Kaiser Steel Corp.

446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kaiser Steel Corporation and Jerry Lynn Copeland 3. Substitute the attached Appendixes A and B Laborers' International Union of North America, for the Administrative Law Judge's. Local No. 1184 and Jerry Lynn Copeland. Cases 21-CA-11529 and 21-CB-4534 June 12, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On February 21, 1974, Administrative Law Judge Jerrold H. Shapiro issued the attached Decision in this proceeding. Thereafter, Respondent Union and Respondent Employer filed exceptions and support- ing briefs and the General Counsel filed limited exceptions and a brief, in addition to a brief in answer to exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions 1 of the Administrative Law Judge and to adopt his recommended Order as herein modified. 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 Administrative Law Judge as modified below and hereby orders that Respondent Kaiser Steel Corporation, its officers, agents, succes- sors, and assigns, and Respondent Laborers' Interna- tional Union of North America, Local No. 1184, its officers, representatives, and agents, shall take the action set forth in the recommended Order of the Administrative Law Judge as modified below: 2 1. Insert the following as paragraph A, 2,(c), relettering following paragraphs consecutively: "(c) Jointly and severally with Respondent Labor- ers' International Union of North America return to Jerry Lynn Copeland the $100 initiation fee paid by him on September 5, 1972, to which shall be added interest at the rate of 6 percent per annum." 2. Substitute the following as paragraph B, 2(a): "(a) Jointly and severally with Respondent Kaiser Steel Corporation return to Jerry Lynn Copeland the $100 initiation fee paid by him on September 5, 1972, to which shall be added interest at the rate of 6 percent per annum." i As we find that payment of a second initiation fee to the Laborers was invalid in the circumstances of this case , consistent with our holding in Kaiser Steel Corporation, 205 NLRB No. 34, we find it unnecessary to reach the Administrative Law Judge's conclusion here that Respondent Union met its "minimum obligation" of informing Copeland of his obligations, as well as his conclusion that Respondent Employer additionally violated Sec 8(a)(3) and (l) by failing to implement the checkoff of initiation fee that Copeland executed. 2 We deny the General Counsel's request for a broad order in these circumstances which show no substantial continuous pattern or practice herein violative of the Act to warrant it. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT, under article 3 of our contract with The Building and Construction Trades Council of Riverside and San Bernardino Coun- ties, AFL-CIO, discharge or discriminate against Jerry Lynn Copeland, or any other employee, who has once satisfied the union membership requirement of that contract, by requiring him to pay an initiation fee to another labor organization because he has been transferred from one job to another within the unit. WE WILL offer immediate and full reinstate- ment to Jerry Lynn Copeland to his former position or, if that job no longer exists, to a substantially equivalent position, without preju- dice to his seniority or any other rights and privileges. WE WILL jointly and severally with Laborers' International Union of North America, Local No. 1184, make good to him with interest, all pay he lost by reason of his discharge of August 31, 1972, and WE WILL jointly and severally with Laborers' International Union of North America, Local No. 1184, return to Jerry Lynn Copeland the $100 initiation fee paid by him on September 5, 1972, to which shall be added interest at the rate of 6 percent per annum. KAISER STEEL CORPORATION (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive 211 NLRB No. 50 KAISER STEEL CORPORATION days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Eastern Columbia Building, Room 600, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5254. APPENDIX B NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT, under article 3 of the collective- bargaining agreement between Kaiser Steel Cor- poration and The Building and Construction Trades Council of Riverside and San Bernardino Counties, AFL-CIO, cause, or attempt to cause, Kaiser Steel Corporation to discharge or other- wise discriminate against Jerry Lynn Copeland, or any other employee, who has once satisfied the union membership requirement of that contract, by requiring him to pay another initiation fee because he has been transferred from one job to another within the unit. WE WILL write Kaiser Steel Corporation and Jerry Lynn Copeland that we withdraw our objections to its employment of Copeland or to his reinstatement. WE WILL, jointly and severally with Kaiser Steel Corporation, make good to him with interest all pay he lost by reason of his discharge on August 31, 1972. WE WILL also jointly and severally with Kaiser Steel Corporation return to Jerry Copeland the $100 initiation fee paid by him on September 5, 1972, to which shall be added interest at the rate of 6 percent per annum. WE WILL NOT condition the withdrawal of our objection of Jerry Lynn Copeland's being em- ployed by Kaiser Steel Corporation upon pay- ment of the above-described initiation fee. LABORERS' INTERNATIONAL UNION OF NORTH AMERICA, LOCAL No. 1184 (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 447 days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Eastern Columbia Building, Room 600, 849 