applicant for membership who presents accepta- ble evidence of current good standing, in some other labor organization "with which the International Broth- erhood has a;reciprocal agreement may be admitted to membership upon the` payment to the _ International Brotherhood of one 'month's dues, and upon executing the Brotherhood's application form. Dues Section 2.' All monthly dues shall be payable on the first day of each month and should bepaid monthly in advance... ARTICLE XXIX SUSPENSION AND REINSTATEMENTS Suspension for Non-Payments Section _ 1. Whenever any member allows his monthly dues, death benefit contributions, assessments, or fines to become two (2) calendar months in arrears, he shall 'be:automatically suspended from all rights, privileges, and benefits of the International Brotherhood. No monthly dues shall be accepted until all financial obligations owed to the Brotherhood or any subordi- nate body, such as field dues, district, lodge dues, fines or assessments have been,paid. Reinstatement of Members Suspended for Non- Payments Section 2. In order for such member to be recorded 2 The language of art. XXVIII here quoted was taken from the constitution which became effective in mid-August 1969, since the excerpt of the earlier constitution in evidence did not include article XXVIII except as to the last few lines of it, which are immaterial here. The amount of $400 was presumably an increase from $300 provided in the earlier constitution. 3 This amount is $400 in the 1969 constitution. again in good standing,,-he shall-,personally make application for reinstatement with the Lodge having= jurisdiction where he is working, and shall be obligated to pay, in addition to his "financial delinquencies, a' reinstatement, fee in an. amount determined by the subordinate body, such fee, however, to be not less than Twenty-Five ($25) and not more than Three Hundred Dollars ($300).3 Arrangements for the payment of reinstatement fees , by installments may be - made in accordance with approved Local Lodge By-Laws or an applicable collective bargaining agreement. Any fees,, paid to apply on reinstatement fees shall be forfeited in the event payment for such reinstatement,, is not-- completed. The application for-reinstatement' and the member's _ reinstatement receipt shall, show the full amount collected and shall bear the, full name and full . signature of the applicant. , Another section covers the procedure for reinstatement of members expelled, or suspended for- reasons other than nonpayment of dues. The bylaws of Respondent, approved March,. 1, -1966, which continued in effect until December, 29,,1969, so far as is applicable here, provide for an initiation fee of $200.for, , mechanics and $150 fee for helpers,, and a reinstatement, fee of $300 for mechanics and $250 for helpers.4 ; If a member, became delinquent in his dues on and' after, the beginning of the third month, the Respondent usually, would notify the delinquent member; that he was, delin quent; when that suspended member would seek to become current, the Respondent's secretary-treasurer would inform him that he would have topay a $250 reinstatement fee plus , his back dues as a condition of continued employment. The delinquent member was given 3 months' in- which, to pay this sum, but his delinquent dues would not be accepted ixntil payment of the readmission fee. If the -delinquent dues payer failed to pay in full within the 3-month'-period, the , Respondent would make a written demand on the Employer that such employee be discharged pursuant to the union-shop clause of the collective-bargaining agree- ment. 2. Specific instances, of Respondent's requirement of payment of reinstatement fee and rites of pay of employees Ernest Benge, hired by the Employer as a helper about 5- 1/2 years before the date of the hearing, became a member of Respondent but fell in arrears in the payment of his dues in -late 1968. The' Responden't's secretary-treasurer, Ralph Runyan, told Benge that he would have to pay the $250 reinstatement fee. The` alternative was discharge. Benge paid this required, sum, in ten weekly. installments of $25 each between January 4 and March 8, 1969. During that time, Benge's take-home pay was about $128 a-week 5 William Haslam, hired as a helper in January 1968, 4 The General Counsel makes no contention , with regard to the reasonableness of the reinstatement fee required ; under the later bylaws, approved in December 1969. 5 His gross pay cannot be ascertained,because no.evidence was adduced to show any'rates of pay in effect before -May 16, 1969, the effective date of the collective-bargaining agreement introduced into evidence. LOCAL NO. 749 INTL. BRTHD. OF BOILERMAKERS joined the Respondent about a month later and paid his $$.50 monthly dues until 'March or April 1969, when he failed to pay for 2 months and thus became delinquent in the payment of his dues. His check for 3 months' dues was returned to him by the Respondent with a letter notifying him that he was delinquent . Haslam consulted with Runyan about the matter and Runyan told him the reinstatement fee was $250. Haslam borrowed that amount from a relative and paid it in a lump sum in August 1970. At the time of the hearing, he still owed his relative $175 on that loan. At the time he became delinquent, Haslam's wage rate was about $3.766 an hour, or gross of $151.20 per 40-hour week. There is no evidence asto his take-home pay. Louis Daniels was employed by the Employer as a welder's helper for about 6 years at the time of the hearing. He became- a member of the Respondent and paid his dues, but not regularly,each month. In the latter part of 1968, he became delinquent in the payment of his dues.? When, he mailed the;Respondent a money order for 3 months' dues in late December 19b8,-the Respondent returned the payment with a. statement ,that,it would be necessary for him to be reinstated and .that that should be done at once . Daniels returned the money order, in, late January 1969 with a request that it be applied as part payment on his reinstatement fee. Respondent acknowledged receipt of part payment thereof. Daniels paid another $75 in late January. On an, undisclosed date thereafter, Daniels protested that he `had paid a sufficient "fine" and that the money he had paid, in excess of $49.50, should be applied toward his dues through February. On March 3, 1969, Respondent returned to Daniels a money order for $8.50, apparently tendered by` Daniels as his March dues, with a statement that, since, he was not a member in good standing, his reinstatement fee would first have to be paid and that this would 'have to be done by April 13 or Respondent would notify the Employer to terminate Daniels.