IAM, Local 590

514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Machinists and Aero- APPENDIX space Workers, AFL-CIO, Local Lodge 590 (Wayne Manufacturing Company) and Gary L. San- ner and Paul King, II. Cases 21-CB-3939 and 21- CB-3953 February 22, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On October 23, 1971, Trial Examiner Leo F. Light- ner issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and has decided to affirm the Trial Examiner's rulings, findings, and conclusions, and to adopt his recommended Or- der, i as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order the recommended Order of the Trial Examiner as modified and hereby orders that International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge 590, its officers, agents, and representatives, shall take the action set forth in the Trial Examiner's recommended Order, with the following modifications: 1. Delete paragraph 2(b) and substitute therefor the following: "(b) Refund to Gary L. Sanner, who was required by Respondent to pay a reinstatement fee such as has been found herein to be improperly assessed, the sum of $75; and reimburse Paul King II for any reinstatement fee paid by him to obtain his reemployment." 2. Substitute the attached notice for the Trial Ex- aminer's notice. ' The Respondent has excepted to the inclusion of the words "each employee of the Employer" in Sec 2(b) of the Trial Examiner's recom- mended Order Inasmuch as both the allegations of the complaint and the matters litigated at the hearing were confined solely to the discharge of employees Gary L Sanner and Paul King II, we shall amend the Order to direct a refund to them only NOTICE To EMPLOYEES AND MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT cause, or attempt to cause, Wayne Manufacturing Company to discharge Gary L. Sanner or Paul King II or otherwise to discriminate against them in regard to the hire or tenure of employment or terms or conditions of employment of employees in violation of Section 8(a)(3) of the Act. WE WILL make Paul King II whole for any loss of pay he may have suffered by reason of his dis- charge on April 2, 1971, and WE WILL reimburse him for any reinstatement fee paid by him to ob- tain his reemployment. WE WILL reimburse Gary L. Sanner for the reinstatement fee of $75 paid by him to avoid a discharge at our request. 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 we will not request the discharge of any employee who is covered by a union-shop agree- ment for any reason other than the failure of such employee to tender the payment of an initiation fee or periodic dues. WE WILL notify said Employer, in writing, that we withdraw our request for the termination of employment of Gary L. Sanner and Paul King II, and WE WILL notify each of said employees, in writing, that we are withdrawing our request for termination of their employment. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, LOCAL LODGE 590 (Labor Organization) Dated By (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. 195 NLRB No. 98 IAM, LOCAL 590 515 Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Eastern Columbia Building, 849 South Broad- way, Los Angeles, California 90014, Telephone 213- 688-5200. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE LEO F. LIGHTNER, Trial Examiner: This proceeding was heard before me in Los Angeles, California, on August 19, 1971, upon the complaint of General Counsel, as amended, and the answer of International Association of Machinists and Aerospace Workers, AFL-CIO, Local Lodge 590, herein referred to as Respondent.' The complaint alleges violations of Section 8(b)(2) and (1)(A) and Section 2(6) and (7) of the Labor Management Relations Act, 1947, as amended, (61 Stat. 136; 65 Stat. 601; 73 Stat. 519; 29 U.S.C. Sec. 151, et seq.), herein called the Act. The parties waived oral argu- ments and briefs filed by the General Counsel and Respond- ent have been carefully considered. Upon the entire record,' and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I THE BUSINESS OF THE EMPLOYER Wayne Manufacturing Company, herein referred to as Employer, is a corporation engaged in the manufacture of street sweepers, with a plant located at 1201 East Lexington Street, Pomona, California. The Employer annually, a repre- sentative period, sells and ships products valued in excess of $50,000 directly to customers located outside the State of California. The complaint alleges, the answer admits, and I find that the Employer is an employer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. II THE RESPONDENT IS A LABOR ORGANIZATION The complaint alleges, the answer admits, and I find that Respondent, at all times material , is and has been a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES The Issues The principal issues raised by the pleadings and litigated at the hearing are whether the Respondent engaged in conduct in contravention of the provisions of Section 8(b)(2) and (1)(A) by on or about March 8, 1971, (a) attempting to cause the Employer to discharge Gary L. Sanner for nonpayment of dues pursuant to the provisions of a union-security clause at a time when Sanner was under no statutory obligation to pay such dues; or (b) on or about March 8, 1971, attempting to cause the Employer to discharge Sanner without first in- forming Sanner of his dues obligation pursuant to the provi- sions of the union-security clause and without affording San- ner a reasonable opportunity to satisfy such dues obligations; or (c) on or about April 2, 1971, causing the Employer to discharge Paul King, II, for nonpayment of dues pursuant of ' A charge was filed on March 17, 1971, in Case 21-CB-3939 A charge was filed on April 6, 1971, in Case 21-CB-3953 A Consolidated Complaint was issued on May 21, 1971, and amended at the outset of the hearing herein ' The record is hereby corrected the provisions of the union-security clause when King was under no such statutory obligation to pay such dues; or (d) on or about April 2, 1971, causing the Employer to discharge King without first informing King of his dues obligations pursuant to the provisions of the union-security clause and without affording King reasonable opportunity to satisfy such dues obligations. Respondent denies the commission of any unfair labor practice. Affirmatively, Respondent asserts that on or about March 8, 1971, after months of various types of notices, including handbills, letters to home addresses (including cer- tified mail), and verbal notices by shop stewards to delinquent employees, the Employer was notified to enforce the contrac- tual provisions requiring termination of those employees who had not complied with the union-security provision of the agreement. Further, Respondent further asserts that Sanner and King had ample opportunity to satisfy such dues obliga- tions between June 3, 1970, and March 1971. Agency The complaint alleges, the answer admits, and I find, that Thomas J. McDonald is secretary-treasurer of Respondent. McDonald credibly related that he became secretary- treasurer on