South Broadway, Los Angeles, California 90014, Telephone 213-688-5254. DECISION STATEMENT OF THE CASE JERROLD H. SHAPIRO, Administrative Law Judge: The hearing in these cases was held on January 17, 1974, and is based upon unfair labor practice charges filed by an individual, Jerry Lynn Copeland, on February 7, 1973, and a consolidated complaint issued on December 7, 1973, on behalf of the General Counsel of the National Labor Relations Board, herein called the Board, by the Acting Regional Director of the Board, Region 21, alleging that Kaiser Steel Corporation, herein called the Company or Respondent Employer, has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the National Labor Relations Act, herein called the Act, and that Laborers' International Union of North America, Local No. 1184, herein called Laborers' Union or the Respondent Union, has engaged in unfair labor practices within the meaning of Section 8(b)(1)(A) and 8(b)(2) of the Act. The Respondents filed answers denying the commis- sion of the alleged unfair labor practices. Upon the entire record, from my observation of the demeanor of the witnesses, and having considered the posthearing briefs, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT EMPLOYER Kaiser Steel Corporation, the Respondent Employer, is engaged in the operation of iron ore mining and milling facilities in the area of Eagle Mountain, California. In the conduct of this operation the Respondent Employer annually purchases and receives goods valued in excess of $50,000 directly from points located outside the State of California. The Respondents admit, and I find, that the Respondent Employer is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Laborers' International Union of North America, Local No. 1184, the Respondent Union, is admittedly a labor organization within the meaning of Section 2(5) of the Act. III. THE QUESTIONS PRESENTED 1. Whether the Respondent Union violated Section 8(b)(2) and (1)(A) of the Act by demanding and obtaining the discharge of employee Copeland for nonpayment of a second initiation fee upon transfer from one job to another within the certified bargaining unit and whether the 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Employer violated Section 8(a)(3) and (1) of the Act by acceding to this demand. 2. Whether the Respondent Union violated Section 8(b)(l)(A) of the Act when its agent, Sanders, threatened Copeland that it would not seek his reinstatement if he failed to comply with the Laborers' Union membership requirements. IV. THE UNFAIR LABOR PRACTICES A. Background The Building and Construction Trades Council of Riverside and San Bernardino Counties, AFL-CIO, hereinafter called the Council, is the certified collective- bargaining representative of all production and mainte- nance employees, including truckdrivers and warehouse- men at the Respondent Employer 's Eagle Mountain iron ore mining facilities. There have been successive collective- bargaining agreements between the Respondent Employer and the Council for a number of years, the agreement material to this case being effective from September 16, 1970, to September 15, 1973. The Council is composed of five labor organizations-the Respondent Union (the Laborers'), Teamsters, Operating Engineers, Carpenters, and Electricians-who participate in the Council's collec- tive-bargaining negotiations with the Respondent Employ- er and ratify the resulting agreement. The collective- bargaining agreement in effect between the Council and the Respondent Employer during the time material to this case contained the following union-security clause: ARTICLE 3 UNION SECURITY All employees covered by this agreement shall within thirty-one (31) days after employment . . . become members of the appropriate Craft Union and shall remain members of said Craft Union as a condition of employment ... . There is no employee membership as such in the Council. The union-security requirement in the collective- bargaining agreement is met by membership in one of the five unions comprising the Council, depending upon an employee's job and the union craft or work jurisdiction. The collective-bargaining agreement permits job transfer across union jurisdictional lines and sets forth procedures both for progression to a higher paying job classification and for "bumping" back to a lower classification in order to avoid a layoff. If there is a transfer from the work jurisdiction of one union to that of another, the transferee , under the terms of the union-security agreement as applied by the parties, pays an initiation fee and monthly dues to the union into whose work jurisdiction the employee has transferred. The separate unions, not the Council, determine the amount of dues and initiation fee paid by the transferee and whether the transferee is a member in good standing. The unions each have a procedure whereby a transferee may take out a withdrawal card from the union whose work jurisdiction he is departing. B. The Discharge of Jerry Lynn Copeland Jerry Lynn Copeland was first employed at the Respon- dent Employer's Eagle Mountain operation in May 1968 as a mine laborer earning $3 .27 per hour. He joined the Laborers' Union, paying an initiation fee of $60 and regular dues. In November 1968, Copeland was promoted to the higher paying job of shovel operator within the work jurisdiction of the Operating Engineers Union . Copeland joined the Operating Engineers, paying an initiation fee and monthly dues which were paid by checkoff .' Copeland revoked his checkoff previously executed on behalf of the