Iron Workers Local 377 (M S B, Inc)

680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International Association of Bridge, Structural, Or- namental, Reinforced Iron Workers, Riggers and Machinery Movers, Local Union No. 377, AFL-CIO (M.S.B., Inc.) and Leslie H. Katocs. Case 32-CB-3046 September 6, 1990 DECISION AND ORDER BY MEMBERS CRACRAFT, DEVANEY, AND OVIA1T On March 30, 1990, Administrative Law Judge Gordon J Myatt issued the attached decision The Respondent filed exceptions and a supporting bnef The National Labor Relations Board has delegat- ed its authonty in this proceeding to a three- member panel The Board has considered the decision and the record m light of the exceptions and brief and has decided to affirm the judge's rulings,' findings, and conclusions and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, International Association of Bridge, Structural, Ornamental, Re- inforced Iron Workers, Riggers and Machinery Movers, Local Union No 377, AFL-CIO, Watson- ville, California, its officers, agents, and representa- tives, shall take the action set forth in the Order The Umon asserts that the case should be deferred for action under the hiring hall grievance procedure and/or the gnevance/arbitration pro- vision of the collective-bargaining agreement We find that deferral is not appropriate here, where the charge has been filed by an individual, the interests of the individual are adverse to those of the Union, and the Em- ployer is not a party to the Board proceeding See Shopmen's Local 539 (Zurn Industries), 278 NLRB 149 (1986), Machinists Lodge 1129 (Sunbeam Corp), 219 NLRB 1019 (1975), Machinists Lodge 68 (West Winds), 205 NLRB 132 (1973), and Laborers Local 573 (Mengel Construction), 196 NLRB 440 (1872) Barbara D Davison and Donna Yamashiro, Esqs , for the General Counsel David Rosenfeld, Esq (Van Bourg, Weinberg, Roger & Ro- senfeld), of San Francisco, California, for the Charging Party DECISION STATEMENT OF THE CASE GORDON J MYATT, Administrative Law Judge On September 16, 1988, the Regional Director for Region 32 issued a complaint and notice of hearing on a charge filed by Leslie H Katocs (Katocs) against International Association of Bridge, Structural, Ornamental, Rein- forced Iron Workers, Riggers and Machinery Movers, Local Union No 377, AFL-CIO (the Union) The com- plaint alleged the Union violated Sections 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act (the Act) Specifically, the complaint alleged the Union engaged in unlawful conduct by (1) Applying dues payments sub- mitted by Katocs to a fine levied against him by the Union, (2) refusing and failing to issue union dues re- ceipts to Katocs for his dues payments, (3) constructively refusing to dispatch Katocs through its exclusive hiring hall due to his failure to possess umon dues receipts and/or to pay his union dues, and (4) demanding that employers employing Katocs terminate the employee for reasons other than his failure to tender periodic union dues Respondent Union filed an answer in which it admit- ted certain allegations of the complaint, denied others, and specifically denied committing any unfair labor prac- tices The Umon asserted as an affirmative defense that the complaint was barred because Katocs failed to ex- haust the remedies available to him under the collective- bargaining agreement A hearing was held in this matter on December 19, 1988, in Oakland, California All parties were represent- ed by counsel and afforded full opportunity to examine and cross-examine witnesses and to present relevant and material evidence on the issues involved A brief was submitted by counsel for the General Counsel and has been considered On the entire record in this matter, including my ob- servation of the demeanor of the witnesses while testify- ing, I make the following FINDINGS OF FACT I JURISDICTION Based on the amendments at the hearing, the record establishes that M S B, Inc (M S B) is a California cor- poration engaged in the building and construction indus- try as a general engineering contractor M S B maintains an office and place of business in Watsonville, California During the 12 months preceding the hearing, M S B, the course of its business operations, sold and shipped goods or provided services valued in excess of $50,000 directly to customers or business enterprises who in turn meet the Board's jurisdictional standards In addition, the record establishes that Dietrich Iron- works, Inc (Dietnch) is a California corporation en- gaged in the business of steel fabrication and erection Dietrich maintains an office and place of business in Santa Cruz, Cahforma During the 12 months preceding the hearing, Dietrich, in the course of its business oper- ations, purchased and received goods or services valued in excess of $50,000 from sellers located within the State of California who in turn received such goods in substan- tially the same form directly from suppliers outside the State On the basis of the above, I find that M S B and Die- trich are, and have been at all times material, employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act At the hearing It was determined that Respondent was asserting that the case should be deferred for action under the grievance/arbitration provisions of the