October 7, 1970, and that his predecessor was James Smith. The complaint, as amended, alleges, and it is undisputed, that William Adkins was recording secretary of Respondent from July 1970 until January 1971, when he was succeeded by Peter Reitler. It is alleged and undisputed that James M. Bray at all times material herein was business representative of Respondent and that Robert Bannacky was shop steward. It is undisputed that all of those named were agents of Respondent within the meaning of Section 2(13) of the Act, during the periods of time specified. In addition, Gary L. Sanner identified Paul Filpot as the Union steward in the sheet metal department, in a period commencing August 1970. Sanner also identified Tony Har- ris as a shop steward in the machine shop, on the swing shift, in a period commencing September 1970. Sanner also iden- tified Wally Kile as shop steward in the sheet metal depart- ment, inferentially on approximately August 24, 1970; how- ever, it is obscure whether Kile was on the day shift or the swing shift. Respondent has not disputed the recitation of Sanner as to the identity of these shop stewards or depart- ment stewards. Since Respondent does not dispute the agency of shop steward Bannacky, I find it reasonable to infer that these other shop stewards, likewise, were agents of Respond- ent within the meaning of Section 2(13) of the Act. Background It is undisputed that, on September 2, 1969, International Association of Machinists and Aerospace Workers, AFL- CIO, was certified as the exclusive bargaining representative for a unit consisting of all the production and maintenance employees employed by the Employer at its plant in Pomona, supra, excluding office clerical employees, professional em- ployees, guards, and supervisors, including assistant foremen, as defined by the Act, in Case 21-RC-11154. On June 3, 1970, the International, for and on behalf of Respondent, and the Employer entered into a collective-bar- gaining agreement, which provides that it was effective from March 7, 1970, to and including November 1, 1972, covering the unit of employees described. The agreement contains, inter alia, provisions for checkoff and union-security, as fol- lows: 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ARTICLE XXIII-CHECK-OFF Upon receipt of a legally revocable written assignment from an employee, the Employer agrees to deduct on the first pay day of each month from the wages due any employee who is a member of the Union an amount equal to one ( 1) month's union dues as designated by the Secretary-Treasurer of the Union. The Company also agrees that initiation fees, as designated by the Secretary- Treasurer of the Union, will be deducted in two equal increments. All money deducted by the Company shall be remitted to the Secretary-Treasurer of the Union on or before the thirtieth (30th) day of the month. ARTICLE XXIV, UNION SECURITY As a condition of employment, an employee covered by this Agreement who has made application to the Union for membership shall, not later than thirty-one (31) days after the date of the execution of this Agreement, become and remain a member of the Union in good standing during the term of this Agreement. A new employee not covered by paragraph one (1) above who is covered by this Agreement shall, as a condition of employment, become a member of the Union on the forty-sixth (46th) day after a date of hire or transfer into the bargaining unit and remain a member in good stand- ing during the term of this Agreement. Any other employee not covered under paragraphs one (1) or two (2) who hereafter makes application to become a member of the Union, shall, within thirty-one (31) days thereafter, become and remain a member of the Union in good standing during the term of this Agree- ment. Effective February 1, 1971, it shall become a condition of employment that all employees covered by this Agree- ment shall, at the expiration of forty-five (45) days of continuous on-the-job employment, become and remain members of the Union. Failure to comply with the above conditions where ap- plicable will make the affected employee subject to ter- mination upon written request from the Union. On September 21, 1970, Bray, business representative of District Lodge 120, which includes Respondent herein, by letter, advised Richard Black, Director of Industrial Rela- tions for the Employer, inter alia: Enclosed is a copy of the official letter of final notifica- tion of Local Lodge 590 to those employees who have "made application to the union for membership" but who have failed to become members by tendering their initiation fee and dues . This letter explains the em- ployees' obligation under Article XXIV, paragraph 1, of the Company-Union Agreement. It likewise explains the penalty for failure to comply with Article XXIV. The Union granted these employees an eight-one-day [sic, 81-day] extension to comply with the Agreement. You must admit that the Union has made every reasona- ble effort to secure voluntary compliance ... [The letter then listed the 41 employees whom Respond- ent was requesting the employer to discharge, by reason of the alleged delinquency in the matter of dues. Neither of the Charging Parties, King and Sanner, are included.] Attached to the Union's letter of September 21 to Black was a copy of a form letter, bearing the date of September 19, 1970, signed by Bill Adkins, recording secretary of Respond- ent, and inferentially mailed to members of the Union.' The ' Respondent was unable to produce evidence that its letter of September 19, 1970 , was, in fact , ever mailed to or came to the attention of either Union's letter advised , inter alia, that application for union membership "not later than 31 days after the date of the execution of this agreement ," by action of the membership, had been extended, for the purpose of deadline, from July 4 to September 1, 1970. McDonald related that this deadline was later extended to October 31, 1970. Alleged Unfair Labor Practit.es The events relative to each of the Charging Parties are next set forth, under the name of each. Gary L. Sanner The Employer's work record for Sanner reflects that he was initially employed on March 3 , 1969. He was laid off from November 7, 1969, until May 27, 1970. During this period of time it appears that a strike commenced on January 10, 1970, and was terminated on March 7, 1970. While San- ner did not participate actively in the activities of the Union during the period of strike, he was not employed by the Employer during that period. Sanner was employed from May 27, 1970, until September 8, 1970, when he was placed on a leave of absence by reason of an industrial injury . Sanner was again employed from November 3, 1970, until August 9, 1971, when he was again placed on a leave of absence by reason of an industrial injury. Sanner related that he first filled out an application for Union membership in August 1969, inferentially during the Union's organizing campaign . No initiation fee or dues were collected. Sanner asserted at that time the