Laborers' Union and allowed his membership in the Laborers' Union to lapse, since he believed that his promotion out of the work jurisdiction of the Laborers' was permanent . Copeland remained a dues-paying mem- ber of the Operating Engineers Union from November 1968 until May 31, 1972, when he was issued a withdrawal card from this union. In January 1972,2 the Respondent Employer temporarily shut down part of its Eagle Mountain mining operation and temporarily laid off about 1,100 employees, one of whom was Copeland . Copeland was recalled to work in March as a cable mover within the work jurisdiction of the Laborers' Union. Under the collective-bargaining agree- ment a cable mover earned $3 .85 per hour, in contrast with the $4.25 previously paid to Copeland as a shovel operator. Copeland accepted the Company's offer to return to work as a cable mover knowing that, under the collective- bargaining agreement, he had the option of refusing this job and remaining unemployed until a higher paying job became available within the work jurisdiction of the Operating Engineers Union. On March 27, Copeland reported for work. He knew that under the union-security agreement, as enforced in the past, he was obligated to pay an initiation fee and monthly dues to the Laborers' Union after 30 days as a condition of employment as a cable mover. But, at about the time he returned from layoff, Copeland heard rumors from other employees to the effect that perhaps this policy had been changed and now an employee , upon transferring from the work jurisdiction of one union to another, was only obligated to pay monthly dues.3 On Thursday, April 27, his 31st day of work as a cable mover, Copeland went to the office of a company personnel assistant, Charles Thaxton, to find out whether I The contract between the Council and the Company contains the following provision for the voluntary payment of union dues through checkoff: ARTICLE 4 CHECK-OFF A. During the term of this agreement, Employer shall deduct from the first pay of each month the monthly Craft Union dues and Initiation fees if requested (but not assessments or fines) of each employee whose signed voluntary check -off authorization ... has been submitted to Employer ... . C. All amounts deducted by Employer under the foregoing check- off system shall be remitted by Employer to the appropriate Craft Unions.'. . . 2 All dates hereafter, unless otherwise specified, refer to 1972. 3 There is no evidence that an agent of the Respondent Union by word or conduct was responsible for this rumor. KAISER STEEL CORPORATION 449 he was obligated to pay an initiation fee as well as monthly dues to the Respondent Union. Copeland asked Thaxton if he was required to join the Respondent Union and pay an initiation fee as well as monthly dues. Thaxton stated he did not know if Copeland was required to pay an initiation fee and, without any instruction from Copeland, prepared a checkoff authorization form for Copeland's signature which authorized the Respondent Employer to deduct and transmit to the Respondent Union only monthly dues. Also, Copeland signed a document instructing the Respon- dent Employer to cancel his previously executed checkoff form on file at the Company for the Operating Engineers Union. Pursuant to the checkoff authorization executed by him on April 27, Copeland paid monthly dues to the Respon- dent Union from about that date until his discharge on August 31. His failure to pay an initiation fee was discovered in late May or early June by Jackie Under- wood, the Building Trades steward who is an agent for all of the bargaining unit's unions at certain stages in the contractual grievance procedure. Underwood discovered that several laid-off employees, one of whom was Cope- land, had been recalled to jobs in areas different from their prelayoff work jurisdiction and had not paid an initiation fee to the union under whose work jurisdiction they now worked. Underwood in about early June posted a notice listing each of these employees by name, stating that they should report to the Company's personnel office and sign a checkoff authorization for the Respondent Union's initia- tion fee. This notice which included Copeland's name was posted for several weeks on the bulletin board at the Company reserved for notices posted by the unions, which is located in the time shack where the employees, including Copeland, punch their timecards.4 At approximately the same time Underwood posted the notice naming Copeland and others as delinquent in paying an initiation fee to the Laborers, Copeland was informed that Personnel Assistant Thaxton wanted to talk with him. Copeland assumed that Thaxton wanted to speak to him about the Laborers' Union initiation fee and, upon entering Thaxton's office, in response to Thaxton's greeting, Copeland stated that the Company had not deducted an initiation fee for the Respondent Umon from his paycheck. Whereupon, Thaxton prepared a checkoff authorization form for Copeland to sign which authorized the Company to deduct this initiation fee from Copeland's paycheck. Thaxton asked Copeland to sign this checkoff authorization, explaining that it would take care of the Laborers' Union initiation fee. Copeland signed and returned the authorization to Thaxton who left the office.5 When Thaxton did not return in a few minutes, Copeland, so as not to be late for work, left to punch in for work.6 The Respondent Employer did iot ever deduct the Laborers' Union initiation fee from Copeland's pay and 4 It is reasonable to infer that Copeland read this notice