INDUSTRIAL CONTRACTORS SKANSKA INC.

National Labor Relations Board - Board Decisions

Aug 20, 2015

362 NLRB No. 169 (N.L.R.B. 2015)

362 NLRB No. 169
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
Industrial Contractors Skanska, Inc. and Michael
Feist.
Laborers International Union of North America, Lo-
cal Union No. 561 and Michael Feist. Cases 25–
CA–130127 and 25–CB–130081
August 20, 2015
DECISION AND ORDER
BY MEMBERS HIROZAWA, JOHNSON,
AND MCFERRAN
On February 20, 2015, Administrative Law Judge Ar-
thur J. Amchan issued the attached decision. The Gen-
eral Counsel and the Charging Party filed exceptions and
supporting briefs. The Respondent Union (Union) filed
answering briefs opposing the General Counsel’s and the
Charging Party’s exceptions, respectively. The Re-
spondent Employer (Employer) filed answering briefs to
the General Counsel’s and the Charging Party’s excep-
tions, respectively. The General Counsel filed a reply
brief to the Union’s and the Employer’s answering
briefs. The Charging Party also filed reply briefs to the
Union’s and the Employer’s answering briefs.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings, and conclusions only
to the extent consistent with this Decision and Order.
The judge dismissed the complaint allegations that the
Union violated Section 8(b)(1)(A) and 8(b)(2) of the Act
by failing to provide the Charging Party, Michael Feist,
with adequate notice of his dues delinquency before in-
forming the Employer that he was no longer a member in
good standing and thus ineligible for hire, and that the
Employer violated Section 8(a)(3) and (1) by refusing to
employ Feist pursuant to the Union’s communication.
The judge failed to address the additional complaint alle-
gation that the Employer independently violated Section
8(a)(1) by informing Feist that it was refusing to employ
him because of the Union’s communication. For the
reasons set forth below, we reverse the judge and find
each of these alleged violations.1

1 The General Counsel filed bare exceptions regarding the judge’s
failure to find that the Employer violated Sec. 8(a)(3) and (1) by re-
scinding a job offer to Feist based on the Union’s communication. The
General Counsel presented no argument in support of this exception.
I. FACTS
The Employer is a large construction contractor in Ev-
ansville, Indiana. The Union represents approximately
1400 laborers in Kentucky and Indiana. The Employer
and the Union were parties to a collective-bargaining
agreement effective March 2012 to March 2015. The
collective-bargaining agreement contained a union-
security provision.
Members are required to pay $25 per month as month-
ly dues and 5 percent of their pay as working dues. If a
member falls 2 months and 1 day behind in paying his
monthly dues, the Union automatically suspends the
member. To be reinstated, the member is required to pay
the Union $56 for each month the member was behind on
dues plus $75 to cover the next 3 months of dues.
Michael Feist has been a member of the Union since
1997, and he has worked regularly for the Employer
since 1998. Feist was suspended for failure to pay dues
on four previous occasions. On each of these occasions,
the Union provided Feist with verbal notice of his sus-
pension. Although Feist claimed that the Union’s rec-
ords were incorrect with regard to three of the four sus-
pensions, he ultimately paid to reinstate his membership
each time.
Feist did not pay his monthly dues in February and
March 2014, and the Union suspended his membership
in April 2014.2 The Union did not provide Feist with any
notice before suspending him because it believed that it
did not have his current address. On one prior occasion,
the Union’s receptionist/secretary, Diane McCormick,
asked Feist for his address. Feist stated that he did not
need to provide it because the union pension fund al-
ready had this information.
On April 8, Feist went to the union hall to pay his
April dues so that he could attend a membership meeting
that night. At that time, McCormick informed Feist that
his membership had been suspended and that she could
not accept his dues payment until he paid all outstanding
dues and the reinstatement fee. Feist then spoke with the
Union’s business manager and president, Barry Russell,
telling him that he had paid his dues. After Russell asked
Feist to show him a receipt, Feist left the union hall and
returned with a receipt for March. That receipt, however,
was for another member’s March payment. Ultimately,
Feist left without paying any dues or the reinstatement
fee.
Later that afternoon, the Union sent the following fax
to the Employer: “Please be advised that Mike Feist will