collective-bargaining agreement 299 NLRB No 105 IRON WORKERS LOCAL 377 (M S B, INC ) 681 II THE LABOR ORGANIZATION INVOLVED International Association of Bridge, Structural, Orna- mental, Reinforced Iron Workers, Riggers and Machin- ery Movers, Local Union No 377, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES The uncontroverted testimony discloses that Katocs had been a member of the Union for approximately 8 years Sometime prior to May 1988, Katocs became in- volved in a dispute with the officers of the Union over certain internal rules As a result of the dispute, a fine of $500 was levied against Katocs by the Union 2 In early May, Katocs sent the Union a money order for his monthly union dues for the months of June through September (G C Exh 3(a) ) Katocs testified it was his practice to pay his monthly dues ($21) 3 to 5 months in advance Normally, the Union would send him a receipt showing the payment of the dues for the months to which it was to be applied Possession of a current dues receipt was important because when a member was referred to a job by the Union, the member was reqiured to produce the receipt—reflecting that his dues were current—for the steward at the site in order to be eligible to work The receipt sent to Katocs by the Union indicated his $84 dues payment had been applied to the $503 fine which had been levied against him The receipt showed that he owed a balance on the fine of $416 On the upper corner of the receipt was a handwritten notation that the amount had been "applyed [sic] to Fine" (See G C Exh 3(b) ) Accompanying the receipt was a letter from Dennis Madigan, financial secretary-treasurer and busi- ness representative of the Union This letter informed Katocs that the $84 payment had been applied to the fine levied against him The letter requested that he submit the balance due ($416) "as soon as possible" (G C Exh 4) After receiving this letter and the receipt, Katocs called Madigan at Respondent's San Francisco office Katocs complained that the application of his dues money was illegal and Madigan replied that Katocs "should pay his fine and go about his business" Katocs mailed a letter to the Union protesting the application of his dues payment to the fine and stated that if the amount were not applied to his dues, he would take legal action against the Union (G C Exh 5)3 In August, ICatocs contacted the Union's San Jose office and requested that he be placed on the out-of- work list Shortly thereafter, the Union dispatched Katocs to M S B 's jobsite in Aromas, California On August 15 Katocs began working at the Aromas jobsite for M S B as a detail welder When he arrived at the site he was mstructed by several employees to see Mack Bush He was informed that Bush was the iron- workers' steward at the jobsite Bush did not ask ICatocs to produce his dues receipt when he began working but 'The merits of the dispute is not an issue in this case 3 At the time of the hearing Respondent had not replied to ICatocs' letter nor had Respondent applied the money to his dues told the employee he would check it the next day when they had the safety meeting The following morning Bush conducted a safety meeting of all of the members of Respondent employed at the jobsite before work began The job superintendent for M S B, Robertson, was also present at the meeting During the meeting, Bush asked all members of the Iron Workers to produce their dues receipts for verification When Bush asked for Katocs' dues receipt, Katocs produced the carbon copy of the money order he forwarded to Respondent as pay- ment for his dues through September Bush informed Katocs that the copy of the money order was not suffi- cient because it was not an official union dues receipt Katocs asked Bush to call Respondent and get the matter straightened out Bush and Katocs went inside the jobsite trailer of M S B where Bush placed a call to Respond- ent's San Francisco office He spoke with Randy Oiler, a business agent of Respondent, who informed Bush that Katocs needed a union dues receipt in order to work at the jobsite Bush relayed this information to Katocs who then spoke with Oiler Katocs complained that the Union's actions were illegal Oiler responded by saying that all Katocs had to do was pay the fine and he would receive his dues receipt Katocs insisted that he would not pay the fine until the International Union had re- solved the issue which caused him to be fined He was then told by Oiler that he could not work without a dues receipt Bush and ICatocs returned to the meeting with Robert- son and the other employees Bush informed Robertson that he could not permit Katocs to work at the jobsite stating that "his hands were tied and there was nothing he could do" Robertson informed Katocs that he could return to work for M S B if Katocs cleared up the dues matter with the Union Robertson subsequently informed the president of M S B, George Shernuan, that Bush had determined Katocs was ineligible to work at M S B and that Katocs services were terminated Robertson called Shenman in order to have a termination check issued to Katocs When Katocs returned home on August 16 after leav- ing the M S B jobsite, he called Harold Evans, the Union's business agent in its San Jose office ICatocs in- formed Evans about