He did not specifically deny doing so 5 Copeland signed this authorization, he testified, because he believed that if he did not pay an initiation fee he might be discharged 6 The description of Copeland's two meetings with Thaxton, the one described above and the one on April 27 described, supra, are based upon Copeland's credible testimony Thaxton, who was employed by the Respondent Employer at the time of the hearing, was not called upon by the transmit it to the union. Respondent Employer did not call Thaxton as a witness to explain what he did with the above-described checkoff executed by Copeland authoriz- ing the Respondent Employer to deduct and transmit Copeland's Laborers' Umon initiation fee. Copeland credibly testified that the reason he never questioned anyone from the Company about its failure to deduct this money from his pay was that he believed that eventually the Company would get around to deducting the money. In early August, Underwood, the Building Trades steward, checked with the Company's personnel depart- ment to determine if the employees listed on the notice he had previously posted had paid their Laborers' Union initiation fee. He learned that six employees, one of whom was Copeland, had not paid the initiation fee. As a result of his discovery, Underwood in the middle of August approached Foreman Clois Hamilton and asked him to speak to Copeland about paying the Laborers' Union initiation fee. Normally, on a matter of this sort Under- wood, following his customary procedure, would have spoken directly to Copeland. Instead, Underwood decided to use Hamilton as an intermediary, he testified, because Copeland and Hamilton came from the same town and Copeland's brother was married to Hamilton' s sister. Underwood asked Hamilton if he would tell Copeland that he needed to join the Laborers' Union to keep his job and to advise him to visit the Company's personnel office and sign a checkoff authorization for the Laborers' Union initiation fee or pay it personally. Hamilton agreed to talk to Copeland and, in fact, talked with him on Friday, August 25. He advised Copeland that it would be a good idea to visit the Company's personnel office at the first chance to take care of his "union problems." Copeland, in response, stated that he had already talked to the people in the Company's personnel office but he would return there and look into the matter. That same day, August 25, the Company's personnel department, by letter, notified the Respondent Union that "Copeland's foreman has been notified that Copeland should come in and sign up for initiation fee." 7 Copeland lives about 62 miles from work and rode to work in a car pool.'Because of this, and the fact that the Company's personnel,office is 9 miles from the work site, Copeland decided to wait until Thursday, August 31, a payday, to visit the Company's personnel office, as advised by Foreman Hamilton. On this day he would have to stop off anyway at the personnel office to pick up his paycheck. Events, however, did not wait for August 31. The day before, August 30, the Respondent Union's business manager, John Smith, by letter, notified the Respondent Employer: We understand that {Copeland] was personally in- formed by his foreman that he should complete necessary cards for collection of initiation fee which is Respondent Employer to refute Copeland's testimony 4 Previously, on or about August 8, John Smith, the Respondent Union's business manager, by letter, notified the Company that Copeland and other named employees had been working on a "pay dues only" basis for at least 3 months and told the Company "we feel that they are to be considered as regular employees and should pay the $100 initiation fee Please arrange for necessary payroll deductions." 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD payable. Since he has ignored this request, we now ask that this man be removed from job at once. This letter was received by the Respondent Employer at I p.m. on August 31 s On August 31, at approximately 3:30 p.m. shortly before the start of the swing shift, Foreman Hamilton received a phone call at the jobsite from the Respondent Employer's administrative superintendent, Dale, asking if Hamilton had talked with Copeland about the financial matters that Copeland had with the Respondent Union. Hamilton indicated that he had talked to Copeland that past Friday and stated that Copeland, in effect, had assured Hamilton "he [Copeland] had talked to them and everything was okay." Dale at this point decided that Copeland would be discharged immediately unless the Respondent Union, in writing, before the end of the day rescinded its letter of August 31 asking that "[Copeland] be removed from the job at once." Dale immediately contacted the Respondent Union's business agent, Sanders, and advised him of this decision. In the meantime, Copeland, who was employed on the swing shift, had arrived at the personnel office shortly before 4 p.m. for the purpose of picking up his paycheck and to check with the personnel office as requested by Foreman Hamilton. Copeland, however, never went to the personnel office because a fellow employee (his brother) indicated to him that he had already been discharged which seemed to be confirmed, in Copeland's eyes, by a notice posted near the paycheck window stating: "Cancel [Copeland's] Bond." Copeland, instead of going into the personnel office, sought out the Company's pit superintendent, Charlie Smith, who con- firmed the fact that Copeland had been discharged and asked Copeland to sign a form stating