-Later, again on an undisclosed date, since Daniels did not date his lette'r`s, Daniels wrote the Respondent a letter of resignation in which he announced that he would "continue to tender dues as long as they are legally required of me." On April 21, 1969, Respondent wrote to the Employer requesting the latter to terminate Daniels. 3. Other circumstances requiring consideration (a) Wage rates The wage rates set under the collective-bargaining agreement going into effect on May 16, 1969, which was later than the incidents involving Daniels, Haslam, and Benge, ranged from $3 to $4.71 for nonsupervisory employees. The fates of journeymen were not on a progressive scale (as were those of helpers) but varied only by the shift on which a man worked. The high rate of $4.71 was for a layerout working on the third shift. The first shift layerout received $4.41. Helpers, such as Haslam and ,e.Haslam testified that his rate was $3.70. The collective-bargaining agreement indicates that the rate for his job in August 1969 was $3.76 an hour if he was on the third shift . The second shift rate for him would have been $3.66 and that for the first shift $3.50. At that time there was no rate of $3.70, 7 According to a letter from Respondent to Daniels, the latter owed 505 Benge, were hired after May 16, 1969, at $3 an hour on the first shift (with a differential of 16 cents for the second shift and 26 cents for the third) and progressed at 6-month intervals with increases in four stages , before they reached the top of their classification, the top being $3.50 to $3.76, depending on their shift. The evidence does not show what rates of pay were prior to May 16,1969, when Haslam and Benge had to pay their $250 reinstatement fees. However, the rates shown above under the collective-bargaining agreement going into effect on May 16 , 1969, were the ones in effect within the Section 10(b) period, and therefore the question of whether or not the reinstatement fee was excessive8 will be considered as of that time. (b) Comparison o} reinstatement fees by other unions in same industry The General Counsel introduced in evidence an exhibit making a comparison of initiation fees, reinstatement' fees, and rates of pay set by Respondent and four sister locals and by several other unions at shops in the Northern California area along with rates of pay for employees represented by such unions, and the Respondent , in turn, introduced an exhibit giving similar comparative informa- tion for journeymen's wage rates for crafts and employees in shipyards and/or field construction for other unions. The Respondent's exhibit contains no rate for a classification of helper and no rate for any employees working in industrial plants. All the rates shownon,Respondent's exhibitexceed the starting wage rate at 'the Employer's plant -by at least $1.50 (for `carpenters working in shipyards) and by as much as $6.415 an hour (for steamfitters in building and construction trades). In the Respondent's exhibit, initiation fees are shown to range from one craft union to another from $20 to $500 (the latter being for plumbers and pipefitters, whose wage rate is $7.22 an hour, and for steamfitters working in the building and construction trades, whose wage rate is $9.415 an hour). It is interesting to note that on the Respondent's exhibit, which is based on selected unions in different crafts, whose fees are more favorable to Respondent's contentions, not one union is shown to charge a higher fee for reinstatement than for original initiation. Thetwounions with the highest initiation fee, the Plumbers & Pipefitters and the Steamfitters, each with a $500 initiation fee, charge for reinstatement 'only $1 and back dues; and, in the case of'the Steamfitters, the $1 is charged only after 3 . months' delinquency. Operating Engineers, with an initiation" fee of $100 plus $40 International tax, charges $35 plus delinquent dues for reinstatement. The painters, with an initiation fee of $200, charges a reinstatement fee of $200, but only after 6 months' delinquency. The Teamsters and Iron Workers each have a reinstatement fee the same as the initiation fee, but apparently (so far as appears from the exhibit they do not require the payment of back dues in addition. The General Counsel's exhibit, except for Respondent dues for September, October, November, and December when, on December 31,1968, Daniels mailed in 3 months' dues. 8 I use the past tense, since Respondent, in its bylaws going into effect on December 29, 1969, adopted a sliding scale of fees similar to that of its sister locals. 506 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD and its sister .locals, who represent employees not only in shops but also doing field construction work at a higher rate of, pay, is limited to unions representing shop workers whose rates of pay are comparable to those of the higher paid employees of the, Employer. In five unions, other than Respondent and its sister locals, the reinstatement fee is identicallto., the initiation fee, with no provision for payment of back dues. Two others require a reinstatement feeequal to their initiation fee but only after 6 months' delinquency. These two also require ;payment of -back dues. Only one sister', local of Respondent (Local 94) in the Northern California '. area has a flat- reinstatement fee $175 for journeymen and .$150 for helpers) and this is exactly the same as its initiation fee. Three other sister locals (6,10, and 513) are shown to have a sliding scale of reinstatement fees progressing in size from.3 ,months to more than 6 months, with the fee after 6 months being equal to the original initiation fee ($200 for journeymen and .