what occurred on the M S B jobsite and Evans told Katocs it was his (Evans) duty to dis- patch Katocs to jobs and that is what he intended to do Katocs requested that he be placed on the Union's out- of-work list Sometime during the course of the next several days, Katocs called Madigan at the Union's San Francisco office Katocs informed Madigan that he considered the Union's action in causing his removal from the M S B jobsite to be illegal Madigan replied that Katocs should pay his fine and go about his business Katocs then took the position that payment of the fine would be an admis- sion of guilt, and that he was not guilty of anything against the Union 4 The above facts are based on the unrefuted testimony of ICatocs and Sherman Bush was not called as a witness in these proceedings 682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD On August 23, E:/ans contacted Katocs and asked if he would like to work at one of two jobs available in San Jose Katocs questioned whether he would be permitted to work without a dues receipt and Evans replied that on a majority of the big jobs Katocs would be asked by the union representative [the Iron Workers steward] to produce his dues receipt He further stated that Katocs probably would not be allowed to work without a dues receipt On August 24, Evans again contacted Katocs Evans told Katocs there was a 5-month job available with the Marnott Hotel m San Francisco Katocs again ques- tioned whether he would be allowed to work without a dues receipt Evans responded by stating that if Katocs worked without a dues receipt, there would be "trou- ble" Evans contacted Katocs again on August 26 and in- formed him that the Union had a list of five work orders (dispatches) to be filled Katocs again questioned Evans as to whether he would be permitted to work without a current dues receipt This time Evans responded by tell- ing Katocs that he would be sent home on some jobs if he did not have a dues receipt and that on other jobs he might be permitted to work In September, Katocs, pursuant to his usual practice, sent his dues payment to the Union for the months of October, November, and December Katocs clearly noted on the face of the money order that the amount was for the payments of dues for the designated months (See G C Exh 6(a) ) Respondent sent Katocs a receipt for the payment which indicated that the amount had been applied to the fine (G C Exh 6(b) ) Sometime during the latter part of September, Katocs secured a job working with Dietrich ironworkers as a detail welder Katocs had worked with Dietnch intermit- tently for approximately 6 years In early December, Carl Dietnch, vice president and operations manager of Dietrich, received a telephone call from Madigan advis- ing him that the Umon was going to send Dietrich a fac- simile (fax) copy of a union request that Dietrich dis- charge Katocs for failure to maintain his union member- ship in good standing Dietrich advised Madigan that it would create a hardship for his company because Katocs was working as a leadman on Dietnch's project in Aromas and the job required a particular skill which Katocs possessed Dietnch, however, informed Madigan that he did not want any labor problems on the Aromas project because it was at a critical stage Madigan told Dietrich that Katocs' removal was necessary and the Union would provide the employer with a foreman to perform the work on the project The following day, Dietrich received three faxed doc- uments from the Union relating to the request to dis- charge Katocs One was a letter on union letterhead, signed by Madigan, requesting that Dietrich discharge Katocs for failure to "remain and/or maintain [Union] membership in good standing" as required by the union- security provision contained in the collective-bargaining agreement between the Umon and Dietrich 5 The second 5 Art 4 of the collective-bargaining agreement required, as a condition of employment or continued employment, that members be and remain in faxed document was on the letterhead of the District Council of Iron Workers and signed by its president This letter requested the discharge of Katocs for failure to comply with his obligation to pay supplemental dues to Katocs for failure to comply with his obligation to pay supplemental dues to the District Council The final document faxed by the Umon was a handwntten note from Madigan instructing Dietnch to disregard the faxed letter relating to the payment of the supplemental dues It reiterated that the basis for Katocs' removal was his failure to maintain his membership in good standing in the Union 6 After receiving the documents, Dietrich spoke with Katocs about the Union's request for his discharge Katocs explained that he had been paying his dues but the Union was applying the payments to a fine levied against him Dietrich subsequently arranged to remove Katocs from the Aromas project and placed him as a welder m Dietnch's shop This change of position caused Katocs rate of pay to drop from $23 76 an hour to a little more that $18 an hour Several days thereafter, Dietrich was contacted by Madigan who was following up on the action taken on the Union's request for Katocs' discharge Dietrich in- formed Madigan that Katocs had been removed from the Aromas jobsite and