he was "terminated- -in conformity with the Agreement: Article 3 and letter from [the Respondent Union] dated 8-30-72."9 Copeland refused to sign this separation notice. He immediately contacted Underwood, the Building Trades steward, who advised him that he had been discharged because of his failure to pay the Laborers' Union initiation fee and told him to contact the Laborers' Union Business Agent Donald Sanders. The same day, August 31, Copeland's brother phoned Business Agent Sanders, who suggested that Copeland come to Sander's office in Indio, California, with the $100 initiation fee, which Copeland did on September 5. Copeland on that date asked Sanders to help him get his job back. Sanders' response was that Copeland would first have to pay his $100 Laborers' Union initiation fee before the Union would help him. Copeland gave Sanders the $100, whereupon Sanders prepared a letter notifying the Company "that [Copeland] is a paid up member of [Respondent Union] as of this date." Copeland personally delivered this letter that same day to the Company's s Based upon the Company's date time stamp affixed to the letter. I reject the contrary testimony of Robert Dale, the Company's administrative superintendent. 9 This separation notice was mailed to Copeland the next day by the Company. 10 Referring to employee Louis Morgan, who at the Respondent Union's request was discharged on February 9 for his failure to pay a second initiation fee to the Respondent Union under circumstances similar to Copeland's. On July 31, 1973, the Board found that the Respondent Union personnel office. Upon receipt of this letter, Administrative Superintendent Dale told Copeland that it was not what the Company wanted and, in speaking to Sanders about the letter, Dale told him that the letter was untimely. On ,September 11, the Respondent Union's business manager, Smith, by letter, informed the Company "Cope- land is now a member in good standing and we request that you disregard the letter requesting termination and that he be reinstated." Copeland did not see this letter. The Respondent Employer considered this letter and decided not to reinstate Copeland for the reason that reinstatement was contrary to its longstanding policy against reemploy- ing employees whose employment has been terminated. Dale, the Company's administrative superintendent, per- sonally told Copeland of the Company's decision not to reinstate him, indicated that he felt Copeland was being treated unfairly and suggested that Copeland file a grievance with the Respondent Union. Copeland followed this advice and grieved over his discharge to Underwood, the Building Trades steward, who agreed to file a grievance on his behalf. A contractual grievance meeting was conducted between representatives of the Company and unions in late September, at which time a representative of the Respon dent Union advised Copeland that he did not have time to investigate Copeland's grievance and, because of this, its consideration had been postponed for 1 month. At the next meeting when employees' grievances were considered by the Company and unions, Underwood notified Copeland that his grievance was not being considered because the Respondent Union was going to wait and see what happened in the case of employee Morgan.10 Copeland testified that it was his understanding that his grievance was awaiting the outcome of either "this proceeding or the Morgan proceeding before it is reactivated." Finally, the Respondents stipulated that but for his discharge Copeland on September 11 would have been promoted to the position he occupied at the time of his layoff, assistant shovel operator. C. Ultimate Findings and Analysis The Respondent Union, through its letter of August 30, demanded and obtained the discharge of Copeland pursuant to the collective-bargaining agreement's union- security clause.'1 The Respondent Union caused the Respondent Employer to discriminate against Copeland because he was not a member of the Respondent Union. There is also no question that his lack of membership resulted from Copeland's failure to pay a second initiation fee. The issue raised is whether this second initiation fee, applied during Copeland's continuous employment in the bargaining unit and occasioned solely by an intraunit unlawfully caused the Respondent Employer to unlawfully discharge Morgan. Kaiser Steel Corporation, 205 NLRB No. 34. ii I reject the testimony of Respondent Union's business manager, Smith, that it was not his intent to cause the Company to discharge Copeland. The August 30 letter, signed by Stith, which requested that Copeland "be removed from the job at once," on its face was calculated to cause Copeland's discharge. Indeed, Smith in his letter to the Company of September II referred to the August 30 letter as "the letter requesting termination." KAISER STEEL CORPORATION transfer, qualifies as a fee "uniformly required" for union representation.12 It is settled that a single lump sum initiation fee regularly exacted from employees entering a certified bargaining unit falls readily within the statutory phrase "uniformly required." In the instant case, however, the Respondent Union's second fee was based solely on Copeland's transfer from another job classification within the bargain- ing unit and bore no relationship to the wages he received. Thus, Copeland paid his first initiation fee to the Respondent Union in 1968 and thereafter worked continu- ously in the certified bargaining unit. The single factor underlying the Respondent Union's demand for a second initiation