$150 for helpers). Assuming themonthly dues to be roughly the same, as those in effect, for Respondent during, the same period, the reinstatement fee would, on the sliding scale, .work out to approximately an amount equal to delinquent dues, current dues, and -4,, moderate penalty. This contrasts with Respondent's, requirement of $250 for helpers or $300 for journeymen after a delinquency of only 2 months, all of which sum could be viewed as a penalty at that time. Even if part of -the sum exacted by Respondent could be said to be partially equivalent to monthly dues, the excess,.would far,exceed the ,dues; and,-.it will be noted,, Respondent gave only 3, months in which: to pay the full amount of- the reinstatement fee as compared to 6 months for sister locals. There is no indication that Respondent would accept, a reinstatement, fee at all after the end, of 3 months, and -all payments made on account in that 3-month period would be forfeited, if not fully paid in=that .time, according to Respondents bylaws, , which incorporate the provision, of the constitution of its International. 4. Conclusions as to alleged violation of Section 8(b)(5) The Act provides in Section 8(b): It shall be, an unfair labor practice for a labor organization or its agent ... (5) to require of employees covered by an agreement authorized finder 'subsection (a)(3) the payment, as a condition precedent to becoming a member of such organization, of a fee in an amount which the-Board finds excessive or discrimina- tory under all the, circumstances. In making such a finding, the, Board shall consider, among other-relevant factors, the practices and customs of labor organiza- tions in the particular industry, and the wages currently paid to the employees affected... In the instant case . the General Counsel contends only 9 Food Machinery & Chemical Corp., 99 NLRB 1430; Metal Workers' Alliance Incorporated (TRW Metals Division, TRW Inc.), 172 NLRB No. 34. 10 Ferro Stamping and Manufacturing Co., 93 NLRB 1459; Local 153, International Unity, United Automobile, Aircraft and Agricultural Implement Workers of America, 99 NLRB 1419; Food Machinery & Chemical Corp., 99 NLRB 1430; Local 173, International Molders & Foundry Workers Union of North America, 120 NLRB 170; Motion Picture Screen Cartoonists, Local 839, 121 NLRB 1192; Local 611, International Brotherhood of Teamsters, that -the Respondent's reinstatement fee is excessive-not that it is discriminatory. Although the Act does not speak expressly of reinstatement fees, it is now, established that a reinstatement fee is merely An initiation fee` charged to, a particular class of persons-those who, had previously joined but are not currently members .9 Accordingly, reinstatement fees are within the intendment of Section 8(b)(5) -of lthe Act. This case is not the first case where a .violation of Section 8(b)(5) has been considered, but it is the first case f. have come upon in which the issue raised did not embrace,, in part at, least, the "discriminatory,alternative of Section 8(b)(5) of the Act.10 In General Lotngshoremen's'Association, Local Union No. 1419, AFL-CIO, 186 NLRB No. 94, the Trial Examiner, whose decision the- Board ^adopted; after finding that the initiation fee of $1000, admittedlydesigned to -discourage the entrance of casuals into the ^ stevedoring industry, was discriminatory,'commented that the case was tried"onthe basis that the $1000 initiation-fee Was excessive, but concluded that initiation fees adopted fromdiserimina- 'tor motives "must in the nature of things be excessive" 11 ,and therefore found that the $1000'1nitiation°lee' was excessive as well as discriminatory. In the case at hand it is impossible to find'excessivetiess derivatively from a discriminatory motive because itMwas conceded here that there was no such motive. Hence, if the reinstatement fee here was excessive, it must be so r determined on.Brie ground that itis disproportionate to the emlployees''pay and disproportionate to^the fees charged by . " other'unions in the industry The Charging Parties in their brief assert that'paying;the helper's` fee, of $250 in installments of $25 a Week for 10 weeks' meant paying from 20 to 25 percent of the employees' weekly take-home pay. R'f'his, of course, would depend on the classification and rate of pay of employees, and take-home pay' may ,well vary from 'employee.to employee._On the basis of gross pay,of helpers, the'$25' a week would represent ,18 or 20,percent of Weekly gross earnings; for 10 weeks. But the `same percentage would be paid on the original initiation fee of $150 which could also be paid at the rate of $25 a week, albeit for 6 weeks instead of 10. Yet it is not claimed that the original initiation fee is excessive. On a total basis, the $250 fee would, represent roughly 'l weeks' take-home pay (as compared to about 1- 1/4 weeks' pay for the initiation- fee) but, paid on the installment basis, this does not shock one's conscience. A shocked conscience is, however, not a reliable gauge of excessiveness . The line, between a lawful fee and one that is excessive under Section 8(b)(5) of the Act is not apt to be- ,)(5) fine one, and to split `the shadowy zone on the degree of easonable man shock' to the conscience of the^proverbial reasonable' would 'b e like measuring equity by the ` lengtf of the chancellor's foot. In comparison with a $100 fee, a fee of Chauffeurs, Warehousemen, & Helpers -of, America (St. Louis Bakery Employers Labor Council et al.), 125 NLRB 1392; Television° &, Radio Broadcasting Studio Employees, Local 804, 135 NLRB 632; New York Local 11, NABET, 164 NLRB , 242; General Longshore Workers,, International Longshoremen 's Association, Local Union No. 1419, AFL-CIO (New Orleans Steamship Association). 