Accordingly, we find, pursuant to Sec. 102.46(b)(2) of the Board’s
Rules and Regulations, that this exception should be disregarded.
2 All dates are in 2014 unless otherwise stated.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
not be eligible for work or recall for your firm due to
failure to maintain membership in this Union. We will
advise you when this member has reinstated their mem-
bership with this Union.” Thereafter, the Employer’s
dispatcher, Susie Titzer, called Feist and informed him
that the Employer was changing his employment status
from “available” to “suspended.” The Employer had laid
Feist off in March, but he had been on a list of available
employees who would be recalled if the Employer need-
ed his services. Feist told Titzer that he was aware of his
suspension and that he was seeking legal counsel. Feist
also stated that there was a dispute involving his dues,
and he claimed that he had paid them. Titzer did not
contact the Union before changing Feist’s employment
status.
Titzer and Feist spoke again on two occasions. On
May 28, Titzer called Feist to ask about his membership
status. Feist told her that it remained unchanged and that
he had chosen not to reinstate his membership. Titzer
informed him that he could not work for the Employer
unless he was a union member in good standing. None-
theless, Titzer offered Feist a job in June, but withdrew
the offer the next day.
II. ANALYSIS
A. THE RESPONDENT UNION
A union violates Section 8(b)(1)(A) and 8(b)(2) if it
causes or attempts to cause an employer to discharge an
employee for the employee’s failure to pay dues without
first providing the employee with proper notice. Unions
have a fiduciary duty to deal fairly with employees
whom they seek to terminate for failure to pay dues. See
H.C. Macaulay Foundry Co., 223 NLRB 815, 818
(1976), enfd. 553 F.2d 1198 (9th Cir. 1977); Philadelph-
ia Sheraton Corp., 136 NLRB 888 (1962), enfd. sub
nom. NLRB v. Hotel, Motel & Club Employees Union,
Local 568, 320 F.2d 254 (3d Cir. 1963). The Board has
explained that, at a minimum, this fiduciary duty requires
that the union
give the employee “reasonable notice of the delinquen-
cy, including a statement of the precise amount and
months for which dues [are] owed, as well as an expla-
nation of the method used in computing such amount.”
In addition, the union must specify when such pay-
ments are to be made and make it clear to the employee
that discharge will result from failure to pay. This fi-
duciary responsibility to advise an employee regarding
his dues obligation requires “positive action,” without
regard to any concurrent obligation on the employer to
provide notice.
Western Publishing Co., 263 NLRB 1110, 1111–1112
(1982) (internal citations omitted). A union’s fiduciary duty
requires that an employee be given a reasonable opportunity
to make payment after receipt of the notification of delin-
quency. Coopers NIU (Blue Green), 299 NLRB 720, 724
(1990), citing United Metaltronics Local 955 (Pharmaseal
Laboratories), 254 NLRB 601 (1981). Moreover, the un-
ion’s fiduciary duty “is not satisfied by the fact that the em-
ployee may have acquired independent knowledge of the
existence of the union-security clause and his obligations
thereunder.” Teamsters Local 630 (Ralph’s Grocery Co.),
209 NLRB 117, 124 (1974).
Because the above protections were never “intended to
be so rigidly applied as to permit a recalcitrant employee
to profit from his own dereliction in complying with his
obligations,” the Board will excuse a union’s failure to
fully comply with the notice requirements if the union
proves that the employee made a “conscious decision” to
“willfully and deliberately . . . evade his union-security
obligations.” Ralph’s Grocery, 209 NLRB at 124, 125;
accord Conductron Corp., 183 NLRB 419, 426 (1970).
It is clear, however, that “negligence or inattention on the
part of the employee will not relieve the union of its fi-
duciary obligation.” Grassetto USA Construction, 313
NLRB 674, 677 (1994).
Applying these principles, the judge found that the Un-
ion’s actions did not violate Section 8(b)(1)(A) and
8(b)(2). The judge found that Feist was aware of the
dues and fees that he needed to pay to reinstate his mem-
bership because of his past suspensions and, further, that
although the Union may not have advised Feist of the
employment consequences of his suspended status, the
Employer did. As a result, the judge found that Feist
made a “conscious decision” not to make the payments
necessary to reinstate his membership. Additionally, the
judge found that the record did not indicate that Feist had
a “good-faith belief” that he had paid his dues in Febru-
ary and March. Rather, the judge found that Feist was
“well-aware” that he had not paid his dues.
Contrary to the judge, we find that the Union’s actions
violated the Act. To begin, we find that the Union failed
to provide Feist with adequate notice of his dues delin-
quency before informing the Employer that he was no
longer eligible to work. The Union did not provide Feist
with the precise amount and months for which dues were
owed, did not explain the method for computing that
amount, did not set a date by which payments were to be
made, and did not make clear that discharge would result
from his failure to pay dues. See Western Publishing,
263 NLRB at 1111–1112. Nor was the Union relieved of
its fiduciary duty because Feist may have had actual
knowledge of his dues obligations or because the Em-
INDUSTRIAL CONTRACTORS SKANSKA, INC. 3
ployer informed Feist of the consequences of his suspen-
sion. See id. at 1112; Ralph’s Grocery, 209 NLRB at
124. Additionally, the Union was not relieved of its duty
because it believed that it did not have Feist’s address or
because Feist failed to provide it. See Valley Cabinet &
Mfg. Co., 253 NLRB 98, 98, 108–109 (1980) (violation
where Union failed to provide notice even though em-
ployee had “failed repeatedly to fulfill her obligation to
notify the [u]nion of changes in her address”), enfd. 691
F.2d 509 (9th Cir. 1982); Machinists District 9 (Marvel-
Schebler), 237 NLRB 1278, 1278 (1978) (holding “it is
not sufficient for a union simply to attempt to notify em-
ployees”) (emphasis in original). It is clear that Feist
was not given a reasonable time to pay any delinquency;
indeed, the Union sent its faxed discharge demand mere
hours after informing Feist of his alleged delinquency.
As the Philadelphia Sheraton court recognized, given the
dire consequences of termination, “minimum” require-
ments are necessary to “inform the employee of his obli-
gations in order that the employee may take whatever
action is necessary to protect his job tenure.” 320 F.2d at
258.
Next, we find that the Union did not meet its burden of
proving that the exception to the rule set forth in the
Philadelphia Sheraton line of cases applies here. Alt-
hough the judge relied on cases involving this exception,
he failed to explain that the exception applies only where
the union establishes that the employee made a conscious
decision to willfully and deliberately evade his dues ob-
ligations. Further, the judge failed to find that the Union
established that Feist fit this description.
In our view, the Union failed to demonstrate that Feist
made a “conscious decision” to deliberately and willfully
evade his dues obligations when he failed to pay his dues
in February and March. Feist had been a dues-paying
Union member since 1997. On April 8, the day Feist
learned that he had been suspended, he had gone to the
Union hall to pay his dues for that month, not to evade
paying them. The Union, however, refused to accept his
payment because of his arrearages; there is no evidence
that Feist had any reason to think, prior to the refusal,
that his proffer of April dues would not be accepted.
Notably, Feist returned later that same day in a further
effort to gain reinstatement. Although it is true that Feist
had a history of falling behind on his dues, he also had a
history of paying to reinstate his membership each time.
Unlike the cases cited by the judge, there is nothing in
this record that establishes that Feist’s failures up to the
moment of his suspension were due to anything other
than inattention or negligence, and neither relieves a un-
ion of its fiduciary duty. See Grassetto, 313 NLRB at
677. Moreover, after the Union informed Feist of his
suspension, he informed both the Union and the Employ-
er that there was a problem and that he had paid his
dues.3 Although the Union argues that Feist’s presenta-
tion of the dues receipt of another member shows “un-
clean hands,” the judge made no finding that Feist at-
tempted to deceive the Union; in any case, this conduct,
considered in light of the record as a whole, does not
satisfy the Union’s burden here. See Ralph’s Grocery,
supra.
Finally, we find that the other cases upon which the
judge relied in dismissing the 8(b)(1)(A) and 8(b)(2) al-
legations are distinguishable. See Food & Commercial
Workers Local 368A (Professional Services), 317 NLRB
352, 354–355 (1995) (employee was aware of her dues
obligations not only because of a prior suspension, but
also because the union gave the employee multiple noti-
fications about her dues delinquency that “substantially
complied with the requirements” of Philadelphia Shera-
ton); IBI Security, 292 NLRB 648, 648–649 (1989)
(employee “resisted joining the [u]nion and procrastinat-
ed until the [u]nion had no alternative but to seek his
dismissal,” despite the union notifying him of his obliga-
tions to join the union and pay an initiation fee, the
amount of that fee, and the consequence of his failure to
do so); Big Rivers Electric Corp., 260 NLRB 329, 329
(1982) (employee failed to pay dues for 8 months after
her hire and after repeated warnings from the union about
the consequences of failing to pay dues). Communica-
tions Workers Local 9509 (Pacific Bell), 295 NLRB 196,
196 (1989), is also inapposite because, there, the Board
found that the union had provided the employee with
adequate notice of her suspension.
For these reasons, we find that the Union did not pro-
vide Feist with adequate notice of his dues delinquency
before informing the Employer that he was no longer
eligible to work, and that the Union failed to demonstrate
that Feist made a “conscious decision” to deliberately
and willfully evade his dues obligations when he failed
to pay his dues in February and March. Accordingly, we