employees were advised that they would be apprised of the initiation fee at a later time.' Sanner did not attend any union meetings be- tween that time and August 1970, and it is reasonable to infer that he did not attend any union meetings thereafter. On August 24, 1970, Sanner was given a checkoff form by Filpot, steward in the sheet metal department. He filled out the form and returned it to Filpot the same day. This form contained, inter alia, the home address of Sanner as of that time.' Black related that the Union did not file this checkoff form with the Employer until October 26, 1970. During the last week of August, Sanner related that Filpot advised him that he had to fill out a new membership applica- tion form and pay an initiation fee.' Sanner credibly related that he gave a money order, dated August 28, 1970, to Filpot, in the amount of $12.00, to cover membership applications and 1 month's dues for himself and his stepbrother, Lonnie McCully. James Smith, secretary-treasurer, executed a re- ceipt bearing such a notation.7 Sanner asserted that these dues were for the month of August.' Sanner or King, the Charging Parties herein Respondent, in its brief, acknowledges no dues obligation resulted from this application Sanner related he moved in February 1971 I find no substance to the contention of the Respondent , in its brief, that Sanner was inaccurate in describing the amount of $6 00 as an initiation fee and a month 's dues McDonald related that there were no separate monthly dues for the month when the initiation fee was applied The receipt, dated August 28, bears the following notation "For two applications-self and stepbrother (Lonnie McCully) " Respondent, in its brief, would assert that these dues were applicable to the month of July, explaining that they were applied to the last month for which dues remained unpaid in the light of the moratorium, granted by the membership, initially until September 1, and later until October 31, for the application for membership, and consequently the application of the Union-Security provision, I am unable to find any merit in a contention of Respondent that dues were payable for months prior to the month of ap- plication for membership IAM, LOCAL 590 517 Sanner related that he cut his thumb and was on leave of absence from September 8 to November 3, 1970. On Septem- ber 21, he went to the plant to obtain his tools and talked to Tony Harris, shop steward in the machine shop, about 3:30 p.m. He inquired of Harris what his dues would be, if any, while he was off work. Harris advised him the dues would be 50 cents for any portion of the month up to 15 days. Harris also advised him that he would have to make the payment to McDonald, the Union treasurer. Sanner advised Harris he did not know the location of the union hall. Harris advised him it was on Mission Street, in Pomona, opposite General Dynamics. Sanner asserted that he proceeded to the union hall, accompanied by his wife, arriving there about 3 p.m.' Sanner first went to the office of a different local of the same International and was advised that Respondent was located next door He went to the office of Respondent and found the door locked. Sanner related that there had been a posting, at the plant, that Monday was the only day the union office would be open, and that it would be open between 2 and 5 p.m.10 Sanner related that he went to the back door and found it also locked. Sanner returned to the union hall on Monday, September 28, and on Monday, October 12, about 3 p.m., and each time found the doors locked. Sanner returned to the union hall on Monday, October 26, and found an auditor from the International headquarters in Washington present. McDonald was not there. Sanner inquired if he could pay his dues to the auditor. The auditor responded that he could not accept dues as he did not work there. The auditor advised him that the dues were 50 cents per month for months when he was off work. Sanner returned to the union hall, on Monday, November 2, about 3 p.m., and again found the door locked." Sanner returned to work on Tuesday, November 3, 1970. Sanner, at that time, was on the swing shift, which com- menced at 3:30 p.m. Sanner talked to Tony Harris, steward in the machine shop, at Harris' machine. Sanner inquired of Harris what Sanner's total dues would be and Harris advised him it would be 50 cents for September, 50 cents for October, and $7.60 for November. Sanner explained his reason for inquiring was that Sanner did not know the amount he owed. While Sanner had executed a checkoff form previously, he was aware of the fact that he did not have a check due from the Employer from which dues could be checked off. Sanner then inquired if he could pay the amount to Harris. Harris It is obvious if Sanner talked to Harris at 3.30 p in , as he related, he could not have arrived at the union office at 3 p.m. If, as the Respondent contends, the notice relative to the union office being open on Mondays, from 2 to 5 p in , was not posted until after McDonald took office, on October 7, it is possible that Sanner was in error as to the date of his first trip to the union office However, I do not find this inaccuracy, if it is an inaccuracy, of substantial importance to findings which follow 10 McDonald asserted this notice was first posted after he became secre- tary-treasurer on October 7 1 find it unnecessary to resolve this conflict " Sanner explained that he did not make any effort to contact McDonald at work as they were not allowed to do so In addition, he did not know McDonald, never having met him McDonald asserted that when he became financial secretary, on October 7, 1970, he established office hours on every Monday, except the first Monday of each month, from 2 to 5 p m. McDonald published these office hours by notice posted on plant bulletin boards at all three plants McDonald acknowledge he did not have a record of the time he was actually present in the union office in October and November McDonald was inconsistent in first asserting he was in the office on Mondays after taking office "with the exception of going out to lunch, and going to the post office, or to the bank, which was seldom," then asserting the business repre- sentative posts a notice on the door when McDonald would not be there, or would be late, on these Mondays McDonald admitted that union busi- ness, details obscure, kept him away from the office on some Mondays I credit the assertions of Sanner relative to the union office being closed when he went there to pay his dues responded that he was not allowed to accept money and that Sanner would have to pay it to McDonald.12 Sanner acknowl- edged that he made no further attempt, during 1970, to pay McDonald. Sanner credibly related that he did not attend any meetings of the Union, including a meeting for ratification of the con- tract at the time of settlement of the strike in March 1971." Sanner did not see any handbills or union literature in regard to employees who had signed membership applications and inferentially were in default relative to dues payments. Sanner credibly related that he did not receive any written or oral communication, in 1970, from the Union relative to his dues payment. Under date of February 19, 1971, the Union, by letter over the signature of McDonald, advised Black that 24 named employees should be terminated at the close of their work shift on March 1 by reason of their failure to comply with the conditions of Article XXIV, union-security, of the collective- bargaining agreement. Sanner and King were among those listed. A copy of that letter was sent by registered mail to Sanner and received by him on Friday, February 20. On Monday, February 23, about 8 a.m., Sanner discussed this letter with Black. Black advised Sanner that he must be in arrears in his dues payments. Sanner and Black then checked Sanner's work record and determined that the months in- volved must have been September, October, and November. 