186 NLRB No. 94., 11 See also New York Local 11, NABET; 164 NLR8,242, and Television & Radio Broadcasting Studio Employees, Local 804, 135 NLRB 632. ' LOCAL NO. 749 INTL. BRTHD. OF BOILERMAKERS $1000 might seem -clearly excessive. However, if you increase the fee ` $1` at a time from $100, the fee could be considered excessive before the sum actually, reaches $1000. But it would not be easy- to say at what point it became excessive. What might be excessive in one union might not be excessive in another. This is why the size of the fee must be measured 'm the light of all the circumstances, for in one case a $250 fee might be deemed excessive where it would not under different circumstances. Thus, we may be assisted in 'f"ixing the figure which will be - considered excessive by making a comparison with practices in the same ' industry; by other labor organizations under like circumstances, one 'of which would be comparable wage rates. Three of Respondent's sister locals computed the reinstatement fee on a sliding scale of 3 to 6 months, which amounted to $50 plus the amount of dues that would have accrued in that period of time. A fourth sister local (there being "only five in the area including ' the Respondent) charged no more for reinstatement than for initiation. In each-case, the rates-of pay of the represented employees was the same as those at the Employer's shop. The result is that the percentage of take-home' pay required 'of employees represented by those sister locals as a reinstatement fee was much lower than that exacted by the Respondent. Pertinent also to a resolution of the problem is the question of why the Respondent needed $100 more for reinstatement 'of a delinquent dues 'payer - than for his original initiation. The Respondent offered no explanation for the larger sum.12 Indeed, it put no witnesses on the stand at ,all. Although slow payment of "dues may be' assumed to result in inconvenience through loss of needed funds, no showing is made that a figure based on a, reasonable, amount of interest would not have met the needs of Respondent. Sister locals of Respondent apparent- ly found no such figure as $250 necessary to meet their needs. Accordingly; it was incumbent on the Respondent to prove a good reason for requiring more. This it failed to do.' Before the General Counsel amended it, the complaint referred to the alleged 'excessive fee as a punitive fee. Section 8(b)(5) of the Act does not concern itself with penalties ' as such, and the word "punitive" is not-used in Section 8(b)(5) at all. The propriety of a fine or penalty for nonpayment of- dues is an internal union matter-except where membership is a condition of employment, as it is here, and where employment is sought to be terminated for nonpayment as it was here. Here, the reinstatement fee was used 44 form'of penalty. When a penalty is used to'limit an em 44 ployee's right to his job, such form of penalty is one of the several circumstances to be considered in det_ermin-- ingwhetk►er or not the fee is excessive Here, then the circumstances to be considerednclude (1) the penal nature of the higher reinstatement fee, ,(2) the fact that $250 is equal-to something close to 2 weeks' take-home pay for at least' some of the employees,13 a higher percentage -of take-home pay than is required by other 12 See Teamsters Local 611 (St. Louis Bakery Employers Labor Council), supra, fn.10. 13 At a starting rate of $3 an hour it would be more than 2 weeks' gross pay. - 14 Only a layerout and a boilermaker-on the second or third shift at the Employer's plant earned more than $4.35, according to the collective- bargaining agreement in evidence . The 1970 rates ranged from $3.90 to 507 unions in the area, including sister locals of Respondent, and (3) the fact that, in the industry here involved and in, the general area of Respondent's location, nine other unions, including four sister locals of Respondent, have lower reinstatement fees than Respondent and have reinstatement fees no higher than their original initiation fees although their members' rates of pay are the sameas here. The figures for initiation and reinstatement fees listed in Respondent's exhibit, heretofore mentioned, which covered eight unrelated unions, I find are not apposite since they are, for unions in different industries than the manufacturing industry here involved and in industries where rates of pay are considerably higher than those paid by the Employer. However, even those figures do not give full support to Respondent's position, for only one union is there shown to charge a higher reinstatement fee than the Respondent-that is the Iron Workers, whose reinstate-, ment fee is - $300, the same as its initiation fee, but ;whose journeyman rate of pay is almost 50 percent higher than the Respondent's journeyman's rate at the Employer. Further- more, the other seven unions listed on Respondent's exhibit required reinstatement fees ranging from $1 plus delinquent dues to $200- (for Painters), but She latter sum was due;only after 6 months' delinquency, and the journeyman's-rate for painters was $5.92per hour as compared with Respondent's $4.35 (which presumably is an average rate, since the journeymen's rates at-the Employer's plant in 1969, ranged from'$3.70. to $4.71, according to the collective-bargaining agreement in evidence, and more of the rates shown there are lower than the $4.35 figure than they.are higher).14 In its brief, Respondent seeks to exclude from considera-, Lion the disparity between.Respondent's initiation fee and its reinstatement - fee by relying on - the decision in Food Machinery & Chemical Corp., 99 NLRB 1430. In that case, the Board held that a reinstatement fee that was in excess of an initiation fee was not discriminatory.'However, in that case, it had been - conceded at the outset that the reinstatement fee of $60 as against an initiation fee of $30 was not excessive; so the Board' did not consider, the question of excessiveness. It dealt only with the alternatiye part of section 8(b)(5); so the only issue-before the Board was -whether or not the $60 fee -was discriminatory. The, Board found that it was not. If the question of discrimina- tion were the only issue here, the result here might have been the same as in that case. However, here the issue of excessiveness of the,reinstatement fee was raised, and the, possible discriminatory character of it was not. Hence, neither the Food Machinery case nor other cases ' passing only on an issue of discrimination can be considered apposite here.15 - Considering all the circumstances, then, I conclude and find that Respondent's ,reinstatement fee -charged to employees between December 16, 1968, ,the, date 6 months before the date of the filing of the charge, and' December 29, 1969, the date on which . Respondent amended its $4.96 for journeymen. Helpers still received $3 to $3.50.