3 There is some evidence that Feist told Titzer on April 8 that he had
chosen not to reinstate his membership. But Feist also told Titzer on
that date that he had paid his dues and that there was a dispute. There-
fore, we find that Feist’s statements on April 8 do not demonstrate that
he had made a conscious choice to deliberately and willfully evade his
dues obligations. We do not make such a finding, however, concerning
Feist’s unequivocal statement to Titzer on May 28 that he had chosen
not to reinstate his membership. This later statement, coupled with his
failure to attempt to rectify his non-payment of dues in the intervening
7 weeks, arguably shows that at some point Feist made a conscious
choice to deliberately and willfully evade his dues obligations. Never-
theless, Feist’s conduct after the Union suspended him and informed
the Employer does not excuse the Union’s failure to provide him with
adequate notice prior to suspending him.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
reverse the judge and find that the Union violated Sec-
tion 8(b)(1)(A) and 8(b)(2).
B. THE RESPONDENT EMPLOYER
1. 8(a)(3) and (1) violation
An employer violates Section 8(a)(3) and (1) “when it
discharges an employee at the request of the union when
it has ‘reasonable grounds for believing’ that the request
was unlawful.” Valley Cabinet, 253 NLRB at 99 (citing
Forsyth Hardwood Co., 243 NLRB 1039, 1040 (1979);
Conductron Corp., 183 NLRB at 427). “[W]hen placed
on notice or given sufficient reason to suspect that the
union may have failed to fulfill its fiduciary obligations,
an employer has a duty to investigate the circumstances
surrounding the request for discharge before honoring
it.” Western Publishing, 263 NLRB at 1113 (internal
footnote omitted). The extent of this duty of inquiry will
vary from case to case. California Saw & Knife Works,
320 NLRB 224, 246–247 (1995), enfd. sub nom. Ma-
chinists v. NLRB, 133 F.3d 1012 (7th Cir. 1998), cert.
denied 525 U.S. 813 (1998). In California Saw, the
Board found that the employer satisfied its duty of in-
quiry, and, therefore, did not violate the Act because the
employer gathered relevant facts and statements of posi-
tion from the union and the employee before discharging
the employee. Id. at 247. By contrast, in Western Pub-
lishing, 263 NLRB at 1113, the Board found that the
employer violated the Act because it failed to investigate
the facts surrounding the union’s request before terminat-
ing the employee.
The judge found that the Employer did not violate Sec-
tion 8(a)(3) and (1) by refusing to employ Feist pursuant
to the Union’s communication. Based on his finding that
the Union lawfully suspended Feist’s membership, he
reasoned that the contract’s union-security clause pre-
vented the Employer from recalling Feist. The judge
further found that, even if the Union had acted unlawful-
ly, the Employer did not have reasonable grounds for
believing that the Union suspended Feist for reasons oth-
er than his failure to pay dues (or that he was denied
membership on terms and conditions not generally appli-
cable to other members). Although the judge recognized
that “[o]ne could argue that Skanska still had an obliga-
tion to call the Union with regard to Feist’s claim that
[the] Union was in the process of investigating his con-
tention,” he concluded that a call to the Union “would
have only led the employer herein to believe that the Un-
ion had a bona fide belief that Feist had not paid his dues
as required.”
Because we disagree with the judge’s conclusion that
the Employer lacked reasonable grounds for believing
that the Union’s request was unlawful, we find that the
Employer’s change of Feist’s status to “suspended” vio-
lated 8(a)(3) and (1). In Claremont Resort Hotel and
Tennis Club, 260 NLRB 1088, 1092, 1094 (1982), the
Board found that the employer had reasonable grounds
for believing that the union’s request was unlawful when
the employee, upon being told that he was being dis-
charged for nonpayment of dues, told his employer that
he had cleared the matter with the union and had paid his
dues. In the instant case, Feist told Titzer that there was
a dispute involving his dues and claimed that he had, in
fact, paid them. Feist, like the employee in Claremont
Resort Hotel, “did all that he could to put the Employer
on notice that something was amiss.” 260 NLRB at
1094. Thereafter, the Employer had a duty to make fur-
ther inquiry of the Union before changing his employ-
ment status.4
Furthermore, the judge erred by reasoning that a call
from the Employer to the Union here would only have
served to confirm that the Union’s request was lawful.
The Board has already rejected such reasoning as “idle
speculation.” See Claremont, 260 NLRB at 1094.
We find that, presented with Feist’s protestations that
he had, in fact, paid his dues, the Employer had an af-
firmative duty to investigate further before changing his
employment status. Because it failed to fulfill this duty,
we find that the Employer violated 8(a)(3) and (1).5