Madigan indicated his approval At the time of the hearing, Katocs was still employed as a welder in Dietrich's shop Concluding Findings The Union's answer denied that Business Manager Madigan and Business Agents Evans and Oiler were agents, within the meaning of the Act, whose conduct was attributed to the Union and for which the Union was responsible The Union also denied that Bush was the Iron Workers' steward on the M S B jobsite Aromas and as such, was an agent of the Union Con- trary to these denials, I find the record establishes that Bush was the Iron Workers' steward and each of the above-named individuals was an agent of the Union within the contemplation of that term under the Act Section 2(13) of the Act provides In determining whether any person is acting as an "agent" of another person so as to make such person responsible for his acts, the question of whether the specific acts performed were actually authontzed or subsequently ratified shall not be controlling The case law holds that the common law rules of agency apply in matters arising under the Act Painters Local 1310 (Reliance Electric), 270 NLRB 506 (1984), Plumbers Local 513 (Master Plumbers), 264 NLRB 415 (1982), NLRB v Electrical Workers IBEW Local 3, 467 F 2d 1158, 1159 (2d Cir 1972) As the brief for the General Counsel correctly points out, 'agent' status will attach good standing Nonmembers were required to become members (after the expiration of a lawful waiting period) and remain members in good stand- ing (See G C Exh 7,p 10, sec 4) 6 See G C Exh 8 for copies of the faxed materials sent to Dietrich IRON WORKERS LOCAL 377 (M S B, INC ) 683 to any individual when confirmed by proper authority, [express implicit, or apparent] so long as it appears that the agent was acting in his capacity as such within the general area of his authority" (Citing Pierce Corp, 288 NLRB 97 (1988) As the General Counsel noted, this principle applies even if the principal did not authorize the particular act and there was no subsequent ratifica- tion of the actions by the principal It is sufficient if the agent was empowered to represent the pnmcmal in the general area in which the agent acted Bio-Medical of Puerto Rico, 269 NLRB 827 (1984) Applymg the above principles to the record evidence it is apparent that Madigan, Evans, and Oiler were in fact agents of the Union empowered to act in their areas of responsibility on behalf of the Union The Union ad- mitted that these individuals held the positions attributed to them and presented no evidence whatsoever concern- ing any limitations on their authority Under the terms of the constitution of the Union's parent organization (the International Union), Madigan as business manager was, among other things, the superior of all the business agents for the Union (See G C Exh 9, art XXVI, sec 6 (International constitution) ) The Union's International constitution specifically holds out the business agents of the local umons to be the "representative[s]" of the local unions to both "employers and [the] general public" Ibid Thus, it is readily apparent that the Union itself rec- ognized the business agents to be agents of the Union empowered to act on the Union's behalf It follows from this, that the business manager is even more empowered with authority to act for the Umon The unrefuted testimony fully supports this conclusion Both Sheruuan and Dietrich, as officials of their respec- tive compames, testified that over the years they dealt with Madigan and Evans as representatives of the Union in matters as diverse as staffing jobs, settling grievances, negotiating working conditions, and settling strikers Al- though there is no testimony concerning Oiler's actions in these specific areas, the uncontroverted testimony dis- closes that Oiler was the person contacted and whose in- structions were followed by Bush in the removal of Katocs from the M S B jobsite for failure to produce a current dues receipt Regarding Bush, the unrefuted testimony reveals that he was pointed out to Katocs as the ironworkers' stew- ard on the M S B jobsite when ICatocs first reported to work in August Further, that Bush performed the duties of a steward such as conducting safety meetings at the jobsite and checking the dues receipts of ironworkers to determine if, under the Union's rules, they were eligible to work on the job In addition, Shermian's testimony is unchallenged that during the prejob conference for the work on the Aromas jobsite, Bush was introduced to him as the Iron Workers' steward for the project In light of the above, I find the record fully supports the General Counsel's contention that Madigan, Evans, Oiler, and Bush were agents of the Union and that their conduct was fully attributable to the Union Indeed, all of their actions were entirely consistent with the Union's objective in compelling Katocs to pay the fine levied by the Union against him Turning to the substantive issues in the case, I first find that by applying Katocs' monthly dues payments to the amounts outstanding on the fine, the Union violated the Act There is no dispute whatsoever concerning the fact that the Union applied Katocs' June through September and October through December dues payments to the outstanding fine As evidenced by the receipts