- 15 See also Local 173, International Molders & Foundry Workers Union of North America, 121 NLRB 170; International Association of Machinists, Precision Lodge No. 1600, 120 NLRB 1223 [where no violation of Section 8(b)(5) was involved-only Section 8(b)(l)(A) and (2)1; Metal Workers' Alliance Incorporate4 173 NLRB No. 34 [also a case under Section 8(b)(1)(A) and (2)1. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bylaws to ,reduce its reinstatement fee to one comparable to the reinstatement fees charged by the several sister locals,, which used a sliding scale, was excessive under all the circumstances, within the meaning of Section 8(b)(5) of the Act.16 B. Restraining or Coercing; Attempting To Cause Discrimination The complaint, as amended, alleges that, on several dates in 1969 and 1970, Respondent attempted to cause the Employer to discharge employees in violation of section 8(b)(2) and (1)(A) of the Act -that it attempted to cause the discharge of Louis H. Daniels' because of his- failure and refusal to pay the reinstatement fee which has herein been found to be excessive and attempted to cause the discharge of Douglas C. Martin -on April 28, 1970, Jeffrey Roberts on' September 17, 1970, and, Michael -Roberts on October' 7, 1970,1or reasons other than their failure to tender initiation fees and periodic dues. The facts concerning Daniels have been related hereto-, fore in connection with the excessive reinstatement fee. Douglas Martin was - employed by the Employer as a welder's helper in late February 1970'. About a month later, Ralph Runyan, Respondent's secrets y-treasurer, accom- panied' by Al King, a steward, approached Martin and asked Martin if he would like to join the 'Union .- Martin replied, laconically, "No." Runyan told him, according to Martin (Runyan did not" testify): "I€ you don't join, you" can't work here." Martin replied, "I know." On a later occasion,` Runyan returned, showed Martina paper ' (a membership application ' blank) and asked if Martin was ready to sign up. Martin again answered, "No," but added that he would pay the Respondent's dues and initiation fee. Runyan, according to' Martin, told Martin thatif"he did not join then it would ' cost him $300. When Martin asked, "Why so much?" Runyan replied,' again according to, Martin, that it was because everyone else had signed up. The figure of $300 and Runyan's reply strike me as unusual', and` difficult to understand. Runyan was not called as' a witness to correct the testimony, but if Runyan made some such statement, -I am inclined to believe that he was either not fully, or not accurately, quoted. On April ' 28, 1970, the Respondent wrote -to the Employer's president "asking that Martin be terminated because "Mr.' Douglas -Martin has failed to comply, with Rule 2, Paragraph `C of our existing ., .. Agreement " Following the date of this demand,"Martin was summoned to an office by an employer representative. When he arrived, he found present Willie Oehrlein, the Employer's plant ,supervisor, David Strituling, a representative of an employers' council, and employee named Kuening, and Al King, the Respondent's steward. Strimling told Martin that this was the day he was supposed to join the Respondent,' Martin had in his hand $170 which he offered King, who asked Martin to, sign" an application for membership. 16 Aside from the question of excessiveness of the Respondent's reinstatement , fee, under , all the circumstances of this case, it is not suggested here that a reinstatement fee which is higher than an initiation fee is, by virtue of that fact alone, excessive. 17 The application form contained a statement that the signer would Martin replied that he "would not , sign an application fdr,, membership 17 or take the oath but would ,beuwilling to;pay, the money required by the Respondent. King refused to take Martin's money unless Martin signed the,application., Jeffrey Roberts was hired by the Employer about August 1, 1970, as a welder's helper. Toward the end of that month,, Runyan approached ,Roberts, told him his 30 -days were almost , up, said that Roberts had to join ,,the 'Respondent', and asked Roberts to sign some ,papers. Roberts replied that he was , willing to pay "the fees and initiation" but was, not willing to sign papers or, take the Respondent's oath. Roberts said that . if he changed his mind, he would let. Runyan know. Two or three weeks later,, , Runyan approached Roberts , again and commented that Roberts. had not contacted him. Roberts told Runyan thathe had said he would contact him if he changed his mind and_ he, had not done so. Runyan asked if Roberts hid $80 with him. Roberts said he,did not carry that amount around with, him - t,hat ,he would give Runyan $50 at that time and $100 the next day. Roberts looked , at, the application, blank Runyan carried with himand noticed the statement `thereon, that the signer agreed to abide by , Respondents rules. Runyan asked if Roberts , was going, to ,sign. Roberts' said, "No," and Runyan lefttafterfremarking,""Allright. I'll have, to get you fired." Although the complaint,,as"amended at the hearing,, alleges that Respondent requested the, Employer to discharge Jeffrey Roberts on September " 17" 1970, Respondent's ^ answer had, ,before the amendment; denied the paragraph to which Roberts' name was added.` Respondent did not amend its answer to, include Roberts' name in its denial. 