4 We note that this case is distinguishable from cases in which the
Board has found that the employers had no reasonable grounds for
believing the unions’ requests were unlawful because the employees
did not dispute the unions’ claims that they had not paid their dues and
did nothing to protest their discharges. See, e.g., Monson Trucking,
Inc., 324 NLRB 933, 935–936 (1997), enfd. 204 F.3d 822 (8th Cir.
2000); Western Publishing, 263 NLRB at 1113; Valley Cabinet, 253
NLRB at 98; Allied Maintenance Co., 196 NLRB 566, 571 fn. 17
(1972); Associated Transport, Inc., 169 NLRB 1143, 1143 (1968),
enfd. sub nom. NLRB v. Teamsters Local 182, 401 F.2d 509 (2d Cir.
1968), cert. denied 394 U.S. 213 (1969).
5 We find that Titzer is the Employer’s agent because she had actual
authority to change Feist’s employment status, and we find that placing
Feist on suspended status was tantamount to a discharge because this
change in his employment status prevented him from receiving job
assignments.
Member Johnson notes that, in his view, it is a close issue whether
the Employer violated Sec. 8(a)(3) in light of Feist’s testimony—not
addressed by the judge— that, after Titzer “suggested that [he] be
placed on unavailable status,” Feist “agreed that might be the best thing
to do at that time.” (Tr. 116.) However, Member Johnson ultimately
agrees with his colleagues that the Employer violated the Act because
Feist did not withdraw his statements to Titzer that there was a dispute
involving his dues and that he had paid them. Member Johnson would
not find a violation if an employee withdraws his statements regarding
a dues dispute by, for example, telling the employer that the employee
does not want to advance the issue or that the union is probably right
that the employee is delinquent.
INDUSTRIAL CONTRACTORS SKANSKA, INC. 5
2. Independent 8(a)(1) violation
The General Counsel has excepted to the judge’s fail-
ure to address the complaint allegation that the Employer
independently violated Section 8(a)(1) by informing
Feist (twice) that it was refusing to employ him based on
the Union’s communication. We find that the Employer
violated Section 8(a)(1) when Titzer informed Feist on
April 8 that she was changing his status from available
for hire to suspended. As discussed above, the Union
violated the Act by suspending Feist’s membership and
informing the Employer that he was ineligible for work
because the Union failed to provide Feist with adequate
notice of his dues delinquency so as to allow him to cure
the delinquency. The Employer violated the Act by dis-
charging Feist at the Union’s request because it failed to
investigate when it had reasonable grounds for believing
that the request was unlawful. By informing Feist on
April 8 that it was suspending him based on the Union’s
representation that Feist had not paid his dues—a repre-
sentation that Feist protested—the Employer effectively
sent a message of futility to Feist and chilled his right to
dispute the Union’s calculations (which he had never
seen, as the Union had not provided a proper Philadelph-
ia Sheraton notice). This, in turn, left Feist with no
choice but to pay the disputed amount or face unem-
ployment. In these circumstances, we find that the Em-
ployer’s statement independently violated Section
8(a)(1).6 See generally Marion Memorial Hospital, 335
NLRB 1016, 1019 (2001), enfd. 321 F.3d 1178 (D.C.
Cir. 2003) (finding that an employer independently vio-
lated Section 8(a)(1) by announcing changes to employ-
ees’ terms and conditions of employment that were uni-
laterally and unlawfully implemented in violation of Sec-
tion 8(a)(5)).
CONCLUSIONS OF LAW
1. Industrial Contractors Skanska is an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.

6 Given our finding regarding the Employer’s April statement, we
find it unnecessary to pass on whether the Employer also violated the
Act in May when Titzer informed Feist that he could not work for
Skanska unless he was a union member in good standing.
Member Johnson generally agrees that “[m]erely advising employ-
ees of the reason for their discharge is ‘part of the res gestae of the
unlawful termination, and is subsumed by that violation.’” Triple Play
Sports Bar & Grille, 361 NLRB No. 31, slip op. at 9 fn. 2 (2014)
(Member Miscimarra dissenting in part, citing former Chairman
Hurtgen’s partial dissent in Benesight, Inc., 337 NLRB 282, 285
(2001)). Here, however, Titzer’s April 8 statement was more than part
and parcel of explaining Feist’s discharge; she independently suggest-
ed—after Feist protested his dues delinquency—that he be placed on
“suspended” status.
2. Laborers International Union of North America, Lo-
cal Union No. 561, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Union has violated Section 8(b)(1)(A) and
8(b)(2) of the Act by attempting to cause and causing the
Respondent Employer to discharge Michael Feist for
nonpayment of dues and reinstatement fees by informing
the Employer that Feist was ineligible for work or recall
due to his failure to maintain Union membership, without
satisfying its fiduciary duty to Feist.
4. The Employer has violated Section 8(a)(3) and (1)
of the Act by refusing to employ Michael Feist without
investigating and/or ascertaining the circumstances un-
derlying the Union’s request to discharge him, in the face
of reasonable cause to believe such investigation was
warranted.
5. The Employer has violated Section 8(a)(1) of the
Act by informing Michael Feist on April 8 that it was
changing his status from available for hire to suspended
pursuant to the Union’s request.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
REMEDY
Having found that the Union has violated Section
8(b)(1)(A) and (2) and that the Employer has violated
Section 8(a)(3) and (1) of the Act, we shall order that
they cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Specifically, we shall order that the Union, within 14
days from the date of the Board’s Order, notify the Em-
ployer and Michael Feist, in writing, that the Union re-
scinds its request for Feist’s discharge, and that the Un-
ion has no objection to his reinstatement without any loss
of seniority or other rights and privileges previously en-
joyed by him. We shall order that the Employer offer
Feist full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position, with-
out prejudice to his seniority or any other rights or privi-
leges previously enjoyed.7 Additionally, we shall order
that the Union, jointly and severally with the Employer,
make Feist whole for any loss of earnings suffered by
reason of the discrimination against him, less interim
earnings, from the date of his discharge until 5 days fol-
lowing the Union’s request for his reinstatement.8 The