14 The following morning, Sanner went to Black's office and in Black's presence wrote a check, payable to the Union, in the amount of $8.60, to cover dues of 50 cents for the month of September, 50 cents for the month of October, and $7.60 for the month of November. The same day Sanner had his wife mail the check to the Union." Sanner credibly related that he received no advice from the Union relative to his deficiency, either before or after mailing of the check, other than a copy of the letter to Black. 16 During the first week of March, Sanner received an envelope contain- ing his check, which contained a notation that it had been voided, together with a check from Respondent in the amount of $22.70, dated March 9." There was no letter of " Harris was not called as a witness, and Respondent made no explana- tion of its failure to call him Respondent, in its brief, asserts that Sanner had full knowledge that shop stewards were not bonded and, inferentially, thus not permitted to collect dues, "as required by the Labor Management Relations Act " If Respondent thus would attribute knowledge of the Act to Sanner, or knowledge of the limitations the Union placed on stewards, I find such contentions without merit " While Respondent produced no evidence to the contrary, it asserts in its brief that the fact that Sanner's work record lists him as "eligible for recall" implies he attended the March 7 meeting No evidence requires or would support such a finding " The months claimed by Respondent are August, September, and Octo- ber Respondent, in its brief, urges that by reason of Sanner applying for membership in 1969, his August payment was applied to July 1970, and his membership lapsed by his failure to pay 50 cents in September and October "substitution for dues while on leave of absence " McDonald asserted San. ncr's membership lapsed on October 31 " This check, inaccurately dated January 23, rather than February 23, is in evidence " While McDonald asserted that he mailed a notice of deficiency to Sanner on approximately January 20, the Respondent was unable to produce a copy of the letter The Respondent did produce a return registered receipt, signed by Peggy L Sanner, who credibly related the letter contained some information about an election The record is such that I am unable to find the recitation of McDonald, absent a copy of the letter, adequate to establish that Sanner was advised of his deficiency on or about January 21 McDonald was inaccurate and unpersuasive " On March 17, 1971, Black supplied Sanner with a record of dues deductions made, pursuant to his checkoff authorization, reflecting pay- ments to the Respondent of December 1970, $7 50, January 1971, $7 50; (Cont.) 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD explanation accompanying these checks , and the checks were wrapped in a plain sheet of white paper.18 By letter dated March 9 , signed by McDonald , addressed to Black, Respondent advised the Employer that it was re- questing the termination of six named employees , including Sanner and King, for nonpayment of dues. Sanner did not receive a copy of this letter from the Respondent but did receive a copy of it from Black on March 17 . On March 17, Black, by letter, advised Sanner that he would be terminated April 1 by reason of a demand made by the Respondent, through its secretary-treasurer, because of asserted noncom- pliance on the part of Sanner with article XXIV of the collec- tive-bargaining agreement . The letter asserts that the em- ployer accepts no responsibility for this action. Sanner related that he was advised by Black that he would be required to pay a $75 .00 reinstatement fee to the Union if he were to avoid a discharge." Sanner related that he sent a check for $75.00, together with a check for $8 .60, and re- turned the Union's check of $22.70, and all of this was for- warded to Respondent , inferentially approximately March 17. Black acknowledged that, in oral discussions with Bray, he was advised that Sanner's name should be removed from the list of those to be terminated by reason of Respondent's re- ceipt of the reinstatement fee. Subsequently, on March 23, Bray, by letter to Black , advised the Employer to remove Sanner's name from the list of those to be discharged, by reason of the payment of the $75.00 reinstatement fee. It is undisputed that the Employer did not advise the Un- ion when employees were off the payroll by reason of layoff, including a layoff resulting from an industrial accident. Mc- Donald asserted that the Union did not know that Sanner was unemployed during the period from September 8 to Novem- ber 3.2° When King returned on March 4, he called the plant and was advised of the existence of the strike . King related that he then called the union hall the same day and was advised that a meeting was scheduled for Saturday , March 7. King attended the meeting and was advised that the employees were to return to work on Monday , March 9 . King was not recalled at that time . In March or April, King inquired of an unidentified employees as to what was going on and was advised there was an initiation fee of $6 .50. King related that he mailed this amount to the Union but never received an acknowledgement or a membership card.21 King returned to work on August 25, 1970, and was laid off on November 27, 1970. During this period of time, on November 15, King sent a money order in the amount of $7.50 to the Union.22 King credibly related that after he returned to work, in August 1970, he did not talk to anyone from the Union relative to dues obligations , during that entire period of em- ployment, ending November 27. King asserted that he learned from other employees that the dues were $7.50 a month . King related that he contemplated a layoff in Septem- ber, and again in October, neither of which occurred. It was for this reason that he decided in November that he should forward a payment, which he did. The layoff of King lasted from November 27, 1970, until February 8, 1971. King related that one of the employees, whom he identified as Jim Grice, had a list with about 27 names of employees on it, whom Grice advised had to