3 conclude that there' was no issue asto the request for' Roberts' discharge.But if failure to amend the answer was merely an oversight by''Respondent; it would still not affect the result hereof because there is no evidence that Roberts was,,inUct, discharged. Michael Roberts was hired by the Employer" as a welder's helper on about' August 28, 19016."', 'bout 30 day's later, Runyan, accompanied by, a steward , told Roerts that his 30 days, were up and `that he should join the" Respondent. He handed Roberts an application form and a beneficiary form and asked him to fill therq out. Roberts readthem'and' then asked what would happen if he refused to, sgn., Runyan told- him that then he' would , be' ter inated:' Roberts asked-what would happen if ' he tendered the"dues' and initiation fee but refused to sign the forms. Runyan answe'red' that "the lawyers" ha'd' told him not to take the money if it was `offered under those circumstances because' he would have no name, address, or social security number to enter the fees under. Roberts' told Runyan he would' think about the matter and 'notifyhim" by"August 30. Onll that day, Roberts went to'anaoffice , presumably, Respon^ dent's,' but Runyan was not in.' Roberts` left word with a, clerk to tell Runyan he would not ysign the application but, would 'send him a money order the next day. On October 1,t' Roberts mailed Runyan a money order for, $25 as the first' installment - on his initiation fee but again stated that `he' would "not sign the union contract or take the oath." ..agree to abide by the laws of the International Brotherhood and .. . subordinate body." 18 As previously stated, the initiation fee, was permitted by Respondent to be paid in weekly installments of $25. LOCAL NO. 749 INTL. BRTHD. OF BOILERMAKERS Runyan returned the money order to Roberts with a letter dated October 7, 1970, stating that he had told Roberts he could' not accept his money until he had signed the application for membership. On°the same date, October 7, 1970, Respondent wrote to the Employer a letter requesting it to terminate Michael Roberts.' C. Conclusions as to Attempting To Cause - Discrimination 1. Daniels It is alleged in the complaint that Respondent attempted to cause theEmployer to discharge Daniels because of his refusal to pay an excessive reinstatement fee, and this, it is alleged, constituteda violation of Section 8(bX2) and (1)(A) of the Act.. It may be conceded that Respondent had no conscious intent to cause a discrimination against Daniels. It was- seeking -to enforce payment of its reinstatement fee according to its ,uniform,practice. But if it sought to cause Daniels' discharge for nonpayment of a fine or assessment, regardless of whether- ornot,this was its uniform practice, Respondent would be found to have attempted to cause a discrimination, for the Act authorizes unions to affect an employee's employment status only for nonpayment of initiation fee or periodic dues uniformly required.19 There is no contention that Respondent could not suspend a member for nonpayment of dues and require him to -pay-a reasonable readmission fee. Nor is it denied that the ;Respondent had the right, under its union-shop agreement, to request Daniels' discharge for failure to pay dues, alone, regardless of whether or not he had offeredto pay a reinstatement fee. I find , however, that, by failing to requestv'Daniels' discharge for nonpayment of dues -,alone, as it could have done in January 1969, Respondent waived any right to do this so far as the facts here are concerned. It did not request the -Employer to, terminate Daniels until April-21, 1969, -after it had learned that D els had refused to pay his reinstatement fee. Meanwhile it refused to accept any dues from Daniels, delinquent or otherwise, pending payment of a reinstatement fee. When it finally did request Daniels' discharge, it did so because Daniels had failed to -pay areinstatement fee, which has herein been found to be excessive under all the circumstances. However, the excessiveness of the fee is really not of vital importance here. Regardless of Respondent's right to a reinstatement fee, Respondent's. collective-bargaining agreement gave it a right to request the discharge , of an employee only for nonpayment of his initiation fee or dues. The contract does not authorize the Respondent to waive the default in payment of dues and.-substitute as a condition of employment nonpayment of, a, readmission fee, which, in effect,- is a second initiation fee or penalty imposed for nonpayment of :dues. If Respondent wishes to enforce -an obligation to pay-a readmission fee, it must do so in the same manner in which it would ,enforce the payment of a fine or, assessment and not -by attempting to cause a discriminatory discharge. I conclude and find, therefore, is International Longshoremen's & Warehousemen's Union 'Local 17, 172 -NLRB No, 227 (fine); Local 959, International Brotherhood of Teamsters, etc. (RCA Service Company), 167 NLRB ,1042(working dues regarded as an assessment); peerless Tool & Engineering Co., Ill NLRB 853 (refusal to 509 that, by attempting to cause the Employer to discharge Daniels for nonpayment of a second initiation fee (whether excessive or not), Respondent violated Section 8(bX2) and (1)(A) of the Act. 2. Martin and the two Roberts It is clear that Respondent refused to accept payment of initiation fees and dues from Martin and each of the Roberts because they would not sign an application for membership. Each offered payment but it was declined'by the Respondent because they would not '' sign such application blank. Even though the Respondent's collec- tive-bargaining agreement conditioned employment on an employee's becoming a member in good standing, this could not be insisted on beyond the requirement of-tender of periodic dues and the initiation fees uniformly required. The law on this point has been settled since the. Board's decision in Union Starch and Refining Co., 87 NLRB 779, enfd. 186 F.2d 1008 (C.A. 7), cert. denied 342 U. S. 815. The distinction between- voluntary, full membership and compulsory membership limited to the payment of initiation fees and dues is important when considered in the light of the, decision in N.L.R.