sent to him for the payments, the Union also failed to issue dues receipts to him for the months represented by the pay- ments Nor is there any question here regarding the fact that the union-security provision in the Union's collec- tive-bargaining agreement with the employers made it a condition of employment that members maintain their membership in good standing Since the Union required a current monthly dues receipt in order for a member to be permitted to work on a job to which the member was dispatched or to continue to work on a job which the member already had, it is evident that the application of Katocs' dues payments to his fine effectively precluded him from producing a current dues receipt until the fine was completely paid In these circumstances, it is readily apparent that the Union's actions in applying the dues payments of ICatocs to the fine not only threatened, but in fact caused, im- pairment and loss of employment for the member The Board long ago condemned this practice where a union- security provision existed in a union's collective-bargain- ing agreement Carpenters Bay Counties District Council 145 NLRB 1775 (1964) Accordingly, I find that by transferring Katocs' union dues payments to the satisfac- tion of a fine levied against him, the Union has violated Section 8(b)(1)(A) of the Act The next issue to be addressed here is whether the Union's demand for the discharge of Katocs from the M S B jobsite in August and the Dietrich jobsite in De- cember violated the Act I find that in each instance a violation was committed The undisputed testimony established that Katocs was discharged from the M S B jobsite because the employ- ee-member did not have a current monthly dues receipt Since the Union unlawfully applied the dues payments submitted by Katocs to the fine against him, it thereby sought to compel the member to pay the fine before crediting the payments to his monthly dues It follows, therefore, that by its action the Union caused the dis- charge of Katocs from the M S B jobsite for reasons other than the employee-member's failure to tender his periodic dues Settled law holds such conduct to be a violation of Section 8(b)(1)(A) and (2) of the Act Radio Officers v NLRB, 347 U S 17 (1954), Painters Local 1627, 233 NLRB 820 (1977) Similarly, when Madigan caused Katocs to be re- moved from the Dietrich jobsite in December, he did so for reasons forbidden by the Act As previously noted, by applying Katocs' dues payments to the fine, the Union wrongfully caused the member's dues delinquen- cy In these circumstances, it is evident that the Union caused the removal of Katocs from the Dietnch jobsite because of the employee-member's failure to pay the fine rather than the periodic dues or initial fee uniformly re- 684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD quired as a condition of retaining his membership Paint- ers Local 1627, supra I find, therefore, that by Madigan's conduct the Union committed an additional violation of Section 8(b)(1)(A) and (2) of the Act The final issue in this matter involves the General Counsel's contention that between the time Katocs was unlawfully discharged from the M S B jobsite in August until he began working on the Dietrich jobsite in Sep- tember, the Union constructively refused to refer Katocs to jobs in order to enforce its internal rule of payment of union fines The General Counsel argues that when Katocs was placed on the out-of-work list on August 16, the Union through its business agents referred him to several jobs knowing that he would have to produce a current dues payment receipt in order to be allowed to work Since the Union applied Katocs' dues payments toward the amount of the fine, the business agents were making the referrals with the full understanding that ICatocs would not be able to produce a dues payment re- ceipt which permit him to work The General Counsel does not cite nor do I find any case law to support this proposition However, the equi- ties of this case would seem to compel the upholding of this allegation The undisputed testimony of Katocs reveals that each time he received a referral from the Union he asked the business agent if he would be permitted to work without a current dues payment receipt The responses he re- ceived were ambiguous and equivocal He was told on one occasion that on a majority of the big jobs he would be required to produce his dues payment receipt and probably would not be allowed to work without it On another occasion he was told that if he attempted to work without a dues payment receipt there would be "trouble" When he received a referral on another occa- sion, the busmess agent acknowledged that on "some jobs" Katocs would be sent home [if he did not have a current dues payment receipt] and on other jobs he might not be sent home In view of the above, I find that the Union, through as business agents, were quite aware that Katocs could not produce a dues payment receipt because the Union was unlawfully applying his dues to the fine I further find that in these circumstances it would have been futile for Katocs to have responded to the referrals on the slight chance that he would have been allowed to work It is an established axiom that "the law does not require a futile act" In