7 As noted in the facts, because Feist was already laid off when the
Union informed the Employer that he was ineligible for work, Titzer
changed his employment status from “available” to “suspended.” We
leave to compliance whether Feist would have been recalled or offered
substantially equivalent employment absent the Union’s request.
8 In the compliance proceeding, the Respondents may argue that
backpay should be cut off on May 28, 2014, or a different date, due to
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Employer shall be solely liable for any loss of wages and
other benefits incurred by Feist after that date.9 Backpay
shall be computed in accordance with F.W. Woolworth
Co., 90 NLRB 289 (1950), with interest at the rate pre-
scribed in New Horizons, 283 NLRB 1173 (1987), com-
pounded daily as prescribed in Kentucky River Medical
Center, 356 NLRB No. 8 (2010). Further, we shall order
that the Union, jointly and severally with the Employer,
compensate Feist for the adverse tax consequences, if
any, of receiving a lump-sum backpay award and that the
Employer file a report with the Social Security Admin-
istration allocating the backpay award to the appropriate
calendar quarters. Don Chavas, LLC d/b/a Tortillas Don
Chavas, 361 NLRB No. 10 (2014). The Union and the
Employer shall also be required to expunge from their
files and records any and all references to the unlawful
discharge, and to notify Feist in writing that this has been
done and that the discharge will not be used against him
in any way.
ORDER
The National Labor Relations Board orders that:
A. The Respondent Union, Laborers International Un-
ion of North America, Local Union No. 561, its officers,
agents, and representatives, shall
1. Cease and desist from
(a) Causing or attempting to cause Industrial Contrac-
tors Skanska (the Employer) to discharge or otherwise
discriminate against employees for failure to tender to
the Union periodic dues, without first providing the em-
ployee notice of the amount owed, the period for which
dues are owed, and the method by which the amount
owed was computed, and without providing the employ-
ee with a reasonable opportunity to pay the amount
owed.
(b) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Reinstate Michael Feist to the rolls of the Union in
good standing, contingent upon payment of union dues
owed.
(b) Within 14 days from the date of this Order, notify
the Employer and Michael Feist, in writing, that it re-
scinds its request for Feist’s discharge, and it has no ob-
jection to his reinstatement without any loss of seniority
or other rights and privileges previously enjoyed by him.

Feist’s eventual conscious decision, subsequent to his initial suspen-
sion, to willingly and deliberately evade his dues obligation.
9 See Claremont Resort Hotel, 260 NLRB at 1088 fn. 2; GreenTeam
of San Jose, 320 NLRB 999, 1007 (1996).
(c) Jointly and severally with the Employer, make
Feist whole for any loss of earnings and other benefits
suffered as a result of the discrimination against him, in
the manner set forth in the remedy section of this deci-
sion.
(d) Jointly and severally with the Employer, compen-
sate Feist for the adverse tax consequences, if any, of
receiving a lump-sum backpay award.
(e) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge, and within 3 days thereafter, notify Feist in writ-
ing that this has been done and that the discharge will not
be used against him in any way.
(f) Within 14 days after service by the Region, post at
its Evansville, Indiana facility, copies of the attached
notice marked “Appendix A.”10 Copies of the notice, on
forms provided by the Regional Director for Region 25,
after being signed by the Union’s authorized representa-
tive, shall be posted by the Union and maintained for 60
consecutive days in conspicuous places, including all
places where notices to members are customarily posted.
In addition to physical posting of paper notices, notices
shall be distributed electronically, such as by email, post-
ing on an intranet or an internet site, and/or other elec-
tronic means, if the Union customarily communicates
with its members by such means. Reasonable steps shall
be taken by the Union to ensure that the notices are not
altered, defaced, or covered by any other material.
(g) Within 14 days after service by the Region, deliver
to the Regional Director for Region 25, signed copies of
the notice in sufficient number for posting by the Em-
ployer at its Evansville, Indiana facility, if it wishes, in
all places where notices to employees are customarily
posted.
(h) Within 21 days after service by the Region, file
with the Regional Director for Region 25 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Union has taken to
comply.
B. The Respondent Employer, Industrial Contractors
Skanska, Evansville, Indiana, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Encouraging or discouraging membership in Local
Union No. 561 by discharging or otherwise discriminat-
ing against employees in response to a union demand

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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
INDUSTRIAL CONTRACTORS SKANSKA, INC. 7
where the Employer has reasonable grounds for believ-
ing that the demand is unlawful.
(b) Informing employees, after they have disputed
their dues delinquency and without investigating, that
they will be ineligible for work.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their Section 7 rights.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer
Michael Feist full reinstatement to his former job or, if
that job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any other
rights or privileges previously enjoyed.
(b) Jointly and severally with the Union, make Feist
whole for any loss of earnings and other benefits suffered
as a result of the discrimination against him, in the man-
ner set forth in the remedy section of this decision.
(c) Jointly and severally with the Union, compensate
Feist for the adverse tax consequences, if any, of receiv-
ing a lump-sum backpay award, and file a report with the
Social Security Administration allocating the backpay
award to the appropriate calendar quarters.
(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge, and within 3 days thereafter, notify Feist in writ-
ing that this has been done and that the discharge will not
be used against him in any way.
(e) Preserve and, within 14 days of a request, or such
additional time as the Regional Director may allow for
good cause shown, provide at a reasonable place desig-
nated by the Board or its agents, all payroll records, so-
cial security payment records, timecards, personnel rec-
ords and reports, and all other records, including an elec-
tronic copy of such records if stored in electronic form,
necessary to analyze the amount of backpay due under
the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Evansville, Indiana facility, copies of the attached
notice marked “Appendix B.”11 Copies of the notice, on
forms provided by the Regional Director for Region 25,
after being signed by the Employer’s authorized repre-
sentative, shall be posted by the Employer and main-
tained for 60 consecutive days in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. In addition to physical posting of paper