$. v. Allis-Chalmers Manufacturing Co., 388 U.S. 175. If an employee signs a membership application blank in which he agrees to be bound to union rules, he is subjecting himself to possible fines which could not be imposed on those who pay only the initiation fees and dues which the Act permits to be charged by a union as a condition of continued employ- ment. The Act does not require that an - employee sign a contract imposing on him obligations other than the duty to pay initiation fee and dues. In its letters requesting the -termination of Daniels, Martin, and Michael -Roberts, which are in evidence, Respondent gave, as the reason for its request for their termination, only that each had "failed to comply with Rule 2, Paragraph `C' of our ... Agreement." This, does -not accurately state the real reason for the request for their termination, and the Employer, presumably knew the real reason and refused to act on'- the Respondent's request. Whether or not there has been a violation of Section 8(b)(2) and (1)(A) depends on the real reason and not on merely the stated reason. In this case, therefore, I make my decision based on the reasons which I have hereinabbve found to be the true ones motivating the Respondent. Accordingly, I find that the Respondent, by requesting the termination of employment of 'Daniels , Martin, Jeffrey Roberts, and Michael Roberts, for the reasons found, violated Section 8(b)(2) and (1XA).of the Act :: - VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent, set forth in Section V, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several•States,and take dues without payment of an assessment); Millwrights' Local 2232, 122 NLRB 300 (assessment); Tom's Monarch Laundry & Cleaning' Company, Inc.,, 161 NLRB 740, 746; John Deere Planter Workers ofDeere & Company, 107 NLRB 1497; International Harvester Company, 95 NLRB 730. 510 DECISIONS OF NATIONAL-LABOR RELATIONS BOARD tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. VII. TI-IE REMEDY I have found that the Respondent violated Section 8(b)(5) of the Act in exacting a reinstatement fee which was excessive under all-,the circumstances.' Accordingly, I shall recommend that it cease and desist therefrom and that it refund excess payments made to' it by its suspended members, in the collective-bargaining. unit here involved during the period from December 16, 194, to December 29, 1969, which includes the time beginning with the earliest date under, the, limitation of Section 10(b) of the Act and ending with a „,date M determined- by the, date when Respondent adopted new by-laws reducing its reinstate- ment fee. A question may be raised as to whether- the "excess" ` should be that which exceeds Respondent's original initiation fee,-of $150 for helpers` and $200 for journeymen or that which exceeds the reinstatement fees adopted on December- 29, 1969. Since no contention is made that the initiation fee, itself, is excessive, I find it-more reasonable 'here to accept 'that as also a readmission fee which would- not be excessive, and I shall fashion the remedy accordingly. Employees William R_Haslain and Ernest J. Benge were alleged in the complaint, to have been required to, pay,an excessive reinstatement fee. Although they were required to pay, this feeas a condition of continued, employment, which has been; found herein to be an illegal, condition, the complaint did not allege, as to them, or, as to any other except Daniels, a violation of Section 8(b)(2) of the Act by requiring the payment of a readmission fee as a condition of • continued ^ -employment. The complaint alleged only a violation of Section 8(b)(5)- as to Haslam and Benge: For this reason, I shall not recommend an order that Respondent refund the entire $250 reinstatement fee to each of them but, I -shall recommend an order that Respondent' repay each of 'them (other than Daniels) only the amount found to be excessive,'i.e. $100. This is the appropriate reniedy not only for Haslam and -Benge but also, for others', in ,the unit who were required to pay such excessive amount. Since^nthe Employer, did not, discharge Daniels, Martin, Jeffrey Roberts,' or Michael Roberts, no reinstatement remedy is, required. I shall therefore, merely recommend an order that Respondent cease and desist from attempting to cause the termination of those or any other employees of the Employer for,any cause other than-the nonpayment of initiation fees or periodic dues; and that Respondent return to said Daniels any sum he may have been compelled by Respondent,ta:pay on a readmission fee as a condition of continued employment. Upon th6,basis of the foregoing findings of fact and upon the entire record in the case, I make the following: '20 In the event no exceptions are filed a's'provided by Section 102.46 of the `Rules -and Regulations ofy the National Labor Relations Board,'the findings, conclusions and recommended Order herein shall, as provided in CONCLUSIONS , OF =LAW . , , 1. The Employer is engaged in ,commerce within the meaningof Section 2(6) and (7) of theAct., 2., Respondent is a labor , organizatiot, , %Kithin the meaning of Section 2(5) of the Act: 3. By requiring dues-delinquent members to pay a reinstatement, fee which , was -,excessive.-under all the circumstances, Respondent engaged in unfair labor practices within the meaning of Section 8(b)(5) of the Act. 4. By attempting to cause the Employer to terminate the employment of Louis Daniels, Douglas C. Martin, Jeffrey Roberts, and Michael Roberts for ,reasons , other than nonpayment of initiation feesordues uniformly,required as a condition of continued employment under its lawful union-shop ' agreement, Respondent =has engaged in, and is engaging in, unfair labor practices 'within the meaning .of Section 8(b)(2) and '(1)(A) of the Act.. ' t r 5. The aforesaid unfair labor practices,are- unfair labor 'practices affecting commerce-within the meaning of Section 2(6) and (7) of the Act. - Upon the foregoing findings of-fact,and conclusions,of law, and upon the entire rrecord in the case, and pursuant "to Section 10(c) of the National Labor Relations, -Act,` as amended, I hereby issue the following recommended: 20, ORDER - Respondent, Local Union-No., 749, -International, Broth- erhood of Boilermakers, Iron Shopbuilders;-, Blacksmiths, Forgers & Helpers, AFL-CIO, its officers; agents, r-and representatives, shall: I.^ Cease and desist from: (a) Requiring of any employees covered by an,agreement, authorized under Section 8(aX3) of the Act,' the payment, as a condition precedent = to . reinstatement,,,as members. Of such organization, of a fee in an amount which. hasp herein been found to be excessive under all the circumstances. . (b). Causing or attempting to cause: the.