pay an initiation fee of $75 .00. King saw this list sometime after February 15. King acknowledged his name was on the list." King asserted that he had learned a few days previously that Bob Bannacky was "the steward." King located Ban- nacky and inquired as to the meaning of the communication. Bannacky advised that all of those listed had to pay $75.00. Paul King, II The Employer's work record for King reflects that he was initially employed on August 11, 1969. He was laid off on November 7, 1969 and was reemployed on August 25, 1970. During this period of time the strike commenced on January 10, 1970, and continued until March 7, 1970 . King was again laid off on November 27, 1970, and reemployed on February 8, 1971. King was terminated, at the request of the Union for alleged nonpayment of dues, on April 2, 1971. King was reemployed on May 5 , 1971, and was employed at the time of the hearing, August 19. King did not know if he was a member of Respondent. He did not know if he had ever signed a membership application. King credibly related that after his layoff in November 1969 he left the State of California for a period approximating 4 to 5 months, returning on March 4 , 1970. King's membership application is dated August 1969. February 1971, $7 60; and March 1971, $7 60 " McDonald asserted the $22.70 was returned in March because, "He [Sanner] had lapsed out. He was no longer a member That's why I sent his money back " Asked why the money was not returned upon receipt, Mc- Donald explained, "Because I felt certain he would come down and finish paying his reinstatement fee" These amounts were Employer deductions . McDonald gave no explana- tion of why he expected Sanner to pay the balance of a reinstatement fee McDonald asserted the initiation fee was $75 00 commencing November 1, and the reinstatement fee was $75 .00 after that date 19 I have found, supra, that McDonald, in effect, corroborated the neces- sity of such a payment relative to Sanner's asserted "lapse" of membership. 1° However, there can be no question that Harris, union steward, knew these facts " While King asserted he paid this amount by money order, it is not credited on the Union records. King did not produce any evidence of this payment I find it unnecessary to make any finding relative to it, for reasons explicated infra. " McDonald acknowledged that the Union's dues record of King re- flected credits of a $6 00 payment applied to July and $1 50 applied to August McDonald asserted that when monies were received they were credited to earlier months than the date of receipt, if dues for such a month were unpaid. McDonald asserted that the card also indicated that King's membership lapsed on October 31 McDonald acknowledged the $7 50 credited to July and August were received in November. It appears undisputed that King was unemployed during the entire month of July and was employed only during the last 5 working days in the month of August McDonald did not take issue with the recitation of Sanner, that Sanner was advised by Harris, steward in the machine shop, that dues for members were 50 cents a month during months of unemployment This would also appear applicable to months where the employees worked only a few days While it was stipulated that the Grand Lodge constitution of the International provides that a member cancels his membership by nonpayment of dues for a period of 90 days, there is no evidence of the application of this provision to a person who is not a member, as was apparently true in the case of King I am unable to find any evidence from which an accurate conclusion can be drawn as to whether asserted dues deficiencies are applicable to months of unemployment, or a month where an employee works only 5 days McDonald's assertion that when a check, and inferentially any other payment, is received from the Employer, it is applied to the last unpaid month, but only so long as the member is still in good standing , is inaccurate If, as asserted by McDonald, King's membership lapsed on October 31, his payment thereafter on November 15 was after that date. The same applies to the dues deduction payments received from the Employer for the account of Sanner after his asserted lapse of membership. E1 I find it reasonable to imply that this was a copy of the Respondent's letter of February 19, to Black, containing 24 names, supra, in which the Union requested termination of those named IAM, LOCAL 590 519 King responded that he only owed for 2 months, October and November, which amounted to $15.00. King also advised Bannacky that he had heard there was a 50-cent charge for months off which made a total of $16.00. King explained that he had been off during December and January. Bannacky responded that Bannacky would check and let King know the following day. King credibly related that the following day Bannacky advised King that all he owed was $16.00 and he would be all clear." King did not offer to pay the $16.00 at that time. King related that there was a sign on the bulletin board that McDonald, secretary-treasurer, would be at the union hall between 2 and 5 p.m. on Friday, February 19. King described this as a special notice. King at that time was working on the swing shift, which commenced at 3:30 p.m. King went to the union hall at 2 p.m. on February 19 and found the front and back doors were locked. King described a sign on the door as stating that it would be open from 2 to 5 p.m. King described another employee, whose first name is Alex, as also being present. King waited until 3 p.m. at the union office. He then went to work.2S King related that the union office was also supposed to be open on Mondays from 2 to 5 p.m. King returned to the union hall at 2- p.m. on Monday, February 22. He found the same employee present as previously. They found the doors locked.26 King remained until 3 p.m. and then went to work. King then went to talk to Bannacky and inquired as to what he should do. Bannacky advised King that there was nothing to do but try again. King mailed a check in the amount of $16.00 to Respond- ent on February 26, 1971, and advised Bannacky of his inten- tion to do so. This check was returned to King, by Respond- ent, on March 11, with an endorsement on the reverse side stamped void. King took the returned check to the shop and showed it to Bob Bannacky. King then inquired what he could do. Bannacky responded that he did not know. King advised Bannacky that King wanted to see McDonald. Ban- nacky responded that McDonald was "not in," that Ban- nacky had no idea when he would be back, and suggested that King see Larry, the night steward in the machine shop. Larry advised King to talk to Sanner. King advised Larry that King would not pay a $75.00 reinstatement fee. Sanner advised him that the best thing he could do was to talk "to the NLRB and file charges". King credibly related that he had not received any com- munication from the Union advising him that he was in arrears in the payment of dues.21 The first notice he received was a letter from the Employer signed by Black, dated