11 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
notices, notices shall be distributed electronically, such
as by email, posting on an intranet or an internet site,
and/or other electronic means, if the Employer customar-
ily communicates with its employees by such means.
Reasonable steps shall be taken by the Employer to en-
sure that the notices are not altered, defaced, or covered
by any other material. If the Employer has gone out of
business or closed the facility involved in these proceed-
ings, the Employer shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Employer at any
time since April 8, 2014.
(g) Within 21 days after service by the Region, file
with the Regional Director for Region 25 a sworn certifi-
cation of a responsible official on a form provided by the
Region attesting to the steps that the Employer has taken
to comply.
Dated, Washington, D.C. August 20, 2015
Kent Y. Hirozawa, Member
Harry I. Johnson, III, Member
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain on your behalf
with your employer
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD8
WE WILL NOT cause or attempt to cause Industrial Con-
tractors Skanska (the Employer) to discharge or other-
wise discriminate against you for failure to tender to us
periodic dues, without first providing you notice of the
amount owed, the period for which dues are owed, and
the method by which the amount owed was computed,
and without providing you with a reasonable opportunity
to pay the amount owed.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights listed above.
WE WILL reinstate Michael Feist to the rolls of the Un-
ion in good standing, contingent upon payment of union
dues owed.
WE WILL, within 14 days from the date of the Board’s
Order, notify the Employer and Michael Feist, in writing,
that we rescind our request for Feist’s discharge, and that
we have no objection to his reinstatement without any
loss of seniority or other rights and privileges previously
enjoyed by him.
WE WILL, jointly and severally with the Employer,
make Feist whole for any loss of earnings and other ben-
efits resulting from his discharge, less any net interim
earnings, plus interest.
WE WILL, jointly and severally with the Employer,
compensate Feist for the adverse tax consequences, if
any, of receiving a lump-sum backpay award.
WE WILL, within 14 days from the date of the Board’s
Order, remove from our files, any reference to the unlaw-
ful discharge of Feist, and WE WILL, within 3 days there-
after, notify him in writing that we have done so and that
we will not use the discharge against him in any way.
LABORERS INTERNATIONAL UNION OF NORTH
AMERICA, LOCAL UNION NO. 561
The Board’s decision can be found at
www.nlrb.gov/case/25-CA-130127 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
APPENDIX B
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.
WE WILL NOT encourage or discourage your member-
ship in Laborers International Union of North America,
Local Union No. 561 (the Union), by discharging or oth-
erwise discriminating against you in response to a union
demand where we have reasonable grounds for believing
that the demand is unlawful.
WE WILL NOT inform you, after you have disputed a
dues delinquency and without investigating, that you will
be ineligible for work.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
listed above.
WE WILL, within 14 days from the date of the Board’s
Order, offer Michael Feist full reinstatement to his for-
mer job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
any other rights or privileges previously enjoyed.
WE WILL, jointly and severally with the Union, make
Michael Feist whole for any loss of earnings and other
benefits resulting from his discharge, less any net interim
earnings, plus interest.
WE WILL, jointly and severally with the Union, com-
pensate Feist for the adverse tax consequences, if any, of
receiving a lump-sum backpay award, and WE WILL file a
report with the Social Security Administration allocating
the backpay award to the appropriate calendar quarters.
WE WILL within 14 days from the date of the Board’s
Order, remove from our files any reference to the unlaw-
ful discharge of Feist, and WE WILL, within 3 days there-
after, notify him in writing that this has been done and
that the discharge will not be used against him in any
way.
INDUSTRIAL CONTRACTORS SKANSKA
INDUSTRIAL CONTRACTORS SKANSKA, INC. 9
The Board’s decision can be found at
www.nlrb.gov/case/25-CA-130127 or by using the QR code
below. Alternatively, you can obtain a copy of the decision
from the Executive Secretary, National Labor Relations
Board, 1015 Half Street, S.E., Washington, D.C. 20570, or
by calling (202) 273-1940.
Derek A. Johnson, Esq., for the General Counsel.
Charles L. Berger and Jennifer Ulrich-Keppler, Esqs. (Berger
and Berger, LLP), of Evansville, Indiana, for Respondent
Laborers Local No. 561.
Sara B. Kalis, Esq. (Littler Mendelson, P.C.), of Minneapolis,
Minnesota, for Respondent Industrial Contractors Skanska.
John Scully and Byron Andrus, Esqs. (The National Right to
Work Legal Defense Foundation), of Springfield, Virginia,
for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Henderson, Kentucky, on January 6, 2015. Mi-
chael Feist filed the charges in this case on June 5, 2014. The
General Counsel issued the complaint on September 30, 2014.
The General Counsel alleges that Respondent Union, Labor-
er’s Local 561, violated Section 8(b)(1)(A) and 8(b)(2) of the
Act in notifying Respondent Industrial Contractors Skanska
(Skanska) that Michael Feist was no longer a union member
in good standing and therefore was not eligible for hire by
Skanska. More specifically the General Counsel alleges that
the Union did not give Feist adequate notice of the amount of
dues he owed, a deadline by which it must be paid, notice that
he would be denied employment or giving Feist a reasonable
time to pay.
The General Counsel alleges that Skanska violated Section
8(a)(3) and (1) in refusing to employ Feist pursuant to its com-
munication from the Union.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent Union, Respondent Em-
ployer, and the Charging Party, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent Industrial Contractors Skanska (Skanska) is a