fee was Copeland's 1972 transfer from shovel operator to a Laborers' Union job classification. In other words, the second initiation fee was not uniformly required of unit employees, but was dependent upon the irregular occurance of a transfer back into a Laborers' Union job classification. Nor did the second initiation fee relate to Copeland's earnings in his new job classification. Cope- land's transfer back to the Laborers' Union classification resulted in a decline in Copeland's wages from $4.25 an hour as a shovel operator to $3.85 as a laborer. For all of the aforesaid reasons, I find, as contended by the General Counsel, that the Respondent Union violated Section 8(b)(1)(A) and (2), and the Respondent Employer violated Section 8(a)(3) and (1) of 'the Act. Kaiser Steel Corporation, 205 NLRB No. 34. Also, as contended by the General Counsel, I find that, in these circumstances, the Respondent Union violated Section 8(b)(1)(A) when its agent, Sanders, refused to represent Copeland in grieving over his discharge and to secure his reinstatement unless he complied with the Respondent Union's membership requirements. This should end the matter but, in the event the Board disagrees with my evaluation of the evidence, I shall consider the alternative theory advanced by the General Counsel, namely, that "Respondent union caused Respon- dent Employer to discharge Copeland without first informing Copeland that Respondent Union is of the position that he had an initiation fee obligation to Respondent Union . . . and without first affording Copeland a reasonable opportunity to satisfy the payment of such initiation fee" (par. 14 of the complaint). This theory is based upon those cases which express a concern that employees should not be deprived of their jobs arbitrarily under union-security agreements; that, as a minimum, an employee must be informed of his obliga- tions under such an agreement "in order that the employee 12 Section 8(a)(3) and (b)(2) of the Act makes it an unfair labor practice for an employer to discriminate, and for a union to cause or attempt to cause an employer to discriminate, against an employee under a union- security agreement for nonmembership in the union, if such membership was denied or terminated for reasons other than the employee's failure "to tender the periodic dues and initiation fees uniformly required as a condition of acquiring or retaining membership [emphasis supplied]." I note that by demanding another "initiation fee" the Respondent Union clearly indicated it was treating Copeland as a new employee rather than an employee who had allowed his membership in the Union to lapse. Accordingly, this is not a situation involving a "reinstatement fee" imposed upon a former union member who is entering or reentering the represented unit. See Food Machinery and Chemical Corp., 99 NLRB 1430, 1431-32. 451 may take whatever action is necessary to protect his job tenure." 13 I am of the opinion that the Respondent Union met this minimum obligation. Copeland knew of the contractual union-security agree- ment and, more specifically, knew that because of this agreement he was obligated to pay an initiation fee to the Respondent Union as a condition of employment when he was recalled from layoff into a Laborers' Union work classification. There is no evidence that an agent of the Respondent Union either by word or conduct indicated that the Respondent Union was no longer administering the union-security agreement in this manner. To the contrary, Copeland observed the notice posted for several weeks on the bulletin board at the Company, reserved for the Respondent Union (as well as the other unions) which advised Copeland, by name, to report to the Company's personnel office and sign a checkoff authorization for the Respondent Union's initiation fee. And, on or about May 27, to protect his job Copeland went to the Company's personnel office and signed such a checkoff authoriza- tion.14 For these reasons, I find that Copeland at all times material was clearly informed of his obligation under the union-security agreement and that the evidence does not preponderate in favor of a showing that the Respondent Union acted in derogation of its fiduciary obligation toward Copeland. But I am convinced, assuming the legality of the second initiation fee charged Copeland by the Respondent Union, that the Respondent Employer violated Section 8(a)(3) and (I) of the Act when it discharged Copeland for failing to pay this fee. For it is undisputed that Copeland on or about May 27, for the purpose of protecting his job, executed a checkoff form authorizing the Respondent Employer to check off the Laborers' Union initiation fee. This checkoff was never implemented by the Respondent Employer. Although the cases cited at footnote 13, supra, involve instances where unions requested employee terminations and the relevant Board and court opinions speak of the fiduciary duty of unions to treat employees fairly in the application of union-security contracts, there is no reason why the same principle is not equally applicable to employers in the enforcement of such contracts. The requirement of fair dealing vis-a-vis employees covered by union shop contracts is not found in the words of the Act but, as shown by the cited case, has been engrafted by Board and court decisions. The same equitable decisions that warrant imposing such a requirement on unions also warrant its imposition on employers. So far as Copeland is concerned, it is immaterial whether his discharge resulted from the arbitrary action of the Respondent Union or the 13 N.L.R.B. v. Hotel, Motel and Club Employees' Union, Local 568, [Philadelphia Sheraton Corp.], 320 F.2d 254, 258 (C.A. 3, 1963); Internation- al Union of Electrical, Radio and Machine Workers, Frigidaire Local 801 [General Motors Corp.] v. N.L.R.B., 307 F.2d 679, 683-684 (C.A.D.C., 1962); N.L.R.B. v. International Woodworkers of America, Local 13-433 [Ralph L Smith Lumber Co.], 264 F.2d 649, 657-658 (C.A. 9, 1959); N. L. R. B. v. Local 182, International Brotherhood of Teamsters [Associated Transport, Inc.], 401 F.2d 509, 510 (C.A. 2, 1968); N.L.R.B. v. Aluminum Workers, International Union, Local 135 [Metalware Corp.], 230 F.2d 515, 520 (C.A. 7, 1956). 