March 17, advising him that he would be terminated on April 1, by reason of a demand from McDonald, secretary-treasurer of Respondent. The reason stated was noncompliance with arti- cle XXIV of the collective-bargaining agreement. The Em- ployer also advised that it accepted no responsibility for the contemplated action. " Bannacky did not appear as a witness and the Union made no explana- tion of its failure to call him " McDonald asserted he was in the union office 8 hours on February 19, except he went out for lunch He "presumed" the doors were unlocked "unless the last person going out locked them." He usually goes in the back door which is closer to his office On this conflict, I credit King " McDonald asserted the doors were unlocked on February 22 On this conflict, I credit King " McDonald asserted he had mailed a letter to King , on January 20, 1971, advising King of his dues obligations, which was returned with a notation "Refused " The certified mail receipt reflects the letter was mailed to King's former address, from which he had moved in July 1970 King's check, in the amount of $16 00, dated February 26, contains his correct address By telegram on April 5, King was advised to report to the personnel office. Upon reporting, he was advised of his dis- charge. King returned to work for the Employer on May 5. The circumstances of his rehiring are obscure. I have found, supra, that on February 19, 1971, by letter, Respondent requested the Employer to discharge 24 named employees, including Sanner and King; Respondent made a subsequent demand, by letter of March 9, for the discharge of 6 named employees, including both Sanner and King; on March 23, Respondent notified the Employer to remove the name of Sanner but again requested the discharge of 3 em- ployees, including King; by letter of March 29, Respondent reduced this number to 2, including King. Black related that between February 19 and the termina- tion of King, he had 10 to 15 conversations with various union officials, including McDonald, Bray, Ridgon, presi- dent, and Harold Neibur, chief steward. Black explained that he asserted that the Employer did not feel it should rush into terminating people, particularly by reason of past union de- mands for terminations which were subsequently withdrawn. The Employer desired to avoid terminating any employee unjustly. Black called attention to the substantial reduction in the number for whom the Union sought termination be- tween the dates of February 19 and March 9. Black asserted that the union officials assured him that the employees had been given ample opportunity to satisfy their obligations. Black acknowledged that he was advised, by the union offi- cials, that employees' names would be deleted if payments were made within a stated time. The Union did file two grievances involving the failure of the Employer to discharge Sanner and King. King credibly denied ever being advised, by the Union, that his dues had to be paid within 90 days to avoid a lapse of membership, and he denied any knowledge of the constitu- tion of the International. Concluding Findings The allegations of the consolidated complaint are consid- ered seriatim. It is alleged that on or about March 8, 1971, Respondent attempted to cause the Employer to discharge Sanner for nonpayment of dues pursuant to the provisions of the union- security clause at a time when Sanner was under no statutory obligation to pay such dues. The evidence establishes that the collective- bargaining agreement was entered into on June 3, 1970. Its provisions contained, inter alia, provisions for union-security requiring an employee to make application for membership not later than 31 days after the date of the execution of the agreement. This deadline was extended to October 31. Sanner applied for membership on August 28, 1970, and simultaneously paid the initiation fee, which included 1 month's dues. Respondent applied this payment to the month of July. It is the erroneous contention of the Respondent that Sanner's membership lapsed, by reason of nonpayment of dues for the months of August, September, and October, and thus the lapse occurred on October 31, 1970. It is undisputed that Sanner was on a leave of absence, by reason of an industrial injury, from September 8, to Novem- ber 3, 1970. McDonald related that an employee is not re- quired to pay dues "as such" when he is not working. Mc- Donald then asserted an employee who is not working is supposed to pay 50 cents a month unemployment dues. Mc- Donald asserted that, since the Employer did not advise the Union of the layoff of employees, the Union did not know of the layoff of Sanner. However, I have found, supra, that Sanner did advise Harris, union steward, of the fact of his layoff. I find it reasonable to imply that this constituted 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knowledge to the Union . Accordingly, I find that Sanner's membership obligations were not in default , as asserted by Respondent, on October 31. In addition, I find that Sanner made every reasonable effort to make the required payments and was unable to do so only because the Union office was not open when he sought to tender the payments . In addition , Sanner attempted to make payment to the International auditor , and to steward Harris, both of whom declined to accept the payment from Sanner. It is alleged that on or about March 8 , 1971, Respondent attempted to cause the Employer to dischar#e Sanner without first informing Sanner of his dues obligations and without affording Sanner a reasonable opportunity to satisfy such dues obligations. I have found, supra, from undisputed evidence that such a request was made by Respondent to the Employer without prior notice to Sanner on February 19, 1971, and thereafter renewed on March 9. As a result, on March 17, Black advised Sanner that he would be terminated on April 1. Respondent's letter to Black, of March 23, 1971, requests the removal of Sanner's name from the list of those to be terminated, by reason of his submitting a $75.00 reinstatement fee. It is undisputed that on February 23, 1971, Sanner had forwarded a check to Respondent , in the amount of $8.60, to cover the month of November, as well as the 50-cent-per- month unemployment dues for September and October. I have found that this check, together with a check of Respond- ent for dues which had been deducted by the Employer pur- suant to a dues checkoff authorization for the months of December, January, and February, were forwarded to San- ner. According to McDonald , this was by reason of Sanner's membership having lapsed on October 31. While McDonald asserted that the Union had publicized the request for members to advise the Union of any change of address or any layoff, McDonald acknowledged that he had no knowledge whether such notices ever came to the attention of either Sanner or King. McDonald asserted San- ner and King would only have knowledge of it if they had attended union meetings or read a newsletter. There is no evidence Sanner ever attended a union meeting