1 Tr. 157, lines 16 and 20 should read Beck (referring to Communi-
cations Workers v. Beck, 487 U.S. 735 (1988)), rather than back.
large construction contractor which does business in the Evans-
ville, Indiana area, amongst others. In 2013, Skanska per-
formed services worth more than $50,000 outside of the State
of Indiana. Skanska admits that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. Respondent Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
Michael Feist has been a member of Laborers’ Local No.
561 since 1997. Since 1998 he has worked regularly, but not
continuously, for Respondent Skanska. Skanska recalls Feist
for work whenever it has work corresponding to his skills. He
has also worked for other employers, but rarely uses the union
hiring hall. Local 561 members are allowed to solicit work
without going through the hiring hall. They also have recall
rights with former employers with whom they have worked in
the prior 12 months.
Skanska laid Feist off of work at the end of March 2014.
However, he was on a list of available employees who would
be called whenever Skanska had a need for his services. On
April 8, Feist went to the Local 561 union hall. There was a
union membership meeting that evening and Feist went to pay
his dues so that he could attend.
When Feist attempted to pay, Diane McCormick, the Un-
ion’s receptionist/secretary, informed Feist that his membership
had been suspended and that she could not accept his dues
payment. In such circumstances, a union member must pay all
outstanding dues and a reinstatement fee. Feist was aware of
this because his membership had been suspended on 4 previous
occasions. On each of those occasions, Feist was informed of
his suspension verbally. On each of these occasions, except the
one in 2013, Feist claimed that the Union’s records of his dues
payments were incorrect. However, on these three occasions,
he then paid his current and back monthly union dues and a
fine/reimbursement fee for each month that he owed dues in
order to restore his membership in good standing. Feist paid
his outstanding union dues and reinstatement fees as follows:
December 15, 2004: Feist paid $60 in union dues and a $192
reinstatement fee.
September 13, 2007: Feist paid $75 in dues and a $112 rein-
statement fee.
May 14, 2012: Feist paid $75 in dues and a $336 reinstate-
ment fee.
March 1, 2013: Feist paid $75 in dues and a $112 reinstate-
ment fee.
After talking to McCormick on April 8, 2014, Feist had a
conversation with Barry Russell, the business manager and
president of Local 561.
Feist told Russell that he had paid his dues. Russell asked
Feist to show him a receipt. Then Feist left the union hall and
returned with a receipt for union dues for the month of March
2014. However, the name on the receipt was that of Brian
Simpson, another Local 561 member; not Feist’s. When Rus-
sell pointed this out to Feist, the latter said he would have to
talk to Brian Simpson. There is no credible evidence in this
record indicating that Feist paid his $25 monthly union dues for
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD10
the months of February and March 2014.2 I find that he did not
do so. The Union automatically suspends the membership of
any member who is more that 2 months and 1 day in arrears of
his or her monthly dues.3
At 3:40 p.m. on April 8, 2014, the Union faxed Skanska noti-
fication that Michael Feist would not be eligible for work or
recall due to his failure to maintain his membership in the Un-
ion.
In March 2014, the Union did not notify Feist that he was 2
months in arrears because it did not believe it had his current
address. On one occasion prior to March 2014 Diane McCor-
mick asked Feist for his address. He replied that the union
pension fund had his mailing address, so there was no need for
him to give it to Local 561. The Union is not entitled to such
information from the pension fund.4
Upon receiving notification from the Union, Skanska dis-
patcher Cinda “Susie” Titzer called Feist on April 8. She in-
formed him that Skanska was changing his status from availa-
ble for hire to suspended.5 Feist told Titzer that he was aware
that the Union had suspended his membership and that he was
seeking legal counsel. Feist also informed Titzer that he had a
dispute with the Union involving his dues (Tr. 116). I credit
Titzer’s testimony that Feist specifically claimed to have paid
his dues (Tr. 91–92). Further, he told Titzer that he was not
going to reinstate his union membership in good standing.
On May 28, 2014, Titzer called Feist again. She asked him
about his membership status. Feist told her it was unchanged

2 While Feist maintains that he was not 2 months and 1 day in ar-
rears, there is no credible evidence to support this claim. The only
claim he ever made to the Union for this contention was presenting a
receipt with Brian Simpson’s name on it. At Tr. 103 Feist testified that
he remembers making a payment in March 2014. I find that he did not
do so. He kept receipts for the dues he paid, but does not have a receipt
for a payment in March (Tr. 104). Feist did not testify that he went to
the union hall to pay his dues between January 10, 2014, when his paid
his dues for January, and April 8, 2014, or give any other details as to
why he thinks he paid his March dues.
At trial, Feist testified that his union membership card indicates that
he had paid his dues through February 2014. Since he never made this
claim prior to the trial, I do not credit this testimony. Moreover, Feist
knew that the receipts he received from the Union indicated that he was
paid up only to the end of January 2014. He never raised the discrep-
ancy between his receipts and his membership card with the Union.
Moreover, I credit the testimony of the Union’s secretary, Diane
McCormick, that the placement of stamps on a membership card does
not establish the payment status of a Local 561 member.
3 Members who are working are also assessed working dues that are
deducted from their pay by their employer.
4 The receipts that the Union gave to Feist upon payment of his dues
from March 2013 to January 2014 do not have a street address. How-
ever, they indicate that the Union believed he lived in zip code 47714
(which happens to be the same zip code as the one on Brian Simpson’s
dues receipt). This is different than the zip code of the address at which
Feist testified he receives his mail, 47720 (GC Exhs. 6 and 8). The
pension fund sent mail to Feist at the 47720 address as late as October
2013. While Feist indicated at trial that he lived at the 47720 address
until June 2014; he never told that to the Union. I do not read his tes-
timony at Tr. 123–124 for the proposition that Feist gave his mailing
address to the Union. The testimony stands for the proposition that he
gave his address to the Health and Welfare Fund on 2 occasions.
5 Skanska receives 10–12 suspension notices a year from Local 561.
and that he chose not to reinstate his membership. Titzer in-
formed Feist that he could not work for Skanska unless he was
a union member in good standing. Article IV of the collective-
bargaining agreement to which Local 561 and Skanska are
parties prohibits Skanska from employing a Local 561 member
who has been suspended and not reinstated for nonpayment of
dues (GC Exh. 2, pp. 9–10).6
In June 2014, Titzer offered Feist a job on behalf of Skanska
at an Alcoa plant and then withdrew the offer the next day.
Analysis
The General Counsel relies mainly on the Board’s decision
in Philadelphia Sheraton Corp., 136 NLRB 888, 896–897
(1962), enfd. 320 F. 2d 254 (3d Cir. 1963). In that case the
Board found the Union violated Section 8(b)(1)(A) by demand-
ing that the employer discharge two employees for failing to
pay their dues. The Board so found because the Union in that
case never satisfactorily notified the employees what their
membership obligations were. Neither employee was told the
amount of his dues or when payment was to be made. The
Board found that under these circumstances it was grossly in-
equitable and contrary to the spirit of the Act to permit the Un-
ion to request the discharge of these employees.
However, the Board has also dismissed Section 8(b)(1)(A)
allegations in this regard in situations in which the employ-
ee/member had actual knowledge of his or her dues obligations
(amount, due date, etc., means of reinstating membership). In
Food & Commercial Workers Local 368A (Professional Ser-
vices), 317 NLRB 352, 354–355 (1995), the Board dismissed
the complaint because the delinquent employee, like Michael
Feist in the instant case, had actual knowledge of the amount of
dues owed, the date by which it had to be paid, the consequenc-
es of nonpayment and the means of reinstating her membership.
Also like Feist, the employee in the Food & Commercial Work-
ers case was aware of her dues obligations from suspensions of
her membership prior to the one precipitating the suspension
and discharge that give rise to the 1995 case. The Board has
reached similar conclusions in Local No. 60 Teamsters (Ralph’s
Grocery) 209 NLRB 117, 124–125 (1974); Big Rivers Electric
Corp., 260 NLRB 329 (1982); IBI Security, 292 NLRB 648
(1989); and Communications Workers Local 9509 (Pacific
Bell) 295 NLRB 196, 200 (1989).7
Michael Feist never claimed to be unaware of his dues obli-
gation. In fact, from his past experience, he obviously was
aware of the amount of dues owed and what he needed to pay
to reinstate his membership. To the Union, he asserted he paid
his March dues. He never claimed to have paid his monthly
union dues for February to the Union—at least until the day of