these circumstances, I conclude that by referring Katocs to jobs while at the same time knowing he would not be allowed to work without a current dues payment receipt, the Union did in fact constructively refuse to refer the member for employment in order to enforce the payment of the fine levied against him I find that by this conduct the Union has committed an additional violation of 8(b)(1)(A) of the Act CONCLUSIONS OF LAW 1 M S B, Inc and Dietnch Ironworks, Inc are em- ployers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 International Association of Bridge, Structural, Or- namental, Reinforced Iron Workers, Riggers and Ma- chinery Movers, Local Union No 377, AFL-CIO is a labor orgamzation within the meaning of Section 2(5) of the Act 3 By applying the monthly dues payments tendered by Leslie Katocs to a union fine levied against him, and by refusing to issue dues payment receipts for the dues tendered by Katocs, the Respondent has violated Section 8(b)(1)(A) of the Act 4 By refusing to refer Leslie Katocs for employment and preventing him from working on jobs covered by the Union's collective-bargaining agreement for the reason that he failed to pay a union fine levied against him, the Union has violated Section 8(b)(1)(A) of the Act 5 By causing M S B, Inc and Dietnch Ironworkers, Inc to terminate the employment of Leslie Katocs on their jobsites covered by the collective-bargaining agree- ment with the Union, the Union has violated Section 8(b)(1)(A) and 8(b)(2) of the Act 6 The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act THE REMEDY7 Having found the Respondent Union has engaged in unfair labor practices, it shall be ordered to cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act Respondent Union shall be required to reallocate all dues payments tendered by Leslie Katocs that have been applied to the satisfaction of the fine levied against him to the proper payment of his monthly dues, and shall issue monthly dues receipts to him reflecting each such payment Respondent Union shall also be required to make Leslie Katocs whole for the loss of earnings, with interest, he may have suffered as a result of the discrimi- nation against him In addition, the Respondent Union shall be required to make Katocs whole for the loss of earnings he may have suffered, with interest, as a result 7 The Friday preceding the date of the hearing in the Instant matter, the Union filed a charge against Dietrich Ironworks alleging that em- ployer violated Sec 8(a(3) of the Act by removing Katocs from its job- site on the Union's demand on December 2 At the time of the hearing there was no evidence that the Regional Director had Issued a complaint on the Union's charge, or if one had Issued, that there was any consider- ation of consolidating it with the instant case The Union argues Dietrich is a necessary party in this matter for reme- dial purposes I reject this contention Final authonty to Issue complaints is vested in the General Counsel by Sec 3(d) of the Act There is no indication that the Regional Director, acting on behalf of the General Counsel, Improperly failed to Issue a complaint on the Union's charge or to consolidate It with this matter for hearing See Dubose Masonry, 279 NLRB 909 (1986) In addition, the identification of an employer is not a requisite to a finding of an 8(bX2) violation nor to its remedy Boilermak- ers Local 37 (Delta Maintenance), 272 NLRB 326 (1984) Moreover, as the General Counsel correctly noted, the Union's contract with Dietnch provides for the Union to Indemnify employers for any liability incurred for terminations under the union-security clause G C Exh 9, sec 4F In these circumstances, I find Dietrich is not a necessary party here for re- medial purposes and that the Union is not prejudiced by the failure to join Dietrich in the instant matter See also Teamsters Local 439 (Shippers Imperial), 281 NLRB 255 (1986) IRON WORKERS LOCAL 377 (M S B, INC ) 685 of the unlawful refusal to refer him for employment from August 16, 1988, until ICatocs became employed by Die- trich Ironworks in September 1988 Backpay shall be cal- culated in the manner set forth in F W Woolworth Co, 90 NLRB 289 (1950), with interest computed thereon in the manner prescribed in New Honzons for the Retarded, 283 NLRB 1173 (1987) 8 The Union shall also be ordered to notify M S B, Inc and Dietrich Ironworks, Inc that it has no objection to their employment of Katocs and shall request his rein- statement by them Finally, the Union shall be ordered to expunge from its files and records all references to the unlawful &summation against Leslie Katocs, and notify him in writing that this has been done and that evidence of the unlawful discrimination will not be used as a basis for future action against him On these fmdings of fact and conclusions of law and on the entire record, I issue the following recommend- ed9 ORDER The Respondent, International Association of Bridge, Structural, Ornamental, Reinforced Iron Workers, Rig- gers and Machinery Movers, Local Union No 377, AFL-CIO, Watsonville, California, its officers, agents, and representatives, shall I Cease and desist from (a) Applying the monthly dues payments remitted by Leslie H Katocs to the payment of a union fme levied against him (b) Refusing