-Employer to discriminate against any - employee, (including Louis H. Daniels, Douglas C. Martin, Jeffrey Roberts- and Michael Roberts) for failure to pay any-moneys or perform any,act other than failing to-pay moneys due as an initiation; fee or periodic dues uniformly . required as a., -condition, of employment- under an agreement authorized - in - Section 8(a)(3).of the Act. 1 1-11 1, 1, - (c) In any like -or related manner restraining or coercing employees of the Employer in the exercise, of the rights guaranteed in Section?, of the,Act. - . I - 2. Take the' following affirmative ' action , , which' is necessary to effectuate -the policies of the Act: - (a) Refund to each employee of the Employer (including William , R. Haslam and, Ernest J. Benge)-who, abetween December 16, 1968, and-December 29, ' 1969, was required by Respondent-to pay a reinstatement fee,,such as-has been found herein to. be excessive,; the sum of$100.i,- , , (b) Pay to=Louis-H. Daniels any sum he may have&paid in excess of the dues required of him, to maintain membership in Respondent as a condition of employment. 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.' LOCAL NO. 749 INTL. BRTHD. OF BOILERMAKERS 511 ° (c) Rescind, in a writing sent to the Employer, its requests for the termination of Louis H. Daniels,,Douglas C. Martin, Jeffrey Roberts, and Michael Roberts. (d) Notify said Daniels, Martin, Jeffrey Roberts, and Michael Roberts, in writing, if they are still employed by the Employer, that it has rescinded its request for their termination'of-employment and that it will not require them to perform any act or pay any moneys as a condition -of continued -employment except to pay that sum of money which is uniformly required as an initiation fee or periodic dues in accordance with an agreement requiring member- ship in Respondent as authorized in,Section 8(a)(3) of the Act. (e) Post at its offices and at its meeting place where members who are employed by the Employer meet copies of the attached notice marked "Appendix." 21 Copies of said notice, on forms provided by the Regional Director for Region 20, shall, after- ,having been duly signed by Respondent's representative, be posted by Respondent immediately upon receipt thereof and be maintained by Respondent for 60 consecutive days thereafter, in conspicu- ous places, including alt places where notices to members are customarily' posted. Reasonable steps shall be taken by Respondent `to insure. that said notices are not altered, defaced, or covered by any-othei material. (f) Upon receipt from said Regional Director of additional copies of said notice, sign them and mail them,t to the Regional Director for Region 20 for posting at the plant of the Employer at Escalon„ California, the Employer being willing. (g) , Notify the Regional Director for Region 20, in writing, within 20 days from the date of receipt of this Decision and recommended Order, what steps Respondent has taken to comply-herewith.22 21 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 National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment , of the United States Court of Appeals Enforcing an Orderof the National Labor Relations Board." 22 In ,the event,-that this recommended Order is adopted by the Board after exceptions havejbeen filed, this provision shall be modified to read: "Notify the Regional Director for Region 20, in writing, within 20 days from the date , of this Order, what -steps `the ,Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLQYEES AND- MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The Decision of a Trial Examiner of the National Labor Relations.Board: held-that, between December 16, 1968, and December 29,1969, we required employees (covered by an agreement with California Blowpipe & Steel Co., Inc., requiring membership, in Local 749 as a condition ` of employment) ._ to pay, _ a reinstatement - fee which was excessive under all the circumstances, and that, as a condition of employment, we required the performance of acts or the payment of an amount other than the payment of the initiation fees and dues uniformly required to become and remain members as required under the terms of our union-shop agreement with said Employer, and that we thereby violated Section 8(bxl)(A), (2), and (5) of the National Labor Relations Act, as amended. To remedy such unfair labor practices: WE WILL NOT require the payment by any employee covered by an agreement authorized under Section 8(a)(3) of the Act, of a fee in an amount which the Board finds excessive under all the circumstances. WE WILL NOT cause or attempt to cause said Employer to discriminate in regard to the hire or tenure of employment of any employee except to the extent authorized by an agreement made in accordance with Section 8(a)(3) of the Act. This means that we will not request the discharge of any employee, who is covered by a union-shop agreement, for any reason other than the failure of such employee to tender the payment of initiation fee or periodic dues. WE wu.L refund $100 to each employee of said Employer who, between. December 16, 1968, and December 29, 1969, was charged an excessive reinstate- ment fee. Among others who paid such excessive reinstatement fee and are entitled to such a refund are: William R. Haslam and Ernest J. Benge. i WE WILL pay to Louis H. Daniels whatever sum he may have paid over and above the initiation fee and the periodic dues we required him to pay as a condition of continued employment in 1969. WE WILL notify said Employer in writing that we withdraw our request for the termination of employ- ment of the following employees: Louis -H. Daniels, Douglas 'C. Martin, Jeffrey Roberts, and Michael Roberts and we will notify each of said employees in writing that we have withdrawn our request for termination of their employment. Dated By LOCAL UNION No. 749, INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIPBUILDERS, BLACKSMITHS, FORGERS & HELPERS, 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 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, 13050 Federal- Building, 450 Golden-Gate Avenue, Box 36047, San Francisco, California 94102, Telephone 415-556-0335.