14 There is no evidence or contention that the Respondent Union was notified that Copeland had executed such a checkoff. 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Employer. The license to terminate his employment was provided by the union-security contract and he was entitled to protection against its arbitrary use by either of the contracting parties . Here the whole record evinces a good-faith effort on the part of Copeland to tender his initiation fee. In fact, he arranged with the Respondent Employer to transmit the initiation fee to the Laborers' Union by executing a checkoff authorization' but the Respondent Employer, for an unexplained reason, failed to implement this authorization . "The [Respondent Employer's ] action in this regard is not excused by the fact that through its agent's carelessness or error, it was unaware that the [checkoff ] was in its possession." Local 1908, United Transport Union (Cottrell Bus Service Inc.), 199 NLRB No. 126. In these circumstances, even if the Respondents could lawfully compel Copeland to pay the second initiation fee, I find that the Respondent Employer, by discharging Copeland because he was not a member of the Respondent Union, violated Section 8(a)(3) and (1) of the Act. Cf. McDowell Mfg. Co., Division of Alco Standard Corp., 198 NLRB No. 187. Upon the basis of the foregoing findings of fact and the entire record, I make the following: CONCLUSIONS OF LAW 1. Kaiser Steel Corporation, the Respondent Employer, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Laborers' International Union of North America, Local No. 1184, the Respondent Union, is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging Jerry Lynn Copeland on August 31, 1972, the Respondent Employer has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 4. By causing the Respondent Employer to discharge Jerry Lynn Copeland, the Respondent Union has engaged in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act. 5. By notifying Jerry Lynn Copeland that the with- drawal of its objection to Copeland's employment with the Respondent Employer was conditioned upon the payment by Copeland to the Respondent Union of an unlawful initiation fee, the Respondent Union has engaged in unfair labor practices within the meaning of Section 8(bXl)(A) of the Act. 6. The aforesaid unfair labor practices are unf ' abor practices affecting commerce within the meaning 01- Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondents violated Section 8(a)(3) 13 In this regard I note that , but for Copeland's discharge, he would have been promoted during the normal course of business on September 11, 1972, back to the position he held immediately before his layoff. 16 1 also note that the Union did not show or give a copy of the letter to Copeland (see Local 595, International Association of Bridge, Structural and Ornamental Iron Workers, AFL (R. Clinton Construction Co. ), 109 NLRB 73. On the other hand, the record establishes that the Respondent Union, in effect, clearly notified Copeland and it was understood by Copeland that the Union had withdrawn its objection to his employment The fault with and (1) and 8(b)(2) and (1)(A) of the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As I have found that the Respondent Union caused the Respondent Employer to unlawfully discharge Jerry Lynn Copeland, I shall recommend that Respondent Union be ordered to notify Respondent Employer, in writing, with copies to Copeland, that it has no objection to his employment or to his reinstatement. I shall also recom- mend that the Respondent Employer be ordered to offer Copeland immediate and full reinstatement to his former position or, if that is not available, to a substantially equivalent one, without prejudice to his seniority or other rights and privileges.15 I shall further recommend that Respondent Union and Respondent Employer be ordered jointly and severally to make Copeland whole for any loss of earnings he may have suffered as a result of the discrimination against him by payment to him of the amount he normally would have earned from the date of his discharge to the dates set forth hereafter, less net earnings, to which shall be added interest at the rate of 6 percent per annum, in accordance with the formula set forth in F. W, Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. In the case of the Union, its backpay liability shall terminate 5 days after it notifies the Respondent Employer and Copeland that it has no objection to his reinstatement, as provided above. In the case of Respondent Employer, its backpay liability shall terminate on the date that Copeland is offered reinstatement. I do not regard the Respondent Union's letter of September 11 as being sufficient to toll its backpay liability inasmuch as the letter was conditioned upon Copeland meeting an unlawful condition, the payment of the unlawful second initiation fee. Neither the Respondent Union nor the Respondent Employer can require Copeland to forfeit his statutory rights as a condition of employment.16 Having found that the $100 initiation fee paid by Copeland to the Respondent Union on September 5 was directly related to the requirement that Copeland pay an unlawful second initiation fee as a conditio p of employ- ment, I shall recommend that the Respondent Union restore the status quo by reimbursing Copeland with this sum of money to which shall be added interest at the rate of 6 percent per annum. Upon the basis of the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 17 A. Respondent, Kaiser Steel Corporation, Eagle Moun- the Respondent Union's conduct was that it did not withdraw the unlawful condition it had attached to Copeland's continued employment. 