to issue Leslie H Katocs dues payments receipts for the monthly dues remitted by him because of his failure to pay a union imposed fine (c) Refusing to refer Leslie H Katocs, as long as he pays his monthly dues, for employment with employers covered by a collective-bargaining agreement with the Union for the reason that Katocs failed to pay a umon imposed fme (d) Requesting or demanding that M S B, Inc, or Die- trich Ironworks, Inc , or any other employer covered by a collective-bargaining agreement with the Union, dis- charge or otherwise discriminate against Leslie H Katocs as long as his monthly dues are paid (e) In any like or related manner restrain or coerce Leslie H Katocs in the execise of rights guaranteed by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Transfer all dues payments remitted by Leshe H Katocs that have been applied to the satisfaction of the union fme levied against him to the proper payment of his monthly dues and issue monthly dues receipts reflect- ing such payments (b) Issue monthly dues receipts to Leslie H Katocs for all dues payments tendered by him 8 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 9 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses (c) Notify M S B, Inc and Dietrich Ironworks, Inc , in wntmg, that the Umon has no objection to their em- ployment of Leslie H Katocs, provided his monthly dues payments are current (d) Refer Leslie H Katocs for employment to M S B, Inc, or Dietnch Ironworks, Inc , or any other employer covered by a collective-bargaining agreement with the Union, provided his monthly dues payments are current (e) Make Leslie H Katocs whole, with interest, for the loss of earnings he may have suffered as a result of the Umon's discrimination against him (f) Remove from the Union's files and records all ref- erence to the discrimination against Leslie H Katocs and notify him, in writing, that this has been done and that evidence of the unlawful discrimination will not be a basis for future action against him (g) Post at its business offices and meeting halls copies of the attached notice marked "Appendix "° Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Umon's author- ized representative, shall be posted immediately upon re- ceipt and maintained for 60 consecutive days in conspic- uous places, including all places where notices to mem- bers are customarily posted Reasonable steps shall be taken by the Union to ensure that the notices are not al- tered, defaced, or covered by any other material (h) Furnish signed copies of the notice to the Regional Director for Region 32 for posting by M S B, Inc, and Dietnch Ironworks, Inc , provided those employers are willing, where notices to employees are customarily posted (1) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Union has taken to comply 10 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" APPENDIX NOTICE To MEMBERS POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the Umted States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice WE WILL NOT apply the monthly dues payments ten- dered by Leslie H Katocs, or any other member, to the payment of a union fine we have imposed WE WILL NOT refuse to issue Leslie H Katocs, or any other member, dues receipts payments for the monthly dues tendered because of a failure of the member to pay a fine we have imposed WE WILL NOT refuse to refer Leslie H Katocs, or any other member, as long as the member's dues payments are current, for employment with employers covered by 686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD collective-bargaining agreements with us because the member has failed to pay a union imposed fine WE WILL NOT request or demand that M S B, Inc , or Dietnch Ironworks, Inc , or any other employer covered by a collective-bargaining agreement with us, discharge Leslie H Katocs, or any other member, for failure to pay a union imposed fine WE WILL NOT in any like manner restrain or coerce Leslie H ICatocs, or any other member, m the exercise of rights guaranteed in Section 7 of the National Labor Relations Act WE WILL transfer all dues payments submitted by Leslie H Katocs, which have been applied to the satis- faction of the union fine imposed against him, to his monthly dues payments and will issue him receipts for such payments WE WILL issue monthly dues receipts to Leslie H Katocs for all dues payments tendered by him WE WILL notify M S B, Inc , and Dietrich, Inc , m writing, that we have no objection to their employing Leslie H Katocs, provided that his monthly dues pay- ments are current WE WILL refer Leslie H Katocs for employment with employers covered by a collective-bargaining agreement with the us WE WILL make Leslie H Katocs whole, with interest, for any loss of earnings he may have suffered by reason of our discnmination against him because of his failure to pay a umon imposed fine WE WILL remove from our files and records all refer- ence to our discrimination against Leslie H Katocs and notify him, in wntmg, that this has been done and that evidence of the unlawful discrimination will not be a basis for future action against him INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL, ORNAMENTAL, REINFORCED IRON WORKERS, RIGGERS AND MACHIN- ERY MOVERS, LOCAL UNION No 377, AFL-CIO