or read a newsletter, and King attended only the meeting at the termi- nation of the strike. It is alleged that on or about April 2, 1971, Respondent caused Employer to discharge King for nonpayment of dues pursuant to the provision of the union-security clause at a time when King was under no statutory obligation to pay such dues. I have found that King was laid off on November 7, 1969, and recalled on August 25, 1970. King was again laid off on November 27, 1970, and recalled on February 8, 1971. It is thus patent that King was unemployed during the period commencing June 3, 1970, when the collective -bargaining agreement was executed, until August 25 . On November 15, 1970, King remitted the amount of $7.50. McDonald credited this payment as $6.00 for the month of July and $1.50 toward dues for the month of August. It is apparent that dues were not due and payable from King for months when he was unemployed, and this included July and August . I find it reasonable to infer, from the information supplied by Harris to Sanner, that dues would not be payable by King for the month of August, since there were only 5 workdays com- mencing on the date of his recall in that month. Since King's dues obligation would appear to be limited to the months of September and October, it follows that McDonald's assertion that King was delinquent , by reason of nonpayment of dues months of September and October, and that he had remitted the appropriate amount of dues for one of those 2 months. King was in layoff status during the months of December 1970 and January 1971. Accordingly, there was no further dues liability on the part of King, during that period, except for the 50-cent-per-month unemployment dues. It is alleged that on or about April 2, 1971, Respondent caused the Employer to discharge King without first inform- ing King of his dues obligations, pursuant to the provisions of the union-security clause and without affording King a reasonable opportunity to satisfy such dues obligations. I have found undisputed King's assertion that he received no notice of dues obligations directly from the Respondent at any time prior to the union letter of February 19 to the Employer. I have also found King's efforts to make payment at the union office were frustrated by reason of the unavaila- bility of anyone to accept such payments. When King did remit $16.00, to cover the months of October and November as well as the 50-cent unemployment dues for the months of December and January, this amount was returned by Re- spondent. McDonald's recitation requires a conclusion that this amount was remitted because it was not sufficient to constitute a payment of the reinstatement fee of $75.00, to which the Union was not at that time entitled. That the Union instigated and obtained the discharge of King is not undisputed. It is undisputed that Sanner avoided discharge only by paying a $75.00 reinstatement fee. I find it reasonable to infer that King was required to pay a like fee to obtain reinstate- ment on May 5, 1971. The provisions of the union-security clause are next consid- ered. The first clause provides that an employee covered by this Agreement "who has made application to the Union for membership" shall no later than 31 days after the date of the execution of the Agreement become and remain a member of the Union in good standing during the term of the agreement. While both Sanner and King signed applications for member- ship forms in August 1969, it must be concluded that the Union disregarded those applications. Otherwise there would have been no reason for Filpot advising Sanner that a new membership application was required on August 28, 1970. King did not make such an application in 1970. The second provision is that an employee not covered by the above provision but who is covered by the agreement shall, as a condition of employment, become a member of the Union on the 46th day after the date of hire. In the case of King, since he was rehired on August 25, it would appear that he would have had 46 days thereafter before a dues liability would attach. The third provision is that any other employee, not covered by one of the two preceding provisions, who makes applica- tion to become a member shall, within 31 days (inferentially after employment) become and remain a member of the Un- ion during the term of the agreement. Finally it is provided that effective February 1, 1971, it shall be a condition of employment that all employees covered by the agreement shall, at the expiration of 45 days of continuous on-the-job employment, become and remain members of the Union. It is undisputed that the initiation fee was $6.00 until Octo- ber 31, 1970, and that payment of that amount constituted the payment of 1 month's dues. After October 31, 1970, the initiation fee, and a reinstatement fee, were , in each instance, $75.00. The facts in the Aerojet-General Corporation case28 are for a period of 90 days, and that his membership consequently =• Rocket and Guided Missile Lodge 946, International Association of lapsed on October 31 , 1970, must be considered erroneous. It Machinists and Aerospace Workers, AFL-CIO (Aerojet-General Corpora- follows that King's dues obligations applied only to the non), 186 NLRB No 77 IAM, LOCAL 590 521 squarely in point relative to the matter of the Union's duty to inform the employee of his obligations, to permit the em- ployee to protect his job tenure. In that case, the Board said:29 Both the Board and the courts had held that a union seeking to enforce the union-security provision against an employee has a "fiduciary" duty to "deal fairly" with the employee affected. "At a minimum this duty requires the union to inform the employee of his obligations in order that the em- ployee may take whatever action is necessary to protect his job tenure."J0 In the Conductron case" the Board found a failure on the part of the Union to adequately advise an employee of his obligation to pay unemployment dues, during a period of unemployment, where the Union obtained a discharge of said employee, a failure on the part of the Union to meet its obligations constituting conduct violative of Section 8(b)(2) and (1)(A) of the Act. The Board reaffirmed its earlier findings12 that the Union may not evade its duty and then demand the dismissal of the employee when he becomes de- linquent in the payment of his dues. In the Spector Freight case" the Board held that the Un- ion's insistence upon an employee's discharge predicated upon nonpayment of dues for a prehire period was violative of Section 8(b)(2) and (1)(A) of the Act. Accordingly, for the reason stated, I find that Respondent, by attempting to cause the Employer to discharge Sanner on or about February 19 and March 9, 1971, and by causing the Employer to discharge King, on April 2, 1971, for failure, in each instance, to pay a reinstatement fee to which Respond- ent was not entitled, thereby caused, and attempted to cause, the Employer to discriminate in regard to the hire and tenure of employment, or terms and conditions of