17 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, 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. KAISER STEEL CORPORATION 453 tain, California, its officers, agents, successors and assigns, shall: 1. Cease and desist from: (a) Invoking article 3 as contained in the contract of September 16, 1970, or as contained in any future contracts with the Building and Construction Trades Council of Riverside and San Bernardino Counties, AFL-CIO, to discharge or discriminate against any employee who has once satisfied the union membership requirement of the union-security clause of said contract, by requiring the payment of an initiation fee to another labor organization because he has been transferred from one job to another within the unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer Jerry Lynn Copeland immediate and full reinstatement to his former position or, if that no longer exists, to a substantially equivalent one, without prejudice to his seniority or other rights and privileges. (b) Jointly and severally with Respondent, Laborers' International Union of North America, Local No. 1184, make Jerry Lynn Copeland whole for any loss of pay by reason of his discharge on August 31, 1972, in the manner stated in the section of the Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other data relevant to compliance with paragraphs (a) and (b) above. (d) Post at its Eagle Mountain, California, facility copies of the attached notice marked "Appendix A." 18 Copies of Appendix A to be furnished by the Regional Director for Region 21, shall, after being duly signed by the Company's representative, be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees 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. (e) Upon being furnished the same by the Regional Director, post the notice marked "Appendix B" in the same manner as Appendix A. (f) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. B. Respondent, Laborers' International Union of North America, Local No. 1184, its officers, representa- tives, and agents, shall: 1. Cease and desist from: (a) Causing or attempting to cause Kaiser Steel Corpora- tion to discharge or discriminate against any employee under article 3, as contained in the contract of September 16, 1970, or as contained in any future contract between the Building and Construction Trades Council of Riverside and San Bernardino Counties, AFL-CIO, and Kaiser Steel Corporation, for nonmembership in Respondent Laborers' International Union of North America, Local No. 1184, because an employee, who has once satisfied the union membership requirement pursuant to the union-security clause of said contract, has not paid an initiation fee to it when he has been transferred from one job to another; and from notifying employees that their continued employment at Kaiser Steel Corporation is conditioned upon paying the aforesaid initiation fee. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Return to Jerry Lynn Copeland the $100 initiation fee paid by him on September 5, 1972, to which shall be added interest at the rate of 6 percent per annum. (b) Notify Respondent Kaiser Steel Corporation, with a copy to Jerry Lynn Copeland, that it withdraws its objection to its employing Jerry Lynn Copeland and will not oppose his reinstatement. (c) Jointly and severally with Respondent Kaiser Steel Corporation make whole Jerry Lynn Copeland for any loss of earnings suffered by reason of his discharge on August 31, 1972, in the manner set forth in the section of the Decision entitled "The Remedy." (d) Post in its offices and meeting halls, copies of the attached notice marked "Appendix B."19 Appendix B, to be furnished by the Regional Director for Region 21, shall, after being duly signed by Respondent Laborers' official representative, be posted by it immediately upon receipt thereof and be maintained and caused to be maintained by it 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 Laborers and its agents to insure that such notices are not altered, defaced, or covered by any other material. (e) Forward to the said Regional Director signed copies of Appendix B for posting by Kaiser Steel Corporation at its Eagle Mountain, California, facility for 60 consecutive days in places where notices to employees are customarily posted. (f) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps it has taken to comply herewith. Is In the event that the Board's Order is enforced by a Judgment of a "Posted Pursuant to _a Judgment of the United States Court of Appeals United States Court of Appeals, the words in the notice reading "Posted by Enforcing an Order of the National Labor Relations Board." Order of the National Labor Relations Board" shall be changed to read 19 See In. 18.