6 There is no evidence or allegation in this case that the union securi-
ty clause violates Indiana’s right-to-work law. According to Skanska’s
brief at fn. 5 on p. 14, the Indiana right-to-work statute does not apply
to contracts in effect on or prior to March 14, 2012. The collective-
bargaining agreement between the Union and Skanska became effective
on March 12, 2012.
7 Valley Cabinet & Mfg. Co., 253 NLRB 98 (1980), which is relied
on by the General Counsel and the Charging Party, strikes me as in-
compatible with this line of cases. However, I conclude that the weight
of Board precedent is consistent with the above cited cases.
INDUSTRIAL CONTRACTORS SKANSKA, INC. 11
the instant trial. Even at trial, Feist did not claim that he was
unaware of any facet of his dues obligation; he claimed he had
paid for months for which the Union records showed that he did
not pay.
While the Union may not had advised Feist of the employ-
ment consequences of his suspended status, Susan Titzer of
Skanska did so on April 8 and in May. Thus, Feist made a
conscious decision not to make the payments necessary to rein-
state his status as a union member in good standing.
Feist testified that he expected to have union secretary-
treasurer Harlin Scott investigate whether or not he had paid his
March dues and report back to him. Assuming this to be so,
Feist made no attempt to follow up with Scott or anybody else
at the Union. There is nothing in this record to indicate that
Feist had a good-faith belief that he had paid his dues. Indeed,
he appears to have claimed to have paid his dues on three other
occasions when he had no evidence to support this contention.
Given his claims in 2004, 2007, and 2012 that he was being
suspended for dues he had already paid, one would expect Feist
to have been very careful about keeping his receipts. The fact
that Feist did not have a receipt for his February and March
2014 dues leads me to conclude that he did not pay his monthly
dues for these months.
Thus, I conclude Feist was well aware that he had not paid
his monthly dues for over 2 months and that the Union was
privileged to suspend his membership as a result. Therefore,
Skanska could not recall Feist to work pursuant to the union
security clause of the parties’ collective-bargaining agreement.
I therefore dismiss the complaint against both Respondents.
In sum, I find that the Union’s failure to notify Michael Feist
of his dues obligations prior to suspending his membership did
not violate Section 8(b)(1)(A) or 8(b)(2) because Feist had
actual knowledge of those obligations. Consequently, I also
find that Skanska did not violate the Act in refusing to employ
Michael Feist.
Moreover, I would dismiss the complaint against Skanska
even if I were to have found that the Union violated the Act.
By the terms of Section 8(a)(3), Skanska would be in violation
of Section 8(a)(3) only if it had reasonable grounds for believ-
ing that the Union denied membership to Michael Feist on
terms and conditions that were not generally applicable to other
members, or that his membership was suspended for reasons
other than failure to pay his monthly dues.
The Union’s April 8, 2014 fax to Skanska did not specify
that it was Feist’s failure to pay his monthly dues that was the
reason he failed to maintain his membership in the Union.
However, when Titzer called Feist the same day, he informed
her that he had a dispute with the Union involving his dues.
The Board has found an employer to be in violation of Sec-
tion 8(a)(3) in circumstances in which it discharged an employ-
ee despite actual knowledge that the employee had satisfied his
or her dues obligations, e.g. Planned Building Services, 318
NLRB 1049, 1063 (1995). It has also found an employer in
violation of Section 8(a)(3) where the employee told the em-
ployer that the Union agreed that the employee had satisfied his
or her dues obligations, but the Employer discharged the em-
ployee without checking with the Union to determine whether
this was so, H. C. Macaulay Foundry Co., 223 NLRB 815, 818
(1976); Conductron Corp., 183 NLRB 419, 427–428 (1970).
In contrast, Feist did not tell Titzer that the Union now ac-
cepted his claim that he was not 2 months in arrears. One could
argue that the Skanska still had an obligation to call the Union
with regard to Feist’s claim that Union Secretary-Treasurer
Scott was in the process of investigating his contention. How-
ever, I would find a violation on the part of Skanska in these
circumstances only if a call to the Union would have given
Skanska reason to believe that Feist’s membership had been
suspended due to reasons other than failure to pay his monthly
dues. To the contrary, such a call would have only led the em-
ployer herein to believe that the Union had a bona fide belief
that Feist had not paid his dues as required. Thus, I conclude
that Skanska did not violate the Act even assuming that the
Union did so.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended8
ORDER
The complaint is dismissed.
Dated, Washington, D.C. February 20, 2015

8 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.