employment, of each employee, in violation of Section 8(a)(3), and thus en- gaged in conduct which constituted unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with the business operations of Wayne Manufacturing Company, set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to be unfair labor practices tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. I have found that Re- spondent unlawfully sought and obtained the discharge of Paul King, II, on April 2, 1971. However, I have also found that Paul King, II, was reemployed by Wayne on May 5, 1971, under circumstances which are obscure in this record. Therefore, I shall recommend that Respondent be ordered to notify the Employer that it has no objection to the continued employment of Paul King, II, and that Respondent make him whole for any loss of pay he may have suffered by payment to him of a sum of a money equal to that which he would have earned as an employee of Wayne Manufacturing Company, between April 2, 1971, and May 5, 1971, less his net earnings during said period. Said payment shall be computed in the manner established in N.L.R.B. v. Seven-Up Bottling Ca, Inc., 344 U.S. 344. Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., Inc., 138 NLRB 716." In addition, I shall order Respondent to repay King the reinstatement fee, if any, paid by King to obtain reemploy- ment. I will further recommend that Respondent make Gary L. Sanner whole by repayment to him of the reinstatement fee, which Respondent obtained solely by reason of its persist- ence that it would insist, improperly, upon the discharge of Sanner in the event such payment was not made." CONCLUSIONS OF LAW 1 Wayne Manufacturing Company is an employer within the meaning of Section 2(2), 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 causing Wayne Manufacturing Company to dis- charge Paul King, II, on April 2, 1971, and by attempting to cause said Employer to discharge Gary L. Sanner on or about March 9, 1971, thereby causing, and attempting to cause, the Employer to discriminate in regard to the hire or tenure of employment or terms or conditions of employment of said employees in violation of Section 8(a)(3) of the Act, Respond- ent 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. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act. RECOMMENDED ORDER36 Upon the basis of the foregoing findings of fact and conclu- sions of law, and pursuant to Section 10(c) of the Act, I hereby recommend that International Association of Ma- chinists and Aerospace Workers, AFL-CIO, Local Lodge 590, its officers, agents, and representatives, shall: 1. Cease and desist from: (a) Causing or attempting to cause Wayne Manufacturing Company to discharge an employee in violation of Section 8(a)(3) of the Act, or otherwise to discriminate against an employee in regard to his hire or tenure of employment or terms or conditions of employment. (b) In any like or related manner restraining or coercing employees of Wayne Manufacturing Company in the exercise of rights guaranteed in Section 7 of the Act, except to the " Id 10 Citing NL R B v Hotel, Motel and Club Employees' Union, Local 568, 320 F 2d 254, 258 (C A 3), enfg 136 NLRB 888 Accord NL.R.B. v Local 182, International Brotherhood of Teamsters, 401 F 2d 509 (C A 2), cert denied 394 U S 213, enfg 156 NLRB 335, amended 169 NLRB No 164, International Union of Electrical, Radio and Machine Workers v NL R B, 307 F 2d 679, 683 (C A D C ), cert. denied 371 U S. 936, enfg 129 NLRB 1379, and 130 NLRB 1286, Teamsters Local Union No 122, I B T (August A Busch & Co of Mass, Inc), 173 NLRB No 194 , Granite City Steel Company, 169 NLRB 1009 " Conductron Corporation, 183 NLRB No 54 " Hotel, Motel and Club Employees' Union, Local 568, supra " Spector Freight System, Inc, 123 NLRB 43, 44 31 Local No 4, United Slate, Tile, Composition Roofers, Damp and Water- proof Workers Association, AFL-CIO (Avon Sheet Metal Co.), 140 NLRB 384 " Local Union No. 749, International Brotherhood ofBoilermakers, Iron Shipbuilders, Blacksmiths, Forgers & Helpers, AFL-CIO (California & Blow- pipe & Steel Co, Inc) 192 NLRB No 58 " In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD extent that such rights may be affected by the agreement requiring membership in a labor organization as a condition of employment in accordance with Section 8(a)(3) of the Act, as modified by the Labor Management Reporting and Disclo- sure Act of 1959. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act: (a) Notify Wayne Manufacturing Company that the Re- spondent has no objection to the employment of Paul King, II, and furnish Paul King, II, a copy of such notification. (b) Refund to each employee of the Employer, including Gary L. Sanner and Paul King, II, who, between October 31, 1970, and May 5, 1971, were required by Respondent to pay a reinstatement fee such as has been found herein to be im- properly assessed, the sum of $75.00. (c) Make Paul King, II, whole for any loss of pay he may have suffered by reason of his discharge between the dates of April 2, 1971 and May 5, 1971, as provided in "The Remedy" herein. (d) Rescind, in a writing sent to the Employer, its request for the termination of Gary L. Sanner and Paul King, II. (e) Notify Gary L. Sanner and Paul King, II, in writing, if they are still employed by the Employer, that it has re- scinded its request for their termination of employment and that it will not require them to perform any act or pay any monies 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 agree- ment requiring membership in Respondent as authorized in Section 8(a)(3) of the Act. (f) Post at its offices and its meeting places where members who are employed by the Employer meet copies of the at- tached notice marked "Appendix".31 Copies of said notice, on forms to be provided by the Regional Director for Region 21, shall after being duly signed by Respondent's representatives be posted by Respondent immediately upon receipt thereof and be maintained by Respondent for 60 consecutive days thereafter, in conspicuous places, including all 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 other material. (g) Upon receipt from said Regional Director of additional copies of said notice, sign them and mail them to the Regional Director for Region 21, for posting at the plant of the Em- ployer at Pomona, California, the Employer being willing so to do. (h) Notify said Regional Director, in writing, within 20 days from the date of the receipt of this Trial Examiner's Decision, what steps the Respondent has taken to comply therewith. It is further recommended that, unless on or before 20 days from the date of the receipt of this Trial Examiner's Decision the Respondent shall notify said Regional Director, in writing, that it will comply with the Recommended Or- der," the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. " 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 Order of the National Labor Relations Board" 11 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order what steps Respondent has taken to comply herewith"